The Supreme Court, scrutinising the two-decade-old 'Hindutva' judgement, today 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," a seven-judge Constitution bench headed by Chief Justice T S Thakur asked.
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.
"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, the provision says.
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 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, which also comprised justices Madan B Lokur, S A Bobde, A K Goel, U U Lalit, D Y Chandrachud and L Nageswara Rao.
During the day-long hearing, the bench asked the counsel as to how the statements of religious leaders or clerics, made much before the commencement of the election process, seeking votes on the objectionable grounds, would fall foul of the RP Act.
Datar, during his arguments, stressed on the legal
requirement that the consent of returned candidates was necessary if he is to be held liable for "corrupt practices" for allegedly using inflammatory statements of any religious leader or cleric.
"In my case, main speeches were made by Bal Thackeray and Pramod Mahajan, who are now no more," he said, adding that "their examination was needed for holding me guilty under the provision concerned."
It was alleged that both the late leaders had sought votes in the name of Hindutva and 'Hindu Rashtra'.
"A returned candidate has been disqualified because of the speech of somebody else and that too without his consent," the bench observed.
The bench further sought assistance of Datar, appearing for the former BJP MLA, on the issue whether the old and stale statements, used belatedly in an election, can be held to be violative of the RP Act.
Another senior advocate Shyam Divan said the issue which required to be decided was on "narrow compass" as the court has to decide the scope of section 123(3) of the Act.
"There is a contradistinction with regard to whether consent of the returned candidate, in adopting corrupt practices, can be inferred from the materials or it has to be established," Divan said while highlighting the differences of opinion in earlier apex court verdicts on the issue.
Yesterday, the bench had referred to the instances of 'deras' in Punjab and their heads asking supporters to vote for a particular party or a candidate.
"These deras are not connected to religion per se and follow a particular way of life. If the head of a dera asks its followers to vote for a particular political party, would that also fall foul of Section 123(3)," it had asked.
The court had 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.
The bench began the hearing by grappling with the issues which could be examined by it and wanted to know whether some of them could be remanded back to a smaller bench of five or three judges.
Earlier, Datar had submitted that the case of his client
Singh should be separated from this hearing as all similarly situated people had 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.
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.
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 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.
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.