The story so far: Recently the Bharatiya Janata Party (BJP) lodged a complaint with the Election Commission of India (ECI) against Rahul Gandhi for hurting the sentiments of Hindus through his remark on ‘shakti’. The Dravida Munnetra Kazhagam (DMK), in turn, filed a counter complaint against the Prime Minister for appealing to religious sentiments during his campaign on the same issue.
What does the law say?
Section 123(3) of the Representation of the People Act, 1951 (RP Act) provides that appeals by a candidate, or any other person with the consent of a candidate, to vote or refrain from voting on the ground of his religion, race, caste, community or language is a corrupt electoral practice. Section 123(3A) denounces any attempt by a candidate to promote feelings of enmity or hatred among citizens on these grounds during elections. The RP Act further provides that anyone found guilty of corrupt electoral practice can be debarred from contesting elections for a maximum period of up to six years.
What does the MCC provide?
The Model Code of Conduct (MCC) for the guidance of political parties and candidates is a set of norms which has evolved with the consensus of political parties. They have consented to abide by the principles embodied in the said code. It binds them to respect and observe it in its letter and spirit. This code, which began to be implemented strictly in the 1990s, provides that no party or candidate shall indulge in any activity which may aggravate existing differences or create mutual hatred or cause tension between different castes, religious or linguistic communities. It also provides that there shall be no appeal to caste or communal feelings for securing votes. Mosques, churches, temples or other places of worship shall not be used as a forum for election propaganda. Though the MCC does not have any statutory backing, it has come to acquire strength in the past three decades because of its strict enforcement by the ECI.
What has been the history?
It is pertinent to note that before 1961, Section 123(3) of the RP Act provided that ‘systemic’ appeal by a candidate on the grounds of religion, race, caste or community will amount to a corrupt electoral practice. However, in order to curb communal, fissiparous and separatist tendencies, the word ‘systemic’ was omitted through an amendment in 1961. This meant that even a stray appeal for success in the elections on the ground of one’s religion or narrow communal affiliation would be viewed with disfavour by the law.
There have been innumerable instances in the past where various parties and its leaders have blatantly appealed for votes in the name of religion. There are leaders across political parties against whom cases have been registered under the RP Act and the Indian Penal Code in this regard. However, the only notable leader who was convicted by the Supreme Court for this corrupt electoral practice was Bal Thackeray of Shiv Sena in the year 1995. The ECI on such occasions at best bars leaders from campaigning, for violation of the MCC, for a short period of two to three days.
What has the Supreme Court ruled?
In Abhiram Singh versus C. D. Commachen (2017) a seven-judge Bench by a majority of 4:3 held that candidates shall not appeal for votes on the basis of not just his/her religion but also that of the voters. The majority view provided a ‘purposive interpretation’ to Section 123(3) rather than just a literal one thereby rendering any appeal in the name of religion of even the voters as a corrupt electoral practice. The elections to Parliament or State legislatures are a secular exercise; constitutional ethos forbids the mixing of religious considerations with the secular functions of the State. Religion should remain a matter of personal faith.
What is needed?
Political parties and candidates are likely to raise legitimate concerns of citizens faced by them on the basis of traits having origin in religion, caste, community or language in a democratic election process. However, it should be to only address their grievances through appropriate policies without jeopardising the secular fabric and fraternity of the country. Any appeal in the name of religion only results in the further polarisation of our multi-religious society.
Places of worship have always been used overtly and covertly as a forum for canvass. Religious leaders have thrown their weight behind candidates of various parties. These practices should ideally be avoided in order to ensure that politics and religion are not mixed up. However, the primary responsibility lies with political party leaders and candidates. Their campaigns on the basis of religion not only disturbs the secular fabric of our polity but is also a clear violation of law. The ECI and courts should devise mechanisms for swift action against those violating the law in this regard.
Rangarajan R is a former IAS officer and author of ‘Polity Simplified’. He currently trains civil-service aspirants at ‘Officers IAS Academy’. Views expressed are personal.
