SUPREME COURT ON HINDU, HINDUTVA AND HINDUISM
24 May 2014" Term Hindutva is related more to the way of life of the people in the subcontinent................"
MEANING
OF `HINDUTVA' AND `HINDUISM'
The next contention relates to
the meaning of Hindutva and Hinduism and the effect of the use of these
expressions in the election speeches.
We have
already indicated the meaning of sub-section (3) of Section 123 of the R.P. Act
and the limit of its operation. It may be said straightaway that any speech
wherein these expressions are used, irrespective of their meaning, cannot by
itself fall within the ambit of sub-section (3) of Section 123, unless the
speech can be construed as an appeal to vote for a candidate on the ground that
he is Hindu or to refrain from voting for a candidate on the ground of his
religion, i.e., he not being a Hindu. We have also indicated that mere
reference to any religion In an election speech does not bring it within the
net of sub-section (3) and/or sub-section (3A) of Section 123, since reference
can be made to any religion in the context of secularism or to criticise any
political party for practising discrimination against any religious group or
generally for preservation of the Indian culture.In short, mere use of the word
Hindutva or Hinduism or mention of any other religion In an election speech
does not bring it within the net of sub-section (3) and/or sub-section (3A) of
Section 123, unless the further elements indicated are also present in that
speech. It Is also necessary to see the meaning and purport of the speech and
the manner in which it was likely to be understood by the audience to which the
speech was addressed. These words are not to be construed in the abstract, when
used in an election speech.
Both
sides referred copiously to the meaning
of the words Hindutva and Hinduism with reference to several writings. Shri
Jethmalani referred to them for the purpose of indicating the several meanings
of these words and to emphasise that the word Hindutva relates to Indian
culture based on the geographical division known as Hindustan , i.e., India .
On the other hand, Shri Ashok Desai emphasised that the term Hindutva used in
election speeches is an emphasis on Hindu religion bearing no relation to the
fact that India is also known as Hindustan , and the term
can relate to Indian culture.
The Constitution Bench in Sastri Yajnapurushadasji and Others Vs. Muldas Bhudardas Vaishya and Another, 1996 (3) SCR 242 held thus:
"Who
are Hindus and what are the broad features of Hindu religion, that must be the first part
of our enquiry in dealing with the present controversy between the parties. The
historical and etymological genesis of the word Hindu has given rise to a
controversy amongst Indologists; but the view generally accepted by scholars
appears to be that the word Hindu is derived from the river Sindhu otherwise
known as Indus which flows from the Punjab . That part of the great Aryan race,
says Monier Williams, "which immigrated from Central Asia , through the
mountain passes into India , settled first in the districts near the river
Sindhu (now called the Indus ). The Persians pronounced this word Hindu and
named their Aryan brethren Hindus. The Greeks, who probably gained their first
ideas of India from the Persians, dropped the hard aspirate, and called the
Hindus Indoi." ( Hinduism by Monier Williams, P. 1)
The
Encyclopedia of Religion and Ethics, Vol. VI, has described Hinduism as the
title applied to that form of religion which prevails among the vast majority
of the present population of the Indian Empire (P. 686). As Dr. Radhakrishnan
has observed: "The Hindu civilization is so called, since its original
founders or earliest followers occupied the territory drained by the Sindhu
(the Indus ) river system corresponding to the North-West Frontier Province and
the Punjab . This is recorded in the Pig Veda, the oldest of the Vedas, the
Hindu scriptures which give their name to this period of Indian history, The
people on the Indian side of the Sindhu were called Hindu by the Persian and
the later western invaders" ( The Hindu View of Life by Dr. Radhakrishnan, p. 12). That is
the genesis of the word Hindu.
Then 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 God: it does not subscribe to any one dogma: it does not believe in any
one philosophic concept: it does not follow any one set of religious rites or performances;
in fact, it does not appear to satisfy the narrow traditional features of any
religion or creed. It may broadly be described as a way of life and nothing
more.
