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

If Hinduism Is A Way Of Life, Whose Way Of Life: Asks Justice KM Joseph, Argues That It Is A Religion While Criticising Apex Court’s Judgments Holding Otherwise.

V Shanta | HENB | Kochi | Feb 23, 2024:: Justice KM Joseph who retired from the Supreme Court in June last year has criticised the 1996 Judgment of the Supreme Court which held that Hinduism is a “way of life”, as opposed to a religion. Justice Joseph was delivering a lecture yesterday at an event organised by the Kerala High Court Advocates’ Association ((KHCAA).)on the “Concept of Secularism under the Indian Constitution”.

During his lecture, Justice Joseph spoke about the Judgment of the 1996 Apex Court in the matter of Dr. Ramesh Yeshwant Prabhoo vs Shri Prabhakar Kashinath Kunte & Ors. (1996 SCC (1) 130) delivered by a Bench of Justice JS Verma, Justice NP Singh and Justice K Venkataswami.

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 asked during his lecture, whose way of life would Hinduism be, if it is treated as a way of life, since India is a land of diverse cultures and people have a constitutional right to conserve that diversity. During his lecture, Justice Joseph spoke about the Judgment of the 1996 Apex Court in the matter of Dr. Ramesh Yeshwant Prabhoo vs Shri Prabhakar Kashinath Kunte & Ors. (1996 SCC (1) 130) delivered by a Bench of Justice JS Verma, Justice NP Singh and Justice K Venkataswami.

Justice Joseph asked during his lecture, whose way of life would Hinduism be, if it is treated as a way of life, since India is a land of diverse cultures and people have a constitutional right to conserve that diversity.

In that case, the Apex Court had held, in the context of electoral speeches that were alleged to be corrupt practices under the Representation of Peoples Act, “Thus, it cannot be doubted, particularly in view of the Constitution Bench decisions of this Court that 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 said that the Judgment, though it takes into account earlier judgments, does not take into account the version of Hindutva that was propounded by Savarkar. According to him the political parties which “tout Hindutva” rely upon Savarkar’s version of Hindutva.

“I have a couple of criticisms to offer against this Judgment. ….The criticism which I have to offer is this- You see, the version of Hinduism which the Court relied upon is all based upon Judgements of the Supreme Court and other material. Perhaps, I am not too sure about it, the political party in question and the other political parties which perhaps tout Hindutva, rely upon the words of a person called Savarkar. Savarkar has a different version of Hindutva. ….Now he has written a book, a very short book. I was not able to lay my hands on it. But, I would have loved to read it. The substance of it is, it is about Nationalism. I may perhaps have the effect of placing certain minorities on a certain kind of a pedestal. I wouldn’t hazard making a further statement without having read it. But what I am actually up against is the fact that the version of Hindutva according to Savarkar perhaps may not have been gone into by the Supreme Court in the Hindutva cases”, Justice Joseph said.
Justice Joseph while speaking about Savarkar said that he was a Barrister, a brilliant mind, and a poet. “He was imprisoned for life for fighting against the British and the allegation against him by some of the political parties is that he petitioned for mercy and he was moved out of the Andaman prison to a prison in India. But there may be two ways of looking at the fact that he was a Barrister and possessed indeed of a brilliant mind. In fact, if you read about him, you will find his take on castism. He said castism has no place in Hinduism”, Justice Joseph said.

Justice Joseph also said that Hinduism is indeed a religion and not a “way of life” as held by the Supreme Court. “Supreme Court has proceeded on the basis of the earlier judgments which have said that it is difficult to define Hinduism. But Hinduism is very much the religion. I will tell you why. If Hinduism is not a religion, how will the members of that religion exercise the rights under Articles 25(1) and 26(b)? So Hinduism has to be a religion”, Justice Joseph said.

He also said that if Hindutva also is treated as a way of life, a question may arise- Whose way of life?

