The Supreme Court began 2017 with its judgment in the case of Abhiram Singh vs CD Commachen. In a split verdict, a four-judge majority of a seven-judge bench ruled that electoral candidates cannot appeal to voters on the grounds of—either their or the electorate’s—religion, race, caste, community or language. The stakes for the case were high. Justice TS Thakur, who was the chief justice of India at the time, delivered one of the three majority opinions. For him, this case was clearly a matter of legacy—it was one of the last major cases he would decide as chief justice. The timing of the case was also significant. The growing anxieties about the role of religious identity in national and regional politics are bound to intensify in the upcoming state elections. Among the polarised reactions to the judgment were those who saw it as undermining divisive political rhetoric, while others expressed concerns about how it would suppress the politics of the marginalised. But each of these responses may be overplaying the actual legal and political implications of the case.
The impact of the judgment remains mired in uncertainty. The judgment failed to elaborate on important issues, such as what constitutes an appeal to social identities and whether identity-based mobilisation would be in violation of the judgment. As a result, the silences in the judgment, coupled with the problems of implementation, leave much of its future interpretation to speculation.
The case sought to resolve a protracted uncertainty over the interpretation of India’s main elections statute, the Representation of People’s Act, 1951. Section 123(3) of this act provides that an appeal by candidates or their agents to vote, or refrain from voting for any person, “on the ground of his religion, race, caste, community or language” would amount to a “corrupt practice.” A finding of corrupt practice has serious consequences: the election result is declared void, and the candidate can be barred from standing and voting in elections for up to six years. While it was a settled legal position that a candidate could not appeal to voters on the basis of her own identity, the case sought to determine whether the prohibition included an appeal to the electorate’s identities.
The majority, led by the separate opinions of Chief Justice Thakur, Justice MB Lokur and Justice SA Bobde, chose the broader interpretation of the provision that barred any appeal to identity. Three judges, led by Justice DY Chandrachud, agreed on the narrower interpretation—limiting the prohibition only to the identity of the candidate—and dissented.
The judges on both sides of the divide appeared to agree that the case was about the “sanctity of the democratic process,” and how best to preserve an inclusive and cohesive democracy. In their majority opinions, Thakur and Lokur proposed an inclusive constitutional citizenship—based on the constitutional principles of secularism and equality—as distinct from community identities. They recognised that the purpose of Section 123(3) was to check the fissiparous and communal tendencies during elections. This purpose, they believed, resonated with the larger constitutional principle of secularism. For the four-judge majority, religious and caste identities were politically divisive. Any appeals based purely on these identities encouraged separatism and national disintegration, and threatened a cohesive democracy. Since Section 123(3) aimed to address precisely this concern, the prohibition had to exclude such appeals altogether. This exclusion, the majority held, was needed for strengthening the democratic ideals and maintaining the “purity of the electoral process.” These were necessary “fetters on the language” to keep the democratic process from “derailing.”