IT was one of the most awaited judgements in recent times. And there was palpable tension in Maharashtra the day before it was to be delivered. On Monday, December 11, the Supreme Court was to decide not only the fate of Maharashtra ChiefMinister Manohar Joshi, but also define by implication whether or not appeal for votes based on Hindutva was permissible in election campaigns. The latter, of course, was the more important aspect of the case, for it was to come virtually on the eve of the general elections.
When the verdict was finally delivered by a bench comprising Justices J.S. Verma, N.P. Singh and K. Venkataswami in the packed courtroom number three, its echoes were heard in every section of the nation's polity. The Hindutva brigade of the BJP and the Shiv Sena burst into applause—Bal Thackeray's indictment was only a small price to pay for a larger cause. The National Front-Left Front combine spluttered in stunned disbelief. The Sena-BJP alliance's primary source of worry had been the possible fallout if the apex court had confirmed the Bombay High Court verdict disqualifying Joshi.
With the Sena-BJP rejoicing over the verdict, the secular front's worries had multiplied, not only on account of the benefits that would accrue to the Hindutva brigade, but also because of the possibility of the upcoming campaign becoming virulently communal in the context of the judgement. As for the Congress, it was too busy trying to handle the telecom controversy in Parliament, and all its spokesman V.N. Gadgil could mumble was, "we respect the verdict of the highest court".
The BJP did not hide its delight. "The judgement is a seal of judicial imprimatur to the BJP's ideology of Hindutva," said party chief L.K. Advani. "The BJP believes India is one country and that Indians are one people. We hold that the basis of this unity is our ancient culture. For us this nationalism is not just a geographical or political concept. It is essentially a cultural concept. Whether you call it Hindutva or Bharatiyata or Indianness, the nomenclature does not matter. It is all the same."
The jubilation was understandable. For, the court—through citations from as varied sources as the Webster's Dictionary, the Encyclopaedia Britannica and earlier judgements—had held that "Hindutva or Hinduism per se" cannot be "assumed to mean and be equated with narrow fundamentalist Hindu religious bigotry," or be construed to fall within the ambit of the sections of the Representation of the People Act (RPA) under which Joshi's election had sought to be set aside. The court had broadened the word "Hindutva" to be "used and understood as a synonym for Indianisation, i.e., development of a uniform culture by obliterating the differences between all the cultures co-existing in the country."
The forces of the emerging secular third front were not amused. They felt the Supreme Court's observation of the term Hindutva, based on broad philosophical terms and on legalese, had not quite taken into account the political context of the term, which had been virtually appropriated by the Sangh parivar and its allies, and that it had over the last few years evolved a distinct anti-minorities connotation.
"The judgement is ambiguous on the question of the use of religion for electoral purposes even though the bench has decried the use of religion during elections. It will encourage the use of religion for political ends. It, therefore, becomes necessary to review the provisions of the RPA and take steps to ensure that no legal ambiguity remains. Only this will make it impossible for fundamentalist parties to use religion for poll campaigns," said the Communist Party of India (Marxist) politburo.
But the need to amend the law to prevent the misuse of religion for political purposes is easier expressed than implemented. The Narasimha Rao Government learnt that lesson in 1993 when it rather unsuccessfully tried to push through the Constitution (80th Amendment) Billand the Representation of the People Amendment Bill seeking to delink religion from politics. The bills, as they were drafted, failed to secure the support of the National Front and Left parties even before they could be introduced in Parliament and had to be abandoned. Since then the Government has been too busy with its fire-fighting operations on various fronts to revive the move. And now, with the tenure of the Lok Sabha all but over, it is certain that the Sangh parivar would use the Hindutva appeal to try and storm to power at the Centre.
Not all the critics of the judgement were as subdued though. The DMK in Tamil Nadu was scathing in its broadside. Its official mouthpiece Murasoli said in an editorial: "...the apex court's interpretation of Hindutva and Hinduism has given new impetus to communalforces who are dancing like inebriated monkeys following this verdict. The BJP has declared Hindutva as its ideology. The Shiv Sena's aim is to establish Hindu rajya. (Their) vicious propaganda against people belonging to other faiths, the naked violent aggression directed towards minorities, gives only a communal colour to terms like Hinduism and Hindutva. No Indian has forgotten their role in the atrocities perpetrated against the Muslims. None has forgotten their despicable role in the diabolical act of destroying the Babri Masjid....The present judgement, based on finer nuances of semantics, will only strengthen the hands of the bigots."
