Re-visiting the SC judgement on whether “Hinduism is Hindutva” and “Hindutva is a way of life” is not a closed or settled issue
The Seven Judge Bench hearing some issues related to Section 123(3) of the Representation of People’s Act concluded yesterday.
The crucial issue of reviewing the matter of interpretation, or re-visiting the SC judgement on whether “Hinduism is Hindutva” and “Hindutva is a way of life” is not a closed or settled issue and this Bench said will be decided by a Five Member Bench.
Three of us intervened as Public Intellectuals and Senior Counsel Ms. Indira Jaising appeared for us.
Our Written Submissions are attached.
This is a Seven Judge Constitutional Bench looking at the crucial issue of Section 123(3) of the Representation of People’s Act which is-at election time-the section of the law to create a wall of separation between Religion and Politics and enforce and ensure the Constitutional Mandate of Secularism. One of the aspects of the Reference being heard is that of the wrong interpretation in our view that an appeal to Hindutva is not an appeal to religion.
Day before yesterday the CJI/Bench passed an oral observation saying two things. One that Religion in Politics is the ultimate evil in a secular state and that they may not go into the Hindutva not being Religion in this reference. Large sections of the media – in what seemed like a queer orchestration- jumped from reporting that to say our Intervention Application was dismissed. No where was my IA discussed. The media unfortunately irresponsibly collapses the issue. Our IA was heard today.
The five judge bench will re-evaluate whether earlier findings on Hindutva should stand.
IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION
I.A No. 14 OF 2016
CIVIL APPEAL NO. 37 OF 1992
IN THE MATTER OF :
Abhiram Singh ………APPELLANT
C.D. Commachen through LRs & Ors. …….RESPONDENTS
IN THE MATTER OF :
Teesta Setalvad & Ors. …..INTERVENORS
WRITTEN SUBMISSIONS ON BEHALF OF INTERVENORS BY SENIOR ADVOCATE INDIRA JAISING
INTERPRETATION OF SECTION 123
It is submitted that Section 123 of the Representation of People’s Act, 1951 (RPA, 1951) must be read as a whole to understand its object, true meaning and content. Almost all election petitions allege corrupt practices under Sections 123(2), (3) and (4) of the RPA, 1951. These sections together form a composite scheme as often an election speech or poster or leaflet which makes an appeal to the electorate on the ground of religion, race, caste or language has the effect of unduly influencing a voter to vote on these grounds or is incendiary and divisive and tends to promote feelings of enmity and hatred among different classes of citizens. Candidates also directly or indirectly tend to make statements directly or indirectly through other persons, which are false, to the knowledge of the person making the statement in relation to the personal character of the opponent. The object of all the subsections of S.123 RPA, 1951 is to maintain the purity of the election process and to ensure that the constitutional values of secularism are not eroded in the election process, by appealing to the religions, languages, race or caste identity of the voters.
It is submitted that S. 123 of the RPA, 1951 places restrictions on political speech in the interest of maintaining the integrity of the nation like those placed under Article 19(2) of the Constitution. The integrity of the nation is based on common citizenship and not on religion, race or caste. For this purpose, S.123 creates a wall of separation between religion, caste, race and language on the one hand and the state on the other hand.
The purpose of contesting elections by a candidate of a political party is to gain state power. In this context, the observations of Justice Jeevan Reddy in R. Bommai v. Union of India [(1994) 3 SCC 1] in Paras. 310-311 are relevant:
“Given the above position, it is clear that if any party or organisation seeks to fight the elections on the basis of a plank which has the proximate effect of eroding the secular philosophy of the Constitution would certainly be guilty of following an unconstitutional course of action. Political parties are formed and exist to capture or share State power. That is their aim. They may be associations of individuals but one cannot ignore the functional relevance. An association of individuals may be devoted to propagation of religion; it would be a religious body. Another may be devoted to promotion of culture; it would be an cultural organisation. They are not aimed at acquiring State power, whereas a political party does. That is one of its main objectives. This is what we mean by saying ‘functional relevance’. One cannot conceive of a democratic form of government without the political parties. They are part of the Political system and constitutional scheme. Nay, they are integral to the governance of a democratic society. If the Constitution requires the State to be secular in thought and action, the same requirement attaches to political parties as well. The Constitution does not recognise, it does not permit, mixing religion and State power. Both must be kept apart. That is the constitutional injunction. None can say otherwise so long as this Constitution governs this country. Introducing religion into politics is to introduce an impermissible element into body politic and an imbalance in our constitutional system. If a political party espousing a particular religion comes to power, that religion tends to become, in practice, the official religion. All other religions come to acquire a secondary status, at any rate, a less favourable position. This would be plainly antithetical to Articles 14 to 16, 25 and the entire constitutional scheme adumbrated hereinabove. Under our Constitution, no party or organisation can simultaneously be a political and a religious party. It has to be either. Same would be the position, if a party or organisation acts and/or behaves by word of mouth, print or in any other manner to bring about the said effect, it would equally be guilty of an act of unconstitutionality. It would have no right to function as a political party.”
