THE SUPREME Court on Tuesday said that seeking votes in the name of religion is “evil” and cannot be permitted, but declined to re-examine its 1995 judgment, which held that Hindutva relates to a “way of life” and not just a religious practice.
Under the Representation of the People Act, promotion of, or attempt to promote, feelings of enmity or hatred on grounds of religion, race, caste, community or language, by a candidate or his agent, amounts to “corrupt practice”, and election of the candidate can be set aside on this ground.
But a three-judge bench held in 1995 that “unless the context of a speech indicates a contrary meaning or use, in
the abstract, these terms (Hindutva or Hinduism) are indicative more of a way of life of the Indian people and are not confined merely to describe persons practicing the Hindu religion as a faith”. Hence, it said, using these
terms could not impact the validity of election of any candidate.
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On Tuesday, a seven-judge Constitution Bench led by Chief Justice of India T S Thakur maintained that seeking votes in the name of religion is “evil”. “People get affected by appeals in the name of religion. It would only be proper if appeal for votes in a secular country is based on principles of secularism. We cannot encourage the practice of asking for votes in the name of religion… political agitation advancing the cause of religion with an intent to garner votes is not permissible,” it said.
However, the Bench said it was not examining the larger issue of whether Hindutva means Hindu religion or not, or whether use of Hindutva and Hinduism in elections is impermissible.
“We will not go into the larger debate as to what is Hindutva or what is its meaning. We will not reconsider the
1995 judgment and also not examine Hindutva or religion at this stage… we will confine ourselves to the issue raised before us in the reference,” clarified the Bench.
“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,” it said.
The Bench stated that the terms of reference to a larger bench related to nexus between religion and religious
leaders on one hand and candidates on the other. “We don’t need to examine whether Hindutva means religion or not. We are examining effect of religion under Section 123 (3) of the Act,” it said.
The court’s observations came as senior advocate K K Venugopal sought a hearing on the interpretation of Hindutva. Appearing for former diplomat O P Gupta, Venugopal said the issue required a re-interpretation by the Bench.
Social activist Teesta Setalvad had also complained that the three-judge bench’s interpretation of Hindutva has led
to “demands of homogenisation and assimilation of minority communities and SC/ST in the Hindutva way of life.”
Setalvad, along with theatre activist and author Shamsul Islam and senior journalist Dilip Mandal, had urged the Bench to check the “devastating consequences” of the 1995 judgment, which, they said, caused Hindutva to “become a mark of nationalism and citizenship.”
In December 1995, Justice J S Verma, writing for a three-judge Supreme Court bench, had held that seeking votes in the name of Hinduism is not a “corrupt practice” under Section 123 of the Representation of the People Act.
Adjudicating on appeals filed by political leaders including Bal Thackerey, Manohar Joshi and R Y Prabhoo, the bench said the mere fact that these words (Hindutva or Hinduism) are used in a speech would not make the speaker liable under sub-section (3) or (3A) of Section 123. “It may well be that these words are used in the speech to promote secularism and to emphasise the way of life of the Indian people and the Indian culture or ethos, or to criticise the policy of any political party as discriminatory or intolerant,” it ruled.