Corrupt practices during the election process were explained in the representation of people Act (as it was originally enacted in 1951) in Chapter I of Part VII thereof. Section 123 dealt with major corrupt practices while Section 124 dealt with minor corrupt practices.
Section 124(5) of the Act
Section 124(5) of the Act (dealing with minor corrupt practices) as originally framed is relevant and this reads as follows:
(5) The systematic appeal to vote or refrain from voting on grounds of caste, race, community or religion or the use of, or appeal to, religious and national symbols, such as, the national flag and the national emblem, for the furtherance of the prospects of a candidate’s election.
It will be apparent that Section 124(5) of the Act made a ‘systematic appeal’ (quite obviously to an elector) by anybody ‘to vote or refrain from voting’ on certain specified grounds ‘for the furtherance of the prospects of a candidate’s election’, a deemed minor corrupt practice.
1956 Amendment
In 1956 the Act was amended by Act No. 27 and the distinction between major corrupt practices and minor corrupt practices was removed. Therefore, for Chapters I and II of Part VII of the Act only Chapter I providing for corrupt practices was substituted. Section 123(3) of the Act (as amended in 1956) reads as follows:
(3) The systematic appeal by a candidate or his agent or by any other person to vote or refrain from voting on grounds of caste, race, community or religion 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 that candidate’s election.
The significant change made by the amendment carried out in 1956 was that now the ‘systematic appeal’ by ‘a candidate or his agent or by any other person’ was a deemed corrupt practice. However, it was not clear whether that ‘any other person’ could be a person not authorized by the candidate to make a ‘systematic appeal’ for or on his or her behalf or make the ‘systematic appeal’ without the consent of the candidate. For this and other reasons as well, it became necessary to further amend the Act.
1958 Amendment
Accordingly, by an amendment carried out in 1958, the Act was again amended and the words “with the consent of a candidate or his election agent” were added after the words “any other person’ occurring in Section 123(3) of the Act. Consequently, Section 123(3) of the Act after its amendment in 1958 read as follows:
(3) The systematic 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 on the grounds of caste, race, community or religion 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 that candidate’s election.
Progressively therefore Section 123(3) of the Act and the corrupt practice that it recognized became candidate-centric in that a ‘systematic appeal’ would have to be made (to an elector) by a candidate, his agent or any other person with the candidate’s consent or the consent of the candidate’s election agent ‘to vote or refrain from voting’ on certain specified grounds ‘for the furtherance of the prospects of a candidate’s election’.
1961 Amendment
Apparently to make the corrupt practice more broad-based, the Act was sought to be amended in 1961. A Bill to this effect was introduced in the Lok Sabha on 10th August, 1961. The Notes on Clauses accompanying the Bill (the relevant clause being Clause 25) stated as follows:
Clauses 25, 26, 29 and 30. – For curbing communal and separatist tendencies in the country it is proposed to widen the scope of the corrupt practice mentioned in clause (3) of section 123 of the 1951 Act (as in sub-clause (a) of clause 25), and to provide for a new corrupt practice (as in sub-clause (b) of clause 25) and a new electoral offence (as in clause (26) for the promotion of feelings of hatred and enmity on grounds of religion, race, caste, community or language.
It is also proposed that conviction for this new offence will entail disqualification for membership of Parliament and of State Legislatures and also for voting at any election. This is proposed to be done by suitable amendments in section 139 and section 141 of the 1951 Act as in clauses 29 and 30 respectively.
Three objectives of the Bill stand out from the Notes on Clauses and they indicate that the amendment was necessary to:
(1) Curb communal and separatist tendencies in the country;
(2) Widen the scope of the corrupt practice mentioned in sub-section (3) of Section 123 of the Act;
(3) Provide for a new corrupt practice (as in sub-clause (b) of clause 25).
The proposed amendment reads as follows:
25. In section 123 of the 1951-Act, — (a) in clause (3) — (i) the word “systematic” shall be omitted, (ii) for the words “caste, race, community or religion”, the words “religion, race, caste, community or language” shall be substituted;
(b) after clause (3), the following clause shall be inserted, namely: — “(3A) The promotion of, or attempt to promote, feelings of enmity or hatred between different classes of the citizens of India on grounds of religion, race, caste, community, or language, by a candidate or his agent or any other person with the consent of a candidate or his election agent for the furtherance of the prospects of that candidate’s election.”.
