Daily Current Affairs – 4th January, 2017Devendra Vishwakarma
Democracy- for an Individual or Public Sphere?
Election is termed as a ‘secular’ exercise and thus there should be no involvement of religion. Secular in the sense that the relationship of man with God is an individual and personal choice and thus, the state has to keep itself within limits.
In a landmark judgement, a 4:3 divided seven judge constitution bench of Supreme Court held that an appeal for votes during elections on the basis of religion, caste, race, community or language, even that of the electorate, will amount to a ‘corrupt practice’ and call for disqualification of the candidate.
- Section 123 (3) of RPA Act: Corrupt Electoral Practice- “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…”
- The question referred to the Constitution Bench was whether the word ‘his’ used in Section 123 (3) of the Representation of the People Act only meant a bar on appeals made in the name of the candidate or his rival or his agent.
- For example: “I am a Hindu, vote for me”, or “My opponent is a Hindu, don’t vote for her”. This was corrupt practice.
- Or if the word ‘his’ also extend to soliciting votes on the basis of the religion, caste, community, race, language of the electorate as a whole (the voter too).
- For example: “You speak Tamil, vote for me/party”. This will be now a corrupt practice.
Making democracy stronger- A majority view
- The latter means a blanket ban on any appeal, reference, campaign, discussion, dialogue or debate on the basis of religion, race, caste, community or language, even if such a debate was on the deprivations suffered by the voters due to these considerations.
- The majority view held that an election that was fought and decided on these issues was a distortion of democracy. Two reasons
- Divisive tactics: For a democracy to survive, there must be agreements on certain basic essentials which unite the citizens together. Religion, language, caste, etc were precisely the kind of divisive markers of identity that threatened this fragile consensus
- Irrational choice: Democracy depends on voter exercising their franchise based on rational thought and action. If appeals are made on religion, caste, language basis, it might result into different and may be, an irrational choice.
- Therefore, to restrict Section 123(3)’s prohibition only to electoral candidates would be contrary to public interest.
- The CJI said that appealing on the basis of religion would amount to “mixing religion with State power” which is against the fundamental value of Constitution of India- Secularism.
- The electorate has to participate as a rational individual, deliberating about the public interest, not to be affected by the baggage of religion, caste, language or community.
- Thus, the word “his” in Section 123(3) was to be understood broadly, referring to both the speaker as well as the audience. In effect, it prohibited appeals to the prohibited “grounds” (religion, caste etc) during the electoral process.
The dissent judgement
- This rule was passed by a majority 4:3. 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.
- Here, the arguments put forward were that there were historic discriminations and deprivations suffered by the masses on the ground of religion, caste and language.
- Religion, caste and language are as much a symbol of social discrimination imposed on large segments of our society. They are central theme of the Constitution to produce a just social order. Thus, they cannot be barred from being discussed in elections.
- Electoral politics in a democratic polity is about social mobilisation and access to governance is a means of addressing social disparities.
- Social mobilisation is a powerful instrument of bringing marginalised groups into the mainstream where the candidate can speak about the legitimate concerns of citizens that the injustices faced by them on the basis of traits having an origin in religion, race, caste, community or language can be remedied.
- There is no such thing as an ‘individual’ as he always is situated in their ‘social context’. These have been characterised in India by religion, language, caste and community.
- These are, and have been, the sites of inclusion and exclusion, privilege and oppression, domination and resistance, power, pleasure, discrimination, and suffering.
- Today, there is a visible change in society where people who have been discriminated against for centuries have acquired a certain social salience. It is this democratic upbringing that allowed B.R. Ambedkar to form the All India Scheduled Castes Federation, a political party exclusively devoted to Dalit emancipation.
- This was because the oppressed class were allowed to organise their issues around their social status and gain political power.
- For this reason, the dissent held that Section 123(3) had to be construed narrowly.
Too much into ‘his’ dispute?
- This dispute is based on a single pronoun ‘his’ which was introduced in the 1961 amendment.
- The majority opinion favours a ‘purposive interpretation’, holding that it covered the candidates as well as the voter. The purpose of the amendment was to widen the scope of the particular corrupt practice.
- But, there is a justifiable worry that a wider interpretation may lead to eliminating from the poll discourse political issues that are based on religion, caste or language.
- It has to be understood that all such legal issues have an attached social context.
The overall message is clear- secularism is basic feature of Constitution and has been interpreted in the light of Parliament’s intention to prohibit any religious or sectarian appeal for votes. But Indian secularism has to be understood differently where it does not mandate complete exclusion of religion from the public sphere. Identities based upon religion, caste, and language should not be always treated as an evil faction but rather as centre point as a site of emancipation around which citizens organise themselves and seek liberation through the attainment of political power.