Bal Thackeray precedent raises questions over Rahul Gandhi’s speeches

The Bal Thackeray case underscores the distinction between political criticism and statements that may constitute corrupt electoral practices under the law.

In Indian democracy, political leaders have every right to criticise the government, debate religious and social ideas, and question the functioning of institutions ranging from the Election Commission to the Supreme Court. But are there no limits to this right? Can attempts to mobilise religious and caste sentiments to win elections, create hostility towards opposing communities, or conduct aggressive political campaigns against constitutional institutions also be justified in the name of freedom of expression?

These questions are important because a prominent political leader in India was previously disqualified from contesting elections for six years over electoral misconduct. That leader was Shiv Sena chief Bal Thackeray. In the context of Congress leader and Leader of the Opposition in the Lok Sabha Rahul Gandhi’s speeches and political campaigns concerning the Rashtriya Swayamsevak Sangh (RSS), Hindutva, caste-related remarks, Prime Minister Narendra Modi, RSS chief Mohan Bhagwat and the Election Commission, the same question can be raised: is the law applied equally to all political leaders?

The Bal Thackeray case is an interesting and important precedent in the context of current controversies and political campaigns. Rahul Gandhi and his circle of advisers may be overlooking it.

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On December 11, 1995, the Supreme Court delivered its judgment in Dr Ramesh Yeshwant Prabhoo v. Prabhakar Kashinath Kunte. The case concerned the 1987 Vile Parle by-election to the Maharashtra Legislative Assembly. While campaigning for Shiv Sena candidate Dr Ramesh Prabhoo, Bal Thackeray delivered speeches on November 29, December 9 and December 10, 1987. The election petition alleged that these speeches sought support on the basis of Hindu religion and promoted hostility between religious communities. The Bombay High Court found the relevant allegations proved, and the Supreme Court upheld its decision while hearing appeals against the judgment.

Section 123(3) and Section 123(3A) of the Representation of the People Act, 1951, were central to the case. The first provision concerns appeals for votes on the grounds of religion, caste, community or language. The second treats attempts to promote enmity or hatred between different classes of citizens on these grounds for electoral advantage as corrupt electoral practices.

One distinctive feature of the case was that Thackeray was not a candidate in the election himself. Nevertheless, he was held responsible for corrupt electoral practices on the basis of his role in the campaign and the consent of the candidate for whom he campaigned. The court named him under Section 99 of the Act. Subsequently, the question of his six-year disqualification was taken up under the procedure laid down in Section 8A.

The case established an important principle: a political leader’s responsibility during an election is not necessarily limited to whether that leader is personally contesting the election. A person campaigning in support of a candidate can also be held accountable if the conditions prescribed by law are met.

For several years, Rahul Gandhi and some Congress leaders have criticised Prime Minister Narendra Modi, the BJP, the RSS and political interpretations of Hindutva. They have also made remarks about caste as part of their political campaigns.

During Rahul Gandhi’s speech in Parliament in July 2024, his remarks concerning Hinduism, the BJP and alleged violence triggered controversy. The Lok Sabha Speaker expunged some portions of the speech from the parliamentary record. Rahul Gandhi defended his remarks, while members of the ruling party objected to them. The controversy raises questions about the nature of political discourse, but the expunging of remarks from parliamentary proceedings does not, by itself, establish corrupt electoral practices. The relevant facts and evidence must be presented separately under the applicable law.