In a recently concluded hearing before the Seven Judges Bench of the Supreme Court, Mr Kapil Sibal raised the very fundamental issue in relation to the changed electoral politics in India stating that the very purpose of all the laws regulating corrupt practices in an election is to protect the ‘underlying/enduring constitutional ethos’ and for that the Court must lay down the guidelines which could control the mischief being played by various candidates and political parties in view of the ‘new dimension of communications’. Secularism being part of basic structure of our constitution, as held in S R Bommai case, cannot be frustrated if the voters themselves start making mischievous appeals on religious ground to vote for a candidate who has association/background of religious fundamentalism. Other principles in the Constitution, like the basis of grant of citizenship, rights of citizenship of persons who migrated from Pakistan to India, principles evolving from equality in the backdrop of equal religious rights of every citizen, protection of minorities, duty of State to promote educational and economic interests of Scheduled castes, Scheduled Tribes and other weaker sections etc.
Similarly, the second limb of his argument was that the manifesto of political parties containing slogans like ‘Ghar Wapsi’ or construction of Ram Temple, which are essentially religious appeals by Political party to mobilize the religious persons on one platform and that automatically becomes an appeal by candidates even if the candidate or his agent with or without consent has not indulged into the corrupt practice in the name of religion. Meaning thereby, why can’t the religious appeal in manifesto become the corrupt practice of the candidate of that party?
After three days hearing of the matter, on the 4th day of hearing, the Bench became very categorical that the terms reference to Seven Judges were on limited issue and the Court will not go into the issue of defining what term(s), appeal(s), content of speech shall amount to religious appeal and would fall in the category of corrupt practice. No doubt, the term of reference to seven judges were not very happily worded to include this issue but considering the way it had started, the impression went that the concept of ‘Hindutva’ given by three judges Bench led by Justice J S Verma in 1995 could be reviewed. As a result, in the middle of the hearing many State governments and political parties tried to intervene in the matter. Many interventions were permitted by the court but ultimately, the Bench clarified that it shall confine itself strictly in terms of the reference order and other issues could go back to Five Judges Bench.
The questions of law reached this Bench, firstly by reference three Judges bench in 1996 and thereafter, by Five Judges in 2014. Largely, the issues can be divided into two compartments. The interplay of Section 98 and 99 of the Representation of Peoples Act,1951 and Section 123(3), as the First Part and indirectly the second issue was the contents of appeal for voting in his favour by a candidate or his agent.
The First Part is completely technical in nature which touches the substantive right of the named person(s) while passing substantive orders as per section 98 declaring the election of a returned candidate to be void and also if a prohibited appeal, like in the name of religion, race, caste, community etc has been made by ‘any other person with the consent of the candidate’ under section 123(3), how the concept of ‘consent’ has to be understood in the changes means of media and communications. In the year 2003, in Narayan Singh’s case, another Five Judges Bench had to refer the issue to seven Judges Bench as to whether the appeal of constituting corrupt practice of the candidate or the voters shall be the matter of concern recording that ‘if appealed by the candidate, or his agent or any other person to vote or refrain from voting on the grounds of caste, race, community or religion, it would not be so under the amended provision so long as the candidate does not appeal to the voters on the ground of his religion even though he appealed to the voters on the ground of religion of voters’. This question of law was also before the seven judges. The other case having been heard, i.e Abhiram Singh’s case, the five judges had referred one question of law to seven judges in view of the reference made in Narayan Singh’s case.
Apart from the interplay of Section 98 and 99, many members at the Bar tried to deliberate upon, another equally important question, that was examining the content of appeal to voters, specially the ‘religious contents’ and ‘terminologies’ used to make appeal to the voters by or in favour of the candidates. This was necessary in view of the three Judges Bench judgment of Justice J S Verma in 1995 wherein he held that ‘Ordinarily, 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’. This view came in the backdrop of the speeches of Bal Thakeray like “We are fighting this election for the protection of Hinduism. Therefore, we do not care for the votes of the Muslims. This country belongs to Hindus and will remain so”, “Hinduism will triumph in this election and we must become hon’ble recipients of this victory to ward off the danger on Hinduism, elect Ramesh Prabhoo to join with Chhagan Bhujbal who is already there. You will find Hindu temples underneath if all the mosques are dug out. Anybody who stands against the Hindus should be showed or worshipped with shoes. A candidate by name Prabhoo should be led to victory in the name of religion”, “We have gone with the ideology of Hinduism. Shiv Sena will implement this ideology. Though this country belongs to Hindus, Ram and Krishn are insulted. (They) valued the Muslim votes more than your votes: we do not want the Muslim votes…..”. Though the Court held that the speech of Bal Thakreray amounted to corrupt practice and confirmed the verdict of High Court declaring the election of Prabhoo as void but a very wide and undefined religious concept of Hindutva was given legitimacy held to be a non-religious matter.
Now it is clear that the Seven Judges Bench will not go into this issue and the view taken by Justice Verma on the issue of ‘Hindutva’ shall not be reviewed, at least now. If the scope of examination of the issues were so limited before Seven Judges Bench, such lengthy oral arguments for 6 days might not have been permitted.
Undoubtedly, the issues raised by Mr Sibal need to be addressed urgently by the appropriate Bench and it would have been much better if many of such issues were decided by this Bench. The kind of religious fanaticism has been seen during election in recent past, has not been so far witnessed in the history of independent India. The educated urban middle class has tried to paint most of the issues in religious colour, not for only the electoral benefits of their political ideology but also for their commercial interests. We have the society where majority of population go to school where teachers do not know how to teach and small section of the population go to privately managed schools where they get relatively better education. Hence the very thought process of majority of the population is based upon non-application of mind and based upon emotive issues. We cannot compare ourselves with the other grown-up democracies which permit the appeal in the name of religion and race etc. Their children go to similar schools and colleges, they have much better food security, medical guarantee etc. and accordingly their thought process is also in a way mature than us.
It is the time now when we must consider the constitutional guarantee for non interference into electoral politics. The custodians of the democracy cannot be permitted to get elected by making appeals in the name of religious values.
This article appeared in Livelaw on 4th November, 2016