It had
originally a territorial and not a cradle significance. It implied residence in
a well-defined geographical area. Aboriginal tribes, savage and half-civilized
people, the cultured Dravidians and the Vedic Aryans were all Hindus as they
were the sons of the same mother. The Hindu thinkers reckoned with the striking
fact that the men and women dwelling in India belonged to different
communities, worshipped different gods, and practised different rites (Kurma
Purana) (Ibid p. 12).
Monier Williams has observed that "it
must be borne in mind that Hinduism is far more than a mere form of theism
resting on Brahmanism. It presents for our investigation a complex congeries of
creeds and doctrines which in its gradual accumulation may be compared to the gathering
together of the mighty volume of the Ganges, swollen by a continual influx of
tributary rivers and rivulets, spreading itself over an ever-increasing area of
country and finally resolving itself into an intricate Delta of tortuous
streams and jungly marshes... The Hindu religion is a reflection of the
Composite character of the Hindus, who are not one people but many. It is based
on the idea of universal receptivity. It has ever aimed at accommodating itself
to circumstances and has carried on the process of adaptation through more than
three thousand years. It has first borne with and then, so to speak, swallowed,
digested, and assimilated something from all creeds". ( Religious
Thought & Life in India by
Monier Williams, P. 57)
We have
already indicated that the usual tests which can be applied in relation to any
recognised religion or religious creed in the world turn out to be inadequate
in dealing with the problem of Hindu religion. Normally, any recognised
religion or religious creed subscribes to a body of set philosophic concepts
and theological beliefs. Does this test apply to the Hindu religion? In
answering this question, we would base ourselves mainly on the exposition of
the problem by Dr. Radhakrishnan in his work on Indian philosophy. ( Indian
Philosophy by Dr.
Radhakrishnan, Vol. I, pp. 22-23). Unlike other countries, India can claim that
philosophy in ancient India was not an auxiliary to any other science or art,
but always held a prominent position of independence... "In all the
fleeting centuries of history", says Dr. Radhakrishnan, "in all the
vicissitudes through which India has passed, a certain marked identity is
visible. It has held fast to certain psychological traits which constitute its
special heritage, and they will be the characteristic marks of the Indian
people so long as they are privileged to have a separate existence" . The
history of Indian thought emphatically brings out the fact that the development
of Hindu religion has always been inspired by an endless quest of the mind for
truth based on the consciousness that truth has many facets: Truth is one but
wise men describe it differently. (...) The Indian mind has, consistently
through the ages, been exercised over the problem of the nature of godhead, the
problem that faces the spirit at the end of life, and the interrelation between
the individual and the universal soul. "If we can abstract from the
variety of opinion", says Dr. Radhakrishnan, "and observe the general
spirit of Indian thought, we shall find that it has a disposition to interpret
life and nature in the way of monistic idealism, though this tendency is so
plastic, living and manifold that it takes many forms and expresses itself in
even mutually hostile teachings". (...)
The
development of Hindu religion and philosophy shows that from time to time
saints and religious reformers attempted to remove from the Hindu thought and
practices elements of corruption and superstition and that led to the formation
of different sects. Buddha started Buddhism; Mahavir founded Jainism: Basava
became the founder of Lingayat religion; Jnaneshwar and Tukaram initiated the
Varakari cult: Guru Nanak inspired Sikhism: Dayananda founded Arya Samaj: and
Chaitanya began Bhakti cult; and as a result of the teachings of Ramakrishna
and Vivekananda, Hindu religion flowered into its most attractive, progressive
and dynamic form. If we study the teachings of these saints and religious
reformers, we would notice an amount of divergence in their respective views.
but underneath that divergence, there is a kind of subtle indescribable unity
which keeps them within the sweep of the broad and progressive Hindu religion.
The
Constitution-makers were fully conscious of this broad and comprehensive
character of Hindu religion: and so, while guaranteeing the fundamental right
to freedom of religion, explanation II to Art. 25 has made it clear that in
sub-clause (b) of clause (2), the reference to Hindus shall be construed as
including a reference to persons professing the Sikh, Jam or Buddhist religion,
and the reference to Hindu religious institutions shall be construed
accordingly."
(from pages 259-266)
In a
later Constitution Bench decision in Commr. of Wealth Tax. Madras & Ors.
