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DIFFERING with the majority, three judges on the Constitution Bench invoked “histories of discrimination and injustice” on the basis of religion, caste, community to argue that candidates should not be barred from addressing their “legitimate expectation” that deprivation due to these “immutable characteristics” will be remedied through the electoral process.
Stating that issues of religion, caste, etc. “are crucial to maintaining a stable balance in the governance of the nation,” the minority view in the 4-3 judgment said that “the spirit of discussion, debate and dialogue sustains constitutional democracy” and “a sense of inclusion can only be fostered by protecting the right of citizens freely to engage in a dialogue in public spaces”.
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Deliberation on religion, caste, etc. is the affirmation of “constitutionally protected values and…an intrinsic part of the freedom of speech and expression”, held the minority view, and warned that imposing a prohibition on electoral discourse on issues pertaining to caste, race, community, religion or language might reduce democracy to “an abstraction” apart from restricting the fundamental right of freedom of speech and expression of candidates.
Describing caste, race, religion and language as “matters of constitutional importance,” the minority judgment, authored by Justice D Y Chandrachud on behalf of himself and Justices Adarsh K Goel and Uday U Lalit, said that discussion of matters relating to these identities which are of concern to the voters is not an appeal on those grounds.
“The Constitution deals with them and contains provisions for the amelioration of disabilities and discrimination which was practised on the basis of those features. These are matters of concern to voters especially where large segments of the population were deprived of basic human rights as a result of prejudice and discrimination which they have suffered on the basis of caste and race,” it underscored.
“To hold that a person who seeks to contest an election is prohibited from speaking of the legitimate concerns of citizens that the injustices faced by them on the basis of traits having an origin in religion, race, caste, community or language would be remedied is to reduce democracy to an abstraction,” said the judgment.
The judges noted that it was “impossible” to harp on an interpretation that an election should be annulled if a candidate mentions the religion, race, caste, community or language of his voters.
“Religion, caste and language are as much a symbol of social discrimination imposed on large segments of our society on the basis of immutable characteristics as they are of a social mobilisation to answer centuries of injustice. They are part of the central theme of the Constitution to produce a just social order. Electoral politics in a democratic polity is about mobilisation. Social mobilisation is an integral element of the search for authority and legitimacy,” noted the judgment.
It called it “far-fetched” to assume that in legislating to adopt Section 123(3) of the Representation of the People Act, Parliament intended “to obliterate or outlaw references to religion, caste, race, community or language in the hurly burly of the great festival of democracy.”
It maintained that the corrupt practice, as defined under Section 123 of the Act, lies in an appeal being made to vote for a candidate on the ground of his religion, race, caste, community or language, or to make an appeal to refrain from voting for any candidate on the basis of these characteristics of the rival candidate.
“Electors, however, 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. Access to governance is a means of addressing social disparities,” stated the judgment.
Referring to various provisions in the Constitution on minorities and educationally and socially backward classes, the judgment asserted that the Constitution has sought to preserve a delicate balance between individual liberty and the need to remedy these histories of injustice founded upon immutable characteristics such as of religion, race, caste and language.
“The Constitution is not oblivious to the history of discrimination against and the deprivation inflicted upon large segments of the population based on religion, caste and language…the Constitution does not deny religion, caste, race, community or language a position in the public space. 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,” it said.
The judges added that dialogue and criticism lie at the heart of mobilising opinion. “Electoral change is all about mobilising opinion and motivating others to stand up against patterns of prejudice and disabilities of discrimination. Section 123(3) does not prohibit electoral discourse being founded on issues pertaining to caste, race, community, religion or language,” they said.
The minority view ruled that “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.”