India has always been a difficult country to govern, with its mind-boggling diversity. Can you imagine administering a country with 22 official languages and almost all world religions? And as if this was not enough, the modern model of democracy based on ‘one-head-one vote’, has made India more difficult to manage. This, however, is not to even remotely suggest that we should jettison our democratic model. But we do need to look at it afresh, in the context of our experience of running it for over 60-odd years.
The Hindutva case
This issue has come into the spotlight thanks to a judgment given by the Supreme Court on 25 October 2016. On this day, the apex court gave a verdict decided by a seven-member bench headed by the Chief Justice of India Justice T.S. Thakur. The apex court was called upon to decide two cases – Abhiram Singh v/s C.D. Commachen, and Narayan Singh v/s Sunderlal Patwa. Many scholars argue that the Supreme Court has let go of a golden opportunity to reconsider the correctness of a judgment rendered by Justice J.S. Varma in December 1995. This is commonly known as the ‘Hindutva case’.
According to the verdict given by Justice Varma “appealing to the terms ‘Hindutva’ or ‘Hinduism’ during an election campaign did not necessarily constitute a corrupt practice in violation of the Representation of People’s Act, 1951 (RPA), since the terms like Hindutva do not ordinarily refer to religion, but only to ‘a way of life’”. Now once again the apex got the opportunity to revisit this controversial judgment given by Justice Varma. But the bench headed by Justice Thakur allowed it to pass. This may prove quite dangerous in the future.
This is because India is a secular country where religion has no place in politics. We borrowed this idea from the Western world. Back in the 16th century, King Henry VIII of England wanted to marry again so that his new wife could provide him with a male heir. The idea was negated by the Rome-based Pope, the global head of Church. Henry VIII decided to defy the Church and marry a second time. In the process, he severed links with the Church and established a separate and independent ‘Church of England’. In due course, the idea that religion should have no role in the political affairs of a country, slowly gained momentum, and later emerged as ‘secularism’.
On the other hand, India saw emergence of religion-based political parties in the early decades of the 20th century. Political parties like the Muslim League and the Hindu Maha Sabha were trying to attract followers. In this, the Muslim League succeeded, and this was how Pakistan was born on 14 August 1947, which a decade later officially became the ‘Islamic Republic of Pakistan’. India decided to embrace secularism with some differences. For centuries, India has been a land of faithfuls. Add to this, the utter poverty and illiteracy in the country, and one knows why we did not and could not adopt the Western model of secularism. In the West, Christianity is the only religion and separating it from politics was relatively easy, whereas in India, a multi-religious society always existed. This is why India could not blindly adopt the western model.
India developed its own version of secularism based on ‘equal respect for all religions’. This is why we have national holidays for all religions in India. If we have Diwali holidays, we also have holidays for Eid, Good Friday, Mahavir Jayanti, Buddha Purnima and Pateti. The purpose was to make people of each religious denomination feel at home. And this is also why we provided in the Article 123 (3) of the Representation of Peoples Act, 1951, that using religion, race and caste during an election campaign is illegal.
During the 1980s and 1990s, the politics of Hindutva was in full swing. In 1987, Dr. Ramesh Prabhu, the then Mayor of Mumbai contested a by-poll for Vidhan Sabha from Parle constituency and won. During the campaign, he and the late Balasaheb Thackeray, the Shivsena head, openly propagated the Hindutva ideology. Prabhakar Kunte who was defeated by Prabhu, moved the Bombay High Court. The Bombay High Court nullified Prabhu’s election as he had used Hindutva to appeal to voters. As was expected, Prabhu moved the Supreme Court which decided the case in 1995. The three-member bench was headed by Justice J.S. Varma, who delivered a highly controversial judgment in which it stated that Hinduism is not a religion, but a way of life. It is necessary to understand the logic behind Justice Varma’s decision. The verdict observed that ‘the term Hindutva is related more to the way of life of people in the subcontinent. It is difficult to appreciate how the term Hindutva or Hinduism per se, in the abstract, can be assumed to mean and be equated with narrow fundamentalist Hindu religious bigotry.
No wonder Justice Varma’s verdict was hailed by the Hindu nationalist groups. Organiser, a publication of the Rashtriya Swayamsevak Sangh (RSS), wrote an editorial in which it noted, “The Supreme Court has put its seal of judicial imprimatur on the Sangh ideology of Hindutva by stating that it is a way of life or state of mind and that it is not to be equated with religious fundamentalism”. To the BJP, the judgment acquired a near-cult status; the party routinely sought to justify remarks made along starkly communal lines, by trumpeting the idea that Hindutva is after all only a way of life.
This was not the end of the story, as India is a highly complex society. Soon after Justice Varma’s verdict, another bench of the Supreme Court gave a dissenting judgment. Not only this, it referred the case for the consideration of a larger bench. Eventually in 2014, it was referred to a seven-member bench, which has now delivered its verdict.
This sustains a contradiction in our polity. On the one hand, we insist that secularism is part of the basic structure of our Constitution, and on the other hand, we refuse to define Hinduism. This is simply incongruous. Let us recall the observations made by Chief Justice P.B. Gajendragadkar in the famous case of ‘Kultar Singh v/s Mukhtiar Singh’, decided in 1964. His Lordship had observed that, ‘To allow any sway in election campaigns for appeals made on the basis of religion, caste or race would vitiate the secular atmosphere of democratic life’. The apex court should reopen the case in the interest of secular nature of our polity.