Some May Demand a 'Hindu Rashtra', But the Constitution Will Never Allow it

People like Pandit Pradeep Mishra may ask for a Hindu Rashtra, and they're free to ask for it, but...

India's transmutation into a 'Hindu Rashtra' is constitutionally invalid, impermissible and impossible.

(Image Courtesy: The Quint)

Pandit Pradeep Mishra is a storyteller, a Hindu Rashtra enthusiast, and if local and social-media reports are to be believed, someone who feels rituals that involve touching a sacred leaf to a shivling can save your child from flunking their papers — even if they haven’t studied!

But even while paper-passing hacks of all kinds may be welcome for some exam warriors, the storytelling pandit recently courted controversy. This was when at a katha session — which was reportedly telecast live on Aastha TV — he decided to sing:

“Sone ki chiriya ko ab sone ka sher banana hai//samwidhan ko badlo, hamko Hindu rashtra banana hai (We need to turn the golden bird into the golden lion//change the Constitution, we need to make a Hindu nation).”

Although this reporter missed the said telecast, Pandit Mishra’s rendition of the seemingly self-written couplet was accessible on social media, owing to the many shares it received.

Several people, however, also appeared to be of the opinion that Pandit Mishra should be booked for sedition for this anti-Constitution singing habit. Even Bhim Army Bharat Ekta Mission’s Agar district unit, according to the Free Press Journal, demanded a case of sedition against Mishra.

But here’s the thing, the Pandit’s remarks — at least the ones presently doing the rounds of the internet — do not really warrant a sedition case, even though what he seeks is constitutionally impermissible.

Why What He Wants, Doesn't Warrant a Sedition (or UAPA) Case

In Kedar Nath Singh vs State of Bihar (1962), when the constitutional validity of sedition was challenged (prior to the present, ongoing challenge), the apex court had said that the test was whether any violence had accrued.

Thus, as per the Supreme Court, an accused could be charged with sedition only if he his activities involved incitement to violence or intention or tendency to create public disorder or cause disturbance of public peace.

Further, in case anybody missed the memo: the apex court has, in the present challenge to the sedition law, passed an interim order temporarily freezing the application of the colonial-era legislation.

In doing so, the court also said “the prima facie opinion expressed by this Court” is that the rigours of Section 124A of IPC (sedition) are “not in tune with the current social milieu”, and that “it is clear that the Union of India agrees”.

Mishra’s musical couplet also does not warrant a case under any other stringent law — like the Unlawful Activities (Prevention) Act. This is because Mishra’s right to freedom of speech and expression is protected by Article 19 of the Constitution of India (yes, the same document that he wants to change).

Section 13 of the UAPA (punishment for 'unlawful activity') is often trotted out to criminalise calls for changes to India's political system, 'Unlawful activity', as defined under Section 2 of the Act, means any action:

• which is taken which is intended, or supports any claim, to bring about…the cession of a part of the territory of India or the secession of a part of the territory of India from the Union, or which incites any individual or group of individuals to bring about such cession or secession

• which disclaims, questions, disrupts or is intended to disrupt the sovereignty and territorial integrity of India

• which causes or is intended to cause disaffection against India

• which causes or is intended to cause disaffection against India
  

Mishra, in his viral, musical quest for a change in the constitution, prima facie, did none of the above. Even if recent misuse of the provision is used to say his speech could fall within the bounds of the section, the standard for a public order offence is not made out.

After all, as pointed out by senior advocate Rebecca John, in our article on the UAPA charges against Kashmiri journalist Fahad Shah, “when even for the ordinary law (sedition), the threshold is very high (test of violence accrued), for an extraordinary statute (UAPA), it must be much higher.“

But, Here's the Problem With What Pandit Pradeep Mishra Wants

Having said all of the above, the problem remains that Pandit Pradeep Mishra is not the only individual in the country making a demand for Hindu Rashtra. Several others have echoed that call, on social media, in schools, in dharam sansads, implicitly, explicitly, non-violently, through words dripping with violence.

Thus, if it was one Pandit Mishra alone we could have ignored the call and moved on, but because that isn’t the case, one thing needs to be made clear as day:

India's transmutation into a 'Hindu Rashtra' is constitutionally invalid, impermissible and impossible.

Secularism is intrinsic to the Indian republic and part of the basic structure of the Indian Constitution. It was always part of the Constitution thanks to Article 25 (freedom of religion) and Article 26 (freedom to establish religious institutions), as well as Article 15 (right against discrimination, including on the basis of religion).

Its addition to the preamble of the Constitution by the forty-second amendment (in 1976) only reiterated what was always there, as has been reinforced repeatedly by the top court of India.

In the landmark 13-judge Kesavananda Bharati case (1973), in which the the basic structure doctrine was laid out for the first time, the apex court categorically declared secularism as part of the basic structure of the constitution.

In SR Bommai v Union of India (1994), a nine-judge bench of the apex court, held that India has been secular since the formation of the republic. It further went on to state that provisions of the Constitution

“by implication prohibit the establishment of a theocratic State and prevent the State either identifying itself with or favouring any particular religion or religious sect or denomination.”

The court also said: “When the State allows citizens to practise and profess their religions, it does not either explicitly or implicitly allow them to introduce religion into non-religious and secular activities of the State.”

In its Ayodhya verdict in 2019, the Supreme Court said that by enacting the Places of Worship Act 1991, the state had “enforced a constitutional commitment and operationalised its constitutional obligations to uphold the equality of all religions and secularism which is a part of the basic features of the Constitution (emphasis added).”

As held in the Kesavanda Bharati case and reiterated multiple times since by the apex court, Parliament cannot amend aspects of the Constitution that form its basic structure.

Hence, while Pandit Pradeep Mishra has a right to natter on about a Hindu Rashtra (as long as he doesn't advocate its creation by violence) thanks to the very Constitution he wants to get rid of, this will, sadly for him and others like him, remain nothing but a pipe dream.