Explainer | Appeal On Ground Of Religion & Use Of Religious Symbols For Votes As 'Corrupt Practice' Under RP Act

In this election season, all voters need to understand how the law prohibits the appeal to votes on the ground of religion and the use of religious symbols in elections.

Section 123 of the Representation of the People Act, 1951 specifies the acts which are deemed to be "corrupt practices" in elections. Sub-sections (3) and (3A) are relevant for the purposes of this article.

Section 123(3) reads as follows :

The appeal by a candidate or his agent or by any other person with the consent of a candidate or his election agent to vote or refrain from voting for any person on the ground of his religion, race, caste, community or language or the use of, or appeal to religious symbols or the use of, or appeal to, national symbols, such as the national flag or the national emblem, for the furtherance of the prospects of the election of that candidate or for prejudicially affecting the election of any candidate:

Provided that no symbol allotted under this Act to a candidate shall be deemed to be a religious symbol or a national symbol for the purposes of this clause.

Section 123(3A) reads as follows :

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.

These provisions seek to curb the appeal for votes or promotion of feelings of enmity on the grounds of religion, race, caste, community or language in elections.

The ingredients of Section 123(3) can be broken down as follows for an easier understanding :

1. Appeal to vote or refrain from voting for any person on the ground of his religion, race, caste, community or language, or;
2. Use or appeal to religious symbols or the use of or appeal to national symbols
3. By a candidate or his agent or any other person with the consent of the candidate or his agent
4. To further the prospects of that candidate or to prejudicially affect the election of another candidate

To simplify, if candidates appeal to vote for them on the ground that they belong to A religion, or appeal to not vote for their opponents on the ground that they belong to B religion, it will be a corrupt practice.

Let us see how the Courts have interpreted this provision.

Judicial interpretations

One issue which vexed the Courts for long was whether the appeal to vote on the grounds of religion(or other identities) will be a corrupt practice only if it is done on the basis of the candidate's religion. For example, in an election involving candidates belonging to A and B religions, if one candidate appeals for vote using C religion, will it be a corrupt practice as per Section 123 of the RP Act.

This was because of the use of the word "his" in Section 123(3) ("appeal...to vote or refrain from voting for any person on the ground of his religion, race, caste, community or language")

There were certain judgments which held the view that the appeal must be made on an identity which was personal to the candidate. On the other hand, there were certain other judgments which took a broader view that any appeal to religious, caste, community or linguistic identity was a corrupt practice, regardless of whether the candidate belonged to such identity.

The issue was settled by a 7-judge bench of the Supreme Court in 2017 in the case Abhiram Singh v C.D. Commachen by 4:3 majority. The majority, preferring a purposive interpretation to a literal interpretation, held that Section 123(3) is not limited to appeals to the religion (or other identities) of the candidate or the rival candidate. The majority held that any appeal to religion (and other identities mentioned in the provision) would fall foul of Section 123(3).

In other words, any appeal to vote for oneself or not to vote for another person on the grounds of religion (or other identities) of the candidate, rival candidate or the voter will be a corrupt practice.

In the words of the Supreme Court :

"For maintaining the purity of the electoral process and not vitiating it, sub-section (3) of Section 123 of the Representation of the People Act, 1951 must be given a broad and purposive interpretation thereby bringing within the sweep of a corrupt practice any appeal made to an elector by a candidate or his agent or by any other person with the consent of a candidate or his election agent to vote or refrain from voting for the furtherance of the prospects of the election of that candidate or for prejudicially affecting the election of any candidate on the ground of the religion, race, caste, community or language of (i) any candidate or (ii) his agent or (iii) any other person making the appeal with the consent of the candidate or (iv) the elector."

Justice Lokur, in the majority judgment, expressed that with the tremendous reach of electronic and social media, it is all the more necessary now that the provision is given. a purposive interpretation. Justice Lokur also said that the social context must be taken into account by the Court while interpreting the provision.

"There is no doubt in our mind that keeping in view the social context in which sub-section (3) of Section 123 of the Act was enacted and today's social and technological context, it is absolutely necessary to give a purposive interpretation to the provision rather than a literal or strict interpretation as suggested by learned counsel for the appellants, which, as he suggested, should be limited only to the candidate's religion or that of his rival candidates," Justice Lokur observed.

