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Doing a Rashomon on the Hindutva Cases

The Hindutva cases regarding corrupt electoral practices, decided by the Supreme Court in 1995, can be seen as events with many symbolisms, narrated differently from the perspectives of the liberal, the secularist, the Sangh parivar, and the author. These narratives with the same characters but much that is different bring to mind the Akira Kurosowa classic Rashomon which tells the story of a woman's rape and a man's murder from the point of view of four different narrators. In both, the analysis depends on the particular viewpoint and the questions to which answers are sought.


Doing a Rashomon on the Hindutva Cases

Vinay Sitapati

the rape of a woman and the murder of a man possibly by a bandit (played by Japanese actor Toshiro Mifune), witnessed by a woodcutter is presented entirely in flashbacks from the perspectives of four narrators.

In each of the four versions of the story

The Hindutva cases regarding corrupt electoral practices, decided by the Supreme Court in 1995, can be seen as events with many symbolisms, narrated differently from the perspectives of the liberal, the secularist, the Sangh parivar, and the author. These narratives with the same characters but much that is different bring to mind the Akira Kurosowa classic Rashomon which tells the story of a woman’s rape and a man’s murder from the point of view of four different narrators. In both, the analysis depends on the particular viewpoint and the questions to which answers are sought.

Vinay Sitapati ( edu) is a graduate student at the Harvard Law School, USA.

o view the Hindutva cases as mere fact, law and analysis would be to see 13 cases coming on appeal from the election bench of the Bombay High Court to the Supreme Court.1 Section 123(3) of the Representation of the People Act, 1951 deems garnering votes on the grounds of the candidate’s religion (by the candidate or by his agent) to be a corrupt electoral practice, and section 123(3A) deems promoting communal disharmony to be a corrupt electoral practice.2 Among others, Bal Thackeray, Ramesh Prabhoo and Manohar Joshi had been convicted for such corrupt practices. Speaking for the three judge Supreme Court bench, justice J S Verma upheld the constitutionality of section 123 as an exception to free speech, upheld the conviction of Bal Thackeray, read section 123 strictly and held the use of “Hindutva” and “Hinduism” per se to not amount to a violation of section 123,3 overturned the conviction of Manohar Joshi,4 and most controversially held Hindutva to be a way of life.5 So much for the text of the judgment.

But these were no ordinary cases. They were full-blooded events, with consequences beyond that of the appellants and the respondents. To avoid the many symbolisms of the cases, and instead concentrate on the facts, law and judicial application of mind would be to miss the point. The Hindutva cases were not just about Manohar Joshi, Bal Thackeray and Ramesh Prabhoo. Also in the dock were abstract notions of secularism, Hindutva, free speech, democracy and liberalism.

One Event, Many Narratives

The Hindutva cases – the event – is also about many narratives. In Akira Kurosowa’s classic Japanese film Rashomon, the story is both surprisingly simple and deceptively complex. The central tale, which tells of (told to the court), the characters are the same, as are many of the details. But much is different as well. In the first account, that of the bandit, the criminal accepts culpability for the murder but refutes the charge of rape, saying that it was an act of mutual consent. The woman’s story affirms that the bandit attacked her, but indicates that she may have been the murderess. The dead man’s tale (told through a medium) claims rape and suicide. The only “impartial” witness, the woodcutter, weaves a story that intertwines elements of the other three, leaving the viewer wondering if he truly saw anything at all. One event, many narratives.

The Hindutva cases are a bit like that. So many issues arise, that an analysis would depend on who you are, and what questions you wish answered. And so this article does a “Rashomon” on the Hindutva cases – providing different narratives. The liberal narrative looks at the case broadly through the prism of free speech and democracy. It is unconcerned about the secular battle that is waged within. The secularists see only this battle, and their passion at this loss is in my opinion matched by analytical rigour. The less rigourous, though more exultant Sangh parivar offers its own narrative, where historic injustice is corrected in the “fair” hands of justice Verma.

I have tried, as much as is possible, to avoid taking ideological sides. This was toughest when labelling narratives. It is only in the interests of clarity that I have labelled those who stand for a Nehruvian model of secularism as “secularist”. Had L K Advani been writing this article, he would have labelled them “pseudosecularist”.6 Similarly, the labels “liberal”, “Sangh parivar” and “Hindutva” in themselves carry no meaning, and are only for conceptual clarity.

Unlike Rashomon, which has an inconclusive end,7 I conclude with my own

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analysis of the Hindutva cases, and of justice Verma himself.

The Liberal Narrative

As the nomenclature suggests, the Hindutva cases are seen primarily through the prism of secularism. But many (including, arguably justice Verma) do not see it that way at all. The Hindutva cases can also be seen to involve primarily the fundamental right to free speech. Seen this way, section 123 of the Representation of Peoples Act is an exception to free speech, and must be construed strictly. A related sub-narrative is viewing section 123 as an exception to the principle of democracy (which is part of the basic structure).8 As a method by which an electoral opinion of the people is rendered void, surely section 123 must be construed strictly.

