The fallacies of the January Electoral Judgement – Part 1

Where fundamental rights are a post hoc reference, instead of the benchmark against which laws have to be measured before they pass — jurisprudence will eventually collapse under the weight of its own contradictions.

That is what happened this January 2nd in the Supreme Court’s constitutional bench judgement on corrupt electoral practices  in the case of Abhiram Singh V/s C.D.Commachen

Both majority and minority opinions completely sidelined fundamental issues and the original context of the case. So did subsequent commentators on the subject.

The Wire called it the new Kesavananda Bharati moment. The Scroll called it deceptive, or “not what it seems,” in as much as it might have rendered Ambedkar guilty of corrupt practices. Some called it “two views of democracy.”

One description was particularly apt: appealing in the name of religion is a corrupt practice.

That would have been a great revelation had it not been for the fact that Indian democracy has been founded on the basis of appealing in the name of religion, caste, community, region and language. And it continues to run on that basis.

Gandhi appealed in the name of religion. Peaceably of course, but he did. Ambedkar appealed in the name of caste. For the rightful improvement of the Dalits’ unbearable agony — but he did. He agitated for and with Nehru’s help, ensured the division of this country into linguistic states — that’s appealing in the name of language.

The Akali Dal, the Telugu Desam, the Jharkand Mukti Morcha, the Bahujan Samaj Party, the Dravida Parties, the Majlis-e-Ittehad-ul Muslimeen –by definition, these are all communal parties. Exactly like the Shiv Sena and the Hindu majoritarian Bharatiya Janata Party.

So what was the decisive revelation and judgement about? What did it hope to actually achieve?

Just as in the Anthem Judgement , the honourable bench took no time to figure out how its judgement could, or would ever, be enforceable.

For decades now, law making and adjudication have been reduced to political posturing from both sides of the aisle. With no concern toward the actually ability to implement or enforce anything. 

Commentators have only muddled the issue by refusing to provide context of any kind. Or worse, by taking partisan positions.

This author hopes to provide context: legal, factual and historical, so that a reader may make up his own mind.

Historical amnesia is arguably, a  country’s greatest sin. It allows us to forget the context and content of our times. More importantly, it allows us, to not only repeat history, but to compound our mistakes with abandon.

To understand the judgment in the case of Abhiram Singh V/s C.D.Commachen  (available here  and here) , one has to understand the case itself and retrace its origins.


It is late 1989. India has just been introduced to the word Shilanyas. A saffron tide sweeps the country. In an article titled Communalism: Dangerous dimensions India Today quotes Ashok Singhal’s interview, “You will soon see within this country a vertical divide within each political party – those who accept Hindu nationalism and those who don’t.”

Embed from Getty Images

Pujas are being held to consecrate brick in all villages with populations above 2000.  to culminate on November 9, 1989 at Ayodhya. Tens of thousands of people head towards the town despite bans, curfews, police bandobast, fiery speeches and riots.

There are riots in U.P., Karnataka, Bihar, Madhya Pradesh, Gujarat, Maharashtra and Rajasthan that year.  Even hitherto untouched towns like Kota, Badaun, Sasaram (Bihar) and Mhow are effected

A total of 336 are killed between January and September.

This is the year India is introduced to The VHP, an organisation of holy men and sants that was yet a guerrilla force of social movements. It appeared to liaise between the Rashtriya Swayamsewak Sangh and the Bharatiya Janata Party.

After November 9, 1989. India Today’s Pankaj Pachauri describes the Shilanyas thus in his story Communal Time Bomb :

A mere hole in the ground, 7-ft long, 7-ft wide and 7-ft deep, may become the graveyard of communal harmony.

Shekhar Gupta in his story Communal Card says:

 “It was an unusual victory celebration. As thousands streamed into the sanctum sanctorum of the curiously-shaped shrine, their heads bowed in reverence and eyes glazed by extreme religious fervour, the slogans they shouted were not just to extol the gods.

It doesn’t look like this was going to stop at Ayodhya either. Shekhar Gupta says:

Take for instance, the favourite one: “Yeh to kewal jhanki hai, Kashi, Mathura baaki hai” (This is just the beginning, we still have to sort out Kashi and Mathura). And “Tel laga ke Dabur ka, naam mita do Babur ka“(Rub Dabur oil, wipe out Babur’s name).

