Do fair elections require that certain kinds of statements — such as appeals to religion, caste, and language — be taken off the campaigning table altogether?
Can the state prevent adult citizens from being exposed to certain ideas before they vote?
Can a court decide that only certain kinds of interests count in a democracy?
Does secularism mandate the complete exclusion of religion from the public sphere? And must identities based upon religion, caste, and language always be treated as evils to be fought and eradicated?
Or can they sometimes become sites of emancipation, markers around which citizens organise themselves and seek liberation through the attainment of political power?
These questions, fundamental to understanding the foundations of our republic, were answered by a divided Supreme Court on Monday.
Section 123(3) of the Representation of the People Act, India’s omnibus election law, defines a corrupt electoral practice as follows: “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....” The question before the Supreme Court was deceptively simple: did the underlined word “his” qualify only the electoral candidate (and his agent, or persons speaking with his consent) Or did it also qualify the person to whom the appeal was addressed (the elector)?
The majority view
Four out of seven judges held that the law was trying to achieve the purity of elections, and that the purity of elections required that appeals to caste, religion, language, and community be kept out of the electoral process.
Chief Justice T.S. Thakur added another string to this bow. “Religion can have no place in such [secular] activities for religion is a matter personal to the individual with which neither the State nor any other individual has anything to do.”
Consequently, according to the majority, 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.
At the heart of the majority’s vision of the democratic public sphere was the ideal of abstract, universal personhood.
The dissenting judges felt that tools like lack of social mobilization, Historical discrimination and absence of social salience of oppressed class should not be ignored. It also felt that they should not be prevented from organizing around those very markers to liberate themselves to capture political power. The Judges completely deny the majoritarian view of the other 4 judges.
For this reason, the dissent held that Section 123(3) had to be construed narrowly. The phrase “his religion” referred only to the religion of an electoral candidate, and not the religion of the voter.
How should we as citizens take it?
In this way, the state prevents the distortion of democracy, and helps us to become true citizens. To some, this might sound like a noble and inspiring vision of democracy, and of the Constitution.
Source - The Hindu
Category - GS 2