Today Tuesday 18 October 2016 a seven-judge Constitution bench of the Supreme Court of Chief Justice TS Thakur and justices MB Lokur, SA Bobde, AK Goel, UU Lalit, DY Chandrachud and L Nageswara Rao will be constituted to examine the scope of inquiry to be conducted when charges of corrupt practices under Section 123 (3-A) of the Representation of the People Act 1951 are levelled. The inquiry being conducted affects us and other people and therefore we are intervening by getting added as party respondent, and we are seeking court’s permission to put forth these points.
Section 123 (3-A) defines corrupt practice as promotion of, or attempt to promote, feelings of enmity or hatred between different classes of the citizens of India on grounds of religion, race, caste, community, or language, by a candidate or his agent.
The constitution is the machinery by which laws are made. As a constitution bench the judges must examine the Representation Of The People Act, 1951 section 123 (3-A) with reference to the constitution. Article 15. (1) of the Constitution states as a fundamental right that the State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them. The other important constitutional provision is Article 14, equality before the law.
Once elected, a Representative of the People is, by virtue of her office, the embodiment of the State and must therefore at all cost uphold the constitution. The meaning of Representation of the People Act 1951 section 123 (3-A) is that a candidate cannot make a promise to do something that will have a very serious and long-term effect on peace in the community. It is a law that outlaws communalism. It duly criminalises the deeds and the threats of deeds against communities. The essential ingredients of the provision which constitute a corrupt practice under Section 123(3A) are: (I) the promotion or attempt to promote feelings of enmity or hatred between different classes of the citizens of India; (II) the promotion or attempt to promote enmity or hatred must be by a candidate or his agent or any other person with the consent of a candidate or his election agent; and (III) the object must be for the furtherance of the prospects of the election of that candidate or for prejudicially affecting the election of any candidate. A candidate or elected politician if found guilty of this serious offense that is in the nature of a crime, like fraud, can be fined, and disbarred from office.
When a set of appeal cases by Shiv Sena on its conviction under the Representation of the People Act came before the Supreme Court on December 11, 1995 and thereafter, instead of precisely addressing the question of whether the fundamental right to non-discrimination is being violated, the Supreme Court under Justice Verma redefined Hinduism as a way of life. At a stroke the Supreme Court gave a license to fanatics to deprive non-Hindu citizens of the right to non-violation of our fundamental right to non-discrimination on the basis of religion: Suddenly now Hindus are not people with a religion but practicing a way of life that defines them as Indians. The Hindutva fanatics now easily brand all non-Hindus as non-Indians, and claim authority in their Bharatya Janata Party manifesto to intimidate and kill others by quoting from the Supreme Court judgment.
According to BJP/RSS, if we are Muslims, Christians, Adivasis or Dalits, we are now non-Indian and therefore anti-Indian, and, as Narendra Modi said on September 25, 2016 while addressing a national level BJP conclave at Kozhikode, Kerala, we must be purified. ““Fifty years ago, Pandit Upadhyaya said ‘do not reward/appease (puraskrit) Muslims, do not shun (tiraskrit) them but purify (parishkar) them’. Do not treat Muslims like vote ki mandi ka maal (vote banks) or ghrina ki vastu (object of hatred). Unhe apna samjho (regard them as your own)”. This is a flat-out denial of the difference between people and a fascist programme. It is unconstitutional as Article 26 of the constitutions gives us the right to manager our own religious affairs. How then can we be regarded as the Prime Ministers’ own?
The Verma judgement set the stage for Hindutva killing spree in India as well as the fascism of the present Prime Minister. The Hindu Representative of the People is now the Indian, and the atmosphere of hate is such that police are finding it well nigh impossible to convict gangs of Rashtriya Swayamsevak Sangh (RSS) for murdering Mohammad Akhlaq for eating beef and other heinous crimes. Police are finding it more difficult to deal with them than Naxalites, as the police themselves say. Worst of all, candidates and elected politicians are openly stating that they are Hindu.
With these judgements from the 1990s the Supreme Court opened the door for the killing of thousands of Muslims, Christians, Adivasis and Dalits. The atmosphere is now such that our right to life under Article 21 is regularly violated by the State and its representatives. Article 21 of the Constitution is my right that I shall not be deprived of my life or personal liberty except according to procedure established by law. But the Hindutva people’s representatives in legislative assemblies, panchayati raj insititutions and in Parliament who claim to be the embodiment of Indian way of life to protect cow as mother, can kill me with impunity because they have an opinion of the Supreme Court to quote from. No one stopped them getting elected despite having promoted enmity between religions. Courts, and the police are either in collusion with the state or intimidated by the state and the RSS gangs from doing their duty of upholding the law.
