JUDICIARY
The two judgements pronounced on December 11 by Justice J.S. Verma, on behalf of himself and Justices N.P. Singh and K. Venkataswami of the Supreme Court in the election appeals by Bal Thackeray and Manoj Joshi, caused... surprise and disquiet... overtaken by shock and concern for the future of India's secularism and, no less, its judiciary....
Five features of the judgement stand out boldly and alarmingly. One is that Justice Verma equates Hindutva with Hinduism... There are millions of devout Hindus who have always rejected Hindutva. Gandhi was foremost among them. In 1923, his staunch foe, the Hindu Mahasabha leader V.D. Savarkar, wrote a pamphlet propounding the two-nation theory. It was entitled "Hindutva: Who is a Hindu?"...
A second and authoritative edition appeared in 1942. Its publisher S.S. Savarkar, wrote in the preface: "Apart from the religious aspect involved in the conception of the words 'Hindu' and 'Hinduism', Veer Savarkar had to coin some new words such as 'Hindutva', 'Hinduness', "Hindudom' in order to express totality of the cultural, historical, and above all the national aspects along with the religious one, which mark out the Hindu People as a whole. The definition is not consequently meant to be a definition of Hindu Dharma, or Hindu religion. It is a definition of 'Hindutva', 'Hinduness'. It is essentially national in its outlook and comprehends the Hindu People as a Hindu-Rashtra- a Hindu State". This newfangled and pernicious doctrine was taken over by the RSS, the Jan Sangh and the BJP. It is diametrically opposed to the great religion of Hinduism. Hinduism is ancient. Hindutva is modern. The former is a matter of faith. Hindutva belongs to sordid expediency.
The second feature of Justice Verma's judgement is its gloss on Hindutva in order to purge it of its current and established meaning, give it a benign one, and put on it the imprimatur of the approval of the country's highest court.
The third is that, in the process, he has gone to the length of legitimizing the Jan Sangh's notorious campaign launched in 1969 for "Indianization". It was denounced by Jayaprakash Narayan and by all the political parties represented at the National Integration Council (NIC), except the Sangh. Everyone knew that it was a dishonest euphemism for Hinduization. Yet, writes Justice Verma, the word 'Hindutva' is used and understood as a synonym of Indianisation"". This is written in approval of both; not in censure.
The fourth feature is a selectivity in quotation which would have earned censure even for a partisan or an advocate but is utterly unworthy of a judicial pronouncement.
The last feature is that none of this was required of 'the Bench at all. Justice Verma's elaborate disquisition on who a Hindu is, what constitutes Hindutva and the rest was totally unnecessary for deciding the cases. It was pure obiter. But the obiter was pronounced consciously, with effort and in gross error. It is worse than wasteful. It is productive of grave public harm.
Even on the basis of the Court's benign construction, the three impugned speeches of Mr. Thackeray were considered offensive enough to be regarded as "corrupt practices" under Section 123(3) of the Representation of the People Act, 1951. It forbids appeal by a candidate or by any other person with his consent 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' for electoral ends. One of the three speeches was held to be violative also of sub-section (3A) which forbids. promotion of "feelings of enmity or hatred" between citizens on those grounds by those persons. Surely, if even on the most favourable and narrowest construction of the law Mr. Thackeray's pronouncements were violative of it, the case could well have been disposed of accordingly without venturing into such issues as who a Hindu is and what Hindutva means. The same holds good in the... appeal of the Chief Minister of Maharashtra, Mr. Manohar Joshi. Most of the judgement deals in his case with technical questions of limitation, pleading and proof, leaving just one speech proved against him. He had said on February 24, 1990 in Bombay that "the first Hindu State will be established in Maharashtra" 'A Hope'
Justice Verma observes: "In our opinion, a mere statement that the first Hindu State will be established in Maharashtra is by itself not an appeal for votes on the ground of his religion but the expression, at best, of such a hope. However, despicable be such a statement, it cannot be said to amount to an appeal for votes on the ground of his religion. Assuming that the making of such statement in the speech of the appellant at that meeting is proved, we cannot hold that it constitutes the corrupt practice either under sub-section (3) or sub-section (3A) of Section 123, even though we would express our disdain at the entertaining of such a thought..."
Election candidates do not waste time expressing hopes in order to titillate the electorate. They know that its vote will be given against promises and pledges. "Will be established" is not an expression of hope but a pledge by a Shiv Sena leader at a meeting in a predominantly Hindu locality. If this is not seeking votes "on the ground of his religion", what is?-
And, if this be the law, there is nothing to prevent an Akali candidate from running an election campaign on the plank of a Khalsa state or a Kashmiri from advocating an Islamic state with all that these imply. In one fell blow, the wall of separation which the Founding Fathers built so laboriously to keep religion and politics apart is destroyed. Elections can be fought to make India a theoretic state.....
