In a landmark judgment, the Supreme Court on Monday ruled that votes cannot be sought by politicians on the grounds of caste, race, religion, community and language. The judgment is all the more significant given that the Election Commission will be announcing polling dates for state elections to five states.
The seven-judge constitution bench headed by Chief Justice TS Thakur narrowly passed the judgment with a 4:3 majority. By delivering this judgment, the apex court revisited its two-decade old ‘Hindutva’ judgment, where corrupt practices that would attract disqualification under the Representation of People’s Act (RPA).
The Bench was hearing a batch of petitions, including one by BJP’s Abhiram Singh, whose election as an MLA in 1990 from Santacruz in Mumbai was set aside by the Bombay High Court in 1992. Singh’s case was tagged with other petitions in February 2014 in which a five-judge Bench had decided in 2002 to revisit the 1995 judgment for an authoritative pronouncement by a seven-judge Bench on the poll laws in the apex court.
In the 1995 judgment, a three-judge Bench headed by then Chief Justice late JS Verma had defined “Hindutva” as a “way of life”. The judgment turned into a milestone, notwithstanding seven other Supreme Court verdicts on Hindutva or Hinduism.
According to legal expert AG Noorani, Justice Verma had relied on the works of Maulana Wahiduddin Khan, ignoring the Bible of Hindutva, an essay authored by VD Savarkar. Justice Verma extensively quoted from Maulana Khan’s article written in 1994, where he said, “Hindutva is understood as a way of life or a state of mind and it is not to be equated with, or understood as religious Hindu fundamentalism.”
While delivering the judgment the Chief Justice—on the eve of his retirement—said that the secular ethos of the Constitution must be maintained. Speaking about the electoral process, the Chief Justice said the electoral process is essentially a secular activity, and hence religion has no place in it.
“Function of an elected representative should be secular. Relationship between man and God is an individual choice and State is forbidden to such an activity,” the Bench elaborated.
Dissenting Justices DY Chandrachud, UU Lalit and AK Goel stated that any such interference by the court almost amounted to “the judicial redrafting of legislature.” The minority judgment written by Justice Chandrachud, with Justices Goel and Lalit concurring said that barring candidates from articulating issues that affected voters would reduce “democracy to an abstraction.”
The three dissenting Justices also added that decisions like these were best left to the legislature. “No government is perfect. Law does not prohibit dialogue or a discussion of a matter which concerns voters,” they said.
The apex court had been hearing several appeals challenging this 1995 judgment. However, the seven-judge Bench said it would simply focus on the issue of religion in politics, “Will a religious leader’s appeal to his followers to vote for a particular political party amount to electoral malpractice under Section 123 of the Representation of People Act,” the Bench asked.
Thus, the issue before the bench was the interpretation of the word “his” appearing in the amended subsection 3 of section 123 of the RPA. Here, Justice Bobade who wrote a separate judgment supporting the majority interpreted this act and expounded on the intent of the legislature.
“We will not go into the larger debate as to what is Hindutva or what is its meaning. We will not re-consider the 1995 judgment and also not examine Hindutva or religion at this stage. At this stage, we will confine ourselves to the issue raised before us in the reference. In the reference, there is no mention of the word ‘Hindutva.’ If anybody will show that there is a reference to the word ‘Hindutva,’ we will hear him. We will not go into Hindutva at this stage,” the Bench said.
- Function of an elected representative should be secular.
- Relationship between man and God is an individual choice and State is forbidden to such an activity
- “No government is perfect. Law does not prohibit dialogue or a discussion of a matter which concerns voters”
- Interference by the court almost amounted to “judicial redrafting of legislature.”