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PROPOSITION OF BEHALF OF THE APPELLANT

The purport of the speeches was that for all serious problems of corruption, fissiparous tendencies, lack of patriotism among a few citizens, internal and external threat to the unity and integrity of the Nation referred to in the speeches, which have become a menace to the health of the Nation, the only solution in his opinion was Hinduism (Dharma or Sanatana Dharma), which happens to be the Culture evolved in this Country from most ancient times and which comprises within itself, the moral values in personal and public life, a deep sense of patriotism, respect for all religions, the preservation of which falls within the Fundamental right guaranteed under Article 29 of the Constitution, which constitutes no appeal to religion within the meaning of Section 123 (3) of the R. P. Act, 1951, and it does not create any enmity between any class of citizens on the basis of religion or language which alone is a corrupt practice under S. 123 (3A) of the R.P. Act.


IN THE SUPREME COURT OF INDIA
ELECTION APPEAL NO. 2836 OF 1989

In the matter of:
Dr. Ramesh Yeshwant Prabhoo Appellant
Versus:
Prabhakar Kashinath Kunte Respondents

SUBMISSION OF M. RAMA JOIS, SENIOR
ADVOCATE FOR THE APPELLANT
RE-APPEAL OF THE BASIS OF HINDUISM / HINDUTWA

  1. It is respectfully submitted that the view taken by the Hon'ble High Court that in the first and third speeches dated 29-11-1987 and 10- 12-1987 of Shri Thackeray there was an appeal on the ground of Hindu Religion within the meaning of Section 123 (3) and (3A) of the R. P. Act, 1951 and in the second speech dated 9th December 1987, there was a corrupt practice within the meaning of Section 123 (3) of the R.P. Act Is erroneous. The contents of the speeches as pointed out in the submission made in relation to these speeches separately, indicate that the appeal was on the basis of Hindutwa which does not fall within the mischief of Section 123 (3) and (3A) of the R. P. Act.

  2. At the outset the appellant submits that Hindutwa is not a religion. It is a Philosophy like Communism or Socialism. The difference is that whereas communism and socialism are materialistic philosophies intended to secure ecomonic welfare of individuals, Hindutwa is a spiritual cum economic philosophy founded and developed from ancient times in this land for securing the allround happiness of all individuals irrespective of religion of individuals. The stress in this philosophy both on the ruler and the ruled is the performance of duty and to conform to a code of conduct. The vast body of proper code of conduct in every sphere of human activity such as personal, social, political was called "Dharma".

  3. In this regard, the appellant submits that :

  4. There is a vast difference between Dharma or Hindutwa and religion. In order to appreciate this, in the first instance, it is necessary to understand the clear import of the word Dharma. The meaning of the Samskrit word Dharma is very wide. It is not religion. In fact there is no corresponding word to Dharma in any of the languages of the World. All the rules of righteous conduct of human beings in every sphere of human activity evolved from times immemorial in this country, fall within the meaning of the word Dharma.

  5. Religion means mode of worship of God by all believers calling Him by different names. There are many religions. There are instances of religious fanaticism creating conflict. But Dharma applies to all human beings. It sustains life. It does not create conflict. The word Dharma cannot be defined. It can only be explained.

  6. The Vedas, which are the primordial source of Dharma enunciated certain fundamental rules of Dharma and they were expanded by eminent jurists and philosophers from time to time. The basic rules of equality were incorporated in the Vedas. Rigveda (5-60-5) reads:

    AJYESHTHASO AKANISHTHASA ETE
    SAM BHRATARO VAVRIDHUH SAUBHAGAYA

    "No one is superior (ajyeshthasah) or inferior (akanishthasah). All are brothers (ete bhratarah). All should strive for the interest of all and should progress collectively (Saubhagaya sam vavridhuh)".

    SAMANI VA AKUTIH SAMANA HRIDAYANI VAH
    SAMANAMASTU VO MANO YATHA VAH SUSAHASATI

    "Let there be oneness in your resolutions, hearts and minds. Let the strength to live with mutual co-operation be firm in you all". (concluding part of Rigveda)

    Article-1 of Universal Declaration of Human Rights is similarly worded.

