LAW-HINDUTVA JUDGEMENT

Supreme Court Judgement Permitted Propaganda in the Name of Hindutva

A Plea for Review by Eminent Lawyer Rajeev Dhavan

The BJP lost no time in declaring that "Hindutva" would be its main election plank in the forthcoming selections after the Supreme Court refused to review its CONTROVERSIAL judgement on the subject. If the response of the judges during arguments is to be understood, the following insights emerge: (i) All apprehensions about the permissible use of Hindutva in the aftermath of the Supreme Court's judgement are imaginary and baseless"; (ii) Any criticism of this aspect of the judgement is either politically motivated or founded on ignorance (even if made by some of the finest legal minds in the country such as Mr. Justice Tarkunde, Mi Nani Palkhivala and others), (iii) There is no scope the judgement to be misunderstood (which it clearly has been) or being misappropriated politically (which it has been), (iv) Even if such misappropriation takes place, and always be examined in an election petition (which, alas, will take years to decide long after the candidates and their parties have received their ill-gotten benefits, (v) A citizen who feels that this license is going to poison the very basis on which India's secular electoral democracy depends cannot seek a review of the judgement.

In the recent V.C. Mishra case concerning the power of the Court to disbar a lawyer in gross contempt of court, the lawyer community was able to persuade the Supreme Court to refer re-consideration to a Constitution Bench. While such powers are not to be exercised in every case, forbearance when they should be exercised may not always be salutary. Nor did the Court refrain from a review altogether. It used the opportunity to explain itself rat her than allay apprehensions which must deepen after the BJP's decision to obtain electoral benefits from the decision.

The Hindutva judgement must be read as a whole in order to appreciate the fears about the two controversial aspects which deal with the permissive use of 'Hindutva' as an election slogan, and, the no less permissible appeal that a Hindu Sute will be established in Maharashtra. The Supreme Court has tried to clarify the latter, but not the former issue. The Supreme Court was surely right in laying down the test that "(c)are must be taken to remember that public speeches during election campaigns ordinarily are addressed to audience comprised of common men; and, therefore, the manner in which it would be understood by such an audience has to be kept in view.”

But, with respect, no sooner was this insight declared, it seems to have been lost sight of in discussing the electoral significance of 'Hindutva'. The Supreme Court was not called upon to enter into a reified discourse on Hinduism' but decide on the impact of 'Hindutva' as a contemporary election slogan used by a political party to mobilize communal bias for electoral purposes.

In 1966, Mr. Justice Gajendragadkar (known for his over-assimilationist approach to questions of religious freedom) delivered a much criticized judgement in which the Court grandly told the Swami Narayans that they were Hindus even if they protested they were not, and, all that was at issue was whether 'untouchability in the form of refusing temple entry could be practiced by them Relying in the main on Western inspired philosophical accounts and descriptions (much in the same way as the Hindutva judgement also does), that Court has been described as deciding that "a man who believes in what Dr. Radhakrishnan and Max Mueller and Monier. Williams and B.G. Tilak would recognize as components of Hinduism may well be a Hindu."

This judgement was followed in the tax case in 1975, and finally in the Hindutva judgement. This last judgement goes much further than telling 'ostensible" Hindus that they are, in fact, Hindus. Now, everyone in India is a Hindu of some kind or another because Hinduism (and, for good, measure, Hindutva) can be equated with Indianism generally and "depicting the way of life of the Indian people not confined to describe persons practicing the Hindu religion as a faith" This, with respect, is a devastatingly troubling interpretation of secularism which is a part of the basic structure of our constitutional faith. It is also explosive in its potential for permitting communal appeals to be made in the name of religion.

Carrying, the matter further, the Court stated that "any reference to Hindutva of Hinduism in a speech (would not) make it automatically a speech based on the Hindu religion as opposed to the other religions or that the words Hindutva" or "Hinduism' per se depict an attitude hostile to all persons practicing any religion other than the Hindu religion." Such a transposition (from temple entry to Hinduism, to Hindutva, to the electoral uses of Hindutva) is not warranted. Even if Hinduism is everything the judges say it is, the discourse on it was irrelevant unless we view the whole picture from such Olympian heights that we ignore ground realities.

But, why is this part of the judgement so portentous? Three factors have to be read together. First, since the use of the word 'Hindutva' would not automatically be impermissible, a party's simply saying: "Vote Hindutva" without more would be treated as an appeal to nationalism rather than religion. Second, the Court also held that provocative and incendiary speeches by the acknowledged leaders of a political party cannot be attributed to a candidate unless and until his actual consent or complicity is shown. Such a narrow view of consent may be valid for contracts, but cannot be transposed to electoral law or public law generally. Third, the Court held that "ex facie contents of a party manifesto cannot be a corrupt practice committed by a Candidate of that party”.

