Governance · Law

Electoral Communalism: Legal Provisions

Communalism during elections is a recurrent problem which affects the length and breadth of each and every corner of our country. Political manifestoes thrive on the sentiments of religious and ethnic identities and infest them with a sense of needing to guard against the invasion of alien beliefs into their personal space of communal stronghold. In a nation where we have a million divergent forms of expression based on language, caste, religion and race, there arises an increasing need to inhibit the Machiavellian forces that are working behind the promotion of communal divide. They may be separate in their ideologies but unified in their purpose which is to create electoral segregation and then eventually move in on their chosen electorates to garner their respective votes. Today, as discussed below, we shall be looking at a few of the legislative provisions and judicial precedents that reserve a great capacity to affect the system working in tandem with the communal forces of our country.


In order for communalism to be completely stomped out of our system of “free and fair” elections we need a system where strict adherence to the law is practiced by political parties. The Central Election Commission is one such institution that could exercise a greater execution of its constitutional authority in regard to the maintenance of party conduct. Under Section 16A of the Election Symbols (Reservation and Allotment) Order 1968, the Election Commission has the power to suspend or withdraw recognition of a recognized political party for its failure to observe the Model Code of Conduct or follow lawful directions or instructions issued by the Commission. The Model Code of Conduct is a document which was released by the Commission in January, 1991 that vests certain disciplinary powers in the Commission over conduct, as observed among political parties during election campaigns, which may include any speech or action that seeks to disrupt communal harmony. For instance, the Congress party and the BJP have repeatedly come under the scanner of the EC for near violation of this Model Code. Then we have The Representation of Peoples Act, 1951 which also provides for a statutory framework to govern the conduct of elections in India. It recognizes certain offences, similar to those as covered under the Model Code of Conduct, which may be committed by individuals during elections. The R.P. Act has therefore allowed for the individual accountability of party members but nevertheless we see very little implementation of these protections.


Furthermore, we have certain judicial precedents too that have very much strengthened the cause for greater regulation of inciting political conduct but also some that have greatly dealt a blow to the anti-communal movement. In contradiction to what we see around us, elections are always meant to be secular in nature, and in the landmark judgement of S.R. Bommai v. Union of India3, Justice Sawant and Justice Kuldip Singh had laid down that “Religion, cannot be mixed with any secular activity of the State.” They further elaborated that “In fact, the encroachment of religion into secular activities is strictly prohibited. The state’s tolerance of religion or religions does not make it either a religious or a theocratic state. When the state allows citizens to practice or profess their religions, it does not either explicitly or implicitly allow them to introduce religion into non-religious or secular activities of the state.” Justice Jeevan Reddy and Justice Agarwal, in the same judgement, established a clear wording of what violates the spirit of secularism as preserved in our constitution. “Under our Constitution, no party or organization can simultaneously be a political and a religious party. It has to be either. Same would be the position if a party or organization acts and/or behaves by word of mouth, print or in any other manner to bring about the said effect, it would equally be guilty of an act of unconstitutionality. It would have no right to function as a political party”. This precedent if directly enforced could mean the de-legitimation of various prominent religious groups including the Rashtriya Swayamsevak Sangh, Vishwa Hindu Parishad, Shiromani Akali Dal and the Jamaat-e-Islami Hind among a string of others in spite of the fact that religious division is equally spread across all party spectrums and is in no way confined to the right wing political sector as commonly alleged. However, no parallel legislative provision has been made in relation to the above judgement leaving it largely ignored in the political domain of our country. In the case of Manohar Joshi v. N.B. Patil4, the Judges of the Bombay High Court had held that because Manohar Joshi had campaigned on the basis of a party programme wherein “Hindutva” was made the main plank of the programme, he was guilty of the charge of corrupt practices within the meaning of Section 123 of the R.P. Act and thus his election was void. The Bombay High Court interpreted the act to mean that since a candidate of a political party was bound by the programme of that party, therefore, if the programme of that party was a communal programme, the charge of “corrupt practices” would attach both to the party as well as to the individual. This was a rather positive interpretation of Section 123 of the R.P. Act which could have brought a definitive change in the way communal politics works in this country, but the Bombay High Court judgement would soon be overruled by the Supreme Court of India. Despite Hindutva being the underlying theme of the campaign, the Supreme Court reasoned that however despicable be such a statement as “the first Hindu State will be established in Maharashtra” it cannot be said to amount to an appeal for votes on the ground of religion.


The Indian press must continue to keep the pressure on our national leaders until and unless we are able to elicit from them a more concrete commitment towards the elimination of electoral divisions. We must remember that it is not the way to fight communalism with the use of further communalism because that would be the same as pronouncing the ad mortem of our Great Indian Democracy.

About the Author

dipayanDipayan Chowdhury

He is a student of Symbiosis Law School in Pune. An  optimist at heart with a penchant for public speaking  he had decided to join law school out of an intensive interest to make significant contribution in the area of  human rights work in the country. He is currently pursuing a diploma in the field of Human Rights   Jurisprudence which involves a comprehensive study of the interface between International law and Human rights law. Having been a science student he also holds a special interest in the field of Intellectual Property Rights and particularly in exploring the human rights aspect in it. His other interests include Criminal Justice and Feminist Jurisprudence. An avid dreamer, Dipayan hopes to go a long way in the fight for the realization of his vision and also hopes for the right people to join him in this effort.

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