Significantly, the Supreme Court recently in a path-breaking judgment ruled that no candidate contesting election can seek vote nor can he carry on his election campaign on the basis of caste, creed, color, language, religion and community etc. which are held to be corrupt practices under Section 123(3) of the Representation of the People Act-1951. The Supreme Court while disposing of a Public Interest litigation (PIl) in 1995 in a constitution bench of seven Judges had passed judgment that religion cannot be used in any manner in electoral politics as ‘State’ has nothing to do with the religion which is purely a personal affair of an individual.
Religion being a personal matter depends on the innate qualities of religious thinking of a man. This speaks in volume as to how in the name of religion and a particular religious faith, people went on rampage and demolished the Babri Masjid in 1992. Needless to say that Casteism and religious fanaticism have rocked the country in the past, making it divided for over a century. So it is felt necessary to divorce religion from State-craft. Religion was the dominating factor in politics and administration of the State as ‘Church’ was the controlling authority in western world. Gradually religion drifted away from administration across the globe which became purely the personal matter of the citizen.
There cannot be interference and intermingling of religion in politics. The relationship of a person with God and his religious feeling has nothing to do with politics and governance. He is at liberty to profess and practice any religion or embrace any religious faith and manage its religious affairs which have been provided in Artilce-25 to 28 of the constitution. The State has nothing to do in such matters.
In the recent judgment, the Supreme Court gave a dicta basing on the 1995 PIl judgment but the court took a different view with a new dimension. To make it more precise and clear, no candidate contesting the election can ask the voter to caste vote in his favor on the basis of religion, using the word ‘Hindutwa’ even though India is largely inhabited by people professing Hinduism. It is a fact that people professing other religious faith like Muslim, Christianity, Buddhism, Jainism and Parses are in minority.
In the 1995 judgment, the then CJI Justice JS Verma held that although ‘Hindutwa’ word cannot be used in election, the life style and psyche of every Indian is deeply influenced and dominated by the word ‘Hindutwa’. So ‘Hindutwa’ should not be confined to a narrow tunnel of religious faith and fervor. The ruling of justice Verma although was controversial at that time was appreciated in different quarters. Now the aforesaid judgment has been analyzed and reiterated in the recent judgment of the apex court on the question of democratic values to be observed by a candidate in the electoral politics and seeking vote from the electorate. Three judges gave dissenting views but in view of the majority ruling, it is made abundantly clear that caste, creed, color, religion, language and community/class/ethnic group, cannot be used in any manner in the electoral process.
Therefore, the recent judgment of the court will have far reaching effect. It is expected that it would bring about desired reforms in our electoral system. It is worthwhile to mention that the judgment of the Supreme Court has a binding effect on all other authorities inside the territory of India under Article – 141 of the Constitution. As per the Constitutional mandate, the ruling can be applied in all procedural matters relating to electioneering in accordance with the law laid down under the Representation of People’s Act-1951. Article - 144 directs that all executive and judicial authorities are bound to carry out the orders of the Supreme Court and to render all sorts of assistance to the court for its implementation. Therefore the judgment of the Supreme Court is a precedent or a judge-made-law like any other law made by the legislature which is bound to be obeyed by all authorities. Some jurists have opined that the direction of the apex court is ‘judicial over-reach’ but this is not an acceptable view because ‘judicial legislation’ is a part of ‘judicial review’. We have a democratic State where rule of law reigns supreme. Therefore the ‘State’ and its Election Commission is bound to implement the directions of the apex court in all matters and procedures relating to general elections to be held in the country from time to time.
In a democratic system of governance, a single vote of a voter is value-based which largely depends on his qualifications and his awareness to choose or reject the candidate. In the words of John Stewart Mill this is called ‘weightage suffrage’. In India, several general elections have been fought basing on caste, creed, color and language etc. and the political parties have prepared their election manifesto and plan of action basing on those factor one way or the other. Similarly some political parties are carrying on vote bank politics by using some areas under their control as their fortes.
This is apparent from the political activities of Jadav Community in Utter Pradesh, Jat Community in Rajasthan and Hariyana, Bhumihar group in Bihar and Akalidal in Punjab. Truth remains as it is. In India in all general elections, both for the Parliament and State Assemblies, money and muscle power are the dominating and deciding factors in wining an election.
Keeping all these aspects into consideration, time will prove the effect of the recent judgment of the Supreme Court in the matter of electoral politics and the reforms to be put in place by the Election Commission of India. All said and done, the Government of the day should rise to the occasion to implement the judgment of the apex court in letter and spirit. That is how our electoral process would be free to a large extent of eliminating ‘corrupt practices’ like playing the caste and communal card before and during election.
(Das is a former Special Judge, CBI and lives at 205, Sahid Nagar, Bhubaneswar-7, Mob: 9437022723)