New Delhi, Oct 18 : The Supreme Court on Tuesday commenced hearing on a batch of petitions to examine whether appeals in the name of religion and caste for votes during elections amounted to “corrupt practice” under the law and hence could be a ground for unseating a lawmaker.
In the course of the daylong hearing, a seven-judge Constitution Bench of Chief Justice T.S. Thakur and Justices Madan B. Lokur, S.A. Bobde, Adarsh Kumar Goel, Uday Umesh Lalit, D.Y. Chandrachud and L. Nageswara Rao posed several questions to be addressed by counsel appearing 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.
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 senior counsel Arvind Datar — appearing for one of the petitioners — 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.