JUDICIARY
The next contention relates to the meaning of 'Hindutva' and 'Hinduism' and the effect of the use of these expressions in the election speeches.
We have already indicated the meaning of sub- section (3) of Section 123 of the R.P. Act and the limit of its operation. It may be said straightaway that any speech wherein these expressions are used, irrespective of their meaning, cannot by itself fall within the ambit of sub- section (3) of Section 123 unless the speech can be construed as an appeal to vote for a candidate on the ground that he is a Hindu or to refrain from voting for a candidate on the ground of his religion, i.e., he not being a Hindu. We have also indicated that mere reference to any religion in an election speech does not bring it within the net of sub-section (3) and/or sub-section (3A) of Section 123, since reference can be made to any religion in the context of secularism or to criticize any political party for practicing discrimination against any religious group or generally for preservation of the Indian culture. In short, 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) and/or sub-section (3A) of Section 123, unless the further elements indicated are also present in that speech. It is also necessary to see the meaning and purport of the speech and the manner in which it was likely to be understood by the audience to which the speech was addressed. These words are not to be construed in the abstract, when used in an election speech.
Both sides referred copiously to the meaning of the words 'Hindutva' and 'Hinduism' with reference to several writings. Shri Jethmalani referred to them for the purpose of indicating the several meanings of these words and to emphasize that the word 'Hindutva' relates to Indian culture based on the geographical division known as Hindustan, i.e., India. On the other hand, Shri Ashok Desai emphasized that the term 'Hindutva' used in election speeches is an emphasis on Hindu religion bewaring no relation to the fact that India is also known as Hindustan, and the term can relate to Indian culture....
When we think of the Hindu religion, we find it difficult, if not impossible, to define Hindu religion or even adequately describe it. Unlike other religions in the world, the Hindu religion does not claim any one prophet; it does not worship any one God; it does not subscribe to any one dogma; it does not believe in any one philosophic concept; it does not follow any one set of religious rites or performances; in fact, it does not appear to satisfy the narrow traditional features of any religion or creed. It may broadly be described as a way of life and nothing more....
We have already indicated that the usual tests which can be applied in relation to any recognised religion or religious creed in the world turn out to be inadequate in dealing with the problem of Hindu religion. Normally, any recognised religion or religious creed subscribes to a body of set philosophic concepts and theological beliefs. Does this test apply to the Hindu religion?...
No precise meaning can be ascribed to the terms 'Hindu', 'Hindutva' and 'Hinduism', and no meaning in the abstract can confine it to the narrow limits of religion alone, excluding the content of Indian culture and heritage. It is also indicated that the term 'Hindutva' is related more to the way of life of the people in the sub- continent. It is difficult to appreciate how in the face of these decisions the term 'Hindutva' per se,
in the abstract, can be assumed to mean and be equated with narrow fundamentalist Hindu religious bigotry, or be construed to fall within the prohibition in subsections (3) and/or (3A) of Section 123 of the R.P. Act....
The word 'Hindutva' is used and understood as a synonym of 'Indianisation' i.e., development of uniform culture by obliterating the differences between all the cultures co-existing in the country....
Thus, it cannot be doubted, particularly in view of the Constitution Bench decisions of this Court that the words 'Hinduism' or 'Hindutva' are not necessarily to be understood and construed narrowly, confined only to the strict Hindu religious practices unrelated to the culture and ethos of the people of India, depicting the way of life of the Indian people. Unless the context of a speech indicates a contrary meaning or use, in the abstract these terms are indicative more of a way of life of the Indian people and are not confined merely to describe persons practicing the Hindu religion as a faith. Considering the terms 'Hinduism' or 'Hindutva' per se as depicting hostility, enmity or intolerance towards other religious faiths or professing communalism, proceeds from an improper appreciation and perception of the true meaning of these expressions emerging from the detailed discussion in earlier authorities of this Court. Misuse of these expressions to promote communalism cannot altera the true meaning of these terms. The mischief resulting from the misuse of the terms by anyone in his speech has to be checked and not its permissible use. It is indeed very unfortunate, if in spite of the liberal and tolerant. features of 'Hinduism' recognised in judicial decisions, these terms are misused by anyone during the elections to gain any unfair political advantage. Fundamentalism of any colour or kind must be curbed with a heavy hand to preserve and promote the secular creed of the nation. Any misuse of these terms must, therefore, be dealt with strictly.
It is, therefore, a fallacy and an error of law to proceed on the assumption that any reference to Hindutva or Hinduism in a speech makes it automatically a speech based on the Hindu religion as opposed to the other religions or that the use of words 'Hindutva or 'Hinduism' per se depict an attitude hostile to all persons practising any religion other than the Hindu religion. It is the kind of use made of these words and the meaning sought to be conveyed in the speech which has to be seen and unless such a construction leads to the conclusion that these words were used to appeal for votes for a Hindu candidate on the ground that he is a Hindu or not to vote for a candidate because he is not a Hindu, the mere fact that these words are used in the speech would not bring it within the prohibition of sub-section (3) or (3A) of section 123. It may well be, that these words are used in a speech t promote secularism or to emphasise the way of life of the Indian people and the Indian culture or ethos, or to criticise the policy of any political party as discriminatory or intolerant. The Parliamentary debates, including the clarifications made by the Law Minister quoted earlier, also bring out this difference between the prohibited and permissible speech in this context. Whether a particular speech in which reference is made to Hindutva and/or Hinduism falls within the prohibition under sub-section (3) or (3A) of Section 123 is, therefore, a question of fact in each case.
This is the correct premise in our view on which all such matters are to be examined. The fallacy is in the assumption that a speech in which reference is made to Hindutva or Hinduism must be a speech on the ground of Hindu religion so that if the candidate for whom the speech is made happens to be a Hindu, it must necessarily amount to a corrupt practice under sub-section (3) or sub- section (3A) of Section 123 of the R.P. Act. As indicated, there is no such presumption permissible in law....
(Source: The Organiser, 24 December, 1995)
CPI(M): Politbureau Statement
The Supreme Court bench has also opined that appeals based on Hindutva and Hinduism do not constitute an appeal to religion or against any other religious group. The whole approach is a narrow one which does not consider the specific context in which the Hindutva platform is used to incite feelings against the minorities and to advocate a Hindu state. it is this approach which has led to the quashing of the Bombay High Court's adverse verdict on the speeches of Ritambhara
The Polit Bureau of the CPI(M) considers the Supreme Court judgement, in its totality, an ambiguous one on the question of the use of religion for electoral purposes, even though the bench has decried the misuse of religion during elections. it will provide encouragement for the use of religion for political ends. I therefore, becomes necessary, to review the provisions of the RP Act in this connection to ensure that no legal ambiguity exists in defining and prohibiting the use of eligion for electoral purposes.