It is submitted that S. 123 of the RPA, 1951 must be interpreted in the light of these observations.
INTERPRETATION OF “HIS RELIGION” IN
S.123(3) OF RPA 1951
While S.123(3) uses the expression “on the ground of his religion, race, caste, community or language”, sub section (3A) uses the expression “as attempt to create feelings of enmity or hatred between different classes of citizens of India on grounds of religion, race, cast, community or language ….”.
Given that the “mischief” that both sub sections seek to prevent is the same, it is submitted that the words “his religion” must carry the same meaning in both sub sections, namely to separate religion etc. from politics and state and to maintain the integrity of the country and the values of secularism.
The expression “his religion” has to be interpreted on a conjoint reading of sub section (3) and (3A) of S.123 and will include direct appeals by the candidate or indirect appeals by his supporters and appealing to any religion, his own or that of someone else, for votes. Any other interpretation will not only defeat the object of the section but also produce illogical results.
Reliance has been placed in the Ramesh Yeshwant Prabhoo v. Prabhakar Kunte [1996 (1) SCC 130] (Prabhoo case) on the speech of the law minister to argue that the words “his religion” in S.123(3) of the RPA, 1951 refer to the religion of the candidate alone and further that the appeal must be made by the candidate. Para 14 read as:
“Reference may now be made to the Parliamentary debates in which the reason ascribed by the Law Minister Shri A.K. Sen for adding the word ‘his’ in sub-section (3) and its purpose was stated thus—“Shri A.K. Sen: I added the word ‘his’ in the Select Committee in order to make quite clear as to what was the mischief which was sought to be prevented under this provision.
The apprehension was expressed if one’s right was going to be curbed by this section. If such a right was going to be curbed by the section, I would have been against such an amendment, because after all, it is the right of a person to propagate his own language, his own particular culture and various other matters. But that does not mean vilifying another language or creating enmity between communities.
I am pained to hear Shri Hynniewta giving expression to an apprehension, which to me seems entirely baseless. That apprehension is to the effect that clause 23 will deprive him of his right to propagate his language or preserve his language, which cannot be taken away from him as he himself has quoted the relevant article of the Constitution. If that right is taken away by the Bill, it will be struck down as contravening Article 19 and the section will not be given effect to by any court. Fortunately, this country is still governed by the rule of law and the courts of law have the last say in these matters.
That is a different matter. With due respect to the hon. member, he has not really appreciated the rationale of the Supreme Court’s decision. With regard to election matters, Parliament is free to enact such legislation as it thinks best and Chapter III does not come in. That is the decision of the Supreme Court. But in the guise of framing an electoral law, no fundamental right of the citizen can be taken away. That is what I am saying. The right to preserve one’s language cannot be taken away by an election law. That is as clear as daylight.
You cannot make it an election issue if you say, ‘Do not vote for him. He is a Bengali’ or ‘Do not vote for him. He is a Khasi.’ I made it unequivocally clear that it is the purpose and design of this House and of the country to ensure that. No man shall appeal only because he speaks a particular language and should get voted for that reason; or no man shall appeal against a particular person to the electorate solely because that opponent of his speaks a particular language.
They are entitled to do so. The Constitution gives them the right to do so. But we are on a very narrow point, whether we shall extend the right to a person, to a voter, to say: vote for me because I speak Hindi, I speak Garhwali, or I speak Nepali or I speak Khasi; or in the alternative, do not vote for my opponent because he is a man who speaks this particular language, his own language. It is on that sole narrow point that the prohibition is sought to be made.
