Indian Supreme Court Prevents Campaigning on Caste and Religion

By Steve Ragatzki

According to Mahatma Gandhi, “[c]aste has nothing to do with religion. It is a custom whose origin I do not know and do not need to know for the satisfaction of my spiritual hunger.”[1] The Indian caste system divides Hindus into groups based on karma (work) and dharma (duty).[2] Upper and lower castes are segregated, including separate water wells, separate food and drink, and separate marriages.[3] Although the caste system is often characterized as unjust and oppressive, some low-caste Indians have held prestigious positions in the country’s government.[4]

The Indian government has been fraught with human rights violations against lower-caste individuals. From 1994 to 1996, 100,000 incidents of abuse against low-caste people were reported.[5] In 2007, the U.N. Committee on the Elimination of Racial Discrimination found ““reports of arbitrary arrest, torture and extrajudicial killings of members of scheduled castes and scheduled tribes by the police, and about the frequent failure to protect these groups against acts of communal violence.”[6] It has gotten to the point that human rights watchdogs and activist groups must be intentional about whom they send to investigate—many will not send anyone besides the Director General for fear of bribes of lower officials.[7]

Despite these abuses, the Representation of the People Act prevents candidates for elected office from campaigning on caste or religious groups. Section 123(3) of the Representation of the People Act defines as a corrupt practice:

The appeal by a candidate or his agent or by any other person with the consent of a candidate or his election agent to vote or refrain from voting for any person on the ground of his religion, race, caste, community or language or the use of, or appeal to religious symbols or the use of, or appeal to, national symbols, such as the national flag or the national emblem, for the furtherance of the prospects of the election of that candidate or for prejudicially affecting the election of any candidate.[8]

However, § 123(3) has been previously interpreted narrowly by the Indian Supreme Court in the Hindutva cases.

The Hindutva Cases

The Hindutva movement is the idea that Hinduism is a nation and race indigenous to India, not merely a religion.[9] However, in 1995, a series of cases known as the Hindutva cases signified the judicial approach to secularism.[10] The Hindutva cases were a series of challenges arising under § 123(3) of the Representation of the People Act to the election of right-wing officials to the state legislature on the grounds that the Hindutva was invoked during campaign speeches.[11] Candidates invoked the Hindutva and criticized Muslim minorities, arguing that the Indian constitution and other laws gave the Muslim minorities special treatment.[12] Specifically, the candidates criticized separate personal status laws regarding familial and domestic relations and other provisions granting special status under the Indian constitution in the Muslim dominated states of Jammu and Kashmir.[13]

While the Court held that the candidates appealed to religion in an unconstitutional attempt to gain votes, it held that the Hindutva was merely a “way of life of people of the subcontinent” instead of a broader hostile attitude against non-Hindus.[14] The underpinning of the Court’s decision surrounded the message of secularism rooted in violations of the right to equality, [15] and “election speeches that referred to religion during the course of the election campaigns with a secular stance that alleged discrimination against any religion and promising to remove that imbalance was consistent with secularism and outside the purview of section 123(3).”[16] The speeches did not include a specific appeal to vote for a candidate on the basis of the candidate’s religion, so the speeches did not fall under § 123(3).[17] Therefore, the Hindutva cases allowed candidates to criticize the “pseudo-secularism” of political opponents as long as they were pointing out discrimination against Hindus.[18]

Religion, Caste No Longer Allows

The January 2, 2017 decision by the Indian Supreme Court is a break from the Hindutva cases from the mid-1990s and will have a large impact on the assembly elections in Uttar Pradesh, Punjab, and Gujarat in 2017.[19] In Abhiram Singh v. C.D. Commachen, the Indian Supreme Court held that violations of § 123(3) would “void the election of the candidate committing the corrupt practice” to “maintain the sanctity of the democratic process and to avoid vitiating the secular atmosphere of democratic life.”[20] After examining the legislative history of § 123(3), the Court concluded that a corrupt practice is

any appeal made to an elector by a candidate or his agent or by any other person with the consent of a candidate or his election agent to vote or refrain from voting for the furtherance of the prospects of the election of that candidate or for prejudicially affecting the election of any candidate on the ground of the religion, race, caste, community or language 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.[21]

Another Justice summed up the decision thusly

An appeal in the name of religion, race, caste, community or language is impermissible under the Representation of the People Act, 1951 and would constitute a corrupt practice sufficient to annul the election in which such an appeal was made regardless whether the appeal was in the name of the candidate’s religion or the religion of the election agent or that of the opponent or that of the voter’s. The sum total of Section 123 (3) even after amendment is that an appeal in the name of religion, race, caste, community or language is forbidden even when the appeal may not be in the name of the religion, race, caste, community or language of the candidate for whom it has been made. So interpreted religion, race, caste, community or language would not be allowed to play any role in the electoral process and should an appeal be made on any of those considerations, the same would constitute a corrupt practice.[22]

Therefore, it appears that the Hindutva decisions have been overruled, and now candidates may no longer campaign based on religious or caste platforms.

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[1] M.K. Ghandi, A Rejoinder from M.K. Ghandi, in social and religious reform: the hindus of british india 199, 200 (Amiya Pisen ed., 2003)

[2] What is India’s caste system, BBC News (Feb. 26, 2016), http://www.bbc.com/news/world-asia-india-35650616.

[3] Id.

[4] Id.

[5] human Rights Watch, Broken People: Caste Violence Against India’s

“Untouchables” 8 (1999).

[6] U.N. Comm. on the Elimination of Racial Discrimination [CERD], Consideration of Reports Submitted by States Parties Under Art. 9 of the Convention: Concluding Observations of CERD: India, ¶ 14, U.N. Doc. CERD/C/IND/CO/19 (May 5, 2007).

[7] Jeremy Sarkin and Mark Koening, Ending Caste Discrimination in India: Human Rights and the Responsibility to Protect (R2P) Individuals and Groups from Discrimination at the Domestic and International Levels, 41 Geo. Wash. Int’l L. Rev. 541, 551 (2010).

[8] The Representation of the People Act, No. 43 of 1951, INDIA CODE (1951), § 123(3).

[9] Ratna Kapu, The “Ayodhya” Case: Hindu Majoritarianism and the Right to Religious Liberty, 29 Md. J. Int’l L. 305, 311 (2014).

[10] Id. at 326.

[11] Id.

[12] Id.

[13] Id.

[14] Prabhoo v. Kunte, A.I.R. 1996 S.C. 1113, 1119–20, 1123 (India).

[15] Id. at 1132.

[16] Kapu, supra note 9, at 327.

[17] A.I.R. 1996 S.C. at 1132.

[18] Id.

[19] Utkarsh Anand, Can’t seek votes in name of religion, caste: Supreme Court, Indian Express (Jan. 3, 2017 2:49 PM), http://indianexpress.com/article/india/cant-seek-votes-in-name-of-religion-caste-supreme-court-4456135/.