Hindutva debate: Is seeking votes in name of religion a corrupt practice, asks Supreme Court

New Delhi: Religion or caste is a key part of India's political discourse, the Supreme Court observed on Wednesday and asked whether seeking of votes on that basis would amount to "corrupt practice" under the election law.

The apex court asked whether a candidate or a party, seeking votes in the name of religion, caste or tribe by promising that this would help protect and improve the voters' lot as a community, would be a "corrupt practice".

The court, which is examining the scope of section 123(3) of the Representation of the People (RP) Act that deals with electoral malpractices amounting to "corrupt practices", said the issue of prevalent religion and caste-based discrimination was a key part of the political discourse in the country.


"What is wrong if a candidate or a party says that Scheduled Castes (SC) and Scheduled Tribes (STs) are not secure and he asks them to vote en masse for him as he will protect them," a seven-judge Constitution bench headed by Chief Justice T S Thakur said.

Supreme Court of India. Reuters

Supreme Court of India. Reuters

"Does it amount to corrupt practice if a candidate appeals for votes to a community on the basis of their religion and the aim is to better their lot," the bench, also comprising Justices M B Lokur, S A Bobde, A K Goel, U U Lalit, D Y Chandrachud and L Nageswara Rao, asked.

During the day-long hearing, the bench reiterated its Tuesday's observation that it would not re-visit the famous 'Hindutva' verdict holding Hinduism as a 'way of life' as the issue did not find mention in the reference made to it by a five-judge bench.

Senior advocate Kapil Sibal, who argued for one of the respondents in the case, referred to various constitutional schemes including fundamental rights and said sooner or later, the apex court will have to re-visit the entire issue to put an end to caste and religion-based politics in the country.

Seeking widening of the scope of Section 123(3) of the RP Act, Sibal said: "In an election, who are being targeted? It is the voters". Hence, the term — "his religion" — in the provision should not remain confined to the candidates only but should include the faith of the electors as well, he contended.

During the hearing, the bench observed that the heart of politics in the country was discrimination based on caste and religion and the "appeal (for votes) should be in furtherance of the constitutional goals." Sibal also referred to Section 153A (promoting enimity between classes) of the IPC and said a person is liable for criminal prosecution if he or she promoted hatred among communities.


"But how far is it rational that a candidate, who promotes hatred among communities for seeking votes during election, cannot be accused of resorting to corrupt practices under section 123(3) of the RP Act," he asked. "Politicians have become hardened and learnt the art of garnering votes on the basis of religion and caste and this practice should must stop," Sibal said, adding that arousing the passion of a voter in the name of his religion during election process should be held corrupt practise.

"We should not live in the make-believe world as the modes of communications are changing and the term 'corrupt practice' should be seen in the context of enduring constitutional ethos and the changing times," Sibal said. He referred to various provisons of the Constitution dealing with fundamental rights and other aspects and said "these elements of constitutional ethos have to be respected while interpreting Section 123(3) of the RP Act".

Sibal cited provisions dealing with prohibition of discrimination on grounds of religion, race, caste, sex or place of birth, equality of opportunity in matters of public employment, abolition of untouchability, freedom of conscience and free profession, practice and propagation of religion, freedom to manage religious affairs or religious worship in certain educational institutions.

The "mischief" which the court is seeking to deal with relates to "identity polity" and laws should be interpreted with changing times, he said, adding that now, social media has a vast reach and campaigns were being carried on them.

He also asked the bench to consider whether a candidate could remain insulated from his political party which has some "divisive agenda" in its manifesto.


Published Date: Oct 26, 2016 08:35 pm | Updated Date: Oct 26, 2016 08:35 pm


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