Political Hinduism in the Court of Law: Religious Speech and Struggle for Democracy in India

• Author: Amit Bindal
• Position: Jindal Global Law School, O.P. Jindal Global University
• Pages: 153-180

e Indonesian Journal of International & Comparative Law

ISSN: 2338-7602; E-ISSN: 2338-770X

http://www.ijil.org

© 2022 e Institute for Migrant Rights Press

I want to acknowledge the support of Prachi Deshpande, CSSS, whose extensive

comments on the first draft helped me frame the argument properly. Wesley Sena,

Harvard Divinity School, for his meticulous editorial help and Sabarish Suresh,

Cardozo Law School, for his help in referencing and footnoting the paper.

PolitiCal Hinduism in tHE Courts of law

Religious speech and stRuggle foR democRacy in india

Amit Bindal

Jindal Global Law School, O.P. Jindal Global University

E-mail: abindal@jgu.edu.in

is essay demonstrates the conceptual confusion that courts in India have cre-

ated in interpreting religion as a cultural category. It suggests that “appeal to

religion” during elections is inter preted by the Indian Supreme Court providing

legitimacy to the sectarian rhetoric of Hindu nationalists during elections. In

this way, the judicial reasoning has aligned with and unknowingly promoted

the divisive vocabulary and religion-based bigotry during election campaigns.

rough a close reading of the judicial archive of Indian Supreme Court cas-

es (1960-1996) it will demonstrate how the judicial discourse aligned with the

rhetoric of Hindu nationalists in India and how its continuous presence can

be felt in the political discourse in contemporary India. Various other scholarly

treatments on the issue have emphasised on the eects of political regimes on

judicial verdicts. Departing for that approach, this essay will propose that the

critical scrutiny of the structural aws of the judicial process provide a deeper

insight in understanding the interpretive fallacy when modern courts deal with

issues of religion or mythology. is essay will show that within the archive/

precedents of the judicial discourse there was an emerging trend of decisions

which eventually lead to legitimation of political Hinduism in Indian courts.

Relying on discourse analysis of the judicial archive, the article suggests that an

alternative approach is discernible from within the law to arrive at just outcome

when courts interpret religious speech during elections. e essay focuses on the

judicial discourse of the Supreme Court of India on Hinduism but does not limit

itself to that.

Keywords: Religious Freedom, Law and Religion, Nationalism, Freedom of Speech

IX Indonesian Journal of International & Comparative Law 153-80 (April 2022)

154

Bindal

INTRODUCTION

is article sets out to explore the intersection of India’s modern law

with religion. I will demonstrate how India’s judicial interpretation wa-

vers when the courts interpret religious, mythical symbolism/speech

used during electoral campaigns. One possible reason for this diculty

is that modern law is premised contrary to the mythic worldview.1 In

the context of ex-colonial societies, where there was an imposed emer-

gence of modernity along with colonialism, one may suggest that the

mythical appeal is reminiscent of the lost past. erefore, the conation

of culture with religion most glaringly illuminates the limits of judicial

reasoning in disputes related to religion or mythology.

My archive comprises the Supreme Court cases in India in which

religious speech and symbols are used during election campaigns. In so

doing, I will analyze the judicial discourse surrounding a single most

crucial provision—Section 123 (3)—which limits religious speech

during elections. is provision is in e Representation of People’s Act,

1951 (RPA). is legislation, enacted shortly aer Indian independence

from the British colonial rule, represents a comprehensive enactment

governing the election law in India at Union/federal and state levels.2

Section 123 (3) prohibits using any political appeal to religion to solicit

votes during elections.3 e dominant interpretation given to this

provision, as I will show, has become central in providing legitimacy

to the militant form of political Hinduism that solicits votes during

election campaigns. Most specically, the interpretation given to

Section 123 (3) of RPA by the Indian Supreme Court in the case of Dr.

1. M H  T W. A, T D 

E: P F 3 (2002) (ey argue that

the European Enlightenment tradition denes itself in negation of the

mythological).

2. Article 327 of the Constitution of India empowers the Parliament to “make

provision with respect to all matters relating to, or in connection with,

elections to either House of Parliament or to the House or either House of the

Legislature of a State.” e RPA was enacted under this provision. Article 324

of the Constitution of India vests the superintendence, direction and control of

elections in the Election Commission.

3. Section 123 (3) also prohibits seeking votes on other forms of hostile solidarity

in the name of race, caste, community or language.