The Bill was referred to the Select Committee on 14th August, 1961 which was required to submit its Report by 19th August, 1961. The Select Committee held four meetings and adopted a Report on the scheduled date. It was observed in the Report that the proposed amendment to Section 123(3) of the Act “does not clearly bring out its intention.”
Accordingly, the Select Committee re-drafted this provision to read as follows:
(3) 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 ground 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.
Similarly, an amendment was proposed in the new clause (3A) of Section 123 of the Act and this reads as follows:
(3-A) The promotion of, or attempt to promote, feelings of enmity or hatred between different classes of the citizens of India on grounds of religion, race, caste, community, or language, by a candidate or his agent or any other person with the consent of a candidate or his election agent for the furtherance of the prospects of the election of that candidate or for prejudicially affecting the election of any candidate.
Minutes of Dissent were recorded by two Hon’ble Members of Parliament in the Report of the Select Committee. Ms. Renu Chakravartty made some observations with regard to the proposed insertion of clause (3A) in Section 123 of the Act and then noted with reference to clause (3) thereof that:
“Even the declared object of this Bill of curbing communalism seems to me not to be seriously meant. I suggest an amendment to clause 23 to the effect that places of religious worship or religious congregation should not be used for election propaganda and the practice of priests and dignitaries appealing to religious symbols and sentiments should be regarded as corrupt practices.
In Chapter III, I had proposed to make these as electoral offences and anyone indulging in them punishable. I am surprised to see that even these amendments or part of it could not be passed knowing what happens in elections, how pulpits in churches have been used for election propaganda by Catholic priests, how gurdwaras and mosques have been used, how people gathering at religious assemblies are influenced through religious leaders or bishops or parish priests wielding immense spiritual influence on their followers using their religious position to exert undue influence in favour of certain parties.
It is but natural that anyone sincerely desirous of stamping out communalism from elections would readily agree to this. But its rejection adds to the suspicion that eradication of communalism is only a cloak to curb in elections the democratic and secular forces in practice.”
Ms. Renu Chakravartty felt that the object of the Bill was to curb communalism but the Bill had not gone far enough in that direction.
Shri Balraj Madhok also dissented. His dissent was, however, limited to the deletion of the word “systematic” in clause (3) of Section 123 of the Act. He also did not dissent on the issue of curbing communal tendencies. The relevant extract of the dissent of Shri Balraj Madhok reads as follows:
“I disagree with clause 23 of the Bill which aims at omitting the word “systematic” in clause (3) of section 123 of the 1951 Act. By omitting these words any stray remarks of any speaker might be taken advantage of by the opponents for the purpose of an election petition. Only a systematic and planned propaganda of communal nature should be made reprehensible.”
Eventually the enactment by Parliament after a detailed debate was the re-drafted version contained in the Report of the Select Committee. This reads as follows:
“(3) 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 ground 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.
(3A) The promotion of, or attempt to promote, feelings of enmity or hatred between different classes of the citizens of India on grounds of religion, race, caste, community, or language, by a candidate or his agent or any other person with the consent of a candidate or his election agent for the furtherance of the prospects of that candidate or for prejudicially affecting the election of any candidate.”
Significantly, the word “systematic” was deleted despite the dissent of Shri Balraj Madhok. The effect of this is that even a single 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 ground of his religion, race, caste, community or language for the furtherance of the prospects of the election of that candidate or for prejudicially affecting the election of any candidate would be deemed to be a corrupt practice for the purposes of the Act.
The sweep of sub-section (3) of Section 123 of the Act was considerably enlarged in 1961 by deleting the word “systematic” before the word appeal and according to learned counsel for the appellants the sweep was apparently restricted by inserting the word “his” before religion.
