Why the Law Fails to Ensure Politicians Don't Ask for Votes in the Name of Religion

It is time we revive our political morality to uphold conventional and constitutional values.

By now, leaders of the ruling Bharatiya Janata Party have made a habit of asking for votes in the name of religion, notwithstanding the fact that the law does not allow such practices.

Most recently, Prime Minister Narendra Modi in a public meeting during the election campaign in Karnataka asked voters to chant the slogans of ‘Bajrang Bali‘ and teach a lesson to the Congress.

The significant blurring of the distinction between religion and politics in modern India not only raises the questions on the constitutional role of the institutions meant to maintain it but also the individuals governing it. Although these amount to egregious violations of the Model Code of Conduct, whether the Election Commission will take action is anybody’s guess.

Elections in India are regulated under the Representation of People Act, 1951.

To ensure that people of high ethical values are elected as representatives of the people of India, the RPA has laid down certain rules of electoral morality and prohibited certain acts which denigrate the purity of the elections.

Part VII of the RPA classifies condemnable acts committed during elections into two categories: a) corrupt practices and b) electoral offences. The principal distinction between these two categories of prescribed acts is that while a wrong committed under corrupt practice can be brought before the courts only at the end of elections by way of an election petition filed in accordance with the provisions of Article 329(b) of the constitution of India and Part VI of the RPA, an electoral offence can be taken cognisance of and proceeded with as soon as the offence is committed as per the provisions of the Criminal Procedure Code, 1973.

Also read: Will the EC Act on Complaint Against Modi’s Call for ‘Jai Bajrang Bali’ in Polling Booths?

Further, while conviction for a corrupt practice entails civil disabilities like disqualification from voting and contesting elections for a certain period, conviction for electoral offence attracts criminal liability like imprisonment for a term which may extend to three years, or with fine, or both. 

In the realm of the religious electoral speech debate in India, the relevant provisions of the RPA are section 123(3) 123(3A) and 125.

As per 123 (3), appeal in the name of religion, caste, community or language is a corrupt practice. Further, promotion or attempt to promote enmity and hatred amongst different groups of people is both a corrupt practice under section 123(3A) and an electoral offense under section 125.

The necessity of the provision under section 123 (3) is explained by the apex court in the case of Ramesh Yeshwant Prabhoo (Dr) v 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.” This will keep the secular ethos of the Indian polity intact.

The Supreme Court further held that the restriction imposed in Section 123(3) is in the interest of decency in a secular polity is thus a reasonable restriction within the meaning of Article 19(2) and not violative of the fundamental right of speech and expression under Article 19 (1)(a). 

The apex court in the case of Abhiram Singh vs CD Commachen held and reaffirmed this view that “seeking or asking votes in the name of the religion is a corrupt practice”. An election is a secular exercise and an appeal made in the name of religion, caste, or race is not allowed under the law, it said. Despite the court ruling and the legal remedy, the appeal in the name of religion has emerged as a challenge for both polity and law. 

Constitutional and legal recourse

Democratic values are enshrined by the functioning of constitutional and legal institutions.

The Election Commission of India is the designated body that controls the use of religious speech, symbols and invocations in elections. The model code of conduct lays down the guidelines on the behaviour of political parties during elections. For the first four decades of its existence, the observance of MCC was largely left to the good sense of political parties. It remained a passive document providing general guidelines. The MCC was intended to be followed voluntarily by political parties so as to keep election campaigns on healthy lines to ensure peace and order during the campaign period.

As long as the MCC remained on paper and was not strictly enforced, there was no opposition.

However, when the EC vigorously asserted its power to enforce the MCC by taking stringent action ranging from censuring candidates to canceling by-elections for violation of MCC provisions, it was met by stiff resistance. The validity of the MCC and the legitimacy of actions taken under it were questioned. In recent times, the role of the Election Commission in selectively choosing to enforce the rules has been questioned.

Several scholars like Tarunabh Khaitan and Mukulika Banerjee have argued that the EC has largely become what journalist Seema Chishti has called a “biased referee”. 

Also read: Ten Factors to Remember Amidst the Congress’s Win and BJP’s Defeat in Karnataka

The limitations of legal recourse to this mixing of religion and politics, tell us that we need to look for a solution beyond the law. 

The initial years of the Indian republic witnessed a constitutional vision that the state would be equidistant from religion.

India’s first prime minister, Jawaharlal Nehru, had said in a radio address on December 1, 1947, “We must constantly remind ourselves that whatever our religion or creed, we are all people.”

The country’s second prime minister, Lal Bahadur Shastri, had remarked, ”The unique thing about our country is that we have Hindus, Muslims, Christians, Sikhs, Parsis, and people of all other religions. We have temples and mosques, gurdwaras and churches. But we do not bring all this into politics”.

It is time we revive our political morality to uphold conventional and constitutional values. As Professor Cass R. Sunstein says, “Our imaginations, moral and otherwise are populated by identifiable types of people. Whether it’s the subject of law, sports, politics or friendships, human beings are subjected to particular types.”

It’s time that our politicians shape our imaginations with the implicit understanding of separation of religion from politics which was the virtue of our early office holders in politics. 

Rajesh Ranjan is a Samta fellow and Namrata Jeph is a graduate of National Law University, Jodhpur.