by Faiza Rahman

Last week, a seven Judge bench of the Supreme Court commenced hearing the much-anticipated appeals to decide the scope of Sections 123 (3)  of the Representation of People Act, 1951 (“RPA”), arising out of the “Hindutva cases”. However, on Tuesday, the Constitution bench caused a stir by stating that it will not reconsider its 1996 Manohar Joshi Judgement.  The Court reportedly said that it will not examine the meaning of “Hindutva” and will restrict itself to the issues raised in the reference.

This post seeks to discuss the background and nature of legal issues involved in the present appeal. This post will restrict its discussion to the issues pertaining to the scope of Section 123 of the RPA.

Electoral Corrupt Practices- A Background

Section 123 of the RPA defines “corrupt practices” in the electoral process.  The contentious part of the provision essentially prohibits a candidate or his agent or any third person with the candidate’s consent from appealing for votes or appealing to refrain from voting on the ground of his religion, race, caste, community or language.

In 1995-96, the Supreme Court had examined various appeals against the Bombay High Court verdicts which annulled the election of BJP and Shiv Sena candidates under this provision, during the Maharashtra assembly elections conducted after the 1992 Mumbai riots.

A three Judge bench, in Dr. Ramesh Yeshwant Prabhoo v. Shri Prabhakar Kunte held that the words “his religion” in the text of Section 123 (3) cannot include any reference or appeal to religion. According to the Court, it is quite clear that the section refers to the candidate’s religion, caste or language. The Court stated that “the appeal prohibited is that which is made on the ground of religion of the candidate for whom the votes are sought”. Further,“when the appeal is to refrain from voting for any candidate, the prohibition is against an appeal on the ground of the religions of that other candidate”.

Further, the Court clarified that during an election speech, reference can be made to any religion to “criticise any political party for practising discrimination against any religious group or generally for preservation of the Indian culture”. This, the Court said, cannot be called an appeal to vote on the ground of religion as prohibited under Section 123(3). It is only when religion, caste or language is used as a basis to garner votes for or against a candidate, does it amount to corrupt practice under Section 123(3) of the RPA.

At this point, it is interesting to note that unlike the abovementioned judgement, the seven Judge bench hearing the present appeal has been more inclined to give a wider meaning to the use of “his” in Section 123(3). The bench seems eager to include within its ambit, a reference to the religion of the candidate, his agent, or any other person who commits a corrupt practice with the candidate’s consent, his election agent and the voter. Further, the bench is particularly interested in examining if a religious leader’s appeal to his followers to vote for a particular political party will amount to “corrupt practice” under Section 123 of RPA.

What remains to be seen is how the Court will balance the right to freedom of speech of candidates and third parties with the concerns that stem from the use of religion, race, caste, communityor language as a basis for appealing for votes.

“Hindutva”:  A way of life or a religion?

In Yeshwant Prabhoo, the Supreme Court held that the “mere use of the word ‘Hindutva’ or ‘Hinduism’ or mention of any other religion in an election speech” does not bring it within the ambit of Section 123 (3) or 123(3A) of the RPA. The Court however, did not restrict itself to this assertion, it also went on to discuss the meaning of “Hinduism” and “Hindutva” in detail.  Speaking for the bench, Justice Verma stated that these terms depict the “way of life of Indian people” and cannot be confined “to the narrow limits of religion alone, excluding the content of Indian culture and heritage”. He said that their reference per se is not to be regarded as “promoting feelings of enmity or intolerance towards other religious communities or professing communalism”.

This understanding paved the way for the judgement in Manohar Joshi v. Nitin Patil. Here, the returned candidate promised that “the first Hindu State will be established in Maharashtra”, during an election meeting. A three Judge bench of the Supreme Court headed by Justice Verma held that this did not amount to “corrupt practice under Section 123 of the RPA. It stated that “a mere statement that the first Hindu State will be established in Maharashtra is by itself not an appeal for votes on the ground of his religion but the expression, at best, of such a hope.” Further, the Court reiterated that it cannot be held that “in the abstract the mere word “Hindutva” by itself invariably must mean Hindu religion”.

Subsequently, in Abhiram Singh v. C.D Commachen, a three Judge bench of the Supreme Court was asked to test the validity of an electoral verdict against Section 123(3) of the RPA.  The Court underscored the need to delineate the circumstances under which electoral speeches would amount to “corrupt practices” under Sections 123(3) or 3A of the RPA and referred the matter to a larger bench. Thereafter, a five Judge bench headed by Justice Lodha clubbed the abovementioned matter with a similar matter that was scheduled to be heard by a seven Judge Bench.

As mentioned earlier, this seven Judge bench has refused to admit the plea asking it to reconsider its 1996 judgment and delve into the larger issue of whether Hindutva is a “way of life” or a reference to Hindu religion. On Tuesday, the Court clarified that it will only pronounce upon what constitutes “corrupt electoral practice” under Section 123(3) of the RPA. The Court has reasoned that it will not examine the meaning of “Hindutva” as the reference before it does not raise it as an issue.

 Conclusion

The discussion of the cases above demonstrates the need to balance three critical concerns when it comes to electoral malpractice and free political speech. First, the secular ethos of the election process should be maintained i.e. candidates should not ask for votes on the basis of religion, race, caste, community or language. Second, freedom of speech and expression should be the norm and restrictions should be an exception. Third, questions as to whether the electoral process should also provide avenues to legitimately criticize and expose discrimination practiced by political parties.

In light of these pressing concerns, it is surprising that the seven Judge bench hearing the present appeal has relied upon procedural propriety to justify its refusal to reconsider its previous judgements in entirety. As a result, the meaning of “ Hindutva” as expounded in the cases mentioned above, stands.This means that candidates can continue to garner votes on the basis of vague references to “Hindutva”, including promising to establish a Hindu state.

It is also clear from the proceedings that the Constitutional Bench is inclined towards widening the meaning of corrupt electoral practices under Section 123(3) of the RPA.  However, it will be interesting to see how the Court will do this in an age where election campaigns are being fought both in the physical and the virtual realm.