GS Paper II

News Excerpt: Recently The BJP complained to ECI about Rahul Gandhi’s remark for Hindu sentiment; While DMK counter-complained for religious appeal made by PM.

What is Section 123 of RPA’51?

• 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 1951 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.

History of Implementation of the RP Act and the MCC:

• 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.
• There have been innumerable instances in the past where various parties and its leaders have blatantly appealed for votes in the name of religion. 
• There are leaders across political parties against whom cases have been registered under the RP Act and the Indian Penal Code in this regard.
• However, the only notable leader who was convicted by the Supreme Court for this corrupt electoral practice was Bal Thackeray of Shiv Sena in the year 1995. 
• The ECI on such occasions at best bars leaders from campaigning, for violation of the MCC, for a short period of two to three days.

What was the judgment?

Key points related to Abhiram Singh versus C. D. Commachen (2017) case:

• Decision: 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.
• Interpretation of Section 123(3): The majority view provided a ‘purposive interpretation’ to Section 123(3) rather than just a literal one. This rendered any appeal in the name of religion of even the voters as a corrupt electoral practice.
• Secular Nature of Elections: Elections to Parliament or State legislatures are deemed as secular exercises. The constitutional ethos forbids the mixing of religious considerations with the secular functions of the State.
• Religion as Personal Faith: Religion should remain a matter of personal faith and not be exploited for political gains.
• Legitimate Concerns Addressed: While candidates may raise legitimate concerns of citizens based on traits such as religion, caste, community, or language, it should only be to address grievances through appropriate policies without jeopardizing the secular fabric and fraternity of the country.
• Polarization Risks: Appeals made in the name of religion can further polarize the multi-religious society.
• Use of Places of Worship: Places of worship have often been used as a forum for political canvassing, which should ideally be avoided to prevent the mixing of politics and religion.
• Responsibility of Political Leaders: The primary responsibility lies with political party leaders and candidates to refrain from campaigning on the basis of religion, which not only disturbs the secular fabric of the polity but also violates the law.
• Mechanisms for Enforcement: The Election Commission of India (ECI) and courts should devise mechanisms for swift action against those violating the law by using religion in electoral campaigns.

Way Forward: 

• Any appeal made solely on the basis of religion tends to exacerbate the polarization within our diverse society. Historically, places of worship have been utilized as platforms for political canvassing, with religious leaders endorsing candidates from various parties. 
• Such practices should ideally be avoided to prevent the intertwining of politics and religion. 
• The primary responsibility for this lies with political party leaders and candidates. Campaigning based on religion not only disrupts the secular nature of our political system but also constitutes a clear violation of the law. 
• The Election Commission of India (ECI) and the judiciary should establish swift mechanisms to address violations of these laws.

Conclusion: Political parties and candidates often raise valid concerns of citizens rooted in religion, caste, community, or language during democratic elections. However, it is essential that these concerns are addressed through appropriate policies without compromising the secular principles and unity of the nation.