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In refusing to revisit Justice J.S. Verma’s judgments in the ‘Hindutva cases’, the Supreme Court is missing an opportunity to strengthen integrity in India’s political process

On Tuesday, a seven-judge Bench of the Supreme Court, which is currently hearing oral arguments in two cases — Abhiram Singh v. C.D. Commachen and Narayan Singh v. Sunderlal Patwa — declined an opportunity to reconsider the correctness of a series of judgments rendered by Justice J.S. Verma in December 1995. There, in what are collectively called the “Hindutva cases”, the court delivered rulings that caused great mischief on the idea of India as a pluralistic, secular state. It held that pleas made by appealing to the terms “Hindutva” or “Hinduism” during an election campaign did not necessarily constitute a corrupt practice in violation of the Representation of the People Act, 1951 (RPA) since the terms ordinarily refer not to religion but only to “a way of life”. The judgments, however, overlooked the RPA’s true objective. As is plainly evident from the legislation’s language, it intends to instil in India’s elections an atmosphere of secular integrity. Now, the seven-judge Bench, presided by Chief Justice T.S. Thakur, has expressed its unwillingness to test the legitimacy of Justice Verma’s view, on the ground that the issue finds no mention in the orders referring the cases to it. The upshot is the continued perpetuation of judgments that are not merely deeply flawed, but also eminently dangerous in their purport.
Religion and electoral politics

Secularism can mean many different things, and, in India, the term is often imbued with a significance that goes well beyond its popular meaning. But what’s clear from the debates of both the Constituent Assembly and Parliament, in various iterations, is that one of the key features of secularism, as it’s understood in India, is an endeavour to separate religion altogether from electoral politics. B.R. Ambedkar, who played a sterling role in the RPA’s drafting, was particularly keen on ensuring that the statute conformed to secular principles. “I think that elections ought to be conducted on issues which have nothing to do with… religion or culture,” he said during a crucial stage of the debate in the lead-up to the law’s enactment by what was then a provisional parliament. “A political party should not be permitted to appeal to any emotion which is aroused by reason of something which has nothing to do with the daily affairs of the people.”

Ultimately, it was with this sentiment in mind that the RPA, through Section 123(3), outlawed, as a corrupt practice, the appeal for votes by any candidate contesting in an election, on grounds, among others, of religion. In the celebrated S.R. Bommai v. Union of India case, the Supreme Court recognised the value in this provision. To fight elections on a plank of religion, Justice B.P. Jeevan Reddy wrote, was tantamount to eroding the country’s secular fabric. But, barely a year later, the court subverted India’s secular credentials when it ruled on the Hindutva cases.
The ‘Hindutva cases’

A Bench comprising Justices Verma, N.P. Singh and K. Venkataswami heard appeals by 12 different members belonging to the Shiv Sena and the Bharatiya Janata Party (BJP), including Bal Thackeray and the then Chief Minister of Maharashtra, Manohar Joshi. These persons, some of whom had won in the State’s elections held in 1987, had been found guilty by the Bombay High Court of violating Section 123 of the RPA. They had, in the court’s view, invoked either or both Hindutva and Hinduism to influence the outcome of the elections.

The Supreme Court’s chief opinion in these cases was rendered in the case of Dr. R.Y. Prabhoo v. P.K. Kunte. Here, the court heard appeals over a verdict which had found the mayor of Bombay, Prabhoo, and Bal Thackeray, who had campaigned for him, guilty of corrupt practice. The court ultimately dismissed both appeals. Indeed, it would have been difficult for it to rule in any other manner — Thackeray in his campaign speeches had not only appealed to the idea of Hindutva, but had also claimed that “[The Muslims] should bear in mind that this country is of Hindus, the same shall remain of Hindus... if Shiv Sena comes to power and if the morchas come — first of all (we) shall make them come. Everybody will have to take diksha (initiation) into Hindu religion.”

