The Supreme Court’s review of the Hindutva judgment raises hope for maintaining India’s diversity
It is said that you are never too late as long as you are on the right path. Unfortunately, sometimes it is late, good intentions notwithstanding. The Supreme Court’s review of its own 1995 judgement, popularly referred to as the Hindutva judgement, is indeed 21 years too late.
In the third week of October, just when the Supreme Court was to begin examining the constitutional validity of the Muslim practices of ‘triple talaq’ and polygamy it also decided to begin a review process of the concept of secularism as envisioned by the framers of the Indian Constitution. The reason, it may be too late? Because in the last 21 years too much of overt religious viciousness has permeated the Indian society, progressively creating a new normal for majoritarian polity. In 1995, in response to the charge against some Shiv Sena politicians that they had violated the Constitution by running a religion-based election campaign, the Supreme Court, then headed by Justice J.S. Verma, invoked philosophical expostulations of academics as diverse as S. Radhakrishnan, Monier Williams, Arnold Toynbee to conclude that ‘Hindutva should be understood as a way of life or a state of mind and should not be equated with or understood as religious Hindu fundamentalism.’ In his view, all inhabitants of Hindustan were Hindus.
A little background is mandatory to understand the context of this verdict and why it was inappropriate. In the early Nineties, three consecutive events shook the very core of India, and not just the idea of India. The first was the demolition of the Babri Masjid in December 1992. Readers with a sense of history will recall that the demolition was not a stand-alone incident; it was a culmination of a long political campaign into which religion was stirred making for a devastating cocktail. Hateful slogans became the lingua franca of a certain class; the benign greeting of ‘Ram Ram’ was converted to the militant ‘Jai Shri Ram’; and the tranquillity of the Indo-Gangetic plains was frequently pierced by the cries of ‘jis Hindu ka khoon na khaule, khoon nahin who paani hai’ (If a Hindu’s blood does not boil, then it is not blood but water). Of course, the mosques contributed to the aural violence by frequently blaring ‘naara-e-taqbeer, Allah-o-Akbar’ (a believer’s cry, Allah is great).
The actual demolition was preceded by a series of sporadic, low-grade violence and pervasive fear for nearly two years especially amongst the Muslims. Social and inter-personal relationships were changing. People were openly playing audio recordings of vituperative speeches by assorted politicians of the Bharatiya Janata Party, Vishwa Hindu Parishad etc at street corners. Anand Patwardhan’s 1992 documentary Ram ke Naam, very sensitively captured the mood of the nation and the volatility of this religious-political cocktail. Despite this and the triumphalism of BJP’s president L.K. Advani’s Rath Yatra, nobody seriously believed that on 6 December 1992, the dilapidated mosque would actually be pulled down by a violent mob. The disbelief was equally matched by fear. What would this mob that had clawed open a concrete structure in the presence of political leaders, police, paramilitary and the media do if let loose on the streets? To say that faith was shaken would be an understatement.
The second event followed the demolition. Mob was indeed let loose; in Bombay (it became Mumbai in 1995), where Muslim lumpen elements engaged in odd jobs with the city’s mafia took to the streets to protest the demolition. Several Hindus were killed in a series of incidents, the ghastliest of which was the burning alive of a dozen slum-dwellers. The other side took a few days to recover and hit back. A second wave of violence, spear-headed by the Shiv Sena began in January 1993 and carried on for nearly a fortnight. By the time the state government had got a handle on violence, nearly 900 people were dead, more than 500 of them Muslims. Though India had a history of communal violence targeting the minorities, the violence that followed the Babri demolition was not the type Indians were used to since Independence. The difference didn’t lie in the gore. The difference lay in the sentiment that drove the violence. It was as if a historical wrong was being righted. The accompanying rhetoric about the resurgent Hindu staking his rightful claim to the land that historically and religiously belonged to him didn’t stop with the end of the violence. Instead, it became a new form of public discourse.
