PUCL Bulletin, May 1996

Perils of canonising Bal Thackeray
By K.G. Kannabiran

We commenced our journey as an independent country with a secular state which stood for social, economic and political justice. The quality of our society should be informed by human dignity, equality and fraternity. When we made social and economic justice our objective we decisively discarded the obnoxious religious and caste practices which sanctioned oppression of vast section of the people. From the oppressed majority come the bonded and child labour. It is this vast majority which was not allowed access to wells, tanks, bathing ghats, roads and places of public resorts. These were not allowed access to shops, restaurants, hotels and places of public entertainment. The access was denied in the name of public entertainment. The access was denied in the name of Hindu religion and the caste system it supported, despite many of its crusading social reformers. When these practices continued the Constituent Assembly took notice of these practices, listed them out, though did not identify them overtly with Hindu religious practices, banned and affirmed that under the constitution and the principles of governance set out therein for structuring a secular society, religious will have no role to play in the governance of the society.

The right to freedom of religion and conscience contained in the fundamental rights chapter ensured equality to all religious, whether of the minorities or of the majority and refer to the Hindu religious practice of denying access to religious institutions and places of worship to the Dalits and affirms the right to the state to prohibit all such practices. Nowhere does the Hindu religion figure in either the philosophy or the principles of governance set out in the constitution.

The constitution provided for social transformation towards a welfare state leaving it to political processes to bring about a radical restructuring of the society in realisation of the objectives set out in the preamble. The major premise of secularism is equality which can only be realised in a society like ours by restructuring the entire social order. Political freedoms as set out in the fundamental rights and political justice become the primary instruments for the realisation of the objectives and the value system we have given to ourselves. Along the way we abandoned the principles of governance set out in Part IV and the desirability of social transformation got separated from the political freedoms and political justice and the latter was viewed as an inconvenience and an obstacle to governance itself!

Thus between 1969-75 political justice and political freedoms set out in the Fundamental Rights chapter of the Constitution were under assault culminating in the notorious Emergency of June 1975. Then the court lent its support to the executive and sanctioned this assault on political freedom as valid exercise of authority.

The decade ending 1995 has been witnessing assault on the very secular structure of our society by theocratic politics. Social transformation of the society was continuously and consistently opposed and ultimately abandoned. Theocratic politics stepped into the vacuum created by the exit of the politics of social transformation. Consequently the Rath Yatra of Advani and the demolition of Babri Masjid on 6th December 1992 appear inexorable. The courts perceived secularism as a basic structure and a facet of equality. But secularism was on trial in this country during V. P. Singh's tenure as Prime Minister and thereafter. He was brought down from power precisely because he tried to uphold two principles, basic to our constitutional arrangement viz. secularism and reservation. In the party system the religion of the majority started playing a decisive role. Theocratic ambitions and aspiration were being voiced both during the anti reservation stir and the issue of Babri Masjid.

This time the Apex court became the venue of adversarial politics and the courts commitment to secularism was tested. The court took an unequivocal stand on secularism and its relation to electoral politics. This was a period when political parties based their politics on the religion of the majority. This spelt disaster to the political system structured by the constitution. The laws governing the electoral processes are not equipped to prevent entry of anti secular politics into the parliament or the legislature and contending for power. It is anti secular politics entrenched within the parliament which brought down V. P. Singh's Ministry.

While we have opted for parliamentary democracy operated by a full-fledged party system, the party system as such is not mentioned anywhere in the constitution. Nor is there any mention of the party system anywhere in The Representation of People Act 1951. Provision is made under Section 123(3) and 3(1A) of the Act which bars appeal to one's religion, race, caste or community or language, which prohibits promotion of feelings of enmity or hatred between different classes, religion, race, caste or community. Even an attempt is declared a corrupt practice. The injunction contained in these provisions is against the individual and not against a party formed on the basis of religion, caste, community or which has for its agenda promotion of hatred as between religion caste, community etc. The political party formed for anti secular purposes can have its free play in the political arena and the member of the party who contests the elections is recognised by there provisions as an individual contesting the elections on his own and is seldom accountable for his party's role in the conduct of election. Thus the party's large scale corrupt practices and the anti secular propaganda go largely unchecked. The political parties never wanted to improve the law regarding elections for none of them have any abiding faith in democracy; an adherence to mere form was all they wanted. The Representation of People Act 1951 as a piece of legislation misdepicts the political system in existence and the malpractices in vogue. The Judiciary set up under the Constitution was intended as a check on the Executive, for making the executive and other institutions accountable and for preserving the value system engendered in the constitution and for ensuring the presence of democracy. The Judiciary performed the role assigned in fits and starts and in crucial times it was against citizens' liberty, and democracy and has been generally ambivalent when secular values were under threat.

