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Does the Supreme Court See Secularism And Identity Politics as Incompatible?

As per a recent Supreme Court ruling, appeals to identity politics are fine, as long as they are incidental and not the core of the election campaigns.

BJP supporters at a rally in Meerut. Credit: PTI

BJP supporters at a rally in Meerut. Credit: PTI

With the electoral process underway in five states, the Election Commission (EC) has swung into action implementing the broadened interpretation of corrupt practices given by the Supreme Court earlier this year in Abhiram Singh v C.D.Commachen.

The Election Commission’s two recent circulars – one addressed to political parties and the other to chief electoral officers – ask for their compliance with the prohibition of seeking votes in the name of religion, caste and community of the voters as well as candidates.

The EC’s pro-active role in implementing the Supreme Court’s recent ruling deserves admiration, but the court’s 4:3 judgment in Abhiram Singh has given rise to some concerns which need clarification.

The Abhiram Singh bench has been criticised for refusing to consider overturning the 1995 pro-Hindutva judgments of late Justice J.S. Verma, while at the same time preventing the historically disadvantaged minorities from mobilising their communities in the democratic processes.

Both the critiques are misplaced and based on a wrong reading of both majority and minority opinions in Abhiram Singh.

Sanitising politics of identities?

There has to be a distinction between electoral  politics and the electoral process. Constitutionally acknowledged communal identities have a place in electoral politics but are not allowed to have any role in electoral processes.

Electoral politics acknowledges, accepts and even includes identities as per the constitutional scheme. Constituencies and seats can be reserved on the basis of identities. States can be carved out on the basis of identities. Identity-based political movements as exemplified by the Dalit-centric BSP or the Tamil-based DMK are acceptable.

Such political movements on behalf of the marginalised have ensured that their concerns are taken seriously within the framework of democratic electoral politics. There have been a number of regional political parties, such as Telugu Desam Party, Naga People’s Front or Mizo National Front, that evidently have an identity appeal which have strengthened our democracy.

At the same time, electoral processes are to be kept above such identity politics. It is not a denial or a refusal of identity politics or democratic mobilisation, but it is to make such politics and mobilisation truly democratic, healthy  and constitutional. It is a transcendence, not a denial.

What is permissible?

Can constitutionally permissible mobilisations, even during the electoral process, come under the teeth of the present prohibition in Abhiram Singh?

A Muslim candidate may tell an election rally of Muslims to vote for him in order to press for reservation for Muslims as  minorities. A Hindu candidate may address an election rally of Kashmiri Pandits and may seek their vote in order to fight for their cause. Likewise, a Jat candidate addressing a Jat rally may seek votes so that he can work for Jat reservation and a candidate addressing an election rally of Christians can ask for votes to implement minority rights under Article 30. Should these be considered corrupt practices?

A closer reading of the prohibited grounds under Section 123(3) of the Representation of People Act (RPA) would make it clear that the prohibition is only on certain specified grounds. We have  similar prohibitions of appealing to or acting upon some of these grounds in Articles 15, 16 and 29 of the constitution. But those prohibitions will not operate if these grounds are incidental and the main or essential objective is a constitutionally mandated one.

For example, the prohibited grounds of religion, race, caste, sex or place of birth under Article 15 (1) and 15 (2) become permissible under the provisions of Article 15 (3),(4) and (5) of the constitution. This is because under the latter, those grounds are incidental and their main objectives is to make special provisions for the communities that need them. In other words, the prohibition operates when these grounds are the main or only grounds, and not when they are incidental.

We see the same scheme in Article 16, where two more additional prohibited grounds are added – namely, descent and residence. Similar is the scheme in Articles 29 and 30 read together. Under the provisions of Article 29(2) the prohibited grounds are religion, race, caste and language. Out of these, religion and language will stop being prohibited grounds if they become incidental to the main constitutional objective under Article 30 and 29(1). Thus the prohibition does not apply if the grounds are incidental to  constitutionally mandated goals. The prohibited grounds under Section 123 (3) of RPA also need to be construed on these lines.

In fact, in 1964, a five-judge bench of the Supreme Court meant exactly this in Kultar Singh v. Mukhtiar Singh. It ruled that when considering the question of a particular appeal made by a candidate that doesn’t comply with Section 123(3), courts should not be astute as to read into the words used in the appeal to mean more than their reasonable construction. It is significant that the Supreme Court in Abhiram Singh has reiterated the principles laid down in Kultar Singh.

If Section 123(3) of the RPA is still found vague, it needs to be clarified by introducing an ‘only’ before the prohibited grounds as available in the related constitutional provisions like Articles 15, 16, and 29 of the constitution.

The debate on Hindutva

Critics of Abhiram Singh point out that the seven-judge bench missed an opportunity to review Justice Verma’s 1995 judgment, which interpreted Hindutva as a way of life and found nothing wrong in its use during election campaigns. However, according to the decorum and discipline of the larger or constitution benches, the Abhiram Singh bench could not have reviewed the Hindutva judgment since the same is pending before a bench of five judges.

Unless the five-judge bench had considered the matter and referred it to a bench of seven judges, it could not have been considered by the Abhiram Singh bench. Although there were precedents to the contrary, they should be considered as aberrations, rather than binding precedents.

Overruling Justice Verma’s Hindutva judgment

If read closely, one will find that a key holding of the 1995 Hindutva judgment stands overruled in Abhiram Singh. In the 1995 judgment, Justice Verma gave a restricted interpretation to the effect that the word ‘his’ was introduced in Section 123(3) of RPA to restrict the prohibition only to the candidate’s religion. It allowed for appealing to the voter on the grounds of their religion, caste and community. This has now been reversed in Abhiram Singh.

But can the Abhiram Singh judgment still be misused by theHindutva lobby? Misuse can be remedied by diligent precautions to serve secular ends. Evidence may have to be collected to prove whether the voters understood Hindutva as a religion, a community, or a way of life that has nothing to do with religion or community.

Till the Hindutva verdict of Justice Verma is not reversed, the EC should be diligent to identify the fallacies and collect admissible evidence.

If the minority view of the Supreme Court bench had become the majority decision, then it would have appeared to advocate a scenario where leaders, like Amit Shah of the BJP, could appeal for votes in UP in the name of the (Hindu) religion of the voters without mentioning the religion of the candidate. Prime Minister Narendra Modi could evade the rigour of the RPA by seeking votes from Hindu voters in Varanasi, exhorting them to vote for him because, as Hindus, they would like him to come to power and build a Ram temple in Ayodhya. The historical injustice argument of the minority opinion in Abhiram Singh may fit well with the kar sevaks. Mayawati would have found legitimacy to appeal for votes for a Brahmin candidate in the name of non-Brahmin voters, claiming that this is an opportunity to elect a person from their caste a deputy chief minister.

Identities like religion can’t become the fabric of electoral processes in a pluralist polity. Having identities as the base of electoral processes would be deadly for democracy – as was realised and declared anathema by parliament for broadening the net of corrupt practices. Justice Madan B. Lokur, one of the four majority judges in Abhiram Singh, was prescient when he said way back in 2008: “Secularism is like wine; the more it stays it matures better and tastes good”.

M.P. Raju is an advocate practicing in the Supreme Court.