SUPPLEMENT
Chawla's ELECTIONS: LAW AND PRACTICE
4th Edition 1991

Appeal to Religion

Synopsis

Appeal to Religion
Religion
Hindu
Nationalism
Fraternity
Meaning of "Hindu"
Supreme Court on Section 123(3)
Appeal to "Religion"
Muslim Separatism
Pseudo-Secularism
The Question for Decision

1. Appeal to Religion

The crucial debate in the Election of 1991 falls to be considered under S. 123(3) of the Representation of People Act because the Bharatiya Janata Party (and the Shiv Sena in Maharashtra) have adopted the credo of nationalism which the opposing parties regard as Hindu communalism and therefore an appeal to Hindu religion which is a corrupt practice under S. 123(3). An early discussion of the opposing views took place first in the case of Prabhakar Kunte v. Ramesh Prabhu decided by Bharucha J. in the Bombay High Court in 1990 and in April 1991 in the case of Sharad Rao v. Subhash C. Desai also in the Bombay High Court by Suresh J. Both these decisions were given in the election petitions filed by the unsuccessful candidates against the successful candidates belonging to the Shiv Sena. The Shiv Sena has an alliance with the BJP in the State of Maharashtra because of a common ideology.

The decisions in both these cases have been appealed against in the Supreme Court and stay orders subject to conditions have been issued in both these appeals by the Supreme Court. In SLP(C) No. 6657/91 (Subhash C. Desai v. Sharad Rao) the Division Bench of the supreme Court (K.N. Singh and P.B. Sawant JJ) in the order dated 8.4.1991 observed that-

"Having regard to the importance of the question involved in these appeals, we are of the opinion that these appeals should be heard by a Bench consisting of at least 3 judges".

The ideology on which the BJP (and Shiv Sena in Maharashtra) are fighting the 1991 Elections all over India becomes the subject of the greatest importance for the present and the future development of political ideology in this country. Whether the ideology amounts to "an appeal by a candidate to vote or refrain from voting for any person on the ground of religion" within the meaning of S. 123(3) is the crucial question for consideration. Since the question is subjudice in the Supreme Court what is proposed here is to make an analysis of this ideology and its criticism by the opposing parties so that we all should understand what exactly is the controversy and how it is related to the law which declares an appeal to religion as a corrupt practice for which the election of a successful candidate can be set aside under S. 123(3).

In the Constitution of India the Preamble says that India is a secular, democratic republic securing justice, liberty, equality and fraternity. This is followed by declaration of freedom of speech arid expression guaranteed as a fundamental right by Article 19(1)(a). This is to be read with Article 25 which guarantees freedom of conscience and free profession, practice and propagation of religion. It follows that the freedom of speech and expression is available for the propagation of religion also. By propagation is meant preaching or persuasion but not any use of force or fraud in doing so (Stainislaus v. State of M.P., AIR 1977 SC 908). Religion is both a system of thought as also its practice in actual life. Since the Preamble declares the Constitution to be a secular one, the protection given to religion must be understood as given to all religions equally. The meaning of secularism in India is, therefore, equal respect to all religions. It is to be noted that religion as a system of thought may be professed, that is to say, declared openly by any one. Hindu religion is such a system of thought professed and propagated by those who believe in it.

3. Hindu

The Constitution, however, does not define who is a Hindu. Historically, the word Hindu meant all the people of India because the Muslims who lived to the west of the river Indus called those living to the east of the river Indus as Hindus. Sindhu is the name of the river pronounced as Hindu by Muslims and hence the word Hindu meant everyone living beyond the Sindhu or the Indus. The word India is also similarly derived. It is only after the spread of Christianity and Islam in India that the people professing these different religions were regarded as different religious communities. Thus there is a wider meaning of the word "Hindu" as indicating every Indian or Bharatiya and a narrower meaning indicating a person professing Hinduism as his religion.

4. Nationalism

The word "nationalism" also acquires a particular meaning in the context and circumstances In which It is used. The BJP-Shiv Sena have chosen to use the word "nationalism" to indicate loyalty to the country and a sense of belonging to the country. It is thus a thinking or a sentiment which underlies this concept of nationalism. Nationalism is thus so broad as to include within itself the feelings and sentiments of all Indians who are or should be presumably lovers of this country. Even the religion Hinduism is noted In its broad liberalism, its creed is-

"Ekam Sat Viprah Bahudha Vadanti" i.e. Truth is one but is expressed differently by wise men.

Therefore the end of all religions is the same though the end may be attained by different paths. On the contrary, we are told that Islam and Christianity do not recognise any other religion as being a true religion. But when religion is professed by people it acquires its special nature by the other aspects of the culture of the people. Religion is only one aspect of the culture. In India, therefore, Christian Indians and Muslim Indians would not be culturally the same as the Christians and the Muslims living outside India. One trait of loyalty to the Country seems to have been accepted by the Christians generally. Such a generalization could not be made for the Muslims on account of their refusal to join the mainstream of the political life of this country and their insistence on separatism. While the cultural identities of different religious communities may be recognised, such quest for identity must not lead to an ideology of separatism. Separatist ideologies cut at the root of nationalism. The nationalist ideology is a fundamental duty of every Indian. Article 51A lays down this fundamental duty as follows-

