Putting Religion outside Electoral Politics: A Constitutional Map to Secular Elections

Author: Atharv Bhatkhande, Avantika University


Abstract


India’s constitutional promise of secularism—derivatively following from the Preamble and supporting Articles 25 to 28—requires a sectarian-free political process. Religious advertising during electioneering and vote-bank politics continue to vitiate practice as also principle of free elections, however. This article contends that although Section 123(3) of the Representation of the People Act, 1951, forbids “undue influence” exercised by religion, repeat offences become a soft target due to its breadth restriction, meagre fines, and lackadaisical enforcement. On the basis of past Supreme Court judgments and on international models of laïcité, it recommends the following overall approach: (1) a particular amendment to insert Section 123(4A) to ban absolutely all religious solicitations; (2) establishment of an independent Electoral Secularism Commission with quasi-judicial authority; (3) harsher criminal and collateral disqualification penalties; and (4) publicly funded voter-education schemes. Secularism must now be more than an empty term—India has to cleanse religious magic from its ballot papers so that it can protect its democratic conscience.


Introduction


Reasoned argument, differing visions, and untrammelled choice support democracy. When elections are divine promises or sectarian temptation, the democratic ideal falls to vote-bank politics. Whilst polarising appeals are condemned in the Model Code of Conduct, the latter itself is ineffective in legislative power and replete with loopholes. Section 123(3) of the Representation of the People Act prohibits threats or offers of divine displeasure or favour as “undue influence,” but the courts hardly disqualify a victor on such a ground. The absence of a disciplined enforcement apparatus prevents officials from enforcing secular norms; voting patterns remain vulnerable to clerical manipulation, pulpit politics, and mobilization at the communal level. The cosmetic advice era is over—India needs doctrinal and institutional change to drive secularism from constitutional principles to election practice.

The Proof

Constitutional Foundations
Secularism is not a nicety at the margins of the Constitution but a “basic feature” of the Indian Constitution. In *Keshavananda Bharati v. State of Kerala* (1973) 4 SCC 225, the Supreme Court enunciated the doctrine of basic structure and adjudicated that Parliament cannot amend basic principles—among which secularism engrafted by the 42nd Amendment. Later in. Bommai v. Union of India* (1994) 3 SCC 1, reasserted that secularism commits the State to an absolute equidistance from religion and makes any action by the government, in Favor or against any community, illegal. The Preamble’s assurance of justice, liberty, equality, and fraternity is breached if contest in the elections ceases to be equal by virtue of religious compulsion as such; a polity taking sectarian oaths in the ballot loses its constitutional conscience.

Articles 25 to 28 also expressly apply the secular regime: Article 25 guarantees freedom of conscience and free profession, practice, and propagation of religion in accordance with public order, morality, and health; Article 26 grants religious denominations own right to regulate their affairs; Article 27 bans State taxation in behalf of any religion; and Article 28 prohibits religious instruction in schools wholly funded by the State. Whereas these guarantees are ensuring personal belief and thus limit State action on religion, electoral campaigning as such as a functioning venture beyond the limit of State-constrained endeavour: even any candidate effort transgressing office-seeking into religious solicitation violates these guarantees in its very beginning. Statutory Framework and Its Lacunae

Section 123 of the Representation of the People Act, 1951, enumerates corrupt practices. Undue influence under subsection (3) is prohibited, and it involves threats, intimidation, or promises of divine or temporal favours on grounds of religion. There are three defects, however, which render it ineffective:
1. Limited Definition: Judicial interpretation has narrowed “divine or temporal” to explicit statements—covert sermons or unconscious religious symbols are often not traceable.

2. Minimum Penalty: Section 123 provides the maximum imprisonment to be three years, but disqualification is not essential in all cases. In everyday life, courts issue small fines and never imprisonment.
3. Vacuum in Enforcement: Section 100 RPA election petitions must be filed within or on six weeks of the result declaration, deterring complainants of angry electors and NGOs from presenting time-barred complaints. Absence of investigating wings, Section 123 offenses hardly reach tribunals.
These loopholes add up to a de facto impunity for religious campaigning. Electoral manifestos are thus full of religious symbolism, campaign speeches degenerate into passionate sermons conveying divine blessing on behalf of pious voters.

Comparative Jurisprudence

International democracies yield rich points of comparison.
France’s laïcité is a system of zero-tolerance: civil servants and candidates must forego religious dress and language; electoral pamphlets are purged of clerical resonance. The constitution of Turkey forbids religious parties and forbids sectarian appeals, extending even to broad limitations on religio-political mobilization. Even Ghana’s gold standard denies campaigners access to religious gatherings as a source of votes. While India’s fertile pluralism forbids the grafting of complete packages, the concept is present: where secular elections are valued, the law forbids religious appeals at the hustings. Proposed Legislative Reforms

To treat the Section 123 diseases, Parliament is asked to insert a new Section 123(4A) with the following ingredients:
– Absolute Proscription: Appeal, offer or threat on the ground of divine command or sectarian benefit is an electorate corrupt practice.

– Enhanced Disqualification: Conviction on an offence of electorate corrupt practice automatically disqualifies for six years and involves forfeiture of security deposit.
– In Camera Hearings by Right: The election courts would accord the highest priority to disposing of Section 123(4A) petitions, and the hearings would be completed within 60 days.
– Reverse Burden of Proof: Upon prima facie evidence being unearthed—by way of recordings, affidavits, or EC notices—the candidate would be required to establish absence of religious inducement.
The procedures would render Section 123 a useful instrument of flushing out communal mobilization rather than a vocal warning.