Here’s another slogan from the  story quoted above:

Jis Hindu ka khoon na khaule, khoon nahin vo pani hai; Janmabhoomi ke kaam na aye, vo bekaar jawanee hai (That Hindu whose blood does not boil has water in his veins, youth that does not serve Ram Janmabhoomi is youth lived in vain).

In the 1989 general assembly polls a month later, the Bharatiya Janata Party (BJP) grows from 2 MPs in the Lok Sabha to 85 MPs. Mission Accomplished.

In the 9th Lok Sabha, the Congress loses power to the National Front – an unusual grouping of the socialist Janata Dal, the BJP on the extreme right and the CPI(M) on the left.

The Assembly Elections and 1990

It’s 3 months later, March 1990.

The BJP- Shiv Sena alliance wins 98 seats in the Maharashtra Assembly elections against the Congress’ 141 and the Janata Dal’s 24. Alarm bells begin to ring.

The 9th Lok Sabha has introduced historically extreme elements and gets off to an inauspicious start. As India Today’s David Devadas, notes at the time:

 “The unprecedented array of religious zealots in the House is likely to keep the Speaker constantly on edge.”

Devadas adds, rather prophetically:

And if the heat and dust of the last House was generated largely by sensational newspaper revelations, the members of this one are likely to throw up fundamental issues that could strain the sinews of the Constitution itself.”

Made insecure by Vice President Devi Lal’s hugely successful Kisan Rally, then prime minister V.P. Singh decides to strain those sinews further. On August 7th he announces the implementation of the The Mandal Commission Report that would increase reservations in all jobs to above 50%.

In the extremely limited job market of the pre-liberalisation era, the student community burst into anger. India Today echoes popular sentiment, calling it Dividing to Rule.

It was a decision that will live forever in infamy and become the benchmark of the descent of Prime Minister Vishwanath Pratap Singh from leader to demagogue,

writes Inderjit Bhardwar in India Today.

Kids throughout the country started setting themselves on fire in protest, but Singh remained adamant.

Determined to rally the Other Backward Castes (OBC) vote, as an antidote to BJP’s upper caste Hindu base, he stood firm:

I wish to make it clear,”  he says,  “that should a situation arise in which I have to choose between a cause that I believe in so intensely, and my chair, I will not hesitate for an instant to choose the former.”

Not to be left behind, then BJP President L.K. Advani, ups the ante.

Known as The Saffron Seer,  he retaliates with announcing a rath yatra that would begin from Somnath and end at Ayodhya on October 30th where it would start building a Ram temple.

Advani’s air conditioned van comes to be known as The Chariot of Fire  as it leaves hundreds dead in its wake. ( Read, Anger and Anguish, Over 200 dead in Hyderabad) .

1990 ends with the chariot being stopped by Mulayam Singh Yadav at Samistapur and  the fall of the V.P.Singh government. A year later, Rajiv Gandhi would be dead and two years later, Babri Majid would fall.

The December Petition

As 1990 ends, someone in the Congress finally wakes up to ‘The Hindutva Problem.’ There are other petitions pending too and being heard. But this one will make it to the constitution bench.

Of all the gin joints in all the worlds….they say.

Was it about Commachen or was it that Abhiram Singh was the BJP Bombay Unit vice president? No one knows. But Commanchen slipped in an election petition (No 11. Of 1991) on the last possible date saying Singh and the BJP had sought votes on religious grounds.

In a December 24th Judgement, the Bombay high court, upholds Commachen’s plea saying:

prima facie, it does appear that the leaders have appealed for votes for the Hindu candidates of the two parties on the basis of their religion and community. Prima facie, it does appear that the leaders did attempt to create enmity and hatred between different classes of citizen on the grounds of community and religion.”

It adds:

 “it is clear from the voluminous material on record that the campaign was on the basis of appealing for votes on the basis of 1st Respondent’s community and religion, i.e., the Hindu community and religion and that there was an attempt to create enmity and hatred between different classes of citizens on the basis of religion, community and caste particularly between the Hindus and Muslims.

It is important to note that

(a) the judge made a record of the voluminous amounts of evidence

(b) the judged noted that Abhiram Singh had asked for votes by “creating enmity and hatred between different classes of citizens on the grounds of community and religion.” (hate speech)

(c) the judge made no difference between Hinduism and Hindutva and saw no reason to do so.

