Hinduism and Hindutva: What Supreme Court says?
By Jagmohan
(Hindustan Times, January 8, 1996 )
Ever since the Supreme Court delivered its judgment, on Dec.11, 1995, setting aside the decision of the Bombay High Court which had earlier held the election of the Maharashtra Chief Minister, Mr. Manohar Joshi, void, a number of articles have been appearing in the Press criticising the verdict in one form or the other. It is unfortunate that fault is being found with a clear, rational, fair, incisive and sound enunciation of law, constitution and culture of India by the apex court, and a false picture is being painted by some of the country’s ‘columnists’ whose bias make them see what is not there in the judgment.
There is not one but seven unanimous judgments in thirteen cases. Three of them encompass the entire range and they are
(i) Dr. R. Prabhoo vs K. Kunte;
(ii) Manohar Joshi vs Patil; and
(iii) R. Kapse vs H. Singh. In the first judgment, the appeal of Dr. Prabhoo has been rejected and he has been held guilty of using religion for securing electoral gains. Bal Thackeray, too, has been held guilty of corrupt practice under the election law. In the second and third judgments, the findings of the Bombay High Court have been overturned, and the elections of Manohar Joshi and Ram Kapse held valid. Four clear enunciations of election law emerge from these judgments. First, “the word ‘Hinduism’ by itself does not invariably mean Hindu religion and it is the context and manner of its use which is material”. Secondly, “a mere statement that the first Hindu State will be established in Maharashtra is by itself not an appeal for votes on the ground of his (Manohar Joshi’s) religion, but the expresssion, at best, of such a hope.”
Thirdly, if corrupt practices are sought to be proved on the basis of utterances of persons other than the candidate and his election agents, then it has also to be proved that the election results have been materially affected by such utterances. Fourthly, a person who is not a candidate has an independent right to prove that he is not guilty of corrupt practices. The third and fourth enunciations merely correct the legal omissions and are not subject-matter of much controversy. It is against the first and second enunciations that harsh criticism is being levelled. For example, in an article appearing in two instalments, in a national daily, Justice J.S. Verma has been specially singled out and berated and his enunciation rated lower than that of “an essay of an undergraduate in modern Indian history”. All such criticism is wholly unmerited and speaks, as would be shown hereinafter, more of the criticism than of the unanimous verdict of the three-judges Bench which has been arrived at not in any mood of ‘passionate intensity’ but on legal and dispassionate considerations. Ragarding the first enunciation, the Supreme Court has merely stated that, while determining the meaning of Hindutva in a particular text, the Court should be guided by the context and the manner of its use. What is wrong with this plain and simple enunciation? The three-Judge Bench headed by Justice J.S. Verma has said nothing which is not justified or which is at variance with the previous stand or verdicts of the apex court.
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. For example, in Shastri Yagna Purushadji case (1966(3) SCR 242) and in the 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.
Going by the judicial precedents, Justice Verma’s Bench has rightly observed: “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 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 subsections (3) and/or (3A) of section 123 of the Representation of the People Act.
In conclusion, the Bench reiterates: “It is 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 Hindu religion as opposed to other religions or that the use of the word Hindutva or Hinduism per se depicts an attitude hostile to all persons practising any religion other than the Hindu religion… and it may well be that these words are used in a speech to emphasise the way of life of the Indian people and the Indian cultural ethos…There is no such presumption permissible in law contrary ot the several Constitution Bench decisions.”
Clearly, what J.S. Verma’s Bench has ruled is so sound, fair and consistent with the previous decisions of the Supreme Court that only a jaundiced eye can find fault with it.
