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High principle, dubious law | The Indian Express

The pattern is disarmingly familiar. The Supreme Court, with all its majesty, will enunciate a grand, even utopian principle. The aspiration will be undeniably correct. The principle will have a kind of populist appeal: It will promise to cure an ailing democracy of many of its greatest infirmities. The principle will be anchored to the Constitution or a statute. But the Court will claim to give the relevant text a new and revolutionary meaning, invoking a methodological approach like purposive interpretation. But the net result will be greater and almost unimplementable uncertainty in the law, a likely violation of legal integrity, and almost certain expansion of the Court’s powers. And oddly, the judgment will answer, every question other than the one it was supposed to.

This is exemplified in the majority judgment Abhiram Singh v/s C.D. Comachen (dead) by Lrs and Ors. The majority judgment has been rightly taken to task in one of the more brilliant dissents in Indian legal history, by Justice D.Y. Chandrachud. The issue is the interpretation of Section 123(3) of the Representation of People’s Act (RPA). Appeals to religion, caste etc have always been prohibited.

But the core issue has been the nature and scope of that prohibition: When does an appeal become a religious appeal, for example? Or to what kinds of speech does this prohibition apply? Must the violation be systematic, or will even a one of reference attract disqualification?

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