He said that the Supreme Court in Dr. Ramesh Yeshwant Prabhoo’s case contemplated uniform culture, obliterating all cultures and that the judgment is per incuriam since it did not notice Article 29(1) of the Constitution.

“One of the other criticism will arise, perhaps with great respect, I am now a student of law… in 1996 1 SCC 130, the Supreme Court goes on to say in one paragraph that what was contemplated perhaps is a uniform religion, a uniform culture, obliterating all cultures. Here, I have an object based on it being per incuriam. Kindly have a look at Article 29(1) of the Constitution. 29(1) actually makes it a fundamental right, any section of people having a distinct language, script or culture shall have the right to preserve it, conserve it. Now how can you have a uniform culture if sections of people living in a part of India and the Supreme Court has also made it clear in the DAV case that the right under Article 29(1) is not confined to the religions, right of the religious denominations. Sections of the people belonging to a particular religion may also have a right under Article 29(1), they can claim that right. But dehors religion, any section of people can on the basis of their distinct language, distinct script, distinct culture, have the right to conserve it. If a section of the people have the right to conserve the culture, can you have an overarching culture, where there is a uniform culture all over the country, where you override all cultures which are to be found in India?”, Justice Joseph asked.

Justice Joseph said that the idea of unity in diversity propounded by Jawaharlal Nehru cannot be used to wipe out diversity.

“The dynamic idea of Jawaharlal Nehru in the Discovery of India, where he says unity in diversity, cannot be stretched to actually wipe out diversity. It cannot mean that you will achieve unity by completely obliterating, wiping out diversity. This is the second criticism which I would like to point out. The third also, I have said that Articles 25 and 22 require a religion and Hinduism is a religion”, he said.

During his speech, Justice Joseph also said that removing the word Secularism from the preamble of the Constitution will sound the death knell of Democracy.

Justice Joseph said the 1995 judgment of SC on Hinduism (in Ramesh Yeshwant Prabhoo v Shri Prabhakar Kashinath Kunte case.) 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.

“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 and he was moved out….He said casteism has no place in Hinduism…he has written a short book, the substance of it is about nationalism. It may perhaps have the effect of placing certain minorities on a certain pedestal…What I am up actually up against is that the version of Hindutva according to Savarkar perhaps may not have been gone into by the Supreme Court in the Hindutva cases”.

Justice Joseph further said that the Supreme Court went on the premise that it was difficult to define Hinduism. He said, “I will tell you that Hinduism is very much a religion, I will tell you why…because if Hinduism is not a religion, then how will its members exercise their rights under Article 25, 26 of Constitution. Hinduism has to be a religion. Hindutva also if it is equated and if it is treated as a religion and as a way of life, then the question arises is ‘whose way of life’?”

Justice Joseph said that the second criticism against the Hindutva judgment was that the Supreme Court said that they consider Hinduism as a uniform religion, uniform culture, obliterating all cultures. He said he has an objection to this because the Constitution protects every person’s right to preserve and conserve their culture under Article 29 of the Constitution. He asked how can we have a uniform culture if sections of people are living in different areas and follow different cultures and and preserve those cultures. “Can you have an overarching culture that overrides all other cultures followed in India? Unity in diversity does not mean achiveing unity by wiping out all other cultures”.

The third criticism is that Articles 25 and 26 require a religion and that Hinduism is a religion. He said that the attempt in those cases was to explain Section 123 (3) of the RP Act. It prohibits appeals made by a candidate to vote for him or to refrain from voting for another candidate based on religion. He noted that a purposeful interpretation of Section 123 (3) would be that any appeal made by a person on the basis of religion would make it an offence. He said, “religion has no place in an an election place. you cannot enchant or disenchant the electorate based on an appeal made on religion. It is a secular practise which is central to our democratic practise”. Further, he said that the whole idea of secularism is that religion is your private affair. Justice Joseph said “keep it private.…state must maintain complete neutrality and take its hands off.”
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__Inputs from Verdictum and Live Law.