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India: Its time to bury the 1996 judicial sanction to Hindutva

by Manoj Mitta, 29 March 2009

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Times of India, 29 March 2009

Hatred Justified?

Manoj Mitta

One of Varun Gandhi’s speeches, which earned him the Election Commission’s censure was, “All the Hindus stay on this side and send the others to Pakistan.” Then there was his other threat: “This is the lotus hand. It will cut their throats after elections.” The message was unmistakable. He was promising to turn Pilibhit into a completely Hindu constituency. However objectionable, his words are arguably in line with the Hindutva judgments delivered by the Supreme Court in 1996.

In one of those verdicts, a bench headed by Justice J S Verma upheld a promise that was even more explicit than that made by Varun. That promise was made by Shiv Sena leader Manohar Joshi in Maharashtra’s first election after the 1992-93 Mumbai riots and blasts. Joshi promised to turn Maharashtra into India’s first Hindu state. He went on to head a Shiv Sena-BJP government but the Bombay high court struck down Joshi’s election on the grounds that he had violated the constitutional commitment to secularism by seeking votes on the basis of his promise to establish a Hindu state.

The Supreme Court overturned the high court decision. It played down the import of Joshi’s promise. “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 grounds of his religion but the expression, at best, of such a hope.”

Thanks to such reasoning, Varun may well defend himself against the charge of electoral offences by claiming that he too was merely expressing the hope that Pilibhit would be rid of Muslims after the elections and that he was not really appealing for votes on the grounds of his religion.

Not surprisingly, BJP leaders cited the Supreme Court’s ruling when they justified their decision to field Varun as a candidate in defiance of the Election Commission’s advice. If the Supreme Court’s approval of the Emergency’s suspension of right to life and personal liberty is ranked as its worst failure, its 1996 clean chit to Hindutva is the most politically corrosive. It has been cited by the Sangh Parivar over the years to rationalize a range of illiberal activities, from moral policing to preventing religious conversion; from the campaign to build the Ayodhya temple to killing minorities in mob violence or fake encounters.

Given the tendency to repose blind faith in Supreme Court judgments, the secularist parties have never been able to come up with an adequate response to the apparently solid judicial backing for Hindutva ideology. Although they amended the Constitution with alacrity in the last Lok Sabha to undo a Supreme Court bar on reservations in private professional colleges, no non-BJP party has so far sought to neutralize the Hindutva verdicts of 1996 through legislation or asking the Supreme Court to reconsider.

Varun is only the latest example of how the Hindutva verdicts have fostered a climate of impunity, during, before and after elections. Justice Verma’s rulings buck the international trend of recognizing hate speech as an exception to the freedom of expression. Buying into the Sangh Parivar view that it was no more than cultural nationalism, Justice Verma said, “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.” Then, undermining the pluralism cherished by the Constitution, Justice Verma added, “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.”

Whatever its drawbacks, coalition politics at the national level mocks this judicially-sanctified recipe for majoritarianism. The rumblings — even within the NDA — against Varun’s alleged hate speech indicate the odds stacked against the Hindutva project of developing, in the Supreme Court’s words, a uniform culture. It may be high time for a political consensus on legally burying the 1996 judgments on Hindutva.

Copyright © 2009 Bennett Coleman & Co. Ltd.

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