Both these sub-narratives of free speech and democracy argue for the strict interpretation of section 123. Cluck-clucking politely, this narrative holds justice Verma’s views on Hindutva in minor distaste, but shrugs it of as incidental to the facts of the case. For lack of a better word, I broadly term this narrative the liberal narrative.

“I disagree with all that you say, but will defend onto death your right to say it”.9 Assuming that he understood Marathi, Voltaire the good liberal would have said something similar to Bal Thackeray and Manohar Joshi. All liberal societies hold free speech in high regard. In the Indian Constitution, article 19(1) (a) guarantees the fundamental right to free speech and expression.10 Article 19 (2) provides a few exceptions, on grounds of decency or morality, or public order,11 but as exceptions they must be construed strictly. In the Prabhoo case,12 counsel for the respondents Ram Jethmalani sought to challenge section 123 of the Representation of the People Act, 1951 as being in violation of free speech enshrined in article 19(1) (a). The Court responded by justifying sub-section (3) as falling under the “decency or morality” exception in article 19(2),13 and sub-section (3A) as falling under “public order”.

Apart from free speech, section 123 is also seen as an exception to democracy, which is part of the “basic structure” of the Constitution.14 One of the cardinal precepts of democracy is the respect

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accorded to the electoral verdict of the populace. Section 123 takes the extreme step of holding that in certain situations such a verdict is illegitimate, as the means adopted are fraudulent.

Thus both free speech advocates and democrats (the liberal narrative) view section 123 to be an exception to the principles of free speech and democracy. As an exception, it must be strictly construed.

Strictly Construing Section 123

Strict constructionists find little to criticise in justice Verma’s judgment. As Gary Jackobsohn puts it,15 justice Verma’s treatment of Bal Thackeray’s obviously communal statements as violative of section 123, but Manohar Joshi’s vaguer statement as not, seems fair from this position. Further, justice Verma’s argument that section 123 does not prevent use of religion per se is correct from this standpoint. Thus the word “Hindu” and “Hindutva” per se would not fall foul of section 123. For instance, Manohar Joshi’s statement that “the first Hindu state will be established in Maharashtra” is by itself not an appeal for votes on the ground of his religion.16 To quote justice Verma, the context suggests that it is “at best an expression of such a hope”.17

The liberal narrative is however critical of justice Verma’s justification of Hinduism and Hindutva representing a “way of life”, and therefore not violative of section 123.18 For liberals, the use of any religion per se

  • for instance, either Islam or Christianity
  • would not in itself qualify as a violation of section 123.
  • The liberal narrative would thus agree with justice Verma on all these points. They would agree with his decision on Manohar Joshi because of the importance of the context. They would also agree with his decision on “Hindutva” (though not for the reason that he gives). And critically, they would agree with his decision on Bal Thackeray for being in clear violation of section 123. The liberals are unconcerned about the larger fight between secularism and the force of communalism. For them the fundamental right of free speech, and the basic structure doctrine of democracy is paramount. Secularism is relevant in so far as it justifies the exception as per 19(2), and so there must be a strict construction of section 123. Justice Verma, in doing so, is broadly correct.

    Unfortunately, the liberal narrative ignores the fact that secularism as a doctrine is of no less importance than freedom of speech. In fact, as it has been declared basic structure (while free speech has not) it is on a higher pedestal, and on the same level as democracy. Thus the value of secularism is not just in the context of article 19(2), it is also an independent ground for interpreting section 123. It is this legal argument that forms the core of the secularist narrative.

    The Secularist Narrative

    As I pointed out in the previous section, the liberal strict constructionists of section 123 ignore the secular content of section 123. The narrative of the secularists on the other hand sees the Hindutva cases purely from this prism. Even the name given to the cases that deal with electoral malpractices, reflect this one-sided perspective.

    Secularists attack the Hindutva judgments on two separate grounds. They argue that the Hindutva judgments ignored secularism as “basic structure”, and the standards for secularism set in the S R Bommai case,19 which would have changed the strict construction given to section 123 and are aghast at justice Verma’s categorisation of “Hindutva” as a way of life. While most they secularists view this categorisation as a tactical surrender to communal forces, more informed secularists such as Ratna Kapoor and Brenda Crossman critique this because firstly it is unsupported by fact, and secondly it is unsupported by precedent.

