Faizan Mustafa
The Supreme Court of India recently prohibited politicians from using peoples’ religion or caste to garner votes. The verdict has been described as one that could force political parties to change their strategy for the coming Assembly elections. It is our failure to erect a wall between religion and state that has led to ambiguity.

Undesirability of mixing religion and politics
FOR A SECULAR STATE? Prime Minister Narendra Modi with artistes during the Dussehra celebrations at Aishbagh Ram Leela in Lucknow, Uttar Pradesh. PTI

GOD is dead. God remains dead. And we have killed him. Yet his shadow still looms…”, said Nietzsche. India is a secular country with religion occupying centre stage. Accordingly, religion and religious propaganda are used in every election in spite of the fact that an appeal for votes in the name of religion or religious symbols is a corrupt electoral practice.

What to say of religion, ultra-nationalists may be shocked to know that appeal to even national symbols such as  the National Flag or the national  emblem in electoral battles is also prohibited by the Representation of People’s Act,1951.(RP Act).India’s failure in erecting much-needed wall of separation between religion and the state was the first blunder of our Republic.BJP should forever remain indebted to Jawaharlal Nehru.

Even in the 2014 elections, the Har Har Modi slogan was all over even though the development was the main plank of the party. After the results, the Vishva Hindu Parishad President Ashok Singhal declared that a proud Hindu is in power in New Delhi after 800 years.Gandhiji did not favour even the continuance of political parties and advocated the dissolution of the Indian National Congress so that people vote on the merit of the candidates. Though the bench did not agree to reopen the erroneous Hindutva judgment of 1995, authored by J.S. Verma, on the technical ground that such a question was not referred to the seven-judge bench.

 In retrospect, all is well that ends well as in the view of the three judges disagreeing with the majority on the limited question of the meaning of the pronoun “his”. Had the Hindutva judgment been reconsidered, the decision could have gone either way. In any case, since the BJP governments, as Justice MadanB.Lokur rightly said “surprisingly” favoured a narrow construction of the prohibition of appeal in the name of religion.

The primary question in this case was whether appeal in the name of religion or other three prohibited grounds must be confined to just the religion, language, caste or the community “of the candidate contesting an election” or the prohibition extend to appeals in the name of religion etc. of his election agents, any other person or even voters.

Those who have been the primary beneficiaries of use/misuse of religion or religious symbols such as rightist parties naturally argued that the Section 123 (3) of the RP Act as amended in 1961 be confined just to the appeals in the name of the “religion of the candidates”. They further argued against a broader interpretation on three grounds: First,  the consequences of being found guilty of corrupt electoral practice are too severe which include not only the election being declared void but also being further disqualified for six years; secondly, freedom of expression is not to be curtailed by the election law during the election campaign and thirdly the court should not unsettle the legal position as to the meaning of “his”  which is settled for decades whereby appeal cannot be made in the name of religion of the candidate.

The Supreme Court did not accept the “narrower interpretation” argument of the BJP-ruled states and favoured “purposive interpretation” of the expression “his”. Justice Lokur, with whom Justice Nageshwar agreed, held that in the interpretation of law both text of law as well as social context in which the law in question was enacted are to be taken into account.  The amendment to Section 123(3) was made to control communalism as the requirement of “systematic appeal” in the name of religion etc. was too heavy and people making stray statements were escaping from the prohibition of the use of religion. He rightly said that the task of the court is to give effect to the Parliament’s purpose. Words are to be given their meaning but let us not make a fortress out of the dictionary. Every statute does have some purpose or object to accomplish.

On the basis of simultaneous addition of Section 153A in the Indian Penal Code to control misuse of religion in creating enmity or hatred amongst citizens, mischief which 1961 amendment to Section 123(3) o by deleting the expression “systemic appeal”, statement of objects and reasons clause, Justice Lokur concluded that pronoun “his” would include not only the candidate but his election agent and even voters if such an appeal had the consent of the candidate or his agents. Thus no candidate can escape from the bar simply on the ground that the appeal to vote or refrain for voting was not made in the name of his religion. 

Justice S.A. Bobde went a step further and held that even textual interpretation of expression “his” in Section 123(3) would lead to the same conclusion. Chief Justice TS Thakur, in his concurring opinion reiterated that India is a secular state is no longer res integra and religious activity cannot be mixed with secular activity. Mixing of religion with the state power is not permissible. He conceded that secularism is not only the basic structure but the “core constitutional objective”.

Those who have been arguing that secularism was not there in the original Constitution and was just inserted in 1976 by Indira Gandhi would naturally be hugely disappointed to read his judgment.The dissent has been authored by Justice DY Chandrachud,with whom Justice AK Goel and UU Lalit agreed. There was no disagreement on the issue of secularism. Justice Chandrachud favoured literal interpretation and held “his” in Section 123(3) refers to the person “who is the real beneficiary of the appeal and, therefore, it must be confined to just the candidate”. He also made a reality check by asserting that religion cannot be obliterated from public life.

If there have been some injustices faced by a group, they should be entitled to indulge in social mobilisation and prohibition of expression of their legitimate concerns in an election would reduce democracy to an abstraction. Asad Owaisi’s reaction to the judgment does give an idea about the anxiety of dissenting judges.With this judgment there is now an urgent need to specifically overrule the Hindutva judgment of 1995. Otherwise we would be in strange situation as no appeal can be made in the name of any other religion.

The Shiv Sena and the BJP may continue to polarise elections in the name of Hinduism and Hindutva, which the court had held are just “ways of life not religion”. In fact, this interpretation is patently discriminatory and is violative of equality of religions which is the very essence of our secularism. If Hinduism is not religion, can a law made by the state favouring Hindus be upheld under Article 15(1) which prohibits discrimination only on the basis of religion? The writer is the Vice Chancellor of NALSAR University of Law, Hyderabad.