Of Missed Opportunities and Unproven Assumptions: The Supreme Court’s Election Judgment

On Monday, a seven-judge bench of the Supreme Court split 4 – 3 on the interpretation of Section 123(3) of the Representation of the People Act. Section 123(3) defines a “corrupt electoral practice” as:

“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 interpretive question before the Court was whether the underlined “his” qualified only the candidate (and his agent etc), or whether it qualified the person to whom the appeal was addressed; in other words, whether “his religion…” referred to the religion of the candidate or the religion of the elector. Four judges (“the Majority”) held that “his” was to be interpreted broadly, and referred to the religion of the candidate, his agent, or any other person who, with the candidate or his agent’s consent, was making the “appeal” for votes, as well as the religion of the elector. Justice Lokur wrote for himself and for Justice Nageswara Rao, while Justice Bobde and Chief Justice Thakur wrote concurring opinions.

Justice Chandrachud wrote the dissent, for himself and on behalf of Justices Lalit and Goel. He held that the word “his” was to be construed narrowly, as applying only to the speaker (i.e., the person who made the appeal for votes, whether the candidate or his agent, or any other person with their consent).

In my view, the Majority holding is open to doubt, both linguistically and philosophically. Before that, however, note that this judgment is important not only for what it holds, but for what it refuses to hold; in particular, on the relationship between elections and the freedom of expression.

Free Speech, Elections, and the Strange Case of Jamuna Prasad

One of the arguments raised by Shyam Divan, senior counsel for the Petitioners, was that a broad reading of Section 123(3) ought to be avoided, since it would run afoul of Article 19(1)(a) of the Constitution (freedom of speech and expression). Justice Lokur’s majority opinion addressed this contention at the end, and cursorily. Justice Lokur held:

“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. A similar submission regarding the constitutional validity of Section 123(5) of the Act was dealt with rather dismissively by the Constitution Bench in Jamuna Prasad Mukhariya v Lachhi Ram when the sweep of the corrupt practice on the ground of religion was rather broad.”

The Court then cited the relevant paragraph from Jamuna Prasad, and concluded: “We need say nothing more on the subject.”

Let us, however, look a little more closely at what Jamuna Prasad – a five-judge bench case from 1954 – actually said:

“These laws do not stop a man from speaking. They merely prescribe conditions which must be observed if he wants to enter Parliament. The right to stand as a candidate and contest an election is not a common law right. It is a special right created by statute and can only be exercised on the conditions laid down by the statute. The Fundamental Rights Chapter has no bearing on a right like this created by statute. The appellants have no fundamental right to be elected members of Parliament. If they want that they must observe the rules. If they prefer to exercise their right of free speech outside these rules, the impugned sections do not stop them. We hold that these sections are intra vires.”

There are at least five reasons why the argument in Jamuna Prasad is not only erroneous, but manifestly erroneous. FirstJamuna Prasad misconstrues what is at stake. By characterising Section 123 has “prescribing conditions” for entering Parliament, it ignores the fact that Section 123 regulates campaign speech, which is an example par excellence of political speech, and political speech, in turn, is at the heart of the constitutional guarantee of freedom of speech and expression.

Secondly, Jamuna Prasad’s logic reduces freedom of speech to a formality, by allowing the State to restrict large swathes of speech under the guise of “prescribing conditions”; tomorrow, for instance, if the State was to ban all speaking in public places, Jamuna Prasad would justify it on the basis that it merely prescribes conditions for entering public places. The extreme end of this logic would justify any penal prohibition on speech by holding that it merely prescribes a condition for staying out of jail.

ThirdlyJamuna Prasad’s logic was rejected five years later in In Re Kerala Education Bill, which laid down the doctrine of unconstitutional conditions: even if an individual has there is no constitutional right to “x” – and even if “x” is only a privilege – the State cannot make his access to “x” conditional upon his giving up a fundamental right. Concretely, the State cannot tell me – without further constitutional justification – that I am allowed to stand for parliament only if I give up my fundamental right to freedom of speech and expression.

FourthlyJamnua Prasad’s logic was expressly rejected by two Constitution Benches in the 1960s – Kameshwar Prasad and O.K. Ghosh – in the context of the workplace. In both these cases, laws restricting the freedom of association at the workplace were challenged, and in both cases, they were struck down. The State argued that the laws were not infringing anyone’s fundamental rights, since they were only conditions for joining government employment. A person was free not to join government employment, and associate with whomever she pleased. The Court rightly made short shrift of this argument, holding that a person did not give up her fundamental rights after joining government employment. Similarly, a person does not give up their right to freedom of speech and expression on deciding to contest an election.

