14 Jan 2017 2:22 PM GMT
“[g]eneral propositions do not determine concrete cases. I always say in Conferences………that I will admit any general proposition you like and decide the case either way” said Justice Oliver Wendell Holmes Junior, a former judge of the United States’ Supreme Court. This statement by Justice Homes captures the essence of the sense an average reader would make of the recent judgement...
“[g]eneral propositions do not determine concrete cases. I always say in Conferences………that I will admit any general proposition you like and decide the case either way” said Justice Oliver Wendell Holmes Junior, a former judge of the United States’ Supreme Court. This statement by Justice Homes captures the essence of the sense an average reader would make of the recent judgement of seven judges’ constitution bench verdict of the Supreme Court of India in Abhiram Singh v. C. D. Commachen (Dead by LRs) dealing with the question as to whether the appeals being made to religion, caste, race community or language by the candidates contesting elections for legislative positions in India are corrupt practices or not under section 123(3) the Representation of Peoples Act, 1951 as amended in the year 1961(hereinafter referred to as the Act).
Section 123 of the Act defines corrupt practices for the purposes of the Act. The consequence of the violation of this provision is very serious. The election of the person found guilty under this provision can be declared void; he may be disqualified both as a candidate and a voter for six years. The provision in question in this case was section 123(3) of the Act, which states-
“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.”
The question for determination in this case was whether section 123(3) of the Act prohibits appeal to vote or refrain from voting any person based only on the religion, race, caste or community of that person or whether an appeal to vote or refrain from voting in the name of religion, race, caste community or language is altogether prohibited by this provision. The seven judges bench by a majority of 4:3 decided that this provision prohibits appeal to vote or refrain from voting in the name of religion, race, caste community or language altogether and that it should not be given a narrow interpretation by confining the import of the provision to appeals to vote or refrain from voting any person based only on the religion, race, caste, community or language of that person only.
The entire controversy was hinged on the interpretation of the pronoun his. This judgement by the Court is also a testimony of the fact that language is, but an imperfect medium of conveying thoughts. The pronoun his has been interpreted both literally and in the purposive sense by judges constituting both the majority and minority to arrive at contrary findings. However, Chandrachud J. has highlighted how purposive interpretation is only possible if there is only one possible theory for purposive interpretation and the Court must not while interpreting a provision in a purposive manner, choose a particular theory of purposive interpretation when there are sound constitutional principles for a purposive theory which militates against the one preferred by the Court. But T. S. Thakur C.J. forming part of the majority verdict in his concurring opinion has found only one theory of purposive interpretation which is preferable under the Indian Constitution. The majority, except Bobde J. has however relied on purposive interpretation and not literal or textual interpretation for arriving at their decision. Bobde J. interestingly argues that the pronoun his refers to not only the candidates contesting the election but even voters and therefore the provision literally also prohibits appeals to religion, race, caste or language altogether. Chandrachud J. however finds such a reading is akin to the judicial redrafting of the legislative provisions. Perhaps, there could not have been a better illustration of the argument than this judgement that interpretation is a judge centric exercise in the garb of interpretation of the existing law.
The major thrust in the three out of the four judgements including the dissenting judgement delivered in this case except that of Bobde J. is on the legislative history of Section 123(3). In its earlier version this provision prohibited a ‘systematic appeal’, so a mere appeal would be insufficient to attract this provision, however, the earlier version of the provision was not having the word pronoun his and an amendment was carried out in the provision purportedly with a view to widen the reach of the provision to curb the divisive and fissiparous practices in the election. This legislative claim behind the amendment in the provision was the main reason behind the majority view, which argued that an amendment ostensibly carried out to widen the provision cannot simultaneously restrict its ambit by dropping ‘systematic’ from the provision but by adding the pronoun his. Therefore, the pronoun his must be read in a purposive manner, in sync with the legislative design behind the amendment.
The rule of literal interpretation states that when the meaning of the provision is clear, effect must be given regardless of the consequences unless the consequences arrived at are absurd, undesirable or ambiguous. In this case, the meaning of the provision appears to be clear that it prohibits appeals to vote or refrain from voting any person based only on the religion, race, caste or community of that person. As this consequence is not ambiguous, we need to see whether it is absurd or undesirable. Now, the claims of absurdity or undesirability must not be based on a particular theory, when there are equally forceful competing theories and therefore in that case one must prefer literal interpretation without trying to cloak once inclination for an interpretation in the garb of textual interpretation as it happened to be the case with Bobde J.. Chandrachud J. in his dissent has rightly pointed out that our Constitution recognizes Secularism and therefore it fosters equality between religions but it does not display indifference to the issues of religion, race, caste, gender or language and therefore espousing such causes per se cannot be deemed to be going contrary to the secular ethos of our Constitution. Indian Constitution in fact strikes a fine balance between these two apparently contrary premises. This definitely is a purposive theory which runs contrary to the purposive theory endorsed by the majority and therefore is a good enough reason for a judge to not rely on his own purposive theory for interpretation while deviating from the literal interpretation. This amounts to in a way obliterating the divide between the domain of legislature and the judiciary as the desirability of the content of law is the field of legislature and not judiciary.
It is also noteworthy that the judges interpret the existing laws and therefore the judgments unless expressly stated in the judgement, alters the existing law retrospectively starting right from the day when the provision interpreted became operational. Looked at from this point of view this judgement gives rise to innumerable causes of action in relation to all the elections that have taken place in the past and yet in reality this judgement shall have prospective operation because the elapse of time has made all those causes of action, infructuous. Judges seldom pay heed to this theoretical reality of adjudication which becomes all the more pressing when a provision in vogue for very long time is interpreted with greater ingenuity. The kind obfuscation of judicial role at display in this case certainly does not augur well for a deliberative democracy, wherein, the quest to unravel the methods employed in the judicial function remains so annoyingly clouded.
Manwendra Kumar Tiwari is an Assistant Professor in Dr. Ram Manohar Lohiya National Law University, Lucknow.
This article has been made possible because of financial support from Independent and Public-Spirited Media Foundation.