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In a major victory for Common Cause, the Supreme Court on Aug 2, 2017, imposed a hundred percent penalty on mining companies indulging in illegal mining on account of lack of forest and environment clearances, mining outside lease/permitted area and for mining in excess of what has been allowed.

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Free Speech And Communal Identity

Gag Order On Identity Politics May Prove Counterproductive

                                                                                                                                 *Manoj Mitta

Following the government’s controversial move to fight corruption through demonetization, the Supreme Court came up with a redefinition of a “corrupt practice”. This redefinition though has little to do with black money. It’s about widening the ambit of one of the corrupt practices listed in the election law, Section 123(3) of the Representation of the People Act. Namely, the practice of an “appeal” made by a candidate or anyone authorized by him to vote or refrain from voting on the basis of “his” religion, race, caste, community or language. On January 2, a seven-judge bench of the Supreme Court delivered a 4-3 verdict on the meaning of the pronoun “his” used in the provision dealing with the excesses of identity politics1 . Giving a “broad and purposive interpretation” to that single word, the majority judgments held that the bar on the appeal for votes was on the basis of any of the five listed identities of not just the candidates but also those of the voters. This means that a candidate is now barred from appealing on the basis of, for instance, not just his own religion but also that of the voters he is addressing. The implication is that a candidate belonging to one religion is not allowed any longer to appeal for votes on the basis of another religion to which the voters belong.

The justifications offered for going beyond the “literal” interpretation suggest that the four judges comprising the majority on the Bench believed that they were plugging a loophole. In the main judgment on behalf of Justice L Nageswara Rao and himself, Justice Madan Lokur said that this expansive reading was necessary “for maintaining the purity of the electoral process and not vitiating it”. Since a candidate is prohibited from appealing to vote on certain grounds, Justice S A Bobde held, “The word ‘his’ therefore must necessarily be taken to embrace the entire transaction of the appeal to vote made to voters and must be held referable to all the actors involved i.e. the candidate, his election agent etc., and the voter.” Justice T S Thakur added, “So interpreted, religion, race, caste, community or language would not be allowed to play any role in the electoral process and should an appeal be made on any of those considerations, the same would constitute a corrupt practice.”

The pious sentiments expressed by the four judges are unexceptionable. But the idea that votes could be canvassed without referring to any of the five identities of the electors seems far too cut off from the complexities of India’s plural society. This is exactly why three judges dissented: Justices D Y Chandrachud, A K Goel and U U Lalit. The minority judgment, authored by Justice Chandrachud on behalf of all the three, pointed out that voters “may have and in fact do have a legitimate expectation that the discrimination and deprivation which they may have suffered in the past - and which many continue to suffer - on the basis of their religion, caste, or language should be remedied.” Since access to governance is a means of addressing social disparities, Chandrachud observed: “Social mobilization is a powerful instrument of bringing marginalized groups into the mainstream.” Therefore, the majority decision to prohibit a candidate from conveying to voters “that the injustices faced by them on the basis of traits having an origin in religion, race, caste, community or language would be remedied,” he said, “is to reduce democracy to an abstraction”.

Another compelling reason cited by Chandrachud for disagreeing with the gag order proposed by the majority opinion is that it would violate the constitutional protection of free speech enjoyed by candidates and political parties. Given that this fundamental right is subject only to “reasonable restrictions” enacted  by Parliament, Chandrachud said, “There is no warrant for making an assumption that Parliament while enacting Section 123(3) intended to sanitize the electoral process from the real histories of our people grounded in injustice, discrimination and suffering.” Thus, even if Section 123(3) is assumed to have been drafted to bar candidates from discussing any identity-based issues faced by sections of voters, such a restriction would have failed the test of reasonableness and would therefore have been vulnerable to being declared unconstitutional.

As a corollary, the minority judgment raised the bar for what constitutes a corrupt practice under Section 123(3). “Discussion of matters relating to religion, caste, race, community or language which are of concern to the voters is not an appeal on those grounds,” it said, adding, “What is proscribed by Section 123(3) is a candidate soliciting votes for himself or making a request for votes not to be cast for a rival candidate on the basis of his own (or of the rival candidate’s) religion etc.” Pointing out that the Constitution contains provisions for the amelioration of disabilities and discrimination practiced on the basis of various identities, Chandrachud said, “Discussion about these matters - within and outside the electoral context – is a constitutionally protected value and is an intrinsic part of the freedom of speech and expression.”

