A careful reading of the judgment in Manohar Joshi's case discloses that the view expressed by the Court that Hindutwa or Hinduism is not religion and it is a way of life comprising of noble values of life is based on earlier decisions of the Court and is flawless and unexceptionable. In order to correctly appreciate the point arising for consideration, we have to see as to what were the questions which arose for consideration.
The precise questions which arose for consideration in the batch of election cases were:
1) Whether there was an appeal to the voters to vote on the ground of religion? and
2) Whether the contents of the speeches of the candidates or their agents were such as would cause enmity among citizens on the ground of religion? both of which amount to corrupt practice within the meaning of Section 123 of the Representation of People Act, 195 1.
The Contention of the Election Petitioners before the High Court was that appeal to vote for Hindutwa was an appeal to vote on the ground of religion and therefore a corrupt practice. Their further contention was that contents of speeches of Bal Thackerey in the Election Meeting of Dr. Prabhu were such as would create feelings of enmity between Hindus and Muslims.
The submission, on behalf of the respondents was that certainly an appeal was made to vote for Dharma or Hindutwa or Hinduism which are all synonymous terms but that was not an appeal on the ground of religion but an appeal on the ground of culture which squarely falls within the fundamental right or Article 29. The Bombay High Court agreed that Hindutwa or Hinduism was culture falling within Article 29, but held that the contents of the speeches were such which answered the description of the Corrupt Practice under Section 123 of the Act.
The submission of the appellants before the Supreme Court was that the Hindutwa or Hinduism was no religion but it was a way of life which incorporates values of life such as respect for all religions. moral code of conduct in every sphere of human activity evolved in this land from most ancient times which inter alia include secularism. In support of this, they relied on the two Constitution Bench Judgments of the Supreme Court in the cases of Yajnapurushdasji (1966 (3) SCR 242) in which the Court held that Hinduism was no religion but away of life, which view was reiterated in the case of Sridharan (1976 (4) SCC 489), The Court on consideration of the rival contentions accepted the contention of the appellants. Relevant passages from the aforesaid two judgments have been extracted in the judgment. In the light of those decisions and the copious material produced by the appellants, the Court concluded that Hindutwa or Hinduism was not a religion but a way of life and therefore any appeal to vote for Hinduism would not by itself constitute an appeal in the name of religion which is a corrupt practice under the S. 123 of the R.P. Act.
The criticism that the Three Judge Bench in holding that appeal to vote for Hindutwa was not an appeal on the ground of religion, had ignored, overlooked and disregarded the Nine Judge Bench decision in S.R. Bommai's Case is untenable, unjustified and uncharitable, because the question whether Hindutwa or Hinduism was religion and whether an appeal to vote for Hinduism was a corrupt practice within the meaning of S. 123 of the R. P. Act was not an issue which arose for consideration, or decided in that case. Therefore the said decision was not at all apposite to the present case.
In Bommai's case, the most important principle expounded was that secularism was an element of the basic structure of our Constitution and therefore religion and caste pollution of politics was anti-secular. Secularism is certainly one of the founding faiths of our Constitution. No one could or has taken exception to this.
There is, however, a criticism to the effect that as Manohar Joshi had declared in an election speech that Maharashtra would be the first Hindu State, it was antisecular and therefore setting aside of the election ought to have been upheld. This criticism is equally untenable. It is only when there is an appeal to vote on the ground of religion it becomes a corrupt practice under S. 123 of the R.P. Act. The Court having expressed its displeasure for the statement, proceeded to point out that as there was no appeal on the ground of religion, it was not possible to hold that there was corrupt practice falling within S. 123 of the R.P. Act which alone could be the basis for setting aside an election. It should however be pointed out that when Hinduism is no religion and is a way of life, to say Hindu State is anti~secular is wholly incorrect, and would be contradiction in terms. Hinduism and Theocracy are sworn enemies, they cannot coexist just as light and darkness cannot. Hinduism is secularism par excellence. It accepts and respects every religion and recognises the right to practice any religion of every individual and prohibits discrimination against any individual on grounds of religion in respect of any matter. whereas theocracy is anti-secular and subjects those who do not belong to State religion, to various kinds of discrimination. The noble objectives enshrined in the Preamble to the Constitution which are incorporated in the fundamental rights are all the values of life which are part and parcel of Hinduism. Hence there is no substance in the criticism made against the judgment that it was contrary to the Nine Judge Bench Judgment in Bommai's case.
It is also significant that the Supreme Court has not only administered a stern warning against making speeches creating enmity among citizens on the ground of religion but also held that the speech of Bal Thackerey did amount to such corrupt practice. On that ground he was held to be guilty of corrupt practice and on that basis the setting aside of the election of Dr. Prabhu was confirmed. Thereby the Apex Court has clearly indicated that if any person indulges in making appeal to vote on the ground of religion or activities which create enmity among different classes of people on grounds of religion, he would meet the same fate as Dr. Prabhu.
Therefore the criticism levelled against the judgment is devoid of any merit. On the other hand it is a Land Mark Judgment in the democratic history of India as it puts an end to the injustice to which Hinduism was being subjected to by its opponents by dubbing it as religious fundamentalism.
(M. RAMA JOIS)