by B.A. Desai
(Senior Advocate
Fmr. Minister
Fmr. Add. Solicitor General of India)
Indian constitution is both a Legal and Social Document.
The unique Freedom Struggle based on “Truth and Non Violence” took in its fold all sections of the Society, the Rich and The Poor Man and Women, Youth all Religious Communities, be it Hindu, Muslim, Christian, Parsis, Sikh, Jain in fact all castes and Communities.
As a result, the Indian Constitution reflects not only the values of Freedom Struggle but also values of Universal Declaration of Human Rights!
Composite Culture:
Indian Constitution incorporates the kind of Nationalism known as Territorial Nationalism, where every one born in the territory of India, is an India. All Citizens in the territory of India, either by birth of or by acquisition are equal whether he/she is Hindu, Muslim, Christian, Buddhist, Jain or Parsi or atheist!
The Mandate of the Constitution is to promote Tolerance harmony amongst People of India transcending religious linguistic, religious or section or sectional diversities and to preserve the rich heritage of our Composite Culture.
Hindutva Judgment:
The theme of this paper is to examine how far Hon’ble Justice Verma’s Judgments which have come to be known as Hindutva Judgment fulfil the Constitutional Mandate!
At the outset, it must be stated that the said judgment have been disagreed by two Constitutional Benches of the Supreme Court and the cases are referred to larger Bench.
In the case of Narayan Singh Vs. Sunderlal Patwa, the five bench judgment of the Supreme Court disagreed with Hon’ble Justice Verma’s Judgment referred it to larger Bench of seven Judges.
Hon’ble Justice Verma overlooked both Bommai’s case and Karatarsingh’s case and gave restrictive meaning of definition of corrupt practice under section 123(3) A and held that it would be not corrupt practice so long as the candidate does not appeal to the voters on the ground of His religion even though he appealed to the voters on the ground of religion of voters.
Similarly in the case of Abhiram Singh Vs. C.D. Oomachand, three Judges Bench headed by Hon’ble Justice K. Ramswamy referred the entire case to five Judges Bench holding inter-alia that “we are of the view that the entire case requires to be heard and decided by a larger Bench of five Judges since the decision thereon impinges upon the purity of election process gets fonled and becomes fraught with the deleterious effect in a democratic Polity!
The words of Hon’ble Justice Ramaswami have indeed prove prophetic. The said judgment rules the roost since 1995 along with Judgment of Hon’ble Justice Verma in the case of Manohar Joshi Vs. N.B. Patil where Hon’ble Justice Verma found that statement by Shri Manohar Joshi that “First Hindu State will be established in Maharashtra did not amount to Appeal on ground of Religion.”
Hon’ble Justice Verma’s discourse on Hinduism and Hidutva is naive. He did not find any difference between Hindutva and Hinduism and held that the term Hindutva is related more to “way of life of the people in the subcontinent”….. “The words is used and understood as synonym of “Indianisation i.e. development of uniform culture by obliteration the differences between all the cultures co-existing in the country”
Justice Verma Further says “reference can be made to any religion to criticizes any political party for practicing discrimination against any religious group or generally for preservation of the Indian culture”
In Manohar Joshi’s Case Justice did not find any wrong in election speech of Manohar Joshi a Shiv Sena leader holding that “ In our opinion mere statement that Hindu State will be established in Maharashtra is by itself not on the ground of his religion but the expression at the best of such hope!” “It does not Constitute Corrupt practice under subsection (3-A) of Section123”.
Hindu Communal forces have looked upon this judgment as Judicial Imprimatur of its Divisive Ideology.
Since the time Hindutva/Hindu Rashtra came up as assertive phenomenon in the political scene the divisiveness has gone up by leaps and bounds the polarisation of communities have gone up. The intimidation of minorities is taking place under the flag of Hindutva and Hindu Rashtra.
Contrary to Constitutional mandate of inclusiveness and composite culture Justice Verma’s Judgment is exclusionary to the core and the political goals of Hindu Communal Elite.
Hindutva and Hinduism:
It is questionable if courts are theologically and Sociologically equipped to define the Hinduism.
For Justice Verma words Hinduism and Hindutva area Synonyms. He always writes in his judgments Hindutva/Hinduism. This it is stated with respect not correct.
In S.R. Boomai case Judges have quoted Swami Vivekanand and Mahtma Gandhi to show Hinduism ethos of tolerance and respect of all religions.