(a) To abide by the Constitution and respect its ideals and institutions, the National Flag and the National Anthem:
(b) To cherish and follow the noble ideals which inspired our national struggle for freedom:
(c) To uphold and protect the sovereignty, unity and integrity of India:
(d) To defend the country and render national service when called upon to do so:
(e) To promote harmony and the spirit of common brotherhood amongst all the people of India transcending religious, linguistic and regional or sectional diversities: to renounce practice derogatory to the dignity of women:
(f) To value and preserve the rich heritage of our composite culture;
(g) To protect and improve the natural environment including forests, lakes, rivers and wild life, and to have compassion for living creatures:
(h) To develop the scientific temper, humanism and the spirit of inquiry and reform:
(i) To safeguard public property and to abjure violence, and
(j) To strive towards excellence in all spheres of individual and collective activity so that the nation constantly rises to higher levels of endeavour and achievement.

5. Fraternity

Fraternity in the Preamble and the common brotherhood in Article 51A(e) must transcend religious, linguistic and regional or sectional diversities. The irresistible conclusion is that any religious, linguistic, regional or sectional feeling which is opposed to a common brotherhood or fraternity would be unconstitutional. The Preamable preaches unity and integrity of the nation. The religious, linguistic, regional or sectional diversities have to be overcome in the interest of the unity and integrity of the nation. The creed of nationalism adopted by the BJP-Shiv Sena is, therefore, a paraphrase of the unity and integrity of the nation required by the Constitution. It is only if the philosophy of an individual places the loyalty to the country first above religious, linguistic, regional or sectional diversities that the individual would be regarded as a true nationalist.

It would follow, therefore, that those who put religious, linguistic, regional or sectional diversities above the common brotherhood or the unity and integrity of the nation would not be true nationalists. In this nationalism there is no appeal to any particular,religion because Indians professing different religions are nevertheless Indians first. Unfortunately, the Muslim League regarded Muslims as a separate nation on the basis of Islam and this led to the partition of the country. It cannot be denied, therefore, that those who believe Muslims being a separate nation were not true nationalists. Those who continue to believe in that ideology even after the partition would be acting contrary to the provisions of the Constitution referred to above. Islam is a world religion. There are those among the Muslims whose first loyalty is to their religion and not to the country in which they live. They are Indian Muslims and not Muslim Indians. That is to say, for them the religion comes first and then comes the country. This is contrary to the concept of nationalism. The Shiv Sena has chosen to use the word Hindutva to indicate the quality of the word Hindu in the sense of a person whose first loyalty is to the country. Therefore, for them and the BJP Hindutva is not confined to the Hindus only. It includes all Indians whose first love is the country. Fighting an election on this ideology involves, therefore, no appeal to any particular religion. The appeal is to nationalism (See Shri L.K. Advani's address to the nation published on the centre page of the Hindustan Times of April 16, 1991).

6. Meaning of "Hindu"

It is this meaning of Hindu in the original sense of the word which simply means people living to the east of the river Sindhu and includes within itself all Indians, which is professed by the BJP and the Shiv Sena. They Justify the adopting of the wider meaning of the word Hindu on several grounds. Firstly, for all the years before Christ and for nearly a 1000 years after Christ this was an Aryan or a Hindu country. Secondly, the Muslim Indians first came as foreigners. Those Indians who fought them fought for the country against foreigners and are therefore regarded as national heroes by the BJP. This was criticised by Shri Khushwant Singh in the Seminar on Secularism reported in India Today of 15 May, 1991. But this criticism is misplaced. Rana Pratap, Shivaji, Guru Gobind Singh, all had to fight with the Muslim rulers because of their aggression. The fight was for justice. It was not communal because both sides included followers of both the religions. Thirdly, history of India should be understood true to facts. The barbaric methods of destruction of temples and converting Hindus to Islam were facts of history. If they were wrong we must say so. This does not mean that the present day Muslims can be blamed for these wrongs done in the past. To re-write history by diluting these facts is not correct. Fourthly, some historical injustices have a national significance. If temples were destroyed in Ayodhya, Mathura and Kashi and mosques were constructed on them these acts were meant to be a national humiliation and they were also acts of injustice. Most Muslims agree that Quran does not permit doing such things and if temples were proved to have been destroyed for construction of mosques then they would agree that the mosque could be removed and the temple should be rebuilt to redress the injustice. The question, therefore, boils down to evidence as to whether a particular temple was destroyed for the construction of a mosque. This evidence should be considered impartially either by the parties or by arbitrators or by the courts and a conclusion should be reached without attributing appeal to religion within the meaning of S. 123(3) to those who seek such redress from injustice. Fifthly, the census reports have continuously shown that the population of Muslims and Christians is increasing disproportionately compared to the increase in the Hindu population. This could not have assumed political importance but for the tendency of Muslims to create majority areas for themselves. Another cause for the disproportionate increase in the Muslim population is illegal infiltration from Bangladesh into Assam, West Bengal and other north-eastern states. Some of the Border districts of India have already become Muslim majority areas and the apprehension is that they may again choose to secede from India on the ground of religion and inflict another partition on India. Treating Kashmir as a Muslim majority state with provisions to keep in that state the Muslim majority permanently safeguarded is putting religion above nationalism. The demand for the abolition of Article 370 is, therefore, not an appeal to religion but is, on the contrary, an appeal to nationalism and against preferring religion over nationalism.