When the framers of our Constitution structured us as a secular, socialist republic, perhaps they did they imagine that the countryside would be one day overrun by katta-wielding gaurakshaks and aggressive born-again ultra-right majoritarian Hindu storm troopers. Very likely, they also did not imagine that our apex judicial institution would be compelled to rule on moral questions of good and evil. We are a society where it's okay to go about naked with ash in your hair, smoke dope for Shiva's sake and not do a day's work. It is just as okay to believe in no God and never visit a temple. How is it then that the Supreme Court needed to observe that to seek votes in the name of religion was 'evil'?
Blame it on Teesta Setalvad! She was trying to get the court to review the 1995 Hindutva judgment which defined Hinduism as 'a way of life' and not a religion. This matters because Section 123(3) of the Representation of People's Act 1951 holds that an "appeal by a candidate…to vote or refrain from voting for any person on the ground of his religion….or the use of, or appeal to religious symbols…" is a corrupt practice. Agreeing to hear the issue afresh was no surprise because India has a long history of litigation over such electoral malpractices.
The story begins back in 1960 when a candidate in Jharkand distributed leaflets using the symbol of a cock commonly used by the tribal Ho people as a
sacrifice to their pagan gods. The leaflet threatened people with dire divine consequences if they forgot the cock! Was this a corrupt practice? In Shubhnath Deogram vs. Ram Narain Prasad [AIR 1960 SC 148], the court ruled that it is illegal to accuse those who do not vote for the cock of being irreligious.
Clearly, this aggressive pro-secular interpretation of the law pleased no one because a larger five-judge bench was asked to rule again on this issue in
Jagdev Singh Sidhanti vs. Pratap Singh Daulta [AIR 1965 SC 183]. Was it corrupt for a candidate to use a flag with 'Om' written on it at election meetings? No, said the Supreme Court, while going the other way. It ruled that there is a distinction between a religious symbol and a symbol bearing high religious efficacy!. Clearly, a chicken could go where an Om could not, and it set a new trend by which courts declined to get caught up in semantic fine points about what was or was not an appeal to religion. Judicial reluctance to get caught up in religious soapbox oratory then became the order of the day.
Thus, in Kultar Singh vs. Mukhtiar Singh [AIR 1965 SC 141], the candidate printed posters extolling voters to keep high the honour of the 'Panth' by defeating those opposing the Akali Dal. The Supreme Court ruled that the use of the word 'panth' did not signify the Sikh religion. In Ramanbhai Ashabhai Patel vs. Dabhi Ajitkumar Fulsinji [AIR 1965 SC 669], the candidate distributed leaflets using the 'Dhruv Tara' (pole star) as a symbol. The Supreme Court ruled that the pole star was not a religious symbol. There are any numbers of other cases in this genre.
On the other hand, when it came to direct appeals to religion, the court was equally forthright about the law. In Ziyauddin Burhanuddin Bukhari vs.
Brijmohan Ramdass Mehra [(1976)2 SCC 17], a candidate asked his electorate to vote for him since he alone stood for all that was Muslim, while his opponent was neither a good Hindu nor a true Muslim. The Supreme Court ruled that a direct attack of a personal character upon the competence of rival on the grounds of religion amounts to contravention of Section 123 (3) of R.P. Act. Similarly, in Harcharan Singh vs. S. Sajjan Singh [(1985)1SCC370], a candidate appealed for votes on the ground that the Akal Takht had issued a 'hukumnama' in his favour.
The Supreme Court ruled this as a corrupt practice. Similarly, when the late great N.T. Rama Rao had himself photographed as an incardination of Lord Vishnu and asked the electorate to vote in his candidates for prosperity, the Supreme Court ruled this a corrupt practice in M. Venkatha Krishan Rao vs. B. Trinatha Reddy [1993(2)ALT41].
Then it all changed again when Hindu majoritarian parties pushed to claim space in India's political mainstream the mid-nineties. The 1996 Hindutva judgements arose because 12 politicians, including Bal Thackeray and Manohar Joshi, made fiery speeches to ask for votes in the name of Hindutva. In Dr. Ramesh Prabhoo v/s. Prabhakar Kashinath Kunte [(1996)1SCC130], the Supreme Court took the view that no precise meaning can be ascribed to 'Hindu', 'Hindutva' and 'Hinduism'. Ordinarily, it ruled, Hindutva is understood as a way of life or a state of mind. It cannot be equated with religious Hindu fundamentalism and can well be seen as an appeal to 'Indianisation'.