Section 153A of the Indian Penal Code
Interestingly, simultaneous with the introduction of the Bill to amend the Act, a Bill to amend Section 153A of the Indian Penal Code (the IPC) was moved by Shri Lal Bahadur Shastri. The Statement of Objects and Reasons for introducing the amendment notes that it was, inter alia, to check fissiparous, communal and separatist tendencies whether based on grounds of religion, caste, language or community or any other ground. The Statement of Objects and Reasons reads as follows:
STATEMENT OF OBJECTS AND REASONS
In order effectively to check fissiparous communal and separatist tendencies whether based on grounds of religion, caste, language or community or any other ground, it is proposed to amend section 153A of the Indian Penal Code so as to make it a specific offence for anyone to promote or attempt to promote feelings of enmity or hatred between different religious, racial or language groups or castes or communities.
The Bill also seeks to make it an offence for any one to do any act which is prejudicial to the maintenance of harmony between different religious, racial or language groups or castes or communities and which is likely to disturb public tranquillity. Section 295A of the Indian Penal Code is being slightly widened and the punishment for the offence under that section and under section 505 of the Code is being increased from two to three years.
The Bill to amend the IPC was passed by Parliament and Section 153A of the IPC was substituted by the following:
“153A. Whoever— (a) by words, either spoken or written, or by signs or by visible representations or otherwise, promotes, or attempts to promote, on grounds of religion, race, language, caste or community or any other ground whatsoever, feelings of enmity or hatred between different religious, racial or language groups or castes or communities, or
(b) commits any act which is prejudicial to the maintenance of harmony between different religious, racial or language groups or castes or communities and which disturbs or is likely to disturb the public tranquillity, shall be punished with imprisonment which may extend to three years, or with fine, or with both.
Piloting the Bill
While piloting the Bill relating to the amendment to sub-section (3) of Section 123 of the Act the Law Minister Shri A.K. Sen adverted to the amendment to the IPC and indeed viewed the amendment to the Act as consequential and an attempt to grapple “with a very difficult disease.” It is worth quoting what Shri A.K. Sen had to say for this limited purpose:
“Now, I come to the main question with regard to clauses 23 and 24, that is, the new provision in clause 23 seeking to prohibit the appeal to communal or linguistic sentiments, and also clause 24 which penalizes the creation of enmity between different classes. Those hon. Members who feel that we should have kept the word ‘systematic’ have really failed to appreciate the very purpose of this amendment. There would have been no necessity of this amendment if the old section with the word ‘systematic’ had served its purpose. It is well known that the old section was as good as dead.
There could have been no possibility of preventing an appeal to communal, religious or other sectarian interests, with the word ‘systematic’ in the section, because it is impossible to prove that a person or a candidate or his agent was doing it systematically; and one or two cases would not be regarded as systematic. We feel, and I think it has been the sense of this House without any exception, that even a stray appeal to success at the polls on the ground of one’s religion or narrow communal affiliation or linguistic affiliation would be viewed with disfavor by us here and by the law. Therefore, I think that when we are grappling with a very difficult disease, we should be quite frank with our remedy and not tinker with the problem, and we should show our disfavor openly and publicly even of stray cases of attempts to influence the electorate by appealing to their sectarian interests or passions. I think that this amendment follows as a consequence of the amendment which we have already made in the Indian Penal Code.
Some hon. Members have said that it is unnecessary. In my submission, it follows automatically that we extend it to the sphere of elections and say categorically that whoever in connection with an election creates enmity between different classes of citizens shall be punishable.
The other thing is a general thing. If our whole purpose is to penalize all attempts at influencing elections by creating enmity between different classes and communities then we must say that in connection with the election, no person shall excepting at the peril of violating our penal law, shall attempt to influence the electorate by creating such enmity or hatred between communities. I think that these two provisions, if followed faithfully, would go a long way in eradicating or at least in checking the evil which has raised its ugly head in so many forms all over the country in recent years.”
The significance of this speech by the Law Minister is that Parliament was invited to unequivocally launch a two-pronged attack on communal, separatist and fissiparous tendencies that seemed to be on the rise in the country.
An amendment to the IPC had already been made and now it was necessary to pass the amendment to the Act. A sort of ‘package deal’ was presented to Parliament making any appeal to communal, fissiparous and separatist tendencies an electoral offence leading to voiding an election and a possible disqualification of the candidate from contesting an election or voting in an election for a period. An aggravated form of any such tendency could invite action under the criminal law of the land.
Reference
Narayan singh v. sundarlal patwa (1995)