Supreme Court to review ‘Hindutva’ judgment after eighteen years

Supreme Court proposes to reconsider its 1995 judgment, popularly known as Hindutva judgment, in which the court ruled that seeking vote in the name of Hinduism is not a corrupt practice. The court has decided to constitute a larger bench to re-evaluate its judgment

 “The Hindutva judgment” was delivered by Justice J.S. Verma on behalf of himself and Justices N.P. Singh and K. Venkatasami on December 11, 1995.In Dr Ramesh Prabhoo vs Prabhakar K. Kunte and in Manohar Joshi v.Nitin Bhaurao Patil Supreme Court was considering a number of appeals which arose from decisions of the Bombay High Court relating to the validity of the elections of certain Shiv Sena -BJP candidates to the Maharashtra Legislative Assembly. The Bombay High Court had set aside the elections of these candidates mainly on the ground that they had committed a corrupt practice as defined by Section 123(3) of the Representation of the People Act, 1951. The corrupt practice defined in Section 123(3) consists of “the appeal by a candidate or his agent or by any other person with the consent of a candidate or his election agent to vote or refrain from voting for any person on the ground of his religion.”

Larger Benches of the Supreme Court had previously held that secular democracy is one of the basic features of the Indian constitution, and that Section 123(3) of the Representation of this People Act was intended to uphold the principle of secular democracy.But the bench ignored the ruling in contrary. By these judgments the Supreme Court Bench has watered down to a very material extent the rigour of the above provision in respect of candidates who stood for Hindutva or who appealed for the creation of a Hindu state.

In S R Bommai V. Union of India a nine judge benchof the Supreme Court expressed the firm opinion that secularism was the basic structure of the Constitution and explained the implications of Secularism, thus:

“These provisions by implication prohibit the establishment of a theocratic State and prevent the State either identifying itself with or favouring any particular religion or religious sect or denomination. The State is enjoined to accord equal treatment to all religions and religious sects and denominations. The State is enjoined to accord equal treatment to all religions and religious sects and denominations.."

 In fact, the encroachment of religion into secular activities is strictly prohibited. This is evident from the provisions of the Constitution to which we have made reference  above. The State's tolerance of religion or religions does not make it either a religious or a theocratic State. When the State allows citizens to practice and profess their religions, it does not either explicitly or implicitly allow them to introduce religion into non-religious and secular activities of the State. The freedom and tolerance of religion is only to the extent of permitting pursuit of spiritual life which is different from the secular life. The latter falls in the exclusive domain of the affairs of the State…..

As stated above, religious tolerance and equal treatment of all religious groups and protection of their life and property and of the places of their worship are an essential part of secularism enshrined in our Constitution. We have accepted the said goal not only because it is our historical legacy and a need of our national unity and integrity but also as a creed of universal brotherhood and humanism…”

According to Justice Chinnappa Reddy “Bommai was a triumph for secularism and by upholding the secular principle in the manner that it did, the court achieved a high trade mark. But very soon, hardly a year after Bommai, all was forgotten and a violent blow to secularism was struck in to trio of cases which not created a little sensation and caused several eyebrows to be raised.; the case of Bal Thackeray, Manohar Joshi, and Mahdix. Here the Court consisting of Justice Verma and two other judges expounded by their conception of the philosophy of Hindutva. The case arouse out of election disputes in which the corrupt practices alleged related to appeal to religion. The learned Judges referred to the words of S. Radhakrishnan, Monier Williams, Arnold Toynbee, etc., to arrive at the conclusion that Hindutva should be understood as a way of life or a state of mind and should not be equated with or understood as religious Hindu Fundamentalism.

The question before the court was not what the expression Hindu or Hindutva meant or ought to mean according to the philosophers but what the authors of an election pamphlet belonging to an overtly communal meant when they used the expression in the pamphlets published and distributed as part of the pamphlet meant the same thing what Radhakrishnan and Monier Williams meant.

The learned judges then made the touchingly native statement that it may well bethat the words are used in a speech to promote Secularism or to emphasis the way of life of the Indian people and the Indian culture or ethos or to criticize the policy of any political party as discriminatory or intolerant.

The learned judges failed to realize that the expression with which they were concerned were used in the context of appeal to the voters in an election campaign in support of candidate belonging to political parties inspired by the writings of M S Golwalker and V D Savarkar who had expounded the politics and ideology of Hindu Rashtra and Hindutva- one language, one religion, and one nation. Their writings were more relevant for the case than the writings of Radhakrishnan, etc.

Justice Verma in a later case appeared to retreat from the earlier position taken by him on the question of what Hindutva meant and all that. Though he has attempted to make a slight retreat from the earlier position taken by him, there can be no doubt that the decision requires to be overruled. The court did not appear to realize that they were dealing with not a problem of law and order only or the destruction of some construction or other, but with the very concept of secularism so carefully built into the Constitution by the founding fathers”.

According to Senior Advocate and commentator Noorani, Verma’s judgment is absurd as it termed Hindutvaas a synonym of Indianisation. Further that,two rulings of a Constitution Bench quoted by Justice Verma to support his views are of equal irrelevance. Mr. Noorani condemns that nearly eighteen years have elapsed and not one Chief Justice of India who served since 1996 thought it fit to constitute larger bench to settle this issue authoritatively.

In April 1996 a three Judge Bench in Abhiramsingh V. C D Commachen directed Chief Justice to constitute a larger bench to hear and decide the matter authoritatively.

“Without expressing anyopinionon these questions, we are of the view that the entire case requires to be heard and decided by a large Bench of five Judges since the decision thereon upon the purity of election process and requires to be decided authoritatively. We, therefore, direct the Registry to place the case before our learned brother, the Chief Justice for constituting a larger Bench of five Judges, and, if possible, at an early date so that all the questions arising in the present appealcould be decided authoritatively and expeditiously”, theCourt said.

 While the five-judge bench was hearing this matter on January 30, it was informed that the identical issue was raised in the election petition filed by one Narayan Singh against BJP leader SunderlalPatwa and the apex court's another Constitution Bench of five Judges has referred a larger Bench of seven Judges. Thereafter, the bench headed by Justice Lodha referred Singh's matter to the Chief Justice for placing it before a seven-judge bench.