ON TUESDAY, the day it was originally slated to examine the Constitutional validity of triple talaq and polygamy, the Supreme Court will set out to analyse whether the words “Hindutva” and “Hinduism” connote the “way of life” of the Indian people and not just Hindu religious practices.
More than 20 years after a batch of judgments ruled that these words are “indicative more of a way of life of the Indian people and are not confined merely to describe persons practising the Hindu religion as a faith”, a seven-judge Constitution Bench will revisit this matter and other judgments on the issue.
The BJP, which leads the NDA government, had underlined one such judgment from 1995 in its election manifestos and to counter accusations of it being communal, to assert that even the apex court has endorsed the true meaning of Hindutva and Hinduism.
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In December 1995, Justice J S Verma, writing for a three-judge Supreme Court bench, 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, which would result in setting aside the election of winning candidates.
Section 123 (3-A) defines “corrupt practice” as promotion of, or attempt to promote, feelings of enmity or hatred between different classes of the citizens of India on grounds of religion, race, caste, community, or language, by a candidate or his agent.
Relying on this provision, the Bombay High Court had set aside the election of many BJP-Shiv Sena candidates in the Maharashtra assembly polls at the time.
Adjudicating on appeals by leaders such as Bal Thackerey, Manohar Joshi and R Y Prabhoo, the three-judge Supreme Court bench held that “Hinduism” and “Hindutva” were not necessarily to be understood and construed narrowly, confined only to strict Hindu religious practices.
”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,” the apex court noted.
Justice Verma said that the mere fact that these words (Hindutva or Hinduism) are used in speech would not bring them within the prohibition of sub-section (3) or (3A) of Section 123. “It may well be that these words are used in the speech to promote secularism and to emphasise the way of life of the Indian people and the Indian culture or ethos, or to criticise the policy of any political party as discriminatory or intolerant,” the court ruled.
It cited two previous five-judge bench decisions in the Sastri Yagnapurushadji and others Vs Muldas Bhudarda Vaishya and another of 1966; and the Commissioner of Wealth tax, Madras and others Vs late R Sridharan by Legal Representatives case of 1976 to support the proposition that Hinduism indicated culture and not religious practices.
The court subsequently held as valid the election of Sena’s Joshi, who had admittedly said in one of his election speeches that “the first Hindu State will be established in Maharashtra” and Ramchandra Kapse, a BJP candidate, which had in its election manifesto appealed for votes by referring to the Ram Janmabhoomi-Babri Masjid issue.
Four months after this verdict, another three-judge Supreme Court bench adjudicating the Abhiram Singh Vs C D Commachen & Ors case said that it would be appropriate if a five-judge bench examines the scope of inquiry to be conducted when such charges of “corrupt practices” are levelled.
In January 2014, when a five-judge bench was hearing this matter, the court was informed that identical issues had been raised in an election petition filed against BJP leader Sunderlal Patwa — the matter was then referred to a bench of seven judges, which will now start hearings.
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