Interpreting Corrupt Electoral Practice: Why the Supreme Court’s Ruling is a Blow to Secularism
By Nikhilesh Prakash
On the 2nd of January, the Supreme Court ruled (by a 4–3 majority) that votes could not be sought on the grounds of religion, race, caste, community or language, and that the election of a candidate would be declared null and void if an appeal was made on these grounds. The seven judge Constitutional Bench sought to interpret Section 123(3) of the Representation of the People of India Act which declares as corrupt practice -
“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” (emphasis added).
The point of contention was the interpretation of the word “his”; whose religion does “his” religion refer to? While the majority judges held that it can mean the religion of any candidate, a candidate’s agent, a voter or any other person who with the candidate’s consent, brings up religion in an appeal for the furtherance of the prospects of the election, the minority view restricted its interpretation to the religion of a candidate and his opponent. The majority argued that elections are secular activities and therefore religion can play no role in them. Moreover, it stated that since religion is a personal matter, the State is forbidden from interfering in related matters.
The move has since been lauded for having the capacity to clean the electoral process, removing from it, the communal color that it so often adorns. And while this move may seem like the most secular thing to do, it goes against the secularism that the Indian Constitution guarantees (equal treatment of all religions by the State) and dismisses the demographic diversity that thrives in Indian society. As per the older interpretation of corrupt practice (the restrictive version supported by the three-judge minority) a candidate is not allowed to make statements such as “I am a Hindu and therefore you should vote for me” or “My opponent is not a Hindu and therefore you should not vote for him”. However, under the new interpretation the candidate is not even allowed to make statements such as “Since I can best protect the interests of Hindus, you as Hindus must vote for me”, and that is wherein the problem lies.
The judgment of the apex-court ignores India’s diversity and the fact that an individual’s interests are often determined by the societal group to which he/she belongs. Classification along religious, racial, linguistic, communal and caste line often defines individual identity and places it within the larger societal context. A shared history of a people outlines the struggles endured in the past which shapes concerns of the present. Dalit communities for instance, have long faced social, political and economic oppression and therefore the challenges they encounter are vastly different from those faced by upper caste Hindus. Preventing candidates from addressing such group-specific issues will be detrimental to the welfare of the various sections of the population, particularly to minorities who lack the numerical strength and the political voice to lobby their interests. Equal treatment to all, as prescribed in the Constitution, should not be interpreted as meaning every person is much the same, since this is far removed from reality. Rather, it should imply a recognition of the fact that different people face different struggles and have different aspirations, and that the State will work equally towards guaranteeing them the right to achieve their desired ends. The recent judgment fails to ensure equal treatment of this kind.
It cannot be denied that religion, race, caste, community and language have in the past been used by politicians to create divisive lines in the population. Such rhetoric has been repeatedly deployed to create a narrative that pits one group against another by candidates looking to secure the support of one of the groups. Often, this leads to tensions between groups that sometimes culminates in violence and destruction, and therefore there is a need to maintain a check on speech that instigates such inter-group animosity. However, provisions in the Indian Penal Code (IPC) exist that prohibit the promotion of enmity between different groups (whether changes in these provisions are in order is the topic of another debate). More rigorous implementation of these provisions, along with the earlier, restrictive interpretation of the Representation of the People of India Act would not only ensure that the concerns of all people can be addressed but also that election campaigns are free from divisive strategy and non-meritorious vote seeking.
India is a nation whose Constitution recognizes the rationale for reservations on the basis of religion, caste, community etc. This comes from an understanding that certain groups face unique challenges and that these challenges will be best addressed if someone from that group is present in the ruling-body. How does one reconcile this with the new Supreme Court ruling? Also, as per this ruling, the EC will disqualify an elected candidate if he/she is found guilty of an appeal for votes along any of the mentioned considerations. This amounts to removing someone who has been elected by popular vote for publicly making a statement that may resonate with voters. For a nation that prides itself on being a democracy, this seems rather un-democratic.
