When judges put nationalism over democracy4 min read . Updated: 10 Jan 2017, 12:14 AM IST
It's one thing to insist on secularism in elections; it's another thing for the Supreme Court to effectively allow appeals to the majority religion but not to minority religions
India’s constitutional democracy has always struggled to tame the country’s religious and caste divisions, especially during elections. The Supreme Court of India has now issued an important ruling that makes things worse, not better.
On the surface, the court struck a blow for religious neutrality, holding that referring to religion or caste in a race for office will disqualify the results. In reality, the decision delivered a gift to the ruling Hindu nationalist Bharatiya Janata Party at the expense of India’s minority faiths and castes.
That’s especially worrisome in our present historical moment, when nationalist parties are challenging free democratic speech around the world.
The decision by the seven-member panel of the court was an interpretation of India’s corrupt practices and electoral offences law, first enacted in 1951 and amended subsequently. Section 123 (3) of the law makes it a corrupt practice for a candidate to make an appeal “to vote or refrain from voting for any person on the ground of his religion, race, caste, community or language".
The central legal issue was whether the law only bans the candidate from appealing to his own religion or community, or whether it extends to cover references to the voters’ identities, too.
At a technical level, this debate turned on the meaning of the word “his": Does it refer to the candidate or the voter?
In bottom-line political terms, the question was how extensive the ban should be. A narrow reading restricting the ban to the candidate’s own background would make it harder to overturn electoral results and allow greater range to candidates’ speech.
That would allow politicians, for example, to tell members of disadvantaged castes that they should vote for them because they would represent caste interests. So long as the candidate did not say that he or she was a member of the disadvantaged caste, the appeal would be lawful.
A broader reading, in contrast, would make it easier to overturn electoral results and would impose heavy restrictions on the speech of candidates. It would make it impossible for candidates to present themselves as serving the interests of religious minorities. In India, the biggest religious minority is Muslim, with 172 million adherents as of the last census in 2011. The broad reading would therefore affect them disproportionately.
The court split 4-3, with the majority adopting the broader reading and the dissenters the narrower one. The leading opinion of the majority emphasized that India’s founders “intended a secular democratic republic where differences should not be permitted to be exploited". Treating this as the law’s purpose, the majority rejected the narrow reading of the word “his" as referring to the candidate’s identity as inappropriately literal.
The dissenters acknowledged India’s official secularism, but noted that the Indian Constitution itself “recognizes the position of religion, caste, language and gender in the social life of the nation". That’s accurate: The Constitution prohibits discrimination based on caste but also permits affirmative action for the advancement of historically disadvantaged castes.
On the surface, the decision looks like a close legal case with a defensible conclusion. But the reality is otherwise—for a concrete legal reason. In 1995, a three-judge panel of the court issued a famous judgement colloquially known as the Hindutva or Hinduism decision. In it, the court said that because Hinduism didn’t subscribe to a single dogma or worship a single god, it did not satisfy the traditional definition of religion. It was therefore “a way of life and nothing more".
Thus, according the 1995 precedent, Hinduism isn’t a religion for purposes of the election law. The result is that the broad reading of the statute doesn’t equally disadvantage all appeals to religion—it disadvantages only minority religions. Thus Muslim candidates can’t invoke their creed to win votes, but Hindu candidates can.
In effect, secularism and Hinduism are treated as identical. As the Bharatiya Janata Party triumphantly put it in a manifesto issued more than 20 years ago and referring to the 1995 judgment, the Supreme Court “endorsed the true meaning and content of Hindutva as being consistent with the true meaning and definition of secularism".
It would be one thing for India genuinely to insist on total secularism in elections. Although such a rule would be in some tension with the Indian Constitution’s commitment to free speech, it might nevertheless be justified because of the risk of distortion to the electoral process from communal violence.
It’s another thing for the Supreme Court to insist on a restrictive “secularism" that allows appeals to the majority religion but not to minority religions. It’s as if the US supreme court held that Christianity isn’t a religion but a set of American cultural ideals, and that the establishment clause of the US constitution therefore applied only to expressions of Judaism, Islam, or other minority faiths.
This is the second time in recent months that the Indian Supreme Court has issued a highly nationalist holding with negative impact on free speech. At a time when free speech is under attack globally from nationalist political parties, this is the wrong direction for the body charged with interpreting the constitution of the world’s largest democracy. Bloomberg
Noah Feldman is a Bloomberg View columnist and a professor of constitutional and international law at Harvard University.
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