How Judicial Decisions Shifted India from Secularism to a Hindu State
The Role of the Indian Supreme Court in Shaping the Nation's Constitutional Identity
Case Study: Manohar Joshi vs. Bhaurao Patil and the Evolution of ‘Hindutva’ in Indian Politics
Explore the legal perspectives of Justice Markandey Katju on how judicial decisions in India transformed the country from a secular state to a de facto Hindu state. This analysis delves into landmark cases like Manohar Joshi vs. Bhaurao Patil and the broader implications on India’s Constitution and secular identity.
The judgments which converted India from a secular to a Hindu country
By Justice Markandey Katju
There is a school of jurisprudence known as the American realist school, which posits that the only real law is judge-made law, while statutes are merely the raw material that judges use to make law. Notable proponents of this school in USA were Gray, Frank, and Llewellyn. The Indian Supreme Court appears to be an adherent of this school.
According to the realist school, the law is whatever the judges declare it to be. This notion effectively allows judges to act as legislators and alter the law or the Constitution, for example, by modifying a provision by a judicial verdict, though under Article 368 of the Constitution amendments to the Constitution can only be made by two third majority of both Houses of Parliament ( and for amending some provisions, a majority of half the states as well ).
This was evident in the Second and Third Judges’ cases, where, through what Lord Cooke described as a “sleight of hand” in his article “Where Angels Fear to Tread,” the Indian Supreme Court invented the Collegium system for appointing judges — a concept not found in Article 124 of the Constitution, vide Supreme Court Advocate on Record Association vs Union of India, 1993, and In re Special Reference 1 of 1998.
Similarly, in the 1995 cases of Manohar Joshi vs. Bhaurao Patil and other connected cases, Justice JS Verma, who delivered the judgment of the bench, effectively amended the Indian Constitution. By employing another “sleight of hand,” a technique he used in the earlier Judges case, he transformed India from a de jure secular to a de facto Hindu state.
This decision arose from an appeal against a judgment of the Bombay High Court, which had voided the election of Manohar Joshi, a Shiv Sena candidate in the 1990 Maharashtra State Legislative Assembly elections, for corrupt practices as defined in section 123(3) of the Representation of the People’s Act, 1951. The High Court found that Joshi and his party leaders had made appeals in the name of religion, thereby committing corrupt practices as defined in sections 123(3) and (3A).
A thorough review of the High Court judgment reveals its correctness. Section 123(3) lists among corrupt practices:
“An appeal by a candidate or his agent, or by any other person with the consent of a candidate or his election agent, to vote or refrain from voting for any person on the ground of his religion, race, caste, community, or language or the use of, or appeal to religious symbols.”
If a candidate is found guilty of a corrupt practice, the High Court can annul his election under section 100 of the Act, and the candidate can be disqualified from contesting again for a specific period as per section 8A.
Section 123(3A) includes:
“The promotion of, or attempt to promote, feelings of enmity or hatred between different classes of citizens of India on grounds of religion, race, caste, community, or language, by a candidate or his agent or any other person with the consent of a candidate or his election agent for the furtherance of the prospects of the election of that candidate or for adversely affecting the election of any candidate.”
Justice Verma exhibited strange logic by observing:
“Thus, it cannot be doubted that the terms ‘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 more indicative of a way of life of the Indian people and are not confined merely to describing persons practicing the Hindu religion as a faith.”
He observed that considering the terms ‘Hinduism’ or ‘Hindutva’ as depicting hostility, enmity, or intolerance towards other religious faiths proceeds from an improper appreciation of these expressions. This misinterpretation, he claimed, arises despite judicial decisions recognizing the liberal and tolerant features of ‘Hinduism.’
All this seems a lot of dissimulation, legerdemain, thaumaturgy, conjuration, and humbuggery. How Justice Verma concluded that Hindutva does not denote Hinduism but a way of life, or that speaking of Hindutva promotes secularism, is bewildering. Even if we consider the particular context, these speeches were made during an election to stir up communalism and were clearly appeals to vote in the name of religion.
In his own speech at Shivaji Park on February 24, 1990, Manohar Joshi proclaimed, “The first Hindu state in India will be established in Maharashtra.” Was this not an appeal in the name of religion? Yet Justice Verma, in setting aside the Bombay High Court verdict, remarked, “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 ground of religion, but the expression, at best, of such a hope.” Is this not sheer duplicity, equivocation, and subterfuge?
Justice Verma, while reversing the judgment of the Bombay High Court, stated that the word ‘Hindutva’ denotes a way of life and India’s culture. By that twisted logic, Muslims, Christians, and Sikhs must all come under the BJP fold and banner, as BJP claims to represent Hindutva.
By his blatantly incorrect judgment, Justice Verma has unleashed a genie that is now wreaking havoc across India.
(Justice Katju।s a retired judge of the Supreme Court of।ndia. These are his personal views)
