Pratap Bhanu Mehta - High principle, dubious law - SC’s reading of the Representation of People Act
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.
See also
