THE HINDUTVA JUDGEMENTS : THE DISTANCE THAT REMAINS
A weekly column by Shri Arun Shourie
April 24th, 1996

In holding that not all references to religion in election speeches necessarily amount to corrupt electoral practices; that it is the soliciting of votes on the ground of the religion of the candidate or that of his opponent which is a corrupt electoral practice; that statements made by others do not have the same effect as those made by a candidate himself -- in all this, as we saw, the Supreme Court has merely reiterated what the the law itself says and what the Supreme Court has itself held on previous occasions. What then accounted for the fury of the secularists ?

The first feature which offended them was precisely that the Court had treated candidates at par ! On the reasoning of secularists, when a Muslim candidate says, or when a candidate from among the forces of social-change 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. When a Muslim candidate says, Get together and bend this government to concede X,Y,Z, in the reckoning of secularists he is just asking for amelioration; but when a Hindu candidate says, "Get together so that governments do not bend to these communalists and concede X,Y,Z,he is being communal and fomenting religious bigotry. The Supreme Court put the two at par: as asking for something -- say, a RS 500 crore bank only for non-Hindus of the kind the Prime Minister announced he was setting up -- is not a corrupt electoral practice, opposing it is not a corrupt electoral practice either; as saying that Islam ( or Urdu, or Tamil ) is in danger is not a corrupt practice, saying Hinduism ( or Sanskrit ) is in danger is not a corrupt practice. That seems obvious enough. But just as obviously the secularists are not able to stomach it : for a fundamental premise of their verbal assault has been that their has to be an imbalance in favour of non- Hindus, of Muslims in particular.

The second sin of the judgment for them arose from the fact that the Court accepted, indeed adopted in toto the definition of Hindu, of Hindutva which the RSS and the BJP have been maintaining is what they have meant whenever they have used these expressions. There are two different reasons on account of which this caused such offense among secularists. One is of course that the Court had seen fit to endorse the construction which the RSS and BJP have put on the words, that was anathema in itself. But as repugnant if not more so was the fact that in doing so the Court had adopted a description which is complimentary to Hinduism : Hindutva, Hindu, these words signify a culture of tolerance, a universalism, the Court had held. The Court had seen fit to treat the words as a compendium of virtues, complained the Marxist intellectual in Hyderabad. Now, that is of course unpardonable. For the secularist Hindu, Hindutva etc. signify the dustbin, the compendium of all that is shameful, and much that is positively evil. In this the secularist combines in himself two streams -- the Macaulay-missionary stream and the Marxist one. And here was the Court affirming the opposite ! The very Court whose verdicts the secularists were accusing the RSS- BJP combine of not heeding ! Naturally the poor fellows were fuming.

And that is precisely why the RSS and BJP proclaimed vindication. Of course they were right in that their description of these words had been accepted by the Supreme Court. But I confess to feeling just about half satisfied. The Court held that the words Hindu, Hindutvaetc. Refer to a culture, to a territorial region -- the one around and beyond the Sindhu, the Indus that is. It declared that the words are not to be taken to refer to religion in the conventional sense. The words are cultural, geographical, historical -- in a word everything except words that refer to the religion you and I, the vast majority of our countrymen practice. In the Court's view what we practice and have faith in is not a religion at all. It is so diverse. It does not have one book, it does not have one prophet, nor one over- arching Church as a religion has. Therefore it is not a religion.

The first point of course is that this is a circular way of proceeding. First religion is defined as that thing which has one book, one prophet, one Church etc., and then, as Hinduism does not have these, it is declared not to be a religion at all. But why should religion be defined in this restrictive way ? Why should a system of beliefs and practices which does not have one book, one prophet, one Church, a system which has as one of its central features plurality, a system in which the ultimate referent is not a book or an intermediary like the Church but one's inner, direct experience not be regarded as a species of religion too?

The other point is that this way of defining Hindu etc. is to define the thing out of existence. The Court quotes with approval what an earlier Bench of the Supreme Court had held. In the Commissioner of Wealth Tax, Madras and others Vs Late R. Sridharan, 1976, the Court, starting from the position that it is difficult to define the term 'Hindu' with precision, had declared that Hindu may embrace a non-Hindu religion without ceasing to be a Hindu. That declaration must have provided succor to some tax-payer or claimant to an estate, it may have provided an acceptable defence to some election petitioners in the cases at hand. But I find that sort of a formulation deeply flawed. It calls to mind the sort of thing that missionaries and their allies among Indologists used to say -- O' what you people have is not a religion at all; here, let us give you a real religion. The formulation is also evidence of our state -- namely, that the only way in which references to Hinduism in election speeches, say, can be defended is by defining Hinduism out of existence.

