Are the words "Hindu", "Hinduism" and "Hindutva" related to a specific religion? Given how they’re used in everyday language, it might sometimes seem that they are. But in 1996, the Supreme Court of India disagreed. These words, the court held, cannot be held to the “narrow limits of religion alone” and could also refer to “Indian culture and heritage”. Hindutva, the court held, is related to the “way of life of the people in the subcontinent”.
As could be expected, the judgement was controversial and was challenged right away. Twenty years after that challenge, a seven-judge bench of the Supreme Court will revisit the 1996 Hindutva judgement on Tuesday and decide if the words Hinduism, Hindu and Hindutva refer to a religion or to India’s broader culture.
The Hindutva judgement
The case has its roots in Mumbai in 1987, when Shiv Sena member Ramesh Yeshwant Prabhoo was contesting the state elections for the Vile Parle Assembly seat. He was helped in his campaign by Bal Thackeray, the leader of the Shiv Sena. Thackeray delivered a number of election speeches in Mumbai that referred to Hinduism. “We are fighting this election for the protection of Hinduism,” Thackeray said. “Therefore, we do not care for the votes of the Muslims. This country belongs to Hindus and will remain so”. In another speech, Thackery claimed, “Anybody who stands against the Hindus should be showed or worshipped with shoes.”
A petitioner filed a case claiming that Thackeray had violated Section 123 (3) of the Representation of the People Act. The act outlaws corrupt election practices, a definition that includes canvassing for votes in the name of religion.
The petitioner also filed the same complaint against Thackeray's lieutenant Manohar Joshi for saying in his election speech that the first “Hindu rashtra will be established in Maharashtra”.
However, the Supreme Court, under Justice JS Verma, stuck down the petitioner’s argument. The judgement held that while the speeches did make appeals to Hinduism and Hindus, the terms here did not apply in the religious sense and could not be said to violate the Representation of the People Act.
The judgement read:
The public speeches in question did not amount to appeal for votes on the ground of his religion and the substance and main thrust thereof was “Hindutava”, which means the Indian culture and not merely the Hindu religion.
By conflating Hinduism and Hindutva with Indianess itself, the court had defined Indian secularism to be so far away from any dictionary meaning of the term as to make it almost meaningless. In form, it was similar to many fallacious arguments in Pakistan, where Islamists argue that minority religions have more rights under an Islamic polity than in a Western-inspired system of liberal government.
Rather than everyday language, the court relied on a book by an obscure writer named Wahiduddin Khan to define Hindutva. Justice Verma quoted this line from Khan's 1993 book Indian Muslims – Need for a Positive Outlook: “The strategy worked out to solve the minorities problem was, although differently worded, that of Hindutva or Indianisation.”
Though Khan had actually gone on to criticise the conception of conflating Hindutva with the culture of all Indians, the judgment quoted this line out of context to justify treating Hindutva and Indianness as synonyms. Most glaringly, the judgement completely bypassed the thoughts of Vinayak Savarkar, the Raj-era Marathi politician and intellectual who had coined the word Hindutva in the first place. A Hindu, held Savarkar, has to be one whose holy land is in the subcontinent, a definition which, of course, ended up excluding Muslims and Christians:
For though Hindusthan to them [Muslims and Christians] is Fatherland as to any other Hindu yet it is not to them a Holyland too. Their holyland is far off in Arabia or Palestine. Their mythology and Godmen, ideas and heroes are not the children of this soil. Consequently their names and their outlook smack of a foreign origin. Their love is divided.
Even more basically, Justice Verma ignored a Supreme Court judgment delivered just five months earlier that warned the judiciary to stick to the law and not attempt to undertake explorations of the philosophy of religion while ruling on the use of faith in election speeches.
The judgement, which now oxymoronically held that Joshi’s invocation of a Hindu rashtra was, in fact, a secular statement, was instantly controversial. Just four months later, a three-judge Supreme Court bench asked that the decision be reviewed by a larger bench.
The Verma Hindutva judgement provided a legal imprimatur to the Bharatiya Janata Party’s ideology – which was still at the time quite unorthodox in the Indian political space. The BJP, in fact, refers to it when explaining what its ideology of Hindutva means.
What also helped Hindutva to gain a foothold was the delay by the Supreme Court in constituting a larger bench to review the judgement. Faced with a highly flammable point of law, the court, it seems, preferred to bat the session out. Taking place after two decades – the BJP has, in the meanwhile, seen three terms in the Union government – the review might be an interesting exercise in law and semantics. But it is difficult to see how it could impact the politics of the country in any meaningful manner given how mainstream and entrenched Hindutva has become since Justice Verma passed his judgement.