In a landmark judgment that widened the scope of Section 123(3) of the Representation of the People Act, the Supreme Court has held that politicians cannot seek votes in the name of religion, caste, race, community or language, as it would constitute a corrupt practice sufficient to annul the elections.
The 4:3 majority decision by Chief Justice TS Thakur (now retired), justices MB Lokur, SA Bobde and L Nageshwar Rao said the term “his religion” used in the Section 123(3), means the religion and caste of all, including voters, candidates and their agents, etc.
Justice Thakur, in the judgment, said: “Electoral processes are doubtless secular activities of the State. Religion can have no place in such activities for religion is a matter personal to the individual with which neither the State nor any other individual has anything to do. The relationship between man and God and the means which humans adopt to connect with the almighty are matters of individual preferences and choices. The State is under an obligation to allow complete freedom for practising, professing and propagating religious faith to which a citizen belongs in terms of Article 25 of the Constitution of India but the freedom so guaranteed has nothing to do with secular activities which the State undertakes. The State can and indeed has in terms of Section 123(3) forbidden interference of religions and religious beliefs with secular activity of elections to legislative bodies.”
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Justice Lokur, in a separate but concurring judgment, said that, in a welfare state like ours, what is intended for the benefit of the people is not fully reflected in the text of a statute. “In such legislations, a pragmatic view is required to be taken and the law interpreted purposefully and realistically so that the benefit reaches the masses. Of course, in statutes that have a penal consequence and affect the liberty of an individual or a statute that could impose a financial burden on a person, the rule of literal interpretation would still hold good.”
Justice Bobde also agreed that wider interpretation has to be given to the provision to maintain the sanctity of the democratic process and to avoid the vitiating of a secular atmosphere.
However, the minority view by three judges—justices AK Goel, UU Lalit and DY Chandrachud—held that the term “his religion” means religion of the candidate only. Justice Chandrachud, writing the dissenting judgment, said that despite the 1951 Act undergoing several parliamentary amendments, the provision of Section 123(3) “has remained untouched even after governments have changed. There is merit in ensuring a continuity of judicial precedent. The interpretation which has earlier been placed on Section 123(3) is correct and certainly does not suffer from manifest error. Nor has it been productive of public mischief. No form of government is perfect. The actual unfolding of democracy and the working of a democratic constitution may suffer from imperfections. But these imperfections cannot be attended to by an exercise of judicial redrafting of a legislative provision…”
The far-reaching judgment assumes importance in the view of crucial assembly elections in five states, including the communally-sensitive Uttar Pradesh .
There are mixed reactions to the verdict. While religious organisations and political parties across the ideological divide have welcomed the ruling, others have sought more clarity.
Welcoming the decision, Vishva Hindu Parishad (VHP) joint general secretary Surendra Jain said “Vote bank politics would be curbed by this decision and the judgment will prove to be a landmark in nation-building.”
Supporting him, Congress spokesperson and former Union minister Manish Tewari said the “excellent decision reaffirms the fundamental values on which this nation was cast by the founders of the Indian Constitution.”
“This needed to be discouraged,” CPI leader D Raja agreed.
However, some felt that the judgment may clash with the Hindutva verdict as saffron parties can contend they are not seeking votes on the basis of religion. “Earlier, there was an order that Hinduism is not a religion. If Hindutva is also taken in the definition of religion, I think for a secular nation it is a good thing,” said Maulana Hakim Mehmood Dariyabadi, the general secretary of All India Ulema Council.
“Justice JS Verma, in the Manohar Joshi case, defined Hindutva as a way of life in 1995. This point has not been considered here and, as such, parties contesting polls on the Hindutva plank can take a stand that they are seeking votes on the basis of (concept of) way of life and not on religion,” Asaduddin Owaisi, the president of All India Majlis-e-Ittehadul Muslimeen said.
Even Maharashtra Navnirman Sena chief Raj Thackeray, said that the SC should not forget that states were formed on the basis of religion.
Both political and legal experts feel the decision to cleanse electoral politics in the country is good in spirit but could be difficult to implement.
Senior lawyer Indira Jaising said the Supreme Court has created a wall of separation between religion and politics, and reinforced the secular nature of the Constitution. “I think it will have a deep impact on the politics of the country; all parties will have to be cautious in the manner in which they draft their manifestos and do election speeches. For example, I do not think any candidate will be allowed to ask for votes on the grounds that he or his party will build a Ram temple if elected. Let us wait and see what happens.”
However, another lawyer Rahul Gupta believes that political parties will find a way out to influence voters.
Religion and caste have become so intertwined in Indian politics that it is almost impossible to imagine political parties functioning without using religion for electoral gains. “For enforcement, the Election Commission will have to get the ruling implemented in its letter and spirit by de-recognising political parties and debarring candidates who violate it. Police and the courts will have to ensure that all complaints of violations are dispensed in a time-bound manner,” Gupta said, adding that the Law Commission of India is working towards suggesting laws to tackle hate speeches and decide whether the Election Commission can be empowered to de-recognise a political party for making such speeches. This will go a long way in achieving clean politics.