The Delhi high court dismissed the petitions seeking that the Election Commission of India (ECI) take action against the Prime Minister for his campaign speeches that implore people to vote in the name of religion.
The petition was filed impugning the infamous speech of the Prime Minister, which he delivered in Banswara, Rajasthan, on April 22, where he referred to Indian Muslims as “infiltrators” and as those producing “more children.”
This speech was followed by subsequent speeches where he repeated the same rhetoric and untrue assertions that opposition parties would give the wealth of the nation to “Muslims.” Going further, he also backed “Yogi’s bulldozer” at rallies, legitimising the use of the chief minister’s illegal bulldozing of Muslim houses in Uttar Pradesh and also coining divisive terms like “vote jihad.”
However, the petition demanding that action be taken was dismissed in no time.
Reading the court’s dismissal
In response to the petitions filed before the Delhi high court, the court issued a two-page order dismissing the petition by calling it “wholly misconceived“, which is done on two grounds. Firstly, the court, in the petition, saw a presumption of violation in the Prime Minister’s speech that was delivered and, secondly, a presumption that no action would be taken by the ECI.
The court, in its order, noted, “…any such pre-supposition is misconceived in as much as it is for the Election Commission of India to take an independent view in this regard.” The high court, thus, admonished the petitioners for assuming that the Prime Minister’s words were illegal and thus a breach of the law.
But in saying so it gave no explanation regarding how it concluded that it was not a case of hate speech prima facie. The court’s order was bereft of any reasoning in how it sees the Prime Minister as not violating the law.
Furthermore, the court also failed to delve into the contents of the speech that was presented before it. What becomes pertinent here is to ask what ‘pre-supposition’ really meant in its order in particular and in a court proceeding in general. It is well noted that in court, the aggrieved party presupposes a breach of law and comes to court to test their case.
The role of the constitutional court, which has been bestowed with extraordinary jurisdiction, is to prima facie examine the merits of such a case. The court, which should have examined the impugned speech, did not make any such attempts. One also fails to understand how calling the Muslim community “infiltrators” required some thorough analysis by the Election Commission, which no ordinary citizen could presuppose in the beginning.
Rather than going into any kind of analysis or argumentation, the court accepted the submissions by the counsel for the Election Commission, which showed some action was underway. It also shrugged off its constitutional duty by saying that a general advisory had been issued to all political parties to not engage in any kind of hate speech.
By not posing even a single question to the Election Commission for acting so casually on the petitioner’s representation, the court normalised the inaction of the Commission. It recorded in its order, “It is pointed out by learned counsel for the ECI that a detailed advisory was issued by the ECI to political parties on 1.2.24. It is further pointed out that a notice dated April 25, 2024, has also been issued by ECI, and further appropriate action or steps shall be taken, if necessary, upon receipt of the reply to the said notice.”
It found that the letter to the president of the ruling party, requiring clarification on the prime minister’s remarks, was enough. Thus, the court declined to use its jurisdiction by placing its unflinching confidence in the Election Commission and questioned the petitioners for not patiently waiting for the Commission to act. The court expected the citizens to keep their faith despite the fact that the Commission has not issued a direct notice to the Prime Minister for his speeches until today.
It ignored Section 123(3) of the Representation of People’s Act, which clearly prohibits and restricts any candidate or their representatives from pleading ‘religion’ or using’ religious symbols’ to garner votes.
What the law says on seeking votes in name of religion
The 7-judge Constitutional bench of the Supreme Court in Abhiram Singh vs. C.D. Commachen in 2017, with a 4-3 split verdict, declared it a corrupt practice to appeal and seek votes in the name of “religion.” In this case, the Supreme Court expanded the definition of “his” in Section 123(3) by holding that “his religion” refers not only to the religion of the candidate or his authorised agent or person making an appeal with the consent of the candidate or his rival candidate but also includes the religion of voters and electors. By giving a purposive interpretation to clause 3 of Section 123, the court wholeheartedly held that any appeal for votes in the name of religion is strictly restrained.
The reason for the same are noted in the Supreme Court judgment where it stated, “maintaining the purity of the electoral process and not vitiating it, clause 3 of the Section 123 of the Representation of 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 the candidate or his election agent to vote or refrain from voting for the furtherance of the prospects of the election of any candidate on the grounds of the religion, race, caste, community, 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.”
The Supreme Court in the aforesaid judgement also noted that “the elections to the State Legislature or to Parliament, or for that matter, to any other body in the state, are a secular exercise, just as the functions of the elected representatives must be secular in outlook and practice. Suffice it to say that constitutional ethos forbids mixing of religions or religious considerations with secular functions of the state.”
Furthermore, by enacting Section 123(3) and through its amendment in 1961, the legislation also demonstrated that the intent of the Act was to prevent any communal tendencies in the electoral process and to make them electoral offenses.
Further, Chapter III of the Act addresses electoral offences, with Section 125 of the Act making it an electoral offence for promoting or attempting to promote feelings of enmity or hatred between different classes of citizens in connection with an election on grounds of religion. The punishment for it, as it says in Section 8(A) of the Act, is disqualification for a period not exceeding 6 years.
Under this Act, the high court has been granted power to also declare the election of any candidate void on the ground of indulging in such corrupt practices. Thus, it suggests that the high court clearly has the power to put a full stop to such divisive speeches.
A simple examination of the Prime Minister’s address at Banswara, Rajasthan shows how it fits in the legal rubric of forbidden practice. Also, as per the law, the high court has the authority to declare any candidate’s election unlawful if they engage in such practice. This extensive discussion of the law is intended to explain what the courts should do rather than what they could do. However, the Delhi High Court in this case did not even deal with it.
It is important to remember here that the Election Commission and the courts had earlier disenfranchised the late Shiv Sena leader, Bala Saheb Thackeray, for imploring people in the name of religion during the campaign in 1987 for the by-election to the Maharashtra assembly. In his campaign speech in favour of Shiv Sena’s candidate, he called victory for Shiv Sena a “Hinduism victory.” The Bombay high court benched him for six years on account of a violation of the aforesaid provisions of the Representation of People’s Act. The decision was subsequently upheld by the Supreme Court in 1989.
Courting votes and using religious appeals are absolutely prohibited by law, although it remains the most common practice, with the current Lok Sabha elections led by PM Modi being an example of that. The most alarming aspect, however, is the court’s steadfast refusal to break the veil, despite the Election Commission’s apathy and tardiness on this subject.
Equally worrisome is the high court’s extolling of the Election Commission’s ‘independence’ despite the evidence to the contrary. What this so-called innocent order establishes is a dangerous precedent, allowing judges in India to dismiss matters of critical importance to the country’s democracy without providing a single explanation.
Kawalpreet Kaur is a practising advocate based in Delhi. She is associated with the Human Rights Law Network, Delhi.
