A seven-judge bench headed by Chief Justice India (CJI) T.S. Thakur is re-hearing the ‘Hindutva’ case in which it was held that Hinduism was a way of life and not jyst a religion, and that there was no bar on the use of words like Hindutva or Hinduism, or the demand for a Hindu state in an election campaign. Doing so would not amount to seeking votes in the name of religion – which is prohibited under section 123 (3) of the Representation of the People Act, the court had ruled.
When senior counsel Shaym Divan, appearing for BJP leader Sunderlal Patwa, submitted that the seven-judge bench should accept Justice J.S. Verma’s verdict of December 1995 and it was for parliament to revisit provision 123 (3), the CJI shot back saying that parliament had done nothing on the issue for the past 20 years.
If parliament had not done anything, then why couldn’t the court make any appeal for votes on the grounds of religion an electoral offence – even the one it had earlier allowed ,the CJI questioned.
The CJI observed that “parliament has done nothing in the last 20 years while the reference was pending. Maybe it is waiting for us to pronounce judgment like in the sexual harassment case.”
The bench observed that the “right to contest is a statutory right. Secularism is a basic feature. Can we give an interpretation that does not further the cause of secularism.”
Divan argued that any other interpretation contrary to the earlier ruling that Hinduism is a way of life would have the unintended consequence of the court sanitising the whole poll process, which should be left to the parliament.
Refusing to accept the counsel’s argument, the CJI said that it would imply that a leader such as Sunderlal Patwa, a Jain, or his campaigners, could appeal for votes in the name of the Ram temple.
The CJI said a Jew could not ask for Jewish votes but could appeal for non-Jew votes and asked the counsel “Can a fatwa be issued asking Muslims to vote for a Hindu candidate? Is that permissible?”
The CJI added, “Let us take the case of Sunderlal Patwa. He belongs to the Jain community. But some person acting on behalf of him makes an appeal that Patwa, though a Jain will help in making the Ram mandir. The appeal is in the name of religion… not a candidate. It is not an appeal to vote in the name of religion. The very purpose of the legislation is to ensure [that]… religion should be separated from the political process.”
The CJI wondered why couldn’t the law be interpreted in a manner so as to bar any appeal made on the ground of religion.
Justice Thakur observed that “The essence, the ethos of our constitutional system is secularism… religion and politics don’t mix. Elections are a secular activity or not? In a secular state, can religion be brought into secular activities?”
Divan, however, argued that an appeal by a candidate to voters other than those who share his religion is not proscribed. He said the court should not sanitise the poll process from all religious and caste issues, as a healthy debate was necessary. He argued that the earlier line of judgments had stood the test of time, restricting the appeal for a candidate’s religion for 50 years.
“Where is the necessity to depart from it? It is a penal provision. If there is any need for change, parliament can change it. [The] court should not insert something in a penal provision to make it wider. Several amendments have been made to the [Representation of People Act] law. That means [the] parliament is alive to the problem and would have changed it if there was a necessity for it.”
Justice Madan B. Lokur wondered if under the existing scheme of things an atheist could seek votes in the name of any religion and escape the dragnet of the law that makes such an appeal a corrupt practice resulting in his disqualification.
Meanwhile, social activist Teesta Setalvad and two others filed applications to intervene in the ongoing proceedings and urged the Supreme Court to overturn the 20-year-old ‘Hindutva’ verdict to prevent political parties from espousing religious sentiments under the claim that ‘Hindutva’ was not a religion, but a way of life, for the purpose of garnering votes and getting elected.
The interventionists included Shamsul Islam, a retired professor and Dilip Manda, a renowned journalist, who said that they disputed the proposition of the former Chief Justice Verma that an appeal to voters on the basis of Hindutva did not constitute an appeal on the basis of religion. They said the December 1995 judgment required reconsideration.
The two added that for the past two and a half years (since the Modi government came to power at the Centre), articulations of a narrow, supremacist variety have endangered a deep feeling of insecurity among minorities, free thinkers, atheists and all those who uphold the constitutional ideal of an India meant for all, irrespective of caste, creed, gender, politics or faith.
Vitiating speeches that not only polarise neighbourhoods and cities but also impose alien and exclusivist identities on citizens, endanger the constitutional mandate the most.
They pointed out that the “corrupt practice” as prescribed by section 123(3) of the Representation of the People Act undoubtedly constitutes a very healthy and salutary provision, which is intended to serve the cause of a secular democracy in this country. In order that the democratic process should thrive and succeed, it is of the utmost importance that our elections to parliament and the different legislative bodies must be free from the unhealthy influence of appeals to religion, race, caste, community, or language.
If these considerations are allowed any sway in election campaigns, they would vitiate the secular atmosphere of democratic life, and so, section 123(3) wisely provides a check on this undesirable development by providing that an appeal to any of these factors made in furtherance of the candidature of any candidate as therein prescribed would constitute a corrupt practice and would render the election of the said candidate void.
“Ordinarily, Hindutva is understood as a way of life or a state of mind and it is not to be equated with, or understood as religious Hindu fundamentalism”, the court had said, in 1995. The above opinion indicates that the word ‘Hindutva’ is used and understood as a synonym of ‘Indianisation’, i.e., development of uniform culture by obliterating the differences between all the cultures coexisting in the country, the petitioners said. The mischief resulting from the misuse of the terms by anyone in his speech has to be checked, they added.
“It is indeed very unfortunate if in spite of the liberal and tolerant features of Hinduism recognised in judicial decisions, these terms are misused by anyone during the elections to gain any unfair political advantage. Fundamentalism of any colour or kind must be curbed with a heavy hand to preserve and promote the secular creed of the nation. Any misuse of these terms must, therefore, be dealt with strictly.” Arguments on the case will continue on October 25.