In The Case That Shook India, Prashant Bhushan describes the debate that followed the EC granting the cow symbol to the Indira Gandhi-led Congress.
An election poster of Indira Gandhi with her ‘cow and calf’ symbol. Credit: Twitter
In his book The Case That Shook India: The Verdict That Led to the Emergency, Prashant Bhushan draws attention to the court proceedings that took place in the watershed Indira Gandhi vs Raj Narain case. This particular extract from the book, reprinted after more than 30 years, highlights an interesting aspect of that debate that also seems to have a contemporary resonance: can the cow be treated as a symbol of Hindu religion? The Election Commission in 1971 had allotted the symbol of a cow and calf to the Congress party then led by Indira Gandhi. The charge against Gandhi, argued in court by Shanti Bhushan, Narain’s counsel, was that she was invoking Hindu sentiment by using the cow and calf symbol.
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Bhushan lastly argued the symbol issue which was framed as follows: ‘Whether by using the symbol of the cow and calf which had been allotted to the party by the Election Commission, Respondent No. 1 was guilty of making an appeal to a religious symbol and committed a corrupt practice as defined in Section 123(3) of R.P. Act.’
Section 123(3) of the R.P. Act provides that ‘the use of or appeal to National Symbol, such as, the National Flag, or the National Emblem, for the furtherance of the prospects of the election of that candidate or for prejudicially affecting the election of any candidate,’ would be a corrupt practice.
Counsel said that Mrs Gandhi had admittedly used the cow and calf symbol for her election. The only question was whether the symbol of the cow and calf was a religious symbol. He said that he would overwhelmingly establish this beyond any doubt.
Counsel submitted, ‘Your Lordship will see that a similar symbol had been asked for by the Akhil Bharatiya Ram Rajya Parishad in the 1952 elections but was refused by the Election Commission on the ground that it was a religious symbol. Further, a report on the First General Elections in India published by the Election Commission says that “no object having any religious or sentimental association, for example, a cow, a temple, a National Flag, a spinning wheel, and the like are found in the list of approved symbols.” The Commission specifically mentions the cow as one of the objects having a religious association. The same Commission which had refused to allot the symbol of a cow to the Parishad in 1952 on the ground that it was a religious symbol had now allotted it to the ruling Congress party.’
Counsel went on, ‘Just because the symbol has been allotted by the Election Commission, it cannot cease to be a religious symbol. Moreover, your Lordship will see that it has been allotted on the basis of a very suspicious piece of reasoning. The first preference of the Congress party was “a mother with a child in her arms”. The “cow and calf” was their second choice. The Election Commission did not allot the first preference though it was a completely harmless symbol, and allotted the second preference which is clearly a religious symbol. Their professed reason was that since the Congress (O) had been allotted their second preference, they were allotting the second preference to the Congress (R) too.’
Counsel argued that just because the symbol had been allotted by the Commission, the party could not abdicate its responsibility. They had themselves asked for the symbol in the first place. So there was no reason why they should not be made to suffer.
Justice Sinha: Suppose the Election Commission allots a religious symbol on its own without the party asking for it.
Counsel: Even then the election would be void. The purpose behind this provision is that if a religious symbol is used by any one, then no matter whose fault it is, the election becomes unfair and it must be set aside. This is similar to the provision in the election law, that if a nomination paper is improperly rejected by the returning officer, the election is declared void even though it is no fault of the returned candidate.
Counsel then cited a judgment of the Supreme Court in which it is observed that the cow in India has been raised to a status of divinity. He cited another recent decision of the Supreme Court in which it was held that the candidate had committed a corrupt practice by proclaiming that a person voting for the Congress would be guilty of go hatya (cow slaughter). Placing strong reliance on these cases, Counsel submitted that they alone clinched the issue and proved that the cow was a religious symbol.
He also cited the Encyclopaedia Britannica on Hinduism. The Britannica, after explaining the concept of worship in Hindu mythology, says that while many animals are worshipped because of their associations with deities, the cow is ‘divine in her own right’. Counsel submitted that something which was merely associated with a deity might not be a religious symbol, but the symbol of a deity itself must necessarily be a religious symbol.
Bhushan next analysed the oral evidence which had come in from both sides on this issue. Both sides had examined one pandit each. While the pandit examined by the petitioner maintained that the cow was a deity, the respondent’s pandit denied it. Bhushan humorously remarked, ‘Your Lordship will have to arbitrate between the two pandits, so you become a super pandit.’
