LAW-HINDUTVA JUDGEMENT

R. Venkataraman on the Hindutva Judgement

In a bunch of judgements, the Supreme Court. recently acquitted the Chief Minister of Maharashtra, Mr. Manohar Joshi, from electoral malpractice while holding the Shiv Sena chief, Mr. Bal Thackeray to be guilty. It held that expressions like Hindu, Hinduism, Hindutva, Hindustan and Hindu Rajya in a speech per se do not constitute an electoral malpractice. At the same time, the apex court has made it clear that "these words are not to be construed in the abstract, when used in an election speech". The three-member bench, comprising Justices J.S. Verma, N.P. Singh and K. Venkataswami, stresses that it is necessary to understand the meaning and objective of election speeches, and the manner in which they are likely to be understood by the people to whom they are addressed.

The Maharashtra cases have, once again, brought into focus the thin line of distinction between politics and religion. In the fiercely contested cases, both sides referred copiously to the meaning of the words "Hindutva" with reference to several writings. The senior counsel Mr. Ram Jethmalani, appearing for Bal Thackeray, Manohar Joshi, Pramod Mahajan, Sadhvi Ritambara and almost the entire saffron brigade, argued that the expression 'Hindutva' related to Indian culture, based on the geographical division known as Hindustan. The opposition counsel, Mr. Ashok Desai, countered that the term as used in the election campaign emphasized on Hindu religion, which bears no relating to Indian culture or the geographical division known as India or Hindustan.

The main judgement, which found Thackeray guilty of using religion to appeal to the voters, has extensive references to past verdicts of the Constitution bench of the apex court. Based on these, the court concluded that in the abstract, expressions like 'Hindutva' could not be equated with narrow Hindu religious bigotry. "What is forbidden by law is an appeal by a candidate for votes on the ground of 'his religion".

There are three connotations to 'his religion: The religion of the candidate, or of his opponent, or of the general public. Invoking any one's religion to appeal to voters is an offence; e.g., vote me because I am a Hindu; don't vote the opponent because he is not a Hindu; or vote me because you are a Hindu.

Based on these criteria, the court found speeches, Thackeray had referred to Muslims as "snaked" and raade comments to the effect that unless the Shiv Sena candidates won the elections, the Hindus would be finished and Hindustan would soon become "green". The court ruled that all these amounted to corrupt practice under the Section 123(3) of the RPA.

Significantly, the court did not find Manohar Joshi guilty, though he had stated at a meeting that, "the first Hindu State will be established in Maharashtra". It is this decision that has triggered off a controversy as to the demarcation of religion from politics.

According to legal experts, such a speech is clearly unconstitutional and anti-secular in the light of the Supreme Court judgement delivered by a nine-judge bench last year in the S.R. Bommai case. As Justice B.P Jeevan Reddy had stated in the Bommai case, "The Constitution does not recognize, it does not permit, mixing religion and State power. Both must be kept spart. If a political party espousing a particular religion comes to power, that religion tends to become, in practice, the official religion. All other religions come to acquire a secondary status.

However, in Manohar Joshi's case, the three-judge bench held, " 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." Though the judges conceded that such a hope is "despicable" and expressed "disdain" at a political leader entertaining such a thought. they held that it did not amount to corrupt practice under Section 123(3) or (3A).

According to Mr. Soli J. Sorabjee, an expert on Constitution law, the ruling "has overlooked its earlier caveat that public speeches during election campaign. ordinarily are addressed to audience comprised of common men. Hence, the manner in which it would be understood by such an audience has to be kept in view".

Here, it may be recalled that in the case of Bhairon Singh Shekhawat, when the same bench presided by Justice Verma sent back the case to Rajasthan High Court for trial, it had observed that, "One need not understand speeches of such nature after an academic discussion or after scores of senior counsels come and explain the meaning. It has to be understood in the manner the common audience, for whom it was addressed to, would have". It is hard to believe that the masses who heard Joshi extolling the virtues of a Hindu Rajya understood his words as "a way of life" or "Indian cultural nationalism".

Of course, the Court has made it clear that if the speeches resulted in generating hatred amongst communities, they would attract the relevant punishments. It also warned against the misuse of the expression Hindutva'. But the question remains, if the apex court fails to penalise a Chief Minister for appealing for votes on the sentiments of a Hindu Rajya, how can it prevent a Muslim candidate from promising an Islamic state? Or a Christian from declaring that he would establish a Christian state?

Further, legal experts fear that the political parties who openly espouse the cause of Hindutva as "Indian cultural nationalism" will now claim to be using the expression in the "abstract"; and definitely with the covert purpose of achieving political mileage by appealing to voters on grounds of religion.

(Source: The Secular Democracy, January, 1996)