22 years ago, on December 11, 1995, Justice J S Verma, on behalf of himself and Justices N P Singh and K Venkatasami, delivered a judgment on appeal to religion in elections, which came to be known as the “Hindutva Judgment”. It remains the elephant in the room whenever religion and the political process are discussed.
Four months after the so-called Hindutva Judgment was delivered, a three-judge bench of the Supreme Court, on April 16, 1996, asked for the setting up of a larger Bench to hear the matter “since the decision thereon impinges upon the purity of the election process and requires to be decided so that all the questions arising in the present appeal could be decided authoritatively and expeditiously”.
Justice Verma’s bracketing of Hindutva with Hinduism, and therefore submitting that being a “way of life”, there was no problem with it being invoked during elections, gave a tremendous fillip to resurgent political forces at the time who wanted to make religion integral to making voting choices. The BJP manifesto of 1996 used it to assert that “the Supreme Court, too, finally, endorsed the true meaning and content of Hindutva as being consistent with the true meaning and definition of secularism”.
‘Hindutva’ is the name of a long essay by V D Savarkar, a leading proponent of Hindu politics in India, and the man who coined the term when the essay was published in 1923. On Page 3, was a section titled ‘Hindutva is Different from Hinduism’. Justice Verma is criticised for not referring to Savarkar at all, and for going on to equating Hinduism with Hindutva. Critics of the judgment saw this conflation as creating a major chink in the idea of secularism, which, apart from treating all religions equally, seeks to separate religion from politics.
However, the late Justice Verma, as Chairman of the National Human Rights Commission, noted in April 2002 that investigations in Gujarat riots cases were being “influenced” by extraneous considerations or players, and recommended CBI probes into five cases. Under him, the NHRC took suo motu cognisance of the situation, and advised the setting up of Special Courts to try riots cases.
Justice Verma’s daughter, Shubhra Verma, speaks of his long-held views on religion and politics, which he always saw as apart. These are best reflected in an extract from Justice Verma’s private papers, which are now mostly with his grandchildren, who are students of law.
Justice Verma wrote of his firm belief that “Exclusionary practices in the name of religion must never undermine the equality and pluralism that is the heart of our constitutional democracy.”
Says Shubhra, “He always had a regret about being misunderstood after 1995 and how for their own purposes, a group of politicians had twisted the spirit of his judgment. He practised the most inclusive principles in his life, keeping us away from all rituals, with no burden, and letting us be. He spoke often of how in Satna, his old family friends, Muslims, had taken refuge in their home when communal fires raged during partition.”
Supreme Court Senior Advocate Rajeev Dhawan recalls how he had appealed the 1995 order that same year, but “Justice (S P) Bharucha refused to reopen the judgment except for any problems in technical matters in case they existed. So that judgment hangs over our heads as Hindutva hangs on our head, as it is a political platform.”
But, says Dhawan, “Justice Verma too was apologetic about that judgment and said it had been misunderstood.”
Supreme Court Senior Advocate Raju Ramachandran said, “Today, when an appeal to religious sentiment poses a far greater threat to the social fabric and fabric of democracy, the view of the Supreme Court now (on Monday) is the correct one, and has the potential of protecting the process of elections from incitement to a mob sentiment which parties resort to sometimes.”
Recalling Justice Verma and his thoughts about the 1995 judgment, he said, “He was widely criticised, but the fact that he was not in any manner a facilitator or a fellow-traveller was amply demonstrated by the role which the NHRC under him played in the aftermath of the Gujarat riots in 2002.”