Justice B.N. Sri Krishna Committee, which was tasked with investigating the communal violence in Bombay between 6 December 1992 to 20 January 1993, indicted the Shiv Sena and its then supremo Bal Thackeray for perpetuating the second phase of one-sided violence from 8 January 1993 in his report submitted in February 1998. He observed in his report that: ‘from 8th January at least there is no doubt that the Shiv Sena and Shiv Sainiks took the lead in organising attacks on Muslims and their properties under the guidance of several leaders of the SS from the level of the Shakha Pramukh to Shiv Sena Pramukh, Bal Thackeray who, like a veteran General, commanded his loyal Shiv Sainiks to retaliate by organised attacks against Muslims’.
Once the Shiv-Sena-BJP government came to power in Maharashtra, it disbanded the committee in 1996 on the plea that no purpose would be served by its findings as already too many years had passed and its report may further vitiate the communal situation in the state. However, when the BJP-led government came to power at the Centre for two weeks with Atal Bihari Vajpayee as Prime Minister, it persuaded the Maharashtra government to revive the committee, which it did. However, the terms of reference were enhanced to include the bomb blasts which happened in March 1993. Eventually, the report was ignored by the government. Only three people, including one Shiv Sena leader, were prosecuted; but were released on bail within days of their sentence. Effectively, none served a prison sentence, which was not the case with those accused in participating in the conspiracy that led to the subsequent bomb blasts.
But this is jumping ahead of the narrative. The third event was the series of bomb blasts in Bombay in the spring of 1993, ostensibly in retaliation to the violence a month and half ago. On 12 March 1993, 13 bombs went off in different locations throughout the city, killing 357 and injuring 717 people. Terrorism had arrived on mainland India. The first terrorists were former criminals, led by the notorious Dawood Ibrahim who fled the country before the attacks.
The targets for the attacks were chosen in the manner to ensure that the majority of those killed were not Muslims. Little wonder then, the investigations that followed were tainted by communal prejudice. The wounds were too raw, the anger palpable and hurt too deep. Rhetoric had replaced conversation and rumours had overtaken facts. A sense of the prevalent sentiment could be gauged by the interview Jaswant Singh, who later became the Union finance/ defence and foreign minister gave to India Abroad on 5 March 1993 on why army could not be called in during the Babri crisis. He said: “A Hindu confrontation with the government could affect India’s largely Hindu Army. Religion is a key element in a soldier’s mental make-up… I dread to think of a Hindu confrontation with the government over an emotive issue”. So then, even in matters of governance and law and order, religion had already become a factor by 1993.
As an aside, it is unlikely that Pakistan played any role in the attack, except extending hospitality to the fugitives, including Ibrahim. But the attack bared the communal fault-lines in India which, as history shows, Pakistan started to exploit over the years. In just about five years, Pakistan successfully established sleeper cells in different parts of India, converting the haplessness of semi-literate, unemployed Muslims — following decades of prejudice and denial of justice — into a conviction that they will always be victims in the mainstream.
In 1995, state assembly elections were held in Maharashtra in which (no surprises) some candidates of the Shiv Sena ran an overtly religious campaign, following which cases were filed against a few of them in the Bombay High Court under Section 123 of the Representation of the People Act, which illegalises use of religion, race, caste, community or language during elections, in a manner which promotes enmity or feeling of hatred between communities. The high court ruled against the candidates. However, Shiv Sena’s leaders Bal Thackeray and Manohar Joshi on behalf of the party members approached the Supreme Court, which was then headed by Chief Justice Verma.
I don’t know what the arguments of the appellants were, but Justice Verma resorted to philosophy in giving his verdict, overlooking the fact that politicians neither have time nor understanding of metaphysics. The decade of the Nineties was socially volatile and politically unstable; both conditions ripe for opportunistic politicking. Using this Supreme Court verdict, the BJP kept pushing the religious envelope further and further in subsequent elections. Nobody can deny the growth in communal sentiments in India since 1990s and the deteriorating level of public discourse, before, during and after the elections.
