Constitutional Principles in India: Text, Context & Subtext

Gary Jacobsohn

When encountering a constitutional debate that focuses on the legal significance of a pronoun, one would surely be remiss in not exploring the more substantive layer of disputation that doubtless lies beneath the disagreement over a single word. Justice Chandrachud‟s was the dissenting opinion in a narrowly divided Court decision concerning the scope of India‟s governing electoral law, the Representation of the People Act (RPA), first enacted in 1951 and subsequently amended several times. Section 123 of the Act detailed a number of activities designated as “corrupt practices,” the commission of which subjected the transgressor to serious legal consequence, including the reversal of a triumphant candidate‟s electoral success. Specifically, sub-section (3) makes it a corrupt practice for a candidate to enunciate an appeal “to vote or refrain from voting for any person on the ground of his religion, race, caste, community or language.” Earlier cases had addressed various matters related to the law‟s constitutionality and application; in this most recent judicial engagement with the terms of the RPA, a quorum of seven judges on the Supreme Court sought to settle an issue that had long been a bone of contention in Indian legal and political circles: whether the prohibition extended only to an appeal based on a candidate‟s own identity or more broadly to the identity of the audience to whom the appeal was directed.

The justices in the majority adopted the broader understanding, but in doing so were similarly attentive to the larger issues that drove their dissenting colleagues to a divergent conclusion. The division on the Court in the case of Abhiram Singh v. C. D. Commachen is of critical importance to the conduct of elections in India, but in this article I examine the case‟s underlying concerns for their larger constitutive significance, and for their jurisprudential implications for an understanding and application of constitutional principles. As we will see, the justices‟ alternative visions of what it means to constitute a democratic polity incorporate contrasting types of principles: for the minority justices, principles embodying precepts of political morality rooted in a nation‟s past, whose meaning derives from experience within a specific political and cultural context; and for the justices in the majority, principles that make a claim of universality, such that the moral
truths they are said to embody are precisely the ones whose recognition is required for a constitution to exist in more than name only.

Thus, Samuel Issacharoff begins his insightful and deeply informed study of the fragility of democratic self-governance with an observation that seems clearly right: “Elections are the sine qua non of democracy.”  If this means adopting militantly protective measures – as, for example, the banning of political parties that are committed to the negation of democratic governance – then these blatantly intolerant methods will require a principled defense against the inevitable objection that they are unacceptable transgressions of democratic principles. India famously has chosen to proceed in this way, but its approach has been retrospective not prospective, punishing office seekers whose political incitement has been deemed dangerous to democratic order rather than banishing from the electoral arena political organizations whose intentions are judged incompatible with this order.

Read the full article here.

Cite as: Gary Jacobsohn,  Constitutional Principles in India: Text, Context & Subtext, 2 Ind. J. of Const. & Admin. L. 65-81(2018).


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