Vs. Late R. Sridharan by L. Rs. (1976) Supp. SCR478, the meaning of the term
Hinduism as commonly understood is stated thus:
"...It
is a matter of common knowledge that Hinduism embraces within self so many
diverse forms of beliefs. faiths. practices and worship that it is difficult to
define the term Hindu with precision.
The
Historical and etymological genesis of the word Hindu has been succinctly
explained by Gajendragadkar, C.J. in Shastri Yajnapurushdasji & Ors. Vs.
Muldas Bhudardas Vaishya & Anr. (A.I.R. 1966 S.C. 1119).
In
Unabridged Edition of Webster's Third New International Dictionary of the
English Language, the term Hinduism has been defined as meaning "a complex
body of social, cultural and religious beliefs and practices evolved in and
mostly confined to the Indian subcontinent and marked by a caste system, an outlook
tending to view all forms and theories as aspects of one eternal being and
truth, a belief in ahimsa, karma, dharma, sansara and moksha, and the practice
of the way of works, the way of knowledge, or the way of devotion as the means
of release from the bound of rebirths, the way of life and form of thought of a
Hindu".
In
Encyclopedia Britannica (15th edition), the term Hinduism has been defined as
meaning "the civilization of Hindus (originally, the inhabitants of the
land of the Indus River ). It properly
denotes the Indian civilization of approximately the last 2,000 years, which
gradually evolved from Vedism, the religion of the ancient Indo-Europeans who
settled in India in the last centuries of the 2nd millennium B.C. Because it
integrates a large variety of heterogeneous elements. Hinduism constitutes a
very complex but largely continuous whole and since it covers the whole of
life, it has religious social, economic, literary, and artistic aspects. As a
religion, Hinduism is an utterly diverse conglomerate of doctrines, cults, and
way of life... In Principle, Hinduism incorporates all forms of belief and
worship without necessitating the selection or elimination of any. The Hindu is
inclined to revere the divine in ever manifestation. whatever it may be, and is
doctrinally tolerant. leaving others including both Hindus and non-Hindus -
whatever creed and worship-practices suit them best. A Hindu may embrace a
non-Hindu religion without ceasing to be a Hindu. and since the Hindu is
disposed to think synthetically and to regard other forms of worship, strange
gods and divergent doctrines as inadequate rather than wrong or objectionable,
he tends to believe that the highest divine powers complement each other for the well-being
of the world and
mankind. Few religious ideas are considered to be finally irreconcilable. The
core of religion does not even depend on the existence or nonexistence of God
or on whether there is one god or many. Since religious truth is said to
transcend all verbal definition, it is not conceived in dogmatic terms.
Hinduism is, then, both a civilization and a conglomerate of religions, with
neither a beginning, a founder, nor a cult of authority, hierarchy, or
organization. Every attempt at a specific definition of Hinduism has proved
unsatisfactory in one way or another, the more so because the finest Indian
scholars of Hinduism,including Hindus themselves, have emphasized different
aspects of that religion."
In his
celebrated treatise Gitarahasya, B.G. Tilak has given the following broad
description of the Hindu religion:
"Acceptance
of the Vedas with reverence:
recognition of the fact that the means or ways of salvation are diverse; and
realisation of the truth that the number of gods to be worshipped is large,
that indeed is the distinguishing feature of Hindu religion".
In
Bhagwan Koer Vs.J.C. Bose & Ors., (1 904 ILR 31 Cal. 11), it was held that
Hindu religion is marvelously catholic and elastic. Its theology is marked by
eclecticism and tolerance and almost unlimited freedom of private worship....
This
being the scope and nature of the religion,it is not strange that it holds
within its fold men of
divergent views and traditions which have very little in common except vague
faith in what may be called the fundamentals of the Hindu religion."
(at
pages 481-482)
These
Constitution Bench decisions, after a detailed discussion, indicate that no
precise meaning can be ascribed to the terms Hindu, Hindutva and Hinduism; and
no meaning in the abstract can confine it to the narrow limits of religion
alone, excluding the content of Indian culture and heritage. It is also
indicated that the term Hindutva is related more to the way of life
of the people in the subcontinent. It is difficult to appreciate how in
the face of these decisions,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
sub-section (3) and/or (3A) of Section 123 of the R.P. Act.