    Atharva Veda Samjnana Sukta is to the following effect:

    SAMANI PRAPA SAHA VAH ANNABHAGAH
    SAMANE YOKTRE SAHA VAH YUNAJMI
    ARAH NABHIM IVA ABHITAH

    "All have equal rights in articles of food and water. The yoke of the chariot of life is placed equally on the shoulders of all. All should live together in harmony supporting one another like the spokes of a wheel of the Chariot connecting its rim and the hub".

    In addition to declaring equality and equal rights, of all. Taittiriya Upanishad (1-11) exhorts every individual to tell truth, not to hurt any one, to treat the mother, father and the teacher as gods, and to perform only such acts which are not forbidden by the rules of Dharma. (See ANNEXURE-I at pages 15 and 16).

  7. Taittiriya Samhita (Mahanarayana Upanishad) which laid down the aforesaid Code of conduct declares:

    DHARMO VISHWASYA JAGATAH PRATISHTHA
    LOKE DHARMISHTHAM PRAJA UPASARPANTI
    DHARMENA PAPAMAPANUDATI
    DHARME SARVAM PRATISHTHITAM
    TASMADDHARMAM PARAMAM VADANTI

    "Dharma constitutes the foundation of all affairs in the World. People respect one who adheres to Dharma. Dharma destroys sinful thoughts. Everything in this world is founded on Dharma. Dharma, therefore, is considered Supreme".

    (Taittiriyopanishad - Jnanasadhana Nirupanam, vide Sasvara Vedamantra P. 128)

  8. The propounders of Dharma did appreciate that the fulfilment of desires of human beings was an essential aspect of life, but they were of the opinion that unless the desires were regulated by Dharma the undesirable results were bound to follow. Therefore, all the propounders of Dharma were unanimous that for the existence of an orderly society, peace and happiness of all, the desires (kama) for material enjoyment and pleasures (artha) should always conform to Dharma (Law) and never be inconsistent with it. As a result, the doctrine of Trivarga- viz., DHARMA, ARTHA, KAMA-was laid down. The injunction to every individual flowing from the doctrine of Trivarga was that the desire (Kama) and material wealth (Artha) must be rejected if it is contrary to Dharma. (Manu.-II-224 and IV-176).

    While the word Dharma has a very wide meaning, the fundamental rules of Dharma, common to all human beings, were laid down thus:

    "AHIMSA SATYAM ASTEYAM SHOUCHAM INDRIYANIGRAHAH ETAM SAMASIKAM DHARMAM"

    "Ahimsa (non-violence), Satya (truthfulness), Asteya (not acquiring illegitimate wealth or coveting the property of others), Shoucham (Purity of mind and action) and Indriyanigraha (control of senses) are the common Dharma for all". (Manu. Ch. X-63)

    The principles set out above are fundamental and have manifested themselves through various provisions meant to sustain the life of the individual and the society. It is for this reason, all the works on Dharma declare with one voice that Dharma is that which sustains the world. Every act or conduct which was in disobedience to the aforementioned rules of Dharma was called Adharma and was declared to be injurious to the society and the individual.

  9. Many values of life were evolved on the basis of fundamental principles. The most cherished values were to treat another's wife as one's own mother, another's wealth as a clod of earth, and to treat every living being as one's own self. (Matrivat Paradaaramshcha Paradravyani Loshthavat, Atmavat sarvabhutani).

    Hitopadesha of Narayana declared:

    AHARA NIDRA BHAYA MAITHUNANCHA
    SAMAVYAMETAT PASHUBHIRNARANAM
    DHARMO HI TESHAM ADHIKO VISHESHO
    DHARMENA HEENAH PASHUBHISSAMANAH

    "Food, sleep, fear, enjoyment of sex are common to man and animal. But Dharma is a special attribute of man. Bereft of Dharma man is equal to animal".

    The clear message is that the material pleasures must conform to Dharma.