“Swami Vivekanand stated “that right of religious system and ideals is the same morality. Myself say “Om” other say “Johova” another “Allah ho Mohmmad” another cries “Jesus”.
According to historian Tapan Rayachaudhri “the Vivekanand was among earliest nationalist thinker to claim the Indo-Islamic past as part of the Indian Heritage”
Mahatma Gandhi stated “ The separate religious Hinduism, Islam, Christianity, Buddhism are different converging the same point even as the tree has single trunk but many branches and leaves so there is one perfect religion but it becomes many as it passes through the human medium. The Allha of Muslims is the same as God of Christians and Ishwara of Hindus”
“you cannot be a true Hindu if you hate any other religion. I consider myself a follower of Islam, Christianity, Zoroastrianism and every other religion because I am a true Hindu”
Hindutva:
Hindutva (with respect to Hon’blre Justice Verma) is certainty not synonymous with Hinduism. He wrongly stated that “ordinary Hindutva is understood as “way of life” or “a state of mind” and it is not to be equated with a understood as religious fundamentalism. It is obivious that Hon’ble Justice Verma did not know or ignored Savarakar’s work published in 1923 titled “Hindutva who is a Hindu?” According to BJP ideologue Swapna Das Gupta “It is commentary on Savarkar’s perspicacity that his celebrated pamphlet Hinutva written in 1923, remains the starting point of any theoretic construct of the Hindu Upsurge! “This was written by him soon after demolition of Babari Masjid.”
Savrkar was quite categorical in defining nationhood. According to him “A Hindu means a person who regards his land of Bharatvarsha from the Indus to the Seas as is father land (Pitrubhumi) as well as his holy land (Punyabhumi) that is cradle of his religion”
Referring to Mohmedan and Christians Savrkar says ’Hindustan’ to them is father land but to them it is not Their Holy Land is far off in Arebia or Palestine!
“ These are the essentials of Hindutva- a Common nation (Rashtra), a common race (jati) and a common civilisation (Sanskriti), Sanskriti is preeminently implied by the word Punyabhumi as it precisely sanskriti including in sanskar i.e. rites and rituals ceremonies and sacraments that makes a land Holy land”
For the minorities then the option of retaining both their faith and their Indian Nationality is extinguished. This the reality of Hindu Rashtra based on Hindutva!
Hindutva is not a restatement of Hinduism. It is the formulation of a new political ideology of hate-Hindutva.
Hindutva is a synthesis of Religion and Politics. It is opposed to the values which came to be associated with the Secular democratic Principles enshrined in Indian Constitution, which Supreme Court itself has declared as Basic Structure of the constitution.
Hon’ble Jusrtice Verma of the Supreme Court however lays down that “Hindutva” is not to be understood as religious Hindu Fundamentalism.
He further pronounced that “Hindutva” is to be understood as “Indianisation”. This is diametrically oppose to “Indinisation” under India Constitution as interpreted in S.R. Bommai’s Case.
Hindutva Judgment is the Judicial approval of the ideology of RSS Parivar. Hindutva is constantly refered to by RSS Parivar and has become part of Political manifestos of B.J.P. and Shivsena.
Hindu and Way of Life:
For Hon’ble Justice Verma Hindutva/ Hinduism is a “way of Life of the people in the Sub-Continent” and “is a state of mind!”
Can a religion be called a Way of Life just because it is too diverse. The religions are associated with Holy Books Communitarian functions, ritual, ethical, norms and authority of clergy and are the major visible symbols of religion. Hindu Religion has all these traits.
Way of Life is broad term. It also encompasses not merely religion but other factors related to region, language, customs, food habits, literary and cultural aspects of life which may not have to anything do with Religion. Religion can not be the sole component of the phrase way of life.
Hindu Religious have various streams, sharmanism, Tantra, Bahkti, Seva and Dominant Brahmanism.
The ideology of RSS and Sangh Parivar is Brahmanism With Hindutva and is also come to be Cultural Nationalism. It is the Culture of upper cast the one resorting to Ram, Gita and Acharays. The one having with Sanskrit (DevBhasha) and Laws of manu. It is not the culture of Dalits, Bahujans and Adivasis.
Hindutva is not merely against the interest of minorities but against the majority of Hindus. It is certainly not synonymous with Hinduism.
Hindutva Judgments are in Violation of the Basic Structure of the Constitution. It is sad that the Supreme Court did not find time to constitute Five or Seven Judges Bench to Hear them and Reverse them!
----B.A. Desai
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