Verma’s opinion is an opinion and has no legislative powers, but it breaches the letter and spirit of the Constitution and the Representation of People Act. This verdict was one of the greatest challenges to the secular Constitution of the country it has faced in its whole life.
The Hindutva killing spree in India must be stopped. The judgements must be reversed in line with the core principles enshrined in the Constitution and the body of laws created by the Parliament.
An additional measure to make the reversal more immediate should be taken, that allows the consumption of beef as a universal food of humanity. The Constitution bench should call on all the states to suspend the laws against cow slaughter in the interest of feeding the poor, increasing the income of farmers, and alleviating the suffering of Muslims, Adivasis, Christians and Untouchables at the hands of Hindutva BJP/RSS.
The basic law that makes ‘the promotion of, or attempt to promote, feelings of enmity or hatred between different classes of the citizens of India on grounds of religion, race, caste, community, or language, by a candidate or his agent’ a corrupt practice under Article 123 (3-A) of the representation of the People Act 1951 must be reinstated. The police must enforce the fundamental right non-discrimination on the basis of religion and the BJP/RSS terrorists must be put behind bars through the due process of law, in order to sustain the democratic, secular Republic. Candidates, Members of Parliament and Legislative Assemblies, Ministers and Prime Ministers or their agents who promote or attempt to promote, feelings of enmity or hatred between different classes of the citizens of India on grounds of religion, race, caste, community, or language must be convicted, fined, jailed, and, if already elected, they must have their election results annulled.
It is first time in the history of Indian Republic that a serving CM of Gujarat, Modi described himself as ‘Hindu nationalist’ when talking to two journalists of Reuters in March 2013. Yet he was not convicted under the Representation of the People Act 1951. It is high time that this error is rectified.
The irony is if Hinduism is not a religion what religion can Hindus have if they want to be religious. Should they turn to Buddhism, Islam or Christianity? If being Hindu is like being Hellenic in Greece, then should all Hindus become Christians as the Greeks have done? Or do what the Egyptians following their ancient culture have done- adopt Islam for a religion? What happens to the Hindu places of worship, Hindu scriptures and other religious institutions? The de-recognition of Hinduism as a religion can do great harm to the legitimate interests of Hindus. And what happens to the laws and government orders that refer to Hindus as a religious community? If properly put it is a denial of Hinduism as a religion done in an undue manner, and it should concern the devout Hindus more than others.
How could the Court miss the point that Hinduism and Hindutva are two different things? The term Hindutva was coined by Savakar in “Hindutva: Who is a Hindu?” in 1923. This is basically the political exploitation of Hinduism in the same way that the ISIS exploits Islam. It is worthwhile to remember that the organisations that promote Hindutva have no respect for the Indian Constitution.
The Indian Constituent Assembly approved the Constitution on November 26, 1949. Four days later, RSS rejected it through an editorial in its English organ Organiser on November 30, 1949, which read: “But in our constitution there is no mention of the unique constitutional development in ancient Bharat. On the eve of Independence when Indians were celebrating the newly freedom, the Organiser (August 14, 1947) denigrated the choice of our National Flag in the following words: “The people who have come to power by the kick of fate may give in our hands the Tricolour but it never be respected and owned by Hindus. The word three is in itself an evil, and a flag having three colours will certainly produce a very bad psychological effect and is injurious to a country.”
When conducting an enquiry when charges of corrupt practices under section 123 (3-A) of the Representation of People Act 1951 are levelled, judges should remember that the law means that it is illegal for someone to promote or attempt to promote, feelings of enmity or hatred between different classes of the citizens of India on grounds of religion, race, caste, community, or language when trying to get themselves elected to public office. And once they are in public office it is illegal for them to engage in such deeds. The day may come soon when we convict Narendra Modi for the corrupt practice of promoting enmity under the Act.
Anandi Sharan is an environmental historian and writer based at Bangalore. She is a Board member of the global environmental platform CBD Alliance and has been articulating the global South’s concerns on climate change. She can be reached at firstname.lastname@example.org