Hindutva is a way of life and not a religion. The Supreme Court will not revisit this landmark 1995 judgment, a seven-judge Constitution Bench said on Tuesday while determining the question whether an election candidate can appeal for votes on grounds of religion.
This issue was considered central to the interpretation of Section 123(3) of the Representation of Peoples Act. This section relates to corrupt practices and bars a “candidate or his agent or by any other person with the consent of a candidate or his election agent” for making an appeal to vote or refrain from voting for any person on the ground of his religion, race, caste, community or language.
After a five-judge Bench made a reference to the Constitution Bench on this issue, several individuals, including social activist Teesta Setalvad, approached the court to reconsider the 1995 decision which held Hindutva to be a way of life and not a religion.
By the 1995 judgment, the Supreme Court set aside the disqualification of certain BJP-Shiv Sena candidates, who won the 1990 Assembly elections of Maharashtra. They had fought the elections on the plank of Hindutva and for establishing Maharashtra as a Hindu State.
On Tuesday, senior advocate KK Venugopal appeared for one of the parties, OP Gupta, in the pending appeals and sought a clarification from court on whether the larger issue of Hinduism being a religion will be gone into by the Bench. The seven judges - Chief Justice TS Thakur, Justices Madan B lokur, SA Bobde, Adarsh K Goel, UU lalit, DY Chandrachud, and lN Rao- were of unanimous view that this issue was not in reference before it.
“The word Hindutva does not appear anywhere in the reference order,” CJI said. Senior advocate Soli Sorabjee too wished to know whether the court intended to examine the correctness of the 1995 decision. The Bench reiterated, adding, “We are not calling upon anyone to address us on the question whether Hindutva is a religion or an appeal can be made on this basis. We are not going into it.”
However, senior advocate BA Desai, who appeared for one of the lost candidates in the 1990 Maharashtra elections, insisted that the issue of Hindutva must be revisited as the reference was on the entire 1995 judgment. later in the day, Desai argued that the validity of Section 123(3) should be interpreted in the light of the 1995 decision as no religion can be the basis for any candidate or his agent to seek votes from the electorate.
Even Setalvad has filed an intervention application before the Constitution Bench taking a stand that the 1995 decision violates secularism, which is part of the basic structure of the Constitution, and thus needs to be revisited. Setalvad is yet to argue her case in court.