NAMIT SAXENA 2 RAHUL CHAUDHARY indutva remains @ hotly debated subject for Considerable time. While every indivdual is free to have personal opinions on the subject, the concept of Hindutva has been interpreted by the Supreme Court as well. While we discuss its ‘et with judiciary and how it has beon judicially interpreted, the concept has to be understood with the chronologically developing social and political context surrounding the issue The expression Hindutva’ can be traced back Y hugust2,2020 fo Chandranath Basu's book tiled Hindutve {tattva meaning reality). The expression gained popularity after a pamphlet was published by VD Savarkar written during incarceration originally under the title ‘Essentials Of Hindutva’ in 1923 and later retited ae ‘Hindutva: Who le @ Hindu?’ when reprinted in 1928. India obtained Independence in 1947 and adopted the Constitution fully in 1850 which granted a funda: mental freedom to practice religion and barredSIU Beit wie isnt aude Da ir lt has.come toshaunt-the Communists, the Congress: Time) t EUW ers ul Oe cs zi BUSOU WUE aE Rie S Sét diseriminaton on the ground of religion. Indian National Congress (INC) was the leading national poitical party then and shortly in 1951 Bharatiya Jan Sangh (BJS) was fommed by Sityama Prasad Mukherjee. First Lok Sabha elections were conducted in 1982 and INC dominated the police! scenario countrywide for many subsequent years. Interestingly, the symbol of the original Congress Perty during elections held between 1952 and 1971 was {an imago of two bullocks with a plough. INC split later on {nto INC{R) end INC(O). The symbol of INC(R) dung he 1971-1077 period was a cow with @ sucking calf. Many cow slaughter prevention/protection laws came eround this period. This was also to attract Hindu voters. In between in 1906, Shiv Sena was formed by Bal Thackrey. Both Shiv Sena and BJS affirmed their views with certain citferences on Hindutva The word ‘secular’ was not a part of the preamble to the Constituton initaly. In Nain Sukh Des v State of UP., (AIR 1953 SC 384] the Supreme Court held that the con- Uist ses Tei ce Ses baie larity ant ih Ee Se] NU eT SLL Wy ule eae soca) stitutional mandate against religious discrimination ‘extended to political rights. In 1962, the Supreme Court expressed its views on the secular nature of the Constitution for the first time in Sardar Taherudgin ‘Syedna Saheb v. State of Bombay in the judgment of ‘Ayyangar J. In 1966, a S- judge bench of the Supreme Court through Chief Justice Gaiendra Gadkar in ‘Sastri ‘Yagnapurushadji' case [1966 SCR (3) 242] gave the first, judical observation on this issue. It obsorvod that Whon we think of the Hindu religion, ‘we find it dificult, sf not impossbie, to detine Hindu rell- gion or even adequately describe it. Unlike other religions in the world, the Hindu religion does not claim any one prophet; it does not worship any one God, it does not ‘subscribe to any one dogma; it does not believe in any one philosophic concept: it does not follow any one sat of religious rites or performances; in fact, it does not appear to satisfy the narrow traditional features of any religion or creed...". It was categorically found that it may broadly be described as a way of life and nothing more. August? 2020 15(On 24.04.1973, n Kesavananda Bharati the Supreme Court reiterated that secularism was a part of the basic structure of the Constitution. Enumerating the basic fea tures of the Constitution, Sikri, CJ named "secular char- ‘acter of the Constitution” as one of them. Shelat and Grover, JJ slated that “secular and federal character of the Constitution” were among the main ingredion's of the basic structure enumerated therein. Jeganmohan Reddy, J, stated clearly that “Liberty of thought, expres- sion, belief, faith and worship” could not be amended at any cost as they are part of the basic features of the Constitution ‘Aftor Koshavananda Bharatis judgment, Indira Gandhi sought to control the judiciary and the three senior judges who wrote the marty opinion (Shelat, Grover and Hegde JJ) were dramatically superseded and Justice AN Ray was made the Chief Justice of India Indira Gandhi repeated hersalf after few years whan dustice HR Khanna who in his minority dissent opined in the A.D.M Jabalpur case that fundamental nights cannot be suspended during Emergency, was also superseded ‘When we think of the Hindu religion, we find it difficult, if not impossible, to define Hindu religion or even adequately describe it. Unlike other religions in the world, the Hindu religion does not claim any one prophet; it does not worship any one Got, it does not subscribe to any one dogma In 1975, the Allahabad High Court nullified the election f Indira Gandhi for indulging in corrupt practices end is- {uaiifd her from contesting elections for 6 years. After tho Suprome Court grantod oniy a conditional stay, in June 197, Emergency was imposed upon countrymen by INC-ed Indira Gandhi Govamment it was. during Emergency thet the constitution was emended vide the 42nd amendment and the expression ‘secular’ was inserted in