In subsequent judgements there is no mention of the evidence. In fact, in the appeal to this decision, Justice Ramaswamy of the Supreme Court while kicking the decision upstairs to a 5-Judge bench, remarks that the original judge should have put the evidence on record.

Yet, these voluminous materials included newspaper reports from the time, police jottings and tape recordings at public meetings. While the exact court submissions are not available to the public anymore thanks to the slow digitisation; some of the interviews and speeches given at the time are still available online. Read

This Will Remain Saffron Hindustan – Bal Thackeray

There Will be Bloodshed — K.C. Sudershan

A YouTube video channel that keeps a record of speeches by Shiv Sena chief the late Balasaheb Thackeray, still has this speech up from August of 1989. It comes with English subtitles. Here’s a sample:

Pointing to the Father of the Indian Constitution  B.R.Ambedkar’s Book Riddles in Hinduism, he says:

It insults our religion. We won’t be tolerant. Tolerance is over, burnt. If anyone stands against Hinduism, we’ll burn them to ashes.”

What kind of men are these that don’t care for their own blood or lineage? That is why my blood, and the blood of all Hindus, boils. Make me Prime Minister for a day, just one day. In one day, I’ll solve the problem of Punjab and Kashmir. In one day. It’s easy. Wherever you’ve come from, make sure all your relatives and friends case their vote. We won’t rest until we’ve ensured this victory.”

Slogan Shouter in the Background – Garv se kaho hum Hindu hai (Say with pride, “We are Hindus)

Crowd repeats after him.

Slogan shouter repeats – Garv se kaho hum Hindu hai

Crowd repeats after him, this time louder.

If peace and security cannot be guaranteed, I’ll arm every Shiv Sena man with a sten-gun. I’ll get them where I can, and won’t rest till I face the enemy. And If the country and Hindutva (caption says Hinduism) were to be destroyed, no one except men like you would come to the rescue.

So Hindutva (sub title says Hinduism) is creating men.“

(Thackeray continued to remain boldly frank about his later activities as he publicly boasted in a program called Aap Ki Adalat run by journalist Rajat Sharma of ITV. Watch here.) Watch from 7m28 seconds

In fact, a whole lot of the evidence was also presented in an ongoing petition in the court of Justice J.S.Verma who put it on record.

The Old Hindutva Judgement and Justice Verma

Meanwhile, Justice J.S.Verma of the Supreme Court was already listening to an appeal against Bombay High Court Justice Variava’s decision to set aside Manohar Joshi’s election in petition (No 24 of 1990). Ram Jethmalani was the advocate on Record for the BJP-Shiv Sena combine.

In the Manohar Joshi v/s Nitin Bhaurao Patil judgement, among other things, Justice Verma admitted the following into record  as Justice Variava’s observations:

“Para 17

(a) To handle the Congress-I hoodlums the Shiv Sainiks may take law in their hands and use firearms if necessary (Thackeray).

(b) To save `Hindutva’ vote for BJP-sena Nominees (Pramod Mahajan, BJP- MP).

(d) …..If in Maharashtra the flame of Hinduism is extinguished, then anti-national Muslims will be powerful and they will convert Hindustan into Pakistan. If the flame of Hindutva will grow then in that flame the anti- national Muslims will be reduced to ashes (Pramod Mahajan).

(f) Rajiv Gandhi speaking on Hindutva is like a prostitute lecturing on fidelity. The country is again heading for partition. It is, therefore, necessary that in these circumstances and to keep the flame of Hindutva aline, the alliance of BJP-Shiv Sena should be elected (Mahajan).

  1. The petitioner states that the proceedings of the said meeting were tape-recorded and taken down in shorthand by the police authorities. The petitioner craves leave to refer to and rely upon the said tape-recorded speeches and the speeches taken down in shorthand by the police authorities.”

“30. ……… the respondent himself in his capacity as a candidate from the said constituency as well as a leader of the said alliance made appeals which offends the provisions of the said Act, For e.g. in the meeting held on 24.2.1990 at Shivaji Park, the respondent stated the first Hindu State will be established in Maharashtra . ….. Some of the meetings were reported in newspapers. The petitioner states that such meetings were held at Khaddke Building, Dadar on 21.2.1990, Prabhadevi on 16.2.1990, at Kumbharwada on 18.2.1990, and Khed Galli on 19.2.1990.