    The secularists ground their understanding of secularism both through provisions of the Indian Constitution,20 and through Supreme Court judgments, notably the S R Bommai case.21 In the Indian Constitution itself two slightly divergent views of secularism emerge. Articles 14-16 guarantee formal equality, and are Westphalian in origin.22 Articles 25-29 go one step further and guarantee religious rights to individuals a la British multiculturalism. Both these fit into well understood notions of secularism, arising from classic liberal theory of a church-state divide. More controversial are articles 30 of the Indian Constitution, the directive principles of


    state policy, the lack of a uniform civil code,23 and legislations such as the Muslim Women (Protection of Rights on Divorce Act), 1986.24 These legal provisions codify what is a very different notion of secularism, one that is either “minority appeasement” or “minority protection”,25 and one which is closely linked to the rise of the Hindutva movement.

    Secularists such as Ratna Kapur and Brenda Crossman argue that these provisions entrench the substantive equality version of secularism in the Indian context.26 Thus all religions are not treated equally. Minority religions are preferentially treated to ensure that they are not sidelined from the mainstream. Pratap Bhanu Mehta articulates this preferential treatment with his notion of “principled distance”,27 wherein the state interferes in the religious on the basis of a clearly defined principle.28

    The secularist narrative places much importance on the S R Bommai judgment.29 As the most authoritative pronouncement on secularism, laid down by seven judges, secularists argue that the rules of precedent demand that it be the paradigm through which all future understandings of secularism be articulated.

    In the S R Bommai case, the court affirms the substantive equality argument on secularism. They hold that secularism is indeed a core feature (basic structure) of the Indian Constitution. Second, that unlike the western concept of a clinical separation of the church and the state, India instead provides respect to religion but confines it only to the religious sphere. In this limited religious sphere, the state should not interfere.30 Secularism is violated when the religious sphere intervenes in the secular sphere or vice versa. The S R Bommai ruling also takes a very pragmatic approach to secularism. It agrees with the tactical approach by deciding that the legislature is the most competent authority to decide what comes within the secular, and religious sphere.

    Secularists argue that had the test of the S R Bommai ruling been done in the Hindutva cases, it would have served two purposes. First, it would have ensured that section 123 was not strictly construed (as justice Verma did). Instead of being seen as an exception to free speech, section 123 would have been seen as an embodiment of the basic structure doctrine of secularism. In fact, justice Jeevan Reddy in the S R Bommai case does exactly this when he links the test applied in section 123 to his idea of secularism.31

    Second, if section 123 was to be expansively interpreted in light of the S R Bommai ruling how would this have affected the outcome? Manohar Joshi would not have been given the benefit of doubt. Speeches attacking minorities from a secular standpoint (the very essence of Hindutva) would not have been permitted, and Hindutva might have been differently characterised.

    Hindutva as a Way of Life

    The conclusion of justice Verma32 that Hindutva is a way of life was enthusiastically received by the Hindu right, who saw it as a constitutional legitimisation of their politics.33 Conversely, secularists saw it as a serious setback to their work, arguing that it undermined the basic structure doctrine of secularism, and was a tactical blunder, insomuch as it emboldened the forces of communalism.34

    But the two most persuasive legal arguments in the secularist narrative against holding Hindutva to be a way of life is that

  • (a) there is no precedent for this, and justice Verma wrongly relied upon precedent, and
  • (b) in fact, Hindutva is a political religion.
  • With regard to the lack of precedent argument, secularists point out that the cases that justice Verma relies upon to hold that Hindutva is a way of life actually pertain to Hinduism.35 This is not difficult to verify. In fact, even the quotations that justice Verma relies upon do not mention Hindutva.36 Instead, they hold “Hinduism” to be a way of life. Justice Verma then sums up, and makes the critical jump in paragraph 37 that the authorities he has referred to “indicate that 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”. He further holds that “the term Hindutva is related more to the way of life of the people in the subcontinent”.37 Even his own judgment does not bear this out.

    Second, it is highly debatable whether cases that refer to Hinduism in a family law context, can be used to assess the use of the word Hinduism in an electoral context. Naturally the word has very different connotations. It is ironic that though justice Verma emphasises the use of context in determining the usage of a word in the Hindutva cases,38 he does not apply this logic while understanding Hinduism. Third, secularists also point out that instead of relying on the statements of the originators of the Hindutva movement,39 justice Verma’s lone source on Hindutva is an obscure Muslim scholar,40 who is quoted out of context.41

    The word Hindutva first found utterance at the turn of the 20th century, its birth closely allied, and running parallel to the more inclusive Indian national movement. The writings of Veer Savarkar tell us that he viewed Hinduism and Hindutva as different, and that Hindutva was primarily a racial theory.42 Being Hindu was a clear prerequisite for such a race.43 But more crucially, in Mohammad Ali Jinnah’s twonation theory, Veer Savarkar’s Hindutva as “cultural nationalism” finds an exact parallel.44 Hindutva is as much linked to (or independent) of Hinduism the religion, as the two nation theory was to Islam the religion.