… But we are not here on the aesthetics of language or the philosophy of language; nor are we here to debate the fundamental rights of a citizen to preserve his own language and culture. Fortunately, that is guaranteed to every man and woman in this country as it is not elsewhere. …”
… But the problem is, are we going to allow a man to go to the electorate and ask for votes because he happens to speak a particular language or ask the electorate to refrain from voting for a particular person merely on the ground of his speaking a particular language or following a particular religion and so on? If not, we have to support this. The preservation of the minorities’ rights and so on is a different and a wider question.
… But, if you say that Bengali language in this area is being suppressed or the schools are being closed, as Shri Hynniewta was saying, because they bore a particular name, then, you are speaking not only to fight in an election but you are also really seeking to protect your fundamental rights, to preserve your own language and culture. That is a different matter.
But, if you say, ‘I am a Bengali, you are all Bengalis, vote for me’, or ‘I am an Assamese and so vote for me because you are Assamese-speaking men’, I think, the entire House will deplore that as a hopeless form of election propaganda. And, no progressive party will run an election on that line. Similarly, on the ground of religion. In the olden days, what speeches we used to hear in Muslim League gatherings! They were purely appeals on the ground of religion. So, the issue is too narrow and not a wide issue in which the life and death of minorities are involved as Shri Hynniewta sought to make out. It is not at all in question. …”
It is submitted that the “mischief” that the law sought to prevent was the misuse of religion by any person during the election process and hence the expression “his religion” cannot be read to mean a reference to the religion of the voter alone as such an interpretation would not prevent the mischief sought to be prevented.
It is submitted that the aforementioned paragraph passages in Para 14 far from supporting the proposition that the words “his religion” was intended to refer to the religion of the candidate alone, indicate that the law minister was assuring the House that they would not forbid all references to religion such as an appeal to protect a particular language but would prevent only the mischief sought to be prevented. Hence, reference was made to Article 29 of the Constitution in the speech.
WHAT IS MEANT BY EXPRESSION ON GROUND OF RELIGION, RACE, CASTE, COMMUNITY OR LANGUAGE.
There is ample guidance in the decision of the Court to indicate when a reference to religion is permissible and when it is not.
It is submitted that a reference to a discriminated group whether the discrimination be on ground of religion, race, community or language coupled with the promises to remove the discrimination and correct an imbalance will not be an appeal on the ground of religion since the thrust of the speech will be to promote secularism.
The Prabhoo case itself gives an indication as to what are permissible references to religion. Para 16 read as follows:
“16. It cannot be doubted that a speech with a secular stance alleging discrimination against any particular religion and promising removal of the imbalance cannot be treated as an appeal on the ground of religion as its thrust is for promoting secularism. Instances given in the speech of discrimination against any religion causing the imbalance in the professed goal of secularism, the allegation being against any individual or any political party, cannot be called an appeal on the ground of religion forbidden by sub-section (3). In other words, mention of religion as such in an election speech is not forbidden by sub-section (3) so long as it does not amount to an appeal to vote for a candidate on the ground of his religion or to refrain from voting for any other candidate on the ground of his religion. When it is said that politics and religion do not mix, it merely means that the religion of a candidate cannot be used for gaining political mileage by seeking votes on the ground of the candidate’s religion or alienating the electorate against another candidate on the ground of the other candidate’s religion. It also means that the State has no religion and the State practises the policy of neutrality in the matter of religion.”
In Para 18 the court in Prabhoo case said:
“It is obvious that a speech referring to religion during election campaign with a secular stance in conformity with the fundamental right to freedom of religion can be made without being hit by the prohibition contained in sub-section (3), if it does not contain an appeal to vote for any candidate because of his religion or to refrain from voting for any candidate because of his religion.”
However, it is also been held by this Hon’ble Court that under the guise for protecting or own religion one cannot embark on personal attacks or whip up animosities or irrational fears.
In 22 while referring to Z.B Bhukari case, it was held that:
“Under the guise of protecting your own religion, culture or creed you cannot embark on personal attacks on those of others or whip up low herd instincts and animosities or irrational fears between groups to secure electoral victories. The line has to be drawn by the courts, between what is permissible and what is prohibited, after taking into account the facts and circumstances of each case interpreted in the context in which the statements or acts complained of were made.”
