The supreme court on Thursday declared that seeking votes in the name of religion should not be allowed in the secular arenas of election, while criticising the Parliament for 'doing nothing' in this regard for the past two decades.
A seven-judge bench headed by chief justice T S Thakur was hearing the 1995 'Hindutva' judgement that held that vote in the name of "Hindutva/Hinduism" did not pre-judicially affect any candidate, and since then three election petitions are pending on the subject in the apex court.
The apex court's three-judge bench headed by J S Verma in 1995 had held that "Hindutva/Hinduism is a way of life of the people in the sub-continent" and "is a state of mind."
The bench asked whether anyone can raise the issue of deaths along the border and seek votes for a particular party. Referring to the terms "national symbols" and "national emblem" in section 123(3) of the Representation of the People (RP) Act, the bench said nobody can be allowed to use them to garner votes in the elections.
"Anybody can seek votes on the ground of national flag and national emblem and say that people are dying on the borders and so vote for a particular party. Can it be permitted?" asked the bench.
The hearing also saw the bench observing that Parliament has consciously "widened" the scope of the term "corrupt practices" in the poll law to curb "separatist and communal" tendencies.
"What is most significant in the present clause (of the RP Act) is that Parliament thought to widening the scope of 'corrupt practices' to curb separatist and communal tendencies during elections," the bench, which also comprised justices Madan B Lokur, S A Bobde, A K Goel, U U Lalit, D Y Chandrachud and L Nageswara Rao, said.
The bench then raised a hypothetical question and asked if a 'Sikh granthi' seeks votes for a particular Hindu candidate, can it be said that this appeal "falls foul" of the provision in question. It may not amount to "corrupt practice" under the specific section of the RP Act, Divan responded.
He also said that the term "his religion", used in the provision, means religion of the candidate and not that of the spiritual leader or cleric who seek votes.
The court is examining the "scope and width" of section 123(3) of the RP Act which deals with electoral malpractices amounting to "corrupt practices", among other things.
On Wednesday, the apex court asked whether non-contesting spiritual leaders or clerics can be held accountable for "corrupt practices" under electoral law for asking voters to vote for a particular party or candidate.
"How can a person, who himself has neither contested nor returned as a winning candidate, be tried for allegedly resorting to corrupt practices under the Representation of the People (RP) Act," it had asked.
Senior advocate Arvind Datar, appearing for Abhiram Singh whose election as an MLA in 1990 on BJP ticket from Santacruz assembly seat in Mumbai was set aside by the High Court, referred to section 123(3) of the Act and had said that corrupt practice can only be established if either the "candidate or his agent" seek votes on the name of religion.
If any other person, like late Bal Thackeray and late Pramod Mahajan in the present case, sought votes on these grounds, referred to in the RP Act, then there has to be the "consent" of the candidate, he told the bench.
The 1995 'Hindutva' judgement was delivered in the case of Manohar Joshi versus N B Patil which was authored by Justice J S Verma who found that the statement by Joshi that the 'first Hindu State will be established in Maharashtra' did not amount to appeal on ground of religion".
The issue of interpretation of section 123(3) again arose on January 30, 2014 before a five-judge which referred it for examination before a larger bench of seven judges. The seven judges is now dealing with the appeal filed in 1992 by Abhiram Singh.
A three-judge bench on April 16, 1992 had referred to a five-judge Constitution Bench Singh's appeal in which the same question and interpretation of Section 123(3) was raised.
While the five-judge bench was hearing this matter on January 30, 2014, it was informed that an identical issue was raised in an election petition filed by Narayan Singh against BJP leader Sunderlal Patwa and the another Constitution Bench of five judges of the apex court had referred it to a larger bench of seven judges.
Thereafter, the five-judge bench had referred Singh's matter also to the Chief Justice for placing it before a seven-judge bench.