    The link between the two-nation theory and Hindutva also aids in understanding section 123 of the Representation of the People Act, 1951. The constitutional assembly debates show that the purpose of section 123 was precisely to prevent the kind of politics that the Muslim League indulged in, post partition.45 Just after independence, there was a very real fear that the Muslim league would polarise Muslim votes. But as per the secularist narrative, the Hindutva movement, in substance and style was a mirror image of the Muslim League movement. To exclude it from the ambit of section 123 is thus even more ironic.

    The Sangh Parivar Narrative

    ‘For Sufferance Is the Badge of All Our Tribe’ 46: Like Zionism, Hindutva as a 20th century politico-religious movement is premised on “suffering” and “oppression”.47 “Vindication” thus becomes the dominant theme of the Sangh parivar narrative on the Hindutva cases. Much misunderstood by the pseudo-secularists, justice Verma finally gives them justice.48

    The Sangh parivar position on the Hindutva cases is neither based on free

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    speech nor on democracy. In that sense they do not engage with the liberals (though they happen to be on the same side). Instead they see the Hindutva cases as being a vindication of “true secularism” as opposed to the “pseudo-secularism”49 that the secularists practice. Two broad themes in the Sangh parivar narrative emerge: (a) the Hindutva decision is a critique of the slanted secularism that has been practised so far, and (b) of Hindutva itself being vindicated.

    Critique of Pseudo-Secularism

    The argument that India does not practise formal equality, but minority appeasement is entrenched in the Sangh parivar psyche. Navratna Rajaram,50 for instance, traces the evolution of secularism, and its distortion in India. He shows the concept to be a device to carve out a sphere of autonomy for the individual in the face of the totalitarian and exclusivist claims of the church.51 “But in India during the last 50 years the word has become an umbrella to shield totalitarian and exclusivist ideologies; indeed it has become a weapon by which the evangelists of such ideologies have been pushing to the wall the plural tradition of our country, the tradition founded in the basic world-view of Hinduism”. 52

    The legal provisions that – to the Sangh parivar – embody this slant are article 30 of the Indian Constitution, the Directive Principles of State Policy, the lack of a uniform civil code,53 and legislations such as the Muslim Women (Protection of Rights on Divorce Act), 1986.54 They fuel the point that in India, secularism means minority appeasement. On rare occasions, the judiciary has sided with the Sangh parivar. For instance in Ismail Faruqui vs Union of India,55 justice Verma seems to have endorsed a concept of secularism that had its rationale in Hindu scriptures. Speaking for the majority, justice Verma justified a vision of secularism, ‘sarwa dharma sambhava’ (tolerance of all religions) that had its roots in the Yajur Veda, Atharva Veda and Rig Veda and Akbar’s Din Ilahi.

    The Hindutva cases are an extension of this kind of formal equality model of secularism. Arun Shourie can hardly hide his delight when he attempts to deconstruct

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    the anguish of the secularists at this decision.56 “The first feature which offended them was precisely that the court had treated candidates at par!”57 Thus, in the Sangh parivar narrative, the strict construction accorded to section 123 of the Representation of People Act means that airy-fairy “secular” judges do not bring in the phony idea of substantive secularism to use section 123 against Hindus.

    Instead, justice Verma restores the more universally accepted idea of formal equality that is enshrined in articles 14-16 of the Indian Constitution. Further, by holding that a speech attacking the nonsecular features of minorities from a secular standpoint does not violate section 123, he seems to accept the very strategy/ principle of Hindutva.

    Vindication of Hindutva

    This brings us to the controversial decision of justice Verma holding Hindutva to constitute a way of life. The politics of Hindutva got a fillip,58 and even the BJP manifesto saw this as a legitimisation of their brand of politics.59

    While most in the Sangh parivar do not embellish their euphoric narrative with legal argument, the ever-cautious Jagmohan mounts a spirited defence of justice Verma.60 He opines that the unanimous view expressed by the three judges regarding Hinduism and Hindutva are based upon the views expressed earlier by the Constitution bench of the Supreme Court in quite a few cases.61 Thus, according to him, not only is the judgment morally sound, it is also legally correct. As an exception, I must step into this narrative and point out that this is incorrect. The precedents that justice Verma relies upon pertains to Hinduism and not Hindutva,62 and is thus of no help in understanding the latter. Nonetheless, the Sangh parivar narrative was clearly enjoying its day in the legal sun. A sun as hot as the anger of the secularists.

    The Woodcutter’s Narrative

    In the film Rashomon, the woodcutter narrates his version of the story last. The woman, the bandit, and the woodcutter (through a séance) have narrated very conflicting versions of the event. Logically, the woodcutter at the end must be speaking the truth. After all, he has nothing to gain. However the woodcutter’s version intertwines a bit of all the previous three narratives. It cannot be the truth. In the event termed the Hindutva cases, I wish to play the role of the woodcutter. Appearing neutral, I piece together my own narrative that inevitably intertwines bits of the liberal, secularist and Sangh parivar narrative. Like the woodcutter, my own conclusion is not “objective”; it remains a narrative.

