JUSTICE MARKANDEY KATJU
There is a school of jurisprudence called the American realist school, which says that the only real law is judge-made law, while a statute is only the raw material which a judge uses in making law. Those who propounded this school were Gray, Frank, and Llewellyn. The Indian Supreme Court seems to be a follower of that school.
According to the realist school, the law is whatever the judges say it is. This therefore entitles judges to act as a legislature and drastically change the law; by adding to a provision, as was done in the judges cases, in which, by what was called by Lord Cooke as a ‘sleight of hand’ (see his article ‘Where Angels Fear to Tread’), the Indian Supreme Court created a collegium system for appointing judges.Nowhere is this contemplated in Article 124 of the Constitution.
Similarly, by his judgment in Manohar Joshi vs Bhaurao Patil In 1995, Justice JS Verma (pictured above) practically amended the Indian Constitution, and by another ‘sleight of hand’ (he had used the same technique in the earlier judges case) converted India from a secular to a Hindu state. The conversion of India from a de jure secular to a de facto Hindu state can be attributed largely to
This decision was given by the Supreme Court on an appeal against a judgment of the Bombay High Court which had held that Manohar Joshi, a candidate of the Shiv Sena, who had been declared elected in the Maharashtra State Legislative Assembly elections of 1990, had committed corrupt practices as defined in section 123(3) of the Representation of People’s Act, 1951, and hence his election was void. The High Court held that Manohar Joshi and his party leaders had made appeals in the name of religion, and hence had committed corrupt practices as defined in section 123(3) and (3A).A careful perusal of the High Court judgment shows there was nothing wrong in it. Section 123(3) includes the following among the corrupt practices mentioned in section 123:
“The appeal by a candidate or his agent, or by any other person with the consent of a candidate or his election agent, to vote or refrain from voting for any person on the ground of his religion, race, caste, community or language or the use of, or appeal to religious symbols.”If on an election petition, the High Court finds a candidate guilty of any corrupt practice, it can invalidate his election by virtue of Section 100 of the Act, and the candidate can be disqualified from contesting again for a certain period vide section 8A. Section 123(3A) includes:
“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 or any other person with the consent of a candidate or his election agent for the furtherance of the prospects of the election of that candidate or for prejudicially affecting the election of any candidate.”
In the election in question, a joint public meeting was held at Shivaji Park in central Mumbai on February 24, 1990. At the said meeting, most of the candidates of the BJP-Shiv Sena alliance, including Manohar Joshi, were present The said meeting was addressed by the leaders of the alliance. At the said meeting, Bal Thackeray (Shiv Sena founder) reiterated that the said alliance was contesting the elections in the name of the Hindu religion and to fight for Hindutva. Some of the most offending statements made at the said meeting by the leaders of the alliance were:
(a) To handle the Congress-I hoodlums, the Shiv Sainiks may take law in their hands and use firearms if necessary.(b) To save `Hindutva’ vote for BJP-Shiv Sena nominees (c) The result of these elections will not only depend on the solution to the problem of food and clothing, but the same will also decide whether in the state the flame of Hindutva will grow or will be extinguished.
If in Maharashtra the flame of Hinduism is extinguished, then anti-national Muslims will be powerful and they will convert Hindustan into Pakistan. If the flame of Hindutva will grow then in that flame the anti-national Muslims will be reduced to ashes.(d) We must protect `Hindutva’ at all costs and for that we must not allow the saffron (Bhagwa) of Shri Chhatrapati Shivaji Maharaj to fall from our shoulders.
(e) Rajiv Gandhi speaking on Hindutva is like a prostitute lecturing on fidelity. The country is again heading for partition. Hindus and Hindu religion are in danger. It is, therefore, necessary that in these circumstances and to keep the flame of Hindutva alive, the alliance of BJP-Shiv Sena should be elected.In a connected case, Justice Verma performed another feat of strange logic:
“… it cannot be doubted that the words ‘Hinduism’ or ‘Hindutva’ are not necessarily to be understood and construed narrowly, confined only to the strict Hindu religious practices unrelated to the culture and ethos of the people of India, depicting the way of life of the Indian people. Unless the context of a speech indicates a contrary meaning or use, in the abstract these terms are indicative more of a way of life of the Indian people and are not confined merely to describe persons practising the Hindu religion as a faith.”
He said, “Considering the terms “Hinduism” or “Hindutva” per se as depicting hostility, enmity or intolerance towards other religious faiths or  professing communalism, proceeds from an improper appreciation and perception of the true meaning of these expressions emerging from the detailed discussion in earlier authorities of this Court.”

He added, “It is indeed unfortunate, if in spite of the liberal and tolerant features of `Hinduism’ recognised in judicial decisions, these terms are misused by anyone during the elections to gain any unfair political advantage. It is, therefore, 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 the Hindu religion as opposed to the other religions or that the use of words `Hindutva’ or ‘Hinduism’ per se depict an attitude hostile to all persons practising any religion other than the Hindu religion.
It is the kind of use made of these words, and the meaning sought to be conveyed in the speech which has to be seen. Unless such a construction leads to the conclusion that these words were used to appeal for votes for a Hindu candidate on the ground that he is a Hindu or not to vote for a candidate because he is not a Hindu, the mere fact that these words are used in the speech would not bring it within the prohibition of sub-section (3) or (3A) of Section 123. It may well be, that these words are used in a speech to promote secularism or to emphasise the way of life of the Indian people and the Indian culture or ethos, or to criticise the policy of any political party as discriminatory or intolerant.”
All this sounds a lot of dissimulation, legerdemain, thaumaturgy, conjuration, and humbuggery. One fails to understand how Justice Verma came to the conclusion that Hindutva does not denote Hinduism, but a way of life, or that speaking of Hindutva promotes secularism. Even if we see the particular context, these speeches were made during an election to whip up communalism, and were therefore clearly an appeal to vote in the name of religion.

In his own speech at Shivaji Park, Manohar Joshi said on February 24, 1990: “The first Hindu state in India will be established in Maharashtra.”Was this not an appeal in the name of religion? But in this connection, Justice Verma, who set aside the Bombay High Court verdict, observed: ” In our opinion, a mere statement that the first Hindu state will be established in Maharashtra is by itself not an appeal for votes on the ground of religion, but the expression, at best, of such a hope.”Is this not sheer duplicity, equivocation and subterfuge?
Justice Verma, while reversing the judgment of the Bombay High Court, said that the word “Hindutva” denotes a way of life and India’s culture. By that twisted logic, Muslims, Christians, and Sikhs must all come under the BJP fold and banner, as BJP claims to represent Hindutva. By his blatantly incorrect judgment, Justice Verma has opened a genie’s bottle that is destroying India.

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