National

A Belated Rider

The Supreme Court clarifies communal campaigning is a no-no

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A Belated Rider
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IT was hailed as the highest sanction for votaries of Hindutva. Vishwa Hindu Parishad chief Ashok Singhal even saw the beginning of a "yug parivartan"— epochal change—in the Supreme Court verdict that allowed Maharashtra Chief Minister Manohar Joshi to continue in office last December. The fears it raised of a highly communal general election led Mohammed Aslam, a smalltime shopkeeper from New Delhi's Jama Masjid area, to seek a review of the judge-ment, in what is now popularly referred to as the Hindutva case. Aslam's writ petition was dismissed, but he is happier for it. For, the court observed that its judgement had been misread, and any candidate carrying this misunderstanding to the polls with a communal campaign would have to be ready for an unhappy surprise.

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"If it happens, we are here to correct it," observed Justices J.S. Verma, M.P. Singh and K. Venkataswami, members of the three-judge bench which dismissed Aslam's petition. "The BJP and its affiliates had sought to use the Manohar Joshi judgement to propound the theory that their divisive Hindutva campaign had the court's blessings, but the response my petition has elicited has quelled the fears of the minorities in this respect," says Aslam, who has filed numerous petitions, including the famous Ayodhya one which sent former Uttar Pradesh chief minister Kalyan Singh to jail for a day.

Aslam's allegation that the Sangh parivar is all set to release a million video cassettes and thrice that number of audio cassettes for the current poll campaign has elicited no confirmation from partymen, now not so willing to talk of the militant line they once freely propounded. The BJP's central leadership has been insisting that its poll strategy will remain unaffected. Says senior BJP leader K.R. Malkani: "The ruling on the Manohar Joshi case stands. The observations of the three-judge bench only clarifies what was already clear. It is natural for a Hindu to use the Hindu idiom and for a Muslim to use the Islamic idiom while speaking, even at election meetings. It in no way amounts to drag ging religion into politics."

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Privately, some leaders admit that the Supreme Court's clarification is a dampener to what might have been a well-honed Hindu appeal. There are others who are downplaying its significance. 

"I have said Hindutva is rashtriyata. And in that context if I campaign, there is nothing wrong," explains Joshi, clarifying his earlier statement to the media that the Shiv Sena would seek a mandate on Hindutva. 

Taking up the words 'Hindutva' and 'rashtriyata', J.B. Chinai, an advocate who represented Joshi, argues the importance of the verdict: "What the Supreme Court said was that Hindutva is not a mantra which, as soon as it is uttered, will lead to the setting aside of an election. But if a candidate proceeds on the assumption that this is a sanction to campaign on grounds of religion, he's making a grievous mistake." Chinai explained that Joshi had expressed a hope, and not campaigned on religion, when he said the first Hindu state would be established in Maharashtra. This was one of the statements used in the petition challenging Joshi's election—his election to the state assembly was set aside by Justice S.N. Variava of the Bombay High Court. Variava counted evidence against Joshi, like the extensive use of two video cassettes appealing for Hindu votes, besides his claims that only he could protect Hindus. But the judgement was overruled by the Supreme Court on December 11, giving Joshi a fresh lease of political life. "In our opinion, a mere statement that the first Hindu state will be established in Maharashtra is by itself not an appeal for votes on the ground of religion but the expression, at best, of such a hope. However despicable be such a statement, it cannot amount to an appeal for votes on the ground of religion," the court clarified.

For the Congress and other parties, this clarification is a boon. Some BJP leaders, however, feel that fortunately the timing of the Supreme Court's explanation has been too close to the polls for opponents to take advantage of what is being seen by many as a rap on the knuckles of the Sangh parivar.

Says Janata Dal General Secretary Ram Vilas Paswan: "The clarification has been good for the cause of secularism in India. It was about time they took note of the fact that the Joshi judgement was being misinterpreted by the BJP and being used as propaganda for the forthcoming elections."

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Beleaguered Congress MPs from Maharashtra, trying to retain their seats in a state where they lost the assembly polls for the first time last year, are relieved. Says Congress MP Gurudas Kamat: "They were elated with the judgement in December. They took it as the ultimate certificate for all that they have been propagating. In utter contempt of the court and the Election Commission, L.K. Advani has been saying that the temple will be built in Ayodhya, come what may. The Supreme Court's clari-fication should be a check on their ecstatic Hindutva propaganda." 

Nitin Patil, the man who challenged Joshi's election and threatened to file a review petition after the apex court ruled in the chief minister's favour, calls the clarification his victory. "Advani and company were calling the judgement a victory for their Hindu prachar. Now candidates have been shown the light. This can help them upturn elections in states where the Hindu propaganda is very strong. It is a victory for me." Patil, however, feels that the court should make clear the route to overturning an election. "Bal Thackeray can come to a constituency and give a militant speech. It is difficult to prove that it is done with the candidate's consent," argues Patil.

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Supreme Court lawyer Rajeev Dhawan, who had held that the Joshi judgement"armed the Hindutva forces with a nuclear device", feels that the clarification cannot check the use of Hindutva in the elections. Says Dhawan: "Proof of this lies in the fact that within two days of the clarifica-tion, the BJP indicated that Hindutva would be its main plank in the elections. Fears in this regard deepen because, under the law laid down in the Hindutva judge-ments, any appeal to Hindutva by the party or any speech made by a party leader in a particular constituency cannot be attributed to the candidate unless actual consent or nexus can be shown. The Hindutva slogan machines of the BJP are drawing courage from the lack of clarification in this regard." 

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In Maharashtra, scarred by a series of court battles that have set aside elections of several saffron candidates, the two sides are wary of crossing the line. "After so many court bouts, we have become legally clever. We will use Hindutva only in that light which the court spoke of," says Prakash Javadekar, a leader from the BJP's Maharashtra unit. Manohar Joshi's appeal against a Bombay High Court order of April 26, 1993, which set aside his (February '90) election to the state assembly, came up for hearing in the Supreme Court, along with 12 others. They were MPs and MLAs of the BJP-Sena alliance whose election had been set aside for seeking votes on the grounds of religion.

Shiv Sena chief Bal Thackeray whose election speeches of 1990 were peppered with derogatory remarks against Muslims was found guilty of corrupt electoral practices. The election of a Sena MLA, Suryakant Mahadik, was also set aside for what constituted a direct appeal on the grounds of religion: he made a speech before a congregation in a temple. A precedent of elections being upturned by the Bombay High Court, which began first with the 1987 by-election of a Sena candidate being challenged—and set aside—received a reprieve with the Joshi verdict. "That sword is off our heads. Hindutva is no longer a bad word," BJP leader Pramod Mahajan had said then, hailing the judgement. Now their position stands clarified: the sword is still hovering over their heads. 

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