The RSS, BJP etc. of course have reason to feel gratified that their description of Hindu,Hindutva etc. has been accepted. But that way of describing our religion and traditions -- even by them -- has itself been a reaction. It has been a reaction to the allegations that the religion is narrow-minded, bigoted, iniquitous etc., a reaction to the allegations, that is, which were put out by missionaries and their allies in the 19th century and which have been so assiduously regurgitated by secularists over the last few decades. That formulation was also a reaction to the way our electoral laws were being interpreted by the courts. That sort of interpretation in turn was a result of the temper of the times, a temper in which propriety consisted in internalising every calumny about Hinduism. It can be small satisfaction that a formulation which came to be put out as a defensive reaction is now to be the official definition of the faith -- a definition of the faith, that is, by which it is not a faith at all.

I certainly do not want to belittle the advance. That the highest Court in the land has at last put references in election speeches to Hinduism at par with those to other religions is a major advance. It is also an index of the extent to which the very air is changing. As I mentioned, these two judgements are the seventh and eighth judgements respectively in an entire series. All of them separately and together vindicate the critique of pseudo-secularism which the RSS and others have been advancing. Apart from the facts which were before the Court, apart from the cogency of the arguments which must have been put forward, it is the realisation that if the Hindus continue to be pushed to the wall they will react which has made all the difference. These are in a deep sense post Ayodhya judgements.

But the Hindutva judgements also show that there is a good deal of distance to travel as yet. The Court itself did not seem to be fully reconciled to the definition of Hindu, Hindutva etc. which it endorsed. Recall what it said in its judgement in the Manohar Joshi case. In urging that the election of Joshi should be set aside as he had used religion to solicit votes, his opponent had cited his statement, Maharashtra shall be the first Hindu state in the country. The Court rejected the submission, and held, In our opinion a mere statement that the first Hindu state shall be established in Maharashtra is by itself not an appeal for votes on the ground of his religion but the expression, at best, of such a hope -- that conclusion, as I said, is the index of the changed circumstance, for a change the benefit of doubt was being given to the person who expressed that sort of a hope; it also shows how tenuous such things are -- for another set of judges could just as well have latched on to this very statement as proof that the candidate was appealing to the voters to help him establish Hindu Rashtra and what not. But it is what the Court proceeded to say which shows the distance that has to be traveled.

However despicable be such a statement, the Court says, it cannot be said to amount to an appeal for votes on the ground of his religion. Assuming that the making of such a statement in the speech of the appelant at that meeting is proved, we cannot hold that it constitutes the corrupt practice either under sub- section (3) or sub-section (3A) of Section 123, even though we would express our disdain at the entertaining of such a thought or such a stance in a political leader of any shade in the country.

As the word Hindu is not to be understood in terms of narrow-minded religion, as Hindutva, Hinduism are just cultural, territorial, historical concepts referring to a broad- minded, tolerant, catholic, inclusive tradition, as Hinduism is merely that compendium of virtues" , to recall the words from Hyderabad, how come it became despicable to say that Maharashtra shall be the first Hindu state, by what reasoning did the expression merit the disdain of the Supreme Court ?

Nor is this just a matter of a little inconsistency. For there is the other side to saying that Hindu, Hinduism etc. refer to compendia of virtues. In our discourse, even in earlier judgements of the Supreme Court itself only the Hindus are told to abide by these excellent norms. The homilies about being tolerant, broad-minded are addressed only to them -- one need go no further for ready examples of this than the pronouncements of the Supreme Court in response to the Presidential Reference on Ayodhya. This way of looking at things equates the arsonist with the structure he is out to set on fire.

It is Hinduism as conventionally understood, as the set of beliefs and practices, as the way of life of the vast majority of the people of this land which is under threat. It has been the butt of secularist scorn and scheming, it is threatened by the way the State is being made to bend before the controllers of Muslim votes, by the way it is being rendered impotent before terrorists etc. -- the condition of the refugees in Jammu is a vivid illustration of the threat and its consequences. Secularism itself has been converted into an instrument of assault against the way of life which the Court lauds so eloquently. In his excellent little book, Secularism,( Voice Of India, 1995 ) Navratna Rajaram shows how the concept has been stood on its head, and what consequences it now spells for us and our society.