Fifthly, whatever the status of the right to contest elections at the time of Jamuna Prasad, it is now well-settled in a number of cases that the right to contest elections is more than a statutory right; it is a “constitutional right” (what, precisely, this means has not yet been clarified); and furthermore, the “freedom” to vote is an aspect of the freedom of speech and expression under Article 19(1)(a), a fundamental right. It has also been held that the freedom of speech and expression under Article 19(1)(a) includes the freedom to receive information. Consequently, at the very least, from the perspective of the voters, Section 123 implicates the freedom of speech and expression.

Consequently, there were strong reasons for the Court to reconsider Jamuna Prasad, and rethink the relationship between freedom of speech and elections. Its failure to do so – and to continue to endorse the line of cases that counterintuitively places free speech and elections in isolated, hermetically sealed spheres, is disappointing.

The Grammar of Section 123(3)

Let us return to Section 123(3). Paring it back to its essentials, it states: “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.” 

At the outset, there is one way in which the Majority is clearly incorrect. The word “his” cannot qualify both the speaker and the audience (the electors). When the section reads “the appeal by a candidate… to vote or refrain from voting for any person on the ground of his religion…“, the placement of the word “his”, as a matter of grammar, requires it to qualify only one potential subject.

Once that is clear, it becomes even more obvious that the majority’s interpretation is unsustainable as a matter of language, and no amount of purposive interpretation can save it. This is because Section 123(3) contains only one subject: the speaker (whether it is the candidate, his agent, or any person with their consent). The Section does not say “the appeal by a candidate… to any person to vote or refrain from voting for any person on the ground of his religion…” If that was the language of the statute, then, linguistically, it would be equally plausible for “his” to qualify “to any person” (i.e., the elector), or to qualify “the candidate”. We would then have to look to the purpose of the statute to determine which of the two was the correct interpretation. However, when we have the sentence “the appeal by a candidate… to vote or refrain from voting for any person on the ground of his religion“, there is only one plausible interpretation: “his religion” refers to the religion of “any person”, who is to be voted (or not voted) for.

In my respectful submission, therefore, the matter should have ended here. The language of Section 123(3) could not sustain the meaning that the Majority placed upon it.  What Justice Lokur did then, however, was to marshal historical evidence in support of his broad interpretation (interestingly, in his dissenting opinion, Justice Chandrachud used the same historical material to arrive at the opposite conclusion). According to him, the legislative policy was to preserve the “purity” of elections by prohibiting appeals to “divisive” and “fissiparous” tendencies; religion, caste, language, and community were examples par excellence of such tendencies. If this was the goal of the statute, then, according to Justice Lokur, it made no sense to limit the reach of the statute only to the religion (etc) of the candidates; rather, the intention clearly was to eradicate appeals of these kinds from the electoral process as a whole.

If one accepts Justice Lokur’s reading of the legislative history behind the provision, then one will probably accept the broader reading of Section 123. However, as pointed out above, Justice Lokur’s reliance on draft bills and statements on the floor of the house was countered by Justice Chandrachud, who pointed to categorical statements by the drafters, to the effect that the kinds of statements they were concerned about were the “I am a Muslim, vote for me” kind. If the legislative history is ambiguous, and does not admit of a clear answer, then there are two huge assumptions in Justice Lokur’s argument. The first is that “divisiveness” and elections are antithetical to each other. This, however, is a deeply counter-intuitive proposition. Elections are centrally about divisiveness: candidates seek to set themselves apart from their rivals by putting themselves forward as best-placed to protect the interests of their constituents. What, precisely, is illegitimate about a candidate promising to protect his constituents’ religious or linguistic interests? Or, to take another kind of example, class divisions can be every bit as divisive, and potentially violent, as religious divisions; in fact, Section 123(3A) prohibits promoting enmity “between classes”. Divisiveness, therefore, seems to be an incomplete justification of Section 123(3).

Secondly, Justice Lokur’s argument assumes that from the point of view of the electoral process, there is no difference between what an election candidate can legally do, and how a voter ought to exercise their vote. It is on the basis of this assumption that he bases his argument that it would make little sense to apply Section 123(3) only to candidates. In doing so, however, he does not engage with the important argument made by Justice Chandrachud in dissent: that there is a non-trivial distinction between a candidate and his electors, since the candidate, in a democracy, is meant to represent his constituency as a whole. The candidate cannot directly claim, therefore, that he will represent only a subset of his constituency.  There is, however, no similar constraint upon the voter. If this distinction holds (and I admit that it is tenuous, given that candidates are always appealing to specific sectors in their constituencies), then limiting the reach of Section 123(3) to candidates makes sense.

Lastly, Thakur CJI, in his concurring opinion, adds to Justice Lokur’s argument by making the claim that Indian secularism requires religion to be excluded entirely from the secular sphere. I respectfully disagree. The Court’s own jurisprudence suggests the contrary: at the heart of its “essential religious practices” test under Article 25 jurisprudence is judicial intervention into the tenets of religion, and judicial selection of which of those tenets constitute “essential practices”. There are other examples, but this is enough to demonstrate that the categorical statement excluding religion from the secular sphere needs further argument before it is to be accepted.

