NATIONAL POLITICS
A.G. Noorani on Hindutva in Election
In S.R. Bommai's case (1994), Justices P.B. Sawant and Kuldeep Singh pointedly recalled the following paragraph in the Bharatiya Janata Party's 1991 election manifesto: "BJP firmly believes that the construction of Sri Ram Mandir at Janmasthan is a symbol of the vindication of one cultural heritage and national self. respect. For BJP it is purely a national issue and it not allow (sic) any vested interest to give it a sectarian and communal colour. Hence party is committed to build Sri Ram Mandir at Janmasthan by relocating superimposed Babari structure with due respect" (emphasis added by the Judges).
The BJP's 1996 manifesto is far worse. The pledge is prefaced, in a separate section, by an exposition of Hindutva which makes a mockery of the Supreme Court's judgement on Hindutva and exposes the court's understanding of Hindutva to be utterly wrong and unreal. The manifesto endorses V.D. Savarkar's concept, propounded in his pamphlet Hindutva in 1923, and its corollary, the rejection of "territorial nationalism" - one born in India is not a national unless he accepts "Hindu culture" (read "religion"). It was picked up by Golwalkar in his book We are our Nationhood Defined (for a close analysis, see Sitaram Yechury. What is this Hindu Rashtra? a Frontline publication, 1993), Golwalkar repeated the theme in his Bunch of Thoughts (1996). It is a rejection of India's composite-culture and of its religious diversity.
The first prefatory paragraph of the election manifesto reads: "The BJP is committed to the concept of one nation, one people, one culture our nationalist vision is not merely bound by the geographical or political identity of India, but defined by our ancient 1) cultural heritage. From this belief flows our faith in "Cultural Nationalism' which is the core of Hindutva. That, we believe, is the identity of our ancient nation, Bharatvarsha" (emphasis added here and below).
The manifesto concludes: "On coming to power, the BJP Government will. facilitate the construction of a magnificent Sri Ram Mandir at Janmasthan in Ayodhya which will be a tribute to Bharat Mata. This dream moves millions of people in our land; the concept of Rama lies at the core of their consciousness".
In 1996, the BJP is committed to the construction of a Ram Mandir-as-it was in 1991, but this time with a prefatory explanation that makes plain the religious nature of the appeal and the BJP's concept of "cultural nationalism".
In Bommai's case two Justices cited the BJP's manifesto among the "professions and acts which are evidently against the provisions of the Constitution" They, along with Justices S. Ratnavel Pandian, A.M. Ahmadi, K. Ramaswamy, B.P. Jeevan Reddy and S.C. Agrawal, ruled that secularism is part of the unamendable basic features of the Constitution. Justices J.S. Verma and Yogeshwar Dayal expressed no opinion on this point.
In his order on March 22, 1996 on a petition for review of his ruling in Manohar Joshi's case, Justice Verma rightly said that the Bommai case "did not relate to the construction" of the election law. But that does not support his assertion that "nothing in the decision... is of assistance for construing" that law and that reference to it is "inapposite in this context". The majority (7-2) view on the basics of the Constitution should inform any construction of the provisions of a stature which seek to ensure separation of religion and politics.
However, Justice Verma's ruling in Manohar Joshi's case delivered on behalf of a Bench comprising himself and Justices N.P. Singh and K. Venkataswami, and in five other cases all concerning BJP and Shiv Sena men and delivered on the same day, December 11, 1995- now stand referred to a larger Bench of five Judges of the Supreme Court. This reference was made by another Bench of the court comprising Justices K. Ramaswamy. S.P. Bharucha and K.S. Paripoornan on five issues specified in their order of April 16, 1996.
Two issues concerned the contents and timing of the notice to a person other than the candidate or his election agent who is alleged to have made speeches with the "consent" of the candidate and which constitute a "corrupt practice" in law. We are here concerned not with these but three other issues:
1) Can the consent be "inferred" or is it "required to be proved"? The order said that there "appears to be some inconsistency in the rulings". In truth, however, inference from circumstances is as good as direct testimony, oral or written, provided the tests for assessing circumstantial evidence are borne in mind.
2) "When and under what circumstances (do) speeches of the leaders of the political party or the appeal of any other person with the consent by a candidate "to vote or refrain from voting on ground of religion constitute "corrupt practice" in law?
