Sections 123 (3) and 123 (3A) of the Representation of Peoples Act, 1951 (RPA, 1951) were enacted in recognition of the fact that during the electoral process there can be a situation in which a political party, its leaders or any other person or a candidate would appeal to voters to elect a candidate on grounds of religion, race, caste, community. Such an appeal would undermine the secular foundation of the Constitution. Hence, such an appeal ought to be a “corrupt practice”. The Supreme Court on Monday substantially accepted this position in law and hopefully created a wall of separation between religion and politics.
The judgment will have an immediate impact on the forthcoming Assembly elections in Uttar Pradesh and every subsequent election. The judgment is based on a firm understanding of the secular foundations of the India Constitution and the need to ensure that no party can claim that India is a theocratic state. Interestingly, the judgment related to the interpretation of two single words "his religion" in Section 123 which reads as follows:
“Section 123 Corrupt practices — The following shall be deemed to be corrupt practices for the purposes of this Act— …(3) The appeal by a candidate or his agent or by any other person with the consent of a candidates 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 “(3A) The promotion of, or attempt to promote, feelings of enmity or hatred between different classes of the citizens of India on grounds of religion, race, caste, community, or language, by a candidate or his agent or any other person with the consent of a candidate or his election agent for the furtherance of the prospects of the election of that candidate or for prejudicially affecting the election of any candidate."
Late Justice JS Verma had held in Ramesh Prabhoo versus Prabhakar K Kunte in 1996 decided (it was the same time when Monohar Joshi judgment commonly known as the Hindutva judgment came) that what the section prohibits an appeal by the candidate himself for votes in the name of his, that is the candidate's religion and nothing else, this would leave free a third party to appeal for votes in the name of the religion of the candidate or not to vote for the opponent based on the religion of the opponent.
It is this ruling that was revered today by a majority, holding that any appeal in the name of relation, whether by the candidate himself or a third party on his behalf to vote in the name of religion, whether that of the candidate or any other religion was a "corrupt practice". In a secular state , religion has no role to play in the matter to election to positions of state power since the Constitution of India in its basic features is secular and any attempt to convert the state into a theocratic state is anti-constitutional .
The issue, whether Hindutva is a way of life or a religion, was sadly not addressed by the court and left to be decided by a bench of five judges, and a historic opportunity to correct a constitutional wrong has been lost. The BJP will continue to canvas votes in the name of Hindutva in its manifesto or otherwise and still claim that this is not an appeal in the name of religion. In that sense, the task is half done and the debate will continue in the courts. Another opportunity lost was the inability o unwillingness of the Court to decide whether an appeal made in the manifesto of a party would be binding on a candidate who uses the manifesto in his election campaign and hence stands by it. Without reading the judgment, it is difficult to say why this issue was not addressed but it is an issue which will refuse to go away
Section 29A of the RPA categorically requires every registered party of declare on oath that it will bare true faith and allegiance to the Constitution of India , and to the principles of socialism and secularism and democracy . It is a different matter that no party has been deregistered on the ground that they act contrary to this declaration, thought attempts have been made in that direction, but perhaps after this judgment , reiterating the centrality of secularism, the election commission too will take a hard look at the policy and practice of political parties and at their memorandum of association and their manifestos to check compliance with secular values.
The judgment does not negate the central role that relation plays in people’s lives and to the fullest possible extent the right to freely practice religion is recognised and protected. , However, the role of religion is confined to the personal domain and not allowed to have any impact on governance or state power.
The real power play will be seen now in every forth coming election, will party manifestos be scrutinised by the Election Commission, will political parties be able to promise the construction of a Ram Mandir as an election plank and still claim that they are a secular party, will every speech made by every party leader at election rallies be scrutinised to check if constitutional boundaries are crossed?
The battle between political parties and within parties is just about to begin , in more ways than one . For now, every party interprets the judgment in its own way and pays lip sympathy to the Secular values that it upholds.
They will all do well to remember what Justice Jeevan Reddy said in SR Bommai versus Union of India (1994) 3 SCC 1) follows about the function of political parties and their main objective to gain state power in “Given the above position, it is clear that if any party or organisation seeks to fight the elections on the basis of a plank which has the proximate effect of eroding the secular philosophy of the Constitution would certainly be guilty of following an unconstitutional course of action. Political parties are formed and exist to capture or share State power. That is their aim. They may be associations of individuals but one cannot ignore the functional relevance. An association of individuals may be devoted to propagation of religion; it would be a religious body. Another may be devoted to promotion of culture; it would be an cultural organisation. They are not aimed at acquiring State power, whereas a political party does. That is one of its main objectives. This is what we mean by saying 'functional relevance'. One cannot conceive of a democratic form of government without the political parties. They are part of the Political system and constitutional scheme. Nay, they are integral to the governance of a democratic society. If the Constitution requires the State to be secular in thought and action, the same requirement attaches to political parties as well. The Constitution does not recognise, it does not permit, mixing religion and State power. Both must be kept apart. That is the constitutional injunction. None can say otherwise so long as this Constitution governs this country. Introducing religion into politics is to introduce an impermissible element into body politic and an imbalance in our constitutional system. If a political party espousing a particular religion comes to power, that religion tends to become, in practice, the official religion. All other religions come to acquire a secondary status, at any rate, a less favourable position. This would be plainly antithetical to Articles 14 to 16, 25 and the entire constitutional scheme adumbrated hereinabove. Under our Constitution, no party or organisation can simultaneously be a political and a religious party. It has to be either. Same would be the position, if a party or organisation acts and/or behaves by word of mouth, print or in any other manner to bring about the said effect, it would equally be guilty of an act of unconstitutionality. It would have no right to function as a political party.”
At the heart of the case is the issue of free speech and the kind of limitations that can be put on political speech. All speech refereeing to religion is not prohibited but if made in the following context then it is may now to prohibited under the judgment.
a.The speech/appeal is made during the process of an election which will result in a candidate getting elected to the Parliament or Assembly.
b.That the object of the speech/appeal is to garner votes for the purpose of furthering the electoral prospect of the candidate.
It will be a tough job to decide where the line of permissible and impermissible political speech will ultimately be drawn in any given case , but a task with the courts will no longer be able to dodge. The next big challenge will be to challenge the ruling of Justice Verma in the Manohar Joshi case on the question of what is Hindutva, a way of life or an attempt to set up a theocratic State.