Will SC Verdict on Secularism Curb Electoral Hate Speech?

Ever since the 1990s, communal and casteist propaganda and hate-speech has become a staple of election propaganda, poisoning political discourse deeply. Section 123 of the Representation of People’s Act, 1951 (Act) lays down that appeals by candidates for votes on the grounds of religion, race, caste, community or language or the use of, or appeal to religious symbols amount to “corrupt practices.” But the interpretation of this Section by various Courts has remained mired in confusions, helping politicians leap the legal hurdle posed by the RPA. After all, we have seen how appeals for votes based on a Ram Temple – undeniably a religious symbol – have not faced any serious legal hurdles, helping to catapult the BJP into the status of a major national party.

One of the key interpretations that had smoothed the way for communal propaganda in elections was the Supreme Court judgment of 1995 that held that “Hindutva or Hinduism is a way of life of the people in the sub-continent” and that therefore appeals by Shiv Sena to Hindutva for votes did not amount to corrupt practice. That judgement, by a Bench headed by Justice JS Verma, had held that “a mere statement that the first Hindu State will be established in Maharashtra is by itself not an appeal for votes on the ground of his religion but the expression, at best, of such a hope. However, despicable be such a statement, it cannot be said to amount to an appeal for votes on the ground of his religion.” It had moreover held that the fact that the plank of a political party was the establishment of a Hindu Rashtra (Hindu State) did not amount to corrupt practice since the RPA applied to candidates not to parties.

The Constitution Bench of the Supreme Court recently delivered a judgement that was expected to clarify the issues once and for all. On January 2, 2017, a majority 4:3 verdict of this Bench was delivered, that did go some distance towards clarifying certain issues. But there are doubts as to whether the judgement has gone far enough to uphold secularism and democracy in its true spirit.

The Bench stopped short of directly revisiting or overturning the 1995 ‘Hindutva is a way of life’ judgement but it nevertheless did erode some of the main contentions of that judgement. The main issue examined by the Bench was how to interpret the phrase “his religion” in Section 3 of the RPA: would it apply only to the religion of one of the candidates, or would it also apply to any third party (say a party leader or religious figure) who sought votes for the candidate on the grounds of religion? Indira Jaising observes that “The issue was seminal since the Supreme Court itself, in previous judgments, has held, for example, that only appeals based on “his religion” — that is the religion of the candidate, including the rival candidate — would amount to corrupt practice (Prabhoo case: 1996 (1) SCC 130). The absurd consequence of such an interpretation would be that the candidate could not make such an appeal but a party leader could at his election rally. Apart from the absurd consequence that would follow, the critical issue was this would leave political parties free to canvass for a theocratic state through their manifestos and election speeches. Using a purposive interpretation, the majority held that the expression “his religion” refers to the religion of “(i) any candidate or (ii) his agent or (iii) any other person making the appeal with the consent of the candidate or (iv) the elector” and this interpretation is in consonance with the purpose of the Act that is “maintaining the purity of the electoral process and not vitiating it”. Former chief justice, T.S. Thakur, went a step further and justified the purposive interpretation in the secular framework of India that acts as a limitation on free political speech when he noted that in interpreting Section 123 (3) of the Act “which one of the two interpretations ought to be preferred by the Court keeping in view the constitutional ethos and the secular character of our polity.”” By holding that the candidates as well as leaders of their political parties are bound by the constitutional ethos implies that unlike the 1995 judgement, this verdict holds it to be corrupt practice for a party leader or a candidate to promise a Hindu State that goes against the country’s secular constitution.

The minority opinion of the Bench expressed the concern that such a broad interpretation might outlaw references to social discrimination during elections: “To hold that a person who seeks to contest an election is prohibited from speaking of the legitimate concerns of citizens that the injustices faced by them on the basis of traits having an origin in religion, race, caste, community or language would be remedied is to reduce democracy to an abstraction….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 injustices. …Electoral politics in a democratic polity is about mobilisation. Social mobilisation is an integral element of the search for authority and legitimacy.”

Will the SC verdict really outlaw electoral references to social injustices? Ms Jaising opines that it would not do so: “The majority judgment nowhere suggested that all references in electoral speeches to religion or caste etc would amount to a ‘corrupt practice.’ In fact, during the arguments it was specifically suggested that if the appeal was intended to correct a historical or constitutional wrong or was intended to preserve and protect fundamental entitlements under the Indian Constitution, it would not be a corrupt practice.”

It is true that these arguments were effectively made before the Bench – but the fact that the Bench failed to specifically address the arguments and remained silent on such a key issue, means that grounds will remain for mischievous attempts to accuse and penalize candidates for addressing issues of caste and communal discrimination.

The proof of the pudding will be in the eating. The real issue that remains to be seen is whether the Election Commission and Courts will be alert and conscientious enough to take action against candidates and party campaigners who seek to undermine the secular Constitution by seeking votes through promises of a Hindu State, or through instigating prejudice and hatred against other communities or faiths.

Moreover, it remains to be seen if the Courts and EC will be more alert and effective in acting against ‘dog-whistle’ politics: i.e speeches that technically make no references to religion but slyly use coded references that instigate communal hatred. Siddharth Varadarajan observed how in the 2014 parliamentary election campaign, Modi used dog-whistle politics: “to avoid falling foul of the ban on appealing to people on the basis of religion, Modi has been careful to use an elliptical, coded vocabulary involving “refugees”, “infiltration” and “votebanks”. These are words whose real meaning is well understood by his target audiences, especially in eastern India, but which also allow him to circumvent any action the Election Commission might take against him.

“The same is true of the label ‘base of terrorists’ that Amit Shah used for Azamgarh, Uttar Pradesh in order to accuse the Samajwadi Party of playing ‘votebank’ politics with Muslims.

“In the United States, the use of code words by candidates peddling racial fears is known as ‘dog whistle politics’ – referencing the kind of ultrasonic whistle that dogs can hear but not people.”

Will our watchdogs – the EC and Courts – be more alert to catch and stop communal appeals and dog-whistle politics? Their readiness will be tested in the upcoming Assembly polls. 