360 degree: His master's appeal

The landmark decision by a seven-judge Bench of the Supreme Court in Abhiram Singh v C.D.Commachan&Ors case on January 2 prescribes Indian democracy a new path to develop its electoral processes, free from fundamentalist and divisive forces diluting the secular character of its polity. It is a judgment which was long overdue. Elections to the State legislature or to Parliament or for that matter to any other body in the State are a secular exercise just as functions of elected representatives must be secular.

“Electoral processes are doubtless secular activities of the State.  Religion can have no place in such activities, for religion is a matter personal to the individual.  The State is under an obligation to allow complete freedom for practising, professing and propagating religious faith to which a citizen belongs in terms of Article 25 of the Constitution; but the freedom so guaranteed has nothing to do with secular activities which the State undertakes.  Therefore, an appeal in the name of religion, race, caste, community or language is impermissible under the Representation of the People Act 1951 and would constitute a corrupt practice sufficient to annul the election in which such an appeal was made regardless of whether the appeal was in the name of the candidate’s religion or the religion of the election agent or that of the opponent or that of the voters” asserted the Court.

“So interpreted, religion, race, caste, community or language would not be allowed to play any role in the electoral process and should an appeal be made on any of these considerations, the same would constitute a corrupt practice in terms of Section 123(3) of the R.P. Act, declared the majority judgment making the law loud and clear to all concerned. The minority opinion, arguing that election law is quasi-penal in nature, gave a narrow interpretation to Section 123(3) of the RPA and confined the scope of the prohibition to the candidate or his agent or anyone authorized by them.  This approach tends to defeat the very purpose of the legislation by allowing religious leaders and others so inclined to distort the secular character of elections by letting caste and religion to decide electoral outcomes.

Of course, law does not prevent political parties putting up candidates on religious and caste equations of particular constituencies which itself is bad for a secular democracy.  To let them also exploit identity politics in electioneering as well amounts to providing political space to religious bodies in running State and Government affairs, which is constitutionally impermissible. The dissenting judges have argued that identity politics is a social reality since the beginning of the Republic and it did pay dividends in the fight against historic discrimination based on caste, religion and race.  Does this justify letting elections being fought on caste and religious identities?

Also Read: Use of religion in elections verdict: This changes nothing

Among multiple identities Indian citizens have, right to profess, practise and propagate religion is, no doubt, a fundamental right and therefore its status and influence in society cannot be wished away.  Politics as we understand cannot also be kept totally free from religion particularly in the context of cultural and educational rights of minorities. But let us remember that all rights are subject to reasonable restrictions which the State may impose in the interest of public order, morality and public health. Restrictions on the RPA are one such set. The final word on what is religion and what is not religion is still to be clarified by Parliament or the Constitutional Court.  There is a section of people who still argue that “Sati”, “Untouchability”, “Dowry” are all part of their religion and therefore beyond State regulation!  Others believe that all rituals and practices which go in the name of “personal laws” are part of religious freedom even if they violate the right to equality or right to dignity of other persons!  They oppose State enacting a Uniform Civil Code according to the mandate of the Constitution!

The minority opinion seems to give legitimacy and political space to these fissiparous tendencies to continue in the name of social reality!  Courts are obliged to give effect to the intention of the legislature, which is the will of the people in a democracy and not discard it under some spurious notions of social reality or social justice.  There are enough channels provided by the Constitution and further enriched by legislative and executive action to ventilate grievances of the deprived and marginalized sections, sometimes through tools structured around the very identities which the election law seeks to separate from electoral processes for good reasons.

Yes, there are problems in implementing the law efficiently which is a structural and management problem which the Indian legal system suffers from. How does one prove ‘consent’ of the candidate or his agent when a third person uses religion or caste to seek votes or refrain from voting by electors?  This is a matter of evidence which can be circumstantial, documentary or otherwise which courts appreciate to prove or disprove all disputed facts. As such, it cannot be a serious impediment in the enforcement of the law.

The vigilance of opposition candidates and their agents as well as the scrutiny of election officials and media can check the abuse of the system.  The law, in any case, does not hope to eradicate the menace in the short run but regulate it within acceptable limits.  Multiple identities have a role to play in the social fabric so long as they do not inhibit individual rights or challenge basic features of the Constitution. It is indeed sad that on a fundamental issue affecting the Indian Dream, the judges of the apex Court are divided placing citizens in a dilemma. One would wish that all judges of the Supreme Court sit en bloc and give the nation their considered view one way or the other so that constitutional law will have greater certainty and clarity to provide good governance.  

(Author is  founding VC of West Bengal National University of Juridical Sciences)