    To me the Hindutva cases revolve around two issues: (a) how section 123 of the Representation of the People Act, 1951 must be construed, and (b) whether Hindutva is a way of life.

    In attempting to construe section 123 three principles clash with each other:

    (i) the principle of free speech (a fundamental right), (ii) the principle of democracy (part of the basic structure), and

    (iii) the principle of secularism (part of the basic structure). Clearly section 123 is an exception to free speech, and for that reason must be construed narrowly. But the liberals also assume that it is an exception to democracy. Assuming democracy to mean “free and fair elections”, I believe that a violation of section 123 would result in unfair and corrupt practices. The result of appealing to religion would be an unfair election where minority candidates are disadvantaged. Thus in my opinion, section 123 must not be viewed as an exception to democracy and must not be construed strictly for this reason. With regard to the principle of secularism, justice Jeevan Reddy in the S R Bommai case clearly links section 123 with his standard for secularism. As the most authoritative pronouncement on secularism, precedent demands that the S R Bommai ruling not be ignored.

    We are thus left with two conflicting principles. The requirement that as an exception to free speech, section 123 must be narrowly construed; and the requirement that as an embodiment of “secularism”, it be construed with the broad interpretation given to secularism in the S R Bommai judgment. In such a situation where there is a clear conflict of principles, perhaps heirarchicising the two principles might help. Secularism is part of the basic structure or the core of the Indian Constitution, while free speech is merely a fundamental


