Keep religion out of elections: Supreme Court’s historic verdict

By a majority decision on Monday, a seven-judge Constitution Bench of the Supreme Court ruled that seeking votes in the name of caste, creed or religion is not permissible under the ‘basic structure’ of the Constitution and may amount to ‘corrupt practice’ in terms of section 123 (3) of the Representation of People Act.

The seven-judge Constitution bench comprising Chief Justice TS Thakur, justices Madan B Lokur, SA Bobde, Adarsh Kumar Goel, UU Lalit, DY Chandrachud and L Nageswara Rao delivered the historic verdict.

However three judges—justices Adarsh Kumar Goel, UU Lalit and DY Chandrachud—dissented with the majority opinion and said that the matter must be left to Parliament to decide.

“Discussion on caste, creed, religion is constitutionally protected within and outside elections and this cannot be restricted,” Justice Chandrachud held, writing the minority opinion.“It is a matter of free speech and through this legitimate concerns of the society are addressed,” he added.

The Supreme Court also said that the relation between man and God is an individual choice and that the state should refrain from interfering from such activities. The majority view of the Supreme Court upheld that if a politician makes an appeal for vote on the basis of his religion or requests his voters and agents to vote on the basis of caste, creed and religion, the elections will be void.

The ruling came in a case which has been pending for the last 20 years since the landmark judgment by a three-member bench headed by late Justice JS Verma, which had ruled that ‘Hindutva’ was a way of life and therefore there was nothing wrong in invoking Hindutva in elections.

While Justice Verma’s ‘Hindutva’ judgment came in 1995, another three-judge bench headed by K Ramaswamy had voiced its difference and suggested that the case be decided by a larger, Constitution bench. However the appeal remained pending for 20 years before it was taken up by the apex court in 2016.

Today’s ruling follows the court’s observation in October that it was not inclined to revisit the 1995 ruling. The limited question before the court, it had said, was whether the bar on invoking religion in political speeches was limited only to the religion of the candidate and his agent or whether it extended to voters as well.

Several BJP-ruled states including Madhya Pradesh, Gujarat and Rajasthan had intervened and pleaded that “Religion can never be separated from Society”. The counsel for the states Shyam Divan had urged the court to leave the issue to the Parliament. But the bench questioned why Parliament had not clarified the issue or made suitable amendments during the last two decades.

Significantly the court had asked the counsel for BJP leader late Sundarlal Patwa whether Patwa, a Jain, could seek votes then by promising to build a Ram Temple ? Or could a self-proclaimed atheist seek votes by invoking any religion ?

The majority of the seven-judge bench today ruled that the bar on invoking religion in the Representation of People Act extended to voters as well while dissenting judges, three of them, felt the bar was meant for only the religion followed by the candidate or his agent.

Section 123 (A) of the RPA Act specifies the following as constituting corrupt practice in elections : “ The promotion of, or attempt to promote, feelings of enmity or hatred between different classes of the citizens of India on grounds of religion, race, caste, community, or language, by a candidate or his agent or any other person with the consent of a candidate or his election agent for the furtherance of the prospects of the election of that candidate or for prejudicially affecting the election of any candidate.”

Social activist Teesta Setalvad, Shamsul Hasan—a retired Professor, journalist Dilip Mandal and others had also filed applications to intervene in the ongoing proceedings and urged the Supreme Court to overturn the 20-year-old ‘Hindutva’ verdict to prevent political parties from espousing religious sentiments under the claim that ‘Hindutva’ was not a religion, but a way of life, for the purpose of garnering votes and getting elected.

They disputed the proposition of the former Chief Justice JS Verma that an appeal to voters on the basis of Hindutva did not constitute an appeal on the basis of religion. They said the December 1995 judgment required reconsideration.

These petitioners had pointed out that for the past two-and-a-half years (since the Modi government came to power at the Centre), articulations of a narrow, supremacist variety have endangered a deep feeling of insecurity among minorities, free thinkers, atheists and all those who uphold the constitutional ideal of an India meant for all, irrespective of caste, creed, gender, politics or faith.

They pointed out that the “corrupt practice” as prescribed by section 123(3) of the Representation of the People Act undoubtedly constitutes a very healthy and salutary provision, which is intended to serve the cause of a secular democracy in this country. In order that the democratic process should thrive and succeed, it is of the utmost importance that our elections to parliament and the different legislative bodies must be free from the unhealthy influence of appeals to religion, race, caste, community, or language, they said.