BackRewriting the rules of political engagement
The apex court's decision against canvassing for votes on grounds of religion, caste, creed, community or language moves into tricky territory
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The Supreme Court’s seven-judge bench decision that candidates can’t seek votes on grounds of religion, caste, creed, community or language seems, on the face of it, like a progressive step that could potentially rewrite the rules of engagement in Indian politics. India is a secular state and, the court argues, it is only in the fitness of things that religion and the like are kept out of the electoral process. But the reality of politics and the political economy is more nuanced than the judgement might indicate—evidenced by the fact that three of the seven judges dissented with the majority opinion.
Technically, the relevant statute—Section 123 (3) of the Representation of People’s Act, 1951 (RP Act)—has been on the books for decades . It forbids “the appeal by a candidate...to vote or refrain from voting for any person on the ground of his (emphasis added) religion, race, caste, community or language...for the furtherance of the prospects of the election of that candidate...". The “his" in this clause was understood thus far as a reference to the candidate.
Monday’s judgement has now expanded the interpretation to include the affiliations of the voter as well. It has read sub-section 3 with two other clauses: sub-section 3(A) under Section 123 of the RP Act and Section 153A of the Indian Penal Code, both of which deal with the promotion of feelings of enmity or hatred between different classes of citizens of India on grounds of religion, etc. The judges also traced legislative history to support their broad interpretation.
Justice Madan Lokur, who authored the majority opinion and wrote on behalf of Justice L. Nageswara Rao, opined that this broad interpretation was necessary to maintain “the purity of the electoral process" and ensure that it was not vitiated by “communalism, separatist and fissiparous tendencies". Justice S.A. Bobde in his concurring but separate judgement made clear that since Parliament never intended for an appeal for votes on the grounds of religion, etc., to be permissible, it is immaterial whether “the appeal is made on the ground of the religion of the candidate, etc., or of the voter". Chief Justice T.S. Thakur tilted the scales in favour of the “purposive interpretation" with a similar judgement, 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".
On the other side, Justice D.Y. Chandrachud, writing the dissenting opinion on behalf of himself, Justices U.U. Lalit and A.K. Goel, also marshalled historical and legislative evidence to prop up their view that Parliament did not intend the clause to extend to the voter—as such a blanket ban would prevent candidates from raising issues related to religion, etc.
These contesting viewpoints must be seen in the correct historical and political context. Religion-based politics has two major drawbacks. First, it often defaults to an oppositional narrative. And second, from an economic and governance standpoint, it is a powerful enough motivator to enable blanket community appeals that cut across economic fault lines. Such broadcasting can sometimes lead to blocs voting against their rational interests. Against the backdrop of Partition, and given the first drawback, the extant constitutional safeguards—such as the original interpretation of the RP Act’s relevant clause as well as the other clauses pertaining to promotion of enmity—are understandable.
But the majority opinion moves into trickier territory. Religion is an essential component of culture, and culture and economic growth do not exist independent of each other. Max Weber’s seminal The Protestant Ethic And The Spirit Of Capitalism is perhaps the first comprehensive work exploring this. It has been roundly criticized since, and with reason—it is simplistic and indulges in various leaps of logic. But its core thesis remains. Sociologist Peter Berger has pointed to the link between religion and economic development in Latin America. And Harvard researchers Robert Barro and Rachel McCleary have examined data from 59 countries spread over decades and found a correlation between economic growth and religious belief in developing economies.
Correlation is not causation, of course. None of the research provides definitive answers. But what it does do is point to the reality that religion, culture and development can often be intertwined. In an Indian context, there are socioeconomic issues specific to particular communities. For example, will campaigning for Dalit empowerment count as caste-based canvassing? This may have to be decided on a case-by-case basis but who will decide where to draw the line? Either way, the interpretation could potentially censor all mention of religion, etc. This, the dissenting judges warn, would “reduce democracy to an abstraction". The dissenting judges also highlight that not only does the Constitution engage with the injustices suffered by various groups, it has allowed for these groups to rally around their religion, etc., to fight back against centuries of social oppression.
How the ruling addresses these issues remains to be seen, based on how it is implemented. The debate on the limits of free speech in politics is, patently, a messy one.
What impact do you think the Supreme Court verdict will have on Indian politics? Tell us views@livemint.com
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