An election candidate who solicits votes by invoking religion, race, community, caste or religion of the electors/voters now runs the risk of committing a “corrupt practice” under the electoral laws, held the Supreme Court in a significant judgment on Monday.
Earlier, a candidate committed “corrupt practice” only if he used his religion or the rival candidate’s religion to garner votes. Giving a wider interpretation to the term “his religion” as mentioned in the language contained in Section 123(3) of Representation of Peoples Act 1951, a seven-judge Constitution Bench by a 4:3 majority said, “The word ‘his’ occurring in the Section refers not only to the candidate or his agent but is also intended to refer to the voter i.e. the elector.”
The majority verdict given by Chief Justice TS Thakur, Justices Madan B lokur, SA Bobde and l Nageshwar Rao held that, “The word Rs his’, therefore, must necessarily be taken to embrace the entire transaction of the appeal to vote made to voters and must be held referable to all the actors involved i.e. the candidate, his election agent etc and the voter.”
The dissenting decision by Justices Adarsh K Goel, UU lalit, and DY Chandrachud, however, refused to bring voter within the ambit of Section 123(3) and restricted “his” to refer to candidate, his agent and rival candidate alone.
Separate judgments penned by CJI Thakur, Justice lokur and Justice Bobde arrived at the common finding that candidates should refrain from making an appeal for votes on grounds of even the religion of voters whom they address during campaigning. Justice lokur favoured this wider interpretation to Section 123(3) finding support for this conclusion in Parliamentary debates and successive amendments made to the 1951 Act.
He employed “purposive” interpretation to hold that such a conclusion alone will “maintain the sanctity of the democratic process” and avoid the vitiating of secular atmosphere of democratic life. The CJI discussed the larger picture and suggested, “Constitutional ethos forbids mixing of religion or religious considerations with the secular functions of the State…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.”