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Secularising the election(Hindu)

The Supreme Court has grappled with the question whether a provision in electoral law that makes it a corrupt practice to use religion, race, caste or language as a ground for canvassing votes in an election is a bar limited to the groups to which candidates or their rivals belong, or whether it is a general prohibition on sectarian appeals. Section 123(3) of the Representation of the People Act, 1951, as amended in 1961, gave rise to this doubt. By a four-three majority, a seven-member Bench has ruled that it is a general prohibition on the use of religion or any other communal or sectarian value in the electoral arena. 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. That secularism is the bedrock of our democracy is undisputed. That the electoral process ought not to permit appeals to the electorate on these narrow grounds is equally beyond doubt. Against this backdrop, it is only logical that the Supreme Court should decide that it is a “corrupt practice” for candidates to use any caste or communal parameters to canvass for votes or to discredit a rival, regardless of whether the candidates themselves belong to such religious, communal or linguistic groups.

It is interesting that the dispute turned on a single pronoun, ‘his’, that was introduced in the 1961 amendment. The majority opinion favours a ‘purposive interpretation’, holding that it covered the candidates as well as the voter. It finds support in legislative history and our constitutional ethos. The purpose of the amendment was to widen the scope of the particular corrupt practice. Given that secularism is a basic feature of the Constitution, it has been interpreted in the light of Parliament’s intention to prohibit any religious or sectarian appeal for votes. There is a justifiable worry that a wider interpretation may lead to eliminating from the poll discourse political issues that turn on religion, caste or language. After all, this is a country in which sections of society suffer deprivation and historical injustices based on religious or caste identity. But the overall message is clear. It is left to the wisdom of judges dealing with election cases to draw the line between what is permissible and what is not, and look at the context in which some statements are made before deciding whether they constitute a corrupt practice. The majority verdict will find resonance with all those who swear by the primacy of secularism in the public domain. The minority view nuances this with a reminder that legal issues need to be seen in their social context.

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