THE basic concern of the majority verdict of the seven-judge Constitution Bench of the Supreme Court on the appeal of religion in the election process was to uphold secularism  and to assert that religion can have no place in elections and that appeals to voters on the grounds that religion, caste, community or language cannot be allowed.

The Constitution Bench was constituted to look into the interpretation of Section 123, sub section 3 of the Representation of the People Act. The Section 123 (3) states: "The appeal by a candidate or his agent or by any other person with the consent of a candidate or his election agent to vote or refrain from voting for any person on the ground of his religion, race, caste, community, or language or the use of, or appeal to, religious symbols or the use of, or appeal to, national symbols, such as the national flag or the national emblem, for the furtherance of the prospects of the election of that candidate or for prejudicially affecting the election of any candidate”.

The question before the Bench was how the word “his” is to be interpreted. Does it refer to only the candidate or his agent but also to the voters?

The majority judgment has gone in for a broad and purposeful interpretation. It holds that it is not only an appeal to vote on the basis of the candidate’s religion, caste or linguistic identity that is an offence, but any appeal concerning the voter’s religious, caste or community identity will also be a violation of the law. In short, the majority judgment makes no difference between appeals for support based on a candidate’s identity and a candidate or his agent talking about the voter’s religious, caste or linguistic issues.

Chief Justice T S Thakur who delivered a separate but concurring judgment sided with the arguments put forth by Justice Lokur and put his weight behind broadening the interpretation of the clause in order to uphold secularism which is a basic feature of the constitution.   

While the main thrust of the interpretation of Section 123 (3) by the majority seems unimpeachable, in that it would not like any form of religious appeal to vitiate the election process, the judgment is problematic. In terms of the realities of Indian society, it can have unintended effects. 

The minority judgment written by Justice D Y Chandrachud has raised some relevant issues which need serious consideration.  The dissenting judges pointed out that by broadening the interpretation of Section 123 (3) of the RPA to embrace all forms of appeal based on religion, race, caste, community or language, the issues of the social oppression faced by certain castes, communities or linguistic minorities  would come under the purview of corrupt practices.

The minority judgment makes an effective case for allowing such issues based on religious, caste or community oppression or discrimination to be raised in the election discourse.  The minority judgment states: “To hold that a person who seeks to contest an election is prohibited from speaking of the legitimate concerns of citizens that the injustices faced by them on the basis of traits having an origin in religion, race, caste, community or language would be remedied is to reduce democracy to an abstraction.” 

It goes on further to emphasise that: “Religion, caste and language are as much a symbol of social discrimination imposed on large segments of our society on the basis of immutable characteristics as they are of a social mobilisation to answer centuries of injustices. They are part of the central theme of constitution to produce a just social order.  Electoral politics in a democratic polity is about mobilisation. Social mobilisation is an integral element of the search for authority and legitimacy.”

Interestingly, when the amendment to Section 123(3) of the RPA was being discussed in 1961 in parliament, Renu Chakraborty, the CPI member, had given a dissenting note in the select committee regarding the amendment being proposed and which was later adopted.  Referring to the amendment, she said: “Rather I am afraid that it would be used against anyone seeking to criticise unjust practices based on caste or community, resulting in social oppression or those who give expression to grievances in which any caste, community or minority group may suffer, would be charged of corrupt practice”. 

The other aspect of the case before the Constitution Bench is that it did not go into the Supreme Court judgment of 1995 wherein a Bench headed by Justice J S Verma held that “Hindutva or Hinduism is a way of life of the people in the sub-continent”.  It is this verdict which had nullified the disqualification of Shiv Sena leaders for appealing to voters on the basis of Hindutva.  Allowing this judgment to hold sway can provide a cover for the use of the communal Hindutva appeal in elections. 

There is already sub-section 3(A) of Section 123 (which was also introduced by the 1961 amendment) that covers the wider issue of the use of communal and sectarian appeals in election.  Section 3(A) states: “The promotion of, or attempt to promote, feelings of enmity or hatred between different classes of the citizens of India on grounds of religion, race, caste, community, or language, by a candidate or his election agent for the furtherance of the prospects of the election of that candidate or for prejudicially affecting the election of any candidate.”

Whatever the finer points of the interpretation of the law given by the Supreme Court, the record of enforcement of such laws to prevent the religious-communal appeal is practically non-existent. Under the present system, any offence as per the RPA means filing of a petition in a High Court against the elected representative after the election. Verdicts on electoral offences take a number of years and it is seldom that a verdict is given before the term of the elected representative is over.

This verdict is by no means the last word on the growing communal appeal used in electoral politics. It is only when the people become conscious of the disruptive and anti-democratic nature of communal politics that effective enforcement of the secular principle will be possible. In the meantime, there can be no prohibition on the raising of issues of oppression of any particular religious community, caste or linguistic group. 

(January 5, 2017)