The then Chief Justice of India TS Thakur forcefully asserted in his judgment the need to protect the secular and pluralistic character of the country. CJI Thakur wrote :

"Electoral processes are doubtless secular activities of the State. Religion can have no place in such activities for religion is a matter personal to the individual with which neither the State nor any other individual has anything to do. The relationship between man and God and the means which humans adopt to connect with the almighty are matters of individual preferences and choices."

CJI Thakur summed up the judgment as follows :

"An appeal in the name of religion, race, caste, community or language is impermissible under the Representation of the People Act, 1951 and would constitute a corrupt practice sufficient to annul the election in which such an appeal was made regardless whether the appeal was in the name of the candidate's religion or the religion of the election agent or that of the opponent or that of the voter's."

The minority view (held by Justices Chandrachud,UU Lalit and LN Rao) was that S.123(3) dealt with appeal on the ground of religion (and other identities) of the candidate or rival candidate and not the voter.

Now let us see some cases in which Section 123(3) has been applied.

Poster depicting candidate dressed as Lord Krishna and seeking votes is a corrupt practice

In Mullapudi Venkata Krishna Rao vs Vedulasuryanarayana(1993), the Supreme Court was dealing with an appeal filed by a candidate whose election was set aside by the High Court. It was found that posters showing the candidate as Lord Krishna were circulated. The Supreme Court held that such a poster would violate Section 123(3) RP Act.

"There is no doubt that the offending poster is a religious symbol. The depiction of anyone in the attire of Lord Krishna blowing a 'shanku' and quoting the words from the Bhagavad Gita addressed by Lord Krishna to Arjuna that his incarnation would be born upon the earth in age after age to restore dharma is not only to a Hindu by religion but to every Indian symbolic of the Hindu religion. The use by a candidate of such a symbol coupled with the printing upon it of words derogatory of a rival political party must lead to the conclusion that the religious symbol was used with a view to prejudicially affect the election of the candidate of the rival political party," the Court observed.

However, on facts, the Court held that there was no evidence that the offending posters were printed at the instance of the candidate. Hence, the Supreme Court sustained his election.

Using of a religious symbol associated with a deity to solicit votes a corrupt practice

In Ramanbhai Ashabhai Patel v. Dubhi Ajitkumar Fulsinji(1964), the Supreme Court stated that if a vote is solicited using the name of God or in the name of a Deity, that would amount to an appeal to vote in the name of a religious symbol, and is a corrupt practice. In this case, the candidate was allotted the symbol "Star" by the Election Commission. He was alleged to have distributed pamphlets describing the symbol as "Dhruva Star" to appeal to the Hindu religion. The Supreme Court took the view that it was not a religious symbol as such. Certain observations made by the Supreme Court are pertinent :

"A reference to prophets or religions or to deities venerated in a religion or to their qualities and deeds does not necessarily amount to an appeal to the religious sentiment of the electorate. Something more has to be shown for this purpose. If, for instance, the illiterate, the orthodox or the fanatical electors are told that their religion would be in danger or they will suffer miseries or calamities unless they cast their vote for a particular candidate, that would be quite clearly an appeal to the religious sentiment of the people. Similarly, if they are told that the wrath of God or of a deity will visit them if they do not exercise their franchise in a particular way or if they are told that they will receive the blessings of God or a deity if they vote in a particular way, that would be an appeal to the religious sentiment.

Similarly if they are told that they should cast their vote for a particular candidate whose election symbol is associated with a particular religion just as the Cross is with Christianity, that will be using a religious symbol for obtaining votes. But where, as in the case of the Hindu religion, it is not possible to associate a particular symbol with religion, the use of a symbol even when it is associated with some deity, cannot, without something more, be regarded as a corrupt practice within the meaning of sub- s. (3) of s. 123 of the Act.

For instance, a particular object or a plant, a bird or an animal associated with a deity is used in such a way as to show that votes are being solicited in the name of that deity or as would indicate that the displeasure of that deity would be incurred if a voter does not react favourably to that appeal, it may be possible to say that this amounts to making an appeal in the name of religion. But the symbol standing by itself cannot be regarded as an appeal in the name of religion."