Bharucha,
J. in Dr. M. Ismail Faruqui and Ors. etc. Vs. Union of India & Ors. etc.,
1994 (6) SCC 360 (Ayodhya case), in the separate opinion for himself and
Ahmadi. J. (as he then was), observed as under:
"...Hinduism
is a tolerant faith. It is that tolerance that has enabled Islam, Christianity,
Zoroastrianism, Judaism, Buddhism, Jainism and Sikhism to find shelter and
support upon this land,.."
(at
page 442)
Ordinarily,
Hindutva is understood as a way of life or a state of mind and it is not to be
equated with. or understood as religious Hindu fundamentalism. In Indian
Muslims-The Need For A Positive Outlook by Maulana Wahiduddin Khan, (1994), it
is said:
"The
strategy worked out to solve the minorities problem was, although differently
worded. that of Hindutva or Indianisation. This strategy, briefly stated, aims
at developing a uniform culture by obliterating the differences between all of
the cultures coexisting in the country. This was felt to be the way to communal
harmony and national unity. It was thought that this would put an end once and
for all to the minorities problem."
(at
page 19)
The
above opinion indicates 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 co-existing in the country.
In
Kultar Singh vs. Mukhtiar Singh, 1964 (7) SCR 790. the Constitution Bench
construed the meaning of subsection (3) of Section 123 prior to its amendment.
The question there was whether a poster contained an appeal to voters to vote
for the candidate on the ground of his religion, and the meaning of the word
Panth in the poster was significant for the purpose. It was held as under:
"It
is true that a corrupt practice under S. 123 (3) can be committed by a
candidate by appealing to the voters to vote for him on the ground of his
religion even though his rival candidate may belong to the same religion. If,
for instance, a Sikh candidate were to appeal to) the voters to vote for him,
because he was a Sikh and add that his rival candidate, though a Sikh in name,
was not true to the religious tenets of Sikhism or was a heretic and, as such,
outside the pale of the Sikh religion, that would amount to a corrupt practice
under S. 123(3), and so, we cannot uphold the contention that S. 123(3) is
inapplicable because both the appellant and the respondent are Sikhs....
The
corrupt practice as prescribed by S. 123(3) undoubtedly constitutes a very
healthy and salutary provision which is intended to serve the cause of secular
democracy in this country. In order that the democratic process should thrive
and succeed, it is of utmost importance that our elections to Parliament and
the different legislative bodies must be free from the unhealthy influence of
appeals to religion, race, caste, community, or language. If these
considerations are allowed any sway in election campaigns, they would vitiate
the secular atmosphere of democratic life, and so, S. 123(3) wisely provides a
check on this undesirable development by providing that an appeal to any of
these factors made in furtherance of the candidature of any candidate as
therein prescribed would constitute a corrupt practice and would render the
election of the said candidate void.
In
considering the question as to whether the distribution of the impugned poster
by the appellant constitutes corrupt practice under S. 123(3), there is one
point which has to be borne in mind. The appellant has been adopted as its
candidate by the Akali Dal Party. This Party is recognised as a political party by the
Election Commission not with standing the fact that all of its members are only
Sikhs. It is well-known that there are several parties in this country which
subscribe to different political and economic ideologies but the membership of
them is either confined to or predominantly held by members of particular
communities or religions. So long as law does not prohibit the formation of
such parties and in fact recognises them for the purpose of election and
parliamentary life, it would be necessary to remember that an appeal made by
candidates of such parties for votes may, if successful, lead to their election
and in ail indirect way, may conceivably be influenced by considerations of
religion, race, caste, community or language. This infirmity cannot perhaps be
avoided so long as parties are allowed to function and are recognised though
their composition may be predominantly based on membership of particular
communities or religion. That is why we think, in considering the question as
to whether a particular appeal made by a candidate falls within the mischief of
S. 123(3), courts should not be astute to read into the words used in the
appeal anything more than can be attributed to them on its fair and reasonable
construction.
