Aakar Patel | Top court rulings on Hindutva give room to BJP and RSS for further agenda

The Prime Minister has been accused of violating the People’s Representation Act in his speech, which the opposition has called common. A complaint has been filed with the Election Commission and the court seeking his disqualification. According to the law, a candidate’s appeal to the electorate to vote or not to vote on the grounds of religion is a corrupt practice.

On this, the Supreme Court has delivered two judgments specifically exempting Hindutva. These occurred in the case of Dr Ramesh Yashwant Prabhoo of the Shiv Sena versus Prabhakar Kashinath Kunte, on December 11, 1995, and in another case 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 during a campaign for Prabhoo. The Bombay High Court held that Thackeray’s speeches were “all in highly intemperate language and inflammatory in nature, which was an appeal to the voters to vote for Dr. Prabhoo to vote because of his religion, i.e. he is a Hindu, and the speeches also promoted or tended to promote enmity and hatred between different classes of the citizens of India on grounds of religion.”

Thackeray’s speeches included the following words: “We are fighting this election for the protection of Hinduism. That’s why we don’t care about the votes of the Muslims. This land belongs to the Hindus and will remain so.” The report appeared in the Urdu Times with the headline “Shiv Sena ko Musalmanonkevoton ki zaruratnahinhai” (Shiv Sena did not need the votes of Muslims).

And: “Although this land belongs to the Hindus, Ram and Krishna are insulted. (The opposition) valued Muslim votes more than your votes; we don’t want the Muslim votes. A snake like Shahabuddin is in the Janata Party, a man like Nihal Ahmed is also in the Janata Party. So the people of Vile Parle must bury this celebration.”

The Supreme Court quoted other excerpts: “But here at no point of time can one do anything about the serpent in the form of Khalistan and Muslims… The entire country has been ruined and that is why we have taken the stand of Hindutva and by taking that stand we will we are taking steps.” in the Legislative Assembly… There is a dire need for the voice of Hindutva and therefore please send the Shiv Sena to the Legislative Assembly.”

Other insulting things were said that cannot be repeated here, but they are unimportant.

The Supreme Court overturned the Supreme Court’s ruling, saying these speeches did not violate the Representation of the People Act. This was because viewing Hindutva “as portraying hostility, enmity or intolerance towards other religious faiths or as professing communalism, arises from an incorrect appreciation and perception of its true meaning” because Hindutva “can be broadly described as a way of life and nothing more” . In essence, the court said that whatever is said by a candidate, the court will protect him if it is said under the tent of Hindutva.

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

The speeches were tape recorded, widely reported and also recorded in shorthand by the 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 if Joshi is elected and the BJP-Sena alliance sets up a Hindu government, jobs would be given to all Hindus. The tapes showed other faiths being called traitors and traitors to India.

Responding to this, the court said: “In our view, the mere declaration that the first Hindu State will be established in Maharashtra is not in itself a call for votes on the grounds of one’s religion, but at best the expression of such a hope. However despicable such a statement may be, it cannot be said to amount to a call for votes on the basis of one’s religion.”

Reacting to the judgment of then Chief Justice JS Verma, AG Noorani wrote that Verma’s “profuse expressions of disapproval are neither relevant nor effective. It is his statements about the law and his construction of the facts that matter. Both are clearly and demonstrably wrong.”

He added: “Electoral candidates waste no time expressing hope to excite the electorate. They know that promises and commitments will be voted against. “(The first Hindu Rashtra) will be established” is not an expression of hope but a promise made by a Shiv Sena leader at a rally in a predominantly Hindu locality. If this isn’t seeking votes ‘on the basis of one’s religion,’ what is?”

That’s a good question, and it remains unanswered.

In 2016, Prabhoo and Joshi’s ruling was challenged. The petitioners said that the Hindutva ‘way of life’ had led to demands for homogenization and assimilation of minorities and Dalits and Adivasis into the Hindutva way of life.

Their petition said: “Hindutva has become a sign of nationalism and citizenship. The interpretation has curtailed the belief in secularism, which is the basic feature of the Constitution.” The challenge was unsuccessful as the Supreme Court refused to hear it on a procedural technicality, and the Hindutva rulings continue to give the RSS and the BJP the validity with which to advance their agenda.

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