Can the state prevent adult citizens from being exposed to certain ideas before they vote on an election?
What Our Existing Laws on Election Says?
Section 123(3) of the Representation of the People Act, India’s omnibus election law, defines a corrupt electoral practice as follows: “The appeal by a candidate or his agent or by any other person with the consent of a candidate or his election agent to vote or refrain from voting for any person on the ground of his religion, race, caste, community….”
The real question before court
The question before the Supreme Court was deceptively simple: did the underlined word “his” qualify only the electoral candidate (and his agent, or persons speaking with his consent)? Or did it also qualify the person to whom the appeal was addressed (the elector)?
What the Majority said
Four out of seven judges held that the law was trying to achieve the purity of elections, and that the purity of elections required that appeals to caste, religion, language, and community be kept out of the electoral process.
An election that was fought and decided on these issues was a distortion of democracy.
Democracy was distorted because of two reasons:
one, that for democracy to survive, there must be agreement on certain basic essentials “which could unite and hold citizens together”. Religion, language, caste, etc were precisely the kind of divisive markers of identity that threatened this fragile consensus;
two, while democracy depended on voters exercising their franchise on the basis of rational thought and action, appeals to religion, language, and caste were inherently emotive and irrational in nature
Therefore, to restrict Section 123(3)’s prohibition only to electoral candidates would be contrary to public interest.
The Chief Justice held that secularism required the complete exclusion of religion from public life: “Religion can have no place in such [secular] activities for religion is a matter personal to the individual with which neither the State nor any other individual has anything to do.”
According to the majority, the word “his” in Section 123(3) was to be understood broadly, referring to both the speaker as well as the audience. In effect, it prohibited appeals to the prohibited “grounds” (religion, caste etc) during the electoral process.
What the dissent seemed like?
At the heart of the disagreement between the majority and the dissent was a disagreement over the idea of citizenship, and the value of identity.
Author of the dissenting opinion, wrote: “The Constitution… recognises the position of religion, caste, language and gender in the social life of the nation.
Individual histories both of citizens and collective groups in our society are associated through the ages with histories of discrimination and injustice on the basis of these defining characteristics… [and] access to governance is a means of addressing social disparities. Social mobilisation is a powerful instrument of bringing marginalised groups into the mainstream. To hold that a person who seeks to contest an election is prohibited from speaking of the legitimate concerns of citizens that the injustices faced by them on the basis of traits having an origin in religion, race, caste, community or language would be remedied is to reduce democracy to an abstraction.”
Universal citizen does not exist
dissent’s answer to the majority’s construction of the universal citizen was that such an individual did not, and could not, exist. Human beings are always situated within their social contexts, and in India, these contexts have been characterised by religion, language, caste, and community.
These are, and have been, the sites of inclusion and exclusion, privilege and oppression, domination and resistance, power, pleasure, discrimination, and suffering.
And most importantly, it could not say to those who, for centuries, had been denied dignity and rights on the very basis of their caste, religion, language or community that they were now precluded from organising around those very markers to liberate themselves.
For all these years, this social salience had been used to arbitrarily exclude and marginalise those who fell on the wrong side of it. But now, with the advent of democracy, it was precisely this social salience that allowed the oppressed to organise around the site of their prior oppression, and use that to gain political power. It was that which allowed B.R. Ambedkar to form the All India Scheduled Castes Federation, a political party exclusively devoted to Dalit emancipation.
For this reason, the dissent held that Section 123(3) had to be construed narrowly. The phrase “his religion” referred only to the religion of an electoral candidate, and not the religion of the voter. Section 123(3) prohibited statements like “I am a Hindu, vote for me”, or “My opponent is a Hindu, don’t vote for her”.
Such a law was permissible, because a candidate was supposed to represent her entire constituency, and not just a subset of it. But, the dissent held, this far and no further. The same logic could not be extended to citizen-electors, when they participated in the electoral process.