...Hinduism may be hard to define. Not so Hindutva; nless, of course, one identifies it with Hinduism. Justice Verma does just that: "'ordinarily, Hindutva is understood as a way of life or a state of mind and it is not to be equated with or understood as religious Hindu fundamentalism". Has the BJP extended time, effort and money all these years to espouse "a way of life""?
Any authority in support of this weird conclusion? Yes, there is. In the very next sentence, Justice Verma proceeds to quote it. The quotation and his inference deserve to be set out in full.
National Unity
"In Indian Muslims the Need for a Positive Outlook' by Maulana Wahiduddin Khan (1994) it is said: The strategy worked out to solve the minorities problem was, although differently worded, that of Hindutva or Indianisation. This strategy, briefly stated, aims at developing a uniform culture by obliterating the differences between all of the cultures co-existing in the country. This was felt to be the way to communal harmony and national unity. It was thought that this would put an end once and for all to the minorities problem."
From this Justice Verma concludes: "The above opinion indicates that the word "Hindutva' is used and understood as a synonym of Indianisation', i.e., development of uniform culture by obliterating the differences between all the cultures co-existing in the country...
Far from supporting the learned Judge's conclusion, the quote refutes it thoroughly. It was not in praise of Hindutva or its euphemism "Indianization" but in their censure.... Unlike Justice Verma who quotes this to imply approval of this process, the Maulana disapproved of it. He is for the co-existence of "all of the cultures" in our diverse land....
As for the Indianization, the Standing Committee of the NIC adopted a statement, on October 16, 1969, which said: "We condemn the spread of the idea that any community requires to be Indianised... An all-party conference was convened under its auspices on November 3, 1969, with the Primè Minister, Indira Gandhi, in the chair. It denounced Indianization. The Jan Sangh alone opted out. Indianization was a subterfuge. As a Sangh leader then put it, Indian culture "is essentially Vedic Hindu culture", and "every Indian, whatever his religion may be, is a Hindu". The Sangh and its successor the BJP's nationalism is not territorial but cultural in basis. "The Indian nation is basically a cultural unit and not a political unit." Not everyone born in India is an Indian. He is an Indian who subscribed to the "Indian Culture", which is "the essentially Vedic Hindu culture" and such an Indian is a Hindu "whatever his religion may be". There was no room for any other culture. The Sangh's policy statement declared "any talk of composite culture... is not only untrue but also dangerous, for it tends to weaken national unity and encourage fissiparous tendencies"
Acceptance of India's composite culture is at the heart of the concept of secularism. Without it, secularism is reduced to a husk. The RSS supremo, M.S. Golwalkar, was blunt: "The one hope of redemption is nationalism which, in the case of Hindusthan, is Hinduism", he said on February 22, 1970.
V.D. Savarkar's definition of the Hindu in 1923... spread on the title page of (his) book: "A Hindu means a person who regards this land of Bharatvarsha, from the Indus to the Seas, as his Father-Land as well as his Holy- Land that is the cradle land of his religion".
By this definition no one whose religion originated outside India - Islam, Christianity, Zoroastrianism and Judaism can be a Hindu. Hinduism is a noble religion, an outlook on life. Hindutva is politics of the fascist variety.
Justice Verma is altogether wrong when he holds that the Court's earlier rulings support his view that "the words 'Hinduism' or 'Hindutva' are not necessarily to be understood and construed narrowly.
"If the camel of Hindutva is swallowed, it is no consolation that the gnat of its "misuse" is strained at Helpful Test
But there is a most helpful test which Justice Verma himself propounds: "It may well be that these words are used in a speech to promote secularism or to emphasize the way of life of the Indian people and the Indian culture or ethos, or to criticize the policy of any political party as discriminatory or intolerant". Indeed. Has anyone ever come across a member of any of the non-BJP parties - the Congress(I), CPI(M), CPI, Janata Dal and the rest who has used the slogan of Hindutva "to promote secularism"? Only an argument as laboured and fanciful as this can support the conclusion Justice VErma drew.
His "fervent hope that our observation has some chastening effect in the future election campaigns" is groundless.. No one reading the newspapers could be in any doubt as to what the ruling spells it permits use of the Hindutva plank in the Lok Sabha elections; a plank which has already exacted a heavy toll in human blood.
The ruling conflicts with the Court's view in S.R. Bommai's case that secularism is part of the basic structure of the Constitution...
The Constitution itself indicates that the word. "Hindu" is not synonymous with the word "Indian" (Article 25, Explanation II). To regard Hinduism as "indicative more of a way of life of the Indian people" is to obliterate the distinction and rob the concept of secularism of all content, leaving its husk to remind Indians of what was once a secular state.
That shall not come to pass. The ruling- uncalled for and untenable deserves a speedy burial before its consequence lead to the burial of whatever remains of Indian secularism.
(Source: The Statesman, 26 & 27 December, 1995)
