Justice KM Joseph Criticises Supreme Court's 'Hindutva' Judgment, Says Court May Not Have Looked At Savarkar's Version Of 'Hindutva'

Analysing S R Bommai Case 

In the context of Secularism in the Indian Constitution, Justice Joseph mentioned that the most important aspect about secularism in India is the political one. He analysed Section 123 of the Representation of People's Act which defines corrupt practise in elections in this regard.

Justice Joseph said that when we talk about secularism verses politics, and secularism and politics in India, it is seminal to refer to the judgments like S R Bommai v Union of India.

Justice Joseph said that in SR Bommai, the Supreme Court has agreed that secularism is part of the basic feature of the Indian Constitution. Justice Joseph quoted Justice Jeevan Reddy's judgment from the S R Bommai case to accentuate the fact that political parties should maintain neutrality. The relevant para from S R Bommai case reads thus: “it is clear that if any party or Organisation seeks to fight the elections on the basis of a plank which has the proximate effect of eroding the secular philosophy of the Constitution it would certainly be guilty of following an unconstitutional course of action…..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, at any rate, a less favourable position. This would be plainly antithetical to Articles 14 to 16, 25 and the entire constitutional scheme... Under our Constitution, no party or Organisation can simultaneously be a political and a religious party. It has to be either. Same would be the position, if a party or Organisation acts and/or behaves by word of mouth, print or in any other manner to bring about the said effect, it would equally be guilty of an act of unconstitutionality.”

Justice Joseph added that the state should not endorse or favour a particular religion and should maintain neutrality. He said, “If a Minister, how high ranking he may be, if he by word of mouth or actions gives impression then that he is siding with a religion, then the flag of secularism is down, it gets buried at least temporarily.”. He further said that secularism is a facet of equality and if all religions are treated equally, then secularism exists. Thus, he concluded that the substance in S R Bommai's case is that, you do not patronize, favour or show bias toward a particular religion.

Criticism of Hindutva Cases

Justice Joseph then spoke about the controversial 'Hindutva' judgment of the Supreme Court - the 1995 judgment in Ramesh Yeshwant Prabhoo v Shri Prabhakar Kashinath Kunte. The case pertains to the speeches made by the top leader of Shiv Sena, Bal Thackery in favour of Prabhoo ahead of the Legislative Assembly elections where appeals were made to voters in the name of religion. The speeches were challenged to be violative of Section 123 of the Representation of the Peoples Act as being a corrupt practice. It prohibits making an appeal to the voters based on religion.

Justice Joseph said this judgment is misunderstood and received wide criticisms concerning the Hindutva aspect. The case made out by the parties was that Hinduism was a unique religion, with so many possibilities in Hinduism, it is a way of life. It was thus argued that referring to Hinduism or Hindutva would not be a corrupt practice. Justice Joseph said that Justice J S Verma accepted this contention by stating that mere usage of terms like 'Hindutva' and 'Hinduism' is not an appeal based on religion. In that judgment, he said that the Court refers to the nature of Hindu religion, how it is a geographical religion and that it is not really a religion like other religions.

Justice JS Verma wrote in the judgment :

"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 practising the Hindu religion as a faith"

Justice Joseph stated that he wanted to point out some criticisms against the Supreme Court decision in the Hindutva cases. First, he said that the version of Hinduism relied upon by the Court was based on earlier judgments, on the other hand the political parties relied upon the works of Savarkar. He said, “Savarkar has a version of Hindutva. He was elected as the President of the Hindu Mahasabha in the year 1937, he was a barrister, a brilliant mind, a poet, he was imprisoned for life for fighting against the British. The allegation against him by certain parties is that he petitioned for mercy and he was moved out….He said casteism has no place in Hinduism…he has written a short book, the substance of it is about nationalism. It may perhaps have the effect of placing certain minorities on a certain pedestal…What I am up actually up against is that the version of Hindutva according to Savarkar perhaps may not have been gone into by the Supreme Court in the Hindutva cases”.

He further said that the Supreme Court went on the premise that it was difficult to define Hinduism. He said, “I will tell you that Hinduism is very much a religion, I will tell you why…because if Hinduism is not a religion, then how will its members exercise their rights under Article 25, 26 of Constitution. Hinduism has to be a religion. Hindutva also if it is equated and if it is treated as a religion and as a way of life, then the question arises is 'whose way of life'?”

Justice Joseph said that the second criticism against the Hindutva judgment was that the Supreme Court said that they consider Hinduism as a uniform religion, uniform culture, obliterating all cultures. He said he has an objection to this because the Constitution protects every person's right to preserve and conserve their culture under Article 29 of the Constitution. He asked how can we have a uniform culture if sections of people are living in different areas and follow different cultures and preserve those cultures. “Can you have an overarching culture that overrides all other cultures followed in India? Unity in diversity does not mean achiveing unity by wiping out all other cultures”.

The third criticism is that Articles 25 and 26 require a religion and that Hinduism is a religion. He said that the attempt in those cases was to explain Section 123 (3) of the RP Act. It prohibits appeals made by a candidate to vote for him or to refrain from voting for another candidate based on religion. He noted that a purposeful interpretation of Section 123 (3) would be that any appeal made by a person on the basis of religion would make it an offence. He said, “religion has no place in an election place. you cannot enchant or disenchant the electorate based on an appeal made on religion. It is a secular practise which is central to our democratic practise”. Further, he said that the whole idea of secularism is that religion is your private affair. Justice Joseph said “keep it private.…state must maintain complete neutrality and take its hands off.”

Amendments To RP Act

He noted that every political party has to uphold secularism. He pointed out that what happens on the ground is that candidates influence the minds of people through their speeches and other actions. The problem he noted was that only a candidate could commit an electoral offence and a person does not become a candidate under laws until the elections are close. He said that even when the elections are not close, people make appeals on the basis of religion, thus influencing people and not getting caught under the law since they are not candidates yet. Justice Joseph stated that this is a huge problem according to him.

“The importance of it is the little man with a little piece of paper going into the ballot box….and putting his vote for exercising his franchise. You can change the fortunes of political party in power, you can bring down the most powerful person, this is the whole idea of a democracy…… When you go and cast your vote, you should be impartial, you should not be biased. You should have the faculty to analyze things, find out the pluses and minuses of a political party….. when you make a rational choice as to who should rule you, this goes to the roots of democracy” , said Justice Joseph. He thus stated that any appeals made by any person from any political party using religion, whether or not he is a candidate, vitiates a fair election. He thus suggested amendments to the RP Act so that a candidate cannot use the electorate in his favour by making appeals in the name of religion.

Another problem, Justice Joseph said was that a candidate cannot be made liable under Section 123 unless it is proved that he has consented to the corrupt practice. He asked, what if a charismatic political leader comes and delivers a speech favouring a candidate, in such cases, he stated consent of the candidate cannot be proved. Because such speeches would affect and influence the electorate. In this regard also, he sought amendments to the RP Act.

Duty of State to uphold secularism

Justice Joseph said that it is his humble submission that under secularism it becomes the bounden duty of the states to protect the lives of all citizens regardless of their religion, race, or caste. He said problems arise when religion is misused or abused for the sake the politics and to gain power. He said if provisions of the constitution are adhered to and practised properly on the ground, then we do not have to worry about secularism.

He thus said that no functionary, no Minister can endorse any religion, can take sides in a fight of religion because this would lead to the impression that other religion is secondary, which is not true because all religions under the principle of secularism must be treated equally.

Also Read - If Any Govt Removes 'Secularism' From Preamble, It Will Sound Death Knell Of Democracy : Justice KM Joseph

The video of the event can be watched here.