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. As Rajaram shows the concept was a device to carve out a sphere of autonomy for the individual in the face of the totalitarian and exclusivist claims of the Church. But in India during the last fifty 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. These new judgements of the Supreme Court do recognise that Hinduism has from time immemorial been instilling those principles of plurality and tolerance and compassion. But they do not reverse the standard habit of hurling these principles at the Hindus only.

Thereby on the one hand the judgements leave the assaulters free to continue pushing that tradition further to the wall and on the other they thereby leave open the prospect of the reaction among Hindus taking an even stronger form than it already has. But perhaps one should not expect the courts to go all the way all of a sudden. The change in the atmosphere has brought us this far -- that instead of the calumnies which have been stuck on to it by secularists, the Court is associating lofty ideals with Hinduism. Further change in the atmosphere will take us the rest of the way.

What the Prime Minister and his colleagues have been doing in the run-up to the elections shows both -- the distance we have to travel, and also how difficult it is, in the light of the judgements, to regulate misuse merely by law. The Court held -- and necessarily so -- that the speeches, documents, videos etc. which may be made the bases for challenging the election of a candidate must be shown to record or depict something the candidate etc. have said during the election campaign -- that is, from the date the election was notified to the close of polling. That is as it has to be, no doubt. But there is also no doubt that it leaves the person or his party free to use the appeals of caste, religion, language etc. up to the day elections are notified, and then rely on the associations which he has already formed in the minds of the voters to deliver the votes. Just see what the Prime Minister and his colleagues have been doing in the last few months. They have been going around genuflecting at every dargah, they have been going about promising salaries to Imams of mosques, Sitaram Kesari has been promising reservations to Muslims. The Prime Minister has been holding meetings with Ulema and the rest as the representatives of Muslims as a religious group, and he has been giving assurances to them as representatives of a religious community. There can be no doubt that each of these steps has been an attempt to garner votes of Muslims via religion.

The first point is the about the nature of public comment on these attempts. How many secularists can you recall who denounced this blatant recourse to religion to garner votes ? The second point is about the law. As technically the elections had not been announced, the Prime Minister and his colleagues were free to deploy the device to the hilt.

Moreover, on one thing it does seem that the Court exercised an option which may cost us dear. The matter arose as follows. As is well known, Article 19 (1)(a) guarantees us the fundamental right to free speech. Article 19 (2) specifies the grounds on which reasonable restrictions may be put on this right. Ram Jethmalani argued that from among the grounds which had been enumerated the only one on which the freedom to speak about religion etc. during elections could be restricted was public order : and the courts have held time and again that the threat to public order which can be used to restrict fundamental rights is not just the apprehension that there will be some breach of peace; there must be the definite and imminent prospect of a general breakdown of order. The provision in an electoral law which sought to restrict the freedom to an extent greater than this, Jethmalani argued, was itself unconstitutional.

The Court did not accept this argument. In its judgement it held that in fact restrictions on the use of religion, caste etc. for soliciting votes can be justified under another ground which is mentioned in Article 19(2), namely decency and morality. There is no reason to restrict decency and morality to sexual morality alone, the Court declared. It quoted with approval what the Supreme Court had held in an earlier case : in Khuller etc. vs Director of Public Prosecutions, 1972, the Court had said, Indecency is not confined to sexual indecency; indeed it is difficult to find any limit short of saying that it includes anything which an ordinary decent man or woman would find to be shocking, disgusting and revolting.

It isn't just that this again is a circular way of defining the ground. It isn't just that given the way things are, while that sort of an approach is not liable to be used to curb vulgarity where it manifestly needs to be curbed -- those heavy women being made to shake their thick bodies in our films -- and that it might well be used to curb speech where it ought to be untrammeled. The fact is that all reform shocks and offends in the beginning, those who are accustomed to the present ways, those who are the beneficiaries of the present arrangements are revolted by it. The definition of decency and morality which the Court adopted to get over Ram Jethmalani's googly is thus too wide, and in determined hands can be handy for imposing restrictions which the Court itself would not want to ever countenance.

That matter should therefore be reconsidered. And when the occasion to do so arises I would urge two further things. Sub- sections 3 and 3A which were the subject matter of these judgements enumerate caste also among the grounds on which candidates must not solicit votes, on which they must not seek to spread hatred among classes of citizens. I do hope that one of these days the Court will have the opportunity to examine the sort of poison which is being spread on this basis, be it camouflaged in the name of social justice. Second, how come that , while it is an offence under our laws to spread hatred or solicit votes on the basis of religion, caste, language, race etc. , it is perfectly all right to spread hatred and enmity, and to solicit votes on the basis of class ? Isn't it high time that the laws were amended to rope in that ground also ?