In fact, earlier this year, a data-based website IndiaSpend did a lead story on the role hate speech plays in election campaigns. According to its figures, candidates who give hate-filled or enmity-inducing speeches during their campaigns have greater chances of success as opposed to those who don’t. Not only that, even filing of court cases against them for their conduct only helps them win their seats. Of the present lot of MPs and MLAs, the BJP has the maximum number, 28, against whom cases of hate speeches have been filed. Telangana Rashtra Samiti comes a distant second with nine members, followed by All India Majlis-e-Ittehadul Muslimeen at six, Samajwadi Party at five and so on. Could this mean that hate speech actually resonates with the voters? They identify with or prefer candidates who criticise or threaten members of the other community? Can this process of religious estrangement be reversed?
Which is why I feel that Justice T.S. Thakur’s noble gesture of revisiting the 1995 verdict is two decades too late. And whatever the honourable court may now pronounce, too much blood has mixed with water already hardening our veins. Yet, we must hope for the sake of our nation that change is still possible.
Justice Thakur has made it clear that while reviewing the 1995 judgement the bench that he heads will not seek to define Hindutva, but only explore the concept of secularism as enshrined in the Constitution. As the debate goes on in the Supreme Court, Justice Thakur laid down the ground rules. On October 27, he said that ‘Secularism does not mean aloofness to religion but giving equal treatment to every religion. Religion and caste are vital aspects of our public life. Can it be possible to completely separate religion and caste from politics?”
Not any longer. Today, unfortunately a religious identity has become almost a job requirement. Both the President and the Prime Minister display it publicly much to the satisfaction of a growing tribe that see in these actions an endorsement of religion for policy-making; they conflate religion with Indian nationalism. When Prime Minister Narendra Modi performed Ganga aarti to mark his victory in 2014 at the famous Dashashwamedh Ghat of Benares, the social media was delirious with joy at this very public demonstration of piety, something which no other Indian politician had done so far, with the exception of probably the first president Dr Rajendra Prasad. The refrain was that here was a prime minister who was not afraid to assert his Hindu faith. By inference this meant that all his predecessors were scared to do so because they feared alienating Muslim votes. To these people it was of no consequence that in a secular democracy public conduct should rise above personal faith. Hence, Modi has set a new normal. The next step could well be taking oath on the Bhagwad Gita instead of the Constitution!
It is not my argument that a politician should shed his religious beliefs. But once a person assumes a public office, his religion should recede deep into his home. Indians are a strange people. They revile their politicians, yet look up to their behaviour to gauge which way the wind is blowing. In the days when politicians refrained from overt display of religiosity, our public institutions remained largely religion-free. But now when religion is increasingly assuming a place of its own in our politics, one can see it seeping into all supposed secular institutions, from schools to streets and government offices.
The trouble with this kind of religiosity in public spaces is that it frequently crosses the line towards lawlessness or the rule of the mob; because religion is in the realm of belief, which is unquestionable. Beef ban, love jihad, book burnings, or even the protests against abolishing the practice of triple talaq amongst Muslims are all consequences of religion dictating public life. Unfortunately, Indian politicians cutting across party lines have so often resorted to invoking religion for electoral gains that to some it seems that it is the only way of winning the elections. And as IndiaSpend’s research shows, to some extent it is. Can we not see the path we are hurtling down?
Given this, the Supreme Court review of the old judgement on religion and politics kindles hope but just a flickering one. Justice Thakur does not want to get into defining what Hindutva means. That’s his call. But it certainly cannot mean culture. And it cannot be called a way of life of the people of India. All theists believe that their religion is a way of life for them. Isn’t Islam a way of life for Muslims, given the way it pervades every aspect of a devout’s being, from birth to food, business, even sex! Yes, there is a thing called halal sex.
Hence, the bench that Justice Thakur heads must lay down the principles of secularism as integral to maintaining the diversity of India. Equidistance from all religions is not good enough; and it clearly has not worked. Politicians of all hues — the BJP is just a little guiltier than others — have from time to time used religion for their vested interests. For our country to remain multi-cultural and tolerant we need to reclaim our public spaces and institutions from the stifling grip of faith-peddling opportunists and accord the place of pride to religion where it belongs: in hearts and homes.