The Supreme Court ruled on Monday that soliciting votes on the basis of caste, creed, religion or language is illegal.
It’s a splendid piece of judicial wisdom, no doubt. Superlative adjectives such as ‘landmark’ and ‘historic’ are being bandied about to emphasise what a wonderfully path-breaking verdict it is.
The court, in fact, only removed a technical ambiguity over the wording of Section 123(3) of the Representation of the People Act – 1951 which banned the use of religion, race, caste, community or language in elections.
Section 123(3) includes this among corrupt practices: “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...”
Dismissing interpretations to the contrary, the court ruled that the pronoun ‘his’ in the phrase “his religion...” in the section refers to anybody appealing for votes on sectarian grounds on behalf of the candidate and not just the candidate alone. Four of the seven judges of the bench said in their majority judgement that the provision meant a complete ban on any reference to religion in election campaigning.
Whether the provision has so far meant to candidates a complete ban or a partial one, it has had little effect during the 65 years of its existence. Are we going to have more litigation in future over whether the law covers female candidates since the pronoun used is ‘his’?
The law hasn’t worked so far, simply because everybody knowingly cocked a snook at it. It has met the same fate as Section 123(1) of the same Act did. Section 123(1) prohibits candidates from offering bribes, gifts or any sort of inducements to voters. Everybody knows what effect this one has had.
India can boast of some of the finest pieces of legislation even if they are not worth the paper they are printed on as far as implementation goes. We also have some very whimsical laws. Take Section 11 of the Aircraft Act – 1934, for instance. It equates kites with balloons, air ships, gliders and — hold your breath — aircraft. And it makes flying a kite in a particular fashion an offence punishable with two years in jail and a fine Rs 10 lakh.
India is a land of laws. Few countries of the world have more laws than India. And above all, we have a Supreme Court which, with a legal gung-ho unmatched anywhere in the world, delivers verdicts that hit front pages with impressive regularity. One would think India is the most lawful country. Are we?
And there is the other side to Monday’s ruling by the apex court on religion. It poses more questions than answers, apart from throwing up the mindboggling challenge of how it can be implemented. But why bother? We thrive in making laws and revel in breaking them.
At the root of the problem is the fact that most candidates — exceptions are few — don’t openly canvas for votes on a sectarian basis. For example, candidates of Shiv Sena or Bahujan Samaj Party (BSP) or All India Majlis-e-Ittehad-ul Muslimeen (AIMIM) don’t always climb up the dais and say that Hindus, Dalits and Muslims, respectively, must vote for them. That would be too convenient for the police or election officials to record speeches as evidence for contravening the law.
Instead, lobbying for the communal and the casteist vote is usually done in more sinister and subliminal ways.
Let’s begin at the beginning. If you are talking about candidates seeking votes on sectarian grounds, you must first talk about how these very candidates are picked on the very basis of caste and religion. So how does the Supreme Court deal with that? It can’t.
With the demolition of the Babri mosque, the Sangh Parivar may have polarised the electorate on religious lines like never before in Independent India’s history, but the Congress has the original copyright on using religion and caste to nurture vote banks. Even the Left leaders, who make the loudest noise about secularism, are not innocent. We saw how the CPI(M) chose many candidates in last year’s Kerala assembly elections.
Before elections, leaders of all parties, with no exception, kneel, crawl and bend backwards before religious leaders without shame to seek their blessings. So how does the Supreme Court deal with that? It can’t.
Religious leaders, be they swamijis or bishops or mullahs, send subtle, private messages of their own to believers about which buttons to press on the Electronic Voting Machines. How does the Supreme Court deal with that? It can’t.
On public platforms, most candidates desist from seeking the sectarian vote openly but do it subtly through carefully worded speeches. They talk about the problems, real or perceived, of the sections of the society whose votes they are eyeing.
Applying the law to them can have its own problems.
If the Supreme Court verdict is to be strictly implemented, Mayawati of BSP stands the risk of falling foul of law if she harps on the sufferings of Dalits. Neither Lalu Prasad Yadav of Rashtriya Janata Dal nor Mulayam Singh Yadav of Samajwadi Party nor Nitish Kumar of Janata Dal (United) can talk about Other Backward Classes (OBCs). And, of course, Asaduddin Owaisi of AIMIM can no longer dwell on his pet subject of how suppressed and oppressed Muslims in India are.
But here lies another catch. BJP candidates can go on talking about Hindutva since the Supreme Court ruled in 1995 that “Hindutva or Hinduism is a way of life of the people in the sub-continent” and “is a state of mind”. So Monday’s verdict, in effect, is good for the BJP and bad for others.
All this makes one thing clear: The Mayawatis and the Mulayams and the Laloo Prasads may be no real champions of the downtrodden, but the apex court’s verdict can push any serious-minded party fighting for marginalised sections — if there is really one — into trouble with the law. That’s when the remarks of the dissenting judge DY Chandrachud — three of the seven judges disagreed with the verdict—make some sense.
Chandrachud said: “Discussion on caste, creed and religion is constitutionally protected within and outside elections and this cannot be restricted. It is a matter of free speech and through this legitimate concerns of the society are addressed.”
In theory, the law can also be invoked to ban many parties. Both All-India Anna Dravida Munnetra Kazhagam (AIADMK) and the Dravida Munnetra Kazhagam (DMK) can be banned without further thought because “dravida” can be said to denote either a race or a language. Chandrababu Naidu’s Telugu Desam too should be disbanded at once, because it identifies itself with a language.
And, of course, Indian Muslim League and the All India Majlis-e-Ittehad-ul Muslimeen should go out of business: the very names make them guilty.
The Supreme Court also said on Monday that relationship between man and God is an individual choice and that the state is forbidden to interfere in such an activity. No doubt, it’s one of the best sentences that came from the apex court ever.
But this throws up at least two other vital questions. One, if the state can’t interfere in God-related stuff, why does government control temples while churches and mosques run themselves? Two, why doesn’t India have a uniform civil code?
Having said what it did, the court should have addressed the problem of the perverted definition that the word secularism goes with in India. But it didn’t.
So where does all this leave us? Nowhere really. But call the Supreme Court verdict historic, if it makes you happy.
The author tweets @sprasadindia
Updated Date: Jan 03, 2017 10:41 AM