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.