The Supreme Court’s Judgment Barring a Political Candidate’s Appeal to Communitarian Identities Leaves Much to Speculation About Its Implementation

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.”

In his dissent, Chandrachud articulated a different interpretation of a cohesive constitutional citizenship. Adopting a more optimistic view of political discourse, he advocated that democratic dialogue generated political inclusion. He observed that marginalised groups make claims for inclusion through social mobilisation based precisely on the identities of past exclusion. The judge insisted that Section 123(3) was not intended to “sanitize the electoral process from the real histories of our people grounded in injustice, discrimination and suffering.” Finally, Chandrachud held that corrupt practices only prohibit a candidate’s appeal to their own—and not the electorate’s—religion, caste, community or language.

While the case reflects an effusive critique of divisive political rhetoric, its implementation remains unpredictable. This is, in no small measure, because the majority has remained silent on important legal distinctions. Taken merely on its face, Abhiram Singh would lead to some absurd results—many of which may not even be intended by the judges. The broadly-worded majority judgments did not fully demarcate the distinction between prohibited and undesirable political speech, neither did they clarify what would constitute legitimate references to identity. In particular, the judgments were silent about the difference between an “appeal” on the ground of identity, and an unquestionably larger category of invoking identity. Would any reference to religion or caste run counter to the judgment? What if politicians quote religious scriptures in their speeches, or criticise the institution of caste itself? The majority did not answer any of these questions. It also did not discuss the instances where political discourse involves identity-based constitutional rights. For instance, would political demands and mobilisations for the protection of a language be legally suspect now?

These silences in the judgment will end up leaving behind a contentious trail, making its implementation contingent on future court interpretations. The best way forward is for the courts to make nuanced distinctions—between divisive political rhetoric, and meaningful citizen engagement that generate political cohesion and inclusion—while filling the gaps in the judgment. The democratic ideals of secularism, the purity of the election process, and a common constitutional citizenship, relied upon by the majority judgments, must guide the future interpretation of Abhiram Singh.

The interpretations of the case must give due space to invocations of identity that do not seek to divide the electorate but critique exclusionary social institutions. In his dissent, Chandrachud noted that discussing issues related to religion, caste or language does not amount to making an appeal on those grounds. There is nothing in the majority opinions that contradicts this position, or suggests that every invocation of identity will be a corrupt practice. It is now left to the courts and the Election Commission to interpret the judgment and apply it to concrete cases, which may very well be difficult in specific cases. Nevertheless, it would be a grave mistake to treat social mobilisations against discrimination and marginalisation as appeals to identity.

Moreover, the majority judges aimed to advance the principles of constitutional citizenship. This would make it counter-intuitive to treat invocations of identity in the context of constitutional rights—mobilisations of social and religious minorities for the rights conferred upon them—as corrupt practices. Electorally mobilising for these rights strengthens, rather than weakens, constitutional citizenship.

We should also situate the future implementation of Abhiram Singh in its full legal context. One of the reasons for its limited impact may be that a charge of corrupt practices is notoriously hard to prove in the courts. The Supreme Court has time and again held that the standard of proof in such cases is akin to that of a criminal trial, and the case has to be proven beyond a reasonable doubt. Courts have been cautious not only in light of the severe consequences for the candidate, but also because it may involve reversing a popular election result in some instances. Consequently, they are reluctant to rely on available evidence—any case in short supply—without considerable corroboration. Media reports—sometimes the only evidence that is available in such cases—are often treated as hearsay and rejected.

This high standard of proof required for the finding of a corrupt practice also makes it hard to associate speeches made during the election season to candidates. For instance, in 2016, the Allahabad High Court dismissed a petitionchallenging Sonia Gandhi’s election on the ground that Syed Ahmad Bukhari, the Shahi Imam of Jama Masjid in New Delhi, had made an appeal to Muslims in her favour. The court rejected the petition, in part because it believed that Bukhari’s appeal could not be clearly attributed to Gandhi, even though his appeals came right after a well-publicised meeting with her.

This reflects the anatomy of a case involving the charge of corrupt practices, where petitioners will find it hard to adduce evidence that convinces the judges. Abhiram Singh—its bluster aside—does not remove any of these procedural barriers.

Apart from concerns regarding the interpretive future of the case, Abhiram Singh exposes the law’s vulnerability in regulating politics. The majority’s declaration of constitutional values from the ivory tower of justice may further incentivise political speech through proxy and innuendo. While the court’s ambition was to sanitise the democratic process of divisive identities, other routes will be found quite easily.

The castes and religious affiliations of candidates, along with their ideological commitments to these, are well known. In India, names speak louder than statements. Candidates do not need to explicitly appeal on the ground of their or the electorate’s identity if they populate their election podiums with influential religious figures, for instance, and mention their caste names in full. The majority’s opinions, despite the statement of its constitutional values, cannot police this. While a narrower interpretation of corrupt practices is susceptible to such problems in the implementation of Section 123(4) as well, the court’s extension of the prohibition—by barring any appeal to the electorate’s communitarian identity—deepens this dilemma.

This judgment may have given rise to another set of problems as well. The majority’s ambitious widening of legal regulation of elections will end up increasing, rather than eliminating, instances of illegality. There is no shortage of restrictions on electoral activity that are not routinely and fragrantly violated. Take the case of the upper-limit on a candidate’s expenditure prescribed for parliamentary and assembly constituencies of each state under Rule 90 of the Conduct of Elections Rules 1961. A violation of this rule amounts to a corrupt practice under Section 123(6) of the Representation of People Act.

In a 2015 report, the Law Commission of India noted that the actual expenditure is up to 20 or 30 times the limit. This is just one among many other systematic violations of election laws. And despite the Election Commission’s decision of implementing Abhiram Singh, the upcoming Uttar Pradesh elections are unlikely to be an exception. Each of the judge’s opinions expressed great pride in the “great festival of democracy.” For it to be so abysmally seeped in illegality—the extent of which the court’s decision intensifies—is a cause for institutional reflection.