In a majority verdict, delivered on the second day of the New Year, 2017, the Supreme Court today held that any appeal for votes on the ground of "religion, race, caste, community or language" amounted to "corrupt practice" under the election law provision. The majority view, led by former Chief Justice TS Thakur and shared by Justices M B Lokur, S A Bobde and L N Rao, said 'secularism' has to be considered while dealing with such issues.
Referring to the term 'his religion' used in section 123(3) of the Representation of The Peoples (RP) Act, which deals with 'corrupt practice', Chief Justice T S Thakur and three others in the 4:3 verdict said it meant the religion and caste of all including voters, candidates and their agents etc. This gives a substantive jolt to the arguments put forward by the ruling dispensation through their counsel when the matter was argued in October 2017.
Reflecting a division of opinion in the highest court of the land, however, the minority view of three judges – UU Lalit, A K Goel and D Y Chandrachud – held that the term 'his' religion means religion of candidate only.
The judicial findings of the majority verdict, 4-3, will have lasting implications not only in the upcoming elections to state assemblies but will ensure more maturity to Indian democracy—they will have lasting implications, especially on those supremacist outfits who unashamedly appeal to exclusivity of the faith of candidates to garner votes.
For decades now, especially since the sharp rise of political parties that espouse sharp religious (and often antagonistic and inciteful) sentiments, electoral politics has been coloured by communalism.
Under consideration by the Supreme Court of India were several petitions that raised and interpreted this issue and over which appeals and reviews were filed. A three-judge bench of the Supreme Court of India (Justices JS Verma, Saran Singh and Venkataswami), in 1996, held Shiv Sena supremo, Bal Thackeray to be guilty of a corrupt electoral practice under section 123 (3) and 123 (3A) of the Representation of People’s Act. The interpretation of section 123(3) however was narrow. The three speeches made by Thackeray on November 29, 1987, December 12, 1987 and December 10, 1987 were made in support of the then mayor of Mumbai, Ramesh Prabhoo, contesting the assembly elections.
Now the Supreme Court has spoken: on the crucial aspects of the interpretation of the section of the law, section 123(3) and the relationship between the candidate contesting the election and ‘his’ religion as also the relationship (and thereby the legal culpability) of a particular candidate with the manifesto of his party (and whether the candidate can be held legally bound to it), following this verdict, political parties cannot take shelter under ambiguity.
Is a contesting candidate an ‘agent’ as defined under the Representation of People’s Act and is a ‘leader’ of the party, who campaigns for him also an ‘agent’ as defined and liable for legal restrictions under the Act ? Political parties are registered under Section 29(a) of the Act.
If a leader of this party so registered (under the Act) makes a speech that violates the Constitution, is inciteful (and by being a corrupt practice of misusing religion for electoral ends), i.e. if such a speech is violative of Section 123(3) of the Act, what are the consequences for such a ‘leader’? Sometimes during an election campaign, a candidate actually contesting the election is present at the time when such a speech is made by a 'leader'; on occasion he is absent. There are posters, videos and other materials circulated (that are violative of the Election Law, inciting voters against other faiths); can a candidate be held guilty of violation of the Election Law or not?
It is on these key issues that the Supreme Court has spoken.
Related Articles:
Secularism Betrayed
Is the Misuse of Religion Tainting India’s Electoral Process?
हिंदुत्व की व्याख्या पर दोबारा गौर करे सुप्रीम कोर्ट
Disclaimer: The co-editor of Sabrangindia, Teesta Setalvad had, in her individual capacity intervened in the Supreme Court of India on the crucial issue and her intervention application had been heard. Writers Dilip Mandal and Shamsul Islam were co-petitioners with Setalvad.