But what if a candidate, without directly soliciting votes for himself, derives electoral mileage by inciting hatred between different groups of voters? There is a different provision for it, Section 123(3A), which deals with the promotion of enmity between different classes of citizens on the basis of any of the five identities by the candidate or anyone authorized by him. And, as the minority judgment put it, “Section 123(3A) cannot be telescoped into Section 123(3). The legislature has carefully drafted Section 123(3) to reach out to a particular corrupt practice, which is even more evident when the ambit of Section 123(3A) is contrasted with Section 123(3). One cannot be read into the other nor can the text of Section 123(3) be widened on the basis of a purposive interpretation.”

Clearly, the literal interpretation of Section 123(3) made by the minority judgment is more thought through, while the purposive interpretation by the majority judgments offers a remedy worse than the disease. As the majority judgments with all their flaws are the law of the land, the Indian democracy has been rendered more illiberal by its Supreme Court.

Consider the anomalies that may arise in the upcoming election in Uttar Pradesh, if the majority judgments are seriously implemented. However much they are of concern to the people of the state, no candidate can discuss identity-based issues such as Muzaffarnagar, Kairana, Dadri, Ayodhya, beef, love jihad, reservations and caste atrocities without falling foul of the widened definition of corrupt practice. The situation may be even more farcical in the other election-bound state, Punjab, where the very name of the ruling party, Shiromani Akali Dal, may be construed as an appeal that is forbidden.

Though it had raised expectations of undoing the damage done by its 1995 Hindutva judgment2 , the Supreme Court ended up aggravating the problem, despite all its rhetoric about the purity of the electoral process. If anything, with its sweeping attack on identity- based concerns, the Supreme Court has made a deeply political statement by privileging issues like development and nationalism over human rights and social justice.

Central to the Supreme Court’s flawed conclusion is its disregard for the irreconcilable contradiction between its purposive interpretation of Section 123(3) and the fundamental right to free speech and expression.

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Consider the cursory manner in which Lokur’s lead judgment dealt with this crucial aspect. It began by admitting that the challenge to the constitutionality of bringing voters under the ambit of the pronoun “his” was one of the “four principal submissions” made by the counsel for the appellants. Yet, when it came to addressing this submission, the judgment gave it short shrift saying: “Although it was submitted that a broad interpretation given to sub-section (3) of Section 123 of the Act might make it unconstitutional, no serious submission was made in this regard.” Lokur also took refuge in a 1954 Supreme Court judgment3 in which a “similar submission” was dealt with “rather dismissively” although the sweep of the corrupt practice at the time was “rather broad”. After quoting a paragraph from that 1954 verdict, Lokur simply said: “We need say nothing more on the subject.”

One of the two provisions examined by the 1954 judgment was indeed the original version of Section 123(3), which had then been codified as Section 124(5). The problem, however, is that the 1954 verdict was based on the pretense that the restrictions imposed by Section 124(5) on political discourse during elections had no bearing on the candidate’s right to free speech. It simply passed off those restrictions on the candidate’s speech as “conditions which must be observed if he wants to enter the Parliament”. Whether those conditions could include drastic curbs on his right to free speech was a question that the 1954 judgment did not address at all. Much less did it pronounce on whether the restrictions laid down on campaign speeches were reasonable enough to hold that they did not violate the candidate’s constitutionally protected right to free speech.

Thus, citing a 62-year old judgment on a long repealed provision, the Supreme Court glossed over the sanctity of the free speech protection while enlarging the restrictions imposed by a substantially different Section 123(3). Equally disingenuous is its reference to the legislative history of Section 123(3) for its purposive interpretation of the provision. Just before the term “his” was inserted in Section 123(3) in 1961, the Parliament had amended a hate speech provision in the Indian Penal Code, Section 153A, strengthening the safeguard against communal and separatist tendencies. The change made in Section 153A IPC was followed in the same year by an amendment to the corresponding hate speech provision in the electoral law, Section 123(3A). As indicated by the dissenting judgment of Chandrachud, the majority opinion conflated Section 123(3) with Section 123(3A) to justify its assault on free speech in the name of protecting secularism. Never has secularism been so gratuitously invoked to undermine free speech.


*Manoj Mitta is the author of The Fiction of Fact-Finding: Modi and Godhra and co-author of When a Tree Shook Delhi: The 1984 Carnage and its Aftermath.

Volume: Vol. XXXV No. 4
October-December, 2016