High principle, dubious law

SC’s reading of the Representation of People Act could turn a large chunk of democratic mobilisation illegal.

Written by Pratap Bhanu Mehta | Published:January 4, 2017 12:00 am
supreme court, hinsutva judgement, ban religion campaign, elections, people act, Representation of people act, constitution, indian legal history, RPA, RPA meaning, what is RPA, hindutva case, indian express column, column, india newsurt, Supreme court on corporate, Chief Justice T S Thakur , corporate debts, debt recovery tribunals, indian express news The principle will be anchored to the Constitution or a statute. But the Court will claim to give the relevant text a new and revolutionary meaning, invoking a methodological approach like purposive interpretation.

The pattern is disarmingly familiar. The Supreme Court, with all its majesty, will enunciate a grand, even utopian principle. The aspiration will be undeniably correct. The principle will have a kind of populist appeal: It will promise to cure an ailing democracy of many of its greatest infirmities. The principle will be anchored to the Constitution or a statute. But the Court will claim to give the relevant text a new and revolutionary meaning, invoking a methodological approach like purposive interpretation. But the net result will be greater and almost unimplementable uncertainty in the law, a likely violation of legal integrity, and almost certain expansion of the Court’s powers. And oddly, the judgment will answer, every question other than the one it was supposed to.

This is exemplified in the majority judgment Abhiram Singh v/s C.D. Comachen (dead) by Lrs and Ors. The majority judgment has been rightly taken to task in one of the more brilliant dissents in Indian legal history, by Justice D.Y. Chandrachud. The issue is the interpretation of Section 123(3) of the Representation of People’s Act (RPA). Appeals to religion, caste etc have always been prohibited.

But the core issue has been the nature and scope of that prohibition: When does an appeal become a religious appeal, for example? Or to what kinds of speech does this prohibition apply? Must the violation be systematic, or will even a one of reference attract disqualification?

There is a further challenge with the RPA: It is applied after an election. So the risks of overturning popular mandates based on either fuzzy interpretations or mere technicalities are high.

It is to address these complex questions that the RPA was amended in the fifties and sixties. The courts have evolved a complex case law that goes into exactly these thorny issues. In Abhiram, the plea was to clarify the scope of this law. The majority judgment addressed this in two ways. It has expressly articulated the idea that the prohibition does not apply just to caste, religion, race etc of those standing for election; it applies to any appeal to the electors. Second, it seems to, without expressly going into the matter, overrule a case history that had grappled with complex terms like what counts as an unwarranted religious or caste appeal. It now seems to expand the scope to include any appeals to religion, caste, language etc that furthers election prospects.

The moral commitment to secularism, that every Supreme Court judgment has affirmed, is laudatory. But this is a poor judgment in four ways. First, there is the methodological problem. The Court has devoted more pages to explicating purposive interpretation than clarifying the substantive issues. Ironically, both the majority and dissenting judgment use purposive interpretation to come to opposite conclusions. This should lend credence to the suspicion that method has, to borrow Stone’s phrase, also become a class of “illusory references”. But more seriously, purposive interpretation, needs to not just look at legislative history, but the case law. How does the law operate in practice? What are the effects of particular words? The judgment goes into interpretative philosophy more than the case law of election cases.

In this sense, the judgment lacks legal integrity. For instance, we often forget that the much discussed “Hindutva” case, where Justice Verma declared Hindutva to be a way of life not a religious appeal, pointed to exactly these difficulties. As V.S. Rekhi had pointed out many years ago, the distinction between “religious” and “non religious” appeals is not self-evident. Often bad law will lead to redescriptions. Beef ban (as we have done) will be recast as a claim about animal husbandry; the claim that there was a Ram temple can be construed as a historical not a religious claim. In fact, the Court seems to completely ignore the fact that the problem is not just that we invoke religion in politics. It is that what counts as, and gets defined as, religion is inherently political in the first place. And this politics is also reflected in its own drawing of these lines. It is all very well for the Court to expand the scope of Article (123) of the RPA. But to do so without any guidance on of what kinds of appeals will count as religious, is avoiding the question. If we take existing precedents, this case will turn out to be much ado about nothing. If we take an expanded definition, a large chunk of democratic politics will be threatened.

