New Delhi: Setting to rest speculation about the apex court withdrawing – or reaffixing – its imprimatur on a controversial 1995 judgment which described Hindutva as a ‘way of life’ and not a religion, Chief Justice T.S. Thakur on Tuesday made it clear that the seven-judge bench he is heading will confine itself for the present to the question of whether seeking votes in the name of religion will amount to a corrupt electoral practice.
The bench, comprising of the CJI and Justices M.B. Lokur, S.A. Bobde, A.K. Goel, Uday Lalit, D.Y. Chandrachud and L. Nageswar Rao said, “We will not re-consider the 1995 judgment and also not examine Hindutva or religion at this stage. At this stage, we will confine ourselves to the issue raised before us in the reference [made by the five-judge bench which was earlier considering an appeal on the matter]. In the reference [by the five-judge bench], there is no mention of the word ‘Hindutva’. If anybody will show that there is a reference to the word ‘Hindutva’, we will hear him. We will not go into Hindutva at this stage.”
The CJI clarified this at the beginning of the hearing when one of the counsel sought to have the Hindutva matter re-examined and its advocacy brought under the purview of the ban on the use of religion in electioneering under Section 123 (3) of the Representation of the People Act.
In the 1995 Hindutva case, a three-judge bench headed by J.S Verma held that Hinduism is a way of life and that there was no bar on using words like ‘Hindutva’ or ‘Hinduism’ in an election speech. Even advocating the idea of a Hindu state – something Shiv Sena leader Manohar Joshi had done – will not amount to seeking votes in the name of religion, which is prohibited under the RP Act, the court had ruled more than two decades ago.
Though the seven-judge bench is examining a number of issues that the 1995 case also toched upon, it has specifically been asked to go into the “scope and width” of section 123(3) of the Representation of the People (RP) Act which deals with electoral malpractices amounting to “corrupt practices”, among other things.
“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, the provision says.
Senior counsel Shyam Divan, appearing for BJP leader Sunderlal Patwa – who is a Jain and not a Hindu – said that an appeal by a candidate to voters belonging to religions other than his own (in this case, Hinduism) is not proscribed under law and the expression ‘his religion’ in the RP Act should be given a limited and restricted meaning. He said the court should not sanitise the poll process from religious or caste issues as a healthy debate is necessary. He argued that the earlier line of judgments had stood the test of time, restricting the appeal for a candidate’s religion, for 55 years.
The CJI pointed out that seeking votes in the name of the religion by a candidate or on his behalf may be a greater evil than seeking votes in the name of caste or language, as a religious appeal is bound to influence the voters. The CJI said in a secular country, any appeal to the voters should be in tune with the secular philosophy and that political agitation advancing the cause of religion with an intent to garner votes is not permissible.
On giving a restricted meaning to Section 123 (3) of the RP Act, the CJI observed that the right to profess and propagate one’s religion guaranteed under Article 25 of the constitution may not extend to seeking votes in the name of religion. The whole object and purpose of this section will be lost if a restricted interpretation is given to this section, the CJI added.
Justice Goel observed that the focus of Section 123 (3) of RP Act is that a candidate can’t seek votes in the name of religion, but in a meeting she or he can discuss religion and such a discussion is permissible. If the appeal is in the name of religion, which will prejudicially affect the interests of the rival candidate, then such an appeal is not permissible, Justice Goel said. When Divan said that the court should not expand the scope of this section, Justice Goel said “we feel the time has come for us to interpret the law.”
The CJI said religion should not be the basis for making any appeal for votes. If a restricted interpretation is accepted, it will result in an anomalous situation. If the appeal is made either by the candidate or on his or her behalf in the name of religion to further their prospects, it will amount to a corrupt practice as religion is an emotional issue influencing the minds of the voters.
The CJI said “a particular candidate belongs to one religion. The opposite candidate belongs to another religion. The election agent of the candidate in question belongs to another religion. The person making the speech in the name of religion to further the prospects of the candidate belongs to a different religion than that of the voters in the area. Does it mean that an appeal on religious ground is permissible?”
Divan argued that social revolution and advancement can be achieved through elections and in this process religion cannot be completely shut out.
Countering Divan’s arguments, senior counsel, Anoop Choudhry, appearing for the petitioner Narayan Singh, the rival candidate of Sunderlal Patwa in an impugned election held two decades ago, said that exploiting religion to garner votes is not permissible whether such an appeal is by the candidate, his agent or anyone on his behalf. Giving a narrow meaning – as Patwa’s counsel wanted – will result in a chaotic situation and will directly affect the secular fabric of this country, he said. It will also allow political parties to do whatever they want to do in the name of religion, he said, adding that whoever makes an appeal, ultimately it is the candidate who is going to be benefited. Arguments will continue on Wednesday.