The Newspapers have been reporting that a Seven-judge Bench of the Supreme Court Of India headed by the Chief Justice T S Thakur has since 18 October 2016 taken up a review of a judgement handed down by a Three-judge Bench of the Supreme Court in 1995.
The uncomfortable issues questioning the legitimacy of the statements made by political parties canvassing for votes in the name of religion had since been coming up before the Apex Court. The present Review, it is said, had become necessary for arriving at ‘an authoritative pronouncement on electoral law categorising misuse of religion for electoral gains as corrupt practice”.
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The first reference to ‘Hindutva’ was recorded by the Supreme Court in its judgment [1994 (6) SCC 360] in the case ‘Ismail Faruqi’, who had challenged the validity of the 1993 central law acquiring the disputed area in Ayodhya and large tracts of land around it. Justice S P Bharucha, who was part of the three judge bench which upheld the acquisition, said, “Ordinarily, Hindutva is understood as a way of life or a state of mind and it is not to be equated with, or understood as religious Hindu fundamentalism.”
The nascent interpretation of ‘Hindutva’ as ‘a way of life’ by Justice Bharucha in Ismail Faruqi, engaged deeper scrutiny analysis at the hands of a three-judge bench headed by renowned Justice J S Verma in Ramesh Yeshwant Prabhoo vs Shri Prabhakar Kashinath Kunte [1996 SCC (1) 130]. The case witnessed a see-saw battle between two heavyweights— Ram Jethmalani for Shiv Sena and Ashok Desai for the opposite side, both quoting scriptures and historians liberally.
Justice Verma relied on numerous past constitution bench judgments and said those decisions “indicate that no precise meaning can be ascribed to the terms ‘Hindu’, ‘Hindutva’ and ‘Hinduism’; and no meaning in the abstract can confine it to the narrow limits of religion alone, excluding the content of Indian culture and heritage. It is also indicated that the term ‘Hindutva’ is related more to the way of life of the people in the sub- continent. It is difficult to appreciate how in the face of these decisions the term ‘Hindutva’ or ‘Hinduism’ per se, in the abstract, can be assumed to mean and be equated with narrow fundamentalist Hindu religious bigotry…”.
The SC ruled that mere use of the word ‘Hindutva’ or ‘Hinduism’ or mention of any other religion in an election speech does not bring it within the net of sub-section (3) and/or sub-section (3A) of Section 123, (to constitute corrupt practices which could disqualify the candidate) unless the further elements indicated are also present in that speech.
The SC also dispelled the notion, being given currency by politicians of different creeds, that terms’ Hinduism’ or ‘Hindutva’ per se cannot be construed to depict hostility, enmity or intolerance towards other religious faiths or professing communalism. Such an apprehension, the SC said, proceeded from an improper appreciation and perception of the true meaning of these expressions emerging from the detailed discussion in earlier authorities of this Court.
However, the court had warned against possible politically beneficial misuse of the terms and advised strong measures to curb such tendencies. “Misuse of these expressions to promote communalism cannot alter the true meaning of these terms. The mischief resulting from the misuse of the terms by anyone in his speech has to be checked and not its permissible use. It is indeed very unfortunate, if in spite of the liberal and tolerant features of ‘Hinduism’ recognized in judicial decisions, these terms are misused by anyone during the elections to gain any unfair political advantage. Fundamentalism of any colour or kind must be curbed with a heavy hand to preserve and promote the secular creed of the nation. Any misuse of these terms must, therefore, be dealt with strictly.”
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The 1995-Judgment that the Newspapers have been talking about refers to the famous case of Manohar Joshi vs. Nitin Bhaurao Patil & Anr (citations: 1996 AIR 796, 1996 SCC (1) 169) delivered on 11 December, 1995 by the then chief justice of India, J S Verma . Please click here for a copy of the judgement.
