Are religious appeals to voters an electoral offence?

Did Prime Minister Modi’s speech in Tamil Nadu, where he accused Rahul Gandhi of insulting Hinduism, violate the Representation of the People Act?

Narendra Modi addresses a meeting in Chennai on March 4, 2024. The PM’s speech, wherein he accused Rahul Gandhi of insulting Hinduism, has resulted in complaints that the former violated the Model Code of Conduct. | Photo Credit: R. Satish Babu

Did Narendra Modi commit an electoral offence under Section 123(3) of the Representation of the People Act while campaigning in Tamil Nadu last week? Narendra Modi reportedly said that Hindus believe in nari shakti and matru shakti, and alleged that the opposition leaders of the INDIA bloc have declared that their fight is against shakti and that such statements should be considered insults to Hinduism. “In its rally in Mumbai’s Shivaji Park, the INDIA bloc openly announced that it wants to destroy the shakti that the Hindu religion has faith in. Everyone in Tamil Nadu knows what shakti means in the Hindu religion”, Modi is heard saying in a video of the speech.

Prime Minister Modi, of course, alluded to the speech by Congress leader Rahul Gandhi at the Mumbai event, wherein the latter had simply said that shakti is a word in Hinduism and that the opposition is fighting against a “shakti”, which refers to Electronic Voting Machines and Enforcement Directorate (ED). Although Rahul Gandhi clarified that he did not refer to any religious power, but the shakti (might) of unrighteousness, corruption, and falsehood, the Prime Minister continues to interpret what Rahul Gandhi said in the religious context, to derive electoral benefit.

Complaint to ECI

Former civil servant, and civil society activist, E.A.S. Sarma has written to the Election Commission complaining that the Prime Minister had violated the Model Code of Conduct and cited his appeals to voters referring to shakti in Hinduism and urged the Commission to urgently initiate deterrent and exemplary proceedings against him.

While the Election Commission has the responsibility to reprimand candidates and political leaders violating the Model Code of Conduct during the election campaign, any aggrieved voter or candidate can allege the commission of corrupt practice under Section 123(3) of the Representation of the People Act (RPA). The Election Commission, either suo motuor based on a complaint, notes the violation of the Model Code of Conduct, which says that there shall be no appeal to caste or communal feelings for securing votes, and if it is not satisfied by the reply of the alleged violator to its concern, may choose to either issue a warning or reprimand or bar the leader concerned from campaigning for a short period.

Under Section 123(3) of the RPA, 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 grounds 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 will be deemed a corrupt practice.

In Abhiram Singh v. C.D. Commachen (Dead)(2017) a seven-judge bench of the Supreme Court, interpreted the words “on the ground of his religion” in Section 123(3) of the RPA, as referring to the religion of both the candidate and that of the voter. Before this judgment, the Supreme Court had held that the bar for appealing on the grounds of religion must be confined to the religion of the candidate—both for the furtherance of the prospects of the electoral victory of that candidate or for prejudicially affecting the same.

If a candidate is found guilty of a corrupt practice the election might be declared void and that candidate might also suffer disqualification for six years and will be barred from contesting any as well as voting in any election. Therefore, the Supreme Court, before Abhiram Singh, chose to give Section 123(3) of the RPA a restricted application.

However, in Abhiram Singh the Court, by a 4:3 majority, took the view that interpreting the RPA in a manner that assists candidates in an election rather than the elector or the electorate in a vast democracy like India’s would be going against public interest. The Court held that Parliament felt it necessary to put some fetters on the language that might be used so that the democratic process is not derailed but strengthened. A strong check on corrupt practices based on an appeal on grounds of religion during election campaigns was thus considered imperative.

The court also took note of the tremendous reach available to a candidate today through print and electronic media, the internet, and social media as well as mobile technology. “Therefore now, more than ever, it is necessary to ensure that the provisions of sub-section (3) of Section 123 of the Act are not exploited by a candidate or anyone on his or her behalf by making an appeal on the grounds of religion with a possibility of disturbing the even tempo of life”, Justice Madan B. Lokur, wrote on behalf of the majority Judges, in Abhiram Singh.

The then Chief Justice of India, T.S. Thakur, who wrote a separate judgment, in support of the majority view, held that electoral processes are doubtless secular activities of the state, and religion can have no place in such activities as it is a personal matter for individuals with which has no relation to the state or any citizen.

The late Balasaheb Thackeray was disqualified from voting as well as contesting for six years, after the Shiv Sena leader was found guilty of appealing to voters on the basis of religion, on behalf of Ramesh Yeshwant Prabhoo, an independent candidate, contesting with support from the Shiv Sena at a byelection in 1987. The portion of Thackeray’s speech, that made him guilty of electoral corruption, was as follows: “We are fighting this election for the protection of Hinduism. Therefore, we do not care for the votes of the Muslims. This country belongs to Hindus and will remain so”.

It is anybody’s guess whether the Prime Minister’s speech alluding to Rahul Gandhi’s reference to shakti as “religious” and making an appeal for the BJP on that basis, rather than the opposition INDIA bloc, could invite the rigour of Section 123(3) of the RPA, as interpreted in Abhiram Singh by the Supreme Court.

V. Venkatesan is an independent legal journalist based in New Delhi. Formerly Senior Associate Editor with Frontline, he has been reporting and commenting on legal issues for news portals.