Monday, January 2, 2017

The Supreme Court should have struck down restrictions on free speech during election campaigns

Several Supreme Court of India decisions from its early years need reconsideration. Some of these are on fundamental rights and on the constitutionality of restrictions on these rights. For instance the Supreme Court's 1980 ruling in Shri Krishna Singh versus Mathura Ahirthat that personal law is immune from challenges on the ground of violation of fundamental rights requires reconsideration and fortunately might be reconsidered in the pending triple talaq case. 

Similarly the ruling in Jamuna Prasad (1954) that Section 123(3) of the Representation of the People Act does not violate the right to free speech under Article 19(1) is also wrong in my opinion. The Abhiram Singh case which the Supreme Court decided on 2 January 2017 is a missed opportunity to reconsider and over-rule Jamuna Prasad on this very important issue of restricting free speech during election campaigning where unarguably there is the greatest need for freedom of speech. 

Section 123(3) prohibits the following kind of speech by defining it as a corrupt electoral practice: 
“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 or language or the use of, or appeal to religious symbols or the use of, or appeal to, national symbols, such as the national flag or the national emblem, for the furtherance of the prospects of the election of that candidate or for prejudicially affecting the election of any candidate.”

Both the Shri Krishna Singh and the Jamuna Prasad rulings were cursory and un-reasoned in their dismissal of these significant constitutional challenges. 

The Supreme Court stated in Jamuna Prasad regarding Section 123(3):
“These laws do not stop a man from speaking. They merely prescribe conditions which must be observed if he wants to enter Parliament. The right to stand as a candidate and contest an election is not a common law right. It is a special right created by statute and can only be exercised on the conditions laid down by the statute. The Fundamental Rights Chapter has no bearing on a right like this created by statute. The appellants have no fundamental right to be elected members of Parliament. If they want that they must observe the rules. If they prefer to exercise their right of free speech outside these rules, the impugned sections do not stop them. We hold that these sections are intra vires.”

In upholding the constitutional validity of Section 123(3) of the Representation of Peoples Act, the Supreme Court failed to apply the mandatory test of reasonable restrictions under Article 19(2) of the Constitution of India. This is the constitutionally mandated and the only test to ascertain the constitutional validity of a freedom of speech restriction. And for this reason alone, the decision in Jamuna Prasad is unsatisfactory and requires reconsideration.  

The problem with Abhiram Singh in 2017 seems to have been that the reference to the seven Judge Bench was on a very narrow question of the interpretation of Section 123(3) whose constitutional validity was presumed. The Court therefore had no reason to re-examine the issue of the constitutional validity of this section qua Article 19(1)(a). The fault lies with the lawyers engaged in this matter who ought to have attempted to re-open the issue of the constitutional validity of this provision. 

Justice Chandrachud in the minority dissenting judgment in Abhiram Singh attempts to preserve some aspects of the Article 19(1)(a) right by stating that:
"However, the statute does not prohibit discussion, debate or dialogue during the course of an election campaign on issues pertaining to religion or on issues of caste, community, race or language." 

Abhiram Singh in 2017 is not only a missed opportunity but it further entrenches the questionable legal position laid down in Jamuna Prasad in 1954. A single unsatisfactory paragraph in the 4 page judgment in Jamuna Prasad which fails to apply the mandated Article 19(2) test to Section 123(3) now stands unchallenged and hence affirmed by a seven Judge Bench of the Supreme Court of India. 

The end result is a very significant and I would argue unconstitutional restriction on free speech in the most important event in a democracy - elections. It also restricts the rights of citizens to influence and change the direction of the Indian Republic and the Constitutional text through peaceful means, i.e., by participating in the democratic process of elections. 

The Supreme Court's ban on electoral identity politics in India ignores the fact that mobilization as a group around identity is a political response necessary to counter historical hierarchies, discrimination, injustices and systemic inequalities which are based upon such identity. Access to resources and opportunities is often determined by religious, caste, ethnic, linguistic and gender identities in India. Political mobilization around caste identities in India has led to political, social and economic empowerment for the historically disenfranchised so-called lower castes. Mobilization around identity creates political voice for the marginalized and leads to healthy outcomes like affirmative action and progressive social change. The majority has an equal right to mobilize politically and our Constitution contains safeguards to protect the minorities from unconstitutional majoritarian demands. Identity based politics is also a necessary precondition for the realization of the universally accepted human right to self-determination. The Court will also find the Abhiram Singh decision impossible to implement. The decision will prove disruptive to election processes and outcomes and will result in more frequent legal challenges to election victories. 

As Prashant Jha points out in his excellent piece in the Hindustan Times, religious identity is an important component of public and social life in India and it cannot be simply dictated away by judicial pronouncement. The Supreme Court's decision is an unwelcome interference in electoral democracy. Hate speech laws already exist to tackle any gross invocation of religion that incites hatred. And political battles over identity in a pluralistic, multi-cultural country like India can only be resolved politically. Jha writes:
"Society’s cleavages will express itself in politics. ...Indian electoral democracy will evolve on its own. Not all its practices may be palatable to us - but imposing artificial bans will not address the impulses which lead to the use of certain categories in politics in the first place." 


It is unfortunate that none of these arguments in favor of identity politics find mention in the Supreme Court's majority ruling in Abhiram Singh. That the majority opinion of the seven Judge Bench penned by J. Lokur failed to even relook at the crucial unconstitutionality argument reflects negatively on the lawyers who argued the case. Why was this argument not pressed? Criticisms of the Supreme Court in failing to uphold fundamental rights and freedoms are now common. But what is still not being pointed out is the failure of the elite, insular and fenced-in Supreme Court Bar in fighting for these liberties and rights. The Supreme Court Bar with its multiple access restrictions, with all its senior advocate privileges, with its celebrity senior advocates, and its advocate-on-record restrictions has unfortunately (since the 1990s) not lived up to its role in advancing a more positive development of constitutional law and fundamental rights jurisprudence in India.

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