    Having regard to the importance of -Dharma, the need for the scrupulous observance of Dharma is forcefully expressed in the following famous verse:

    DHARMA EVA HATO HANTI
    DHARMO RAKSHATI RAKSHITAH
    TASMADDHARMO NA HANTAVYO
    MA NO DHARMO HATOVADHEET

    "Those who destroy Dharma get destroyed. Dharma protects those who protect it. Therefore, Dharma should not be destroyed so that we may not be destroyed as a consequence thereof". (Manu. VIII-5; Read ANNEXURE-I)

    The principle laid down in this saying is of utmost importance and significance. In the above shortest saying, the entire concept of Rule of Law is incorporated. The meaning it conveys is that an orderly society would be in existence if everyone acts according to Dharma and thereby protects Dharma and such an orderly society which would be an incarnation of Dharma. in turn, protects the rights of individuals. A state of Dharma was required to be always maintained for peaceful coexistence and prosperity of all. The Ruler was only the Penultimate authority. Brihadaranyaka Upanishad (1-4-14) declares:

    TADETAT KSHATRASYA KSHATRAM YAT DHARMAH
    TASMAT DHARMAT PARAM NASTI

    "Dharma is the King of kings. Nothing is superior to Dharma".

    Dr. S. Radhakrishnan, former President of India, quoted this verse in the course of his speech for the adoption of the Constitution, in the Constituent Assembly. (Shiva Rao- The Framing of India's Constitution, Vol-II, pp 1-18 at 15)

  10. Dharma is the basic feature of our civilization and culture. In view of this, from ancient times the broadest possible philosophy which was considered essential for peaceful coexistence of persons belonging to different religious faiths has been evolved.

    In the Smritis, under the Chapter "Raja Dharma" which was the constitutional law to be obeyed by the Kings (States), it was laid down thus:

    PASHANDA NAIGAMA SHRENI PUGA VRATA GANADISHU
    SAMRAKSHET SAMAYAM RAJA DURGAM JANAPADE TATHA

    "The King should afford protection to compacts of associations of believers of Veda (Naigamas) as also of disbelievers in Veda (Pashandis) and to others". (Narada Smriti - Sacred books of the East Series, Vol. -?, pp-153-2, also Dharma Kosha, P. 870).

    These two most ancient provisions show how in this land where Vedas were regarded as Supreme, the disbelievers in Veda were respected and required to be protected. This exhibits a principle superior to the one contained tin the slogan:

    "I HAVE THE GREATEST DETEST FOR YOUR OPINION BUT I
    SHALL PROTECT YOUR RIGHT TO SAY IT"

    Inscribed on the British Parliament House. The principle is "I shall respect and protect your belief and faith though I hold on to my belief and faith".

    So deep rooted Is the principle of secularism in our culture and civilization.

  11. It was also made obligatory for the king to give equal protection to all his subjects without any discrimination. In this behalf, Manusmriti on Raja Dharma (IX-31) says:

    YATHA SARVANI BHUTANI DHARA DHARAYATE SAMAM
    TATHA SARVANI BHUTANI VIBHRATAH PARTHIVAM VRATAM

    "Just as the mother earth gives equal support to all the living beings, a king should give support to all without any discrimination. " (Manu Ch. IX-311).

    In conformity with the above spirit of Raja Dharma, Kautilya, in his famous Artha Shastra summed up the duties of the State thus:

    PRAJA SUKHE SUKHAM RAJNAH
    PRAJANAMCHA HITE HITAM
    NATMAPRIYAM HITAM RAJNAH
    PRAJANAMTU PRIYAM HITAM

    "In the happiness of the subjects, lies the king's happiness, in their welfare his welfare. at pleases himself the king shall not consider as good but whatever pleases his subjects the king shall consider as good". (Kautilya's Artha Shastra, by Dr. R. Sharma Sastry, 8th Edition, P - 39).

    Expressing his opinion on the importance of Kautilya's Artha Shastra, Dr. Jolly stated thus:

    "I must say that this Is one of the most interesting and valuable Sanskrit works ever produced. As a faithful and lifelike representation of Indian Institutions and modes of Government, it is without a parallel. It throws a great deal of new light on Indian Constitutional history and on the development of Indian law". (Ibid P. 494).

    Apart from the specific provision of the Raja Dharma, It has been the fundamental practice to pray individually as well as collectively for the well being of all.

    SARVEPI SUKHINAH SANTU SARVE SANTU NIRAMAYAAH
    SARVE BHADRANI PASHYANTU MA KASHCHIDDUKHABHAGBHAVET

    "Let all be happy, let all be free from diseases, let all see auspicious things and let nobody suffer from grief".

    Respect for all religions is contained in the following famous verse composed by Shankaracharya.

