On campaigning in the name of religion

Subject: Polity

Section: Elections

Context:

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’.

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 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 would 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 disfavor by the law.
The ECI has barred 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.