The Supreme Court on Tuesday formally commenced hearing on a batch of petitions seeking to examine whether appeals in the name of religion and caste to woo voters during polls amount to corrupt practice under the law of the land.
The case, being heard by a seven-judge bench of the Supreme Court comprising Chief Justice TS Thakur, reopens a two-decade-old ruling of the apex court, which held that seeking votes in the name of ‘Hindutva’ is not a corrupt practice under the People’s Representation Act, 1951.
The SC bench also comprised Justices Madan B Lokur, SA Bobde, Adarsh Kumar Goel, Uday Umesh Lalit, DY Chandrachud and L Nageswara Rao posed several questions to be addressed by counsel Arvind Datar, arguing on behalf of the petitioners in the matter.
However, the bench declined, for now, a plea by Additional Solicitor General Tushar Mehta to ask Attorney General Mukul Rohatgi to assist the court in the matter. The bench felt that the issue before it concerned an election dispute and thus at this point of time, there was no necessity to seek the views of the Attorney General or the Central government.
Coincidentally, the apex court has taken up the hearing at a time when the BJP, which has allegedly pro-Hindutva ideology, leads the coalition at the Centre and assembly elections in Uttar Pradesh is round the corner.
Datar had challenged the election of several candidates in the 1992 the Maharashtra assembly polls claiming they had appealed to voters on religious grounds.
The bench is examining whether the use of words like "Hindutva" or "Hinduism" or any similar nomenclature amounted to garnering votes by exploiting religious feelings of the voters.
Justice Bobde said that mobilising votes by invoking religious sentiments was destructive of Section 123 (3) of The Representation of the People Act, 1951.
"Making an appeal in the name of religion is destructive of Section 123 (3). If you make an appeal in the name of religion, then you are emphasising the difference or you are emphasising the identity. It is wrong," Justice Bobde observed.
Section 123 (3) prohibits seeking votes by a candidate or his agent on grounds 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.
The hearing by the seven-judge bench is rooted in the conflicting judgments delivered way back in 1995 and 1997 on whether seeking of votes in the name of "Hindutva" or "Hinduism" amounted to exploitation of religion, as prohibited under Section 123(3).
The bench asked Datar whether by making an appeal in the name of religion, "are you not emphasising the identity of the candidate?"
The bench also asked when votes are moblised by invoking religion or appealing to religious identity, would it not amount to seeking votes in the name of religion.
The bench cited a hypothetical situation wherein a Muslim supporter of a Hindu candidate sought votes from his community by invoking religion and fear of divine retribution if they don't vote. And the vice versa situation.
Similarly, there were questions on seeking votes by exploiting caste identities.
The court is having a relook at the 1996 judgment by which a three-judge bench held that Hinduism is a way of life and a state of mind and not a religion. Therefore, it said, invoking Hinduism was not a corrupt practice.
It was on the strength of this judgment that the Supreme Court had reversed the unseating of nine BJP legislators in Maharashtra, including former Lok Sabha Speaker Manohar Joshi.
However, one case of Abhiram Singh is still pending as it was referred by the five-judge bench to the seven-judge bench.
Abhiram Singh was elected to the Maharashtra assembly in February 1990. His election was set aside by the Bombay High Court in December 1991 and since then his appeal is pending before the Supreme Court. Hearing will continue on Wednesday.
With IANS Inputs