(I shall be engaging upon a more elaborate defence of Justice Chandrachud’s dissent elsewhere).

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5 Comments

Filed under Elections, Free Speech

5 responses to “Of Missed Opportunities and Unproven Assumptions: The Supreme Court’s Election Judgment

  1. A shorter summary and comment, if you so please: http://bit.ly/2i34jZe

    don’t get caught up in grammar. one suggestion.
    jamuna arguments are good. But academic.

  2. You are right in focusing on the unconstitutionality of Section 123(3) of the Representation of the People Act.

    The Supreme Court said in Jamuna Prasad
    ““These laws do not stop a man from speaking. They merely prescribe conditions which must be observed if he wants to enter Parliament. The right to stand as a candidate and contest an election is not a common law right. It is a special right created by statute and can only be exercised on the conditions laid down by the statute. The Fundamental Rights Chapter has no bearing on a right like this created by statute. The appellants have no fundamental right to be elected members of Parliament. If they want that they must observe the rules. If they prefer to exercise their right of free speech outside these rules, the impugned sections do not stop them. We hold that these sections are intra vires.””

    The SC has not applied the reasonable restriction test of Article 19(2) to this section.

    That the majority opinion of the seven Judge Bench penned by J. Lokur refused/ failed to even re-look at this unconstitutionality argument reflects badly on the lawyers who argued the case. Why was this argument not made more prominently?

    Criticisms of the Supreme Court in failing to uphold fundamental rights and freedoms are now common. But what is still not being pointed out is the failure of the insular and fenced in Supreme Court Bar in fighting for these liberties and rights. The Supreme Court Bar with its access restrictions, with all its senior advocate privileges and its celebrity senior advocates, and its AOR restrictions has failed miserably since the 1990s in playing a positive role in the development of constitutional law in India.

  3. Several Supreme Court decisions from its early years need a re-consideration. Some of these are on fundamental rights and on the constitutionality of restrictions on these rights.

    For instance the Supreme Court’s 1980 ruling in Shri Krishna Singh versus Mathura Ahirthat that personal law is immune from challenges on the ground of violation of fundamental rights requires reconsideration and fortunately might be reconsidered in the pending triple talaq case.

    Similarly the ruling in Jamuna Prasad (1954) that Section 123(3) of the Representation of the People Act does not violate the right to free speech under Article 19(1) is also wrong in my opinion.

    As Gautam Bhatia points out, the Abhiram Singh case is a missed opportunity to reconsider and over-rule Jamuna Prasad on this very important issue of restricting free speech during election campaigning where unarguably there is the greatest need for freedom of speech.

    Both the Shri Krishna Singh and the Jamuna Prasad rulings were cursory and un-reasoned in their dismissal of these significant constitutional challenges.

    The problem with Abhiram Singh seems to be that the reference to the seven judge Bench was on a very narrow question of the interpretation of Section 123(3) whose constitutional validity was presumed. The Court therefore had no reason to re-examine the issue of the constitutional validity of this section qua Article 19(1)(a).

    The fault lies with the lawyers engaged in this matter who ought to have attempted to re-open the issue of the constitutional validity of this provision. Justice Chandrachud in the minority dissenting judgment has attempted to preserve some aspects of the Article 19(1)(a) right by stating that:
    “However, the statute does not prohibit discussion, debate or dialogue during
    the course of an election campaign on issues pertaining to religion or on
    issues of caste, community, race or language.”

    Abhiram Singh is not only a missed opportunity but it further entrenches the questionable legal position laid down in Jamuna Prasad. A single unsatisfactory paragraph in the 4 page judgment in Jamuna Prasad which fails to apply the mandated Article 19(2) test to Section 123(3) now stands unchallenged and hence affirmed by a seven Judge Bench of the Supreme Court of India.

    The end result is a very significant and I would argue unconstitutional restriction on free speech in the most important event in a democracy – elections.

    It also restricts the rights of citizens to influence and change the direction of the Indian Republic and the Constitutional text through peaceful means, i.e., by participating in the democratic process of elections.

  4. While reading Abhiram Singh, I started thinking what a J. Dipak Misra opinion would have looked like. How it would have compared to the others. What he would have said and in what language.

  5. Gautam – All the five reasons that you give for Jamuna Prasad being erroneous would get subsumed in the reasonable restrictions test under 19(2) which the court failed to invoke or apply. This is the only and the constitutionally mandated test to ascertain the constitutional validity of a freedom of speech restriction.

    It is amazing that so many SC decisions on freedom of speech restrictions fail to invoke and apply this test either at all or exclusively, and base their reasoning on entirely constitutionally irrelevant concepts.

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