the Preamble. In between, the Supreme Court in R Sridharan's case [1976 (Sup) SCR 478} held that Hinduism embraces within self so many diverse forme of beliefs, faiths, prac- tices end worships that it's dificult to define term ‘Hindu with precision. Post Emergoncy (1977), BJS morged with sovoral otner parties to form the Janta Party & it defeated ne incumbent INC in the 1977 elections. After enjeying 2 ‘years in power, the Janata Party was dissolved in 1980 16 ugust 2 2020 ret Pais pas) ith the members of the erstwhile BUS convening to form the Bheratiya Janta Party (BJP), The 7th Lok Sabha elec tons were conducted in January 1980 & Indira Gandhi again became the Prime Minister. Immediately within 9 days trom 10.02.1900, Legislative Assembles of 9 States - Rajasthan, Andhra Pradesh, Bihar, Punjab, Uttar Pradesh, Madhya Pradesh, Gyjaral, Maharashtra and Orissa were dissolved by the then President Neelam Sanjeeva Reddy who acted on the advice of Indira Gandhi, Reddy varliorhad served as Minister in Indita Gandnited Govt. These State Governments were dismissed in spite of leaders inciud- ing Bhairon Singh Shekhawet, M.G. Ramachandran, ‘Sharad Pawar, Prakash Singh Badal, Bebu Banaras! Des enjoying majority suppor in their respective Assemblies Indira Gandhi was assessinated in 1964 in the after- math of Operation Blue Star and her son Rajiv Gandhi was engaged as the leader of INC. The BJP & Shiv Sena, continued with the issue of Hinduiva and the ‘ssue of Ram Janmathoomi Temple at Ayodtya, became en importantissue graduslly. This lod to cooking and casting of votes in the name of Hindutvat In 1985, elections were held to the Kamataka State Legislative Assembly & the Janata Dal won, RK Hegdebecame the Chief Minister. Due fo his resignation in 1988, SR. Bommal became the Chief Minister. Inter- party poitical aspirations collided & fow mombers of Janta Dal deflected leading to imposition of Presiden Rule in the State The Governor of the State then was Pondekanti Venkatasubbaiah, who was earlior a minstor in both India Gandhi and Rajv Gandhi Gorts. The President then was R Venkataraman who also served earlier as INC’s cabinet minister under Indira & Rajv Gandhi, Venkatasubbaiah refused to give Bommai an opportunty to test his majority n tha Assembly. This was despite the lalter presenting him with a copy of the reso- lution passed by the Janata Dal Laislature Party. Bommai challonged tho samo which utimatoly roachod the doors of ine Supreme Court. We will shorty come to its conclusion but few parallel developments are ‘oxiremaly interesting and gripping, It was under the regime of Raj Gandhi thal television serials such as Ramayan (1987) and Mahabharat (1988) were started on Doordershan. These were followed by many TV senals depicting Hindu Gods and Goddesses (ai Hanuman, Shri Krishna, Om Namah Shivay ofc) This worked against Rajiv Gandii and not only created public sentiment towards Hindutva but also led to ineroaso in buying of Hindu soriptures and pubishing houses such as Gita Press, Gorakhpur came in front. No one knew at that time that the national polites was awaiting @ massive upturn, In 1987, elections were conducted for Maherashtra legislative assembly Dr. RY. Prabhoo contested & won {rom Vile Paste Constituency on a Shiv Sena ticket which had sought votes in the name of Hindutva. it was chal engod as a corrupt practice and the Bombay High Court eclared his election invalid. Bal Thackrey was also found cuitty Appeals were fled before the Supreme Court in 1980. 1m 1990, V P Singh became the Prime Minister withthe support of BP. The then BJP prosident Lal Krishna ‘Advani took out a cross-country fath yatta with support from Shiv Sena and Vishwa Hindu Parishad (VHP) to ‘gamer support forthe mave to build @ Rem templa at tho le. This was a very important socio political develop- ment for the concept of Hindutva In the elections held in Feb 1990, BUP emerged as majonty party in the Legslatve Assemblies of Uttar Pradesh, Madhya Pradesh, Himachal Pradesh & Rajasthan & formed the Govt. Ih the 1900 election from Dadar constituency in Greater Bombay, Manohar Joshi, the BJP-Shiv Sena ‘candidate won against his Congress rival, Nitin Bhaurao Pati. Pati allegad that spaeches made by Joshi, Bal Thackeray, Pramod Nawalkar and Chhagan Bhujl vio lated Section 123 (3) and A) of he Representation of People Act—that is of using religion in seeking votes, The ‘main contention of the petitioner was that Shv Sena and [BJP sought voles “in the name of Hindutva, te. Hindu religion.” High Court declared the election void and this ‘matter elso reached the Supreme Court eventually. In the same elections, Abhiram Singh, another BJP Candidate won his seat from Santa Cruz constituency ‘against C.D. Commachen. His election was also chal lenged and the matter also reached doors of Supreme Court oventually i Thane Constituency, BJP's candidate Kapse won against Congress (N's candidate Harbansh Singh. Singh challenged the election on ground of corrupt practices. This was on basis of speeches made by Pramod Mahajan, Sadhvi Reetambhara and LK Advani