PUCL Bulletin, February 1996
court judgment: a blow to secular democracy
By V. M. Tarkunde, 19 January, 1996
On December 11, 1995, a three judge Bench of the Supreme Court delivered judgments in a number of appeals which arose from decisions of the Bombay High Court relating to the validity of the elections of certain Shiv Sena -BJP candidates to the Maharashtra Legislative Assembly. The Bombay High Court had set aside the elections of these candidates mainly on the ground that they had committed a corrupt practice as defined by Section 123(3) of the Representation of the People Act, 1951. The corrupt practice defined in Section 123(3) consists of "the appeal by a candidate or his agent or by any other person with the consent of a candidate or his election agent to vote or refrain from voting for any person on the ground of his religion "
By these judgements the Supreme Court Bench has watered down to a very material extent the rigour of the above provision in respect of candidates who stood for Hindutva or who appealed for the creation of a Hindu state. Larger Benches of the Supreme Court had previously held that secular democracy is one of the basic features of the Indian constitution, and that Section 123(3) of the Representation of this People Act was intended to uphold the principle of secular democracy. By watering down the meaning and the rigour of what provision, the present three-judge Bench of the Supreme Court has dealt a very severe blow to the principle of secular democracy.
The damage has been caused by three judgments: Dr. Ramesh Yashwant Prabhoo Vs Shri Prabhakar Kashinath Kunte and Others; Manohar Joshi Vs Nitin Bhaurao Patel & another; and Prof. Ramachandra G. Kapse Vs Haribansh Ramakbal Singh.
In the case of Dr. Ramesh Yeshwant Prabhoo the Supreme Court bench dealt with the meaning of the word "Hindutva" or "Hinduism" when used in election propaganda. The court came to the conclusion that the words "Hinduism" or "Hindutva" are not necessarily to be understood and construed narrowly, confined only to the strict Hindu religious practices unrelated to the culture and ethos of the People of India depicting the way of life of the Indian people. Unless the context of a speech indicates a contrary meaning or use, in the abstract, these terms are indicative more of a way of life of the Indian people. Unless the context of a speech indicates a contrary meaning or use, in the abstract, these terms are indicative more of a way of life of the Indian people and are not confined merely to describe persons practicing the Hindu religion as a faith" (Emphasis supplied). This clearly means that, by itself, the word "Hinduism" or "Hindutva" indicates the culture of the people of India as a whole, irrespective of whether they are Hindus, Muslims, Christians, Jews etc. The Supreme Court Bench has further observed that "the mere fact that these words (Hindutva or Hinduism) are used in the speech would not bring in within the prohibition of sub-section (3) or (3A) of Section 123. It may well be that these words are used in the speech to promote secularism and to emphasize the way of life of the Indian people and the Indian culture or ethos, or to criticize the policy of any political party as discriminatory or intolerant. Whether a particular speech in which a reference is made to Hindutva and or Hinduism falls within the prohibition under sub-section (3) or (3A) of Section 123 is therefore a question of fact in each case" (Emphasis supplied).
These conclusions of the Supreme Court Bench clearly mean that if a candidate were to declare that he believed in Hindutva and therefore the voters should cast their votes in his favour, without saying anything more, he would not be committing any corrupt practice as defined by the Section 123 (3) of the Act. He may, according to the Supreme Court Bench, be referring to the culture of the Indian people as a whole including Muslims, Christians and all other non-Hindu citizens. Can this conclusion be accepted as correct?
In the first place, any statement made before an audience should be interpreted in the sense in which the members of t he audience are expected to understand it. During an electoral campaign the purpose of almost every meeting is to appeal for the votes of the electorate. Would the normal electorate in India understand that what is meant by Hindutva is the culture of all the people of India including those of non-Hindu faiths? Obviously, by Hindutva most of the voters would understand the culture of Hindus including their religious faith, and not the faith and culture of non-Hindus.
Even an audience more educated than the average Indian voters would understand by Hindutva the culture (including the religion) of HINDUS AND not of non-Hindus. In Particular, Hindutva cannot be understood by them as inclusive of the culture and religion of those whose religion originated outside India, such as Muslims, Christians and Jews.
It is well understood in anthropology that the culture of the people includes their religion, their language, their arts and crafts, their ways of earning a living, and their behaviour with others. This means that culture includes religion, and that an appeal to vote on the basis of Hindutva includes an appeal to vote for the Hindu religion as well. Since an appeal to vote for Hindutva includes an appeal to vote for the Hindu religion, it clearly amounts to a corrupt practice as defined by section 123(3) of the Representation of the People Act 1951.
The conclusion that Hindutva or Hinduism means the culture of all the people of India (and not Hindus alone) is derived by the present three-judge Bench from two previous decisions of five-judge Benches of the Supreme Court - Sastri Yagnapurushadji and others Vs Muldas Bhudarda Vaishya and another, 1966 (3) SCR 242; and Commissioner of Wealth tax, Madras and others Vs late R. Sridharan by LPs, 1976 (Sipp.) SCR 478. Neither of these decisions support the conclusion of the Supreme Court that Hindutva or Hinduism means the culture of the people of India as a whole.
In Sastri Yagnapurushadji's case, a Constitution Bench of the Supreme Court held that Swaminarayan sect is a part of Hindu religion. It was observed in the judgement in that case that originally the word 'Hindu' arose from the river Indus and the residents around the river were called Hindus. That observation has hardly any relevance to what Hinduism or Hindutva means today. Moreover, the judgement in that case refers to many authorities and concludes that the Hindu religion does not claim any prophet, it does not satisfy the traditional features of any religion or creed, and that "it may broadly be described as a way of life and nothing more". The present three-judge Bench has relied on these and other observations in the aforesaid judgement and come to the conclusion that Hinduism is a way of life of all Indians.