The broad interpretation will produce even more uncertainty. It seems to “outlaw” parties like the Akali Dal, whose very name violates the new interpretation. It also has uncertain implications for, as Justice Chandrachud rightly points out, the grammar of social struggle that has characterised Indian politics. Are language movements going to be outlawed? The Court makes heavy weather of the fact that religious appeals produce violence. But the RPA, as so many other provisions in our penal law, already regulates hate speech or speech that produces enmity. Fourth, the Court should surely have expended more energy on reconsidering Jamuna Prasad Mukhariya v/s Lachi Ram that gave rather short shrift to the question of whether these restrictions violate free speech. Purposive interpretation requires keeping up with a requirement of a modern free speech law.

The dissent is a model of disciplined interpretation, and a deeper understanding of the interface between law and society. If the Supreme Court kept this high a standard of argument consistently it would be fine. But Chief Justice Thakur’s last day in Court was a mix: High moral principle but dubious law (RPA); judicial overreach (the wholesale takeover over BCCI); accountability (ordinance subject to judicial review); avoidance (a range of important constitutional cases including demonetisation).

But there is something deeper in the RPA case that should disturb us. The RPA was essentially concerned with civic standing of representatives: It was a quest for a modern language of representation, where the identity of the candidates mattered less than what they stood for or argued for. But the RPA, like much of our free speech law, has also been based on paternalistic premise: The people as full of destructive passion that the state needs to regulate. While superficially appealing, this diagnosis corrodes democracy and liberty. Our appetite for paternalism is growing under the guise of doing good. The judges are fond of quoting Learned Hand. They would be well advised to heed his warning: That a democracy that is constantly looking for saviours outside the democratic process to save it from the people will lose its liberty.

The writer is president, CPR Delhi and contributing editor, ‘The Indian Express’

