Supreme Court on Hindutva- A Summary

We lost our first war of independence in 1857‑58

The British Rule got firmly established and India became the jewel in the crown. A few years later came the dawn of India's Renaissance. Eminent Indian leaders perused its history with a new perspective and charted the course of its future with a clean understanding of its national identity and national goals. However that clarity was lost and confusion prevailed from the end of the first quarter of the last century. Various factors contributed to this:

(A)      The new education system took its toll and we were fed various distortions of history:  We were told that this was never a nation, it is in the process of becoming one because of the unified British Rule. India is a land of invasions and the present North is of the stock of Aryans who came from Europe.

(B)      Political awareness and occasional confrontation brought in their wake, some measures of' self‑rule and with that the British treatment of the Indian People class‑wise. They treated Muslims and Depressed classes as separate identities, gave separate electorates and generally followed the policy of divide and rule.

(C)      The psyche of the Muslim leaders was that of dethroned rulers treating other Indians as their subjects.

(D)      For Hindu leaders, Muslim participation became a must for the success of the freedom movement. (Savarkar's call: "If you come along with you, if you do not, without you; if you oppose, in spite of you, I will fight for independence," ‑ came a little late)

(E)       The concept of national and linguistic minorities developed, with the collapse of five empires after the 1st war and the birth of several nations, with such national minorities.

(F)       A strident assertion by the Muslim leadership of their separate identity eliciting assurances of protection and a policy of appeasement, and assurances of equality of all religions (even though it was always there in this country).

(G)      These assurances getting the title of secularism, and resulting in Negationism; negating everything from the National tradition, which preceded all aggressions, and which was described by others as Hindu.

This confusion prevailed even after 15'h August, 1947. The Independence of the country was marked by the pain and trauma of a bloody division. Pakistan was founded on the fallacious two nation theory and it proclaimed itself to be an Islamic State: A large Muslim population (which had voted for Muslim League's Pakistan) remained in India and the Indian leadership got afflicted with the 'minority' syndrome.

India was never in favour of theocracy, and hence proclaimed itself to be a sovereign, Democratic Republic securing to all its Citizens, among other thing, Liberty of thought, expression, belief, faith and worship.

The process of constitution‑making as reflected in the Constituent Assembly Debates was burdened by the concern for the 'minorities' and by the presence of a theocratic state in the neighborhood. While rejecting the original proposal for communal reservations, the constitution‑makers ensured, through the enactment of Articles 25, 26, 27 and 28, Right to Freedom of religion and through Articles 29 and 30, the Cultural and Educational Rights of minorities. The Constitution‑makers did not deem it necessary or prudent, to mention secularism in the document. In fact, Shri M. C. Setalvad in his Patel Memorials Lecture (1965) on secularism points out that the proceedings of the Constituent Assembly show that "Two attempts made to introduce the word 'secular' in the Constitution had failed." He also quotes Dr. Radhakrishnan who said that "the religious impartiality of the Indian State is not to be confused with secularism or atheism". At the same time he asserted that ‘....... nevertheless, it could not be said that the Indian State did not possess some important characteristics of a secular State'. He has then stated that the idea of a secular State in the sense of a State which treats all religions alike and displays benevolence towards them was a way more suited to the Indian environment and climate than that of truly secular State by which he meant a State which creates complete separation between religion and the State. It is also observed that a secular State is not easy to define. According to the liberal democratic tradition of the West, the secular State is not hostile to religion but holds itself neutral in matters     of religion. Our Constitution undoubtedly Iacks a complete separation between the Church and the State as in the United States and at the same time we have no established Church as in Great Britain or some other countries. In our country all religions are placed on the basis of equality and it would, therefore, seem that it is erroneous to describe our country as a secular State.

With this clear understanding of secularism, the Founding fathers did not hesitate to provide for abolition of untouchability by Article 17, and to preserve the legislative power of the State for providing for social welfare and reform or the throwing open of Hindu religious institutions of a public character to all classes and sections of Hindus by Article 25(2)(b) with Explanation II to the same Article which explains that reference to Hindus shall be construed as including a reference to persons professing the Sikh, Jaina or Buddhist religion and the reference to Hindu religious Institutions shall be construed accordingly.

However, the dominant sections of the political class, viz. the Congress and its progeny and the stridently vocal section, viz. the leftists of various hues continued with their own version of the political ideology of secularism, minorities, communalism, Fundamentalism, Majority (Hindu) communalism and even created a straight jacket of political ideology of secularism, socialism, democracy and nonalignment. This was in the nature of ideological terrorism and found expression in Constitutional Amendments and legislations.

It is part of recent history, that even though the Constituent Assembly had consciously avoided the expression 'secularism', it was introduced by the fraudulent 42d Constitutional Amendment in the Preamble of the Constitution, in 1976, during the infamous Emergency, with the entire opposition in jail, to make us a secular and socialist republic. Even the Representation of People Act, 1951 was amended to make it obligatory on every registered political party to swear by socialism and secularism.

However, through the  history of 50 years of Independent India, the process of Deconstruction also commenced. I am using the term Deconstruction with apologies to the late M. Tacques Derrida distinguished French writer and philosopher who used it as a philosophical method. This deconstruction means not destroying ideas, but pushing them to the point where they come apart and expose their latent contradictions. It means reading against the grain of supposedly self‑evident truths, rather than taking them for granted‑ By this process the nation is coming to understand in a better way the concepts of secularism, socialism, Hindutwa, National Unity, Dharma, Religion, Social History, Nationalism.

