Assembly Election 2017: Will SC judgment on Hindutva case curb 'corrupt practices'?

On Monday the Supreme Court ruled that "religion, race, caste, community or language would not be allowed to play any role in the electoral process". In a judgment that is hailed as landmark, which will lead to a new "era of secular politics", the Supreme Court held that seeking votes in the name of any of the above mentioned categories will amount to corrupt electoral practice and can lead to disqualification of the candidate.

After dwelling into various landmark cases related the corrupt electoral practices, Supreme Court observed in its 116-page judgment that “the concern of Parliament in enacting Section 123(3) of the Representation of the People Act (RPA) was to provide a check on the “undesirable development” of appeals to religion, race, caste, community or language of any candidate. Therefore, to maintain the sanctity of the democratic process and to avoid vitiating the secular atmosphere of democratic life, an appeal to any of the factors would void the election of the candidate committing the corrupt practice."

What does Section 123 (3) say: "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."

Supreme Court. Reuters

Supreme Court. Reuters

How has the SC judgement changed the scope of Section 123 (3) of RPA

While expanding the scope of the section 123 (3) of the act the apex court held Section 123 (3) of RPA needs a broader and “purposive” interpretation. And by doing so it intended to bring within the “sweep of a corrupt practice any appeal made to an elector 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 the furtherance of the prospects of the election of that candidate or for prejudicially affecting the election of any candidate on the ground of the religion, race, caste, community or language 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”.

While the section 123(3) clearly defines what constitutes “corrupt practices”; calling for disqualification, one thing that remained in the shadow of ambiguity over the years was appeal to ‘whose’ religion for seeking votes would attract disqualification. Clarifying this doubt on Monday, the Supreme Court made it clear that it would mean religion of candidate, his agents, voters as well as any other person who, with the candidate’s consent, use religion as basis of his appeal to seeking voters support.

The judgment reads, “An appeal in the name of religion, race, caste, community or language is impermissible under the Representation of the People Act, 1951 and would constitute a corrupt practice sufficient to annul the election in which such an appeal was made regardless whether the appeal was in the name of the candidate’s religion or the religion of the election agent or that of the opponent or that of the voter’s”.

Seen in larger context the apex court decision just expands the purview of the section 123 (3) RPA, to some extent, by giving a wider expanse to the word “his” as mentioned in Section 123 of the act.

How will it impact the upcoming Assembly elections in five states?

On Wednesday (during a press to announce the dates of the upcoming assembly elections in five states) while responding to a question as to what difference has the Supreme Court judgement brought in the applicability of section 123(3) and how does the commission plans to implement it, Chief Election Commissioner (CEC) Nasim Zaidi said that, “law department of Election Commission is working on the modalities and instruction to implement the Supreme Court’s judgement. It has been stated in the judgement that any appeal by the candidates or his agent in the name of religion, caste etc, will amount to corrupt practices and election commission is all committed to implement this apex court ruling”.

Responding to other questions as to what about those parties whose name itself has invocation of caste movements and identities and what will election commission do about it. CEC said, “Commission has taken the decision in 2005 that no political parties can be registered with these kinds of names”.

In response to another questions that how does commission reacts and tends to deal with the fact that leaders like BSP Chief Mayawati while announcing the tickets had made clear cut classification of ticket distribution based on caste, CEC said that they will look into the matter and will act when such cases will be reported to EC.

While responding to a question as to what extra power the SC judgment has given to Election Commission, Zaidi said, “See our model code of conduct has provisions and we will also use substantive law. Now with the pronouncement of this judgment by the Supreme Court the hands of the election machinery will be further strengthened and the most important thing is that asking the votes in the name of these categories will invite the provisions of 123 act so all candidates and parties have to be doubly careful as if they use it our machinery will come down heavily on them under frame work of law”.

While Supreme Court’s ‘wider’ and ‘purposive’ interpretation of the article 123 (3) has helped “strengthening the commission” to deal with such malpractices but at the same time has posed serious challenge to Commission as to how would it deal with, for example, the parties whose very identity as based on caste and religion.


Updated Date: Jan 04, 2017 18:38 PM

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