Context

Recently a political party filed a complaint with the Election Commission of India (ECI) against a prominent opposition leader for hurting Hindu sentiments with his remark on ‘shakti’.

Legal Provisions Regarding Appeals in Elections

• Section 123(3) of the RP Act 1951: It provides that appeals by a candidate or any other person to vote or refrain from voting based on his/her religion, race, caste, community, or language is a corrupt electoral practice.
• Section 123(3A) of RP Act 1951: It denounces any attempt by a candidate to promote feelings of enmity or hatred among citizens on these grounds during elections.
• Violation of these Provisions: Violations of these regulations can result in a candidate being barred from running in elections for up to six years.

Model Code of Conduct On Religion in Election Campaign

• Guidelines for Political Parties: The MCC, a set of guidelines for political parties and candidates, forbids acts that increase existing divisions or cause animosity between groups.
• Prohibition to garner votes on Caste and Communal lines: It further states that there will be no appeal to caste or sectarian feelings to secure votes.
  • Mosques, churches, temples, and other houses of worship shall not be used as platforms for election propaganda.
• Absence of Statutory backing: Though the MCC lacks statutory backing, it has developed in strength due to the ECI’s severe enforcement since its inception in the 1990s.

Historical Context and Amendments

• Corrupt Electoral Practice: Before 1961, the term ‘systemic’ was used in Section 123(3) of the RP Act, meaning that appeals on religious, racial, caste, or communal grounds would be considered corrupt election practices.
• Amendment in 1961: However, to combat communal, fissiparous, and separatist tendencies, the word systemic’ was removed in 1961.
  • Effect of the Amendment: This meant that even a stray call for electoral success based on religion or restricted communal connection would be considered negatively by the law.
• Proceedings under the RP Act: Several examples occur in which politicians from various political parties have appealed for votes on religious grounds, resulting in proceedings under the RP Act and the Indian Penal Code.
  • The only notable leader convicted by the Supreme Court for this corrupt election practice was Bal Thackeray of the Shiv Sena in 1995.
• Prohibition from Campaigning: The ECI often prohibits leaders from campaigning for two to three days due to a violation of the MCC.

Supreme Court Rulings

• Abhiram Singh versus C. D. Commachen (2017): A majority decision in Abhiram Singh versus C. D. Commachen (2017) read Section 123(3) in a purposive manner, prohibiting votes based on the religious beliefs of both candidates and voters.
• Ramesh Yeshwant Prabhoo (Dr) versus Prabhakar Kashinath Kunte: The court observed that it is necessary “to ensure that no candidate at an election gets votes only because of his religion and no candidate is denied any votes on the ground of his religion.

Recommendations for Ensuring Secularism

• Addressing Legitimate Concerns: Political parties and candidates should address citizens’ real concerns while maintaining the country’s secular structure.
• Avoiding religious appeals: Avoiding religious appeals can help prevent greater polarisation in society.
• Avoiding Places of Religion for Campaigns: The use of places of religion for political campaigns should be avoided.
• Speedy Redressal Mechanism: The ECI and courts should provide speedy processes to redress infringement of religious appeals regulations.

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