Will not re-visit 1995 judgement on 'Hindutva': SC

The Supreme Court today ruled out re-visiting the famous 'Hindutva' verdict holding Hinduism as a "way of life' making it clear that it would not go into the "larger debate" as the issue did not find mention in the reference made by a five-judge bench.

"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 judgement and also not examine 'Hindutva' or religion at this stage," a seven-judge constitution bench headed by Chief Justice T S Thakur said.

The court, to which the issue has been referred by a five-judge bench, is examining the "scope and width" of section 123(3) of the Representation of the People (RP) Act which deals with electoral malpractices amounting to "corrupt practices", among other things.

"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, the provision says.

Dealing with the reference, the bench said, "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, also comprising Justices M B Lokur, S A Bobde, A K Goel, U U Lalit, D Y Chandrachud and L Nageshwar Rao, said.

The remarks were made by the bench after senior advocate K K Venugopal, appearing for one O P Gupta who is seeking to intervene in the ongoing proceedings, said that he should also be heard if the bench is going into the question of Hindutva and seeking of votes on the basis of religion.

Social activist Teesta Setalvad had earlier sought to intervene in the matter with an application stating that religion and politics should not be mixed and a direction be passed to de-link religion from politics.

One of the lawyers today told the bench that as per the previous judgement, the seven-judge bench should examine the issue of 'Hindutva'.

To this, the CJI said that the bench would not hear the issue at this stage as nothing of this sort has been mentioned in the reference made to it by the five-judge bench.

During the hearing, the bench also observed, "the whole idea is that religion should be separated from politics."

The remarks came after senior counsel B A Desai, appearing for one of the respondents, told the bench that it has to interpret section 123 (3) of the RP Act.

Another senior advocate Shyam Divan said that one can seek vote under constitutional mandate without using his identity in the name of religion, race, caste, community or language.

"One can't say that I belong to a particular community so vote for me," he said.

Senior advocate Anoop George Chaudhary told the court that garnering votes in the name of religion would "directly affect the secular fabric of the country".

"No one should be allowed to make an appeal in the name of religion. Any such emotive appeal will take away independent choice of vote. That is why it has become a corrupt practice. Parties can get over this easily if everybody is asking for votes in the name of religion," he said.

During the hearing, Desai, when asked by the bench to list out his propositions in the case, said that broadly three issues arise out of the reference.

"Any reference has to be a mix of facts and law. Here, the entire appeal has been referred to this bench," he said adding that the "plank of Hindutva, Hindu and Hinduism" are part of the reference and falls within the scope of section 123 (3) of the RP Act.

The arguments in the matter remained inconclusive and would continue tomorrow.

Earlier, the apex court had 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.

The bench is hearing a batch of petitions including the one filed by Abhiram Singh whose election as an MLA in 1990 on BJP ticket from Santacruz assembly seat in Mumbai was set aside by the Bombay High Court.

The apex court in February 2014 had tagged Abhiram Singh's petition with others in which the five judge bench had decided in 2002 to re-visit its 20-year old 'Hindutva' judgement for an authoritative pronouncement on electoral laws by a seven-judge bench.

The issue of interpretation of section 123(3) arose on January 30, 2014 before a five-judge which referred it for examination before a larger bench of seven judges.

A three-judge bench on April 16, 1992 had referred to a five-judge Constitution Bench Singh's appeal in which the same question and interpretation of Section 123(3) was raised.

While the five-judge bench was hearing this matter on January 30, 2014, it was informed that an identical issue was raised in an election petition filed by Narayan Singh against BJP leader Sunderlal Patwa and the another Constitution Bench of five judges of the apex court had referred it to a larger bench of seven judges.

Thereafter, the five-judge bench had referred Singh's matter also to the Chief Justice for placing it before a seven-judge bench.