Religious Fanaticism

Appeals to religion at an election

Facts. Dr. Ramesh Yeshwant Prabhoo v. Prabhakar Kashinath Kunte, 1996 AIR 1113, (1996) 1 SCC 130, decided 11 December 1995. Dr Prabhoo was elected to the Maharashtra Legislative Assembly from Vile Parle at the poll of 13 December 1987. The Bombay High Court declared his election void, holding him guilty of the corrupt practices in sections 123(3) and (3A) of the Representation of the People Act 1951 on the strength of three campaign speeches made with his consent by Bal Thackeray, who was also named under section 99. Both appealed under section 116A, contending that the two sub-sections violated article 19(1)(a).

Held on the constitutional challenge. Both sub-sections are valid. Section 123(3A), which requires prejudicial effect on public order, is saved by article 19(2) under the heads "public order or incitement to an offence". Section 123(3), which contains no public order element, is saved under the head "decency". The Court refused to read "decency" as confined to sexual morality: "In a secular polity, the requirement of correct behaviour or propriety is that an appeal for votes should not be made on the ground of the candidate's religion which by itself is no index of the suitability of a candidate for membership of the House". It added that the rejection of separate electorates when the Constitution was framed, and secularism as "the creed adopted in the constitutional scheme", were relevant considerations.

Held on the words used. "Hinduism" and "Hindutva" are not necessarily to be construed narrowly; in the abstract they are "indicative more of a way of life of the Indian people", so "it is a fallacy and an error of law to proceed on the assumption that any reference to Hindutva or Hinduism in a speech makes it automatically a speech based on the Hindu religion as opposed to the other religions". In the same passage the Court said "Fundamentalism of any colour or kind must be curbed with a heavy hand to preserve and promote the secular creed of the nation", and that misuse of those terms must be dealt with strictly.

Held on the facts. All three speeches were a corrupt practice under section 123(3), the first also under section 123(3A). The appeal having been made with the candidate's consent, Dr Prabhoo was guilty and Bal Thackeray liable to be named under section 99. Both appeals were dismissed, the Court recording its "distress at this kind of speeches given by a top leader of a political party".

Why it matters. It is the leading case and it is misreported in both directions. It decides that the restriction is constitutional, that the appeal caught by section 123(3) is one on the ground of the candidate's own religion, and that the two words are not by themselves proof of such an appeal, so the speech must be read in context. It does not decide that such appeals are lawful: on these facts the speeches were a corrupt practice, the election was void, and the leader was named. See also [Electoral Reform and the Criminalisation of Politics].

Section 123(3) against section 123(3A)

Both require the candidate's consent where the speaker is somebody else, and that finding is what made Dr Prabhoo guilty.

The government that governs on religious lines

Facts. S.R. Bommai v. Union of India, AIR 1994 SC 1918, (1994) 3 SCC 1, decided 11 March 1994 by nine judges. Appeals and transferred cases about Proclamations under article 356 dismissing six State governments, including those of Madhya Pradesh, Rajasthan and Himachal Pradesh on 15 January 1993, after the demolition of the disputed structure at Ayodhya on 6 December 1992.

Held. Conclusion (10): "Secularism is one of the basic features of the Constitution ... In matters of State, religion has no place. No political party can simultaneously be a religious party. Politics and religion cannot be mixed. Any State Government which pursues unsecular policies or unsecular course of action acts contrary to the constitutional mandate and renders itself amenable to action under Article 356." Sawant J. put it in the form article 356 needs: acts "calculated to subvert or sabotage secularism as enshrined in our Constitution" can be deemed to give rise to a situation in which the Government of the State cannot be carried on in accordance with the Constitution. The January 1993 Proclamations were held not unconstitutional; those for Karnataka and Meghalaya were.

Why it matters. This is the only remedy in the topic that reaches a government rather than a person; the doctrine is worked in [Secularism as a Basic Feature]. Note where the test operates: on an unsecular course of action by the government, not on the religious character of the party that formed it.

The limits of the criminal law as an answer

This is the part of the topic that carries marks, because it is the part most answers leave out.

Proof. Section 196 requires proof beyond reasonable doubt of promoting, or attempting to promote, enmity, ill-will or disharmony, with intention drawn from words spoken to a crowd, often in translation. In Prabhoo the English translation of part of one speech was found defective at the hearing and a fresh one had to be agreed.

Delay. Prabhoo's election of December 1987 was set aside by the High Court in April 1989 and the appeal decided in December 1995, eight years after the poll, by which time the Assembly he was elected to had gone. An election petition can void a seat; it cannot undo a campaign.

