Hindutva, Hinduism not a religion, it’s way of life: SC reiterates
The Supreme Court on Tuesday (25th of October 2016) categorically decided that it would not reconsider its judgment handed down in 1995, according to which ‘Hindutva’ or ‘Hindusim’ is not a religion, but only a way of life. This may now pave the way for many political parties to use symbolisms like “Ram”, “Bhim” (read Bhim Rao Ambedkar) etc., especially when the largest Indian state of Uttar Pradesh (UP) is in a poll mode.
India’s top court had been hearing an issue of 1990 in which Maharashtra legislator Abhiram Singh’s election was nullified by the Bombay High Court.
While hearing this case, the SC said it would examine the “sweep and ambit” of Section 123(3) of the Representation of the Peoples Act (RPA), which prohibits the use of religion to garner votes in any election. The question was actually before a five-judge bench which referred it to a larger bench and hence the present 7-bench presided by CJI TS Thakur.
Senior advocate Arvind Datar, appearing for Abhiram Singh, referred to Section 123(3) of the Act to contend that a corrupt practice can only be established if either the “candidate or his agent” seek votes in the name of religion or caste or region.
However, social activists Teesta Setalvad (of the Gujarat riots fame), Shamsul Islam and Dilip Mandal intervened in the debate and wanted the court to reconsider the 1995 judgment which said Hindutva or Hinduism “per se” is not an offence as it is only a way of life.
Their eyes were clearly set on elections to five state legislative assemblies to be held in 2017.
The BJP is using the 2005 judgment to buttress its point that use of “Hindutva” is not an offence. The question is whether a religious leader’s appeal to vote for a particular political party amount to electoral malpractice under the Section.
The provision under Section 123(3) of the RPA stipulates that for the disqualification of a candidate, it is necessary to prove if the candidate or anyone on his/her behalf, is found “promoting or attempting to promote feelings of enmity or hatred between different classes of the citizens of India on grounds of religion, race, caste, community or language, for furtherance of the prospects of the election of that candidate or for prejudicially affecting the election of any candidate”. Parliament in its wisdom widened the scope of the term “corrupt” or “electoral malpractices” by incorporating the words “separatist and communal tendencies”.
For example, a Sikh can seek votes for a Hindu and a Christian can seek votes for a Muslim candidate. Does it amount to seeking votes in the name of religion?
However, the applicants (Teesta and others) apprehended that the interpretation would encourage political parties to use religious appeals for votes under the garb of ‘Hindutva’ which is defined as not a religion but only a ‘way of life’.
The RPA says “corrupt practices” during elections include an appeal by a candidate or his agent or by any other person with the consent of a candidate or his election agent to vote or refrain from voting for any person on the ground of his religion, race, caste, community or language or the use of, or appeal to religious symbols or the use of, or appeal to, national symbols for furtherance of the prospects of the election of that candidate or for prejudicially affecting the election of any candidate”.
The earlier judgment said ‘Hindutva’ does not “prejudicially” affect any prospects of any candidate in an election. Supposing a supporter of a candidate seeks votes in any name, it has to have the consent of that candidate. Who can prove that such a call had the consent of the candidate? But the reality in India is that elections are fought, won and lost in the name of religion, caste, community and what not.