BJP and its leaders have been constantly misquoting the apex court’s stand

Parsa Venkateshwar Rao Jr

In the wake of the Supreme Court’s seven-judge Constitution Bench’s 4-3 verdict on Monday, the question that has cropped up is whether the two 1995 pronouncements by Justice JS Verma about Hindutva not being a religion but a way of life would remain unchallenged. Many of us, including this writer, have indeed misread the nuanced views of Justice Verma. The BJP leaders have been citing the judgments time and again to say that the highest court of the land approved Hindutva—the ideological label for the views of right-wing Hindu groups, including the BJP.

Going back to the judgments one finds that the court did not express an unambiguous view about the contentious Hindutva. There were two cases. The first was the Manohar Joshi vs Nitin Bhaurao Patil, and the judgment was delivered by Justice Verma on 11 December, 1995. It related to the election of Manohar Joshi, the BJP-Shiv Sena candidate in the assembly election from Dadar constituency in Greater Bombay, held on 27 February, 1990. Joshi polled 47,737 votes as against his Congress rival, Nitin Bhaurao Patil, who got 24,354 votes. Joshi was declared elected.

Patil alleged that speeches made by Joshi, Bal Thackeray, Pramod Nawalkar and Chhagan Bhujbal violated Section 123 (3) and (3A) of the Representation of People Act—that is of using religion in seeking votes. The main contention of the petitioner was that Shiv Sena and BJP sought votes “in the name of Hindutva, i.e. Hindu religion.”

The court rejected that the speeches made by Bal Thackeray and Pramod Mahajan can be laid at the door of the candidate unless it can be proved that those speeches were made with the consent of the candidate. But the one issue for which Joshi, the candidate, was held responsible was the speech he had made at Shivaji Park, Dadar, on 24 February, 1990, where he stated: “the first Hindu state will be established in Maharashtra.”

It is at this point that Justice Verma stated the legal position: “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 his religion but the expression, at best, of such a hope.” And this was followed by the crucial observation: “However, despicable be such a statement, it cannot be said to amount to an appeal for votes on the ground of his religion. Assuming that the making of such a statement in the speech of the appellant at that meeting is proved, we cannot hold that it constitutes the corrupt practice either under sub-section (3) or sub-section (3A) of Section 123 of the Representation of People Act, even though we would express our disdain at the entertaining of such a thought or such a stance in a political leader of any shade in the country.”

The argument of Justice Verma is quite clear. In legal terms, a mere statement that “the first Hindu state will be established in Maharashtra” by itself does not constitute a corrupt practice because Section 123 of the Representation of People Act is quite clear that it is only an act or speech inciting hatred between religion and communities that falls under the ambit of corrupt practice. He also went on to cite an earlier three-judge bench, which included Justice Verma, judgment which struck down the central government banning Jamaat-e-Islami Hind under the Unlawful Activities (Prevention), Act 1967.

In that case too Justice Verma had said: “It is significant that the mere production of the official record including the literature of Jamaat-e-Islami Hind depicting its philosophy and aims, and the intelligence reports without examining any witness who could depose from personal knowledge to the alleged unlawful activities of the association was held to be inadequate to support the declaration that Jamaat-e-Islami Hind is an unlawful association as defined in the said Act. It need hardly be mentioned that the requirement of proof of a corrupt practice at the trial of an election petition is higher and confined to strict legal evidence…”

The Supreme Court struck down the verdict of the High Court that had held Joshi guilty.

Then comes the next case, which deals with the issue of Hindutva, again a judgment delivered by Justice Verma, and also delivered on the same day as the previous one, 11 December 1995. It relates to an appeal by Shiv Sena candidate Dr Ramesh Yeshwant Prabhoo against the Bombay High Court judgment holding his election from Vile Pale to the Maharashtra Assembly in a by-election held in 1987, null and void for indulging in corrupt practice as defined in sub-section 3 and sub-section (3A) of Section 123 of the Representation of the People Act. There was also an appeal by Bal Thackeray against the Bombay High Court holding him guilty of violating Section 123. The Supreme Court upheld the High Court’s verdict.

It is in this context that Justice Verma put forth his view about Hindutva and Hinduism, which the BJP leaders are wont to quote, but missing completely the spirit of his observations. He did not expound his own view but cited earlier decisions of the court in relation to the interpretation of the word Hindu and Hinduism. And he went on to say, “Considering the term ‘Hinduism’ or ‘Hindutva’ per se as depicting hostility, enmity or intolerance towards other religious faiths professing communalism, proceeds from an improper appreciation and perception of the true meaning of these expressions emerging from the detailed discussion in earlier authorities of this court. 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…”

Referring to the offensive speeches of Bal Thackeray, Justice Verma said: “We cannot help recording our distress at this kind of speeches by a top leader of a political party. The lack of restraint in the language used and the derogatory terms used therein to refer to a group of people in an election speech is indeed to be condemned.”

It is quite clear that Justice Verma did not justify in any way the use of the terms, ‘Hindu’ and ‘Hindutva’ in any negative sense, and by upholding the Bombay High Court’s decision in holding the election of Prabhoo null and void, and Thackeray guilty for his offensive election speeches, he made it very clear that these two terms cannot be used to preach hatred against others.

Lead pictures: Justice JS Verma and Supreme Court