7 April 2019 6:03 AM GMT
India, the world's largest democracy shall be witnessing elections for the parliament shortly. The election season in India has candidates across political parties, making passionate speeches to convince the voters to choose them over their rivals. The speeches range from issues of progress, living standards and at times race, religion, caste etc. A common misconception however, exists...
India, the world's largest democracy shall be witnessing elections for the parliament shortly. The election season in India has candidates across political parties, making passionate speeches to convince the voters to choose them over their rivals. The speeches range from issues of progress, living standards and at times race, religion, caste etc. A common misconception however, exists that electoral candidates have absolute freedom over the content of their speeches. In a country as diverse as India, such unbridled freedom can prove troublesome and hence, has not been granted. In the present post, I shall discuss the provisions in our election law which prohibits speeches of certain kinds and the procedure thereof.
Law governing electoral speeches in India:
Currently, the Representation of the People's Act, 1951 is the governing law on elections in India. Section 8A of the Act, disqualifies a candidate if she/he is found guilty of indulging in a corrupt practice. The corrupt practices relating to speeches include:
A complaint regarding a commission of the above offences can be filed by a fellow candidate or the voters/electors. The complaint has to be filed within 45 days of election, not earlier than the date of the election i.e. after the election. As per the Act, the complaint has to be filed in the form of an Election Petition before the High Court [§ 80].
Section 123(2) defines undue influence as 'any direct or indirect interference or attempt to interfere on the part of the candidate or his agent, or of any other person (with the consent of the candidate or his election agent), with the free exercise of any electoral right.'
The provision prohibits any threat to a fellow candidate, a voter or any person the candidate or the voter may be interested in. Threat here means, (a) injury of any kind including social ostracisation or expulsion from any caste or community and (b) fear of being rendered an object of divine displeasure or spiritual censure. One should note however, that any declaration of public policy, or promise of a public action, does not form part of this provision.
Incidents wherein the provision has been attracted include, an order from a leader to not vote for a particular candidate as it would amount to a sin of gohatya (killing of a cow),
 a diktat that those who opposed a certain candidate, would not be spared by god.
Section 123(3) prohibits a candidate, her/his agent or any person with their consent, to vote or refrain from voting for any person on the ground of her/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.
The above excerpts shall violate section 123(3) for seeking votes on the ground of 'caste' and 'community' of a voter i.e. the SCs/STs herein.
The above speech would be violative of the provision for seeking votes on the grounds of religion of the electoral candidate and the voters.
Section 123(3A) of the Act, prohibits a candidate or her/his agent or any other person with their consent to promote 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.
Section 123(3B) also prohibits any candidate or her/his agent or any person with their consent, to propagate the practice or the glorification of sati, in furtherance of the prospects of the election of that candidate or for prejudicially affecting the election of any candidate.
Section 123(4) of the Act, prohibits a candidate or her/his agent or any other person with their consent to publish a statement of fact, which is false or he/she believes it to be false or does not believe it to be true, in relation to the personal character or conduct of a candidate. Such a statement has to be reasonably calculated to prejudice the prospects of that candidate's election.
Second, the statement has to be a statement reasonably calculated to prejudice the prospects of the election of the candidate, against whom it is made. Calculated here means designed i.e. more than a mere likelihood.
Invocation of religion, race, community etc. has been common when it comes to elections in India. Despite the Courts advising restraint to the candidates, the ground reality does not change. In the past month alone, several electors have made speeches that are against the law.
The Prime Minister in a rally in a constituency reserved for the members of the SC/ST's community took a potshot at the opposing Congress stating 'no other party has ignored Ambedkar as much as the previous government has.' Similarly, in a rally in Wardha, the PM stated that 'How can the Congress be forgiven for insulting the Hindus in front of the world? Weren't you hurt when you heard the word 'Hindu terror'?' Both these speeches in my opinion are violations of Article 123(3) and 123(3A) as they invoke votes on grounds of caste, community and religion.
However, this practice is followed by the Opposition as well. A Minister in the Congress Party called the Muslims to vote for the party and said that Muslims who vote for the BJP are not Muslims.
[The opinions expressed in this article are the personal opinions of the author. The facts and opinions appearing in the article do not reflect the views of LiveLaw and LiveLaw does not assume any responsibility or liability for the same]
 Ram Dial v. Sant Lal, A.I.R. 1959 S.C. 855 (India).
 Narbada Prasad v. Chagan lal, A.I.R. 1969 S.C. 395 (India).
 Lalroukung v. Maokho Lal, (1969) 41 E.L.R. 35 (India).
 Abhiram Singh v. C.D. Commachen, (2017) 2 S.C.C. 629 (India).
 Ziyauddin Buhanuddin Bukhari v. Brijmohan Ramdas (1976) 2 S.C.C. 17 (India).
 Sheopal Singh v. Ram Pratap, (1965) 1 S.C.R. 175 (India).
 Dr Das Rao Deshmukh v. Kamal Kishore (1995) 5 S.C.C. 123 (India).
 M.P. Gopalakrishnan Nair and Anr. v. State of Kerala and Ors. (2005) 11 S.C.C. 45 (India).
[Picture Courtesy: India Today]