When Ram Jethmalani argued that Hinduism is not a religion

In this excerpt from Susan Adelman’s biography of Ram Jethmalani, The Rebel, Adelman narrates what came to pass in December 1995, when Jethmalani was counsel to Bal Thackeray and Ramesh Yeshwant Prabhoo, an independent supported by the Shiv Sena. Both men had been charged with hate speech. In the course of his defense, Jethmalani had to define and differentiate between Hindutva and Hinduism. Here’s how it played out.

I will never forget the day Ram told me with a thrill in his voice that he had a case in which he needed to define whether Hinduism is a religion. Not only that, he had to define a religion. The task at hand was to show the Supreme Court that Hindutva is not the same as Hinduism and that Hinduism is not actually a religion.

Two related cases went to the Supreme Court on the same day, one of Ramesh Yeshwant Prabhoo, and the other of Bal Thackeray v. Shri Prabhaker Kunte. The cases were appeals from the Bombay High Court, arising from a December 1987 election. The High Court had declared Dr Prabhoo’s election void, and it ruled that Thackeray was guilty of corrupt election practices.

The charge was that Ramesh Yeshwant Prabhoo, a candidate from Vile Parle constituency to the Maharashtra State Legislative Assembly, and his agent Thackeray ‘appealed for votes on the ground of the returned candidate’s religion and that they promoted or tended to promote feelings of enmity and hatred between different classes of the citizens of India on the grounds of religion and community’. At issue were three outrageous speeches that Thackeray had given for the candidate.

Dr Prabhoo ran as an independent candidate with support from the Shiv Sena party, because the Shiv Sena was not recognized for the Maharashtra Legislative Assembly elections. Thackeray spoke as the leader of the Shiv Sena. The court quotes from a speech that Thackeray gave in Marathi at Vile Parle in November 1987. The English translation that was furnished to the court read: ‘We are fighting this election for the protection of Hinduism. Therefore, we do not care for the votes of the Muslims. This country belongs to Hindus and will remain so.’

On December 12, Thackeray spoke near a Hindu temple. Again his speech was given in Marathi, but the English translation was: ‘Hinduism will triumph in this election and we must become hon’ble recipients of this victory to ward off the danger on Hinduism, elect Ramesh Prabhoo to join with Chhagan Bhujbal who is already there. You will find Hindu temples underneath if all the mosques are dug out. Anybody who stands against the Hindus should be showed or worshipped with shoes. A candidate by name Prabhoo should be led to victory in the name of religion.’

The third speech was given at an outdoor rally on December 10, and again Thackeray’s speech is translated from Marathi: ‘We have come with the ideology of Hinduism. Shiv Sena will implement this ideology. Though this country belongs to Hindus, Ram and Krishna are insulted. (They) valued the Muslim votes more than your votes; we do not want the Muslim votes. A snake like Shahabuddin is sitting in the Janata Party, man like Nihal Ahmed is also in Janata Party. So the residents of Vile Parle should bury this party (Janata Party).’

To start with, the speeches in Marathi had used the word ‘Hindutva’, but the translator, at a loss for an English word, had translated this by using ‘Hinduism’—the Hindu religion—as a synonym. That was Ram’s first argument—Hindutva and the Hindu religion are two entirely different things. An additional argument was that quoting examples from Hindu mythology did not constitute solicitation of votes on the basis of religion.

That being said, Ram had a steep hill to climb. He started by saying that any restrictions on constitutional guarantees of free speech are invalid, ‘unless the speech is prejudicial to the maintenance of public order’. Ram next argued specifically that ‘only a direct appeal for votes on the ground of “his” religion subject to its tendency to prejudice the maintenance of Public order’ is within the ‘limited scope of the relevant statute’.

The court agreed readily with his point: ‘Shri Jethmalani is right that . . . the element of prejudicial effect on public order is implicit. Such divisive tendencies promoting enmity or hatred between different classes of citizens of India tend to create public unrest and disturb public order.’

Ram went on: ‘A speech in which there be a reference to religion but no direct appeal for votes on the ground of his religion does not fall within the relevant sub-section of the act. That was the key: “The public speeches in question did not amount to appeal for votes on the ground of his religion and the substance and main thrust thereof was “Hindutva” which means the Indian culture and not merely the Hindu religion.’

Ram said, ‘The public speeches criticized the anti-secular stance of the Congress Party in practising discrimination against Hindus and giving undue favour to the minorities which is not an appeal for votes on the ground of Hindu religion.’