The combination of these three factors is lethal. Political parties can flood the nation with "Vote Hindutva" propaganda with impunity. Leaders can visit constituencies and make all kinds of speeches without affecting their parties' candidates as long as actual consent or nexus is not shown. Apart from the fact that "Vote Hindutva" (even without more) is an appeal to religion (nothing more; nothing else), the refuge offered by the Supreme Court that an election can be set aside if it is shown that the election was materially affected, is illusory. "Material effect" is virtually impossible to estimate. If the court is not clear about secularism, that itself is a reason for review.

Clearly, the Supreme Court should review its judgement. It has: ample powers to do so in special cases. This is a special case. if it does not do so, the electorate should be vigilant to ensure that they watch the use of these slogans with care and amass evidence for post- electoral challenges.

The judges are 'supreme', therefore, they are infallible. But even an infallible judiciary cannot shut its ears to Bonafide interactive critique.

V.M. Tarkunde on Hindutva Judgement

By these judgements the Supreme Court Bench has watered down, to a very material extent, the rigor of the provision in the Representation of the People Act in respect of candidates who stood for Hindutva or who appealed for the creation of a Hindu State. Larger Benches of the Supreme Court had previously held that secular democracy is one of the basic features of the Indian Constitution, and that Section 123(3) of the Representation of the People Act was intended to uphold the principle of secular democracy. By watering down the meaning and rigor of that provision. Supreme Court has dealt a very severe blow to the principle of secular democracy.

These conclusions of the Supreme Court Bench clearly mean, that if a candidate were to declare that he believed in Hindutva and therefore the voters should cast their votes in his favor, without saying anything more, he would not be committing any corrupt practice as defined by the Section 123(3) of the Act. He may, according to the Supreme Court Bench, be referring to the culture of the Indian people as a whole including Muslims, Christians and all other non-Hindu citizens.

Can this conclusion be accepted as correct?

In the first place, any statement made before an audience should be interpreted in the sense in which the members of the audience are expected to understand it. During an electoral campaign, the purpose of almost every meeting is to appeal for the votes of the electorate. Would the normal electoral in India understand that what is meant by Hindutva is the culture of all the people of India including those of non-Hindu faiths? Obviously, by Hindutva most of the voters would understand the culture of Hindus including their religious faith, and not the faith.

Supreme Court's Hindutva Judgement Views of Justice Rajindar Sachar

If a Hindu candidate can thus avoid the disqualification by quoting the philosophic content of Hinduism, the same result must follow if an appeal is made by Muslim group in the name of Islam.

On the analogy of the decision in Joshi's case it would be permissible for a Muslim candidate to ask for vote on the ground of Islam by arguing that he is asking for vote not on the ground of his religion but on the ground of philosophy of peace and surrender to God which also is the philosophy of the Gita. If that be the result, Section 123(3) will become a dead letter.

In my view to equate Hindutva as synonymous with Indianization is to do violence to the ethos and elan of India which is an amalgam of multireligious and multicultural flowers with distinctiveness of each but yet forming one harmonious garland giving out a sweet fragrance of the principle of unity in diversity. In that context it is well to emphasize the sagacious words of Dr. Radhakrishnan that "no one religious should be given preferential status or unique distinction and that no one religion should be accorded special privileges in national life Gandhiji was even more direct when he said. "Separate religions - Hinduism, Islam, Christianity, Buddhism are different rights converging on the same point. The Allah of Muslims is the same as the God of Christians and Ishwara of Hindus".

I fear that the latest Supreme Court judgement may be used by communal parties as a license to invoke religion in the electoral battle. It is, therefore, essential to amend the law immediately to make it clear beyond doubt that mere asking for vote by a candidate on the ground of his religion, whether Hinduism, Islam, Christianity or Sikhism etc. would be a corrupt practice within Section 123 (3) of the Act. This must be done before the next General Elections. and culture of non-Hindus.

Culture includes religion, and that an appeal to vote on the basis of Hindutva includes an appeal to vote for the Hindu religion as well. Since an appeal to vote for Hindutva includes an appeal to vote for the Hindu religion, it clearly amounts to a corrupt practice as defined by Section 123(3) of the Representation of the People Act, 1951. The present three-judge Bench was therefore wrong in holding that an appeal for votes based on Hindutva or Hinduism does not by itself amount to a corrupt practice.

These decisions of the Supreme Court Bench are thus highly derogatory to the principle of secular democracy and the letter and spirit of Section 123(3) of the Representation of the People Act, 1951. It is to be hoped that a larger Bench of the Supreme Court will on a future occasion. reconsider these decisions and undo the great harm caused by them.

(Source: The Hindustan Times, 10 March, 1996)