A seven-judge Constitution Bench of the Supreme Court on Thursday said it cannot be expected to give an “exhaustive list” of dos and don'ts of political speeches.
The court expressed its restraint even as three BJP-ruled States — Madhya Pradesh, Gujarat and Rajasthan — submitted that “religion can never be separated from society”.
The Constitution Bench, which is examining the 1995 ‘Hindutva’ judgement of the apex court, said it’s mandate does not include going into the “permissibility of using religion in political speeches”.
Rather than a blanket bar on religion in political speeches, Chief Justice of India T.S. Thakur, who is heading the Bench, said political speeches should be judged in the context they are made.
The Bench was replying to arguments made by senior advocate Indira Jaising, representing social activist Teesta Setalvad, who sought a complete divorce of politics from religion.
“I know it is difficult to draw a line... I am also for political freedom... but a line must be drawn on the basis of secularism,” Ms. Jaising submitted.
Justice Thakur said the Constitution Bench is not looking into whether religion should be barred from political speeches.
Instead, the Bench is only determining whether the bar on invoking religion under Article 123 (3) of the Representation of People Act, 1951 in political speeches was limited to only the religion of the candidate and his agent or to the religion of the voters in general. The Bench reserved the question for judgement.
“We are only looking into whether it is permissible to make an appeal in the name of religion of the candidate or his agent or voters in general... your argument is that religion generally should be kept out of political speeches. We are not going into the permissibility of religion in political speeches. We cannot give an exhaustive listing of ‘you can say this and you cannot say that’ in political speeches," Justice Thakur clarified.
Additional Solicitor-General Tushar Mehta, appearing for Madhya Pradesh, Rajasthan and Gujarat, said the Supreme Court should leave it to political parties to set their own agendas for election manifestos.
“Agendas and manifestos are better left to political parties unless there is something startling in them, in which case the courts may intervene,” Mr. Mehta submitted.
To this, Justice Thakur asked why States are interested in this matter. “We can understand political parties intervening, but why is the State bothered in this question of political speeches,” he asked.
“Is the State not entitled to intervene? Then why are some NGOs being allowed to make submissions?” Mr. Mehta countered.
Intervening in the matter, Communist Party of India (Marxist), represented by senior advocate Sanjay Hegde, said what is prohibited under Section 123 (3) is not a narrow bar on appeals in political speeches in the name of candidates or their agents.
The party said the real intent of Section 123 (3) is to “prohibit an appeal to sectarian grounds at a personal level of identity politics”.