The judgement handed down by a bench of three judges of the Supreme Court led by the then chief justice of India, J S Verma was examining the question regarding the scope of corrupt practices mentioned in sub-section (3) of Section 123 of the 1951 Representation of People Act and its interpretations. The Court in its ruling found that that statement by Manohar Joshi that “First Hindu State will be established in Maharashtra did not amount to appeal on ground of religion”.
The court had held that seeking votes in the name of Hinduism is not a “corrupt practice” under Section 123 of the Representation of the People Act; and , it would not result in setting aside the election of winning candidates.
This ruling delivered in 1995 which earned the nickname ‘Hindutva judgement ‘ held that ‘Hindutva/Hinduism is a way of life of the people in the sub-continent; it represents the culture of India, and of all people of India, whether Hindus, Muslims, Sikhs, Christians, etc.; and ‘is a state of mind’.
And, the Judgement concluded that ‘Hinduism’ was “indicative more of a way of life of the Indian people and is not confined merely to describe persons practicing the Hindu religion as a faith”.
In effect, the 1995-Verdict was taken to interpret that seeking vote in the name of ‘Hindutva/Hinduism’ did not prejudicially affect any candidate
However, the issues regarding the interpretations of the sub-section (3) of Section 123 had been coming up before the Apex Court quite regularly. Three election petitions are pending on the subject in the Apex court. The questions raised were: whether a politician can legitimately seek votes in the name of ‘Hinduism’; whether will it amount to corrupt practices under the Representation of People’s Act; and, whether will it subsequently attract disqualification.
The issue for interpretation of the sub-section (3) once again arose on January 30, 2014, before a five-judge which referred it for examination before a larger bench of seven judges. The apex court in February 2014 had decided to refer the matter to a seven judge’s bench.
Now about two decades after that 1995-Judgment, a Seven Bench Judges of the Supreme Court of India has taken up this contentious ruling, commencing from 18 October 2016.
On October 19, 2016 the Supreme Court asked the Counsels if non-contesting spiritual leaders or clerics could be held accountable for corrupt practices under electoral law for asking voters to vote for a particular party or candidate; and how such appeals seeking votes would fall foul of the RP Act.
The proceedings are on .
Let’s wait and watch the final outcome.
[ Update
On October 25, 2016 , a Seven-judge Constitution Bench headed by Chief Justice T S Thakur said that for now it will not touch on its 1995 definition of “Hindutva is a way of life and not a religion” and also not ban its use during elections.
At this stage, we will confine ourselves to the issue raised before us in the reference. In the reference, there is no mention of the word ‘Hindutva’. We will not go into Hindutva at this stage.
The SC said that it would not examine the larger issue of whether Hindutva means Hindu religion, and whether the use of Hindutva in elections is permissible.
“It is difficult to define religion. There will be no end to this ”
The 7-judge bench, however, said it is looking into the nexus between religious leaders and candidates and its legality under Section 123 (3) of the Representation of People Act; and, whether seeking of votes in the name of religion will amount to a corrupt practice under the Representation of the People Act warranting disqualification.
But , asserted that asking for votes in the name of religion was ‘evil’ and ‘not permissible’ ]
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[ Further Update:
A seven-judge-bench of the Supreme Court of India in its judgement delivered on 02 January 2017, by a 4 to 3 majority view, enlarged the scope of Section 123(3) of the Representation of People Act 1951. The Section 123(3) defines as ‘corrupt practice’ appeals made by a candidate or his agents to vote or refrain from voting for any person on the ground of ‘his’ religion, race, caste, community or language. The court has now interpreted Section 123(3) of the Representation of People Act to mean that this provision was brought in with intent ‘to clearly proscribe appeals based on sectarian, linguistic or caste considerations”.
The reference to the seven-judge bench had become necessary in view of the conflicting rulings in the previous judgements. In that context, the present Constitution bench explained the meaning of the term ‘his’ since that was relevant as to whose religion it has to be when an appeal is made.