Who prosecutes. A prosecution under the Sanhita is brought by the State, and the speech complained of is often made by, or for, those who control it. A remedy that depends on the prosecutor being adverse to the speaker is unreliable exactly when it is most needed.

The offence is individual, the phenomenon is not. Section 196 punishes a speaker. It says nothing about the conditions that make an appeal to communal feeling effective, and a conviction removes one speaker from a field that will supply another.

And the constitutional remedy is blunt. Article 356 dismisses a government. It is available only to the Union and only against a State, and the same case made it reviewable precisely because it had been abused: see [President's Rule].

What the law can honestly claim. It can keep religion out of the State's money and classrooms, which is [Religious Taxation and Religious Instruction]. It can void an election, punish an act, and dismiss a government. It cannot produce tolerance, and Prabhoo says as much in its closing lines, expressing the "fervent hope that our observation has some chastening effect in the future election campaigns".

A worked example

Three weeks before a poll a party leader tells a crowd to support the candidate P because P belongs to their faith, that a named minority is disloyal, and that its places of worship should be removed. P is on the platform and says nothing, and wins. After the poll the State government led by P's party resolves that police protection will not be given to the minority's places of worship.

Step one, the election petition. The appeal to vote for P on the ground of P's own religion is squarely within section 123(3). The speaker not being the candidate, consent must be proved, and presence on the platform without dissent is evidence of it.

Step two, section 123(3A). Calling a named minority disloyal and demanding the removal of its places of worship promotes feelings of enmity between classes of citizens on grounds of religion, and carries the prejudicial effect on public order this sub-section requires.

Step three, the criminal law. The same words fall within section 196(1)(a) of the Bharatiya Nyaya Sanhita 2023, and section 197(1)(a), which covers an imputation that a class of persons cannot, by reason of their religion, bear true faith and allegiance to the Constitution. Inside a place of worship the maximum rises to five years.

Step four, article 19. The leader will say the speech is protected by article 19(1)(a). On Prabhoo, section 123(3A) is saved under public order and section 123(3) under decency, and the restriction is confined to appeals for votes during the election.

Step five, the State resolution. Withdrawing police protection from one community's places of worship is an unsecular course of action, and on Bommai it is material on which the President's satisfaction under article 356 may be formed. The Union would have to produce it if the Proclamation were challenged.

Step six, what the answer should concede. Every one of these remedies is slow, and none touches the crowd that cheered.

What it does NOT mean

It does not mean religion may not be mentioned in politics. Prabhoo holds that a reference to Hindutva or Hinduism is not automatically an appeal on the ground of religion, and the speech must be read in context.

It does not mean article 25 protects a religiously motivated act. Article 25(1) is subject to public order, morality and health, and to the other provisions of Part III.

It does not mean a party with religious support may be dismissed. Bommai's test is an unsecular course of action by a State Government, and it is reviewable.

Quick revision

• "Religious fanaticism" is MU's own label in topic 8, and the answer has three limbs: election law, criminal law, and secularism as a basic feature.
• Section 123(3) of the Representation of the People Act 1951: an appeal to vote or refrain from voting on the ground of the candidate's religion, race, caste, community or language, or the use of religious symbols. Section 123(3A): promoting feelings of enmity or hatred between classes of citizens on those grounds.
• Prabhoo: both valid. Section 123(3A) is saved under public order, section 123(3) under decency, seeking votes on a candidate's religion in a secular State being against the norms of decency and propriety.
• Prabhoo on words: "Hindutva" and "Hinduism" are not by themselves proof of an appeal on religion, but "Fundamentalism of any colour or kind must be curbed with a heavy hand". The election was still void.
• Section 196 of the Bharatiya Nyaya Sanhita 2023 punishes promoting enmity between groups on grounds of religion, up to three years and up to five in a place of worship; section 197 covers imputations prejudicial to national integration.
• Bommai: "No political party can simultaneously be a religious party", and an unsecular course of action by a State Government attracts article 356.
• The limits: proof and delay, a prosecutor who may be aligned with the speaker, an individual remedy for a collective problem, and a constitutional remedy available only against a State.

Test yourself

1. Set out sections 123(3) and 123(3A) and say how they differ.

2. Under which head of article 19(2) was each of them upheld, and why did the Court refuse a narrow meaning of "decency"?

3. What did Prabhoo decide about the words "Hinduism" and "Hindutva", and what was the outcome of the appeals?

4. State the sentence in Bommai that connects a religious government to article 356.

5. Give four reasons why the criminal law is an incomplete answer here.