  1. In fact the speakers went on to say that on the respondent being elected and on the said alliance establishing a Hindu Government, we will give jobs to all Hindus.

The petitioner craves leave to refer to and rely upon the election diaries maintained by the local police stations, the speeches recorded by the Special Branch-I on audio cassettes, video cassettes and the speeches recorded in Marathi shorthand. The petitioner also craves leave to refer to and rely upon the press reports of the said meetings.

  1. The petitioner states that in addition to holding public meetings, the said alliance had also taken out video cassettes and audio cassettes. The video cassettes were titled “Challenge & Appeal “Shiv Sena” and the other called “Ajinkya“.

Not only the other religions are ridiculed but the followers thereof are termed as “traitors” and “betrayers”. Under the guise of protecting Hindu religion/Hindutva the said cassettes attach other religions and whips up lowered instincts and animosities.

The concept of secular democracy is totally eliminated.

The petitioner also craves leave to refer to and rely upon the said video cassettes as and when produced.”

Justice Verma, while admitting all of this on record, however took three positions.

  1. The free speech position for third party workers: Third parties (that is various party workers) who hire vehicles, say things on behalf of for the candidate and pay for posters, pandals etc., are exercising their free speech when they do so. So Joshi’s election cannot be put aside on the basis of what others did.
  2. The consent position of candidate viz senior party leaders: Justice Verma held that the candidate was not in a position to give consent to senior party leaders mentioned above (like Thackeray, Mahajan and etc) when they came to give speeches for his election. To quote : Whenever the requirement is of consent, it must be free consent given by the giver of the consent, of his own volition. Ordinarily, it also implies a subservient role of the person to whom consent is given and the authority of the giver of the consent to control the actions of the agent. It is difficult to ascribe to an acknowledged leader of the party a role subservient to the candidate set up by that party inasmuch as the candidate is ordinarily in no position to control the actions of his leader.”

[This was clearly fallacious reasoning. Ashok Desai, the petitioner’s attorney had argued on record, that Joshi, when choosing to be a member of either party, had accepted the ideology of the said party which was laid out by the leaders and as such, consent was implicit. ]

  1. The Hindutva position: “It cannot be held that in the abstract the mere word “Hindutva” by itself invariably must mean Hindu religion. (Also already indicated in the connected matters – Civil Appeal No. 2835 of 1989 – Bal Thackeray vs Prabhakar K. Kunte & Ors. – with Civil Appeal NO. 2836 of 1989)

YET, J.S. Verma said, one valid charge remained from Para 30:  that “the respondent stated the first Hindu State will be established in Maharashtra”

He however dismissed this charge on the basis of lack of evidence since all witnesses, he said,  were official witnesses.  That was 1995.

In 1996, his brother in silk, Justice Ramaswamy in his judgement on the Abhiram Singh case just decided to kick it upstairs saying:  “Thus, without expressing any opinion on these questions, we are of the view that the entire case requires to be heard and decided by a large Bench of five Judges since the decision thereon upon the purity of election process and requires to be decided authoritatively.”

All about ‘him’

This apparently authoritative decision came by a 4:3 division and three different opinions on January 2, 2017. A full 27 years later. The seven honourable judges of a constitution bench chose to address the substantive question of  semantics. Yes, semantics.

Section 123(3), pared down to its essentials and stripped of legalese says:

the appeal by a candidate… to vote or refrain from voting for any person on the ground of his religion…”  is a corrupt electoral practice.

The substantive question they argued about was – whose religion did the term his religion refer to in the act? Does it refer to the candidates’ religion or the voters?

This matter had actually already been decided in the  Ramesh Yashwant Prabhoo case. In fact, a whole lot more had been decided by Justice Jagdish Saran Varma in that case, that no one had bothered to visit, including  Justices Ramaswamy and J.S.Varma.

Since a constitution bench is allowed to revisit these questions, they did, and took different views.

Justice Madan Lokur writing for himself and Justice Nagreswar Rao agreed his religion meant candidates’ religion, but took the approach of ‘purposive and social context adjudication.’ That is, law interpretation must adjust to lack of proper framing by the original framers and to changing times.

Justice Bobde agreed with Justice Lokur and took the position that courts should reject “strict construction” of the “language of the law” when it is obviously in violation of the plain intention of the legislature.

