The Supreme Court on Thursday made it clear that seeking votes in the name of religion should not be allowed in the secular arena of elections.
A seven-judge Bench headed by Chief Justice T.S. Thakur is hearing the “Hindutva” judgment of 1995 in which a three-judge Bench headed by J.S. Verma had held that Hinduism is a way of life and there is no bar in expressing words like Hindutva or Hinduism or to have a Hindu state, and that this does not amount to seeking votes in the name of religion which is prohibited under Section 123 (3) of the Representation of the People Act.
When senior counsel Shyam Divan, appearing for former MLA from Sunderlal Patwa, submitted that the seven judges should accept Justice Verma’s verdict and that it was for Parliament to revisit the provision in Section 123 (3), the CJI shot back saying Parliament has done nothing on the issue for the last 20 years.
The CJI observed, “Parliament has done nothing in the last 20 years while the reference was pending. Maybe it is waiting for us to pronounce the judgment, like in the sexual harassment case Since Parliament has not done anything, why can’t the court make any appeal for votes on the ground of religion an electoral offence.” Sunderlal Patwa’s election to the state Assembly in 1994 has been challenged for his agent allegedly invoking Hinduism.
Refusing to accept the counsel’s argument, the CJI said, “Let us take the case of Mr Sunderlal Patwa. He belongs to the Jain community. But some person acting on behalf of him makes an appeal that Mr Patwa, though a Jain, will help in making the Ram Mandir. The appeal is in the name of religion not a candidate. It is not an appeal to vote in the name of religion. The very purpose of the legislation is to ensure there is no basis for religion. Religion should be separated from the political process.” The CJI wondered why the law couldn’t be interpreted in a manner so as to bar any appeal made on the grounds of religion.
The CJI added that a Jew could not ask for Jew votes, but could appeal for non-Jew votes and then asked the counsel, “Can a fatwa be issued asking Muslims to vote for a Hindu candidate Is that permissible ”
Justice Thakur observed, “The essence, the ethos of our constitutional system is secularism religion and politics don’t mix. Elections are a secular activity or not In a secular state can religion be brought into secular activities ”
Mr Divan, however, argued that an appeal by a candidate to voters other than those who share his religion is not proscribed. He said the court should not sanitise the poll process from all religious, caste issues as a healthy debate is necessary. He argued that the earlier line of judgments had stood the test of time, restricting the appeal for a candidate’s religion, for 50 years.
Mr Divan then asked the court, “Where is the necessity to depart from it It is a penal provision. If there is any need for change, Parliament can change it. Court should not insert something in a penal provision to make it wider. Several amendments have been made to the (Representation of People Act) law. That means Parliament is alive to the problem and would have changed it if there was a necessity for it.”
Arguments will continue on October 25.
