-By Vaibhav Yadav
Elections form a vital part of a democracy. Every person who is eligible to vote in a democratic country has the right to freely choose whom he/she wants to vote for. However, this right to vote freely can be affected by a number of factors and considerations. It can be influenced not only by physical violence but also through emotional, mental or spiritual influence. At the time of elections, different appeals and promises are made by parties and candidates to win support. Some of these appeals are based on factors and interests, the use of which is not only morally incorrect but is also inconsistent with the basic tenets of a democracy. This includes taking recourse to religious issues for gathering political support. Though such acts are quite frequently evaluated from a constitutionality/unconstitutionality perspective, they are seldom examined from a criminal law point of view. This article specifically argues that the use of the Hindutva ideology causes undue influence at elections under section 171C of Indian Penal Code (IPC) when interpreted in light of the Section’s purpose/object and points out the limitations of the judgements given by the Courts on the matter so far along with a few suggestions.
Hinduism vs Hindutva and the mood of the country
Hindutva unlike Hinduism is not a religion. As per Merriam Webster’s Encyclopedia of World Religions, Hindutva or ‘Hinduness’ (the quality of being a Hindu) is a concept which considers Hindus as the true depiction of Indian national identity. Where Hinduism upholds inclusivity, unity, righteous conduct (dharma) and is so broad that it is called a way of life, Hindutva on the other hand is a narrow ideology according to which people belonging to religions which did not originate in India are non-Indians or not true Indians. Hindutva, therefore has a conservative approach which requires one to feel over-pride in the fact of his/her being a Hindu and not only dismiss the contrasting ideals but also to force the ideals of Hindutva on others. Due to such characteristics of Hindutva, it attempts to redefine Hinduism in order to gain political benefits. In recent years, the country has witnessed many such developments which have been condemned for promoting religious issues. Election speeches by some political party leaders showing their manifest support for specific religions and their detestation for others, passing of Citizenship amendment Act and National Register of Citizens, promulgation of anti-conversion laws by different states are some instances. As an effect of many such ongoing events, religious anxiety and strain is developing in the country which can have a direct impact on preference of the voters at the time of elections.
Is Section 171C wide enough to cover Hindutva within its ambit
Section 171C(1) forbids the use of undue influence at elections. As per the section, undue influence is the interference with the free exercise of any electoral right. Section 171C (2) specifies the ways in which undue influence can be exercised. As per clause (b) of the subsection, a person who induces or attempts to induce any candidate or voter to believe that he or any other person in whom he is interested would face spiritual censure or divine displeasure (in relation to some election related act of the person), commits the offence of undue influence at elections. Strictly speaking, the Hindutva ideology does not threaten the people that they will face God’s wrath if they do/don’t vote for a specific candidate/party. However, at this juncture it is necessary to identify the purpose of section 171C (2)(b) and check if it is justified to infer that it seeks to punish only those acts where an explicit threat of divine displeasure has been made. The purpose of section 171C and that of other sections under chapter IX-A (offences related to elections) of IPC is to ensure that elections are conducted freely and the righteous freedom of any voter or candidate (with respect to elections) is not adversely affected. To truly ensure this righteous freedom, it is important to appreciate that undue influence at elections is not limited to overt threats of divine displeasure.
It can also be exercised by other acts like showing political support for a specific religion or through appeals that the religion of a section of voters would either be at danger or lose its significance if they do/don’t vote in a specific manner. In Shri Babu Rao Patel v Dr. Zakir Hussain it was said by the Supreme Court that the content of section 171C(2) is merely illustrative. Also, that the opening of sub-section (2) which reads “without prejudice to the generality of provisions of sub-section (1)” conveys that a specific mention of divine displeasure in sub-section (2)(b) doesn’t render other religiously based acts (which can unduly influence the elections) out of the scope of the section. Similarly, in the case of Shiv Kirpal Singh, the Supreme Court laid down a relatively liberal definition of undue influence. According to the decision an element of threat or compulsion is not a sine qua non for establishing undue influence. Also it is not necessary that an actual interference with free exercise of electoral right is caused and that even an attempt to do so would amount to undue influence. Moreover, considering the huge diversity in India and therefore the significance of religion in Indian politics, it is important that section 171C is not read in a literal and narrow sense. Therefore, it seems unreasonable to assume that the legislature by section 171C intended to punish only such acts where an open threat of divine displeasure has been made. To this it follows that there was not any intention to exclude acts where religious undue influence could be exerted in other ways.
