Facts:
1- Sec 123 (3) of RPA 1951 ( amended in 1961 ) states that no candidate can appeal for vote on basis of His caste , religion , creed , community and language. if he does so , it shall be treated as an electoral offence and a corrupt practice .
2- Sec 123(3-a) of RPA 1951 says that any person who tries to incite enmity between castes , religions , communities for electoral gains , his election shall be treated null and void.
3- in 1995 , Justice JS verma defined Hindutva as “way of life” rather a religion .
4- scope of term “His” in sec 123(3) was under question in current judgement .
5- all cases filed shall be dealt via election petition route at high courts .
6- judgement was delivered by a 7 member bench with 4 judges making majority judgement .
Judgement :
Majority judges opinion :
term “His” encompasses any person who brings in caste , creed , religion , language for appealing to vote in favor of any particular candidate may result in nullification of election of that candidate . moreover the term “His ” not only indicates the religion of candidate itself but also the religion of any section of citizen who are being incited to vote for that particular candidate .
Minority judges opinion :
Term “His ” should be restricted to candidate only , else it will have a chilling effect on Free speech.
Social realities and concept of “opinion making ” promotes discussion on religion , castes , language etc. to resolve these issues .
Dimensions involved :
1- Freedom of expression and reasonable restriction doctrine
2- election as a secular exercise
3- social realities of India
4- Judicial over-reach and implementation issue of the decision which may compromise the legal integrity of S.C as decision’s implementation is almost impossible with current state capacity .
Other issues :
1- what about the political parties whose name itself denotes caste, language , relegion etc : like telugudesham , akali dal , MIM , indian Muslim league
2- No particular reference and resolution for issue of “hindutva” as way of life or religion.
3- caste , religion are social realities . mobilization of people on basis of social realities is a key trend in electoral exercises . it should be people who must choose “development ” as a parameter over sectarian notions. this choice cant never be enforced from outside .
4- heavy litigation which may follow shoes the utlity of judicial impact assessment before arriving to any decision .
My view :
The core spirit behind decision was to discourage polarization on grounds of caste , creed , language and community by inciting hatred among them . but the expanded scope of decision which involves all mentioning of these realities may have a negative impact .
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