January 04, 2017

India: Editorial comments in Live Mint and Times of India Against the Supreme Court ruling against canvassing for votes on grounds of religion, caste is a sign of the dangerous times we live in

livemint.com - Jan 04 2017


Rewriting the rules of political engagement

The apex court’s decision against canvassing for votes on grounds of religion, caste, creed, community or language moves into tricky territory

The Supreme Court’s seven-judge bench decision that candidates can’t seek votes on grounds of religion, caste, creed, community or language seems, on the face of it, like a progressive step that could potentially rewrite the rules of engagement in Indian politics. India is a secular state and, the court argues, it is only in the fitness of things that religion and the like are kept out of the electoral process. But the reality of politics and the political economy is more nuanced than the judgement might indicate—evidenced by the fact that three of the seven judges dissented with the majority opinion. 

Technically, the relevant statute—Section 123 (3) of the Representation of People’s Act, 1951 (RP Act)—has been on the books for decades . It forbids “the appeal by a candidate...to vote or refrain from voting for any person on the ground of his (emphasis added) religion, race, caste, community or language...for the furtherance of the prospects of the election of that candidate...”. The “his” in this clause was understood thus far as a reference to the candidate.
Monday’s judgement has now expanded the interpretation to include the affiliations of the voter as well. It has read sub-section 3 with two other clauses: sub-section 3(A) under Section 123 of the RP Act and Section 153A of the Indian Penal Code, both of which deal with the promotion of feelings of enmity or hatred between different classes of citizens of India on grounds of religion, etc. The judges also traced legislative history to support their broad interpretation.
Justice Madan Lokur, who authored the majority opinion and wrote on behalf of Justice L. Nageswara Rao, opined that this broad interpretation was necessary to maintain “the purity of the electoral process” and ensure that it was not vitiated by “communalism, separatist and fissiparous tendencies”. Justice S.A. Bobde in his concurring but separate judgement made clear that since Parliament never intended for an appeal for votes on the grounds of religion, etc., to be permissible, it is immaterial whether “the appeal is made on the ground of the religion of the candidate, etc., or of the voter”. Chief Justice T.S. Thakur tilted the scales in favour of the “purposive interpretation” with a similar judgement, saying “an interpretation that will have the effect of removing the religion or religious considerations from the secular character of the State or state activity ought to be preferred over an interpretation which may allow such considerations to enter, effect or influence such activities”.
On the other side, Justice D.Y. Chandrachud, writing the dissenting opinion on behalf of himself, Justices U.U. Lalit and A.K. Goel, also marshalled historical and legislative evidence to prop up their view that Parliament did not intend the clause to extend to the voter—as such a blanket ban would prevent candidates from raising issues related to religion, etc.
These contesting viewpoints must be seen in the correct historical and political context. Religion-based politics has two major drawbacks. First, it often defaults to an oppositional narrative. And second, from an economic and governance standpoint, it is a powerful enough motivator to enable blanket community appeals that cut across economic fault lines. Such broadcasting can sometimes lead to blocs voting against their rational interests. Against the backdrop of Partition, and given the first drawback, the extant constitutional safeguards—such as the original interpretation of the RP Act’s relevant clause as well as the other clauses pertaining to promotion of enmity—are understandable.
But the majority opinion moves into trickier territory. Religion is an essential component of culture, and culture and economic growth do not exist independent of each other. Max Weber’s seminal The Protestant Ethic And The Spirit Of Capitalism is perhaps the first comprehensive work exploring this. It has been roundly criticized since, and with reason—it is simplistic and indulges in various leaps of logic. But its core thesis remains. Sociologist Peter Berger has pointed to the link between religion and economic development in Latin America. And Harvard researchers Robert Barro and Rachel McCleary have examined data from 59 countries spread over decades and found a correlation between economic growth and religious belief in developing economies.
Correlation is not causation, of course. None of the research provides definitive answers. But what it does do is point to the reality that religion, culture and development can often be intertwined. In an Indian context, there are socioeconomic issues specific to particular communities. For example, will campaigning for Dalit empowerment count as caste-based canvassing? This may have to be decided on a case-by-case basis but who will decide where to draw the line? Either way, the interpretation could potentially censor all mention of religion, etc. This, the dissenting judges warn, would “reduce democracy to an abstraction”. The dissenting judges also highlight that not only does the Constitution engage with the injustices suffered by various groups, it has allowed for these groups to rally around their religion, etc., to fight back against centuries of social oppression.
How the ruling addresses these issues remains to be seen, based on how it is implemented. The debate on the limits of free speech in politics is, patently, a messy one.

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The Times of India

Judicial overreach: Supreme Court’s ruling against identity politics is at odds with ground realities

January 4, 2017  TOI Editorials 
The Supreme Court judgment widening the scope of Section 123(3) of the Representation of the People Act which now prohibits the seeking of votes in the name of religion, caste, race, community or language by a candidate, his agent or anyone with his consent is well-intentioned. The order, which was passed by a seven judge Constitution bench through a four to three majority, also ruled that a candidate could be disqualified if an appeal was made by any religious leader to vote for the candidate with the latter’s consent. But the judgment fails to take into consideration the ground realities of identity politics. It will not achieve the intended impact on politics.
Political parties will find creative ways to circumvent the law. To be fair to all concerned, it is really difficult to wipe out identity politics through judicial mandate. No democracy in the world is free from identity politics of one form or another. We saw this recently in the US presidential elections where race was a pivotal electoral issue. We see this again in countries across Europe where the religion and ethnicity of migrants and refugees have been exercising voters. India with its tremendous diversity can’t be immune to this trend.
Besides, identity-based political movements as exemplified by the Dalit-centric BSP or the Tamil-based DMK aren’t negative in themselves. In fact, these political movements have helped sections of society that have felt marginalised highlight their grievances. This in turn has ensured their concerns are taken seriously within the framework of democratic electoral politics. Plus, there’s no denying that the plethora of regional political parties such as Telugu Desam Party, Naga People’s Front or Mizo National Front – all with an identity appeal – has actually broad based democracy in India.
In this context, it’s imperative to note the dissenting judgment delivered by three judges which states that despite the existence of the imperfect Section 123(3) of RPA for more than five decades, elections have been held successfully in India with routine changes of government. And such imperfections can’t be attended to by judicial redrafting of legislative provision. For, judicial overreach as seen in the apex court’s recent national anthem ruling can have the same effect as poorly drafted laws – diminishing the value of rules through frequent breaches.