It wasn’t as if the politicians alone were split in their opinion. Eminent Supreme Court lawyer Rajeev Dhavan too noted the context and the timing. "This judgement comes before the most difficult election that India will be going through. It comes after the nation has been polarised by the word Hindutva and intimidated by ugly versions of Hinduism," he said. On the equation of Hindutva with Indianisation, he castigated the court for wanting "to create an artificial construct of Hinduism which nobody has ever believed in except a handful of Indologists and no less a handful of judges".
Dhavan was also critical of the court's invention of the "narrow consent-nexus test," which he said was almost impossible to prove and felt the judgement could have ominous portends for future election campaigns. "It (the judgement) categorically blesses an interpretation of the word Hindutva and its electoral implications. There is no such specific interpretation for Islam or Christianity....It is true that it will also protect other appeals to religion but that will only make the election worse in terms of its fundamentalist flavour. A flex-ible law on religion arms all fundamentalists with mischievous conventional arms to muddy the 1996 election. But the spe-cific blessing on Hindutva arms the particular group with a nuclear device."
Dhavan’s colleague in the apex court, Shanti Bhushan, disagrees. Describing the verdict as "statesman-like", Bhushan felt both the BJP and the Janata Dal had misun-derstood its import. "The BJP is gloating over it. The Dal is sulking. Both perspectives are incorrect. The orders, read as a whole, prevent the BJP from communal propaganda. Without condemning Hindutva, the court has condemned the misuse of Hindutva."
Bhushan, obviously, saw a sense of balance between the severe strictures against Sena supremo Thackeray for his vitriol against the Muslims in the course of the campaign and the benefit of doubt given toJoshi. And there is reason to believe that the BJP, even while seeking to project the judgement as a strong endorsement of its policy, would exercise some caution in its poll campaign. The strategy, party sources said, would be to try and avoid the vitriol of the likes of Sadhvi Rithambhara from the platforms of party candidates and allow them a free run on their own. By doing that, they would be able to take advantage of the doubt as to whether the vitriolic campaign of the VHP and allied organisa-tions has "the consent" of the candidate concerned. After all, it is this doubt which formed the basis for the court letting Joshi off the hook. In any case, the threat of the law still looms over the BJP with the court finding prima facie evidence of a similar charge against Rajasthan Chief Minister Bhairon Singh Shekhawat, the relativelymoderate face of the party, and asking the state high court to try him.
The question that remains is whether the verdict would encourage the Sangh parivar and its allies to revert to the virulence of the 1990 campaign in which the BJP-Sena combine had few qualms about denigrating the " landes " (a derogatory term for the Muslims because of their circumcision)? Vithal Sawant, the election agent of the late Bhaurao Patil who had filed the original petition against Joshi, was certain it would. "Now that the court has given them an NOC, I am sure they will go back to what they did," he said. BJP General SecretaryPramod Mahajan hinted at such a shape of things to come. "Hindutva is our basic catchment area. I have to appeal to my constituency. I can't be looking at the 10 per cent Muslim vote in Maharashtra, and forget my constituency, can I?"
Even as the politicos absorbed the judge-ment and busied themselves with their poll strategy, there was one person for whom the fight was far from over. Bhaurao Patil's son Nitin, who had carried the case through after his father's death, refused to take the judgement as final. "I will file a review petition. I will appeal to the Chief Justice of India to have this case brought before a full constitutional bench," he said. His stand is that the judgement had "shown the way to militant parties".
For Nitin Patil, the whole affair has become much more than "daddy's case". "They are supporting the RSS way of life. They are challenging the Constitution which clearly says this is a secular country. In a mixed religious country, are we to learnthat Hinduism is nationalism? And does a Parsi now have to say that he is a Hindu first?" asked the man, who claimed that he pursued the case despite personal threats from gangsters like Amar Naik in Bombay. But most people, including Joshi's lawyer J.B. Chinai (who obviously was effusive inhis praise of the judgement) and Dhavan, feel there is little likelihood of the review petition being admitted.
But even if the review petition were to be admitted, by the time the judgement is delivered the elections would be over. And that remains the primary concern. What impact will the verdict have on the campaign styles of political parties like the BJP and the Shiv Sena on the one hand, and the Muslim League and the Majlis-e-Ittehadul Muslimeen on the other? The fear is that the Joshi case could well be cited as a precedent by fundamentalist parties to vitiate the atmosphere, and gain a legitimacy for their efforts to mix religion and politics. Judging by what has happened to the country's secular fabric in the last few years—the Ayodhya demolition, the subsequent riots, and the Bombay blasts—the mix could be an explosive one.
With Yubaraj Ghimire and Bhavdeep Kang in New Delhi and A.S Panneerselvan in Madras
