Terming religion a very private relationship between man and his God, a seven-judge Bench of the Supreme Court on Monday, in a majority judgment, held that an appeal for votes during elections on the basis of religion, caste, race, community or language, even that of the electorate, will amount to a ‘corrupt practice’ and call for disqualification of the candidate.
“Election is a secular exercise and therefore a process should be followed… The relationship between man and God is an individual choice and state should keep this in mind,” the Supreme Court held in a majority judgment of 4:3. The court was interpreting the pronoun ‘his’ used in Section 123 (3) of the Representation of the People Act.
The provision mandates that it would amount to a ‘corrupt practice’ if a candidate or his agent or any other person, with his consent, appeals for votes on religious or such grounds.
It will be a disservice to the ‘little man’: SC
The question referred to the Constitution Bench led by Chief Justice of India T.S. Thakur on a batch of election petitions was whether the word ‘his’ used in Section 123 (3) of the Representation of the People Act only meant a bar on appeals made in the name of the candidate or his rival or his agent or others in his immediate camp. Or, does the word ‘his’ also extend to soliciting votes on the basis of the religion, caste, community, race, language of the electorate as a whole.
The latter would mean a blanket ban on any appeal, reference, campaign, discussion, dialogue or debate on the basis of religion, race, caste, community or language, even if such a debate was on the deprivations suffered by the voters due to these considerations.
The majority on the Bench — the Chief Justice and Justices Madan B. Lokur, S.A. Bobde and L. Nageshwara Rao — interpreted that Parliament meant by ‘his’ a complete ban on any reference or appeal to religion, race, community, caste and language during elections. This meant the pronoun extended to the social, linguistic and religious identity of the voter also.
Chief Justice Thakur said appealing on the basis of religion would amount to “mixing religion with State power.”
“Elections to the State legislature or to the Parliament or for that matter any body in the State is a secular exercise just as the functions of the elected representatives must be secular in both outlook and practice,” Chief Justice Thakur observed in his separate judgment, throwing his lot with Justices Lokur, Rao and Bobde.
Legislative aim
Justice Lokur said the primary legislative aim of Section 123(3) of the Representation of People Act is to “curb communal and separatist tendencies in the country.”
Justice Lokur said that by allowing a candidate to take advantage of the voters’ religious identity merely to gain votes would be a disservice to the “little man” and against public interest.
Quoting Winston Churchill, Justice Lokur said: “At the bottom of all tributes paid to democracy is the little man, walking into the little booth, with a little pencil, making a little cross on a little piece of paper...”
Justice Bobde summarised that Section 123 proscribed all appeals based on sectarian, linguistic or caste considerations during election campaigns in order to “infuse a modicum of oneness, transcending such barriers.”
He borrowed, in this context, Rabindranath Tagore’s phrase that election campaigns should transcend the fragmented “narrow domestic walls.”
Dissenting with the majority and delivering a scathing retort, the minority judgment authored by Justice D.Y. Chandrachud pointed to the historic discriminations and deprivations suffered by the masses on the ground of religion, caste and language. Justice Chandrachud wrote that these were social realities in our country that the Indian addresses.
‘Cannot be barred’
“How can this be barred from being discussed in an election? Religion, caste and language are as much a symbol of social discrimination imposed on large segments of our society. They are part of the central theme of the Constitution to produce a just social order. Electoral politics in a democratic polity is about social mobilisation,” Justice Chandrachud wrote in his separate judgment supported by Justices A.K.Goel and U.U. Lalit.