Institutional Mechanisms and Enforcement

We require an Electoral Secularism Commission (ESC), instituted by way of an autonomous law. The ESC, comprising retired Election Commissioners, senior jurists, and civil-society analysts, shall perform the following tasks:
– Real-Time Monitoring: Open regional desks for tracking speeches, social media, and print media for sectarian content.

– Quasi-Judicial Powers: Call for candidates, grant interim cease-and-desist orders, and recommend action to the Election Commission of India (ECI) on the spot.
– Referral Authority: Order criminal proceedings under the IPC fold of Sections 188 (disobedience to order duly promulgated by public servant) and 505 (statements conducing to public mischief).
– Public Transparency Portal: Maintain an online track-and-monitor dashboard of pending questions, enforcement action, and orders passed to keep voters and dogs on their toes.
The ECI would serve macro-regulatory functions—issuing Model Code advisories and fixing election dates—but the ESC would handle the nuts-and-bolts adjudication of sectarian malfeasance.


Voter Education and Civil Society Involvement

Law cannot isolate the voter from religious discussion. Secular values in public sentiment must be infused through an orchestrated campaign
– Prudently Imposed Curriculum: Supreme Court Article 32 has the authority to direct the National Council of Educational Research and Training (NCERT) to add modules on secular democracy in school curricula.

– Government Sponsored Media Campaigns: AIR, Doordarshan, and private television networks will telecast spots labelling the risks associated with vote-bank politics and the constitutional directive of secularism.
– Workshops at the Grassroots Level: Legal aid societies and NGOs conduct village-level workshops in the pre-poll phase, enlightening the voters with grievance redressal and legal awareness.


Judicial Oversight and Remedies

Writ jurisdiction of the Supreme Court under Articles 32 and 136 can serve as a safety net whenever ESC and ECI lapse.
Public Interest Litigations for gross sectarian propaganda or against delay in stays of dubious poll timetables will exact accountability. High Courts under Article 226 juridical jurisdictions can set aside orders against government notifications encouraging religious patronage in elections. The Judiciary must reclaim its position as the guardian of secularism, and the basic structure doctrine cannot be relegated to the ivory towers of scholastic treatises. Case Laws

The following precedents lay down the constitutional and legislative parameters which are the pillars of secular election law:
Bijoe Emmanuel v. State of Kerala (1986) 3 SCC 617

Three students who followed the religion Jehovah’s Witnesses refused to sing the national anthem. The Supreme Court declared coercion to be in violation of freedom of conscience under Article 25 reaffirming once again that secularism protects personal belief from tyranny by the majority. S.R. Bommai v. Union of India (1994) 3 SCC 1

Landmark judgment which equated secularism as constituting part of the basic structure of the Constitution. Secularism would be irreversible with blessings of dissolution and judiciary vigil on state governments tending towards or discriminatory against religion.
Keshavananda Bharati v. State of Kerala (1973) 4 SCC 225

Amendment in fundamental constitutional provisions cannot be brought by Parliament. Being a fundamental right, no law of election is able to violate this principle without being ultra vires.
S.P. Mittal v. Union of India: 1983 1 SCC 433

Held that officials of government owe a responsibility to maintain “principled distance” from religion, and public funds cannot be utilized for religion. Portions of the ruling excluding office machinery from being utilized by contestants for sectarian election are landmark.
M. Ismail Faruqui v. Union of India (1994) 6 SCC 360

Authorized State purchase of religious property in the neutral public interest, establishing the limit of what was permissible between religious liberty and state action.
Indra Sawhney v. Union of India (1992) Supp. 3 SCC 217

Addressing reservations, it reminds us that affirmative action must be on social and educational backwardness and not religion, maintaining secularism in administration.
Conclusion

Secularism is the sine qua non of the Indian democratic experiment.
Constitutional and Representation of the People Act de jure provisions remain in abeyance and have not yet translated into de facto election purity. Any such tolerance of religious inducement is a denial of the electorate and a betrayal of the ideal of equal citizenship. By the enactment of a strong Section 123(4A) to establish an Electoral Secularity Commission independent of the Election Commission, enhanced penalties, and voter consciousness triggering, India can purge sectarianism from its election rolls. This will not merely be doing democratic duty but will also restore the people’s confidence in democracy itself.


FAQS

Q1: Is secularism of the kind which may be imposed without treading on religious freedoms?
Yes. Article 25 guard personal conscience, whereas the suggested Section 123(4A) aims only to act upon electoral inducement, and not personal belief or worship. The State has an arm’s length, neither advancing nor hindering religion.


Q2: Would a heightened penalty have the effect of deterring legitimate tribal or community appeals?

The reverse onus and in camera test included in the provision will remove true group-based fears from sectarian grievance. The focus is on threats of divine penalty or retribution, and not remedy of true social grievance.


Q3: On what time-scale can the Electoral Secularism Commission operate?
Legislation envisions orders on ad-interim basis within 48 hours of receipt of complaint and cases to be disposed of within 60 days in an attempt to inject the pace of redress where it is most required, i.e., in the poll campaign window period.



Q4: What if the Bill to amend Section 123 does not get passed by Parliament?
Article 32-based Public Interest Litigations can compel parliamentary action or judicially read down Section 123 limitations to impose secular ends. The basic structure doctrine obliges it to be the responsibility of courts to strike down delaying inaction.


Q5: Technology will be bolstered by enforcement in which ways?
The real-time monitoring desk within the ESC will use AI-based speech and text analytics to detect sectarian content in TV shows, social media, and printed manifestos for real-time investigation.


Q6: Is the victory of a candidate on sectarian grounds acceptable for opposition by the voters?
Yes. Section 100 RPA petitions and Articles 32/226 writ petitions create twin windows of opportunity before the courts for aggrieved citizens to approach with prayer for cancellation of marred victories.

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