Supreme Court Begins Hearing to Reconsider Hindutva Verdict With a Number of Queries 

A seven judge bench headed by chief justice, T.S. Thakur, will consider if seeking votes in the name of religion will amount to a corrupt practice.

Gandhinagar: Prime Minister Narendra Modi being greeted by Chief Justice of India T S Thakur on his birthday, in Gandhinagar on Saturday. Credit: PTI/Files

Gandhinagar: Prime Minister Narendra Modi being greeted by Chief Justice of India T S Thakur on his birthday, in Gandhinagar on Saturday. Credit: PTI/Files

New Delhi: The Supreme Court is to take a call on whether the Narendra Modi government at the Centre, or the BJP, can polarise voters in the name of Hindutva or religion ahead of the 2017 assembly polls in Uttar Pradesh, Punjab and three other states and on whether such polarisation will amount to a ‘corrupt practice’ within the ambit of the Representation of the People Act.

Hearing began on Tuesday before a seven-judge bench to consider whether seeking votes in the name of religion will amount to a corrupt practice under the Representation of the People Act and warrant disqualification.

A seven-judge bench comprising  Chief Justice T.S. Thakur and justices, Madan B. Lokur, S.A. Bobde, A.K. Goel, Uday Lalit, D.Y. Chandrachud and L. Nageswara Rao, took up for hearing, appeals that sought a reconsideration of former CJI, J.S. Verma’s verdict of December 1995. The ‘Hindutva’ judgment  found that seeking votes in the name of religion is not a corrupt practice, to set aside an election.

Chief Justice Thakur posed a series of questions to senior counsel Arvin P. Datar, for one of the appellants Abhiram Singh, who was aggrieved that his appeal against a Bombay high court verdict, setting aside his election was still pending adjudication for nearly two decades.

The CJI wanted to know if a Muslim leader appeals to Muslims, to vote for a Hindu candidate, will such an appeal also come under the ambit of ‘corrupt practice’, viz. seeking votes in the name of religion under Section 123 (3) of the RP Act. The CJI said there may be several circumstances when appeals are made in the name of religion during elections and this will straightway attract the disqualification. Counsel, however, said a distinction has to be made by the appeal from the candidate for himself and a similar appeal on his behalf by others.

The court then said the broad issues to be considered by the bench are: will the act of a candidate belonging to a particular community going around the constituency with a predominant population of his/her own community seeking votes in the name of their community, amount to corrupt practice?

Can a person belonging to one community seek votes from members of his community for a candidate belonging to another community? For instance a Hindu candidate, may use a Muslim supporter or agent to solicit votes of Muslim community for the Hindu candidates by hinting that they would invite “divine displeasure” if they do not vote for a particular candidate.

Vice versa, a Muslim candidate may use a Hindu supporter to garner votes from the Hindu community by playing the religious card. Will a candidate be held liable for corrupt practice if he even uses the inflammatory speeches of a religious leader to further his own electoral practices?

Similarly, can a member of a Brahmin caste solicit votes from Brahmins; can banias using caste identity seek votes from members of his caste or for that matter from other castes also by harping on his own caste identity?.

Justice J.S. Verma, heading a three-judge bench of the apex court had overturned the Bombay high court verdict setting aside the election of Shiv Sena leader Manohar Joshi in Maharashtra. Soon after the 1992-92 Mumbai communal riots, Joshi had appealed to the voters to turn Maharashtra as India’s first Hindu state.

Justice Verma who authored the judgment of three judges held:

In our opinion, a mere statement that the first Hindu state will be established in Maharashtra is by itself not an appeal for votes on the grounds of his religion but the expression, at best, of such a hope. He was of the view that mere use of words Hindutva or Hinduism or mentioning of any other religion in election speeches does not bring them within the ambit of ‘corrupt practice’ under the RP Act. These words, cannot be held to the “narrow limits of religion alone” and could also refer to “Indian culture and heritage”.

Hindutva, the court held, is related to the “way of life of the people in the sub-continent.”

In August 2002, the matter was referred to a seven-judge bench for an authoritative pronouncement on the interpretation of Section 123 of the RP Act which defines corrupt practice. The section says:

The appeal by a candidate or his agent by any other person with the consent of a candidate or his election agent to vote or refrain from voting of any person on the ground of his religion, race, caste, community or language or the use of or appeal to religious symbols for the furtherance of the prospects of the election of that candidate or for prejudicially affecting the election of any candidate.

The seven-judges will take a call on the whole issue to see whether the earlier judgments by three and five judges seek review or they can be upheld or overturned. Arguments will continue on Wednesday.