    right, and is on a lower pedestal. Thus the to make our own deductions. Every time I watch electorates was rejected in framing the Constitu
    need to read section 123 broadly out the film, I come away with a slightly different opinion of what transpired in the woods. But not tion and secularism is the creed adopted in the constitutional scheme, are relevant considera
    weighs the need to read it strictly. It is thus knowing remains a source of fascination, not one tions to treat this as a reasonable restriction on
    my opinion that justice Verma was incor of frustration, and therein lies Kurosawa’s greatest achievement”. Cf http://movie-reviews.colos the freedom of speech and expression, for maintaining the standard of behaviour required in
    rect in construing section 123 strictly. As regards his pronouncement that 8 (viewed on December 17, 2005). “Democracy” was first held to be part of the basic conformity with the decency and propriety of societal norms”. 14 Supra No 8.
    Hindutva is a way of life, the secularists are structure by chief justice Sikri and justices Hegde, 15 Gary Jeffrey Jacobsohn, The Wheel of Law: India’s
    absolutely correct that justice Verma in- Mukherjea and Jaganmohan Reddy in His Holiness Kesavananda Bharati Sripadagalavaru vs State of Secularism in Comparative Constitutional Context 192 (Oxford University Press, New Delhi, 2005).
    correctly applied precedent. In fact, even the precedent he quotes sheds light on Kerala and Another, 1973 (4) SCC 637. This was affirmed by justice H R Khanna in Indira Nehru Gandhi vs Raj Narain, 1975 (Supp) SCC 1. 16 Paragraph 62 of Manohar Joshi vs Nitin Bhaurao Patil, AIR (1996) 1 SCC 176 at 204. 17 Id.
    Hinduism, not Hindutva. Thus he should not have held Hindutva to be merely a 9 This statement by Voltaire is seen as embodying the classic liberal commitment to free speech. Voltaire was often an outspoken critic of religious 18 Supra No 15. 19 S R Bommai vs Union of India, AIR 1994 SC 1918.
    way of life. intolerance and persecution. In 1814 a group of “ultras” (right-wing religious group, unconnected 20 Constitution wise articles 14,15,16 of the Indian Constitution provide equality to all (including in
    In the beginning of this article, I derided to the Sangh parivar) stole Voltaire’s remains and public employment) irrespective of religion, arti
    those legal academics who sought to look dumped them in a garbage heap. See further http:// cle 25 provides the freedom to follow one’s religion, article 26 provides the freedom to create religious
    at the Hindutva cases not as an event, but (Visited on December 14, 2005). institutions, article 28 permits the protection of re
    as a mere legal problem. On reflection, in my own narrative, perhaps I have 10 Article 19(1)(a) of the Indian Constitution reads “Protection of certain rights regarding freedom of speech, etc – (1) All citizens shall have the right ligious culture, and article 30 provides special rights to minorities in the field of education. Further, the Directive Principles of State Policy ex
    succumbed to this. I only hope that in attempting to fairly present viewpoints other than mine, I have, in my own small way, paid tribute to Rashomon. 11 (a) to freedom of speech and expression”. Article 19(2) of the Indian Constitution reads “Nothing in sub-clause (a) of clause (1) shall affect the operation of any existing law, or prevent the state from making any law, insofar as such law imposes reasonable restrictions on the exercise of the right conferred by the said sub-clause pound on domains ranging from the controversial (Uniform Civil Code) to the pedantic (ban on cow slaughter). Further, legislation into the religious sphere has also been sporadic – for instance, why was the Hindu personal law codified and not the Muslim personal law. The insertion of the word “secular” in the preamble is a mere afterthought.
    in the interests of the sovereignty and integrity of 21 Supra No 19.
    Notes India, the security of the state, friendly relations 22 The Treaty of Westphalia, 1648 ended the thirty
    with foreign states, public order, decency or mo year protestant-catholic wars in Europe, and is
    1 There were 13 cases in all. The most important of rality, or in relation to contempt of court, defama widely credited with the introduction of the modern
    them were Dr Ramesh Yeshwant Prabhoo vs Prab tion or incitement to an offence”. nation state. Another key feature was the principle
    2 hakar K Kunte, AIR (1996) 1 SCC 130; Manohar Joshi vs Nitin Bhaurao Patil, AIR (1996) 1 SCC 176; and Ramchandra K Kapse vs Haribansh R Singh, (1996) 1 SCC 206. 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 reli 12 13 Dr Ramesh Yeshwant Prabhoo vs Prabhakar K Kunte, AIR (1996) 1 SCC 130. In paragraphs 28-30 of Dr Ramesh Yeshwant Prabhoo vs Prabhakar K Kunte, AIR (1996) 1 SCC 130, Justice Verma points out how decency and morality does not have a mere sexual connotation but is wider in ambit. In paragraph 30, he further points out that “the fact that the scheme of separate 23 24 that the sovereign of the territory will decide the state religion, and not the pope, i e, the church and the state were formally separated. See article 44 of the Indian Constitution, see also Sarla Mudgal vs Union of India (1995), 3 SCC 635. See also Mohd Ahmed Khan vs Shah Bano Begum, AIR 1985 SC 945; Danial Latifi vs Union of India, AIR 2001 SC 3958.
    gion…”. The corrupt practice in Section 123(3A)
    that candidate or for prejudicially affecting the
    election of any candidate”. SUMMER SCHOOL Four Weeks / 30 Days
    3 Dr Ramesh Yeshwant Prabhoo vs Prabhakar K Kunte, AIR (1996) 1 SCC 130. (U.G.C. Approved)
    4 Manohar Joshi vs Nitin Bhaurao Patil, AIR (1996) 1 SCC 176 at 204. 5 Supra No 3. Summer School on Trade, Globalisation and Development under UNCTAD India Programme on Initiative for Enhancing Trade Related Research will be
    6 “Pseudo-secularism”, popularised by Hindutva’s organized by the Department of Economics, Mizoram University, Aizawl
    (ex) pin-up boy L K Advani is meant to describe the during 6th May 2008 - 2nd June 2008 at Aizawl.
    allegedly Hindu hating, minority appeasing secu
    larism practised in India. “This problem of genuine secularism and pseudo-secularism has become sharp in the post-1950 period when the Congress Seat limit is 25. Among the applicants preference will be given to Teachers of International Economics, Researchers in University and Colleges in North
    was dominated by Jawaharlal Nehru”, Advani has East India including Sikkim. For selected applicants TA/DA etc will be given
    stated. “Is it possible for any western country to as per UGC rules. Registration fee is Rs. 500/- (Rupees five hundred only).
    have an establishment which has an innate allergy to Christianity? It is only in our country that the Last date for receiving application is 15th April 2008. Send application to-
    political elite are allergic to Hinduism which is the
    dominant religion.” Cf. Mailing Address : Prof. Lianzela,
    thehindu/2003/07/14/stories/ 2003071405340100. Department of Economics
    htm (viewed on December 16, 2005). 7 A film review of Rashomon by famed critic James Berardinelli aptly sums up the brilliance of the Mizoram University AIZAWL: TANHRIL - 796009
    inconclusive ending. “In the end, we are left rec
    ognising only one thing: that there is no such thing E-mail :
    as an objective truth. It is a grail to be sought after,
    but which will never be found, only approximated. Kurosawa’s most brilliant move in Rashomon is For more details visit -
    never to reveal what really happened. We are left
    76 march 8, 2008 Economic & Political Weekly
    consists of “the promotion of, or attempt to pro-mote, feelings of enmity or hatred between differ-ent classes of the citizens on grounds of religion, race, caste, community, or language by a candi-date or his agent or any other person with the consent of a candidate or his election agent for the furtherance of the prospects of the election of AND DEPARTMENT OF ECONOMICS, MIZORAM UNIVERSITY

    25 Depending on which party or ideology that you belong to.

    26 Brenda Cossman and Ratna Kapur, Secularism’s Last Sigh? Hindutva and the (Mis)Rule of Law 33 (Oxford University Press, New Delhi, 1998).

    27 For instance, the codification of Hindu law was because of the principle that wives and daughters are being treated unfairly. The same may not extend to Muslims, because the principle that minority practices must be protected overcomes the need to prevent unfair treatment of women in that community.

