Aakar Patel | Apex court rulings on Hindutva give BJP, RSS room to further agenda

The Prime Minister has been accused of violating the Representation of the People Act in his speech, which the Opposition has called communal. A complaint has been filed with the Election Commission and the courts to disqualify him. Under the law, an appeal by a candidate to the electorate to vote or refrain from voting on the ground of religion is a corrupt practice.

On this, the Supreme Court has passed two judgments which specifically exempt Hindutva. These came in the case of the Shiv Sena’s Dr Ramesh Yashwant Prabhoo versus Prabhakar Kashinath Kunte, on December 11, 1995, and another involving the man who would later become Maharashtra’s Chief Minister, Manohar Joshi.

The charge of violating the Representation of the People Act in the first case was based on three public speeches by Bal Thackeray in November and December 1987 in canvassing for Prabhoo. The Bombay High Court found Thackeray’s speeches “were all in very intemperate language and incendiary in nature which were appeals to the voters to vote for Dr Prabhoo because of his religion, i.e., he being a Hindu, and the speeches also promoted or tended to promote enmity and hatred between different classes of the citizens of India on the ground of religion”.

Thackeray’s speeches included the words: “We are fighting this election for the protection of Hinduism. Therefore, we do not care for the votes of the Muslims. This country belongs to Hindus and will remain so.” In the Urdu Times, the report appeared with the headline “Shiv Sena ko Musalmanonkevoton ki zaruratnahinhai” (Shiv Sena did not need the votes of Muslims).

And: “Though this country belongs to Hindus, Ram and Krishna are insulted. (The Opposition) valued Muslim votes more than your votes; we do not want the Muslim votes. A snake like Shahabuddin is sitting in the Janata Party, a man like Nihal Ahmed is also in the Janata Party. So, the residents of Vile Parle should bury this party.”

The Supreme Court quoted other extracts: “But here one cannot do anything at anytime about the snake in the form of Khalistan and Muslims… The entire country has been ruined and therefore we took the stand of Hindutva and by taking the said stand we will step in the Legislative Assembly… There is a dire need of the voice of Hindutva and therefore please send the Shiv Sena to the Legislative Assembly.”

There were other, abusive things said which cannott be reproduced here, but they are unimportant.

The Supreme Court overturned the High Court judgment and said these speeches did not violate the Representation of the People Act. This was because considering Hindutva “as depicting hostility, enmity or intolerance towards other religious faiths or professing communalism, proceeds from an improper appreciation and perception of the true meaning”, because Hindutva “may broadly be described as a way of life and nothing more”. In essence, the court was saying, no matter what is said by a candidate, the court will protect it if it is said under the tent of Hindutva.

The second judgment, which came the same day in 1995, was Manohar Joshi vs Nitin Bhaurao Patil. Joshi had been disqualified by the Bombay High Court, again because of speeches by Thackeray and others, and the Supreme Court overturned the judgment.

The speeches had been tape-recorded, widely reported on and were also taken down in shorthand by police personnel present there. Manohar Joshi himself had said at a meeting at Shivaji Park on February 24, 1990 that “the first Hindu Rashtra will be established in Maharashtra”. Other speakers said that on Joshi being elected, and the BJP-Sena alliance establishing a Hindu government, jobs would be given to all Hindus. The tapes showed that other faiths had been referred to as traitors and betrayers of India.

In response to this, the court said: “In our opinion, 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 religion but the expression, at best, of such a hope. However despicable be such a statement, it cannot be said to amount to an appeal for votes on the ground of his religion.”

In response to the judgment by then Chief Justice J.S. Verma, A.G. Noorani wrote that Verma’s “profuse expressions of disapproval are neither relevant nor effective. It is his ruling on the law and his construction of the facts which matter. Both are manifestly, demonstrably wrong.”

He added: “Election candidates do not waste time expressing hopes in order to titillate the electorate. They know that its vote will be given against promises and pledges. ‘(The first Hindu Rashtra) will be established’ is not an expression of hope but a pledge by a Shiv Sena leader at a meeting in a predominantly Hindu locality. If this is not the seeking of votes 'on the ground of his religion', what is?”

That is a good question, and it remains unanswered.

A challenge to the Prabhoo and Joshi judgments was made in 2016. The petitioners said that the Hindutva “way of life” had led to demands of homogenisation and assimilation of minorities and Dalits and Adivasis in the Hindutva way of life.

Their petition said: “Hindutva has become a mark of nationalism and citizenship. The interpretation has curtailed faith in secularism, which is the basic feature of the Constitution.” The challenge was unsuccessful, with the Supreme Court refusing to hear it citing a procedural technicality, and the Hindutva judgments continue to give the RSS and the BJP the validity with which to further their agenda.