Counsel Shyam Divan says that 123 (3) of the Representation of the People Act refers only to the religion of the candidates
Parsa Venkateshwar Rao Jr
The seven-judge Constitution Bench led by Chief Justice TS Thakur posed the question: Can a candidate appeal, directly or indirectly, to the religion of the voters in seeking votes? The Bench took the view that it was not just the religion of the contesting candidates and their election agents which was at issue, but the religion of the voters too was at stake. The other judges on the bench are Justices Madan B Lokur, SA Bobde, Adarsh Kumar Goel, Uday Umesh Lalit, D.Y.Chandrachud and L. Nageswara Rao.
In the case which is revisiting the ‘Hindutva’ judgment delivered by Chief Justice JS Verma and others in the election petition against Shiv Sena leader Manohar Joshi, saying that Hinduism is a way of life and did not refer to the religion as such, Chief Justice Thakur made it clear that in the present case what was being considered was not philosophical discussion of what is religion, but it is restricted to whether religion can be used in elections. “What is religion is a broad question,” he said.
It was in this context that Chief Justice Thakur posed the question whether it was “permissible” for a candidate to seek votes in the name of the religion of the voters. Lawyer Shyam Divan said Section 123 (3) is restricted to the religion of the candidates, and that this specific reference to the religion of the candidates was brought in by an amendment to the Representation of the People Act in 1961. He said that before this amendment, which introduced the phrase “his religion”, referring to the religion of the candidate, the law said in general terms that race, caste, community and religion should not be used for seeking votes. Divan emphasised that 123 (3) should be interpreted literally.
Chief Justice Thakur also said that even as the law prohibits the use of “national flag, national emblem and national symbols” in seeking votes, the same prohibition would apply to the use of religion in an election.
Time and again the judges posed the question to Divan whether appeal to the religion of the ‘elector’ or voter comes into play or not. Taking the example of the election of Madhya Pradesh Bharatiya Janata Party (BJP) leader Sunderlal Patwa in 1993, Thakur said, whether it was permissible to seek the votes of the people for building a Hindu temple though Patwa was a Jain and therefore he was not violating the law. “Is that appeal permissible,” he asked. Divan replied that it “does not fall foul” of the law, though he thought it would be difficult to defend that position. In response to Justice Lokur’s observation that the law was intended to keep religion completely out of the election process, Divan asked whether the language of 123 (3) led itself to a broader interpretation without denying its possibility.
Divan went back to the wording of 123 (3) where it said “to vote or refrain from voting for any person on the ground of his religion”, and he said the key phrase was “his religion”, which referred to only the candidates and not to the religion of the electorate. He admitted that the issue of religion as a base for seeking votes would include the religion of all the candidates and their official agents as well as the religion or religions of the electorate. But he said that the scope of 123 (3) was restricted to the religion of the candidates. He also said that the earlier judgments of the court also affirmed the restricted sense of the phrase “his religion” in the amended sub-clause.
Divan also referred to the earlier phraseology used in the Representation of the People Act which prohibited “systematic use” of caste, race, community and religion to create enmity between groups. He also said that 123 (3) was a “carefully calibrated response of the legislature” and this is what the “legislature has decided.”
Lead Picture: (L-R) Supreme Court of India; Chief Justice TS Thakur