Hence, it is submitted that a candidate can neither make a direct appeal nor an indirect appeal through someone else for votes on the ground of religion nor make such an appeal in the guise of protecting one’s own religion.
This Hon’ble Court in Jagdev Singh Sidhanti v. Pratap Singh Dhaulta [(1964) 6 SCR 750 took the same approach to the question whether the reference to language fell within S.123(3). In 1957 the Govt. of Punjab made Punjabi language in the Gurmukhi script compulsory in schools. This led to wide spread agitation against the policy of the government to resist the program and to . to secure redressal of their grievances. The Harayan Lok Samiti was formed and an appeal to the electorate to secure the reversal of the govt. policies was made during an electoral speech. (See Pg. 52 of Compilation). The Supreme Court stated that it was not corrupt practice. 26and 28 reads as:
“26.….These exhortations to the electorate to induce the Government to change their language policy or that a political party will agitate for the protection of the language spoken by the residents of the Haryana area do not fall within the corrupt practices of appealing for votes on the ground of language of the candidate or to refrain from voting on the ground of language of the contesting candidate.”
“28….It is open to a candidate in the course of his election campaign to criticise the policies of the Government including its language policy and to make promises to the electorate that if elected he will secure a reversal of that policy or will take measures in the legislature to undo the danger, real, apprehended or even fancied, to the language of the people. The object of the Hariana Lok Samiti was evidently to resist the imposition of Punjabi in the Hariana region and that object appears to have been made the platform in the election campaign. Thereby it could not be said that the voters were asked not to vote for Daulta on the ground of his language, assuming that it was other than Hindi. Nor can it be said that it was an appeal to the voters to vote for Sidhanti on the ground of his language.”
“29. The evidence which has been referred to by the High Court regarding the speeches made by Badlu Ram and Harphul Singh on December 10, 1961, at Beri on the face of it shows that the speeches were an attack against Daulta in respect of his political conduct, behaviour and beliefs. The speeches made at the meetings at Sampla, Ladpur and Majra Dubaldhan read like political harangues addressed to the electorate to vote for the candidate who would project the language of the people of Hariana. At Bahadurgarh also Sidhanti is stated to have claimed that he was opposed to the Government and its supporter Daulta in the matter of the language movement. The evidence also showed that Sidhanti had appealed to the voters to vote for him because he was actively associated with the Hindi agitation movement and that he was championing the cause of Hindi and resisting the imposition of a rival language Punjabi and thereby suggesting that Daulta was hostile to the cause of Hindi language and was supporting the Punjabi language. The criticism by Sidhanti in his appeal to the electorate related to the political leanings of Daulta, and his support to the policy of the Government and was not personally directed against him. Nor did Sidhanti appeal to the voters to vote in his favour on account of his language. Such political speeches espousing the cause of a particular language and making promises or asking the people to protest against the Government of the day in respect of its language policy is not a corrupt practice within the description of corrupt practice under Section 123(3) of the Act.”
It is submitted that the above case lays down guidelines as to when reference to language or religion would be an appeal under S.123(3) on grounds of religion or language. The tests are as follows: if the appeal is to correct an existing imbalance or to undo discrimination or to criticize the govt. policies imposing a particular language, it will not be an appeal on the ground of religion but an attack on the political conduct behavior and beliefs of a rival candidate or the political conduct behavior beliefs of the contesting candidates.
This is for the reason that such an appeal would fall strictly within an appeal to protect and promote the rights of persecuted group minorities and is amount to a criticism of the policies of any government rather than an appeal on the ground of religion. It is submitted that S.123(3) prevents an abuse of reference to religion for the purpose of garnering votes for a candidate or for prejudicing the chances of the opponent, made by any person, would be a corrupt practice.
