The Supreme Court on Tuesday commenced hearing to revisit its two-decade-old 'Hindutva' judgement for an authoritative pronouncement on electoral law categorising misuse of religion for electoral gains as "corrupt practice".
A seven-judge bench headed by Chief Justice T S Thakur decided to go ahead with the hearing, ignoring the request of some parties in the matter to involve Attorney General Mukul Rohatgi for his assistance.
"Are you saying that in every case which relates to interpretation of a legislation, assistance of the Attorney General is needed," the bench, also comprising justices Madan B Lokur, S A Bobde, A K Goel, U U Lalit, D Y Chandrachud and L Nageswara Rao, asked the counsel who had raised the issue of assistance by the top law officer.
The bench began the hearing grappling with issues which could be examined by it and wanted to know whether some of them can be remanded back to a smaller bench of five or three judges.
Senior advocate Arvind Datar, who set the ball rolling at the crucial hearing, submitted that the case of his client Bharatiya Janata Party leader Abhiram Singh should be separated from this hearing as all the similarly situated people have already got relief from the apex court.
He said the appeal filed in 1992 by Singh, whose election to 1990 Maharashtra assembly was set aside in 1991 by the Bombay high court, has wrongly been tagged to the main petition of Narayan Singh whose appeal by the five judge bench was referred to the seven judges.
Datar submitted that the high court had set aside his election as it was alleged that other BJP leaders in their speeches had referred to religion to garner votes for him.
The senior advocate said there were 10 such appeals against the high court order and, except in two, the election of others were restored by the apex court and therefore, Abhiram Singh should be treated on the same footing and his appeal should be remanded back to three-judge bench.
He made reference to the similar relief secured by former Maharashtra Chief Minister Manohar Joshi contending that there was no conflict in that judgement.
Datar said in 1990, two such speeches were made, one by late Shiv Sena supremo Balasaheb Thackeray and another by late Pramod Mahajan in which reference to 'Hindutva' was made to garner votes for the Shiv Sena and BJP candidates.
While the submissions were being made, the bench deliberated on the likely situations that could emerge from such issues and whether those could invite the interpretation of electoral laws.
The bench wanted to know whether an appeal by a priest or a cleric to voters for supporting a candidate in the name of god or religion would attract provisions of the Representation of People Act pertaining to "corrupt practice".
The bench was examining the interpretation of section 123 of the 1951 Representation of People Act pertaining to "corrupt practice".
The apex court in February 2014 had tagged Abhiram Singh's petition with others in which the five judge bench had decided in 2002 to re-visit its 20-year old 'Hindutva' judgement for an authoritative pronouncement on electoral laws by a seven judge bench.
The issue assumes significance as questions were raised on its 1995 verdict which held that vote in the name of "Hindutva/Hinduism" did not prejudicially 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 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 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 observation was made while dealing with the question regarding the scope of corrupt practices as mentioned in sub-section (3) of Section 123 of the 1951 Representation of People Act.
The issue for interpretation of the sub-section once 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 dealing with the appeal filed in 1992 by Abhiram Singh, whose election to 1990 Maharashtra assembly was set aside in 1991 by the Bombay high court.
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 sub-section (3) of Section 123 of the Act 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.
The January 30, 2014, order said, "Be that as it may, since one of the questions involved in the present appeal is already referred to a larger bench of seven judges, we think it appropriate to refer this appeal to a limited extent regarding interpretation of sub-section (3) of Section 123 of the 1951 Act to a larger bench of seven judges.
"The Registry will place the matter before the Chief Justice for constitution of a bench of seven judges. The matter may be listed subject to the order of the Chief Justice."
The apex court had also noted that "in the course of arguments, our attention has been invited to the order of this court dated August 20, 2002 in Narayan Singh vs Sunderlal Patwa. By this order, a Constitution Bench of five judges has referred the question regarding the scope of corrupt practice mentioned in sub-section (3) of Section 123 of the 1951 Act to a larger bench of seven judges.
"This became necessary in view of the earlier decision of a Constitution Bench of this court in Kultar Singh vs Mukhtiar Singh," the court had said.
