Justice KM Joseph Criticises Supreme Court's 'Hindutva' Judgment, Says Court May Not Have Looked At Savarkar's Version Of 'Hindutva'

Former Supreme Court judge, Justice K M Joseph spoke about “Secularism Under the Indian Constitution” for a lecture session conducted by the Kerala High Court Advocates' Association (KHCAA).Analysing S R Bommai Case In the context of Secularism in the Indian Constitution, Justice Joseph mentioned that the most important aspect about secularism in India is the political one. He analysed Section 123 of the Representation of People's Act which defines corrupt practise in elections in this regard. Justice Joseph said that when we talk about secularism verses politics, and secularism and politics in India, it is seminal to refer to the judgments like S R Bommai v Union of India.Justice Joseph said that in SR Bommai, the Supreme Court has agreed that secularism is part of the basic feature of the Indian Constitution. Justice Joseph quoted Justice Jeevan Reddy's judgment from the S R Bommai case to accentuate the fact that political parties should maintain neutrality. The relevant para from S R Bommai case reads thus: “it is clear that if any party or Organisation seeks to fight the elections on the basis of a plank which has the proximate effect of eroding the secular philosophy of the Constitution it would certainly be guilty of following an unconstitutional course of action…..If a political party espousing a particular religion comes to power, that religion tends to become, in practice, the official religion. All other religions come to acquire a secondary status, at any rate, a less favourable position. This would be plainly antithetical to Articles 14 to 16, 25 and the entire constitutional scheme... 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.” Justice Joseph added that the state should not endorse or favour a particular religion and should maintain neutrality. He said, “If a Minister, how high ranking he may be, if he by word of mouth or actions gives impression then that he is siding with a religion, then the flag of secularism is down, it gets buried at least temporarily.”. He further said that secularism is a facet of equality and if all religions are treated equally, then secularism exists. Thus, he concluded that the substance in S R Bommai's case is that, you do not patronize, favour or show bias toward a particular religion. Criticism of Hindutva Cases Justice Joseph then spoke about the controversial 'Hindutva' judgment of the Supreme Court - the 1995 judgment in Ramesh Yeshwant Prabhoo v Shri Prabhakar Kashinath Kunte. The case pertains to the speeches made by the top leader of Shiv Sena, Bal Thackery in favour of Prabhoo ahead of the Legislative Assembly elections where appeals were made to voters in the name of religion. The speeches were challenged to be violative of Section 123 of the Representation of the Peoples Act as being a corrupt practice. It prohibits making an appeal to the voters based on religion. Justice Joseph said this judgment is misunderstood and received wide criticisms concerning the Hindutva aspect. The case made out by the parties was that Hinduism was a unique religion, with so many possibilities in Hinduism, it is a way of life. It was thus argued that referring to Hinduism or Hindutva would not be a corrupt practice. Justice Joseph said that Justice J S Verma accepted this contention by stating that mere usage of terms like 'Hindutva' and 'Hinduism' is not an appeal based on religion. In that judgment, he said that the Court refers to the nature of Hindu religion, how it is a geographical religion and that it is not really a religion like other religions.Justice JS Verma wrote in the judgment :"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"Justice Joseph stated that he wanted to point out some criticisms against the Supreme Court decision in the Hindutva cases. First, he said that the version of Hinduism relied upon by the Court was based on earlier judgments, on the other hand the political parties relied upon the works of Savarkar. He said, “Savarkar has a version of Hindutva. He was elected as the President of the Hindu Mahasabha in the year 1937, he was a barrister, a brilliant mind, a poet, he was imprisoned for life for fighting against the British. The allegation against him by certain parties is that he petitioned for mercy...

Justice KM Joseph Criticises Supreme Court's 'Hindutva' Judgment, Says Court May Not Have Looked At Savarkar's Version Of 'Hindutva'

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