That
takes us to the question of construing the impugned poster. The principles
which have to be applied in construing such a document are well-settled. The
document must be read as a whole and its purport and effect determined in a
fair objective and reasonable manner. In reading such documents it would be
unrealistic to ignore the fact that when election meetings are held and appeals
are made by candidates of opposing political parties the atmosphere is usually
surcharged with partisan feelings and emotions and the use of hyperboles or
exaggerated language or the adoption of metaphors and the extravagance of
expression in attacking one another are all a part of the game and so, when the
question about the effect of speeches delivered or pamphlets distributed at
election meetings is argued in the cold atmosphere of a judicial chamber, some
allowance must be made and the impugned speeches or pamphlets must be construed
in that light. In doing so, however, it would be unreasonable to ignore the
question as to what the effect of the said speech or pamphlet would be on the
mind of the ordinary voter who attends such meetings and reads the pamphlets or
hears the speeches. It is in the light of these well established principles
that we must now turn to the impugned pamphlet."
(at
pages 793-795)
The
test applied in the decision was to construe the meaning of the word Panth not
in the abstract but in the context of its use. The conclusion reached was that
the word Panth used in the poster did not mean Sikh religion and, therefore,
the appeal to the voters was not to vote for the candidate because of his
religion. Referring to an earlier decision in Jagdev Singh Sidhanti Vs. Pratap
Singh Daulta and Ors., 1964 (6) SCR 750, it was reiterated as under:
"...Political
issues which form the subject-matter of controversies at election meetings may
indirectly and incidentally introduce considerations of language or religion,
but in deciding the question as to whether corrupt practice has been committed
under S. 123(3), care must be taken to consider the impugned speech or appeal
carefully and always in the light of the relevant political controversy......
(at
page 799)
Thus,
it cannot be doubted, particularly in view of the Constitution Bench decisions
of this Court that the words Hinduism or Hindutva are not necessarily to be
understood and construed narrowly,confined only to the strict Hindu religious
practices unrelated to the culture and ethos of the people of India . depicting
the way of life of the Indian people. 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 practising the Hindu religion as a faith.
Considering
the terms Hinduism or 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 meaning of these
expressions emerging from detailed discussion in earlier authorities of this
Court. Misuse of these expressions to promote communalism cannot alter the true
meaning of these terms. The mischief resulting from the misuse of the terms by
anyone in his speech has to be checked and not its permissible use. It is
indeed very unfortunate, if in spite of the liberal and tolerant features of
Hinduism recognised in judicial decisions, these terms are misused by anyone
during the elections to gain any unfair political advantage. Fundamentalism of
any colour or kind must be curbed with a heavy hand to preserve and promote the
secular creed of the nation. Any misuse of these terms must, therefore, be
dealt with strictly.
It is.
therefore. a fallacy and an error of law to proceed on the assumption that any
reference to Hindutva or Hinduism in a speech makes it automatically a speech
based on the Hindu religion as opposed to the other religions or that the use
of words Hindutva or Hinduism per se depicts an attitude hostile to all persons
practising any religion other than the Hindu religion. It is the kind of use
made of these words and the meaning sought to be conveyed in the speech which
has to be seen and unless such a construction leads to the conclusion that
these words were used to appeal for votes for a Hindu candidate on the ground
that he is a Hindu or not to vote for a candidate because he is not a Hindu,
the mere fact that these words are used in the speech would not bring it within
the prohibition of sub-section (3) or (3A) of Section 123. It may well be that
these words are used in a speech to promote secularism or 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
parliamentary debates, including the clarifications made by the Law Minister
quoted earlier, also bring out this difference between the prohibited and
permissible speech in this context. Whether a particular speech in which
reference is made to Hindutva and/or Hinduism falls within the prohibition
under sub-section (3) or (3A) of Section 123 is, therefore, a question of fact
in each case.
This is
the correct premise in our view on which all such matters are to be examined.
The fallacy is in the assumption that a speech in which reference is made to
Hindutva or Hinduism must be a speech on the ground of Hindu religion so that
if the candidate for whom the speech is made happens to be a Hindu, it must
necessarily amount to a corrupt practice under sub-section (3) or sub-section
(3A) of Section 123 of the R.P. Act. As indicated, there is no such presumption
permissible in law contrary to the several Constitution Bench decisions
referred herein.