Justice Thakhur agreed with Justice Chokar but went further. Drawing from Justice Jeevan Reddy’s argument in the S.R.Bommi V/s Union of India case, he argued that in preserving the basic structure, “the constitution requires the state to be secular in thought and action.” Most importantly, “the same requirement attaches to political parties as well.”

Justice Thakur’s position was stated thus: “Extending the  above  principle  further one  can  say  that  if  two constructions  of  a  statute  were  possible,   one   that   promotes   the constitutional objective ought to be preferred over the other that does  not do so.”

Extending which argument, standing for election would validly be a statutory right, not a fundamental right.

Justice Chandrachud, writing for the dissent,  took the position that revoking someone’s rights as a candidate or banning someone from the electoral role was a substantive penalization. And therefore, standard of proof should be higher and no liberties should be taken in interpreting a law that imposes such a high penalty.

As such, the word “his” must semantically, just refer to the candidates’ religion.

[In a side note, it is interesting that the standard of proof in criminal defamation cases is actually lower, the chilling effect on freedom of speech higher,  but no one has yet sought to refer that matter to a constitution bench]

Free Speech, Hate Speech, Threat to Life and Basic Structure of the Constitution

If three decades of Judicial thought went into that judgement, may god save us all.

No one is the wiser about the issues at stake here. The waters are muddier than before. And given the wide array of commentary on the judgement, it has been anything but authoritative.

In this context, let’s examine what is NOT at stake here.

1. Is this about Hinduism and Hindutva?

The answer is resoundingly – NO. It isn’t. Article 123(3) and 123(3A) are clear. In as much as they talk of religion at all, they talk of all religions. The various diversions into Hinduism and Hindutva by various benches; the attempt to define one, either or both as “ways of life,” were completely irrelevant to the entire discussion. The attempt by petitioners, respondents and judges to make them sound similar or dissimilar was completely out of context and plainly disingenuous. Copious amounts of evidence has been put on record, showing candidates speaking of religion. What that religion was called was entirely immaterial to the matter at hand.

Especially since the section itself includes a wide phrase called “community” – any community that can prove to be divisive.

2. Is it about whose religion is being spoken of? Was the “his” important?

Again– No. Indian parliamentarians are notorious for their lack of reverence for the English language. This is an empirical, historical and ongoing fact. Not only is English their non-native language, they are hardly subject matter experts in either linguistics or semantics. To base the outcome of the very nature of a democracy, on the ignorance of a clerk’s knowledge of pronouns, is intemperate in the least, farcical if one must be moderate. Justice Thakur is right when he says that if one interpretation leads towards a constitutional outcome and another toward an unconstitutional one – the constitutional road is the obvious one to take.

3. Was it ever an issue of consent of the candidate?

No. This is about elections, not rape. Silence does mean consent. Indeed it is more than silence. When a candidate chooses to stand from a political party with a manifesto, common propaganda material and common public leaders with public pronouncements, he is voluntarily and avowedly stating he believes in that party’s cause. Consent does not have to be proven, it is manifest in his choice of party.

4. Was it ever an issue of insufficient proof?

No. The proof was always available. It continues to be available to this day (see links in story) Shiv Sena speeches and its own propaganda material stated in as many words that it promised a Hindu Rashtra. They did not deny it court and it is, indeed, part of court record in some cases. For advocates and respondents to demand “a higher level of proof” is ludicrous, to say the least.

So what is at stake. What are the honest issues that have been addressed in election petitions over the years, but never really been fully confronted by a full constitutional bench for a decisive, definitive answer:

5. So was the election petition pointless and wrong?

No. There was a point to the Election Petition. In fact, it should probably have been filed earlier, against all Shiv Sena and BJP candidates,  and also under different sections of the law like IPC Sections 153 and 153(A) . In fact, one has to revisit the entire basis on which some political parties appeal to the electorate.

The key questions

The Key questions that a constitution bench should have addressed and put to rest where the following:

  1. Does Section 123(A) violate freedom of expression?
  2. Is standing for elections a fundamental right or a statutory right?
  3. If Section 123 (A) is fully implemented, what does it really mean for other political parties?
  4. Can you really ban hate speech?
  5. How fundamental are our fundamental rights?

These have been addressed by various benches at various times, but never been fully put to rest. In the next instalment, this writer hopes to address some aspects of these.


Sarita Rani

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