SC poses queries testing old judgement on electoral law

RSTV Bureau

Supreme-Court-of-IndiaRevisiting its two-decade-old judgement on electoral law categorising misuse of religion for electoral gains as “corrupt practice”, the Supreme Court has come up with series of queries. The seven-judge bench, headed by Chief Justice of India TS Thakur asked whether anyone can raise the issue of deaths along the border and seek votes for a particular party.

“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.

The seven-judge bench comprising Chief Justice TS Thakur and justices MB Lokur, SA Bobde, AK Goel, UU Lalit, DY Chandrachud and L Nageswara Rao is revisiting its 1995 judgement where the three-judge bench had pronounced that vote in name of “Hindutva/Hinduism” did not prejudicially affect any candidate.

That verdict was challenged through three separate election petitions which are being heard by the Supreme Court since Wednesday. An intervening application too was filed on Thursday seek to de-link religion from politics.

The top court also observed that the 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 said.

Raising a hypothetical question, it 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.

At that, senior advocate Shyam Divan opined that it may not amount to “corrupt practice” under the specific section of the RP Act. 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.

Meanwhile, three social activists — Teesta Setalvad, Shamsul Islam and Dilip Mandal — filed an application to intervene in the ongoing hearing to seek “de-linking of religion from politics”.

The interveners argued that the issue could “potentially have far-reaching consequences on the purity of the electoral process”. “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,” they said in their arguing their plea.

“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 colour of the proposition that ‘Hindutva’ is not a religion but a ‘way of life’,” they contended.

During the course of hearing, the bench also 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.

The hearing in the matter will continue further.

(With inputs from the PTI)