In deriving this conclusion, the present three-judge Bench has overlooked the fact that the same judgement has also described what the essential features of the Hindu religion are. The judgment says: "Beneath the diversity of philosophers who started different philosophic schools, lie certain broad concepts which can be treated as basic" (p. 263). The judgement in that case goes on to say that amongst these basic concepts is the acceptance of Vedas as the highest authority in religious and philosophical matters and also the belief in rebirth and pre-existence. The judgement also mentions that according to the Hindu religion, the ultimate object of humanity is "the release and freedom from the unceasing cycle of births and rebirths; Moksha or Nirvana, which is the ultimate aim of Hindu religion "can be safely described as a way of life based on certain basic concepts to which we have already referred" (p.265 emphasis supplied). These observations clearly mean that the Hindu religion, in spite of its diversity of doctrines, has some basic concepts which are common to all Hindus and which guide their way of life. Obviously these concepts are different from those of Muslims, Christians and other religious communities. It is, therefore, not right to adduce from this judgment that Hinduism is the way of life of the present Indian citizens belonging to different religions.
No such conclusion can also be derived from the other case, the Commissioner of Wealth Tax and others. In that case, a father and his son born from a Christian wife was held to form a joint Hindu family for the purpose of wealth tax. The extracts from authoritative texts quoted in this case also show that Hinduism is the civilization of Hindus and it includes their religion and other cultural traits. Moreover, both this as well as the earlier case of Sastri Yagnapurushadji quote with approval the definition of Hindu religion given by B. G. Tilak in Geetarahasya which is as follows: "Acceptance of the Vedas with reverence; recognition of the fact that the means of ways of salvation are divers; and realization of the truth that the number of gods to be worshipped is large, that indeed is the distinguishing feature of Hindu religion". It is clear that this case also does not support the conclusion of the three-judge Bench that Hindutva or Hinduism means the culture not only of Hindus but of the Indian people as a whole.
The present three-judge Bench was therefore wrong in holding that an appeal for votes based on Hindutva or Hinduism does not by itself amounts to a corrupt practice as defined in Section 123(3) of the Representation of the People Act 1951.
Turning to the decision of the three-judges Bench in Manohar Joshi's case, it was an admitted fact that Manohar Joshi whose election had been set a side by the Bombay High Court but now restored by the Supreme Court had admittedly state din one of his election speeches that "the first Hindu State will be established in Maharashtra". This clearly means that if the electorate voted in favour of Manohar Joshi and the other candidates of the Shiv Sena- BJP combine, they would establish a Hindu State in Maharashtra and that it will be the first Hindus State in any part of India. The voters who wanted a Hindu State were thus invited to vote for him and for the Shiv Sena - BJP combine. The Supreme Court, however, held that this was not an appeal on the ground of religion. It observed, "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 religion, but the expression at best of such a hope. It is indeed very strange that the expression of the hope that the voters will succeed in creating a Hindu State in Maharashtra was not held by the Supreme Court to be an appeal to vote for the creation of such a State. The decision is unsupportable. As explained by the Supreme Court itself in other cases, secularism means that while the people are entitled to profess, practice and propagate their religion, the State will have no religion of its own. An appeal for the creation of secular democracy and is a corrupt practice under section 123(3) of the Act.
In the case of Prof. Ramchandra Kapse, one of the questions which arose for decision was whether the election of a candidate can be set aside on the basis of what was state dint he election manifesto of the party of which he was a candidate. Prof. Kapse was a BJP candidate and the BJP in its election manifesto had appealed for votes by referring to the Ramjanma Bhoomi - Babri Masjid issue. The three-judge Bench proceeded on the basis that the manifesto did contain on appeal to vote on the basis of religion. But the Bench gave two reasons for holding that Prof. Kapse did not commit any corrupt practice on account of his party's election manifesto. Firstly, the Bench observed that the BJP was registered as a party by the election commission under Section 29A of the Representation of the People Act 1951, which required that the principles of socialism, secularism and democracy, among others, should be expressly endorsed in the constitution of every party which applied for registration. Secondly, the Supreme Court Bench observed that no part in the drafting of manifesto or specific vies in the election campaign were attributed to Prof. Kapse. Now, Section 29 A does not require the Election Commission to make any enquiry on whether, after the registration, the party continues to act according to the principles embodied in its constitution such as secularism and democracy. The fact that Dr. Kapse was not alleged to have participate din the drafting of the manifesto or made use of the manifesto in the election was also not decisive of the question whether he used religion for the purpose of securing votes. When a candidate accepts the ticket of a party, he obviously accepts the election manifesto of the party . The election manifesto is circulated amongst the voters. The circulation of the manifesto must, under the circumstances, be held to have been done with the candidate's consent. It is proper to hold that every candidate who accepts the ticket of a party endorses what is stated in the party's election manifesto accepts the party's ticket. If the view of the Supreme Court in this behalf is accepted, the result would be that a candidate may succeed with the help of a manifesto which appeals for votes on account of his religion and yet his election would be valid.
These decisions of the Supreme
Court Bench are thus highly derogatory to the principle of secular democracy
and the letter and spirit of Section 123(3) of the Representation of the People
Act 1951. It is to be hoped that a larger Bench of the Supreme Court will on
a future occasion reconsider these decisions and undo the great harm caused
by them. .
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