New Delhi: The Supreme Court on Thursday asked whether anyone can raise the issue of deaths along the border and seek votes for a particular party.
The question was among several raised during a day-long hearing to revisit its two-decade-old 'Hindutva' judgment.
Referring to the terms "national symbols" and "national emblem" in section 123(3) of the Representation of the People (RP) Act, a seven-judge Constitution bench headed by Chief Justice T S Thakur said nobody can be allowed to use them to garner votes in the elections.
"Anybody can seek votes on the ground of national flag and national emblem and say that people are dying on the borders and so vote for a particular party. Can it be permitted," asked the bench.
"This is specifically proscribed under this provision," senior advocate Shyam Divan said.
The hearing also saw the bench observing that Parliament has consciously "widened" the scope of the term "corrupt practices" in the poll law to curb "separatist and communal" tendencies.
"What is most significant in the present clause (of the RP Act) is that Parliament thought to widening the scope of 'corrupt practices' to curb separatist and communal tendencies during elections," the bench, which also comprised justices Madan B Lokur, S A Bobde, A K Goel, U U Lalit, D Y Chandrachud and L Nageswara Rao, said.
The bench then raised a hypothetical question and asked if a 'Sikh granthi' seeks votes for a particular Hindu candidate, can it be said that this appeal "falls foul" of the provision in question.
It may not amount to "corrupt practice" under the specific section of the RP Act, Divan responded.
He also said that the term "his religion", used in the provision, means religion of the candidate and not that of the spiritual leader or cleric who seek votes.
The court is examining the "scope and width" of section 123(3) of the RP Act which deals with electoral malpractices amounting to "corrupt practices", among other things.
Meanwhile, three social activists -- Teesta Setalvad, Shamsul Islam and Dilip Mandal -- filed an application to intervene in the ongoing hearing to seek "de-linking of religion from politics".
Datar, during his arguments, stressed on the legal requirement that the consent of returned candidates was necessary if he is to be held liable for "corrupt practices" for allegedly using inflammatory statements of any religious leader or cleric.
"In my case, main speeches were made by Bal Thackeray and Pramod Mahajan, who are now no more," he said, adding that "their examination was needed for holding me guilty under the provision concerned."
It was alleged that both the late leaders had sought votes in the name of Hindutva and 'Hindu Rashtra'.
"A returned candidate has been disqualified because of the speech of somebody else and that too without his consent," the bench observed.
The bench further sought assistance of Datar, appearing for the former BJP MLA, on the issue whether the old and stale statements, used belatedly in an election, can be held to be violative of the RP Act.
Another senior advocate Shyam Divan said the issue which required to be decided was on "narrow compass" as the court has to decide the scope of section 123(3) of the Act.
"There is a contradistinction with regard to whether consent of the returned candidate, in adopting corrupt practices, can be inferred from the materials or it has to be established," Divan said while highlighting the differences of opinion in earlier apex court verdicts on the issue.
Yesterday, the bench had referred to the instances of 'deras' in Punjab and their heads asking supporters to vote for a particular party or a candidate.
"These deras are not connected to religion per se and follow a particular way of life. If the head of a dera asks its followers to vote for a particular political party, would that also fall foul of Section 123(3)," it had asked.
The court had decided to go ahead with the hearing, ignoring the request of some parties in the matter to involve Attorney General Mukul Rohatgi for his assistance.
The bench began the hearing by grappling with the issues which could be examined by it and wanted to know whether some of them could be remanded back to a smaller bench of five or three judges.
Earlier, Datar had submitted that the case of his client Singh should be separated from this hearing as all similarly situated people had already got relief from the apex court.
He said the appeal filed in 1992 by Singh, whose election to 1990 Maharashtra Assembly was set aside in 1991 by the Bombay High Court, has wrongly been tagged to the main petition of Narayan Singh whose appeal by the five judge bench was referred to the seven judges.
The senior advocate said there were 10 such appeals against the high court order and, except in two, the election of others were restored by the apex court and therefore, Abhiram Singh should be treated on the same footing and his appeal should be remanded back to three-judge bench.
He made reference to the similar relief secured by former Maharashtra Chief Minister Manohar Joshi contending that there was no conflict in that judgement.
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 assumes significance as questions were raised on its 1995 verdict which held that vote in the name of "Hindutva/Hinduism" did not prejudicially affect any candidate, and since then three election petitions are pending on the subject in the apex court.
The apex court's three-judge bench in 1995 had held that "Hindutva/Hinduism is a way of life of the people in the sub-continent" and "is a state of mind".
The judgment was delivered in the case of Manohar Joshi versus N B Patil which was authored by Justice J S Verma who 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".
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