In substance, it ruled that an election could be annulled if candidates seek votes in the name of their religion or that of their voters. Till now, soliciting votes on the basis of religion and other such considerations was restricted to that of the candidates alone.
The latest ruling is significant in the sense that any attempt to canvass for votes on the ground of religion or other such parochial identities – either of the candidates’s or on behalf of his agents or groups or his opponents – would invite the provisions of the Representation of People Act.
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In their majority view, Chief Justice T S Thakur, Justices Madan B Lokur, S A Bobde and L Nageswara Rao ruled in favour of a ‘purposive interpretation’, stating that the term ‘his’ would mean the religion of the candidate, his agents, voters as well as any other person who, with the candidate’s consent, brings up religion or such subjects in an election
“An appeal in the name of religion, race, caste, community or language is impermissible under the Representation of the People Act, 1951, and would constitute a corrupt practice sufficient to annul the election in which such an appeal was made regardless of whether the appeal was in the name of the candidate’s religion or the religion of the election agent or that of the opponent or that of the voters,” the majority view held.”
The Chief Justice said in his separate verdict:
“The state being secular in character will not identify itself with any one of the religions or religious denominations…The elections to the state legislature or to Parliament or for that matter any other body in the state is a secular exercise just as the functions of the elected representatives must be secular in both outlook and practice,”
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Dissent
Justices Adarsh K Goel, Uday U Lalit and D Y Chandrachud, however, dissented with the majority’s view, holding that the expression ‘his’ used in conjunction with religion, race, caste, community or language is in reference to the candidate, in whose favour the appeal to cast a vote is made, or that of a rival candidate when an appeal is made to refrain from voting for another.
‘His’ in Section 123(3) of the RP Act cannot validly refer to the religion, race, caste, community or language of the voter.
To hold that a person who seeks to contest an election is prohibited from speaking of the legitimate concerns of citizens that the injustices faced by them on the basis of traits having an origin in religion, race, caste, community or language would be remedied is to reduce democracy to an abstraction,” the minority judgement held”. ]
In this context , while on the question of ‘Hindu ‘and ‘Hinduism’ I would like to draw attention to another important judgement of the Supreme Court , also of 1995, which somehow seems to have been forgotten. I am referring to the case ‘Bramchari Sidheswar Shai and others Versus State of West Bengal’ in the matter of the Ramakrishna Mission’s petition to be declared a non-Hindu, minority religion under the Indian constitution. Please click here for the full text of the judgement that was delivered on July 2, 1995 ; delivered by Justice N. Venkatachala.
The judgement, interalia, discussed the intent and connotation of the term Hindu; and also identified Seven Defining Characteristics of Hinduism. The petition filed by Ramakrishna Mission was denied.
The following are the observations of the Supreme Court of India while dealing with the term Hindu:
(27). Who are Hindus and what are the broad features of Hindu religion, that must be the first part of our inquiry in dealing with the present controversy between the parties. The historical and etymological genesis of `the word `Hindu’ has given rise to a controversy amongst indologists; but the view generally accepted by scholars appears to be that the word “Hindu” is derived from the river Sindhu otherwise known as Indus which flows from the Punjab. `That part of the great Aryan race”, says Monier Williams, which immigrated from Central Asia, through the mountain passes into India , settled first in the districts near the river Sindhu (now called the Indus ). The Persian pronounced this word Hindu and named their Aryan brother Hindus. The Greeks, who probably gained their first ideas of India Persians, dropped the hard aspirate, and called the Hindus `Indoi’.
(28). The Encyclopaedia of Religion and Ethics, Vol. VI, has described `Hinduism’ as the title applied to that form of religion which prevails among the vast majority of the present population of the Indian Empire (p.686). As Dr. Radhakrishan has observed: `The Hindu civilization is so called, since it original founders or earliest followers occupied the territory drained by the Sindhu (the Indus ) river system corresponding to the North-West Frontier Province and the Punjab . This is recorded in the Rig Veda, the oldest of the Vedas, the Hindu scriptures which give their name to this period of the Indian history. The people on the Indian side of the Sindhu were called Hindu by the Persian and the later western invaders [The Hindu View of Life by Dr. Radhakrishnan, p.12]. That is the genesis of the word `Hindu’.
