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The cartoon probably depicts the state of affairs much better :-

The Supreme Court has grappled with the question whether a provision in electoral law that makes it a corrupt practice to use religion, race, caste or language as a ground for canvassing votes in an election is a bar limited to the groups to which candidates or their rivals belong, or whether it is a general prohibition on sectarian appeals.

Section 123(3) of the Representation of the People Act, 1951, as amended in 1961, gave rise to this doubt. By a four-three majority, a seven-member Bench has ruled that it is a general prohibition on the use of religion or any other communal or sectarian value in the electoral arena.

The minority favoured limiting the ambit of the sub-section to cover only candidates who sought votes on such grounds, or the rivals they wanted the voters not to back on similar grounds.

That secularism is the bedrock of our democracy is undisputed. That the electoral process ought not to permit appeals to the electorate on these narrow grounds is equally beyond doubt. Against this backdrop, it is only logical that the Supreme Court should decide that it is a “corrupt practice” for candidates to use any caste or communal parameters to canvass for votes or to discredit a rival, regardless of whether the candidates themselves belong to such religious, communal or linguistic groups.

It is interesting that the dispute turned on a single pronoun, ‘his’, that was introduced in the 1961 amendment. The majority opinion favours a ‘purposive interpretation’, holding that it covered the candidates as well as the voter.

It finds support in legislative history and our constitutional ethos. The purpose of the amendment was to widen the scope of the particular corrupt practice. Given that secularism is a basic feature of the Constitution, it has been interpreted in the light of Parliament’s intention to prohibit any religious or sectarian appeal for votes.

There is a justifiable worry that a wider interpretation may lead to eliminating from the poll discourse political issues that turn on religion, caste or language.

After all, this is a country in which sections of society suffer deprivation and historical injustices based on religious or caste identity. But the overall message is clear.

It is left to the wisdom of judges dealing with election cases to draw the line between what is permissible and what is not, and look at the context in which some statements are made before deciding whether they constitute a corrupt practice.

The majority verdict will find resonance with all those who swear by the primacy of secularism in the public domain. The minority view nuances this with a reminder that legal issues need to be seen in their social context.

Our Analysis:-

  1. This indeed is a healthy sign for plurality of our democracy. Secularism is our bedrock, but the fact that there is no particular guideline laid down by the SC, where one can observe certain act and say “it violates the principle” is little worrisome.
  2. For example – A candidate may not seek votes on the grounds of religion,caste or community grounds, agreed. But what happens when there are implications to religion, caste or community.
    1. Example- If a candidate does not utter a word related to religion but puts giant religious poster behind the podium for all to see and interpret.
    2. Or what happens when a certain candidate is asked by the regional leaders to put on a religious symbol or offered to do so while on the podium. Or what if a candidate, gives  reference to certain mythological story to bring a point home.
    3. There are a thousand ways to be thought of on how to appeal to certain sections of society based on religion, caste or community in a subtle manner or through symbolism.
    4. And that is exactly where it gets muddy. Society and Law are usually the “odd-couple” and the lesser the intervention is the better for both, as evident from our past.
    5. Then again, SC had to do something about polarization. But symbolism is as strong as uttering the words and the most difficult one to interpret , pin-point the the guilty and then punish.
  3. A better solution to this is to put the election issues in the election commission’s basket and give it some “teeth” to interpret/act upon it. And there is the issue of ” larger degree of subjectivity” as far as ‘purposive interpretation’ is concerned and is better left to the people who manage “elections”
  4. Learnings from Europe:-
    1. Lets us examine what happened in Europe in 1960s. Before 1960s Europe was a deeply religious state – there were fight between Catholics and Protestants. But, then people grew out of it and understood the relationship between state and papal authority and how they work together to control the masses.The deep understanding came because Europeans educated themselves to know the difference. A similar pattern can be observed in India, the last election of “2014” was probably won over a single agenda “development”. This shows that there is a paradigm shift in “political campaigns”. And the future is only going to be better and education of the mass is the key to any social reform. The leaders can chant or pray or do Namaz on the podium to garner votes, but they will loose relevance when the educated masses know that it is only “theatrics”.
    2. Eupore sanitized and secularized its society and politics in 1960s, it will take a while for India , but we are on the right path. Also there is “helplessness” before the judiciary, judiciary certainly can stop the candidates from preaching, but can they stop people from voting on the grounds of religion, caste or community. Hence the helplessness.
  5. Nevertheless, it is a welcome move because, it will act as a “deterrent” in the meanwhile. One could only hope that judiciary should mandate a 6-10% of GDP should be spent on education – but then that would be “day-dreaming” and a perfect example of “judicial overreach”.


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