NEW DELHI: The Supreme Court on Wednesday was told that a provision of the electoral law, prohibiting the use of religion by a candidate for mobilising votes during elections should be seen in the contest of enduring constitutional ethos and the changing times.
Referring to 19 provisions of the constitution dealing with different aspects of society, senior counsel Kapil Sibal told a constitution bench of Chief Justice T.S. Thakur, Justice Madan B. Lokur, Justice S.A. Bobde, Justice Adarsh Kumar Goel, Justice Uday Umesh Lalit, Justice D.Y. Chandrachud and Justice L. Nageswara Rao that "these elements of constitutional ethos have to be respected" while interpreting the Section 123(3) of the Representation of Peoples Act, 1951.
The provisions that Sibal cited included pprohibition 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 and freedom as to attendance at religious instruction or religious worship in certain educational institutions.
As Justice Chandrachud observed that at the heart of the politics is discrimination - be it caste, religious, social, Justice Lalit observed that the "appeal (for votes) should be in furtherance of the constitutional goals".
Sibal's submission came to the constitution bench which is examining whether Section 123(3) which prohibits seeking votes by a candidate or his election agent on the ground of the candidate's religion, race, caste, community or language could be expanded to exclude the use of religion in any form during electioneering.
Telling the court that mischief that the court is seeking to deal with relates to "identity polity", Sibal said that laws should interpreted with the changing times as he pointed to the vast reach of the social media platforms like Twitter, Facebook, WhatsApp and campaigns being carried on them.
He also urged the bench to consider whether a candidate could remain insulated from what a political party says in its manifesto, which may be a divisive agenda and a "corrupt practice" under Section 123(3).
Saying that someday court will have to address this question, Sibal said that there were subtle, sometimes indirect and at times direct ways of seeking votes in the name of religion, race, caste, community and language, while referring to 1996 five judges bench's verdict that had held that the manifesto of a political party could not be attributed to its candidates.
Another senior counsel B.A.Desai, appearing for one of the respondents seeking to expand the width of the provision, told the court that the "manifesto of political party, its leaders and other's come under the ambit of Section 123(3)".
The hearings is rooted in 1996 reference to the seven judges constitution bench on the interpretation of Section 123(3).
In 1995, a Supreme Court bench headed by the then Chief Justice J.S. Verma ruled that Hindutva was not a religion but a way of life, but a year later, a five-judge bench disagreed and referred it to a larger bench.
The question before the seven-judge bench is whether seeking votes in the name of religion amounts to corrupt practice under the act, leading to unseating of a lawmaker.