Supreme Court ruling will wipe elections of communalism

In the run-up to almost every hotly contested election, political parties get into the frenzy to consolidate their respective constituencies, and also wean away voters from other blocks. And in India, the easiest way to do so is to canvass votes and draw voters in the name of religion, community or caste. And, the surest way to further this agenda is to play off one religion against the other, with candidates of one religion screaming their lungs out against their opponents who profess a different faith.

Essentially, it means that they indulge in various forms of hate speech, which frequently results in communal clashes and riots with devastating consequences.

Moreover, since the election laws do not prohibit parties based on religion or religious identity from contesting polls, sadhus, godmen, godwomen and clerics of all hues and colours had a field day championing their own causes and profiteering from hate speech.

But, in Abhiram Singh Vs CD Commachen & Ors case, a Supreme Court bench of seven judges, by a majority of 4:3, has delivered a ruling which, if implemented in both letter and spirit, would halt the purveyors of hate right in their tracks. Not only that, they would also be bound by law to be disqualified even if they win elections based on their religious and often sectarian agendas.

Purposive interpretation

The Representation of the People Act, 1951, is the law governing the conduct of elections in India. Section 123 (3) of this law mandates that canvassing votes on the grounds of one’s own caste, religion or community would be deemed to be a “corrupt” electoral practice, and a candidate found indulging in such practices would face disqualification.

How did this work in practice? A chief ministerial candidate exhorts a crowd to chant in support against a Muslim extortionist killed in a staged encounter – in the name of Hindutva. The supremo of a Hindu-majoritarian political party urges voters to cast their ballots for the candidate who is a better Hindu and will fulfil the promise of making India a "Hindu rashtra". Candidates belonging to the dominant upper castes spew bile against their opponents belonging to lower castes.

As a result, the principle of free and fair elections, which is a fundamental part of the Constitution, was left gutted.

But what about those cases where a candidate or her/his agent had campaigned for votes by using the rhetoric of religion or caste of that of her/his opponent? For instance, instead of saying “vote for me because I am a more pious Muslim”, candidate X says “Vote against Y because he is a Hindu, and if he comes to power, your rights would be at peril". Would this kind of speech still fall afoul of Section 123 (3)?

The exact wording of Section 123(3)

“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.”

Prior to the January 2 ruling, different benches of the Supreme Court had given conflicting rulings in this regard. Some held that the candidate should be caught making remarks pertaining to his religion only, while others held that casting aspersions on an opponent’s religion was also a corrupt practice.

The Election Commission (EC) remained non-committal, and issued only reprimands, as it did in 2009 in the case of BJP candidate Varun Gandhi, who had dared people to vote for Muslims and have their hands chopped off as a consequence.

It is here that the Supreme Court’s seven judge bench stepped in and ruled that elections must be purged of the various manifestations of religion, caste and community in all forms whatsoever. Therefore, “his” should apply both ways, because the purpose of the law was to prevent communal and parochial appeals from destroying the secular fabric of society and the sanctity of democratic elections.

Thus, now no one can claim superiority by promising either a temple or a mosque. No one can get away with baying for blood of the members of another community.

Hate Speech in the times of social media

The Supreme Court in the present case did well to acknowledge and factor in how fast hate speech travels in today’s world, and swings votes. The majority bench noted that now there is no necessity to hold rallies all over the country — all that one needs is to deliver one speech, and make it go viral on social media.

With the electronic media playing the speech over and over again (unless a court issues a gag order), the job is already half done.

When it was contended that imposing curbs upon election speeches violated the fundamental right to freedom of expression, the court held that laws governing elections formed a separate code in themselves, and the imposition of restrictions would not violate the Constitution. After all, reasonable restrictions can be levied in the larger interests of society and polity, the court said.

Weak links

Despite coming down heavily on the purveyors of hate, the court’s ruling suffers from two glaring lacunae.

One, because the bench refused to reconsider the ruling in the Hindutva case. In that case, a three-judge bench of the court had held that appeal for votes in the name of “Hindutva” would not be deemed as a corrupt practice. The court missed an opportunity to recognise that a vicious politico-religious ideology is also deeply linked with religion, and hence its dissemination for electoral gains also needed to be outlawed.

Two, the court should have issued appropriate directions to the EC regarding the implementation of its judgment. For example, every election campaign speech needs to be properly videographed and recorded, and the EC must make suitable infrastructural arrangements. But the court didn’t.

No judgment is perfect, and it’s the same case with the present one. But no one can doubt that it is the first step towards having an electoral system devoid of fissiparous and noxiously divisive methods and strategies.

Also read: SC order to ‘enhance secularism’ may end up undermining democracy