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editricon THE MISUSE & MISINTERPRETATION OF A JUDGEMENT

 
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THE MISUSE - BJP SAYS IT STANDS VINDICATED

Here is the excerpt:Source http://www.bjp.org/history/htv-jag.html

Going by the judicial precedents, Justice Verma's Bench has rightly observed: "These Constitution Bench decisions, after a detailed discussion, indicate that no precise meaning can be ascribed to the terms 'Hindu', 'Hindutva' and 'Hinduism'; and no meaning in the abstract can confine it to the narrow limits of religion alone, excluding the content of Indian culture and heritage. It is difficult to appreciate how in the face of these decisions, the term 'Hindutva' or 'Hinduism' per se, in the abstract, can be assumed to mean and be equated with narrow fundamentalist Hindu religious bigotry, or be construed to fall within the prohibition in subsections (3) and/or (3A) of section 123 of the Representation of the People Act.

In conclusion, the Bench reiterates: "It is a fallacy and an error of law to proceed on the assumption that any reference to Hindutva or Hinduism in a speech makes it automatically a speech based on Hindu religion as opposed to other religions or that the use of the word Hindutva or Hinduism per se depicts an attitude hostile to all persons practising any religion other than the Hindu religion... and it may well be that these words are used in a speech to emphasise the way of life of the Indian people and the Indian cultural ethos...There is no such presumption permissible in law contrary ot the several Constitution Bench decisions."

This judgement is quoted by BJP even in its website and by the proponents of "Hindutva"

THE PART OF JUDGEMENT THAT BJP DECIDES TO SKIP

Now thats only half the story....here below is the glaring ommission and equally relevant portion of the Judgement

"Misuse of these expressions to promote communalism cannot alter the true meaning of these terms. The mischief resulting from the misuse of the terms by anyone in his speech has to be checked and not its permissible use. It is indeed very unfortunate, if in-spite of the liberal and tolerant features of ‘Hinduism’ recognized in judicial decisions, these terms are misused by anyone during the elections to gain any unfair political advantage. Fundamentalism of any colour or kind must be curbed with a heavy hand to preserve and promote the secular creed of the nation. Any misuse of these terms must, therefore, be dealt with strictly"

Now see how the Judge here refers to the misuse of these terms to promote communalism? Then the obvious question is to how then the case was judged in the favor of those who actually were misusing the term.

THE JUDGE INDICTS THE SAFFRON BRIGADE - INTENT WAS TO SAVE "HINDU" FROM BEING HIJACKED BY THEM

Here is what the Judge qualifies later


"For a proper appreciation of that judgment, it is necessary to remember the basics for interpreting a judgment to enable a fair comment thereon. It is basic, that a judgment has to be read and construed in the context in which it was rendered; and that it is an authority only for the proposition it expressly lays down, and not for that which may appear to logically flow from it. The reason is, that a judgment is required to decide only that which is necessary for decision of the case and there is no occasion to consider and decide any ancillary matter.

The main points of law which arose for decision in the bunch of election appeals, were: Whether, sub-section 3 and/or 3A of Section 123 of the Representation of the People Act, 1951 are unconstitutional being violative of Article 19 (1)(a) of the Constitution?; and, Whether, mere use of any of the terms ‘Hindu’, ‘Hinduism’, or ‘Hindutva’ in an election speech per se constitutes an electoral corrupt practice under sub-section 3 and/or 3A of Section 123 of Representation of People Act, 1951 to invalidate the election of the returned candidate? "


So basically what is judged upon is whether the mere use of term Hindu in a electoral speech constitutes a violation...which it obviously is not....just cause of its being used by certain elements to promote communalism....the judge reinforces the fact that we cannot make the term "Hindu" captive to the fundamentalists and it should be always be understood in its tolerant and universal spirit.....but again while considering that the judge clearly refers to how the misuse of it (which was not the point of discussion in the given case) needs to stop to preserve the secular creed of the nation.

If the Saffron Brigade required any further confirmation of the fact that it was them who were indicted in the case .... here is what the judge is quoted as later subsequently "The politicians who are practising or using Hindutva to their advantage are mis-constructing and misusing it. They have not fully appreciated the abstract of the judgment."

The fear is if the fundamentalist version of Hinduism gets to the fore then in the not so distant a future the practitioners of the faith who do so in the spirit of the tolerance emobodied in it will be asked to denounce and differentiate the radical ideology that the fundamentalist espouses much like the Muslims are forced to do now.

SO WHY DID THE JUDGE KEEP QUIET ?

And here is an excerpt where the Judge explains why he remained silent about the misuse and so also on the various criticism to the Judgement "I had deliberately refrained from responding to the unfair comments all these years in keeping with the highest traditions of the judiciary that a Judge must not speak of, or try to explain his judgment extra-judicially. However, with the lapse of time, and its continuing relevance even now I deem it fit to say this, quoting the precise language of the judgment to indicate that the criticism in some quarters of this judgment as well as it’s misuse by some, is unfair and a misreading of the judgment. However, if at present a persistent misuse of the term ‘Hindutva’ or ‘Hinduism’ by a few is distorting its earlier accepted meaning as a ‘way of life’ with a view to identify it with Hindu religious fundamentalism or bigotry, then the context of its use may satisfy the further requirement to make it impermissible in a secular polity. The above judgment itself would indicate this."

CONCLUSION

So much for BJP putting it up on their website to give themselves the SC stamp of acceptance for their Political use of Hindu ideology....what sham.... if anything its a condemnation of their brand of politics....and if they got any shame they will take it out of their website rather than promote the misinterpretation of that judgement...made clear beyond any doubt by the Hon'ble Justice Verma himself.

Maybe another PIL is in order to totally stamp off religion and caste out of politics....cause the first should never be mixed with governance and the later is an accepted evil which we cannot let politicians reinforce in our society in the name of fighting it.

Chalo Cheers and take Care

PS : http://nhrc.nic.in/hruniversalcreed.htm the link where the Judge goes into the detail about the context and content of the Judgement.

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