Contextualizing the Secular Fabric of India and Section 123 of RP Act
The shadow of a sinister ghost lurks over the Indian polity. Opportunistic, even supremacist notions of society are being articulated by major political players and their parties, programmes and manifestos, all working decidedly against the rich tradition of India’s pluralism by narrowly using our religious and caste identities pitted against each other. Especially during election time which is the festival for garnering voter support. There is a strong need to be watchful of the very functioning of the political parties who are holding the composite political system of the country to ransom for narrow electoral gain. Thus destroying our secular fabric, ironically, through the very electoral process, that is the heart of any democracy.
Though, constitutionally, the role of political parties has not been defined, there is no possibility of a politics within the parliamentary system without a healthy party system that believes, upholds and re-enforces constitutional values. It is in this spirit, that Section 123 of the Representation of Peoples Act (RPA), 1951 was devised as a reasonable restriction on political speeches in the interest of maintaining the integrity of the nation based on common citizenship and not on religion, race or caste.
Section 123 therefore erected a wall of separation between state on one hand and religion, caste, race and language on the other hand. Any party or organisation campaigning elections on any of these prohibited grounds has the proximate effect of eroding the integrity of nation and secular philosophy embedded in the Constitution and would undoubtedly be perpetrator of an unconstitutional course of action.
Introducing religion into politics is to introduce an impermissible element into the body politic and an imbalance in our constitutional system.
Functional Jurisprudence Upheld
The Supreme Court in S.R. Bommai v. Union of India [(1994) 3 SCC 1 Paras. 310-311] very firmly held that Political parties are formed and exist to capture or share State power. That is their aim. They may be associations of individuals but one cannot ignore the functional relevance. One cannot conceive a democratic form of government without the political parties.
If the Constitution requires the State to be secular in thought and action, the same requirement attaches to political parties as well. The Constitution does not recognise, it does not permit, mixing religion and State power. Both must be kept apart. That is the constitutional injunction. Introducing religion into politics is to introduce an impermissible element into body politic and an imbalance in our constitutional system.
The most unsettling feature of the present time is the way the ruling right-wing party espouses Hindutva and romanticises it for electoral gain. By careful design, the party is flamboyantly using Hindutva in its electoral campaign and policy initiatives without calculating the damage done to syncretic India. In the imagined India of the right-wing party, all other religions as a way of life have been pushed to a less favourable or secondary status. This is plainly antithetical to Articles 14 to 16, 25 and the entire constitutional scheme adumbrated hereinabove.
Under our Constitution, no party or organisation can simultaneously be a political and a religious party. It has to be either. Same would be the position, if a party or organisation acts and/or behaves by word of mouth, print or in any other manner to bring about the said effect, it would equally be guilty of an act of unconstitutionality.
If Hinduism is a way of life as suggested by the Supreme Court, then so are Islam and Christianity, or any other.
The Hindutva Verdict
A bench of Supreme Court headed by the late Justice J S Verma in Dr Ramesh Yeshwant Prabhoo (Hindutva Judgement) ventured to define the meaning of the word "Hindutva" or "Hinduism" contextualizing it with election publicity and clinched that the words "Hinduism" or "Hindutva" must not be construed narrowly and 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. The bench has further observed that "the mere fact that these words (Hindutva or Hinduism) are used in the speech would not bring it within the prohibition of sub-section (3) or (3A) of Section 123. This approach defies reality and hence beyond our comprehension. When term Hindu, Hinduism and Hindutva is used by a politician particularly the Hindu fundamentalists, it refers primarily to Hindu religion to the general voter/masses. An audience more educated than the average Indian electorate would not comprehend it as inclusive of the culture and religion of those whose religion originated outside India, such as Muslims, Christians and Jews.
The apex court in Suryakant VenkatraoMahadik v. Saroj Sandesh Naik (Bhosale) [(1996) 1 SCC 384] (Mahadik case) held speeches by a candidate and some others made on different dates referring to Hindutva as corrupt practice. Also appeals by such Hindu candidate to a congregation of Hindu devotees in a Hindu temple during a Hindu religious festival with emphasis on the Hindu religion for giving votes to a Hindu candidate espousing the cause of Hindu religion was held to be corrupt practice.
This court also specified (Para 14) that whether an appeal is such that voters understand the meaning and use of the word "Hindutva" in the speech as appealing to Hindu religion is the relevant factor.
This judicial logic was deduced from two previous five-judge bench decisions of the Supreme Court namely Sastri Yagnapurushadji v. Muldas Bhudarda Vaishya 1966 (3) SCR 242; and Commissioner of Wealth Tax, Madras v. late R. Sridharan by LPs, 1976 SCR 478 but interestinglyneither of these two judgements support the conclusion of the Supreme Court that Hindutva or Hinduism means the culture of the people of India in entirety.The bench also unnoticed the fact that same judgement elucidated the essential features of a Hindu and one such “acceptance of the Vedas which is a religious text with reverence as the highest authority as defined in Bramchari Sidheswar Shai and others Versus State of West Bengal.Hinduism or Hindutva has two contextual meanings.
The Hindutva judgement does not illuminate these functional insinuations of Hinduism or Hindutva and hence its reconsideration was imperative but seven-judge bench of Supreme Court hearing arguments in Abhiram Singh v. C.D. Commachen and Narayan Singh v. Sunderlal Patwa appears to have let slip this opportunity.
The broader meaning as proliferated by scholars like Swami Vivekananda who said in World Parliament of Religions (1893) that, “the Christian is not to become a Hindu or a Buddhist, nor a Hindu or a Buddhist to become a Christian. But each must assimilate the spirit of the others and yet preserve his individuality and grow according to his own law of growth.” The narrower meaning is very common and associated with religion as spread by Hindu radicals such as Vishva Hindu Parishad, Shiv Sena and other such political and non-political groups. Appealingelectorates in the name of Hindu Rastra, or Ram Madir would fall certainly under section 123 of the RP Act.
Functional Relevance is Vital to Save Parliamentary Democracy
If Hinduism is a way of life as suggested by the Supreme Court, then so are Buddhism, Islam Christianity – or any other religious domination – for their followers. All dictionaries suggest that way of life describes the pattern in which a person lives which includes their religion, their language, their arts and crafts, their ways of earning a living, and their behaviour with others. The Hindutva judgement does not illuminate these functional insinuations of Hinduism or Hindutva and hence its reconsideration was imperative but seven-judge bench of Supreme Court hearing arguments in Abhiram Singh v. C.D. Commachen and Narayan Singh v. Sunderlal Patwa appears to have let slip this opportunity.
If the task of reforming political parties is not assumed thoroughly and instantly, the future of Indian democracy will be in serious peril.
While recognising the far-reaching and paramount authority of the state, the Constitution articulates with equal clarity the principle of secularism and tolerance, which is integral part of our constitutionalphilosophy towards religion. This was echoed by Chinnappa Reddy J. in the National Anthem Case:
Our tradition teaches tolerance; our philosophy preaches tolerance; our constitution practices tolerance; let us not dilute it.
(The first author is Deputy Registrar Supreme Court of India, New Delhi and the second is Associate Professor and Head, Department of Political Political Science Maulana Azad National Urdu University (MANUU), Hyderabad)
Also Read: Is the Misuse of Religion Tainting India’s Electoral Process?
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