He then read out a few passages from Mahatma Gandhi’s book Go Seva (Service to the Cow) in which the Mahatma had said that he considers reverence for the cow as one of the fundamental tenets of Hindu religion. Placing strong reliance on this, Counsel contended that if an authority like the Mahatma had said such a thing, there could be no dispute whatsoever about the cow being a religious symbol.
Bhushan ended his arguments on this issue with the plea that in the face of such overwhelming evidence, it was impossible to say that the symbol of the ‘cow and calf’ was not a religious symbol.
There were two other issues framed in the petition, one relating to the bribery of voters and the other relating to the conveyance of voters to the polling stations. Bhushan did not press these issues as the evidence on these was very flimsy. He ended his arguments by thanking the judge for giving him a very patient hearing after arguing continuously for seven and a half days.
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Khare lastly took up the symbol issue. He argued that the petitioner had missed one vital point on this corrupt practice. ‘He has argued on the assumption that the use of a religious symbol alone was enough to set aside the election. But your Lordship will see that the petitioner must also show that the use of that symbol had materially affected the results of the elections.’ Counsel was relying on Section 100(c)(2) of the R.P. Act which provides that the election of a returned candidate could be set aside if the High Court was of the opinion that the result of the election had been materially affected by a corrupt practice committed in the interest of the candidate (by an agent other than his election agent). Counsel submitted that the entire arguments of the petitioner were of no avail because of this defect in his pleadings.
Prashant Bhushan
The Case That Shook India: The Verdict That Led to the Emergency
Penguin Random House, 2017
He further argued that the symbol had been allotted to the Congress party by the Election Commission, and Mrs Gandhi, being a Congress candidate, had no choice but to use it. ‘The decision of the Election Commission allotting the symbol cannot be challenged in an election petition. The only way it could have been challenged was by a direct suit filed at the time the symbol was allotted. He cited Rule 10(5) of the Conduct of Election Rules, 1961. It reads: ‘The allotment by the Returning Officer of any symbol to a candidate shall be final except where it is inconsistent with any directions issued by the Election Commission in this behalf.’
Counsel argued that this rule made it clear that the allotment was final except when it was inconsistent with the directions of the Commission. ‘The question then arises: “final against whom?” I submit that it is final against everybody. Finality to something is granted in law to avoid litigation. It is the duty of the court to provide a harmonious construction of the law; the construction which would preserve order instead of creating chaos. If this symbol is held to be a religious symbol now, the election of all Congress candidates who had contested the 1971 election would be set aside, causing total chaos.’
Counsel then quoted from the report of the Election Commission on the General Elections of 1971 (Lok Sabha) and 1972 (state assemblies). The Chief Election Commissioner in his report said, ‘The cow may be a religious object held in reverence by the Hindus, but it is difficult to accept the view that a cow represents Hindu religion. Hinduism saw God in everything and in that view whatever was used could be regarded as a religious symbol.’ Counsel argued that the fact that the Election Commission had refused this symbol to the Ram Rajya Parishad in 1951 did not make it a religious symbol. The Commission at that time had mentioned the cow as one of the objects having religious or sentimental appeal. Counsel argued that all that was sanctified or sacred was not religious.
Counsel went on to quote from a mass of religious texts which he had brought with him. He cited the Encyclopaedia of Religion and Ethics by Hastings which lists the religious symbols of Hindus. The cow is not mentioned in it. Counsel also dug out, from a Vedic scripture, the prescription of the sacrifice of a cow as penance for the sin of killing a Brahmin.
Justice Sinha (amidst laughter): Is it also vice-versa?
Dealing with the oral testimony of the pandits summoned by both sides, Counsel charged that the petitioner’s pandit, Raghbar Lal Shastri, had not been fair in maintaining that the cow was regarded as a God. Shri Shastri in his depositions had said that according to Hindu shastras (scriptures), namaskar was offered to a cow because it was a God. Counsel drew the attention of the court to a mantra (hymn) of the Vedas to show that the namaskar mentioned in it was not only offered to cows but to human beings and also other animals. Counsel, therefore, contended that it was wrong to interpret the word namaskar to mean worship.
Referring to Shri Shastri’s depositions that the cow had been called the mother of Rudra (a God), Counsel said that it was just an allegory. ‘Moreover, motherhood does not bestow godliness. Kaushalya was the mother of Rama who was regarded as God, but thereupon Kaushalya did not become a Goddess.’ He also referred to the deposition of the respondent’s pandit, Pattabhiram Shastri, who had deposed that the cow, although revered by the Hindus, was not regarded as a god.
After summing up his arguments, Khare ended thus: ‘In the end, I appeal to your Lordship not for any favour, but for justice according to law for my client. I also appeal to your Lordship to decide the case like a statesman.’
