Column| Justice KM Joseph’s Exposition On Hinduism Exposes His Duplicity And Shallow Understanding Of Subject

Justice Joseph said that his first criticism of the Judgment is that the Supreme Court overlooked Vinayak Savarkar’s version of Hindutva, which is what according to him the political party in question (Shiv Sena) and other political parties (presumably BJP) “tout”.

• His criticism is that the Judgment wrongly terms Hinduism as a way of life instead of a religion. He says that Hinduism is very much a religion and asks whose way of life would it be, if it were treated as a way of life.

• His second criticism is that the Supreme Court in that Judgment contemplates a uniform culture, obliterating other cultures.

• His third criticism is that if Hinduism is not treated as a religion, as held in the judgment (according to him), its members will not be able to exercise rights under Articles 25 and 26 of the Constitution. Therefore, Hinduism is a religion.

Duplicity on Hinduism

According to Justice Joseph, Hinduism can only mean the Hindu religion since there is no- “the way of life” in Indian civilization.

“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 Article 25(1) and 26(b)? So, Hinduism has to be a religion. Hindutva also, if it is equated and if it is treated as a religion, a way of life, a question may arise- Whose way of life”, said Justice Joseph.

Incidentally, as a Judge in the Supreme Court, while dismissing a PIL seeking the constitution of a “Renaming Commission” to find out the original names of ancient historical, cultural and religious places now named after foreign invaders, Justice Joseph chastised the petitioner by saying that there is no bigotry in Hinduism because Hinduism is not a religion but a “way of life”.

“Hinduism is not a religion but a way of life... Hinduism is a way of life and there is no bigotry in Hinduism...don't dig up the past which will only create disharmony…can't have the country on the boil,” Justice KM Joseph is reported to have told the petitioner before dismissing his petition.

The petitioner in that case, seeking to assert the rights of Hindus, had contended, “…historical 'Ajatshatru Nagar' was named after the barbaric "Begu” and called 'Begusarai'. Ancient city 'Nalanda Vihar' was named after Conversion Missionary 'Sharifuddin Ahmed' and called 'Bihar Sharif'. Cultural city 'Dwar Banga' was named after the cruel 'Darbhang Khan' and called 'Darbhanga'. Religious city 'Haripur' was named after the vicious 'Haji Shamsuddin Shah' and called 'Hajipur'. 'Singhjani' was named after conversion missionary 'Jamal Baba' and called 'Jamalpur'. Vedic city 'Videhpur' was named after the barbarous Muzaffar Khan and called 'Muzaffarpur'. Likewise historical city 'Karnawati' was named after Ahmad Shah and called 'Ahmedabad'.” The petitioner had asserted in the said case that such names are required to be changed to "secure ‘Right to Dignity, Right to Religion and Right to Culture’ guaranteed under Articles 21, 25 and 29 of the Constitution".

However, the petitioner was told by the Bench of Justice Joseph that Hinduism was only a way of life and not a religion.

Hence, when someone espouses the cause of Hindus, Justice Joseph will say that Hinduism is just a way of life and not a religion, to negate that cause. And when it is politically inexpedient, he will assert that Hinduism can only be a religion and never a way of life.

Did the Supreme Court endorse obliterating other cultures?

During his speech, Justice Joseph said that the Supreme Court in its Hindutva Judgment of 1996 contemplated having a uniform culture for India, obliterating other cultures.

“One of the other criticisms will arise, perhaps with great respect, I am now a student of law, I would raise is, 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 incurium. 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. ….. 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? 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”, he said.

It appears that Justice Joseph is referring to the following paragraph in Ramesh Yeshwant Prabhoo’s judgment-

“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. In "Indian Muslims- The Need For A Positive Outlook" by Maulana Wahiduddin Khan (1994), it is said:

The strategy worked out to solve the minorities problem was, although differently worded, that of Hindutva or Indianisation. This strategy, briefly stated Aims at developing a uniform culture by obliterating the differences between all the cultures co-existing in the country. This was felt to be the way of communal harmony and national unity. It was thought that this would put an end once and for all to the minorities problem. (at page 19)

The above opinion indicates that the word 'Hindutva' is used and understood as a synonym of 'Indianisation', i.e. development of uniform culture by obliterating the differences between all the cultures co-existing in the country.”

Firstly, the Supreme Court did not endorse, for that was not the scope of the case, the said meaning of “Hindutva” as “Indianisation”. The Court was merely considering whether the reference to Hinduism or Hindutva can only be treated as a reference to religion or reference to something else also, as argued by Ram Jethmalani on behalf of Ramesh Prabhoo. Supreme Court only said that Indianisation or development of a uniform culture could be a meaning of the word Hindutva, and an appeal to the electorate on its basis will not fall foul of Section 123 of the Representation of the Peoples Act.

Secondly, the Supreme Court never said that the meaning of the word Hindutva is obliterating other cultures, but obliterating “differences” between all cultures. Differences also mean disagreements and not just dissimilarities.

Supreme Court never said Hinduism is not a religion

Justice Joseph actually spent energy to argue that Hinduism is a religion!

“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. …. The third also, I have said that Articles 25 and 22 require a religion and Hinduism is a religion”, he said.

Hinduism is, obviously, also a religion. The Supreme Court merely said in its Judgment that any reference to Hinduism or Hindutva need not always be a reference to the Hindu religion. In fact, in Ramesh Prabhoo’s case, the Supreme Court ultimately found that Bal Thackeray’s impugned speech was an appeal on the ground of religion under Sub-Sections (3) and (3A) of Section 123 of the Representation of the Peoples Act and upheld the disqualification of Ramesh Prabhoo.

Conclusion

While Justice Joseph said that political parties are “touting” Hinduism and Hindutva of Savarkar, he candidly said that he had not read Savarkar’s book on the subject (possibly Hindutva - Who is a Hindu). With that caveat, he was able to make remarks like- Savarkar’s Hindutva has the “effect of placing certain minorities on a certain kind of a pedestal”, without specifics.

Apart from his shallow exposition of Ramesh Prabhoo’s case, Justice Joseph commented adversely on the discussion about removing the word secular from the preamble of the Constitution. He also commented on the religious ceremonies performed while installing the Sengaol in the new Parliament building, doubting its permissibility under the law.

Justice KM Joseph’s speech, when heard as a whole, is laden with an agenda and that agenda is not constitutional, but political.