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  1. H
    Hemant Kumar
    Jan 4, 2017 at 11:46 am
    Why does he focus on religion only. At least caste appeals are readily identifiable and can be proven in the court of law.
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      Rajat
      Jan 4, 2017 at 4:26 am
      The writer is apologetic to his political master who met bukhari before 2014 elections and called for secular vote not be divided.
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      1. K
        K SHESHU
        Jan 4, 2017 at 2:05 pm
        At least SC has initiated some steps towards secularizing politics..
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          Akshar B
          Jan 4, 2017 at 1:51 pm
          I strongly support Supreme Court's decision, but this writer has made some good points like claiming beef ban to be an animal husbandry issue or Ram temple as a historical issue. But overall, SC has once again upheld India's secularism (to separate politics from religion), and that's really a great decision.
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            alphus
            Jan 7, 2017 at 2:54 am
            Brilliantly short sighted view taken by Mr. Mehta. Apart from crying about the implementation part of the judgement what else have you expounded on? Should not a democratic and secular country elect it's representatives on Secular grounds? Somehow it would appear that the author is more perturbed by the slight to 'Hindutva' than anything else, which however has not been so explicitly stated yet it shows. lt;br/gt;By using technical terms like 'purposive interpretation' and 'paternalistic approach' Mr. Mehta has skillfully attempted to distract the reader from the core issue being whether Justice Verma's interpretation that 'Hindutva is a way of life' should continue to hold the field? Indeed all liberal and progressive thinking citizens would wheartedly agree that it should not for the simple reason that the impugned judgement gave this exalted position to ONLY ONE religion in the country with hundreds of other religions. lt;br/gt;As a Lawyer i find no fault with this decision. It was in the reckoning and Mr. Mehta as well as other people commenting on this article iduously ignore the fact that this decision will ensure that there will not be any Babri Part II nor will there be a Godhra Part II.
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              Chaudhary Chaudhary
              Jan 4, 2017 at 7:05 pm
              Caste and Religion are bread and Butter toast of Politician and media. They won't let anybody touch it, be it Supreme Court's Consution bench. This is declaration that we are still a backward state.
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                A villager
                Jan 4, 2017 at 5:38 am
                The question is what if some mullah and church asked their faithful to vote for particular party? Whether the law is applicable to them, vote influencers or only to political parties,i.e. vote seekers?
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                1. J
                  Jithin
                  Jan 4, 2017 at 5:16 am
                  The law ped by the SC is morally effective and practically ineffective.I completely agree with the author on this issue.It is such a complex law that cannot easily be interpreted by a common man and what is purpose of such laws?
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                    Gc
                    Jan 4, 2017 at 8:04 am
                    Deliberately missing the point in his master's interest.Laws lay down general boundaries,within which each violation is interpreted by the courts,specific to the case.No law is absolute India,there is another factor.It takes a long time for judgement to come which make almost all laws mostly useless as fear of law evades,however,that does not mean that laws should not be made,courts should stop functioning and we should live by jungle rules.This judgement is a step in right direction.It sets out boundaries and makes it difficult for so called secular parties to exploit people in the name of religion and caste.
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                      Gc
                      Jan 4, 2017 at 10:58 am
                      If so called secular parties herd people in the name of minorities,castes or language,they call it 'democratic mobilization', and because this law could jeopardize their 'democratic mobilization' they have a problem.However these same people used to call this 'democratic mobilization' of BJP as 'communal politics'.Now because BOTH their so called 'democratic mobilization' and 'communal politics' will be governed by the same law,suddenly they are finding fault in the judgement.YOU CANT FOOL PEOPLE BY WORD JUGGLARY THESE DAYS,Internet has made smart people all over the world access and demolish your propaa in a few lines.
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                        Gc
                        Jan 4, 2017 at 11:18 am
                        In simple words,the problem for the author is,how will his 'secular' masters will now get away with calling BJP a 'communal' party and while they themselves ask votes in the name of religion, yet claim to be 'secular'.Now a boundary has been drawn for in which everyone will have to play,including his masters,therefore he is disturbed.These new rules of the game don't suit his masters game,that is the problem.
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                          Gopal
                          Jan 5, 2017 at 12:59 am
                          For probably the first time, I find myself in agreement with the views expresses. Our elites including are judges and academia keep looking to go around democracy because they neither understand nor identify with ordinary people. Caste and religion are important factors in lives of people. And now we want politicians to dissociate themselves from the people. If you want to reduce the importance of caste and religion, look to educated yourself or to fight elections. Instead our elites seek to rig the elections.
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                            gopinath
                            Jan 4, 2017 at 2:58 am
                            as usual justice thakur has proven that he has low cerebral levels to interpret such complicated issues.
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                              Harpreet Singh
                              Jan 6, 2017 at 4:32 pm
                              India was more free in 1947 than today.
                              Reply
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                                Harpreet Singh
                                Jan 6, 2017 at 4:37 pm
                                Sometimes I feel that judges are also a part of those elites who live in New Delhi. Too many flawed judgments which was started by NJAC ruling. They are not practical in approach and leaves the rest upon executive to support their judgments.
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                                  anil
                                  Jan 4, 2017 at 10:43 am
                                  Mr. BPM is now lamenting the lack of wisdom on the part of SC. But this was long overdue. As long as the populists judgments were to the liking of people like PBM it was ok even if SC gave illogical judgment. NJAC is one of the many.
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                                    Narendera
                                    Jan 4, 2017 at 1:26 pm
                                    Totally misleading article .
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                                      pankaj
                                      Jan 4, 2017 at 7:27 am
                                      [[lt;br/gt;SC’s reading of the Representation of People Act could turn a large chunk of democratic mobilisation illegal.lt;br/gt;]]lt;br/gt;lt;br/gt;and it is important that large chunk of pathetic mobilization is junked and made illegal, we are here to keep pathetic practices alive.
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                                        pankaj
                                        Jan 4, 2017 at 7:28 am
                                        we are NOT here to keep pathetic practices alive.
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                                          pankaj
                                          Jan 4, 2017 at 3:21 pm
                                          PBM, why you are supporting politics based on caste and religion??
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                                            Parth Garg
                                            Jan 4, 2017 at 10:32 am
                                            The oncoming embly elections would be an acid test of EC in enforcing the SC ruling.
                                            Reply
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