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By Gautam Bhatia. Gautam is a practicing lawyer and legal academic based in New Delhi, India. He writes about the Indian Constitution at the Indian Constitutional Law and Philosophy Blog.
In January 2017, seven judges of the Indian Supreme Court split 4 – 3 on the meaning of the word ‘his’. Underlying this deceptively simply linguistic dispute, however, was a much deeper disagreement: a disagreement about the very vision of democracy that the Indian Constitution is committed to.
Section 123(3) of the Representation of the People Act — India’s comprehensive law regulating the conduct of elections — defines a corrupt electoral practice as follows:
The appeal by a candidate or his agent or by any other person with the consent of a candidate or his election agent to vote or refrain from voting for any person on the ground of his religion, race, caste, community or language or the use of, or appeal to religious symbols or the use of, or appeal to, national symbols, such as the national flag or the national emblem, for the furtherance of the prospects of the election of that candidate or for prejudicially affecting the election of any candidate.
The question before the Court in Abhiram Singh v C D Commachen was whether the word ‘his’ qualified only the candidate or his agent, or whether it included the person to whom the appeal was addressed. In other words, did the section only prohibit election pitches of the kind: ‘I belong the Religion X. Vote for me’ — or did it also prohibit speeches of the kind: ‘All of you belong to Religion X. I know your concerns and I can help you — vote for me.’ A wafer-thin majority of four judges favoured the second, broader interpretation, while three dissenting judges preferred the narrow interpretation.
The reader may question, at the outset, the constitutionality of Section 123(3) itself. Isn’t a section that limits political speech to such a degree — prohibiting appeals to religion, race, caste, community or language — presumptively unconstitutional, whether it is interpreted narrowly or broadly? That question was answered by a five-judge bench of the Supreme Court in 1954. The Court held that the regulation of election speech did not violate Article 19(1)(a) of the Indian Constitution — which guarantees the right to freedom of speech and expression — because it was not a blanket restriction upon speech, but only placed certain conditions upon persons who wanted to stand for elections. A citizen was free not to stand for elections, and engage in uninhibited free speech. This logic — according to which the State may contract a citizen’s freedom of speech if she chooses to contest elections — is itself made possible by an anomaly in the Indian Constitution: despite setting up elaborate structures of Parliamentary democracy, the Constitution does not guarantee a fundamental right to vote, or a fundamental right to stand for elections.
The seven-judge bench had the opportunity to reconsider and review the 1954 decision. Unfortunately, however, they chose not to take it. Consequently, the disagreement between the majority and the dissent was narrower than it might have been: instead of a full-blown debate about the principled limits of electoral speech in a republican democracy, the majority and the dissent ended up arguing about the extent to which electoral speech could be limited.
Even there, however, the disagreement was deep and profound. The majority opinion — authored by Justice Madan Lokur — held that the purpose of the law was to maintain the purity of elections by prohibiting appeals to ‘divisive’ and ‘fissiparous’ tendencies such as caste, community, and religion. In his view, a functioning democracy required a basic consensus around essentials that could ‘hold citizens together’. Caste, community, language etc. were precisely the sites around which this consensus could be shattered. Furthermore, citizens were expected to exercise their franchise on rational considerations. Appeals to religion, and other such markers, bypassed reason in favour of the emotive and the irrational. Consequently, the prohibition upon electoral speech of this kind had to be construed broadly.
In so holding, the Majority was tapping into a long-existing strand of Indian free speech jurisprudence. As the scholar Pratap Bhanu Mehta has argued, the Indian Constitution’s liberal guarantee of freedom of speech and expression, which presupposes the existence of responsible, autonomous citizens, has always been in tension with a vision that sees the Indian polity as irrevocably divided into ascriptive groups — especially along the lines of religion. When it comes to religious speech, therefore, the Indian citizen is transformed from autonomous to dependent, from active and thinking to passive and receiving. In order to preserve public order and the public good, the State must mediate between religious speech and the citizen, and block the latter from exposure to speech that might induce damaging reactions.
This dissenting opinion — authored by Justice Chandrachud — took issue with this view. Turning the Majority’s logic on its head, Justice Chandrachud wrote that:
the Constitution… recognises the position of religion, caste, language and gender in the social life of the nation. Individual histories both of citizens and collective groups in our society are associated through the ages with histories of discrimination and injustice on the basis of these defining characteristics…
In other words, while the Majority viewed group identities as sites of division and fracturing of the fragile democratic consensus, the Dissent questioned the very existence of any such consensus. The Dissent argued that historically, in pre-democratic times, caste, religion, community, language, etc. had been the sites of widespread discrimination and oppression. With the coming of democracy, they had now become the sites of redressing that historical discrimination through political mobilization. To now deny that opportunity would be to simply perpetuate a status quo built upon exclusion and marginalization.
At an even deeper level, the Dissent’s message to the Majority was this: the Constitution does not imagine a republic of abstract, disembodied selves, who leave their markers of identity behind when they enter the public sphere. Rather, our identities are inextricably linked to our democratic selves. And our understanding and interpretation of our public law and our Constitution must reflect this vision of democracy.
The narrow, one-vote margin that separated the Majority and the Dissent in Abhiram Singh suggests that this debate is far from over.