SECULARISM

Supreme Court: Clarificatory Statement on Hindutva Judgement

J.S. Verma, N.P. Singh, K. Venkataswami, JJ.

Text of Order in Aslam vs Union Government

 The prayer in this writ petition under Article 32 of the Constitution of India is for reconsideration of the judgement in Manohar Joshi vs. Nitin Bhaurao Patil and Another, (1996) 1 SCC 169. The petitioner's contention, in substance, is that the judgement is incorrect.

However, in view of certain apprehensions expressed by the petitioner, we deem it proper to make some further observations now, which we had considered unnecessary to incorporate in the judgement in Manohar Joshi.

We may observe that the decision of this court in S.R. Bommai and others vs. Union of India and others, (1994) 3 SCC 1, did not relate to the construction of, and determination of, the scope of sub-sections (3) and (3A) of section 123 of the Representation of the People Act, 1951 and, therefore, reference to the decision in S.R. Bommai is inapposite in this context.

We may also add that the challenge in the writ petition to the correctness of the decision in Manohar Joshi is based on a misreading. In the judgement, the decision on the question of law is based on earlier Constitution Bench decisions of this court by which we are bound; and the observation therein which is challenged as incorrect is not the basis of the decision but an opinion expressed on an assumption if the making of the alleged statement of the hope of Maharashtra becoming a Hindu State, in the speech is held to be proved, without recording a finding that it was so proved This allegation was based on a police report and Manohar Joshi did not admit the making of such a statement in his speech. Moreover, strong disapproval was expressed of such a statement, if actually made.

A careful and dispassionate reading of the decision would show that the apprehensions and misgivings expressed in the writ petition are imaginary and baseless. There is no occasion to read in the judgement in Manohar Joshi something which is not said or to say that it conflicts with the concept of secularism in S.R. Bommai.

The application of the decision in Manohar Joshi in cases like Dr. Ramesh Yeshwant Prabhoo vs. Shri Prabhakar Kashinath Kunte and others, 1996 (1) SCC 130, Shri Suryakant Venkatrao Mahadik vs. Smt. Saroj Sandesh Naik (Bhosale), 1996 (1) SCC 384, and Mohan vs. Bhairon Singh Shekhawat, 1996 (1) Scale Sp3, is another pointer to indicate 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 votes in an election.

We may add that the deficiency, if any, in the statutory prohibition enacting the corrupt practices in section 123 of Representation of the People Act, has to be cured by legislation and that deficiency cannot be cured by reading into a penal provision something which is not enacted therein.

We do hope that at least now there would remain no misapprehension in the mind of anyone.

The writ petition is, therefore, dismissed.

(Source: The Religion and Law Review-Val. V (1996)

Warning on 'Hindutva'

Editorial, The Times of India, 28 March, 1996

The Supreme Court's unusual clarification of its ruling in the Manohar Joshi case that 'the words Hinduism or Hindutva are not necessarily to be understood and construed narrowly' should serve to dispel the anxieties voiced by critics and dampen the enthusiasm of those who had vociferously welcomed the judgement. Both sides were evidently wrong.

While construing the law, the court has ruled that the use of these words per se does not constitute a violation of the election law. However, by upholding the principle that religion and politics do not mix, it has implicitly warned that the religion of a candidate cannot be used for gaining political mileage.

Furthermore, it has put the onus on the legislature to cure the malaise of using religion for seeking votes. Nevertheless, the law as it now stands, unambiguously forbids appeals by a candidate for votes on grounds of religion. Equally, it forbids the promotion of enmity or hatred between citizens on the basis of race, caste or religion.

In an earlier ruling in the Bommai case the court had held that secularism is an integral part of the basic now noted, that it was not a case under election law. But structure of the Constitution. It is true, as the judges have surely the election law must itself be interpreted in the light of that fundamental principle.

To be realistic, political parties and their candidates do not expend money and effort to propagate religion but to acquire power in its name, thus misusing religion for used in a political context during election campaigns, and political ends. The terms "Hinduism' or 'Hindutva' are not in the abstract. The fact also remains that Hindutva, which is a narrow politico-religious construct, cannot be equated with Hinduism. Regrettably, the court's clarification does not touch upon this aspect. Nevertheless, it is bound to serve as a deterrent to those who had mistakenly believed that the earlier ruling gave them carte blanche to exploit religion for political gain.

Given the terms, tone and tenor of the court's statement those in the Bharatiya Janata Party or the Shiv Sena who now resort to the Hindutva plank will only be tempting fate.