Noah Feldman writes in Bloomberg/Politics about a recent Indian Supreme Court decision regarding what speech by candidates for office may contain:
The decision by the seven-member panel of the court was an interpretation of India’s Corrupt Practices and Electoral Offenses law, first enacted in 1951 and amended subsequently. Section 123(3) of the law makes it a corrupt practice for a candidate to make an appeal “to vote or refrain from voting for any person on the ground of his religion, race, caste, community or language.”
The central legal issue was whether the law only bans the candidate from appealing to his own religion or community, or whether it extends to cover references to the voters’ identities, too. …
The court split 4-3, with the majority adopting the broader reading and the dissenters the narrower one. The leading opinion of the majority emphasized that India’s founders “intended a secular democratic republic where differences should not be permitted to be exploited.” Treating this as the law’s purpose, the majority rejected the narrow reading of the word “his” as referring to the candidate’s identity as inappropriately literal.
So what, you say – that sounds reasonable, no? Turns out context is everything:
On the surface, the decision looks like a close legal case with a defensible conclusion. But the reality is otherwise — for a concrete legal reason. In 1995, a three-judge panel of the court issued a famous judgment colloquially known as the Hindutva or Hinduism decision. In it, the court said that because Hinduism didn’t subscribe to a single dogma or worship a single God, it did not satisfy the traditional definition of religion. It was therefore “a way of life and nothing more.”
Thus, according the 1995 precedent, Hinduism isn’t a religion for purposes of the election law. The result is that the broad reading of the statute doesn’t equally disadvantage all appeals to religion – it disadvantages only minority religions. Thus Muslim candidates can’t invoke their creed to win votes, but Hindu candidates can.
Infamous might be a better word for it. But it’s interesting that in a country where the Hindus outnumber the Muslims 5-1, the majority just found another way to oppress the minority – even if it was by accident.
