In view of the ensuing Assembly Elections in five states- Uttar Pradesh., Uttarakhand, Manipur, Goa and Punjab- the recent ruling of the Supreme Court prohibiting the use of caste creed or religion for seeking votes by the candidate or even his/her political party is going to have very a deep and wide repercussions in the electoral battle. The judgment of the constitution bench of seven judges is divided by 4:3 but the majority of the judges has concurred that the section 123(3) of the Representation of People’s Act has to be given the purposive interpretation to maintain the secularism, which is a basic structure of the Constitution of India. The Court said that ‘the life of the law has not been logic but it has been experience and the law has to adopt new principles from life at one end and slough off at the other.
In the interpretation of Section 123(3) of the Act, which says that “the appeal by a candidate or his agent or by any other person with the consent of a candidate or his election agent to vote or refrain from voting for any person on the ground of his religion, race, caste, community or language or the use of, or appeal to, religious symbols or the use of, or appeal to, national symbols, such as the national flag or the national emblem, for the furtherance of the prospects of the election of that candidate or for prejudicially affecting the election of any candidate: Provided that no symbol allotted under this Act to a candidate shall be deemed to be a religious symbol or a national symbol for the purposes of this clause”, the Court has mainly dealt with the word ‘his’. Therefore, on the face of it, the judgment concentrates on semantic issue, namely; what is the meaning to be given to expression ‘his’ religion. Does it mean that only an appeal by the candidate himself or herself based on the religion of the candidate is a corrupt practice? Or would an appeal made by a third party, say, a party leader, at an election rally based on any religion also amount to a corrupt practice? The issue was seminal since the Supreme Court itself, in previous judgments, has held, that only appeals based on “his religion” — that is the religion of the candidate, including the rival candidate — would amount to corrupt practice.
Using a purposive, not literal, interpretation theory the majority held that the expression “his religion” refers to the religion of (i) any candidate or (ii) his agent or (iii) any other person making the appeal with the consent of the candidate or (iv) the elector” and this interpretation is in consonance with the purpose of the Act that is “maintaining the purity of the electoral process and not vitiating it”. Former chief justice, T.S. Thakur, went a step further and justified the purposive interpretation in the secular framework of India that acts as a limitation on free political speech. Does this prevent social mobilisation as suggested by the minority judgment, which says that “Social mobilisation is an integral element of the search for authority and legitimacy. Hence, it would be far-fetched to assume that in legislating to adopt Section 123(3), Parliament intended to obliterate or outlaw references to religion, caste, race, community or language in the hurly burly of the great festival of democracy.”
This court has stated in many earlier cases that “what is relevant is the candidate and not the plank of the political party”, ‘requisite consent of the returned candidate or his election agent which is a constituent part of the corrupt practices under sub-sections (3) of Section 123’. This is what has given rise to two grave concerns; can a political party in its manifesto depart from the secular foundations of the Constitution and claim to set up a Hindu, Muslim or Christian state? It is this question that Justice Thakur attempted to answer when he insists that the secular foundations of the Constitution are not negotiable, whether by a candidate or by a third party. Speech that is protected and will not be a corrupt practice is the one anchored in the goalpost of the Indian Constitution that is secularism. India is a secular state, no matter what understanding one may have of what is secular — at the very least, it is not theocratic. Not all reference to religion, race, caste, or language in an election speech can be said to be a corrupt practice. A reference to a group discriminated on the ground of religion, race, caste, or language coupled with the promises to remove the discrimination and correct an imbalance will not be an appeal on the ground of religion since the thrust of the speech will be to promote secularism.
Hence, an appeal on the grounds of religion, race, caste, or language can legitimately be made on behalf of a discriminated group whether based on religion, race, caste, language or sex, coupled with the promise to reverse the discrimination. When the appeal is contextualized in a rights framework, in particular fundamental rights, and for the reversal and redressal of constitutional wrongs it would not fall under the meaning of corrupt practice within S.123(3). Similarly, an appeal to protect and promote the rights of a persecuted group would not be an appeal on the grounds of religion, race or caste.
However, by the majority ruling, the Court held that an election will be annulled not only if votes are sought in the name of the religion of the candidate but also when such an appeal hinges on religion of voters or candidate’s election agents or by anybody else with the consent of the candidate. This is certainly a grey area because it has not made clear whether it will include religious and spiritual leaders, often engaged by candidates to mobilise their followers or not? The majority view interpreted Section 123(3) to mean that this provision was laid down with an intent “to clearly proscribe appeals based on sectarian, linguistic or caste considerations; to infuse a modicum of oneness, transcending such barriers and to borrow Tagore’s phrase transcend the fragmented ‘narrow domestic walls’ and send out the message that regardless of these distinctions, voters were free to choose the candidate best suited to represent them.”
The majority view consisting of Justices T.S. Thakur, Madan B. Lokur, S.A. Bobde and L. Nageswara Rao, however, refrained from revisiting its 1995 judgment which had said that “Hindutva” and “Hinduism” connote the “way of life” of the Indian people and not just Hindu religious practices. That judgement clearly said seeking vote in the name of Hindutva was not a corrupt practice warranting disqualification of a candidate as it was ‘a way of life’ and not a religion but this latest judgement has remained silent on it. Justices Adarsh K. Goel, Uday U. Lalit and D.Y. Chandrachud who dissented with the majority view, held that the expression “his” used in conjunction with religion, race, caste, community or language is in reference to the candidate, in whose favour the appeal to cast a vote is made, or that of a rival candidate when an appeal is made to refrain from voting for another.
Writing the minority judgement Justice Chandrachud said that to hold that a person who seeks to contest an election is prohibited from speaking of the legitimate concerns of citizens that the injustices faced by them on the basis of traits having an origin in religion, race, caste, community or language would be remedied is to reduce democracy to an abstraction. It further said “Electoral politics in a democratic polity is about mobilisation. Social mobilisation is an integral element of the search for authority and legitimacy. Hence, it would be far-fetched to assume that in legislating to adopt Section 123(3), Parliament intended to obliterate or outlaw references to religion, caste, race, community or language in the hurly burly of the great festival of democracy. It also added that “his” in Section 123(3) cannot validly refer to the religion, race, caste, community or language of the voter.
The elections in the aforementioned states will be the litmus test for this Supreme Court judgement. It has to be seen that how far the parties like B.J.P., Quami Ekta Dal, B.S.P, S.P. or All India Majlis-e-Ittehadul Muslimeen would stick to the Supreme Court verdict and avoid making appeals to the electorates in the name of caste and religion.