SECOND only to the constitution, the election law of a democracy is of the utmost importance. Like the constitution, the election law must rest on a national consensus. The election law of India is embodied in Article 324 to 329 of the constitution and in two statutes namely, the Representation of the People Act, 1950, and the Representation of the People Act, 1951.

The act of 1950 deals with the allocation of seats and delimitation of constituencies, the appointment of election officers and the preparation and maintenance of electoral rolls. The act of 1951 deals with the qualifications and disqualifications for membership of the legislatures — central and state, the definition of corrupt practices and, indeed, with the entire machinery and procedure for the conduct of elections. The important sets of rules are the Registration of Electors Rules, 1960, and the Conduct of Elections Rules, 1961.

There has yet been no comprehensive reform of the election law. The latest attempt represents the authoritarian style of the Narendra Modi government. A day after it was pushed through Lok Sabha, the Election Laws (Amendment) Bill, 2021, which enables the linking of electoral roll data with the Aadhaar ecosystem, it was cleared by Rajya Sabha on Dec 21, 2021, amid acrimonious scenes.

Election law is not something to play with.

As in Lok Sabha, the opposition raised strong objections to a bill in Rajya Sabha as well. Yet in March 2020, when the parliamentary standing committee asked the government to undertake “appropriate actions” for “linking unique Aadhaar card number with Voter ID card”, opposition members in the panel did not raise any red flag then. Thus the opposition is not blameless either.

Election law is not something to play with. If the opposition had changed its mind it should have admitted as much. The Aadhar card was introduced recently as a national identity card. It has its flaws. The country is yet to cope with it. To expect illiterate villagers to use it to draw their rations and the like is too much. There are also issues of privacy.

Much of the law on election is based on the dicta of the Supreme Court without the support of any legislation. This is a classic case of the court intervening when the legislators fail to act. But this holds dangers for the democratic process. Unelected judges cannot and should not usurp a task that belongs truly to the elected representatives of the people.

The legislature did not enact any effective law to bar criminals. Criminalisation of politics is a disease which reared its head decades ago. The law now rests on the directions issued by India’s supreme court.

Yet this very court has failed to prevent those who spew religious hate from entering the legislatures. In December 1995, a bench headed by a pro-Hindutva judge J.S. Verma held that the cry for Hindutva did not amount to a plea for a Hindu state. It was simply a synonym for Hinduism.

The publisher of Savarkar’s essay Hindutva: Who is a Hindu? wrote: “Apart from the religious aspect involved in the conception of the words ‘Hindu’ and ‘Hinduism’, Veer Savarkar had to coin some new words such as ‘Hindutva’, ‘Hinduness’, ‘Hindudom’ in order to express totality of the cultural, historical, and above all the national aspects along with the religious one, which mark out the Hindu people as a whole. The definition is not consequently meant to be a definition of Hindu dharma, or Hindu religion. It is a definition of ‘Hindutva’ ‘Hinduness’.It is essentially national in its outlook and comprehends the Hindu people as a Hindu rashtra” — a Hindu state.

The newfangled pernicious doctrine, was taken over by the RSS, the Jan Sangh, and the BJP. Hinduism is ancient. Hindutva is modern. The former is a matter of faith. Hindutva belongs to sordid expediency.

Later, two benches asked the chief justice to set up a larger bench to review that defective judgement. As an authority on Hindutva, justice Verma did not quote its author V.D. Savarkar’s essay but, hold your breath, one Maulana Wahiduddin Khan’s Indian Muslims: The Need for a Positive Outlook (1994). It simply said: ‘The strategy worked out to solve the minorities problem was, although differently worded, that of Hindutva or Indianisation. This strategy, briefly stated, aims at developing a uniform culture by obliterating the differences between all of the cultures coexisting in the country. This was felt to be the way to communal harmony and national unity. It was thought that this would put an end once and for all to the minorities problem.”

The maulana in fact disapproved of Hindutva while justice Verma lauded it. No larger bench to reconsider this pathetic ruling was set up. Since December 1995 umpteen general elections to the Lok Sabha and many state assemblies were held under a defective law as declared by the supreme court. The RSS and the BJP profited by the ruling erroneously.

The writer is an author and a lawyer.

Published in Dawn, December 25th, 2021