    AKASHAT PATITAM TOYAM
    YATHA GACHCHHATI SAGARAM
    SARVADEVA NAMASKARAH
    KESHAVAM PRATI GACHCHHATI

    "Just as the rain water falling at different places reaches the same destination, the sea, obeisance to God in any name reaches the same destination".

    Thus, Hindu Dharma laid stress on the principle that God is one - despite the fact that people belonging to different religious faiths call Him differently and, there- fore, though obeisance to God is made giving any name, the destination is the same.

  12. Following the principles of Dharma, was considered essential both for the Ruler and the Ruled. The importance of observance of Dharma, considered essential for the purpose of exercising political power, is contained in the advice given by Rama to Bharata at Chitrakut while sending him back, to rule the country. This has been forcefully brought forth in the celebrated work Sitayana by Dr. K.R. Srinivasa Iyengar. (See ANNEXURE-Xll, RAMA ON RAJADHARMA)

    The above advice (contained in Annexure-XII) by Rama is of eternal value for all those who exercise political power under any system of Government. Those who handle political power must conform to Dharma for safety, otherwise their ruin is certain.

    It is such deep-rooted. unshakable. everlasting principles and values evolved in this land from times immemorial that are collectively called Dharma: In common parlance called "Hindu Dharma", Hindutwa, Hinduism or Hindu Sanskriti as also "Bharatiya Sanskriti".

  13. The appellant respectfully submits that the word Hindutwa used in the course of election campaign of the appellant was only in the above sense. An overall reading of the contents of the speeches, slogans or posters etc., which is the method to ascertain the real intension as laid down by this Hon'ble Court in KULTAR SINGH Vs. MUKIITAR SINGH (A.I.R. 1965 S.C. 141) gives only, such meaning. Feeling proud of Hindutwa which incorporates such eternal values, is no corrupt practice under Section 123 of the R.P. Act. It is only on account of these values there has never been persecution of any one on ground of religion in the entire Indian Hi

    Religion is mode of worship. It is entirely different. They are many. Therefore any person who follows his own religion would be acting within the rules of Dharma or Hindu Dharma as it has come to be called.

  14. It is on the basis of these lofty principles of Dharma, meant for the guidance of human beings in every sphere of activity, including governance of the States, that Fredric Max Muller remarked:

    "If I were asked under what sky the human mind has most fully developed some of its choicest gifts, has most deeply pondered on the greatest problems of life and has found solutions to some of them which well deserve the attention of even those who have studied Plato and Kant, I should point to India".

    Arnold J. Toynbee, the greatest Western Historian Philosopher, in the course of expressing his views on the life and work of Shri Ramakrishna Paramahansa observes thus:

    ".....It is already becoming clear that a chapter which had a western beginning will have to have an Indian ending if it is not to end in the self-destruction of the human race"........ "At this supremely dangerous moment in human history, the only way of salvation for mankind is an Indian Way". (See ANNEXURE-XIII)

    The appellant and his party sincerely and honestly believe that for the Country which is facing wide-spread decline of moral values. exploitation of caste, religion and language in politics, disunity, crisis of character. and many other ills, resurrection of Dharma or Hindutwa alone is the remedy. It alone can destroy sinful thoughts, caste, language and religion based politics and establish moral authority and make the people to follow the righteous path, and thus save the Nation from catastrophe.

    The appellant and his party stand for equal respect for all religions which is the essence of Hindutwa and equality and equal opportunity for all citizens including Muslims, but only against discriminatory and appeasent politics which is really creating disharmony between different sections of citizens. The appellant submits that it has never been the intention of the party or its members to hurt the feeling of Muslims or any other religious denomination or to appeal to voters to vote or refrain from voting on religious grounds.

    The appellant therefore submits that speeches, slogans, posters read as a whole only indicate the serious concern of the party:

In conclusion the appellant submits that the appeal to vote on the ground of Hindutwa/Hinduism made in the three speeches is no appeal on the ground of religion but is an appeal on the ground of culture to strengthen Nationalism, Patriotism and Morality, which alone can ensure National Integrity and Prosperity and which squarely falls within the Fundamental Right guaranteed under Article 29 of the Constitution.


NEW DELHI:
[M. RAMA JOIS]
SENIOR ADVOCATE
DATED:

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