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October 19, 2016

SC’s poser on misuse of religion in elections


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Is it corrupt poll practice to prop up religious leaders to sway voters, asks Constitution Bench Questioning the practice of using the mass appeal of religious leaders to canvas votes for candidates, the Supreme Court on Tuesday asked whether it amounts to a corrupt electoral practice to rope in clerics or priests to flex their religious sway over their flock to swing votes.

A seven-judge Constitution Bench led by Chief Justice T.S. Thakur is testing the limits of Section 123 of the Representation of the People Act for an authoritative pronouncement on what are the various means by which misuse of religion or faith of the masses for electoral gains can be categorised as a corrupt practice.

The Bench is re-considering its 1995 verdict which held that canvassing votes in the name of ‘Hindutva/Hinduism’ did not prejudicially affect any candidate as Hindutva is a way of life of the people in the sub-continent and ‘a state of mind’. The 1995 judgment, delivered by Justice J.S. Verma, found that the statement by Joshi that the ‘first Hindu State will be established in Maharashtra’ did not amount to appeal on ground of religion.

In its maiden hearing, the Constitution Bench put forth a sally of questions on situations where religion can be made the basis for an appeal for votes.

“A religious leader exhorts his community’s people gathered in temples and gurdwaras to vote en bloc for a particular candidate who may or may not belong to the same religious faith... is this not an appeal on the basis of religion? Is this a corrupt practice?” Chief Justice Thakur asked senior advocate Arvind Datar, appearing for one of the petitioners, Abhiram Singh, a BJP leader who won the Santa Cruz Assembly constituency in 1990.

Religious identity

Justice S.A. Bobde, a judge on the Bench, pointed to how in such situations, the voters are pushed to either identify or differentiate between their religious identity and the faith of the candidate in question.

“An appeal is made to the religious propensity of the gathering to swing votes? Doesn’t religion now become the basis of the large number of votes involved? Does such actions fall under the ambit of Section 123?” Justice Bobde asked.

Thackeray’s speeches

Justice D.Y. Chandrachud questioned how identifying a huge and decisive block of votes in a fractured constituency solely on the basis of religious identity is also considered as canvassing for votes in the name of religion.

Mr. Datar, at one point, referred to two speeches made in 1990 by the late Shiv Sena supremo Balasaheb Thackeray and another by the late Pramod Mahajan in which reference to ‘Hindutva’ was made to garner votes for the Shiv Sena and BJP candidates.

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