Leave it to legislature on using caste, religion to woo electorate

Whereas three dissenting judges held that such an interference by the court almost amounted to judicial redrafting of law. They said prohibiting candidates from articulating issues effecting voters reduced democracy to an abstraction. 

“No government is perfect. Law does not prohibit dialogue or a discussion of a matter which concerns voters.” Short facts of the case are that one Abhiram Singh of BJP contested election in Maharashtra. His election was set aside by the Bombay High Court for appealing for votes on the basis of his religion. This was referred to the Constitution Bench of the Supreme Court. Leaving aside the nuances of the law that has been elaborately discussed in the judgment I would like to put forth the sum and substance of the judgment for the sake of lay persons to understand the same. 

India is a secular country. We cannot, under law, discriminate on the basis of religion, caste or creed. So can we seek votes in the name of religion is what is being discussed in this judgment. On the face of it to say no, that it is wrong to canvass for votes on the basis of religion is fine, appealing and ideal. The hard realities of life are otherwise. We are a country torn by religion, caste and creed. Many political parties have been formed and exist on the basis of their affiliation to particular religion, caste or creed. In an ideal situation it is not to be encouraged and they have to be wound up. In practice it is not merely impossible but even the so-called secular mainstream parties have been selecting their candidates on the basis of the religion / caste / creed to ensure that they are elected. Such blatant choice on the consideration of the religion / caste / creed being the reality, could we stop appeals on the basis of these factors? 

It is common knowledge that the courts will have to enunciate the law and say what law is and not be sermonising on what law ought to be. It is best to leave it to the legislature to decide to stop using religion / caste and creed to woo the electorates for votes. 

Discussing stark realities are essential to find solutions. We cannot shy away and be silent on the issues of untouchability, sufferings of religious minorities and other disadvantaged sections. This is the reason for the cropping up of political parties on the basis of religion, caste and creed etc. all over our country. Such political parties have a role to play in our society. They act as voice to the voiceless and face to the faceless. 

To say that purpose of Section 123(3) of the Representation of Peoples Act is to maintain secular structure and pluralist society – maintain purity of election process – cannot mix religion with state power is not in consonance with realities. “An interpretation which has the effect of ending or diluting the constitutional objective of keeping the state and its activities free from religious considerations, therefore must be avoided” is good on paper but not pragmatic. Hence however good the judgment may seem theoretically, it is not ideal and is impractical in the given circumstances in our country as on date.