Now we come to the definition of Hindutva. The court says, ‘The next contention relates to the meaning of “Hindutva” and “Hinduism” and the effect of the use of these expressions in the election speeches.’ The court presented the arguments: ‘Both sides referred copiously to the meaning of the word “Hindutva” and “Hinduism” with reference to several writings. Shri Jethmalani referred to them for the purpose of indicating the several meanings of these words and to emphasise that the word “Hindutva” relates to Indian culture based on the geographical division known as Hindustan, i.e., India.’

Following Ram’s argument, the court quotes, ‘The historical and etymological genesis of the word “Hindu” has given rise to a controversy amongst indologists; but the view generally accepted by scholars appears to be that the word “Hindu” is derived from the river Sindhu otherwise known as Indus which fl ows from the Punjab.

“That part of the great Aryan race,” says Monier Williams, “which immigrated from Central Asia, through the mountain passes into India, settled first in the districts near the river Sindhu (now called the Indus). The Persians pronounced this word Hindu and named their Aryan brethren Hindus. The Greeks, who probably gained their first ideas of India from the Persians, dropped the hard aspirate, and called the Hindus “Indoi”.’ Ram was on his home ground, Sindh.

The court continues to reference Ram’s submission, Dr Radhakrishnan’s The Hindu View of Life, p.12: ‘That is the genesis of the word “Hindu”. When we think of the Hindu religion, we find it difficult, if not impossible, to define Hindu religion or even adequately describe it. Unlike other religions in the world, the Hindu religion does not claim any one prophet; it does not worship any one God; it does not subscribe to any one dogma; it does not believe in any one philosophic concept; it does not follow any one set of religious rites or performances; in fact, it does not appear to satisfy the narrow traditional features of any religion or creed. It may broadly be described as a way of life and nothing more . . . The term “Hindu”, according to Dr Radhakrishnan, had originally a territorial and not a credal significance. It implied residence in a well-defined geographical area.’

This was Ram’s argument exactly.

The court moves on to the Encyclopaedia Britannica definition of Hinduism: ‘It properly denotes the Indian civilization of approximately the last 2,000 years, which gradually evolved from Vedism, the religion of the ancient Indo-European who settled in India in the last centuries of the 2nd millennium BC. Because it integrates a large variety of heterogeneous elements, Hinduism constitutes a very complex but largely continuous whole, and since it covers the whole of life, it has religious, social, economic, literary, and artistic aspects. As a religion, Hinduism is an utterly diverse conglomerate of doctrines, cults, and way of life.... In principle, Hinduism incorporates all forms of belief and worship without necessitating the selection or elimination of any.’ Again we hear Ram’s point.

The court even accepts the argument that Article 25 of the Indian Constitution says that ‘all persons are equally entitled to freedom of conscience and the right freely to profess, practise and propagate religion, section 2 (b) says “reference to Hindus shall be construed as including a reference to persons professing the Sikh, Jaina or Buddhist religion.” On this last point, the judges made it clear that references to Hindus should include Jains or Buddhists.’

Now moving on to Hindutva: ‘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 also indicated that the term ‘Hindutva’ is related more to the way of life of the people in the sub-continent. 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.’

The plaintiffs had not established that Hindutva and Hinduism are the same, which they needed to do to provide the base for their evidence.

The court summarized: ‘Ordinarily, Hindutva is understood as a way of life or a state of mind and it is not to be equated with, or understood as, religious Hindu fundamentalism.’ Citing quotes Ram had submitted from Maulana Wahiduddin Khan, it wrote, ‘The strategy worked out to solve the minorities problem was, although differently worded, that of Hindutva or Indianization. This strategy, briefly stated, aims at developing a uniform culture by obliterating the differences between all of the cultures coexisting in the country. This was felt to be the way to communal harmony and national unity. It was thought that this would put an end once and for all to the minorities problem.’

The court agreed with Ram: ‘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.’

The court rejected the English translation of Thackeray’s third speech, finding that the translator confused the word ‘Hindutva’ with the word Hinduism, but it still affirmed the High Court on both of these appeals, ruling that Thackeray’s speeches were corrupt practices under the statute, and voiding Prabhoo’s election. Given the egregious nature of these speeches, it hardly could have done otherwise.

Excerpted from The Rebel: A Biography of Ram Jethmalani by Susan Adelman. Reproduced with the permission of Shobhaa Dé Books, an imprint of Penguin India.