Bans on rallies and jailed contestants: Courts get it wrong

The Supreme Court verdict justifying a ban on those in lawful custody from contesting elections and the Allahabad High Court ban on caste-based rallies are both ill conceived and need to be reversed. George Fernandes and some other leaders of the fight against the Emergency contested the 1977 elections from behind bars. They were lucky that learned judges of the Supreme Court had not curtailed their freedom to wage electoral battle against authoritarianism. Very often, the term lawful custody is a travesty of justice. India has some four lakh undertrials in its jails — people who are being punished without being found guilty. Many others can be in lawful custody because the powers that be have ordered the police to lock them up. Lawful here only means that officers of the law, rather than anyone else, have carried out the task of incarceration. After the present Supreme Court verdict, we could witness a flurry of arrests of political rivals of those in power at election time. These kinds of bans diminish rather than advance democracy.

Come to caste- or religion-based political assemblies. Organisation is a basic form of resistance against oppression for any group. Organised action by subaltern groups is integral to the process of democratising society and ending institutionalised inequality.

The high court order amounts to saying that such organisation is wrong. Caste in India often serves as a reasonable organising principle of oppressive subalternity. To ban caste-based rallies is to defend the existing, unequal distribution of power, and, therefore, anti-democratic. Similarly, the court fails to distinguish between community-based action for its advance, which is legitimate, and communal action predicated on animosity of the community being mobilised towards another.

The judiciary would do well to temper its noble desire to rid the polity of its ills with acknowledgement of its lack of expertise in the complex social dynamics that mediate political action. And Parliament should rid the Representation of the People Act of its infirmities that the court has relied on for its flawed proscriptions.