This is consistently visible in the decisions rendered in election dispute. The election trial has been defined by the court as quasi criminal and the elected candidate is likened to an accused. These two propositions give room for enormous legal sophistry. In fact what is not available to the person accused of a criminal offense is available to the candidate whose election is challenged. In the case of a person accused of an offense almost every lapse of the prosecution is condoned by the court, unless prejudice is shown to have occurred, while a varied assortment of technical pleas and defective pleadings apart from court's own definition of crucial words like "consent" etc. allows the elected candidate to get off the nook in a contest. This state of affairs continue despite the violence and fundamentalist practices that have visibly permeated into the election process. Both the trends namely, the watering down of the defenses available to a person accused of an offense and equating the position of an elected candidate to that of an accused in a criminal trial and thus extended him the privileges which are lost and are not available to the accused, are undemocratic. This equation of an accused an elected candidate facing an election trial is theoretically unsound. Criminal justice system has a long history and its evolution symbolises a struggle against arbitrary and authoritarian power. The electoral system has no such history. In the case of a criminal prosecution the accused has the possibility of forfeiting his life or liberty according to the offense he is charged with. In the case of an elected candidate no such right exists and the right to vote or the right to contest an election according to the courts are mere inalienability which the accused has. The dispute in an election trial is between the contesting candidates and though there is a myth that the entire constituency is interested, no such consideration plays any role in the ultimate decision of the case. Democracy, though a basic structure of the Constitution, it never was reckoned as the ultimate determinant of either the validity of penal laws or the law and rules governing the election trial. Parliament's indifference to the degeneration in the electoral process and the court's refusal to take notice of this degeneration and the consequent failure to review and the update the principles laid down while interpreting the electoral law has resulted in elections getting separated from representation and the elected do not represent either the people or the constitutional value system. After the Emergency'75 in the place of Congress(I), which had a stranglehold over the politics of the country, truly multi party system emerged but without any democratic content. Politics became normless; power and affluence that it could acquire for the members alone guided political activities and this led to a farcical situation where members were migrating from one political party to another quite shamelessly. This ultimately resulted in the 52 Amendment to the constitution which barred defection as a political practice and defectors were visited with disqualification unless the conditions provided for were satisfied.

But the X schedule introduced by the 52 Amendment had other consequences. It accorded constitutional recognition to the party system and the role of political parties in our constitutional democracy. In Kihota Hollohon (AIR 1993 SC 412) the court for the first time set out the role of a party. It was pointed out that "A political party goes before the electorate with a particular programme and sets up its candidate on the basis of such a programme. A person gets elected as a candidate set up by a political party on the basis of such a programme of that political party."

While the entire debate on the X schedule centered around the conduct of an elected representative of a political party inside the parliament the entire party system was (had to be) discussed. A political party, the court reiterated, functions on the strength of its shared beliefs and concerted action of its members in furtherance of its commonly held principles. Any freedom of its members to speak against the declared policies is not contemplated in the scheme of party system and parliamentary democracy. Quoting Griffith and Ryles on "Parliament, Functions, Practice and Procedure it was pointed out that "Loyalty to party is the norm, being based on shared beliefs. A divided party is looked upon with suspicion by the electorate. It is natural for members to accept the opinion of their leaders and spokesmen on a wide variety of matters on which those members have no specialist knowledge. Generally members will accept the majority decisions even when they disagree". Loyalty to the party in the context of a party system is a necessity, a compulsive one, if that party has to be functionally relevant and stable as well. If the shared beliefs have theocratic ambitions or aspiration, as in the case Manohar Joshi, they have to be declared corrupt practices because to permit such political activities would be to undermine the constitution from within. Constitutional limitations are not only limitations which operate on the state, but they operate even against political parties. But the latter limitations generally manifest themselves through statutory provisions, mainly penal. When it comes to election law, despite the fact that the elected members become the chosen representatives to operate the constitution, the key provisions of the constitution are never interpreted to sustain the constitution.

From day one after we became independent personal liberty and the other fundamental rights as are necessary for a full fledged development of human personality took a back seat in all discourses on democracy. It was always felt by almost all the institutions of the state that a modicum of arbitrariness is indispensable for governance. Neither the people not their chosen institutions have the right to subject this area of arbitrariness to scrutiny. As popular unrest increases the area of arbitrariness in governance expands. We are not squeamish about violence. We fear a popular uprising which is likely to rend as under the entire social order. It is this fear which led to the emergency 1975 and its justification by the judiciary. Our ambivalence to secular values is because enforcement of these may pose a threat to status quo.

