Gag on Religious Politics

Apex Court ruling to nix religion, caste and language from politics may make it tough to get going for political parties like Shiv Sena, Shiromani Akali Dal, All India Muslim League etc

Picture: Supreme Court with former Chief Justice TS Thakur in insat; Slice of Shakshi Maharaj/Asaduddin Owaisi/Shadhvi Niranjana

By Anil Anand

There is a thin line between totally banning use of religion for political and electoral purposes, and evaluating the context of each and every speech made during elections. The Supreme Court of India chose the second option when a 7-member Constitution bench ruled that religion cannot be used as a mode of seeking votes.

By every dimension it was a historic judgement and truly a New Year gift to the nation by the outgoing Chief Justice of India TS Thakur who headed this Bench. It is historic in the sense that the Apex Court showed determination to take an important step forward, though belatedly, having far reaching impact in preserving the secular edifice.

Religion and caste have so strongly inter-mingled in Indian politics that to visualise separating these factors seems unconceivable.  There are political parties which are based on thoughts and ethos of one or the other religion or caste grouping and then there are those which tend to whip up emotions in the name of religion and castes to garner votes. This is a cumbersome mix which has been getting deadlier by the day and so the importance of the Supreme Court judgement though it is limited in scope.

No doubt the judgement is admirable but in its present form raises questions of efficacy particularly in terms of implementation on the ground. The timing of the ruling, coming just ahead of the elections in communally surcharged Uttar Pradesh and Punjab having religion based Shiromani Akali Dal (SAD), makes it more significant.

The parties such as SAD, Shiv Sena, All India Majlis-e-Ittehadul Muslimeen etc which have religion as their encore can draw solace in the fact that Supreme Court decided to discuss the question of permissibility or not of religion in politics and political speeches, on another day. But it would be unimaginable more so for the leaders of such political outfits to think of a political slogan or paradigm having no religious overtones.

There is a clear predicament which is also visible in the observations of CJI Thakur. “We are only looking into whether it is permissible to make an appeal in the name of religion of the candidate or his agent or voters in general…… We are not going into the permissibility of religion in political speeches. We cannot give an exhaustive listing of ‘you can say this and you cannot say that’ in political speeches,” he had observed.

So where do these observations leave the Election Commission of India? Definitely it is not going to be an easy task for the ECI with limited powers at its command. Any violation of the Apex Court’s order would be construed as a corrupt practice and a violation of the Model Code of Conduct. Such a violation result in disqualification of the contesting candidate. The poll panel would certainly need more empowerment to come down heavily on violators.

The challenge has come sooner than expected both for the Supreme Court and the ECI to test the ground. Within less than a week of the Court’s pronouncement the gauntlet was thrown by BJP’s rabble rousing MP Sakshi Maharaj that too in poll bound UP. His no-holds-bar anti-Islam rants under the garb of population control, has provided a test case for ECI to act and for the Court to observe the real efficacy of its judgement on ground.

Individual cases of the Sakshi Maharaj variety apart, the Supreme Court order, howsoever limited in its scope might be, would certainly compel the political parties to think beyond religion while framing their electoral strategies. It would be naive to think that the parties would not invent ways and means to circumvent the Court directions.

Nevertheless, they would have to be cautious at least in drafting their manifestos and framing and delivering election speeches. Or else, how can a political party or leader now  seek votes in the name of building Ram Temple or promises of more subsidies to a particular religious or caste groups, if elected. Ultimately, it would depend on how effectively such factors would be evaluated under the light of the Apex Court’s judgement.

Chief Justice Thakur touched core of the issue when he observed that appealing on the basis of religion would amount to “mixing religion with State power.” “Elections to the State legislatures or to the Parliament or for that matter anybody in the State is a secular exercise just as the functions of the elected representatives must be secular in both outlook and practice.”

The questions arises whether evaluation of a controversial speeches which are in violation of the Supreme Court orders, would truly address Chief Justice and his brother judges’ concern? There are various imponderables. An intricate issue is the Constitution Bench desisting from reconsidering the Supreme Court’s 1995 judgment wherein it defined Hinduism as “a way of life and not a religion.”

The three-judge Bench led by the then Chief Justice of India J S Verma had ruled that Hinduism was not a religion but a way of life. The Bench had also kept references to Hindutava or Hinduism outside the ambit of election law- Section 123(3) of the Peoples Representation Act, 1951, that prohibits candidates or their agents from canvassing for votes on the grounds of religion, race, caste and community or language.

Chief Justice Thakur’s Bench in its 4:3 verdict has certainly given an explanation which is more broader in nature than the 1995 ruling. Their ruling that religion and caste of all including voters, candidates and their agents, etc, as opposed to the “minority view” of dissenting judges UU Lalit, AK Goel and DY Chandrachud, moves beyond the restrictive interpretation of the 1995 ruling.

In some ways Justice J S Verma’s order can be construed as an impediment to create a level playing field. It needs to be revisited as no ban on use of religion in election speeches would have the desirable effect.

Sections 123 (3) and 123 (3A) of the Representation of Peoples Act, 1951 (RPA, 1951) were enacted in recognition of the fact that during the electoral process situations can arise when a political party, its leaders or any other person or a candidate would appeal to voters to elect a candidate on grounds of religion, race, caste, community. Such an appeal would undermine the secular foundation of the Constitution. So, such an appeal ought to be a “corrupt practice”.  Justice Thakur led Bench has substantially accepted this position in law and laid the foundation for a wall of separation between religion and politics.