In Ambika Sharan Singh v. Mahant Mahadeva, (1969) 3 SCC 492, this court held that the appellant was guilty of the corrupt practice of having canvassed votes on the basis of his Rajput caste. The alleged corrupt practice was that that if he was elected he would become a minister, that one Satyendra Narain Singh, also a Rajput, would become the Chief Minister and that with the two of them in the cabinet they would establish Rajput Raj in the State and advance the interests of Rajputs. [ 6] The court noted in Para. 11 that there were a large number of Rajputs in his constituency. The court held that in making such an appeal, the candidate had committed a corrupt practice within S.123(3). Referring to the object of S.123(3) the court held in Para. 12 that:
“12. Indian leadership has long condemned electoral campaigns on the lines of caste and community as being destructive of the country’s integration and the concept of secular democracy which is the basis of our Constitution. It is this condemnation which is reflected in Section 123(3) of the Act. In spite of the repeated condemnation, experience has shown that where there is such a constituency it has been unfortunately too tempting for a candidate toresist appealing to sectional elements to cast their votes on caste basis. The contention of Counsel, however, was that there was on the other hand the danger of a frustrated candidate mustering a number of his followers to testify falsely in a vague manner that his opponent had campaigned on the basis of his caste or community. Therefore, before such an allegation is accepted, the Court must be on guard against such a possibility and must demand adequate particulars. A witness deposing to such an allegation must point out when, where and to whom such an appeal was made. That, said Counsel, was not done and therefore the evidence of witnesses however numerous should not have been accepted.”
It appears that the court has held that an appeal by a candidate on the ground that he would establish a Rajput Raj was a direct appeal on caste and such appeal ran counter to secular democracy.
In Rahim Khan v. Khurshid Ahmed (1974) 2 SCC 660 the controversy was between two Muslim candidates in a constituency dominated by a Muslim population. The alleged corrupt practice under S.123(3) was the distribution of a pamphlet which read as follows in 26:
“We may as well set out here Exhibit PW 4/3, the offending handbill:
Introduction of Ch. Khurshid Ahmed and some Questions to him.
You being a Muslim got dug a grave of a Mohammadan and got the dead body out due to your personal enmity, which is against Islam and its Chariat. Do you still claim yourself to be a Muslim?
Since you have become a Minister you have taken bribery from the public for each work of the public. Do you call this public service?
You being Health Minister violated the modesty of numerous lady doctors, and nurses and till they did not surrender their body to your lust you did not do any of their works. Do you want to be elected again so that you can continue your debauchery?
You while being a Minister got some Muslims of village Utawad arrested on allegations of cow slaughter and made them to eat meat of the pig. Do you want to be elected again so that you may be able to make all Muslims eat the meat of the pig?
Khurshid Sahib! public wants to tell you, that you yourself have become a ‘Kafir’ by eating the meat of the pig, but the remaining Muslims do not want to become ‘Kafirs’ at your hands.
Public should pay attention and should give crushing defeat to such a ‘Kafir’. I am rightly entitled to your vote.
This court held that the candidate had made an appeal not to vote for the rival candidate on grounds of being or not being a true Muslim calling his opponent a Kafir. It further held that the candidate had committed corrupt practice under Sections 123(3), (4).
“44. In the ultimate analysis we hold that the appellant did get the handbills, Exhibits PW 4/3 printed and distributed among his constituents. Thereby he made statements which were untrue and which he did not believe to be true and knew to be false, about the rival candidate with a view to diminish the latter’s prospects in the election. We further hold that Exhibit PW 4/3 constitutes an appeal to religion for the purpose of voting for and against. Thus, under these two heads, a contravention under Section 123 of the Act has been committed and for these two corrupt practices the unseating of the appellant becomes inevitable.”
In determining what is appeal to religion, the court held it to depend on times and circumstances, the ethos of the community and other such factors. 26 reads as:
“What is appeal to religion depends on time and circumstance, the ethos of a community, the bearing of the deviation on the cardinal tenets and other variables. To confound communal passion and crude bigotry with religion is to sanctify in law what is irreligion in fact.”
In 36 in ZB Bukhari v. Brijmohan Ramdass Mehra [(1976) 2 SCC 17] the following appeal was made:
“Chagla had advocated the inclusion of Hindus in the Haj Committee. Bukhari alleged that Chagla’s wife, a Hindu lady called Nalini, his son Ashok, as well as Chagla, used to attend the mosque as well as the temple. Bukhari alleged that Chagla and his family pleased neither Allah nor Bhagwan. In other words, Bukhari, apart from making a direct attack on the alleged religious beliefs and practises of the Chagla family, clearly conveyed to the hearers that Chagla was an unfit person, on the ground of his mixed religious faith and practices, to represent Muslims. Bukhari had also called upon Muslims to unite against such a person if they wanted their religion to survive.”