He ended his arguments on 20 May, after arguing continuously for about thirty-four hours over a period of nine days.
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Coming to the symbol issue, Bhushan rebutted Khare’s argument: that since the petitioner did not object to the symbol at the time when it was allotted, he could not complain now. He said that in Ponnuswamy’s case, it has been held by the Supreme Court that once the election process had begun, nobody could go to court to challenge an order of the Election Commission till the election process was over. It could only be challenged by an election petition. ‘The symbol of a cow and calf was allotted to the Congress party on 25 January, just two days before the Presidential Notification was issued. In fact as soon as the symbol was allotted, I received a telegram from Mr C. Rajagopalachari complaining about it, but as the election process had already begun, nothing could be done about it at that time.’
Counsel then turned to Khare’s argument that the petitioner had failed to fulfil an important requirement on this issue by not giving evidence to the effect that the election result had been materially affected by the allotment of the symbol. Khare had relied on Section 101(d) of the R.P. Act which reads: ‘An election can be declared void if it is found that the result of the election insofar as it concerns the returned candidate has been materially affected by corrupt practices committed in the interest of the returned candidate (by an agent other than the election agent).’ Mr Bhushan said that this provision was only to cover instances of corrupt practices committed by agents other than the election agent. ‘But if a corrupt practice was committed by the candidate himself, then the election would clearly become void whether or not the result of the election was materially affected. The allegation here is that the symbol has been used by Mrs Gandhi herself.
‘Another very peculiar argument raised by Mr Khare was that the symbol in this case has not been used by Mrs Gandhi but by the Election Commission. He said that since there was no evidence to show that Mrs Gandhi ever displayed that symbol, it cannot be said that she had used it. This is totally fallacious. The very fact that the symbol of the “cow and calf” was her election symbol proves that she used it.’
Counsel referred again to the Supreme Court decision which held that a cow in India has been raised to the status of divinity, and to the Encyclopaedia Britannica which says that the cow is divine in her own origin. He submitted that these facts alone were enough to establish that the symbol of the respondent was a religious symbol.
Bhushan concluded his rejoinder on 22 May after arguing for three and a half days.
Dr. Dwivedi’s Arguments
The last arguments in the case were advanced by Dr R. S. Dwivedi, who was a Sanskrit scholar assisting Bhushan on the symbol issue.
He quoted extensively from Hindu scriptures to show that the cow had always been regarded as a deity in the Hindu religion. He cited chapter XVIII of the Mahabharata to show that it contained mantras for worship of the cow. As the cow had been treated as an object of worship, it became a deity and a God, he argued.
Justice Sinha: Do we sell our gods?
Counsel: It is prohibited by religion. Religious people do not sell their cows. They may give it to a gaushala (cow protection home).
Justice Sinha: Still, people sell cows. Otherwise, how could common people like you and me get cows? Is there any other deity among the Hindus which is treated in the same manner?
Counsel: What about temples?
Justice Sinha: No Hindu has ever desecrated a temple. Let us see the common man’s point of view. When we try to find out what a religious symbol is, we must see how a common man thinks. Is this our deity which we sell, starve and treat so shabbily?
Counsel: Still it is respected by everyone.
Justice Sinha: Everything we respect is not treated as a deity.
Counsel then cited a case where an Adivasi candidate had held out the threat of divine displeasure of an Adivasi deity (a cock) if a voter did not vote on the symbol of the cow. This was held to be a corrupt practice.
Justice Sinha: That was a different case. In this case, if the respondent had said that the voters would invite divine displeasure if they did not vote for the cow, then it would have been different. If we accept a cow to be a deity, then every cow is a deity. Every cow is a God and we must touch the feet of every cow and worship it.
Counsel: There are some persons who do that.
Justice Sinha: What is the percentage of such people?
Counsel: It is difficult to specify the exact percentage, but a substantial number of Hindus do so. Dr Dwivedi said the problem of the cow being a religious symbol could not be analysed logically as religion was not logical. He said that religion begins where logic ends and the scriptures, as they were religious texts, had to be believed even though they were illogical. Dr Dwivedi ended his arguments on 23 May, which was the last working day in the High Court before it recessed for the summer vacations.
A UNI reporter present there asked the judge when the judgment would be delivered.
Smiling, Justice Sinha said, ‘Counsels have quoted many authorities but none on when the judgment will be delivered.’ More seriously, however, he said that he would try to deliver the judgment during the vacations in June.
Excerpted with permission from Prashant Bhushan’s The Case That Shook India: The Verdict That Led to the Emergency, published by Penguin Random House.
