LAW

Rajindra Sachar on Supreme Court Judgement on Hindutva

The judgement of the Supreme Court permitting in the elections the use of word 'Hindutva' or even an appeal for setting up a Hindu State is a great set-back to the Secular philosophy of our Constitution.

The Supreme Court, set aside the judgement of High Court by holding that it was fallacy to assume that a speech in which reference is made to Hindutva or Hinduism must necessarily amount to a corrupt practice under Sub-section (3). It also held that mere use of the word 'Hindutva' or 'Hinduism' or mention of any other religion in an election speech does not bring it within the net of sub section (3).

The Court explained its conclusions by expounding in great detail the various shades of meaning of the word "Hindutva' & 'Hinduism'. If this meaning of "Hinduism" was to be explained in a theological treatise or in the philosophic content, no exception could be raised.

But the problem is that the Court was dealing with the matter in the context of electoral corrupt practice. Moreover, the cases relied upon by the Court were distinguishable as they did not deal with the election law.

It is quite patent that when Mr. Joshi talked of establishing Hindu State, he was in no way trying to inculcate the spirit of tolerance or spreading the message of Dr. Radha Krishnan as to what should be the rightful view of life of Indians. He was fighting an electoral battle and directly asking for votes on the plank of Hindutva from an audience mainly of Hindus. He was unmistakably indicating that Hindus will have a special exalted place as against other religious groups. The audience, I have no doubt also understood the speech in this mundane and self-serving purpose. The Court itself was conscious of it when it commented that the speech has also not to be construed in the abstract or in the manner in which it would be conceived after an academic debate. This was also consistent with the view expressed in earlier judgements that the effect of a speech is not to be tested when it is argued in the cold atmosphere of judicial chamber, but rather to the effect on the mind of ordinary average voter. It had also cautioned "that inhibition of Sec 123(3) should not be permitted to be circumvented indirectly or by a circuitous or subtle devices".

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 a 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 a 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 philosophy of Bhagwat Geeta. 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 multi-religious and multi- cultural 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 sagacious words of Dr. Radha Krishnan that "no-one religion 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 paths converging on the same point. Allah of Muslims is the same as God of Christians and Ishwar of Hindus". I fear that this judgement may be used by communal parties as a license to invoke religion in electoral battle. After all we cannot forget that the wanton demolition of Babari Mosque was the mischief of the so-called followers of Hindutva and of slogan shouting rabble "Say it with pride that we are Hindus".

It is essential therefore that law should be amended 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. will be deemed to be asking for vote on the ground of religion and would be a corrupt practice within Section 123(3) of the Act. This must be done before the next General Elections in 1996,