This court held it to be corrupt practice. It is submitted that the reference to religion was a direct appeal not to vote on grounds of the rival candidate. Moving further the court in 41 said that in order to determine whether it was an appeal on grounds of religion the court had to primarily examine the cloak which the appeal wears to parade in and not only what lies beneath it. Para. 41 reads as follows:
“Learned counsel for the appellant submitted that if we considered the substance of what was said by the appellant it would only amount to a plea that the voters should support one who opposes any change in Muslim personal law as against another who wanted to change it. If change of personal law is, it is suggested, only a secular matter, opposition to its change could not become an appeal on grounds of religion. To accept this argument would be to view the appeal to the voters after turning it upside down, or, perhaps, inside out. We are not concerned so much with the real nature of what is opposed or supported as with the grounds on which a candidate claims support over a rival. We have to primarily examine the cloak which the appeal wears to parade in and not only what lies beneath it.”
This Hon’ble Court has thus formulated a test not only of determining whether an appeal is on grounds of religion but also whether an appeal made in the benign guise of promoting a religion or non-reform or reform of personal laws is also in substance an appeal on grounds of religion under S.123(3). In this case the appellant was held to have committed corrupt practice 123(2) [Para. 47] and 123(3) [Para. 36] and 123(3A) [ Para. 35].
In Haracharan Singh v. S. Sajjan Singh [(1985) 1 SCC 370] the court was assessing a controversy between two Sikh candidates. It was alleged that Hukamnamas were issued urging the voters to vote for Respondent 3 and not to vote for the appellant. It was further alleged that that speeches were delivered by persons appealing to the voters that as Respondent 3 was the candidate of the Akal Takht and his nomination was supported by the Hukamnama of Akal Takht, the people should vote for him and not to vote for him would be against the tenets of the Sikh religion and would be a blasphemous act against the Sikh religion. [Para. 6, 22, 23]. The question that arose was whether this was an appeal on grounds of religion. The court held that taking into account the totality of the evidence, some communications from the Akal Takht and the editorials in the Akal Times that the said appeal was a corrupt practice under S.123(3) as it was made in the name of religion in Para 64 and Para 65. It is submitted that this is a case of a direct appeal on the grounds of religion having regard to the fact that the appeal was that the voters shall vote for the candidate who is a true Sikh and voting against him will be against the Sikh religion.
This Hon’ble Court in Dr Das Rao Deshmukh v. Kamal Kishore [(1995) 5 SCC 123] held in 16 that the use of a poster with the consent of the candidate reading as “to teach Muslims a lesson” by a Hindu candidate and to thus vote for such Hindu candidate was an appeal for votes on the grounds of religion and hence a corrupt practice under Sections 123(3) and (3A) of the RPA, 1951:
“After giving our anxious consideration to the facts and circumstances of the case and contentions made by the respective counsel for the parties, it appears to us that in the instant case, it has been convincingly established that the appellant has permitted to display poster Ext. 0.20 for the purpose of his election campaign. In the said poster, appeal to vote for the appellant was made for the purpose of teaching a lesson to muslims. Such appeal, to say the least, was potentially offensive and was likely to rouse passion in the minds of the voters on communal basis. Such appeal to teach a lesson was also likely to bring disharmony between the two communities namely the hindus and the muslims and offended the secular structure of the country. In our view, use of such poster by itself is sufficient to hold that the appellant had indulged in corrupt practice under Section 123(3) and 123(3A) of the Representation Act. We may, however, indicate that speeches delivered in the election meeting by leaders of political parties should be appreciated dispassionately by keeping in mind the context in which such speeches were made. This Court has indicated a note of caution that in election speeches appeals are made by candidates of opposing political parties often in an atmosphere surcharged with partisan feelings and emotions. Use of hyperboles or exaggerated language or adoption of metaphors and extravagance of expression in attacking one party of a candidate are very common and court should consider the real thrust of the speech without labouring to dissect one or two sentences of the speech, to decide whether the speech was really intended to generate improper passions on the score of religion, caste, community etc. In deciding whether a party or his collaborators had indulged in corrupt practice regard must be had to the substance of the matter rather than mere form or phraseology. In Kultar Singh’s case (supra), this Court has recognised that there are several parties whose membership is