Warisha Farasat is a lawyer in Delhi and co-author of “Splintered Justice: Living the Horror of Mass Communal Violence in Bhagalpur and Gujarat.”
UPDATED JANUARY 9, 2017, 7:08 PM
It is clear that the aim of the Indian Supreme Court in its recent ruling to prevent political parties from invoking religion, caste or language for electoral gains was to eliminate a protracted problem that is eating into the vitals of India’s democratic system and pluralistic secular fabric. The court’s broad based solution, however, will add to the problem rather than help address it. In fact, the majoritarian forces, who have made use of sectarianism and religion to foment violence and win elections, will be the only parties that won’t be affected by this ruling.
Years ago, the court called Hinduism a way of life of the people of India. The current ruling could protect those who use it as an appeal.
In a judgment in 1995, the Supreme Court had termed Hindutva, the philosophy of Hinduism, as a way of life of the people of India. Last week’s judgment didn’t revisit the earlier ruling to clarify whether calls for votes in the name of majority Hinduism and Hindutva would be categorized as “use of, or appeal to religion.” And as the previous judgment wasn’t revoked, there is a real danger that the current ruling would be used solely against political parties set up to fight discrimination against religious, caste and linguistic minorities rather than those who actively seek to unify voters using Hindu religious symbols.
For instance, before every election appeal by the ruling Hindu nationalist party, Bharatiya Janata Party, revives its appeal to build a Hindu temple on the site of a mosque in Ayodhya,Uttar Pradesh, that was destroyed by Hindu extremists who claim it was the birthplace of the god Ram. The 1995 decision could allow the Hindu right to circumvent the latest ruling by promoting the Ram Temple a heritage project.
On the other hand, any reference made to the infamous anti-Muslim riots in Muzaffarnagar in Uttar Pradesh province in 2013, or the lynching of a Muslim man by a Hindu mob on the suspicion, though misplaced, that he stored beef in the refrigerator inside his home in 2015 or speaking for an end to the historical wrongs done to lower castes Dalits (for example Bahujan Samaj Party, an influential political party in Uttar Pradesh champions the cause of Dalits) and other socially, economically and politically marginalized communities, may be wrongly penalized.
Therefore, this judgment has also put further restrictions on the right to free speech especially because issues related to social justice like the fight to end discrimination against Dalits and the persecution of Muslim minority raised by a political party during elections, if not worded properly, can be easily brought within the ampit of corrupt practice.
This criticism of the judgment was, in fact, part of the dissent recorded by three judges among the seven-judge bench. These three judges said the “Electors however, may have and in fact do have a legitimate expectation that the discrimination and deprivation which they may have suffered in the past (and which many continue to suffer) on the basis of their religion, caste, or language should be remedied.” They too, however, avoided dealing with the main flaw at the center of this judgment – unless all religions and communities are put at par, and implemented uniformly, this law won’t serve its intended purpose.