Judicial overreach

Judicial overreach

Supreme Court's ruling against identity politics is at odds with ground realities.

The Supreme Court judgment widening the scope of Section 123 (3) of the Representation of the People Act which now prohibits the seeking of votes in the name of religion, caste, race, community or language by a candidate, his agent or anyone with his consent is well-intentioned. The order, which was passed by a seven judge Constitution bench through a four to three majority, also ruled that a candidate could be disqualified if an appeal was made by any religious leader to vote for the candidate with the latter's consent. But the judgment fails to take into consideration the ground realities of identity politics. It will not achieve the intended impact on politics.

Political parties will find creative ways to circumvent the law.To be fair to all concerned, it is really difficult to wipe out identity politics through judicial mandate. No democracy in the world is free from identity politics of one form or another. We saw this recently in the US presidential elections where race was a pivotal electoral issue. We see this again in countries across Europe where the religion and ethnicity of migrants and refugees have been exercising voters. India with its tremendous diversity can't be immune to this trend.

Besides, identity-based political movements as exemplified by the Dalit-centric BSP or the Tamil-based DMK aren't negative in themselves. In fact, these political movements have helped sections of society that have felt marginalised highlight their grievances.This in turn has ensured their concerns are taken seriously within the framework of democratic electoral politics. Plus, there's no denying that the plethora of regional political parties such as Telugu Desam Party , Naga People's Front or Mizo National Front ¬ all with an identity appeal ¬ has actually broad based democracy in India.

In this context, it's imperative to note the dissenting judgment delivered by three judges which states that despite the existence of the imperfect Section 123(3) of RPA for more than five decades, elections have been held successfully in India with routine changes of government. And such imperfections can't be attended to by judicial redrafting of legislative provision. For, judicial overreach as seen in the apex court's recent national anthem ruling can have the same effect as poorly drafted laws diminishing the value of rules through frequent breaches.