In a new turn to the ‘Hindutva’ debate in the country, a full seven-member Constitution Bench of the Supreme Court has begun hearing to decide whether seeking votes in the name of ‘Hindutva’ or any other religion is an “electoral malpractice” or “corrupt practice” under the provisions of the Representation of the Peoples Act (RPA).
The CB headed by the Chief Justice of India (CJI) Tirath Singh Thakur would also decide and interpret an earlier decision of India’s apex court that ‘Hindutva’ “per-se” is not a crime and Hinduism is “a way of life”.
The new bench would interpret the RPA, especially section 123 (3) defining corrupt electoral practice. It stipulates that “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, such as the national flag or the national emblem, for the furtherance of the prospects of the election of that candidate or for prejudicially affecting the election of any candidate”.
In 1995, a three-judge bench presided over by then CJI JS Verma made it clear that “Hindutva and Hinduism” did not “prejudicially” affect any candidate. However, since then, three election petitions were filed and are pending adjudication on the same matter of invoking religion for votes.
The fresh bench comprises Chief Justice TS Thakur and Justices Madan B Lokur, S A Bobde, Adarsh Kumar Goel, U U Lalit, D Y Chandrachud and L Nageswara Rao. Two election petitions on the issue by one Abhiram Singh and one Narayan Singh are pending adjudication.
As elections to the Uttar Pradesh (UP) state legislative assembly are fast approaching and the Bharatiya Janata Party (BJP) is reportedly gearing up to whip up the issues of Hindutva and Ram temple at Ayodhya, with Prime Minister Narendra Modi chanting the “Jai Shri Ram” slogan at Lucknow recently, the issue has gained significance.
Earlier, on February 2, 2014, another five-judge Constitution Bench of Justice RM Lodha, Justice AK Patnaik, Justice SJ Mukhopadhaya, Justice Dipak Misra and Justice Ibrahim Kalilfulla wanted the issue to be considered by a larger bench and hence this new seven-judge bench.
The genesis of the issue is actually from the Bombay High Court, which annulled the election of then Maharashtra Chief Minister and Shiv Sena leader Manohar Joshi, who had then promised “India’s first Hindu State” in Maharashtra. The Bombay High Court set aside his election holding that by seeking votes in the name of religion, Joshi violated the constitutional commitment to secularism. Joshi’s clarion call on Hindutva followed the 1993 Mumbai riots.
On an appeal by him, the Supreme Court in 1995 overruled the High Court verdict. But in 2014, a five-judge Constitution Bench was formed on a petition by BJP candidate Abhiram Singh, whose election to the Maharashtra assembly was set aside by the Bombay High Court. This five-judge bench headed by Justice Lodha referred the issue to a seven-judge bench. The one issue this bench referred to a larger seven-judge bench is: Whether one can seek a vote in the name of religion.
Any court may give any verdict on the issue, but the reality in India is that elections are contested and won on caste and religious basis.