Appeal need not be direct, if an appeal on ground of religion can be inferred

In Dr. Ramesh Yeshwant Prabhoo vs Shri Prabhakar Kashinath Kunte (1995), the Supreme Court held that the appeal on ground of religion need not be direct. The Court stated :

"The argument that such an appeal must be a direct appeal, such as `Vote for A because he is a Hindu' or `Do not vote for B because he is a Christian', and that no other appeal leading to that conclusion is forbidden, does not appeal to reason. What is forbidden by sub-section (3) is an appeal of this kind and, therefore, any appeal which amounts to or leads to this inference must necessarily come within the prohibition in sub-section (3). Whether a particular appeal is of this kind, is a question of fact in each case. Where the words used in the appeal are clear and unambiguous amounting to a direct appeal, the exercise of construing the speech is not needed. However, where a reasonable construction of the appeal leads to that conclusion, the result must be the same. The substance of the speech and the manner in which it is meant to be understood by the audience determines its nature, and not the camouflage by an artistic use of the language. For understanding the meaning and effect of the speech, the context has to be found in the speech itself and not outside it with reference to any other background unless the speech itself imports any earlier fact in the context of that speech. the speech has also not to be construed in the abstract or in the manner in which it would be construed after an academic debate. Care must be taken to remember that the public speeches during election campaign ordinarily are addressed to audience comprised of common men end, therefore, the manner in which it would be understood by such an audience has to be kept in view."

In this case, the Court held that the speech made by Shiv Sena leader Balasaheb Thackeray violated Sections 123(3) as they amounted to seeking votes on the ground that the candidate was a Hindu. The Court also held that the speech violated Section 123(3A) as it incited hatred against Muslims.

"The appeal made to the voters by Bal Thackeray in his aforesaid speech was a clear appeal to the Hindu voters to vote for Dr. Ramesh Prabhoo because he is a Hindu. The clear import of the above extracts in each of the three speeches is to this effect. The first speech also makes derogatory reference to Muslims.... The language used in the context, amounted to an attempt to promote feelings of enmity or hatred between that Hindus and the Muslims on the ground of religion. The first speech, therefore, also constitutes and corrupt practice under sub-section (3A)."

A single act is enough to invalidate the election

In 2018, the Kerala High Court set aside the assembly election of KM Shaji MLA (belonging to Islam religion) who was found to have appealed to Muslim voters to not vote for his rival candidate M V Nikeshkumar on the ground that the latter was not a follower of Islam. He was found to have distributed pamphlets among Muslim voters highlighting the non-Muslim identity of his rival.

The High Court observed that a "single act of appeal by a candidate or his agent or by any other person with the consent of the candidate or his election agent to vote or refrain from voting for any person on the ground of religion, race, caste or community etc. would be corrupt practice."

"The basic principle underlying S.123(3) of the R P Act would eliminate divisive factors such as religion, caste etc from the electoral process. Therefore the emotions generated by religion should not be permitted to be exhibited during election and choice of the people are not coloured in any way. The candidates cannot tell the electors that their rivals are unfit to act as the representatives of the people on the ground of their religion, if such an appeal is made it would be an appeal on the ground of religion," the High Court observed. In 2019, the Supreme Court passed an interim order allowing Shaji to attend the house and vote in the proceedings but restrained him from drawing any financial perks as an MLA. The appeal is pending in the Supreme Court.

Consequence of committing a corrupt practice

The commission of a corrupt practice by candidates or their election agents is a ground for the High Court to declare their election as void as per Section 100(b) of the RP Act. The election can be challenged only through an election petition filed by a candidate or an election before the High Court. Also, a candidate found guilty of corrupt practice will face disqualification under Section 8A of the RP Act which can be for a maximum term of six years.

Election Commission's advisory

Ahead of the 2024 Lok Sabha elections, the Election Commission of India issued an advisory cautioning the political parties against appealing to the religious feelings of the voters.

"No appeal shall be made on basis of caste/communal feelings of the electors. No activity, which may aggravate existing differences or create mutual hatred or cause tension between different castes/communities/religious/linguistic groups, shall be attempted," the ECI said in its advisory issued on March 1.

Before concluding, it is relevant to cite a pertinent observation made by the Supreme Court in Abhiram Singh.

"The elections to the State legislature or to the Parliament or for that matter or any other body in the State is a secular exercise just as the functions of the elected representatives must be secular in both outlook and practice. Suffice it to say that the Constitutional ethos forbids mixing of religions or religious considerations with the secular functions of the State. This necessarily implies that interpretation of any statute must not offend the fundamental mandate under the Constitution."