Most secular states and advanced democracies of the world have clearly indicated that the use of religion for electoral gains cannot be countenced. Obviously, there was a need to ensure this in the world’s largest democracy which also makes a claim to be a secular state. This age-old issue has come to the fore once again with the Supreme Court asking whether anyone could raise the issue of deaths along the border and seek votes for a particular party. The Supreme Court recently asserted that it had the right to decide on what constituted exploitation of religion for electoral gain since “Parliament has not done anything in the last 20 years” just as it has dragged its feet on the issue of sexual harassment for years. The apex court also wondered whether the law allowed appeals related to religious issues, such as the construction of a “Ram mandir” in order to win elections. The apex court appears to have been prodded into considering this matter when a seven-judge Constitution Bench started looking into what amounts to the invocation of religion while canvassing for votes.
Going by the existing laws, Section 123(3A) of the Representation of the People Act, 1951, prohibits the use of religion for electoral gain. However, it does not spell out what exactly amounts to such electoral misuse of religion. The Constitution Bench of the Supreme Court is now trying to settle this matter. The question arose when the Constitution Bench of the Supreme Court referred to “tiol symbols” and the “tiol emblem” in Section 123(3). The bench headed by Chief Justice of India TS Thakur wanted to know whether political parties can be permitted to seek votes on the ground of tiol flag and tiol emblem saying that people were dying on the borders and so people should vote for a particular party. Senior advocate Shyam Divan, representing veteran BJP politician Sundarlal Patwa, contended that such misuse of the tiol flag and tiol emblem were specifically proscribed under this provision.
It is worth noting that the seven-judge bench had been formed after two three-judge benches had given conflicting judgements in the 1990s on whether invoking “Hindutva” or “Hinduism” amounted to exploitation of religious sentiments. One bench had gone to the extent of saying that Hinduism was a way of life rather than a religion, and so its invocation in poll campaigns did not violate the law. The other bench had differed. The cases related to electoral disputes in Maharashtra and Madhya Pradesh and involved, among others, Sundarlal Patwa. A bunch of similar petitions relating to subsequent elections have been made part of the current hearing. The court turally rejected a plea from senior counsel Divan to toss to Parliament the question of what constitutes the misuse of religion. This is hardly surprising, considering that Parliament had taken years to ect a law to prevent sexual harassment at workplaces despite the apex court laying down guidelines in the Vishakha case in 1997. The seven-judge bench noted that even the present case had been pending before the apex court since 1997 but Parliament had not deemed it necessary to clarify its position. “Parliament has not done anything in the last 20 years that this reference was pending. They did not do anything about sexual harassment for years,” the learned bench said. The court, however, said it would not venture into the subject of what constitutes a religion. “It is difficult to define religion. There will be no end to this,” the bench said.
Perhaps the Supreme Court itself has provided the answer as to why Parliament had done nothing during the last 20 years to decide on what constitutes religion. If it is difficult for the Supreme Court to define religion, it should be even more so for our lawmakers who are not as well educated as judges of the Supreme Court. Besides, since our parliamentarians are elected leaders it is to the advantage of most of them not to provide categorical answers on what constitutes exploitation of religion for electoral gains. After all, our politicians are the foremost beneficiaries of such confusion in the minds of the people and the courts of justice.