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 and Scheduled Tribes are not secure and he asks them to vote en masse for him as he will protect them," asked a seven-judge Constitution bench headed by Chief Justice T S Thakur said.
"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 enmity 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 practice.
"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 provisions 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.
Sibal said "sometime, there were subtle, sometimes indirect and at times direct ways of seeking votes in the name of religion, race, caste, community and language".
He said the five-judge bench had wrongly held that the manifesto of a political party could not be attributed to its candidates.
"We have confidence in this court," he said, adding that the caste and religion-based politics has to end.
The bench said one way of interpretation was that the term 'his religion' meant the religion of the candidate and a third person, seeking votes in the name of religion for a candidate, cannot be expressly held to be indulging in corrupt practice.
The hearing remained inconclusive and would continue on Thursday.
On Tuesday, the bench had ruled out re-visiting the famous 'Hindutva' verdict holding Hinduism as a "way of life' making it clear that it would not go into the "larger debate" as the issue did not find mention in the reference made by a five-judge bench.
Section 123(3) of the RP Act, which is being scrutinised, reads: "The appeal by a candidate or his agent or by any other person with the consent of a candidate or his election agent to vote or refrain from voting for any person on the ground of his religion, race, caste, community or language or the use of, or appeal to religious symbols or the use of, or appeal to, national symbols..., for furtherance of the prospects of the election of that candidate or for prejudicially affecting the election of any candidate" would amount to corrupt practices.
Social activist Teesta Setalvad had earlier sought to intervene in the matter with an application stating that religion and politics should not be mixed and a direction be passed to de-link religion from politics.
The bench is hearing a batch of petitions including the one filed by Abhiram Singh whose election as an MLA in 1990 on BJP ticket from Santacruz assembly seat in Mumbai was set aside by the Bombay high court.
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 of interpretation of section 123(3) arose on January 30, 2014 before a five-judge which referred it for examination before a larger bench of seven judges.
A three-judge bench on April 16, 1992 had referred to a five-judge Constitution Bench Singh's appeal in which the same question and interpretation of Section 123(3) was raised.
While the five-judge bench was hearing this matter on January 30, 2014, it was informed that an identical issue was raised in an election petition filed by Narayan Singh against BJP leader Sunderlal Patwa and the another Constitution Bench of five judges of the apex court had referred it to a larger bench of seven judges.
Thereafter, the five-judge bench had referred Singh's matter also to the Chief Justice for placing it before a seven-judge bench.