Supreme Courts stance on Hindutva and its criticism
The Supreme Court in Kesavananda Bharti case had reiterated secularism to be a part of the basic structure of the Constitution. However, neither the ideal of secularism nor section 171 C has been able to restrict the furtherance of the Hindutva ideology in elections as the Courts do not regard Hindutva as a religious ideology but a very broad philosophy which is not limited to any particular religion and encompasses all. In the 1995 case of Ramesh Yashwant Prabhoo the Supreme Court held the election of Ramesh Prabhoo, a Shiv Sena candidate void due to a speech in which he was said to be a protector of the Hindus. However in the same judgement the Court used the words ‘Hinduism’ and ‘Hindutva’ interchangeably and equated both of them as the Indian way of life. This judgement has been criticized for under appreciating the diversity of India and therefore has been said to be a blow to the ideal of secularism. In 2016 in the case of Abhiram Singh v CD Commachen a seven judge bench of the Supreme Court held by a 4:3 majority that politicians cannot seek vote on the basis of religion but refused to relook at its 1995 verdict, and thereby gave tacit approval for Hindutva being used as a ground for seeking votes.
Nevertheless, at a time when the country is seeing a high increase in religious hate crimes it is important that the use of religious undue influence is seen from a fresh perspective. Currently the Hindutva concept is being used as a way of appealing to the conscience of the Hindus to develop in them a feeling of ‘Hinduness’. However, what is more worrisome is that this feeling of Hinduness is not marked by the characteristics of inclusivity and dharma (which are upheld by ‘Hinduism’) but rather by unprecedented notions of exclusiveness and insecurity. In light of Shiv Kirpal Singh judgement it is enough to consider the furtherance of the Hindutva ideology wrong under section 171C just for the reason that it has potential to unduly influence the electorate and there is no need for an actual proof of successful exercise of undue influence. The Supreme Court’s understanding of Hindutva seems mistaken in the light of the difference between Hinduism and Hindutva. Therefore, as per its current contextual functioning, the use of Hindutva ideology during and just prior to elections goes against the very object of section 171C. Looking at all the judgements of the Apex Court together, its stance seems very paradoxical where on one hand, high morals for free and fair elections are being set but on the other, an assessment of Hindutva on these standards has been constantly avoided.
Problems in the current law and suggested reforms
The offence of undue influence at elections is non-cognizable and bailable due to which the power of arrest of the police is severely restricted and getting out on bail becomes an absolute right. Not only this, the conviction rate in criminal cases against politicians is a meager 6 per cent. Also, though the Constitution under Article 324 provides for the Election Commission of India (ECI) to conduct free and fair elections, the ECI has very limited powers of control and regulation to ensure the Model Code of Conduct (MCC) during elections. It lacks the power of de-registering political parties and merely acts as an advisory body as the MCC is not legally binding. Such circumstances make reforms in the law and a reorganization of the way of conducting the elections a pressing need.
The suggested reforms can be classified into two categories:
- IPC reforms– Section 171C in its existing form is drafted in a manner which makes conviction very difficult. Due to the non-cognizable and bailable nature of the offence under section 171F (providing punishment for violating section 171C), the deterrent effect is too meager to stop candidates and political parties from taking recourse to religious appeals for political benefits. Also as under a non-cognizable offence a police officer can refuse to register an FIR, it promotes collusion between police and politicians accused of the offence. This adds to the wide power which politicians have command over and makes them almost immune from conviction. As under the Representation of People Act (RPA) a candidate can be disqualified from contesting elections only if the person has been convicted under section 171C (and few other election related offences) therefore in reality there are almost no disqualifications. Thus, it is crucial that an amendment is brought to the section for making the offence cognizable as well as non-bailable. Making the offence cognizable would compel the police to at least register an FIR and start investigation. The change from bailable to non-bailable would create a deterrent effect to some extent as then bail would no longer remain an absolute right and could be refused on the merits of the case. Also, more actual powers should be given to the ECI like the power to debar a contesting candidate from making further speeches before the polls once cognizance has been taken under section 171C of IPC (or any other offence under chapter IX-A).
- Speech and expression regulation– In the 2016 Abhiram Singh judgement, it was one of the concerns of the dissenting minority that if reference to religion is absolutely prohibited then it would do injustice by restricting the mobilisation of voters on genuine anti-discriminatory religious considerations. Considering the concern, a blanket ban on reference to religious issues at elections cannot be the solution. Thus, it is suggested that the right to freedom of speech and expression during/prior to elections (in context of religion) is limited only to fair comments, criticisms and promises/appeals as a response to the overt acts of the current/previous governments. This means that no party or candidate would be able to craft a religious issue on its own and only a mention of pre-existing issues of religious persecution by the state would be allowed. For ex: If a candidate promises that if he is voted in power he would ensure that minorities are not deprived of their citizenship by the existing citizenship regulation act merely on religious grounds, it should be within the law. However, if a candidate appeals that if he is voted to power he would ensure that minorities are kept under control, it shall be undue influence under section 171C.
For the essential distinction highlighted between Hinduism and Hindutva seen in the light of the clear object of section 171C, it is submitted that the use of the Hindutva ideology has the potential to lead to undue influence at elections and therefore is not legal under section 171C.
[Vaibhav Yadav is a second year law student of National Law University, Delhi]