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SC Bans Using Religion, Caste in Elections by Paper-Thin Majority

The bench ruled that using identity politics to get votes while campaigning is a “corrupt” electoral practice. 

Updated
India
5 min read
The Supreme Court came to a historic discussion banning identity politics on Monday. Photo used for representative purposes only. (Photo: iStock)

A bench of seven judges of the Supreme Court ruled on 2 January that appeals to make use of religion during campaigning a “corrupt practice” in electoral politics. In a reminder of the infamous Kesavananda Bharti split, the bench was sharply divided. Three judges were in favour; three against.

Until the Chief Justice of India, TS Thakur, tipped the scales in the favour of this landmark judgement, tightening the noose around those politicians who use religion or caste as a plea to garner votes.

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The Context

The legal question before the bench listening to an appeal in Abhiram Singh v CD Commachen was a narrow one: how should the word “his” in Section 123(3) of the Representation of the People Act, 1951 (RPA) be interpreted? The clause deals with certain “corrupt” electoral processes, and this sub-section defines what a “corrupt” practice is:

“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 [...] for the furtherance of the prospects of the election of that candidate or for prejudicially affecting the election of any candidate.”

The bench had to decide whether this would come to include only the religion, race, caste, community or language of the candidate, or also that of the voter.

Justice Madan B Lokur and L Nageswara Rao delivered the majority opinion with Justice SA Bobde and Chief Justice TS Thakur delivering concurring, but separate opinions.

Justices DY Chandrachud, AK Goel and UU Lalit delivered the dissenting judgement.

Majority Opinion: Justices L Nageswara Rao and Madan Lokur

Justice Lokur penned the majority opinion on behalf of himself and Justice Rao, beginning by looking at the history of the provision and its amendments in the 60’s to underscore the intent or the spirit of the law, that is, to stave off “separatist tendencies”during a campaign.

An excerpt from the SC verdict in <i>Abhiram Singh v CD Commachen</i>. (Infographic: <b>The Quint</b>/Pallavi Prasad)
An excerpt from the SC verdict in Abhiram Singh v CD Commachen. (Infographic: The Quint/Pallavi Prasad)

He held that to maintain the “purity” of the electoral process, certain topics – such as religion, caste, language et cetera – were simply off-limits for politicians to garner or deflect votes; that it would be going “against public interest” to aid the candidate over the voter or the electorate in even the smallest way.

The majority opinion concluded that the section must be read to include any appeals by a candidate/his agent on the basis of his or the voter’s religion, caste, class et cetera, or appeals to not vote for another candidate on the basis of his religion, caste et cetera as “corrupt practices”.
An excerpt from the SC verdict in <i>Abhiram Singh v C D Commachen</i>. (Infographic: <b>The Quint</b>/Pallavi Prasad)
An excerpt from the SC verdict in Abhiram Singh v C D Commachen. (Infographic: The Quint/Pallavi Prasad)
The Possible Consequences?
Theoretically, this law can be used to ban several parties, such as Indian Muslim League, All India Majlis-e-Ittehad-ul Muslimeen, for being guilty simply by nomenclature; All-India Anna Dravida Munnetra Kazhagam (AIADMK) and the Dravida Munnetra Kazhagam (DMK) for appealing to the race of “Dravidians”, or even the Telugu Desam Party for identifying with a language. 
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Concurring Opinion: CJI TS Thakur and Justice SA Bobde

Justice Bobde delivered a concurring yet separate judgement.

However, it was the significant vote of outgoing Chief Justice of India TS Thakur that tipped the scales in favour of a purposive reading of the act. For him, even if both readings of “him” are correct, he would rather choose the interpretation more in tune with the intention of the original act and the secular foundations of our democracy. For him, no divisive parameters can be allowed to play any role in the State or its activities.

An excerpt from the SC verdict in <i>Abhiram Singh v CD Commachen</i>. (Infographic: <b>The Quint</b>/Pallavi Prasad)
An excerpt from the SC verdict in Abhiram Singh v CD Commachen. (Infographic: The Quint/Pallavi Prasad)
BJP, Shiv Sena Come Out Unscathed?
The bench categorically refused to entertain a review of the SC’s 1995 judgement declaring Hindutva or Hinduism as a way of life and not a religion – leaving many Hindu political parties out of the scope of this act. 

Dissenting Opinion: Justices DY Chandrachud, UU Lalit and AK Goel

Justice Chandrachud authored the strongly dissenting opinion on behalf of Justices Lalit and Goel, looking at the legislative history and intent of the provision very differently from his colleagues.

An excerpt from the SC verdict in <i>Abhiram Singh v CD Commachen</i>. (Infographic: <b>The Quint</b>/Pallavi Prasad)
An excerpt from the SC verdict in Abhiram Singh v CD Commachen. (Infographic: The Quint/Pallavi Prasad)

For him, the framers of the law intentionally meant to deal only with the religion of the candidate and not the voter, by even going so far as using statements, such as “I am Hindu, vote for me”, as demonstrative examples back then. According to him, voters are entitled to shine a torch on the deep fissures that historically exist in our society and vote on the basis of their lived experiences.

The Constitution is not oblivious to the history of discrimination against and the deprivation inflicted upon large segments of the population based on religion, caste and language. Religion, caste and language are as much a symbol of social discrimination imposed on large segments of our society on the basis of immutable characteristics as they are of a social mobilisation to answer centuries of injustice. 
Excerpt from Justice Chandrachud’s judgement

Can the efforts of Mayawati – as she rose in polity by appealing to the Dalit sentiment of centuries of oppression, desperate for economic and social prosperity – be called “corrupt”? Can Ambedkar’s rallying call for the All India Scheduled Castes Federation in the 50’s be seen as electoral malpractice?

Chandrachud points to how it is necessary to allow electoral candidates the space to discuss and debate about genuine concerns of the people about the discrimination they face on the basis of religion, caste, language et cetera – such speech is “constitutionally protected” and identity politics has always been necessary for mobilising people to bring about a social change.

An excerpt from the SC verdict in <i>Abhiram Singh v CD Commachen</i>. (Infographic: <b>The Quint</b>/Pallavi Prasad)
An excerpt from the SC verdict in Abhiram Singh v CD Commachen. (Infographic: The Quint/Pallavi Prasad)
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What do you think about the Supreme Court’s verdict? Does identity politics lead to fissures and biased elections or social movements and change? Is this judgement a nod to our sacred principle of secularism or against the fundamental right to free speech and expression?

Let us know your opinion (max: 100 words) in the comments below or emails us at editor@thequint.com.

(At The Quint, we are answerable only to our audience. Play an active role in shaping our journalism by becoming a member. Because the truth is worth it.)

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