As CJI Thakur hands over charge to Justice Kehar today ,his last judgment that invocation of caste or religion will be a corrupt electoral practice in terms of S123(3) of RP Act 1951 will remain his lasting , but most controversial legacy. It has opened the can of worms , of a judgment delivered by CJ Varma in 1995, when he had considered reference to Hinduvta during election campaigning of Manohar Joshi in Maharashtra in 1990 as a ‘ way of life’s and hence not tantamount to corrupt practice under the RP Act.The social activist Teesta Setalvad implored Justice Thakur to revisit this beguiling definition of Hinduism; but the wise judge did not get ensnared.
The impact of the judgment on the forthcoming Goa, Uttarakhand,Punjab and particularly UP election will be keenly watched . More so, since the Chief Election Commissioner , Mr Zaidi has affirmed that the CEC’ is fully committed to abide by the SC Judgment’.
No other judgment in recent times has witnessed such sharply conflicting view point in their interpretation of Section 123(3) of the Election statute. This stems from the fact that the majority viewpoint tries to take a broad and sweeping interpretation of election as a secular process , where as the minority of judges look at freedom of speech and expression of the socially discriminated to express their angst during the election process.
Justice Lokur , scripting the majority view point, notes that insertion of Section 153A in IPC frowns upon promoting enmity in different groups is a vindication of State’s desire to curb use of religion, caste etc in elections. And strengthen thereby our democratic ideal of a secular society. CJ Thakur , invoking secularism as a basic feature ,sounds almost like a Western liberal ,when he says that ‘ religion is a purely personal affair .’ Quoting Tagore Justice Lokur writes that’ election campaign should transcend the fragments of narrow domestic walls’
Justice Chandrachud tries to demolish this idyllic construct of democracy by the majority view by invoking election as a tool in the hands of the historically deprived on the ground of caste and religion to achieve a just social order. Electoral politics is all about social realities and mobilisation and freedom of speech and expression under Art 19(1) (a) and religious freedom to speak and propagate under Art 25(1) buttress this aspiration during the electioneering process.
Arnold Toynbee, the famous historian had observed that there is more than one valid approach to arrive at the truth . The judges as human beings are bound to carry their personal viewpoint in to the power of their judgement. As long as there is no malice, bias or arbitrariness , they engage the attention of the discerning equally.Ironically Justice Varma , who had penned the Hinduvta judgment in 1995 was panned by a section of the society as being pro Hindu.But to be fair to him he had also averred that there is a ‘ line to be drawn between what is permissible and perverse, to be prohibited .Appeals to divisive forces,arousing irrational passion, fomenting public public disorder by invoking religion are certainly perverse and need to be nipped in the bud as a corrupt practice during election campaign.
The CEC’s assurance that he will abide by the SC Judgment fully is indeed comforting as a collusive institutional attempt to affirm the secular construct. Justice Chandrachud calls the majority judgment as a democratic abstract and advises to continue with the past precedent. Past experience also shows how the inordinately dilatory judicial process renders appeals to such alleged electoral corrupt practices infructuous as the minimum hibernation period for such judgment is 5 years.
This is an unenviable legacy that Justice Thakur has left behind, with very little turn around in sight. But to his credit , it must be said that he has lit the embers for a fair election and not allowed cynicism and status quo to swamp his optimism for a robust Democratic scaffolding.