In the result, it came to be that Hindutva wasn't in law about Hinduism at all!
This changed again last week. In Abhiram Singh v/s C.D. Commachen (Civil Appeal No. 8339 of 1995 decided on 02.01.2017), the Supreme Court refused to get into the question of whether Hindutva is or is not a religion but ruled that elections are above all a 'secular exercise' while the relationship between man and god is an 'individual exercise'. It held that seeking votes in the name of religion is a corrupt practice, regardless who's religion was being appealed to.
You could of course argue that judgments are nothing but reflections of the zeitgeist, the spirit of the times. You could tell yourself that courts don't shape nations: like politicians, they are mirrors reflecting composite social beliefs. There is merit in this. The real difficulty with laws that invite courts to rule on moral and spiritual matters is the intractable obscurity of the underlying issues. After all, what is religion? Many academics would define religion as a system of belief in one or more supernatural omnipotent deities, who prescribe a moral code by which humans must live, and judge our action at some point after our death. Every element of this definition is contestable of course. Neither Buddhism nor Jainism have presiding supernatural omnipotent deities. Hinduism has no judgment date or damnation to follow; only a balance sheet which simply kicks you back to earth if your karmas suck.
I would argue instead that religion is an attempt to find a design to the universe: to understand the cosmic law which brings order and 'meaning' to our lives. Even though God has died in the scientific age, our need for order and meaning has not. Humanism, the new religion of the modern age, states that we are all free individuals to which inalienable 'rights' are attached. Humanism argues that humans are intrinsically valuable and our experience of life gives meaning to the universe. This is the basis for democracy as a political institution of choice. This is also the basis for 'human rights' (as opposed to cockroach rights). This is also the premise for our new-found obsession with subjective experience as the basis of morality. If it feels good, it is good. Divorce is okay because my experience of marriage is supreme, not the promises I made a very long time ago to some priest mouthing mumbo-jumbo around a fire in an archaic language.
If you follow the argument, you can immediately see that market capitalism and communism are new-age religions. Communism was a religion in which the Party (in China's case, Mao himself) claimed omnipotence, morality was prescribed by workers' unions, and the purpose of life was prescribed in a political doctrine (in China, the Red Book). Contrary to what school textbooks in my time argued, Medieval Christianity, or Islam, did not 'meddle' a great deal in politics: it is that when you establish a supreme source for existence, all human experience and organisation - even acceptable political choices - are dictated by that supreme source.
This makes the business of ruling on moral, spiritual and religious issues an incredibly hazardous one. India is a multi-religious, multi-ethnic, multi-lingual, multi-racial society with aboriginal tribes too. One size does not fit all, and many sizes have no supreme supernatural 'God' in the recipe. If that wasn't enough, Indians are also masters of cognitive dissonance. Thus, up until the 1990s, we were each of Hindu, secular and vaguely left of centre. After Y2K, we have become simultaneously Hindu ultra-right majoritarian and market capitalists, even though the latter is a 'religious' creed based on the supremacy of individual liberty. For the Supreme Court to now tread on this sacred landscape and rule on what is or is not a religious appeal is fraught with risk. How is an appeal to market capitalism and progress less an appeal to religion than an appeal to cosmic order asking voters to protect cows and build temples where once God was born?
That said, how do we then make sense of Sec 123(3) of the Representation of Peoples Act? Each of us has a religion we were born to, but very few of us live by its dictates in any serious sense. Instead, each of us has a personal philosophy of one kind or another, which tells us what the universe really 'means'. We are far more inclined to vote for this personal moral code, this scale of 'meaning', this religion than we are likely to vote for someone who appeals to a religion we were born to.
The problem is that the Representation of People's Act has no problem if a candidate seeks votes offering market capitalism and material progress as an electoral sop. It does have a problem if a candidate seeks votes on the basis of a 5,000-year-old religion which in the main is understood by the overwhelming majority mainly from TV serials. It's hard to see how one is more a 'religion' than the other. It is even harder to see how the Supreme Court is competent to conclusive determine what our collective Indian scale of values are, or should be. This central dilemma does not disappear even though I am at heart a terminally agnostic.
The author is Managing Partner of Gurgaon-based corporate law firm N. South. His bestselling exposé of the real world of Indian courts, "Legal Confidential", released in November 2015.