The order adds: "Its content and scope also require to be clearly laid down authoritatively lest miscarriage of justice in interpretation of "corrupt practice" involved in every election petition would ensue". In plain words, the ruling in Manohar Joshi's case that a plea for a Hindu State does not constitute a corrupt practice and the ruling in Dr. Prabhoo's case that a plead for Hindutva, by itself, does not either will both be reviewed. They can be and, one hopes, will be, overruled.
One hopes also, that one vital aspect of "consent" will be considered when the larger Bench reviews the earlier rulings. It is the candidate's tacit and explicit acceptance of the manifesto of the political party on whose ticket he agreed to stand as election candidate. He has clearly accorded his "consent" thereby to the contents of the manifesto in fact and must, in law in any event, be deemed to "consent" to them.
The Election Commission (E.C.) does not come into this. On April 17, M.S. Gill; an Election Commissioner, said that violations of the law on misuse of religion could be challenged in courts. The next day the E.C. decided to call for the manifestos of all parties to examine whether they violated the law. On April 22 the E.C. said it was a matter for the courts and the people to decide. Gill said, "We have asked for the manifestos from the political parties to enlighten us on their poll promises".
The review petition dismissed by the same Bench - Justices J.S. Verma, N.P. Singh and K. Venkataswami - on March 22 was confined to the judgement in Manohar Joshi's (Hindu State) case... The Bench said that "there is nothing in the judgement in Manohar Joshi to give rise to any such apprehension that it can enable misuse of religion for making an appeal for vetes in an election."
According to a press report, Justice Verma remarked during the hearing: "Those who seek votes on grounds of religion) have a surprise waiting for them (from the court)" (The Telegraph, March 23). That is warning enough.
Needless to add, if the larger Bench holds any appeal on the ground of Hinduter se to be a "corrupt practice", that interpretation of ine law will govern cases that arise thereafter as well as those that occurred before it. Those who cried Hindutva in the last election did so at their own peril. They had ample warning that the slogan might well be pronounced illegal by the Supreme Court
(Source: The Frontline, 31 May, 1996)
Arjun Singh On Hindutva Judgement
The BJP had no reason to gloat over the judgement and interpret it as a general license to perpetuate their line of Hindutva since the Supreme Court has not given them a blanket clearance. "After analyzing all the three judgements of the Supreme Court on the issue of Hindutva, it is clear that the Supreme Court affirmed two judgements of the Bombay High Court setting aside the election of the two BJP-Shiv Sena alliance candidates. The appeals of Mr. Bal Thackeray and BJP-Shiv Sena candidates Dr. R. Prabhu and Mr. Suryakant, have been rejected by the apex court which had held them guilty of corrupt practices for seeking votes in the name of religion and promoting enmity between religious groups as laid down under Sub-section (3) and (3A) of Section 123 of Representation of People Act (RPA). "The Supreme Court put its own gloss on the word 'Hindutva', and held that the context, place and audience has to be taken into account while considering whether the use of word 'Hindutva' can be held to appeal in the name of religion so as to be covered under corrupt practice in the election law or it is used in the broad sense of Indianization.
Section 16(a) has been added by the Parliament in 1994 to the symbol, allotment, reservation order to derecognize any political party which believed in communalism and seeks votes in the name of religion and promotes enmity between different classes of society and works against the secular ideals of the Constitution, thus empowering the Election Commission to act unilaterally.
(Source: The Pioneer, New Delhi)
Iqbal A. Ansari on Muslim Representation
Some analysts have pointed out in the columns of the TOI the distortions caused by the first-past-the post electoral system (FPP). The FPP marginalizes smaller parties and sections of the people, a fact pointed out by Mr. Surendra Mohan, about Muslims who are totally absent from Madhya Pradesh, Gujarat and some other state assemblies. In the present Parliament, their strength is 23 (sic) out of 535 seats. From the first to the tenth Lok Sabha, Muslim strength has been: 36(1952), 24(1957). 32(1962), 29(1967), 27(1971), 32(1977), 46(1980). 41(1984), 33(1989) and 28(1991).
To remove the distortions caused by the FPP it is desirable to change over to some variant of the proportional representation system as obtains in Europe. There is a need to reopen the discussion on better. alternatives to the present FPP and the list system, which used to be consistently championed by Mr. L.K. Advani.
The electoral system also needs to be reviewed keeping in mind the assurances of minorities given by Nehru. Patel and Pant in the Constituent Assembly in May 1949 while dropping the provisions of the Draft Constitution for reservation of seats to minorities under joint electoral that even without such a constitutional guarantee they would be given their due share.
(Source: The Times of India, 6 July, 1996)
