Is using religion for votes corruption, asks Supreme Court

Is seeking vote in the name of religion a "corrupt" practice? Or will an appeal by a priest or a cleric to voters of his own community to support a candidate come under the ambit of corrupt practice under the election law?

These are the questions raised by the Supreme Court which began hearings to revisit its 1995 judgment on Hindutva. The apex court was looking at the misuse of religion by religious leaders during campaigning. Religious leaders who have campaigned in the past include the Shahi Imam of Jama Masjid and spiritual guru Baba Ramdev.

The court raised a slew of queries on Tuesday before interpreting the provision (Section 123) of the Representation of People Act (RPA) pertaining to "corrupt practice."

"Can a person belonging to one community seek votes from members of his community for a candidate belonging to another community? Like a Hindu candidate may use a Muslim religious leader to solicit votes of his community for Hindu candidates by hinting that they would invite "divine displeasure" if they do not vote for a particular candidate," the bench headed by Chief Justice of India T S Thakur, posed queries without mentioning any names.

"Even a Muslim candidate may use a Hindu supporter to garner votes of the Hindu community by playing the religious card. Will a candidate be held liable for corrupt practice if he uses the inflammatory speeches of a religious leader to further his own electoral practices?" the bench asked while agreeing to examine the provisions of the electoral law.

The seven-judge bench comprised Justices Madan B Lokur, SA Bobde, Adarsh Kumar Goel, UU Lalit, DY Chandrachud and L Nageswara Rao. They are hearing two election petitions on the issue by Abhiram Singh and Narayan Singh.

Senior advocate Arvind Datar, who began the day-long hearing, sought relief for his client, BJP leader and petitioner Abhiram Singh, citing that all others in a similar situation have already got relief from the apex court.

Referring to 10 such appeals in which the election of candidates were restored, Datar submitted that the Bombay High Court had set aside his election in 1991, as it was alleged that other BJP leaders in their speeches had referred to religion to garner votes for him.

Datar said that, in 1990, two such speeches were made, one by late Shiv Sena supremo Balasaheb Thackeray and the other by the late Pramod Mahajan in which reference to 'Hindutva' was made to garner votes for Shiv Sena and BJP candidates.

Citing other cases like the relief secured by former Maharashtra chief minister Manohar Joshi, Datar said that his client's election to the Maharashtra Assembly in 1990 was set aside in 1991 by the Bombay High Court.

In the famous 1995 verdict, known as "Hindutva judgment", a three-judge bench, headed by the then chief justice J S Verma had held that Hindutva/Hinduism is a way of life for people in the sub-continent and "is a state of mind."

On February 2, 2014, a five-judge Constitution Bench, led by Justice RM Lodha, posted the issue for consideration by the seven-judge Bench, along with a reference of seven judges of an appeal already made as early as in August 2002, pending adjudication.

The judgment was a turning point in elections in Maharashtra after the 1992-93 Mumbai riots, when Shiv Sena leader Manohar Joshi had promised to turn Maharashtra into "India's first Hindu State."

The Bombay High Court nullified Joshi's election as by seeking vote in the name of religion, he violated the constitutional commitment to secularism. However, Justice Verma had overturned the high court verdict holding that a candidate would not be guilty of a corrupt practice if he/she appealed to persons to vote, or not to vote, on grounds of religion as long as it was not his/her religion.