SC raises series of questions in debate on Hindutva judgement

The Supreme Court today asked whether anyone can raise the issue of deaths along the border and seek votes for a particular party.
The question was among several raised during a day-long hearing to revisit its two-decade-old 'Hindutva' judgement.
Referring to the terms "national symbols" and "national emblem" in section 123(3) of the Representation of the People (RP) Act, a seven-judge Constitution bench headed by Chief Justice T S Thakur said nobody can be allowed to use them to garner votes in the elections.
"Anybody can seek votes on the ground of national flag and national emblem and say that people are dying on the borders and so vote for a particular party. Can it be permitted," asked the bench.

"This is specifically proscribed under this provision," senior advocate Shyam Divan said.
The hearing also saw the bench observing that Parliament has consciously "widened" the scope of the term "corrupt practices" in the poll law to curb "separatist and communal" tendencies.

"What is most significant in the present clause (of the RP Act) is that Parliament thought to widening the scope of 'corrupt practices' to curb separatist and communal tendencies during elections," 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, said.
The bench then raised a hypothetical question and asked if a 'Sikh granthi' seeks votes for a particular Hindu candidate, can it be said that this appeal "falls foul" of the provision in question.

It may not amount to "corrupt practice" under the specific section of the RP Act, Divan responded.
He also said that the term "his religion", used in the provision, means religion of the candidate and not that of the spiritual leader or cleric who seek votes.
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 fresh plea, filed by Setalvad and others, said that
the issue could "potentially have far-reaching consequences on the purity of the electoral process".
"The applicants are concerned about the electorate, the electoral process and the need to ensure that political parties and candidates for election do not use religion to appeal for votes. Sections 123(3) and (3A) were enacted to prevent the political parties from espousing religious sentiments for the purpose of garnering votes and get elected.

"The Applicants are of the considered view that the interpretation given to Section 123(3) and (3A) of the Representation of the People Act,...Has had the effect of encouraging political parties to use religious appeals for garnering votes under the color of the proposition that 'Hindutva' is not a religion but a 'way of life'."
The relevant section of the RP Act deals with "corrupt practices" and 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.

Yesterday, the apex court 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," it had asked.
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 had 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 .