In a judgement that could have far-reaching ramifications on the nature of engagement in Indian politics, the Supreme Court on Monday held that any appeal for votes on the ground of “religion, race, caste, community or language” amounted to “corrupt practice” under the election law provision. Observers argue that it is a progressive step that could cure many of the infirmities that currently afflict our democracy, primarily the pernicious influence exerted by religion and caste. In the majority judgement, a section of the apex court makes it explicitly clear that India is a secular state, and that religion and the like should be kept out of the electoral process. Despite this assertion, the fact that three of the seven judges dissented from the majority opinion, clearly establishes that the reality of political engagement in India is a lot more nuanced than the judgment might suggest. It is imperative to get into the specifics to establish this nuance. At the heart of this judgement lies an interpretation of Section 123 (3) of the Representation of People’s Act, 1951 (RPA). Section 123(3) of the Act declares a corrupt electoral practice to be: “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 (emphasis added) 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.” Going by the judgement, the majority opinion apparently believes that the word “his” (written in bold) referred to not only electoral candidates but also the voter. In other words, the judgement has now expanded the interpretation of “his” to include the affiliations of the voter, and not just the candidate standing for elections.
The judges, who supported this majority opinion, including recently retired Chief Justice of India TS Thakur, presented key reasons for supporting such a broad interpretation of this clause. There were calls to maintain “the purity of the electoral process” and protect it from “communalism, separatist and fissiparous tendencies”. In one of his final judgements before his retirement, former Chief Justice TS Thakur established the raison d’être for the majority opinion, saying “an interpretation that will have the effect of removing the religion or religious considerations from the secular character of the State or state activity ought to be preferred over an interpretation which may allow such considerations to enter, effect or influence such activities”. Noted political scientist Pratap Bhanu Mehta, however, raises some fundamental concerns with this interpretation in his recent column for a noted Indian publication. “In fact, the court seems to completely ignore the fact that the problem is not just that we invoke religion in politics. It is that what counts as, and gets defined as, religion is inherently political in the first place. And this politics is also reflected in its own drawing of these lines. It is all very well for the court to expand the scope of Article (123) of the RPA. But to do so without any guidance on of what kinds of appeals will count as religious is avoiding the question. If we take existing precedents, this case will turn out to be much ado about nothing. If we take an expanded definition, a large chunk of democratic politics will be threatened.” In his dissenting note, Justice D.Y. Chandrachud, alludes to similar concerns and clearly stipulates that the interpretation of “his” should not be extended to the voter. People in India are divided along the lines of language, caste and religion, and other markers of identity and often, an average voter would define or align his/her interests with that particular community. In a democracy, a citizen should be fully entitled to vote on the basis of such affiliations. More worryingly, such a broad interpretation could also render socioeconomic issues unique to particular communities beyond the scope of electoral politics. Will the court interpret a campaign for Dalit empowerment by the Bahujan Samaj Party, for example, as an attempt to canvas votes based on caste identity? Social mobilisation is a fundamental aspect of electoral politics. Any attempt to comply with the majority’s interpretation of Section 123 of RPA would, as the dissenting judges noted, “reduce democracy to an abstraction”. In its fine print, the Constitution acknowledges the injustices suffered by various communities, and it allows them to rally around their caste, class or religion to take on institutional oppression. Why stamp out such future endeavours in the name of maintaining “the purity of the electoral process"?