Monday , March 25 2019

SC: Candidate using religion, caste, race, community to seek votes can be barred

Can't seek votes in name of religion and caste

NEW DELHI: The Supreme Court lined on Monday that in search of votes in the name of religion, caste, race, community or language by a candidate, his agent or anyone with his consent would be a corrupt electoral practice interpreting the person open to disqualification.

The order, which few political and official sources felt would be of limited effectiveness in a country teeming with parties appealing to regional, caste-based and community identities, enlarged the scope of Section 123(3) of the Representation of the People Act in order to “maintain the purity of the electoral process”.

In addition, the apex court required to deal a body blow to communal politics by ruling a candidate could be disqualified if an appeal is made by any religious leader to his community to vote for him if it is recognised that such an appeal was made with the consent of the candidate. The existing provision under Section 123(3) provides for disqualification if a candidate or his agent or anyone who appeals to voters in the name of the candidate’s religion, caste, race, language or community.

In 1961, its ambit was sought to be broadened by striking off words like “systematic appeal” — in the name of religion, caste, community or language”: a caution which, many felt, diminished its effectiveness. In the event, however, the change also failed to realise the avowed objective because its application was restricted only to the candidate who sought votes on the strength of “his” religion, caste, race, language or community. The widely apparent gap has been addressed by the seven-judge Constitution bench by a four to three majority, banning candidates from seeking votes in the name of religion, language, caste and community irrespective of whether he highlights his own identity or that of his rival.

This means, a Hindu candidate would be disqualified if he, his agent or anyone with his or his agent’s accord appealed to voters not to vote for his opponent because he is a Muslim or Christian and vice-versa. An offence would be considered to be committed even if such an appeal is made not by the candidate himself or an agent in case it is recognised that the person making the pitch had acted with the consent of the aspirant. Though, establishing the consent of the candidate could prove a challenging task, felt EC officers, even as they pointed out that usual time consumed by a disqualification petition meant that such cases could remain without restricting a legislator’s term.

The majority judgment authored by Justices Madan B Lokur and L N Rao, with which Chief Justice T Thakur and Justice S A Bobde concurred, stated the purposive interpretation of Section 123(3) was essential, as felt by Parliament, to place a strong check on corrupt practices based on an appeal on the ground of religion during election campaign or otherwise.

Writing the main judgment, Justice Lokur stated: “The fears which formed the ground for modifying Section 123(3) of the Act have increased with the great reach already available to a candidate through the print and electronic media and now with access to millions through the internet and social media as well as mobile phone technology.”

“Hence, now, more than ever it is necessary to confirm that the provisions of sub-section (3) of Section 123 of the Act are not misused by a candidate or anyone on his or her behalf by making an appeal on the ground of religion with a prospect of disturbing even tempo of life,” he stated. “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 purposive interpretation to the provision rather than a accurate or strict interpretation as suggested by the counsel for appellants, which, as he suggested should be limited to the candidate’s religion or that of his rival candidates,” the majority judgment stated.

The court then summarised its view with a long paragraph: “For maintaining the purity of electoral process and not vitiating it, sub-section (3) of the RP Act, 1951, must be given a broad and purposive interpretation thus 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 consensus of a candidate or his agent to vote or abstain from voting for the furtherance of the prospects of the elections of that candidate or for prejudicially upsetting the election of any candidate on the ground of 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.

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