It appears that one of the big issues in the five state poll exercise beginning February 4 for which the Election Commission raised the curtain on the first Wednesday of the new year, would be what is communal and what is secular. And accordingly, who will qualify (or condemned depending on which side of the fence you are on) to be declared “corrupt” under our election laws.
The issue has returned to the centre stage as the seven-member Constitution Bench’s verdict on certain aspects of the Representation of People’s Act also coincidentally came just a day before. If this issue of what is “communal” and what is “secular” gets thrashed out once and for all at least in the poll context, the storm that is set to blow in the next 6–10 weeks would still have done some good. So the verdict is welcome.
There is confusion because the full text of the Supreme Court’s verdict has not yet been made available. Notwithstanding this lag, the commentators have gone ahead, on the basis of newspaper reports, on what the verdict cup holds.
Briefly, the issue before the Constitution Bench was with regard to the interpretation of a specific reference to acts of “corruption” that would disqualify candidates in an election.
Section 123(3) of the Act forbids “the appeal by a candidate … to vote or refrain from voting for any person on the ground of his religion, race, caste, community or language or the use of, or appeal to religious symbols … for the furtherance of the prospects of the election of that candidate”.
The emphasis on the word “his” is to specify that this word in the law can have multiple interpretations and is the cause for the issue being referred to the Constitution Bench.
The traditional interpretation so far was that “his” refers to the candidate’s religion, race, caste, etc. But four judges belonging to the seven member Constitution Bench said the word “his” also refers to those of the voter. Two of them—Justices Madan B Lokur and L Nageshwara Rao—said that the broader interpretation was needed in the interests of “the purity of the electoral process”.
It is stated that the reading of a wider meaning to “his” religion, race, etc. to include not just those of the candidate concerned but that of the voter as well, is also in the context of Parliament making the use of religion impermissible. The broader view was supposedly in line with the intent behind the enactment of the Act.
Another view, that of the (then) Chief Justice T S Thakur, was that the “purposive interpretation” would prevent removing religion, race, etc. from the impermissibles list and thereby enable them to get into election campaigns and affect the basic secular nature of the polity.
The minority view of Justices Dhananjaya Y Chandrachud, Uday U Lalit and Adarsh Kumar Goel questioned the contention that the Parliament also wanted the exclusion of religious preferences of the voter from the impermissibles list. A blanket ban could shut out all discussions on issues related to religion, caste, etc. permanently from any democratic discussion.
The nuances in the arguments justifying the different views that the judges arrived at being so delicate, our own understanding of the verdicts would have to wait a full and comprehensive reading of the full text of the various judgments.
Meanwhile, there could be an apprehension that the verdict as a whole would not settle the issue raised originally and that the core question of what constitutes religion will only be raised again and again. It underlines the demand that the issue of secularism versus theocracy needs to be clarified beyond all doubt.
One school of thought has been contending that political slavery in the context of Indian history does include the 800 years of Islamic subjugation and rule over the local Hindus subjecting them to discriminatory taxation, compulsory conversion and interference in their religious affairs apart from wanton destruction of temples.
Explaining this view and calling for restitution of property is at once objected to by the secularists who see these events merely as what historic and most ethnic conquerors do to demonstrate their power. One political party, when in power, distributes regular salaries from government revenues to clerics of places where the minorities worship but objects to similar treatment to poor pujaris of hundreds of temples as communal.
All reforms to secure women’s rights are hailed by self-declared secularists as progressive. But when it comes to the same reforms being extended to women belonging to a minority community, it is condemned as interference in the religious rights of minorities.
The demolition of a masjid that was constructed on the spot where a temple was destroyed to build that very masjid is a “black deed”. But the original destruction of the temple is to be ignored as “unproven”, “religious frenzy that is best forgotten” and so on. Even polygamy is illegal for the large majority of people here. But one community insists that their religion permits multiple wives and that this demand be respected. In the name of secularism, groups of people are subjected to denial of secular and modern education.
If the Supreme Court verdict in the case helps initiate a soul-searching on true secularism, which would enable all communities to agree on the basics of secularism, it should do a great deal of good to the concept of secular India.
Balbir Punj
Former Rajya Sabha member and Delhi-based commentator on social and political issues
Email: punjbalbir@gmail.com