seeking votes in the name of Hindutva. HC nullified the election. This matter also reached the doors of SC eventually. Congress came to power at contre after elections in 1991, while BJP became the major opposition party (On 05.02.1992, the disputed stucture Babri Masiid at ‘Ayodhya was demolished. Within 10 days, tho thonel It was under the regime of Rajiv Gandhi that televi- sion serials such as Ramayan (1987) and Mahabharat (1988) were started on Doordarshan. These were fol- lowed by many TV serials depicting Hindu Gods and Goddesses (Jai Hanuman, Shri Krishna, Om Namah Shivay etc). This worked against Rajiv Gandhi and not only created public sentiment towards Hindutva but also led to increase in buying of Hindu President Shankar Dayal Sharma, who also had served as Cental Minister for INC dismissed the State Governments in Uttar Pradesh, Madhya Pradesh, Himachal Pradesh & Rajasthan, In 1994, the important judgment in the SR Bommai'sease (1904 3 SCC 1) was pronounced. Whilo confirring that secularism is @ basic feature of the Constitution, seeking votes in the name of Hindutva also found recognition by SC, (Para 159 in the opinion of Ramaswamy J) by way of the submission of Ram Jothmalani on the issue. No express finding in this issue was however given by the Court In the samo year, Bharucha, J. in Ismail Faruqui(1994 (6) SCC 260] for himsolf & Ahmadi, J. odsorved *._.Hindussm Is a tolerant faith. t's that tolerance tnat has enabied Islam, Christianity, Zoroastranism, Judaism, 18 pugest 2 2020 Hinoutva / Anatysis Buddhism, Jainism and Sikhism to find shelter and sup: pport upon this land.” 3 judge combination speaking through Justice JS. Verma, the Suoreme Court decided appeals by Prabhoo and Bal Thackrey [1996 3 SCC 120, Para 31 Conwards} and held that the word "Hindutva" by iself does not invariably mean Hindu religion and it is the context ‘and the manner of its use which is material for deciding the meaning of the word "Hindutva" ina particular text. It cannot be hold thal i tho abstract the more word Hindutva” by Eself invariably must mean Hindu religio It was further held that the worts Hinduism’ or Hindutva’ ‘are not necessarily fo be understood & construed nar: rowy, contined only to the sinct Hindu religous practioas Unrelated to the culture and ethos of the people of India, depicting the vay of life of the incian people unless the context of a speech indicates a contrary meaning or use, in the abstract those torre aro indicative more of a way flile of the indian people and are not confined merely to describe persons practising the Hindu religion as a faith Considering the terms ‘Hinduism’ of ‘Hindutva’ per se ‘as depicting hostility, enmity or intolerance towards other religious faiths or professing communalism, proceeds from an improper appreciation and perception of the true moaning of these expressions. Misuse of these expres: iors te promote communalism cannot altor tho true ‘meaning of ese terms. The mischlet resulting trom the ‘misuse of the terms by anyone in his speech has to beCchockod and not its pormissiblo use. In Manohar Josh's Case [1996 1 SCC 169 decided on, 11.12 1995], Justice JS Verma reiterated the same hold- ing that it cannot be held that in the abstract the mere Word "Hindutva" by tse invariably must mean Hindu rel ion. Similar challenges from Aurangabad Constituency [1906 1 SCC 304 docided on 11.12.1005), Nohru Nagar Constituency [1996 1 SCC 384 decided on 11.12.1995] ‘and Kurla Constituency [1996 1 SCC 399 decided on 11.12.1995] were dumped using these judgments. In Kapse's Case [1996 1 SCC 206 decided on 11.12.1995], Justice JS Verma held that there was no legal evidence to prove corrupt practice that votes were sought in the ‘name of Hindu religion, These set of judgments, popularly known as the Hindutva judgments hold the filed on the subject. However, few months later in Abhitam Singh’s case [1996 3 SCC 665 decided on 16.04.1996] the issue was ‘referred to @ larger bench by a 3 judge bench which did not include Justice JS Verma. 1n.2002, in Narayan Singh v Sundertal Patwal, a quos tion of interpretation of Secton 123(3) of the Representation of People's Act, 1951 was referred to a bench of 7 judges. The issue in Abhirem Singh referred to a bench of 5 judges was heard by @ bench led by Justice Lodha in 2073/14 which found that the issue involved intorprotation of Section 123(3) of tho Representation of People's Act, 1951 and was tagged with Narayan Singh's case. The 7 judge bench rendered {a decision in question of reference in January 2017 and remanded the matter to reguar bench of 9 judges. In February 2020, the same was menticned to the Chiof Justice SA Bobde who agreed to list the maiter (which interestingly s a civil appeal trom 1992) alter the conclu sion of the @ judge bench hearng in Sabarimala hearing The matter stil awaits final adjudication while the Hindutva judgments hold the field. The tryst of Hindutva with politics and judiciary stil continues! (Namit Saxena is Advocate-n-Record, Suprome Court of India & ‘Rahul Chaudhary isa research scholar, DR RMLNLU, Lucknow)