On the question of Hinduism, the Supreme Court of India discussed in detail the nature of Hinduism, citing several references and authorities.
While laying down the characteristics of Hinduism, the Hon. Court observed:
Features of Hindu religion recognized by this Court in Shastri Yaganapurushdasji (supra) as coming within its broad sweep are these:
(i) Acceptance of the Vedas with reverence as the highest authority in religious and philosophic matters and acceptance with reverence of Vedas by Hindu thinkers and philosophers as the sole foundation of Hindu philosophy.
(ii) Spirit of tolerance and willingness to understand and appreciate the opponent’s point of view based on the realization that truth was many-sided.
(iii) Acceptance of great world rhythm, vast period of creation, maintenance and dissolution follow each other in endless succession, by all six systems of Hindu philosophy.
(iv) Acceptance by all systems of Hindu philosophy the belief in rebirth and pre-existence.
(v) Recognition of the fact that the means or ways to salvation are many.
(vi) Realization of the truth that Gods to be worshipped may be large, yet there being Hindus who do not believe in the worshipping of idols.
(vii) Unlike other religions or religious creeds Hindu religion not being tied-down to any definite set of philosophic concepts, as such.
While drawing up the criteria for indentifying Hinduism, the Court relied heavily on the views of Swami Vivekananda and Dr. Radhakrishnan that stressed tolerance, universality and a search for a fundamental unity as the virtues of Hinduism. It also relied on B.G. Tilak’s view: “Acceptance of the Vedas with reverence; recognition of the fact that the means to salvation are diverse; and realization of the truth that the number of gods to be worshipped is large, that indeed is the distinguishing feature of Hindu religion.”Even in the earlier case (Yagnapurushdasji) the “acceptance of the Vedas” was a key element in the court’s decision.
The criteria drawn up in the Brahmachari Siddheshwar Shai v. State of West Bengal case is taken as a working rule evolved for a limited purpose. It is not construed as the definition of Hinduism; because, Hinduism is described on various occasions depending on the context. Each time a ‘context- sensitive’ interpretation has been put forth.
It was therefore said: All definitions of Hinduism are indeed ‘context –sensitive’; and there is no absolute and precise definition.
For instance:
: – In the Indian Constitution, Explanation II appended to Article 25 says that the “reference to Hindus shall be construed as including a reference to persons professing the Sikh, Jain or Buddhist religion”
: – The Hindu Code Bill (which comprises four different Acts), too, takes an undifferentiated view of Hinduism: it includes anyone who is not a Muslim, Christian, Parsi or Jew under ‘Hindu’ as a legal category.
: – Any reform movements, including Buddhism, Jainism and Sikhism, were seen as merely different sects within Hinduism.
: – There are legal pronouncements that Hindus are Indian citizens belonging to a religion born in India. This means Buddhists, Sikhs or Parsis, even those who did not recognize themselves as Hindus, are to be considered Hindus.
The Supreme Court of India 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. 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, and Jews etc.”
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Incidentally the Seventh in the list of criteria drawn up by the Supreme Court in Brahmachari Siddheshwar Shai v. State of West Bengal case leaves me a little perplexed. It reads ”Unlike other religions or religious creeds Hindu religion not being tied-down to any definite set of philosophic concepts, as such”. This in a way sums up the position; but, at the same time, it appears to knock down the earlier six criteria.
Perhaps it is because of this view ( of not being tied down to any definite set of concepts) that many say “The term ‘ism’ refers to an ideology that is to be propagated and by any method imposed on others for e.g. Marxism, socialism, communism, imperialism and capitalism but the Hindus have no such ‘ism’. Hindus follow the continuum process of evolution; for the Hindus do not have any unidirectional ideology, therefore, in Hindu Dharma there is no place for any ‘ism’”
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That leads us to the question: how did a ‘way–of-life’ that was not tied down to an ‘ism’ came to be known as Hinduism, a religion?
