Hindu, Hinduism and Hindutva, as understood by Supreme Court

Three days back, Congress primo uomo leader Rahul Gandhi, continuing with his attack on Hindutvavadis perceiving them as communal, tweeted “‘Hindutvavadis’ have been spreading hatred in the cyber world because cowards only attack while hiding. Had they mustered enough courage, they would have come forward. We need to be strong and keep tackling this hatred — the country needs to be saved!”

Who is a Hindutvavadi? The simple answer is one who follows, practices and professes Hindutva. To understand Hindutva, one probably needs to delve into ‘Hindu’ and ‘Hinduism’ and the safest place to venture in this issue is the Supreme Court which in its annals has a vast interpretative jurisprudential reservoir on these three words — Hindu, Hinduism and Hindutva.

One of India’s greatest educationists and its first Vice-President S Radhakrishnan in his book ‘The Hindu View of Life’ defined Hindus thus—“The people on the Indian side of the Sindhu were called Hindu by the Persian and the later western invaders… That is the genesis of the word “Hindu”. When we think of the Hindu religion. We find it difficult, if not impossible, to define Hindu religion or even adequately describe it… It may broadly be described as a way of life and nothing more.”

On Hinduism, celebrated British academician and historian Monier Williams in his book, ‘Religious Thought and Life in India’, has observed that “it must be borne in mind that Hinduism is far more than a mere form of theism resting on Brahmanism. It presents for our investigation a complex congeries of creeds and doctrines which is its gradual accumulation may be compared to the gathering together of the mighty volume of the Ganges, swollen by a continual influx of tributary rivers and rivulets, …. The Hindu religion is a reflection of the composite character of the Hindus, who are not one people but many. It is based on the idea of universal receptivity. It has ever aimed at accommodating itself to circumstances, and has carried on the process of adaptation through more than three thousand years.”

The first reference to ‘Hindutva’ was recorded by the Supreme Court in its judgment [1994 (6) SCC 360] in the case ‘Ismail Faruqi’, who had challenged the validity of the 1993 central law acquiring the disputed area in Ayodhya and large tracts of land around it. Justice S P Bharucha, who was part of the three judge bench which upheld the acquisition, 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.”

The nascent interpretation of ‘Hindutva’ as ‘a way of life’ by Justice Bharucha in Ismail Faruqi, engaged deeper scrutiny analysis at the hands of a three-judge bench headed by renowned Justice J S Verma in Ramesh Yeshwant Prabhoo vs Shri Prabhakar Kashinath Kunte [1996 SCC (1) 130]. The case witnessed a see-saw battle between two heavyweights— Ram Jethmalani for Shiv Sena and Ashok Desai for the opposite side, both quoting scriptures and historians liberally.

Justice Verma relied on numerous past constitution bench judgments and said those decisions “indicate that no precise meaning can be ascribed to the terms ‘Hindu’, ‘Hindutva’ and ‘Hinduism’; and no meaning in the abstract can confine it to the narrow limits of religion alone, excluding the content of Indian culture and heritage. It is also indicated that the term ‘Hindutva’ is related more to the way of life of the people in the sub- continent. It is difficult to appreciate how in the face of these decisions the term ‘Hindutva’ or ‘Hinduism’ per se, in the abstract, can be assumed to mean and be equated with narrow fundamentalist Hindu religious bigotry…”.

The SC ruled that mere use of the word ‘Hindutva’ or ‘Hinduism’ or mention of any other religion in an election speech does not bring it within the net of sub-section (3) and/or sub-section (3A) of Section 123, (to constitute corrupt practices which could disqualify the candidate) unless the further elements indicated are also present in that speech.

The SC also dispelled the notion, being given currency by politicians of different creeds, that terms’Hinduism’ or ‘Hindutva’ per se cannot be construed to depict hostility, enmity or intolerance towards other religious faiths or professing communalism. Such an apprehension, the SC said, proceeded from an improper appreciation and perception of the true meaning of these expressions emerging from the detailed discussion in earlier authorities of this Court.

However, the court had warned against possible politically beneficial misuse of the terms and advised strong measures to curb such tendencies. “Misuse of these expressions to promote communalism cannot alter the true meaning of these terms. The mischief resulting from the misuse of the terms by anyone in his speech has to be checked and not its permissible use. It is indeed very unfortunate, if in spite of the liberal and tolerant features of ‘Hinduism’ recognised in judicial decisions, these terms are misused by anyone during the elections to gain any unfair political advantage. Fundamentalism of any colour or kind must be curbed with a heavy hand to preserve and promote the secular creed of the nation. Any misuse of these terms must, therefore, be dealt with strictly.”

Would giving a narrow meaning to Hindu, Hinduism and Hindutva, which is akin to trying a blunt political scissor on an ocean-sized fabric to suit a narrower political agenda, cut ice with the electorate? Results will tell us in March.