    28 But it is arguable whether these special protections actually guarantee substantive equality. The other example of substantive equality in the Indian Constitution (reservations for dalits) is dealt with very differently. To me, personally, the tactical argument advanced by justice Variava in T M A Pai Foundation case is more attractive. The Sangh parivar narrative also rejects this substantive equality argument (more about them later).

    29 Supra No 19.

    30 Where their approach differs however, is what in their view constitutes the “unsecular” (my word, not theirs) acts of the BJP state governments. Justice Sawant points out that by certain communal acts, the state governments interfered in the religious rights of others. Since “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”, the acts of the BJP governments were in violation of secularism. Thus, as per Justice Sawant, the BJP governments allowed the secular sphere to enter the religious sphere. Justice Jeevan Reddy has a subtly different reasoning. For justice Reddy, the role of the state polity comes within the secular sphere. Political parties cannot become religious. By doing so they violate the “Indian” church-state divide. Reddy points out that by themselves becoming religious, these BJP states allowed religion to creep into the secular sphere. It is more than semantics. Unlike justice Sawant, justice Reddy believes that to violate the principle of secularism, the BJP government need not have threatened the religious rights of others. That they allowed their agenda to be influenced by religion is enough to violate secularism. Justice Reddy also makes the point that not only do the religious and secular operate in different spheres in India, but that the determinant of this is the secular state. In this regard, I think justice Reddy

    goes one step beyond justice Sawant.

    31 Supra No 19.

    32 For lack of space, I have not quoted extensively from the judgment in the main body. I hope to remedy this vide footnote. In paragraph 35 of Dr Ramesh Yeshwant Prabhoo vs Prabhakar K Kunte, AIR (1996) 1 SCC 130, justice Verma holds that “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.”

    33 The Hindutva Judgments: The Distance That Remains, articles/19960424.htm (Viewed on December 19, 2005); Jagmohan, ‘Hinduism and Hindutva: What Supreme Court Says?’, Hindustan Times, January 8, 1996; The BJP Manifesto, chap2.htm (Viewed on Decmeber 20, 2005).

    34 I personally do not accept this argument. The role of the Supreme Court is not to tactically counter the forces of communalism, but ensure that they are circumscribed through constitutional principles.

    35 Brenda Cossman and Ratna Kapur, Secularism’s Last Sigh? Hindutva and the (Mis)Rule of Law 33 (Oxford University Press, New Delhi, 1998).

    36 The meaning of “Hindutva” and “Hindu” is dealt with in paragraphs 32 to 45 of Dr Ramesh Yeshwant Prabhoo vs Prabhakar K Kunte, AIR (1996) 1 SCC 130. The cases which justice Verma relies upon are Sastri Yagnapurushdasji vs Muldas Bhudaddas Vaishya, (1966) 3 SCR 242; CWT vs R Sridharan, 1976 SCR 478; Kultar Singh vs Mukhtiar Singh, (1964) 7 SCR 790. These cases, including the authorities they cite deal with the word “Hindu”. Even the “word “Hindutva” is not mentioned, let alone its meaning defined.

    37 The full text of paragraph 37 is as follows. “These Constitution Bench decisions, after a detailed discussion, indicate that 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 subcontinent. It is difficult to appreciate how in the face of these decisions, the term Hindutva or Hinduism 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 sub-section (3) and/ or (3A) of Section 123 of the RP Act.”

    38 In paragraph 33 of Dr Ramesh Yeshwant Prabhoo vs Prabhakar K Kunte, AIR (1996) 1 SCC 130 at 154.

    39 Such as Golwalkar and Veer Savarkar.

    40 Maulana Wahiduddin Khan, Indian Muslims – The Need for a Positive Outlook (1994) quoted in paragraph 39 of Dr Ramesh Yeshwant Prabhoo vs Prabhakar K Kunte, AIR (1996) 1 SCC 130.

    41 The Maulana states “The strategy worked out to solve the minorities problem was, although differently worded that of Hindutva or Indianisation. This strategy, briefly stated, aims at developing a uniform culture by obliterating the differences between all of the cultures coexisting in the country. This was felt to be the way to communal harmony and national unity. It was thought that this would put an end once and for all to the minorities problem.”

    42 V D Savarkar, Hindutva: Who Is a Hindu? (1929) (4th Edition, S P Gokhale 1949), Cf Brenda Cossman and Ratna Kapur, Secularism’s Last Sigh? Hindutva and the (Mis)Rule of Law 35 (Oxford University Press, New Delhi, 1998).