To all those commentators for whom it has become a sort of fashion to denounce Hinduism without studying in depth its positive and ennobling features, I would pose a question. Suppose, as a candidate for an election or otherwise, I say that I am a true follower of true Hinduism which, in my view, is nothing but a form of spiritual secularism; which believes that God/Truth can be reached through different routes and by diverse means; which adheres to no fixed dogma; which is based upon principles and not on persons; which continuously endeavours to enlarge the aperture of mind to secure better and better insight and to comprehend Reality in greater and greater depth; which assigns the same spark of divinity to every individual; which treats the spirit of Ram Rajya, that is, the spirit of establishing a fair and just order by fair and just means, as a guiding star for the polity and administration of the State; which practices and propagates that ‘Jiva is Shiva’, that is, in the service of the living creatures lies the service of the Creator; which is toleran and appreciative of other systems of belief and considers them branches of the same tree; then, which constitutional provision, which constitutional value and in which part of our constitutional scheme do I violate and in what way do I damage the foundational planks of our constitutional edifice or harm the principles of secularism, socialism, democracy or republicanism?
Clearly, the answer to the above question is: none. I do not undermine any of the objectives of our Constitution.
On the other hand, I help in attainment of these abjectives by providing spiritual underpinnings to them. Unfortunately, it is not being realised in our country that no seed, howsoever potent, can strike roots in dry and dreary land; and no plant, how so evergreen, can survive if the environment around it gets polluted. Every institution, every part of our constitutional scheme, has a body and a soul, a structure and an underlying spirit. In the absence of a congenial atmosphere, the structure remains, the spirit has died; the bones exist, the soul has departed.
And, when in an inspirational vacuum, we are artificially attemting to “give unto ‘Caesar’ things that are ‘Caesar’s and to ‘God’ things that are ‘God’s’ “, we are doing nothing but corrupting both ‘Caesar’ and the ‘God’ and entrusting our maladies for cure, not to the surgeons, but to the butchers. Without spiritual underpinnings, the country’s constitutional goals have become unattainable and its institutions are tottering. The country is up to its neck in debt. To foreign creditors alone, it has to repay about $99 billion.
Politics is increasingly coming under the sway of criminals and the corrupt. India’s intellect is getting more and more disintegrated. Her emotions are being daily debased by the beams from sky. She is being virtually robbed by new agents of new imperialism and pushed, to use the words of T.S. Eliot, “Father from God and nearer to dust”. And in “the kingdom of the deaf”, to which the country is being increasingly reduced, the common man cries in vain: where is truth? Where is justice? And where is the great India which every leader promised to build at the dawn of independence?
The fundamental challenge that the country faces today is how to provide a healthy soil and a healthy climate in which the seeds of her constitution can get embedded deep into her psyche and flower into genuine articles of faith. And this challenge can be met mainly by redefining her cultural heritage and by reconstructing the Hindu thought and by washing out the mud and muck that her culture and religion have accumulated in the course of its long march of 5000 years.
The pure has to be separated from the fake and profound from the profane. The gems have to be picked up and the stones thrown away. Only a regenrated culture and re-awakened Hinduism can answer the country’s manifold fields. The need for re-invigoration of Hinduism, which has been exposed to ravages of a vast span of history, is obvious. In fact, Hinduism itself recognises that change and dynamism are parts of life and of cosmic reality. It believes that the universe is continuously changing. It has its own creative process, its own self-generating flux.
One dynamic equilibrium is continuously giving way to another dynamic equilibrium. It is time we restored the long dynamic equilibrium of Hinduism, rejuvenated it and used it to carve out a new style of social and cultural life, a new design for our polity and administration. A fresh constructive and creative impulse, therefore, needs to be imparted to Hinduism so that it can bring on the scene a new Hindu, a Catholic, compassionate and contemplative Hindu with a clean conscience, a Hindu who cherishes the positive values of our culture, of ‘tyaga’ and ‘tapasya’, of ‘satyam’, ‘shivam’ and ‘sundaram’, and is ever-willing to synthesize them, in the highest tradition of Hindu thought of ‘moving from a lower level of truth to a higher level of truth’, with new knowledge and new perceptions that have since become available to mankind.
It is unfortunate that some of the arm-chair, ‘one-stance’, columnists are attacking the Supreme Court judgment, instead of advocating reforms or religion and culture which can provide substance to our constitutional principles and values and make India really mighty in thoughts, mighty in deeds and mighty in service to humanity.