BJP has often used religious symbols in its campaign
BJP has often used religious symbols in its campaign

India’s top court has banned the use of religion and caste in political activities in the run-up to state polls, where such affiliations often determine the fate of campaigns. Most political parties select candidates in various districts based on caste and religious considerations. Monday’s Supreme Court ruling warned politicians who disqualify election candidates based on these two factors.

The court ruling said: “Religion has no role in electoral process which is a secular activity. Mixing state with religion is not constitutionally permissible.”

The ruling came in response to a wave of petitions and a plea that dates back to 1990, as politicians has allegedly used religion and caste as a tool to garner votes and thrive to power.

An election won by soliciting votes along the lines of identity politics could be considered corrupt practice and the result set aside, the court said. The dissenting judgment accused the majority justices of overreach and “judicial redrafting of the law”.

The ruling casts uncertainty over five upcoming elections in states where religion and caste have traditionally helped drive voters to the polls. However, some experts expressed scepticism about whether it could be enforced. “If this judgment is taken literally, then pretty much every single party in India could be disqualified,” said Ashok Malik, a fellow at the Delhi-based Observer Research Foundation.

Indian voters, especially outside big cities, have historically been organised into “vote-banks” along religious, caste and language blocs, divisions the country’s founders considered an essential component of managing power in such an intricately diverse nation.

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India’s prime minister, Narendra Modi, belongs to a party that is explicitly Hindu in character, while other parties exist to further the interests of, among others, India’s Muslims population as well as members of socially disempowered Dalit caste.

Malik said appeals to religion or caste were too deeply ingrained in Indian politics to be eradicated by a court order

“Identity is intrinsic to human society and there is political mobilisation all over the world that takes place along these lines,” he said.

“You can’t ban identity … A sweeping ban on the use of identity for political mobilisation is going to be unimplementable.”

Malik predicted the decision might initially lead to parties bringing complaints and legal cases against another. But they would soon realise they were “locked into mutually assured destruction”, he said. “Then everyone will just ignore it.”

PV Dinesh, a supreme court advocate, said the slow pace of India’s judicial system might also complicate the way the law was implemented. “If an election takes places today, and you’re questioning whether it involved corrupt practice, that whole court process will more than than six or seven years,” he said. “But elected terms, at the federal and municipal levels, are themselves only five years long.”

But he foresaw that politicians would find themselves caught in the net of the new guidelines. “If the general impression of the court is that they are soliciting votes in the name of religion, definitely that will be enforceable,” he said.

Monday’s decision was broadly welcomed by political leaders but members of some sectarian parties expressed reservations. “It is a welcome move but the thing is that, as a party, if I am representing a community, I will ask for votes,” said Imtiaz Jaleel, a member of the All India Majlis-e-It-tehadul Muslimeen, a party representing Muslim Indians.

“So, if I say development in Muslims areas, and girls need to get education, will it tantamount to breach of law? Will [saying] Muslims should be given reservation or Marathas asking for reservation be a breach?”

Reservations, or affirmative-action quotas, are enshrined in India’s constitution for people from less socially powerful caste groups, but have been increasingly challenged by traditionally powerful segments of the community who argue they no longer reflect the distribution of power and wealth in India.

It’s going to complicate politics. Bharatiya Janata Party (BJP) has for years fought elections on a Hindu nationalist agenda, with party members in the past being accused of making anti-Muslim statements to polarise Hindu voters.

Parties like the BSP often appeal on the basis on caste
Parties like the BSP often appeal on the basis on caste

Uttar Pradesh’s politics are embedded in a complex caste calculus which often dictate alliances and campaigns. Hours after the court verdict, the PM, speaking to an audience of lakhs in Lucknow, said “there may have been a time when castes were important, you all have endured the politics of caste and religion. I appeal to you all to rise above this and vote for progress and development.”

State elections are also due this year for Punjab, Uttarakhand, Goa and Manipur.

The Supreme Court, ruling on a petition filed by a politician in 1996, wrote in its opinion that the secular ethos of the constitution had to be protected.

In a related development, ahead of crucial upcoming Assembly polls in five states, the Supreme Court on Wednesday said it would “soon constitute” a five-judge bench to decide questions like whether people facing trial in serious crime cases can be allowed to contest and at which stage of trial, a lawmaker would stand disqualified.

“We must clarify this matter so that people know the law by next election,” a bench headed by Chief Justice J S Khehar said while considering the submission that these issues needed to be decided at the earliest as many “dreaded criminals”, against whom charges have been framed by courts in serious cases, are planning to contest upcoming Assembly polls.

“We will soon constitute a Constitution bench to decide these issues,” the bench, also comprising Justices N V Ramana and D Y Chandrachud, said.

Senior advocate Vikas Singh, appearing for lawyer and Delhi BJP spokesperson Ashwini Kumar Upadhyay, mentioned the PIL on the issue for urgent hearing on grounds including that many people, facing trial in serious cases, may contest and win elections and hence the legal questions needed to be settled.

During the brief meintioning, the bench also said, “We cannot give an immediate answer to these questions since there is fear of lodging false cases in elections.”

A threejudge bench had on March 8 last year, referred various PILs including the one filed by Upadhyay to the CJI saying the questions like can a lawmaker, facing criminal trial, be disqualified at conviction stage or at the framing of charge in a case have to be decided by a larger bench.

At present, a person, convicted in a serious criminal case, is barred from contesting polls and a lawmaker stands disqualified in the event of conviction. The questions, raised in the petitions, also include whether a person against whom charges are framed be permitted to contest elections. Singh told the bench that the ban on contesting polls is not sought against those who are facing charges in petty offences.

Besides Upadhyay, former Chief Election Commissioner J M Lyngdoh and NGO ‘Public Interest Foundation’ had filed PILs raising similar issues. The pleas were referred to the larger bench which is yet to be set up.