LAW-HINDUTVA JUDGEMENT

Eminent Jurist Nani A. Palkhivala on Hindutva Judgement

It is unfortunate that while our Supreme Court has rendered signal service to the nation on a number of occasions, it has at the same time given occasional judgements, as regards both casteism and secularism, which arc not merely erroneous but contrary to the basic structure of the Constitution.

In December 1995, came the judgement of the Supreme Court in Manohar Joshi's case which was against the basic scheme of the Constitution. Dr. S. Radhakrishnan had summarised the fundamental principle of our Constitution in the following words: "The Indian state will not identify itself with or be controlled by any particular religion".

The judgement of the three judges last month has upset the well-settled law on the point. The three-judge Bench virtually abolished the distinction between sublime Hinduism as understood for thousands of years and Hindutva, the pernicious doctrine evolved against Mahatma Gandhi's advice by the Hindu Mahasabha in 1924. The great jubilation in the BJP and the Shiv Sena camps over that judgement is misconceived.

The law of India is to be gathered not from any single judgement of the apex court but by reading the various judgements of that court together. In case after case the Supreme Court has reaffirmed that the concept of secular democracy is the very basis of our Constitution and the Separateness of religion from politics has been repeatedly emphasized.

The Bench of three judges was clearly bound by the law as laid down in Bommai's case where nine judges reiterated the principle that secularism is the cardinal basic principle of the Indian Constitution; and that mingling of religion with politics is unconstitutional. The nine-judge Bench attached such supreme importance to this principle that they went to the extreme length of upholding the President's Proclamations under Article 356 declaring that the BJP governments in Himachal Pradesh, Madhya Pradesh and Rajasthan. should be unseated because the BJP government in Uttar Pradesh had been involved in the demolition of the mosque at Ayodhya.

The Constitution which provides for a secular democracy remains unamended. The view that the latest judgement of the Supreme Court has changed the law is wholly untenable. India was a secular democracy and it continues to remain, emphatically, a secular democracy.

Mr. Manohar Joshi said in one of his speeches that "the first Hindu state will be established in Maharashtra". Justice Verma held it not to amount to a corrupt practice on the ground that it was "only the expression, at best, of a hope". Whether it was a hope or the expression of the policy of the government, it clearly amounted to mingling religion with politics. One can understand the desire of countless Hindus to have a Hindu Rashtra - a Hindu state; but a little thought would show that it would be against pure Hinduism which believes that noble thoughts should come to us from every side. Fanaticism or fundamentalism is basically alien to Hindu dharma.

If you want to introduce Hindutva or Hindu raj, you cannot do it by amending the Constitution since the basic feature of the Constitution cannot be amended, having regard to Kesavananda's case (AIR 1973 SC 1461). And nothing would be more dangerous than to try to draft a new Constitution. It would be the surest way of disintegrating and dismembering India. Is there any sensible citizen who thinks that Hindutva is a fair price to pay for the disintegration.

To say that Hindutva does not involve religious bigotry is wholly irrelevant. The question is very simple. Admittedly, you cannot ask for votes on the ground of religion. Can you get over the prohibition by invoking the same grounds masquerading as Indian culture? If an appeal to Hinduism constitutes a corrupt practice under the election law, can you achieve the same result by appealing to Hindutva? The question is not one of semantics. No amount of learned discussion as to what constitutes Hindutva can help to solve the problem. As has been decided in a number of English cases, the question is what would the man in the Clapham omnibus think? Indian languages are sufficiently unambiguous to enable us to choose the right words if we sincerely desire to be unambiguous. After all, one should be sincere with one's self before one can be sincere with the world.

When Dr. K.M. Munshi the greatest exponent of Indian culture wanted to start an institution to propagate Indian culture, he had no difficulty in selecting the name of the institution which is even today the home of all Indian religions he called it the Bharatiya Vidya Bhavan.

Confusion in the public mind regarding the election law is always undesirable. But it can be fatal at this juncture when national and state elections are in the offing. At this moment it would be disastrous for India to live under the shadow of uncertainty as to what the Constitution dictates. No one can deny that India has more than its fair share of fanatics and fundamentalists in public life. The country cannot afford to remain in the twilight of uncertainty as to the right interpretation of the Representation of the People Act.

The duty of the Chief Justice of India is plain and incontrovertible: He should form a Bench of nine or more judges, as soon as possible, to resolve the confusion created by the recent judgement of the three judges last month.

(Source: The Times of India, 5 February, 1996)