[The post has been republished by LiveLaw on 7.4.2019]
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. Exercising Undue Influence [Section 123(2)]
b. Appeal to vote on grounds of race, religion, caste, language etc. [Section 123(3)]
c. Promote/Attempt to promote feeling of enmity or hatred between classes of citizens [Section 123(3A)]
d. Propagation of the practice of Sati [Section 123(3B)]
e. Publication of a statement which is false [Section 123(4)]
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].
a. Undue Influence:
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.
It should be noted that the provision does not restrict a religious leader from expressing his opinion on individual merits of a candidate. However, if she/he uses his influence and leaves no choice to the persons addressed by her/him, it shall amount to undue influence. 
For instance, if a religious leader says that he preferred a candidate over the others, because, in her/his opinion, he was more worthy of the confidence of the electors for certain reasons would be an appropriate statement to make which is well within her/his rights. However, if the leader issued a farman or order directing her/his followers to vote for a particular candidate, otherwise they shall face the wrath of the god, it would amount to fear of spiritual censure and divine displeasure, hence violating the 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.
[Table explaining Section 123(2) of the Act]
b. Appeal to vote on grounds of race, religion, caste, language etc.:
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.
In simple words, the Section prohibits an appeal to a voter on grounds of religion, race, caste, community or language. The religion, race, caste, community or language being referred here, could be of the voter, the candidate or an opposing candidate.
This offence is the most attracted in electoral speeches in India. Several instances are:
(i) A political leader, once gave a speech stating ‘Society is based on caste and full of disparities. There are castes, especially SCs/STs, which never got the opportunity to move ahead in life. Working on the ideology of our ideals like Jyotiba Phule, Ambedkar, Kanshi Ram, my party is dedicated to their cause and you should vote for us.’
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.
(ii) A political leader during his election rally in Mumbai said, “We are fighting this election for the protection of Hinduism.. Therefore, we do not care for the votes of the Muslims. This country belongs to Hindus and will remain so”.
The above speech would be violative of the provision for seeking votes on the grounds of religion of the electoral candidate and the voters.
The Courts in catena of cases have maintained a strong position that wherever the clear implication of the said speech was to invoke religion, race, caste or community as a ground, it would fall foul of the section.
[Table explaining Section 123(3)]
c. Promote/Attempt to promote feeling of enmity or hatred between classes of citizens:
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.
In the past, where a candidate gave a speech stating that the Muslim religion was in danger and could be saved only by him and not the rival candidate, the Court held that it amounted to an attempt to promote feeling of enmity between different classes on grounds of religion.
d. Propagation of the practice of sati:
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.
e. Publication of a statement which is false:
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.
The test evolved by the Supreme Court in such cases is three fold.  First, in addition to the statement being false, the candidate making it should either believes it to be false or does not believe it to be true. In effect, the statements which are not true but are made bona fide are outside ambit of this section.
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.
While adjudicating the cases of above corrupt practices, the Supreme Court has remarked that often exaggerated language or expression is used while attacking the rival party or a candidate. Taking that into account, the Court has opined that while adjudicating such cases, it will consider the real thrust of the speech without laboring to dissect one or two sentences of the speech, to decide whether the speech was really intended to generate improper passions on the score of religion, caste, community etc. Regard here has to be given to the substance of the matter rather than mere form or phraseology.
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 Hon’ble Prime Minister in a rally in a constituency reserved for the SC/ST’s 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 Hon’ble 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 are a clear case of violation 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.
Such speeches have only resulted in communal and caste based politics, which is against the tenets of our Constitution. The Supreme Court has rightly remarked that rise of fundamentalism and communalism of politics encourages separatists and divisive forces and becomes breeding grounds for national disintegration and failure of parliamentary democratic system. 
One can only hope that the candidates while addressing a gathering remember and imbibe the words of Pt. Nehru who said, ‘our democracy can only survive if those who aspire to become people’s representatives and leaders understand the spirit of a secular democracy.’ The possibility of this happening is less; given the fact that Pt. Nehru, our founding father himself is the center of elections these days, in the most unflattering of ways.
[The opinions expressed in the article are solely of the author.]
 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).