Supreme Court of India Supreme Court of India

The Supreme Court on Thursday asked whether anyone can raise the issue of deaths along the border and seek votes for a particular party. The question was among several raised during a day-long hearing to revisit its two-decade-old ‘Hindutva’ judgment. Referring to the terms “national symbols” and “national emblem” in section 123(3) of the Representation of the People (RP) Act, a seven-judge Constitution bench headed by Chief Justice T S Thakur said nobody can be allowed to use them to garner votes in the elections.

“Anybody can seek votes on the ground of national flag and national emblem and say that people are dying on the borders and so vote for a particular party. Can it be permitted,” asked the bench. “This is specifically proscribed under this provision,” senior advocate Shyam Divan said. The hearing also saw the bench observing that Parliament has consciously “widened” the scope of the term “corrupt practices” in the poll law to curb “separatist and communal” tendencies.

“What is most significant in the present clause (of the RP Act) is that Parliament thought to widening the scope of ‘corrupt practices’ to curb separatist and communal tendencies during elections,” the bench, which also comprised justices Madan B Lokur, S A Bobde, A K Goel, U U Lalit, D Y Chandrachud and L Nageswara Rao, said.

The bench then raised a hypothetical question and asked if a ‘Sikh granthi’ seeks votes for a particular Hindu candidate, can it be said that this appeal “falls foul” of the provision in question. It may not amount to “corrupt practice” under the specific section of the RP Act, Divan responded. He also said that the term “his religion”, used in the provision, means religion of the candidate and not that of the spiritual leader or cleric who seek votes.

The court is examining the “scope and width” of section 123(3) of the RP Act which deals with electoral malpractices amounting to “corrupt practices”, among other things. Meanwhile, three social activists – Teesta Setalvad, Shamsul Islam and Dilip Mandal – filed an application to intervene in the ongoing hearing to seek “de-linking of religion from politics”.

The fresh plea, filed by Setalvad and others, said that the issue could “potentially have far-reaching consequences on the purity of the electoral process”. “The applicants are concerned about the electorate, the electoral process and the need to ensure that political parties and candidates for election do not use religion to appeal for votes. Sections 123(3) and (3A) were enacted to prevent the political parties from espousing religious sentiments for the purpose of garnering votes and get elected.

“The Applicants are of the considered view that the interpretation given to Section 123(3) and (3A) of the Representation of the People Act,…has had the effect of encouraging political parties to use religious appeals for garnering votes under the color of the proposition that ‘Hindutva’ is not a religion but a ‘way of life’.”

The relevant section of the RP Act deals with “corrupt practices” and reads: “The appeal by a candidate or his agent or by any other person with the consent of a candidate or his election agent to vote or refrain from voting for any person on the ground of 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…, for furtherance of the prospects of the election of that candidate or for prejudicially affecting the election of any candidate” would amount to corrupt practices.

Yesterday, the apex court asked whether non-contesting spiritual leaders or clerics can be held accountable for “corrupt practices” under electoral law for asking voters to vote for a particular party or candidate. “How can a person, who himself has neither contested nor returned as a winning candidate, be tried for allegedly resorting to corrupt practices under the Representation of the People (RP) Act,” it had asked. Senior advocate Arvind Datar, appearing for Abhiram Singh whose election as an MLA in 1990 on BJP ticket from Santacruz assembly seat in Mumbai was set aside by the High Court, referred to section 123(3) of the Act and had said that corrupt practice can only be established if either the “candidate or his agent” seek votes on the name of religion.

If any other person, like late Bal Thackeray and late Pramod Mahajan in the present case, sought votes on these grounds, referred to in the RP Act, then there has to be the “consent” of the candidate, he told the bench, which also comprised. The issue assumes significance as questions were raised on its 1995 verdict which held that vote in the name of “Hindutva/Hinduism” did not prejudicially affect any candidate, and since then three election petitions are pending on the subject in the apex court.

The apex court’s three-judge bench in 1995 had held that “Hindutva/Hinduism is a way of life of the people in the sub-continent” and “is a state of mind”. The judgement was delivered in the case of Manohar Joshi versus N B Patil which was authored by Justice J S Verma who found that the statement by Joshi that the ‘first Hindu State will be established in Maharashtra’ did not amount to appeal on ground of religion”. The issue of interpretation of section 123(3) again arose on January 30, 2014 before a five-judge which referred it for examination before a larger bench of seven judges. The seven judges is now dealing with the appeal filed in 1992 by Abhiram Singh.

A three-judge bench on April 16, 1992 had referred to a five-judge Constitution Bench Singh’s appeal in which the same question and interpretation of Section 123(3) was raised. While the five-judge bench was hearing this matter on January 30, 2014, it was informed that an identical issue was raised in an election petition filed by Narayan Singh against BJP leader Sunderlal Patwa and the another Constitution Bench of five judges of the apex court had referred it to a larger bench of seven judges.

Thereafter, the five-judge bench had referred Singh’s matter also to the Chief Justice for placing it before a seven-judge bench.

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