The Supreme Court on Thursday reserved its verdict on the "width and scope" of an electoral law provision dealing with the issue whether seeking votes or asking electors not to vote on the ground of "religion, race, caste, community or language", amounted to "corrupt practice".
A seven-judge Constitution bench headed by Chief Justice T S Thakur, elaborating on the issues weighing on its mind, said "all that we wanted to know was that appeal for votes in the name of religion, means whose religion? Is it the religion of candidates or religion of agent or religion of the third party (seeking votes) or religion of voters or that of all of them?"
It has been interpreted in an earlier verdict that the term 'his religion', used in section 123(3) of the Representation of the People (RP) Act which deals with 'corrupt practice', meant the faith of the candidates only.
Significantly, the bench, also comprising Justices M B Lokur, S A Bobde, A K Goel, U U Lalit, D Y Chandrachud and L Nageswara Rao, yet again reiterated that it would not revisit the famous 'Hindutva' verdict holding Hinduism as a 'way of life' as the issue did not find mention in the reference made to it by a five-judge bench.
"Why are you referring to that (Hindutva judgement)? We are not examining that judgement. Let me make it clear that this has not been referred to us," the CJI clarified when senior advocate K K Venugopal said he would argue if the court is dealing with the 'Hindutva' verdict.
The observation assumed significance as social activists Teesta Setalvad, Shamsul Islam and Dilip Mandal have recently filed an application to intervene in the ongoing hearing to seek de-linking of religion from politics.
The bench, which heard various parties represented by top lawyers including Arvind Datar, Shyam Divan, Kapil Sibal, Salman Khurshid and Indira Jaising for six days, however said the Hindutva verdict, if needed, may be "debated upon" by a five judge bench.
Some lawyers then sought the setting up of the bench immediately.
Section 123(3) of the RP Act, which is being scrutinised, reads: "The appeal by a candidate or his agent or by any other person with the consent of a candidate or his election agent to vote or refrain from voting for any person on the ground 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..., for furtherance of the prospects of the election of that candidate or for prejudicially affecting the election of any candidate" would amount to corrupt practices.
Meanwhile, the Communist Party of India-Marxist became the first political party seeking to intervene in the ongoing hearing in the matter by filing an application for intervention in the apex court.
Arguing for one of the respondents, senior advocate Salman Khurshid referred to various provisions of the RP Act dealing with powers of courts to pass orders in the event of a petition alleging "corrupt practice" in an election.
He also dealt with the issue of religion and the State prevalent in various countries and said, "In some countries, there is a strong divide between the Church and the state. But no country is like ours. Secularism in India means equal treatment to all religions."
The bench said there is freedom to "practice and propagate" the religion, but "can it (religion) be used for electoral purposes".
The court further said the term "his religion" needed interpretation as it had been held that it meant the faith of candidates only and, as a result, the appeals for votes made by an agent and a third party, on the ground of others' faith, get excluded from the ambit of section 123(3) of the RP Act.
Khurshid said the issue of seeking votes in the name of religion needed to be taken to its "logical conclusion" by the apex court.
Senior advocate Indira Jaising, appearing for Setalvad and other two activists, said the term "his religion" needed to be given "broad and wide" interpretation and sought revisiting of the Hindutva judgement.
The issue as to when it can be said that a person has appealed for votes in the name of religion should be interpreted afresh and section 123(3) of the Act be read together with other sub-sections of the provision, she said.
"This case is all about the political speech on the ground of religion. We vote as citizens and not as Hindus or Muslims," Jaising said adding that the interpretation that 'his religion' meant faith of candidates only is flawed.
She referred to an earlier apex court verdict where the appeal by a Hindu seer asking Hindus in a temple to vote for Hindus was held to be bad in law and said this was the "ratio" (the point in a case that determines the judgment) and not the observation that Hindutva is a "way of life".