Our attachment to secular values is as deep as is our attachment to personal liberty and other related fundamental rights. Propagation of secular values if done with commitment has the possibility of unleashing the forces of social transformation. All religious practices reinforce the status quo - whether they be of the majority or minority. The response to the criticism of religions bigotry has always been the exposition of the transcendental excellence of the philosophical backdrop of all the religious texts. The "sleight of mind" (an expression coined by Justice Iyer) shifts the focus from the vulgar & obscurantist practices which fuel fundamentalist politics to its transcendental content and thus in a weird way of justify entry of religion into politics.

Fortunately the assault on the Babri Masjid and the subsequent carnage led to considerable amount of judicial introspection the result of which led to the redefinition of secularism and its role in the political processes of the country in SR Bommai (AIR 1994 SC 1918). In the Constitution Bench of nine Judges seven of them expressed in detail what secularism is all about and also set down principles which should guide the court in adjudicating election disputes by interpreting section 123 (3) and (3a) of the Representation of People Act 1951. There was no dissent. Justice Verma and late Yogeshwar Dayal J. did not express any opinion. On secularism the majority held: (a) Secularism is a constitution and basic feature of the Constitution and as a inconsistent with this constitutional policy is, in plain words unconstitutional. (b) Religion cannot be used with any secular activity of the state. In fact, the encroachment of religion into secular activities is strictly prohibited. (c) Secularism is part of the fundamental law and basic structure of the Indian political system to secure to all its people socio-economic needs essential for mains excellence with material and moral prosperity and political justice. It was declared that it is absolutely erroneous to describe secularism as vacuous or phantom concept.

Linking secularism to the electoral process the majority held: (a) No government can patronise any particular religion as a state religion and therefore all political parties are enjoined to maintain neutrality of religious beliefs and prohibit practices derogatory to the constitution and the laws. (b) Introduction of religion into politics is prohibited by the constitution and the Representation of People Act 1951 as well. (c) Political parties, groups of persons or individuals who would seek to influence the electoral process with a view to come to power should abide by the constitution and the laws including secularism. Section 123(3) should not be permitted to be circumvented by resort to technical arguments as to the interpretation of the section. Ram Jeth Malani's argument that sec.123(3) & (3A) should be confined to cases in which individual candidate offends religion of rival candidate and that ratio cannot be extended when a political party has espoused as part of its manifesto a religious cause was rejected as wholly untenable. Ram Jeth Malani argued that the partition of the country was on the basis of religion and argued for the acceptance of theocratic principle. It was pointed out by the court that no political party or organisation can be simultaneously a religious and a political party. The necessity of registration of parties for allotment of symbols obliges every party seeking registration to file declaration affirming its faith in the principles of "socialism, secularism and democracy".

This decision for the first time declared that secularism is an indispensable premise which should inform not only governance but all the other institutions in the society. All interpretative endeavours by the courts should really be governed by this decision. But unfortunately this was not to be.

In Manohar Joshi and the other cases the High Court formulated the proposition correctly when it said, "It must be noted that this election petition is not based on individual acts of respondent or his election agent or any other person with his consent. This petition is based upon the above mentioned plank and/or policy decision of the Shiv Sena and BJP and the campaigning by the party and the respondent on the basis of that plank."

This is in line with the pronouncements of the Supreme Court in Kihoto Hollohon and SR Bommai. In the Supreme Court the learned judge of the High Court was faulted. Justice Verma points out, "The requisite consent of the candidate cannot be assumed merely from the fact that the candidate belongs to the same political party of which the wrong doer was a leader since there can be no presumption in law that there is a consent of every candidate of the political party for every act done by every acknowledged leader of that party". This is totally divergent to the views of the Supreme Court on the party system, secularism and the limitations imposed by these decisions on the role of religion in the political processes.

Suddenly we find the entire focus being shifted to Hinduism and equating it with Hindutva a later concept which came into vogue more emphatically when these parties were planning an assault on Babri Masjid. Misuse of these terms, the judges point out, cannot alter their true meaning. Quite true.

But the issue is not Hinduism and Hindutva in the abstract. The extracts given by the election petitioner leaves no one in doubt that Bal Thackeray and his colleagues were not expounding Hindu philosophy in the transcendental dimension. In fact election campaigns have never been occasions to embark on religious discourses. The passages put on record clearly demonstrate that what was being expounded was vulgar Hindu Nationalism and anti minority diatribe. By delving on Hindu religion and culture the learned judges legitimised vulgarity and cannonised Bal Thackeray as a Hindu saint. This is unfortunate. Naming him for corrupt practice does not alter the character of the judgment. True, the consequences unintended but nonetheless it is a consequence which we will have to live with and perhaps suffer!

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