Supreme Court Order On Elections And Religion: Case Of Judicial Legislation?

The Representation of People’s Act, 1951, section 123 (3), says the appeal for votes by a candidate on ground of his religion, race, caste, community or language or the use of religious symbols or national symbols...is a corrupt practice.

On January 2, the Supreme Court, in a majority order, held that the law, when referring to ‘his’, disallowed any appeal for votes on the ground of religion of the candidate or the voter.

Should one look at what the law explicitly says or make speculation of what remained unsaid the law? The majority view in Abhiram departed from the text of the law and followed its spirit while the minority followed the ordinary meaning of the actual words used. Both views agreed that it is clearly a corrupt practice if a candidate seeks votes for himself or makes an appeal for votes not to be cast for a rival candidate on the basis of his or the rival candidate’s religion, race, caste, community or language. The majority, however, extended the meaning of corrupt practice to apply also to appeal for votes on the basis of the religion etc of the elector. This addition is not part of the text of the law and has been read into it by the majority.

The minority view described the widening of law as “doing violence to its provision and re-writing the text.” It held that “a change in law will have to be brought about only by parliamentary amendment.”

The difference in approach in the two views is not unusual. Some judges are creative while others are conservative. Beliefs and motivations may be expressed through their judgments by some while others may remained concerned only with the logical consequences following from given premises irrespective of their own ideology. And some judges may be radical while others conservative. These contrasting styles and approaches are apparent in the judgments in Abhiram.

The dynamics of writing judgments is influenced by a host of factors. As Cardozo said, “logic and history, custom and utility and the accepted standards of right conduct are the forces which singly or in combination shape the progress of law.” The history behind the law and the purpose it was meant to serve influenced the majority into reading into it what was not explicitly stated, while the minority stressed logic in adopting the natural and ordinary meaning of the words used as the indicator of what the legislature intended.

Also Read: Cannot Seek Votes In Name Of Religion, Caste: Supreme Court

Does The Majority View Amount To Judicial Legislation?

Restraint is the norm in writing judgments because legislation is not the ken of the Court. Activism is yet permissible when, as Judge Learned Hand said, there is “genuine doubt as to the breadth of the legislation.” This is where the majority and minority differed. According to the majority the text of the law did not express the intent while the minority felt that the literal meaning conformed to the object it intended to serve.

The single most important factor in ascertaining the intent of law are the words used. However some words may not have a fixed meaning. It is only when the sense in which they are used is obscure that imprecision of expression permits departure from the text. According to the minority there was no ambiguity in the expression “appeal on the ground of his religion” to depart from the normal meaning of the language used. I believe the minority is right.

Did The Majority Ignore Precedent?

The majority stated that there was no clear precedent for a simple literal reading of the text (which warranted limiting corrupt practice to appeal to the religion etc of the candidates only) and felt that giving the words their ordinary meaning will not help in curbing separatist and fissiparous tendencies and consequently justified including appeal to religion of the voter within the ambit of corrupt practice.

I am of the opinion that the majority erred.

In each of the earlier judgments the expression “his religion” was construed to mean religion of the candidate only and the Parliament never intervened to correct the interpretation by amending the law to specifically include religion of the voter to the proscription. Moreover the “seriousness to grapple with fissiparous tendencies” was apparent in the deletion by Parliament of the words “systematic appeal” to vote or refrain from voting as to make even a stray remark or single appeal liable to attract the charge of corrupt practice. And there is no requirement that any classification that a legislative body makes should be exhaustive or scientifically perfect and it entitled to deal with issues gradually instead of at one go. Having expanded the ambit of law to include even a solitary remark, the Parliament used the expression “his” to apply the provision to the candidate or rival candidate only.

Did The Majority Substitute The View Of Parliament With That Of The Judges?

The majority concluded that “what is intended for the benefit of the people is not fully reflected in the text of the statute.” The majority in so holding ignored the warning that “mere conjecture that Parliament entertained a purpose which, however natural, has not been embodied in the words it has used if they be literally interpreted, is no sufficient reason for departing from literal construction.”

The majority relied upon the principle of “social construction.” Law can definitely be used to serve social ends but legal rules would yet be required to be followed by judges to guide their decisions. Rules cannot be disregarded in the pursuit of ends as has happened in the instant case. The “purposive construction” on which the majority placed reliance to serve the social ends it considered important, could be invoked only if it was found that the Parliament had by inadvertence overlooked, and so omitted to deal with an eventuality that required to be dealt with if the purpose of the Act was to be achieved.” This requirement was not satisfied. The Parliament, in deleting the requirement of systematic appeal, did widen the scope of corrupt practice to curb communal and separatist tendencies and hence dealt with what was required to be dealt; merely because the majority felt that more was required to be done would not justify tinkering with the text as that would substitute the view of the judges for that of Parliament.

It should however be made clear that the discussion, debate and dialogue on issues of religion, caste and community can never attract the disqualification of corrupt practice. Although this was expressed only in the minority judgment the majority cannot be held to have a contrary opinion. There is clear precedent in support of this proposition and it accords also with the reading of the law which deals only with appeal for or against a candidate on the ground of religion.

Did The Majority Ignore The Third Party Angle?

Finally, while much emphasis was laid by the majority on secularism it did not deal the impact on secularism where persons other than the candidate or his agent make appeal on religion etc. For example the Shahi Imam of Jama Masjid had appealed to Muslims to vote for AAP and The Tamil Nadu Bishop’s Council President and Madurai Archbishop decided to back DMK and the Congress. The law as it stands disregards such appeals until it is shown that they are authorized by the candidate. However if the law could be re-worded to apply it to appeal by the candidate to the religion of the voter, should the Court not also have held that “consent of the candidate” would be “deemed” in such situations changing times requiring an updated consideration of the law? Does the very principle the majority invoked in its judgment not apply to the latter also? And if the majority felt the latter could not be done how could it justify the change in the text which it ordered? The recurrent conflict between ideology and principle is manifested in the judgment.

Aman Lekhi is a Senior Advocate at the Supreme Court of India and writes on constitutional and commercial law issues.

The views expressed here are those of the author’s and do not necessarily represent the views of BloombergQuint or its editorial team.