But in arriving at its conclusion, the court made several inexplicable findings that ultimately helped foster a culture of electoral perversion. “The term ‘Hindutva’ is related more to the way of life of the people in the subcontinent,” wrote Justice Verma. “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, or be construed to fall within the prohibition in [the RPA].” It’s of course true that the mere mention of the word Hindutva or Hinduism can barely be seen as offensive in and of themselves. But Justice Verma’s attempts at defining these terms only gave a fillip to those from the far-right.
A fillip to the far-right

Quite opposed to analysing the real roots of Hindutva — which V.D. Savarkar had defined to include “all the departments of thought and activity of the whole Being of our Hindu race” — the court, in Prabhoo, instead referred to Maulana Wahiduddin Khan’s work, Muslims: The Need for a Positive Outlook. In so doing, Justice Verma concluded that the word ‘Hindutva’ “is used and understood as a synonym of ‘Indianisation’, i.e. development of uniform culture by obliterating the differences between all the cultures coexisting in the country.” As A.G. Noorani, most notably, has since pointed out, the court’s elisions lie not only in failing to refer to Savarkar’s works, but also in the misquoting of the Maulana, who hardly saw Hindutva as a redeeming movement. The judgment in Prabhoo makes for even poorer reading when seen in conjunction with the verdict in CM Joshi’s case, where the court found that the statement, the “first Hindu State will be established in Maharashtra”, was not tantamount to invoking religion in soliciting votes, but was rather merely “the expression, at best, of such a hope”. As a result of these opinions, today, a candidate who declares himself to believe in Hindutva or in a Hindu Indian state would not be indulging in a corrupt practice. For he may simply be referring to India’s cultural ethos as a whole.

In its immediate aftermath, Justice Verma’s judgments secured widespread approval from Hindu nationalist groups. “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,” said an editorial in the Organiser, a publication of the Rashtriya Swayamsevak Sangh. To the BJP, the judgments acquired a near-cultist status; the party routinely sought protection from the rulings to justify remarks made along starkly communal lines, by trumpeting an idea that Hindutva is after all only a way of life.
An opportunity missed

However, in truth, these celebratory actions, aimed at creating an impression that the Hindutva judgments are entrenched as law, ignore vital facts. Only a few months after Justice Verma gave his rulings, the Supreme Court, through a different Bench, found itself in disagreement with his views. And it referred the case, an appeal filed by the BJP’s Abhiram Singh, for the consideration of a larger Bench. Eventually, in 2014, this reference (now heard by a five-judge bench) came to be tagged with another BJP leader’s case, which had, in turn, been referred to a seven-judge Bench; in that order of reference, in Sunderlal Patwa’s case — ambiguous as it is — doubts appear to have been raised over whether an appeal by a candidate to a religion other than that which he practises amounts to a corrupt practice under the RPA.

No doubt, between the two orders making reference to a seven-judge Bench there is no specific question concerning a reconsideration of Justice Verma’s judgments. But to use this as a ground to abstain from reviewing those opinions overlooks the fact that for more than 20 years, the verdicts in the Hindutva cases have stood, despite being questioned by a Bench of the Supreme Court’s own judges. Needless to say, on the relative merits of Mr. Singh and Mr. Patwa’s cases, the court would have to consider, on facts, whether they indulged in any corrupt practice under the RPA or not. But to decline altogether the opportunity to review Justice Verma’s judgments is an exercise which is, at best, pedantic, and, at worst, an abdication of a critical responsibility. For it once again places at the peril of the unique deferrals of India’s judicial system a group of decisions that have proved most damaging to the country’s secular fabric.

Liberal theory, in certain forms, may demand unconstrained speech, even in the course of electoral campaigning. But, in India, the right to free speech is subject to reasonable restrictions on grounds, among others, of morality and decency. To hold that secularism is a part of the Constitution’s basic structure while simultaneously condoning a politics of hate that is propagated in the name of religion — in this case, Hindutva and Hinduism — is simply incongruous. As Chief Justice P.B. Gajendragadkar observed in his 1964 opinion in Kultar Singh v. Mukhtiar Singh, to allow any sway in election campaigns for appeals made on the basis of religion, race or caste “would vitiate the secular atmosphere of democratic life”. The Supreme Court’s seven-judge Bench would have done well to defer to Chief Justice Gajendragadkar’s views. A re-examination of Justice Verma’s judgments, far from being “pseudo-secular” as some critics might have us believe, is imperative in the interests of restoring an element of integrity in India’s political process. It is time we placed precepts of democratic morality and decency at the vanguard of our republic.

Suhrith Parthasarathy is an advocate practising at the Madras High Court.