Why in the news? 

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): 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 grounds of his religion, race, caste, community or language is a corrupt electoral practice.
• Section 123(3A): It denounces any attempt by a candidate to promote feelings of enmity or hatred among citizens on these grounds during elections.
• Punishment: 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) is a set of guidelines issued by the Election Commission of India to regulate the conduct of political parties and their candidates in the run-up to elections. They have consented to abide by the principles embodied in the said code.
  • Candidates cannot promote hatred or difference: It provides that no party or candidate shall indulge in any activity that may aggravate existing differences 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
  • Candidate cannot use worship place: 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.

Historical Background:

• Amendment in 1961: Section 123(3) of the Representation of the People Act (RP Act) was amended to remove the term “systemic” regarding appeals based on religion, race, caste, or community. This broadened the scope of what constitutes corrupt electoral practice.
• Purpose of the Amendment: The amendment aimed to curb communal, fissiparous, and separatist tendencies in electoral politics by disfavoring even isolated appeals based on religion or narrow communal affiliations.
• Instances of Appeals Based on Religion: Despite legal provisions, there have been numerous instances where political parties and leaders have openly appealed for votes in the name of religion.Bal Thackeray of Shiv Sena was the only notable leader convicted by the Supreme Court for this corrupt electoral practice in 1995.
• Election Commission’s Response: The Election Commission of India (ECI) typically imposes short bans on campaigning for leaders found in violation of the Model Code of Conduct (MCC), usually lasting two to three days.

What has the Supreme Court ruled?

• 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.
• Purposive interpretation’ to Section 123(3): 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.
• Elections are secular exercise: 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.

Measures Needed:

• Raise legitimate concerns: Political parties and candidates are likely to raise legitimate concerns of citizens faced by them based on traits having origin in religion, caste, community or language in a democratic election process.
• Addressing Grievances: These concerns should be addressed through appropriate policies without compromising the secular fabric and fraternity of the country.
• Use of Places of Worship: Places of worship have always been used overtly and covertly as a forum for canvass. Religious leaders have thrown their weight behind candidates of various parties. These practices should ideally be avoided to ensure that politics and religion are not mixed up
• Responsibility of Political Leaders: The primary responsibility for avoiding appeals based on religion lies with political party leaders and candidates because campaigning based on religion not only disrupts the secular nature of Indian politics but also constitutes a clear violation of the law.
• Role of Election Commission and Courts: Mechanisms should be devised by the Election Commission of India (ECI) and courts for swift action against those who violate laws regarding appeals based on religion in electoral campaigns.

Conclusion: The legal framework prohibits appeals based on religion in electoral campaigns to maintain the secular nature of elections. The Election Commission enforces the Model Code of Conduct, with penalties for violators, ensuring fair and unbiased electoral practices.

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