The ban on seeking votes along religious and caste lines throws up questions on being secular
A seven-judge bench of the Supreme Court, led by Chief Justice T S Thakur, has ruled that it is illegal to appeal to the religion and caste of both candidates and voters in te of both candidates and voters in elections. Given the obstinate hold of both religion and caste, both positive and negative, in political and administrative India, the ruling has attracted a good deal of attention.The bench had been examining subsection 123(3) of the Representation of the People Act. Section 123 lists, and thereby defines, `corrupt practices’ for the purpose of the Act. Subsection 3 of the Act provides that the appeal by the candidate or his agents or by anyone else with the consent of the candidate or his agents to vote or not vote “for any person on the ground of his“ religion, caste, community or language is a corrupt practice.
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The provision further stipulates that the use of, or appeal to, religious or national symbols (such as the national flag or the national emblem) for furthering electoral prospects of any candidate, too, is a corrupt practice.
The precise question under scrutiny was who the pronoun `his’ in the phrase “for any person on the ground of his“ refers to. Is it only the candidate or his agents? Or do the voters also come under its scope? Is seeking votes in the name of the candidates’ or their agents’ religion alone a corrupt practice? Or is soliciting votes in the name of the voters’ religion, caste or language too an equally corrupt practice? The majority of the bench held the latter view while the minority held the former position.
The judges also held that if charges of such corrupt practices are proved in court, the election of the convicted candidate will be set aside. The actual position may not be so crystal clear, and we must wait for the full judgement to be released. But this reading offers a reasonable summary on the basis of available material. I have not referred to the gender partial presence of the `his’ in the subsection. The lead will hopefully be picked up.
The judges reportedly were not willing to examine the merit of an earlier judgement that had defined Hinduism as a way of life, and not a religion. In this reading, Hinduism enjoys immunity from a definition of `religion’ and can be used with impunity during electoral campaigns. This has caused some alarm that the verdict may help the BJP‘s prospects in the forthcoming state assembly elections in Uttar Pradesh and Punjab, especially since the party has, in the past, successfully appealed to voters in the name of Hinduism.
Moreover, it might well embolden those who seek votes in the name of Hinduism, since the verdict may force the hand of anyone who proposes to rally support in the name of minority `religions’. There is logic in this reading, although it may be a little too straightforward.
Another, equally compelling concern is that it may no longer be possible to mobilise voters with reference to past atrocities in the name of caste or religion. It is a documented fact that Dalits and minorities, for exam ple, have suffered from persecution and continue to face threats to their life opportunities. There is concern that the judgement may now disqua lify any candidate who proposes to appeal to such victims with promises of relief and security .
On a lighter note, it may not be easy at all to monitor surrogate campaign ing. A candidate may well travel with a sadhu or a maulvi, for instance, wi thout mentioning religion even once during her campaign. The voters will read the message clearly enough.
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Still others might refer to a religion by another word, to invoke yet ano ther strategy to bypass the strictures of this judgement. I remember a re cent Election Commission direction to videograph the movements of a certain politician in West Bengal du ring the last assembly elections. It made for good television and precio us little has come out of it since. His party won more seats than even he had anticipated.
Political parties, pollsters and aca demics alike may now have to return to the drawing board. What happens to nominating candidates on the basis of their caste or religion and if appeal to caste and religion is outlawed?
Perhaps this judgement, unknown to itself, also opens up the constitutional definition of secularism in India -and this doesn’t even address the issues of language and national symbols yet. It is not too soon to start a fresh conversation on the use and abuse of these symbols in public, and during elections in particular.
The writer is faculty member , St Xavier’s College, Kolkata