Tracing such process that led to tagging or assigning a name to a ‘way of life’ is, no doubt, an elusive exercise.
It is explained that the name Hinduism was coined by the foreigners as an operative term; points at a much larger entity; but, does not exactly stand for it.
I sometimes wonder whether even in the distant past it ever had a specific name or did it needed one, perhaps because of the absence of a rival. It is also plausible there was none.
For instance:
: – The ancient Indian texts such as Vedas and Upanishads do not talk in terms of a ‘Religion’.
: – The Buddha also does not name, refer to or attack the religion of the day though he criticizes the Brahman attitude, the rituals; and discourages its ungainly speculations. He sometimes referred to his disciples by their sect as Brahmins or Kshatrias. He addresses some of them by their Gotra like Vaccha (Vatsa), Kassapa (Kaashyapa), and Mudgala (Maudgalya) etc. Some of the disciples address the Buddha by his Gotra- Gautama.
Buddhism did not start as a religion. The Buddha intended to offer true interpretations of the Dharma. (That perhaps was how his sect was named.) It started as a free-thinkers-moment that attracted the seekers and the lay intellectuals; in much the same way as the Ramakrishna moment did at a much later time. During the Buddha’s time it was not a religion yet; the rituals related to births, deaths and weddings were presided over by the Brahmin priests. The Buddhist rituals and practices (vinaya) were collated from the teachings and the incidents in the Buddha’s life at a much later time, after his death.
What set apart the Buddhism and other school of thought was is emphasis on compassion towards all and ethics in all walks and modes of life.
:- Megasthenes (Ca. 350 BCE – 290 BCE )- the Greek explorer who became an Seleucus I Nicator to the Court of Chandragupta Maurya in Pataliputra – in his the work Indika , though mentions Brahmins and Sramanas does not talk about the name of any religion.
: – The Arthashastra of kautilya makes frequent references to classes of people within its society; but does not refer to a Religion in particular.
Perhaps it was this factor of the absence of a Religion per se in ancient India that largely guided the Supreme Court of India in listing some criteria for Hinduism while handing down the ruling in Brahmachari Siddheshwar Shai v. State of West Bengal.
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Here, in these references by the Apex Court, the term Hindu had somehow travelled a full circle and came back to the original view of territorial and not creedal significance. It implied residence in a well-defined geographical area.
But now, generally, one is understood to be a Hindu by being born into a Hindu family and practicing the faith, or by declaring oneself a Hindu. It has been used as a geographical, cultural, or religious identifier for people indigenous to South Asia. In any case, Hinduism is now a nomenclature for the religious tradition of India and the suffix ism is hardly noticed. Not many have qualms in accepting “Hinduism.
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How did this transformation of ‘Hindu’ which originally referred to an inhabitant of the subcontinent into one of religious identity take place? It is t important to learn the changing meaning of ‘Hindu’ whereby an original geographic , ethnic and cultural meaning was much later superseded by a religious meaning.
It is a long story. Let’s read that in the next part.
References and Sources
- Manohar Joshi vs Nitin Bhaurao Patil & Anr on 11 December, 1995(Equivalent citations: 1996 AIR 796, 1996 SCC (1) 169) Author: J S Verma
https://indiankanoon.org/doc/1215497/
- Bramchari Sidheswar Shai and others Versus State of West Bengal (in the supreme court of India ; civil appellate jurisdiction; civil appeal nos. 4434a-34d of 1986 with civil appeal nos. 4937/85, 5676-78/85; with I.A.No. 1 in C.A. Nos. 5676-78/85 and CMP No. 23111/86 in C.A. No. 4937/85 https://www.hinduismtoday.com/modules/smartsection/item.php?itemid=5047
- Newspaper reports
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