    43 Ibid. 44 Savarkar and M A Jinnah’s idea of cultural nationalism is almost identical. Savarkar wrote “We Hindus are a nation by ourselves because religious, racial, cultural and historical affinities bind us intimately into a homogenous nation. This is the concept of “cultural nationalism” as opposed to “territorial nationalism”, which the RSS founder M S Golwalkar derided in his Bunch of Thoughts (Chapter X). Everyone born in India does not belong to “the nation”. He must also accept the credo of Hindutva, “cultural nationalism”. Cf A G Noorani, Savarkar and Gandhi, http://www.frontlineonnet. com/fl2006/stories/20030328003603400.htm (Viewed on December 13, 2005). 45 Paragraph 14 of Dr Ramesh Yeshwant Prabhoo vs Prabhakar K Kunte, AIR (1996) 1 SCC 130.

    46 William Shakespeare, Merchant of Venice, Act I. Scene 3. Shylock, the Jewish moneylender complains “Signior Antonio, many a time and oft; In the Rialto you have rated me; About my moneys and my usances; Still have I borne it with a patient shrug, For suff’rance is the badge of all our tribe”.

    47 An understanding of Hindutva would be incomplete without understanding Israel and Zionism. Hindutva leaders find much to admire in Israel – from their military character, reprisals against Palestinians and terrorists, their cultural regeneration and state Jewish religion. During the NDA rule in India, ties between Israel and India flourished. See further ‘Can India Learn from Israel’s Policy of Giving Mandatory Military Training to Its Jewish Youth?’, http://newsonterror. com/military.html (Viewed on December 16, 2005); ‘The Special Role of Israel and India in Fighting Islamic Terrorism’, (Viewed on December 16, 2005); Vijay Prashad, ‘Hindutva and Zionism: Comprador States of Pentagon, Inc’, content/2001-08/08prashad.htm (Viewed on December 16, 2005).

    48 Even the BJP election manifesto mentions this judgment. “Every effort to characterise Hindutva as a sectarian or exclusive idea has failed as the people of India have repeatedly rejected such a view and the Supreme Court, too, finally endorsed the true meaning and content of Hindutva as being consistent with the true meaning and definition of secularism. In fact, Hindutva accepts as sacred all forms of belief and worship. The evolution of Hindutva in politics is the antidote to the creation of vote banks and appeasement of sectional interests. Hindutva means justice for all.” Cf (Viewed on December 18, 2005).

    49 Supra No 6. 50 Dr Navratna Rajaram as an ideologue commands much respect in the Sangh parivar. See for, e g, Sudhakar Raje, The Imaginary Aryan, http://www. (Viewed on December 19, 2005). 51 Dr Rajaram points out that in Europe the church had asserted and secured the right to lay down the law for all aspects of life. To liberate themselves from this suffocating stranglehold intellectuals and some rulers in Europe constructed the concept of secularism. They argued that while the church may regulate what was “God’s”, it ought not to interfere with what was Ceaser’s. Cf, Arun Shourie, ‘The Hindutva Judgments: The Distance That Remains’, http://arunshourie.voiceofdharma. com /articles/19960424.htm. 52 Navratna Rajaram, Secularism (Voice of India, 1995). Cf, Arun Shourie, ‘The Hindutva Judgments: The Distance That Remains’, on December 14, 2005). 53 See article 44 of the Indian Constitution. See also Sarla Mudgal vs Union of India (1995) 3 SCC 635. 54 See also Mohd Ahmed Khan vs Shah Bano Begum, AIR 1985 SC 945; Danial Latifi vs Union of India, AIR 2001 SC 3958.

    55 1994 6 (SCC) 360.

    56 Arun Shourie, ‘The Hindutva Judgments: The Distance That Remains’, (Viewed on December 19, 2005).

    57 Arun Shourie goes on to add that “On the reasoning of secularists, when a Muslim candidate says, or when a candidate from among the forces of socialchange says, Islam is in danger, get together, there is nothing wrong as it is but natural for a minority to feel insecure; but when a Hindu candidate says, Get together, Hinduism is in danger, why that is terrible, he is being communal, he is indulging in a corrupt electoral practice, his election ought to be struck down”. Cf, Id.

    58 Navratna Rajaram points out that “these new judgments of the Supreme Court do recognise that Hinduism has from time immemorial been instilling those principles of plurality and tolerance and compassion” cf, Navratna Rajaram, Secularism (Voice of India, 1995) cf, Arun Shourie, ‘The Hindutva Judgments: The Distance That Remains’, articles/19960424.htm (Viewed on December 14, 2005).

    59 on December 18, 2005).

    60 Jagmohan, ‘Hinduism and Hindutva: What Supreme Court Says?’, Hindustan Times, January 8, 1996.

    61 “For example, in Shastri Yagna Purushadji case (1966(3) SCR 242) and in Sridharan case (1976 SCR 478), the Constitution Bench took the same view and quoted practically the same authorities – Monier Wiliam, Dr Radhakrishnan, Encyclopaedia Britannica, etc – as has been done by the Bench headed by justice J S Verma”. Cf, Id.

    62 Supra No 36.

    Economic & Political Weekly

    march 8, 2008

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