It is 'interesting to note here that during the lucid period of 1977‑79, after the people had overthrown the authoritarian regime and installed the Janata Rule, the defiling of the Constitution was sought to be mended and the regime of the 42nd Amendment was sought to be dismantled. For the purpose Constitutional Amendments were proposed. The Constitution (Forty‑fifth Amendment) Bill, 1978 was introduced in the Lok Sabha and was duly passed. Clause 44 of this Bill sought to amend Article 366 (which is the Definition Clause) to introduce the definitions of secularism and socialism. The proposed amendment was as follows:

(1)       the expression "REPUBLIC', as qualified by the expression "SECULAR' means a republic in which there is equal respect for all religions; and

(2)       the expression 'REPUBLIC', as qualified by the expression "SOCIALIST', means a republic in which there is freedom from all forms of exploitation, social, political and economic".

This clause of the Amendment was voted down in Rajya Sabha, where the Congress enjoyed  a majority. The terms thus remain undefined in law. And we have the observations of a Judge of the Supreme Court (A.M. Ahmadi, J. in ‘S.R. Bommai’) to the effect that:

"The term secular has advisedly not been defined presumably because it is a very elastic term not capable of a precise definition and perhaps best left undefined."

In these circumstances, it fell upon the Supreme Court to propound the real meaning of these various concepts and while doing this the Judges of the

Apex Court

did not hesitate to underline the ethos of this notion. As and when the occasion arose, the Judges ruled on the various concepts of secularism, national unity, Dharma and Hindu/Hinduism.

This process began almost with the establishment of the Republic on 26th January, 1950.

The Bombay Prevention of Excommunication Act, 1949, was successfully challenged by the religious head of the Bohra Community, in the case of Sardar Taheruddin  Syedna Saheb vs. State of Bombay (A.I.R­1962  S.C.  853,  871), wherein Ayyangar, J. explained:

"Articles 25 and 26 embody the principle of religious tolerance that has been the characteristic feature of Indian Civilization from the start of History. The instances and periods when this feature was absent being merely temporary aberrations. Besides they serve to emphasise the secular nature of the Indian democracy which the founding fathers considered to be the very basis of the constitution."

In the S. R‑ Bommai case, even while upholding the supersession and take over of the B.J.P. ruled States under Article 356 of the Constitution, after the demolition of the Babri structure at Ayodhya on 6th December, 1992, on the spacious, untenable, intangible and vague ground of secularism, the Judges of the Supreme Court recognized that the secularism of the Indian Constitution is not of the Western variety, but is based on the tradition and ethos of this country. They (particularly Sawant, J.) extensively quote Dr. Radhakrishnan, Swarni Vivekananda, and Mahatma Gandhi, all of whom view secularism, in the light of the Hindu view of life, religion and man. While tracing the history of secularism to Prof. Holyoake, describing him as the father of modern secularism, and his associate Charles Bradlaugh who wanted Morality to be understood by excluding all considerations drawn from the belief in God, K Ramaswami, J., in the same case ( S. R‑ Bommai ) concludes:

"If any group of people are subjected to hardship or sufferings, secularism always requires that one should never rein am insensitive and aloof to the feelings and sufferings of the victims. At moments of testing times, people rose above religion and protected the victims. This cultural heritage in India shaped that people of all religious faiths, living in different parts of the country are to tolerate each other's religious faith or beliefs and each religion made its contribution to enrich the composite Indian culture as a happy blend or synthesis. Our religious tolerance received reflections in our Constitutional creed."

    Jeevan Reddy, J. notes a little grudgingly:

This (i.e. secularism) may be a concept evolved by western liberal thought or it may be as some say, an abiding faith with the Indian people, at all points of times.

After the demolition of the Babri structure on 6th December, 1992, the Central Government took over the entire area by enacting the Acquisition of Certain Area at Ayodhya Act, 1993. The constitutional validity of this enactment was challenged in the Supreme Court by Dr. M. Ismail Qureshi and certain other parties.

The main ground of challenge was secularism and the attendant rights of freedom of religion and equality. Justice J. S. Varma, who wrote the majority view of holding the Act valid traced the meaning of secularism and for that purpose he relied on an Address by Dr. Shankar Dayal Sharma, President of India. Dr. Sharma stresses the difference between our understanding and that in the west and says that for us secularism denotes Sarva Dharma Sama Bhav, an approach of tolerance and understanding of the equality of all religions. He further says that this philosophical approach of understanding, coexistence and tolerance is the very sprit of our ancient thought. In support of this assertion he quotes Yajurveda, Prithvi Sukta of Atharva Veda and Rigveda. He then concludes that this enlightenment (of developing Sarva Dharma Samabhav or secular thought and outlook) is the true nucleus of what is now known as Hinduism

Even in his dissenting judgment Bharucha, J. observes that Hinduism is a tolerant faith. It is that tolerance that has enabled Islam, Christianity, Zoroastrianism, Judaism, Budhism, Jainism and Sikhisim to find shelter and support upon this land

In another case the Court was dealing with the constitutionality of the U.P. Shri Kashivishwanatha Temple Act, 1983, and right to religious freedom under Articles 25 and 26. Talking of secularism and of India as a land of multi‑religious faiths, the Court observed that majority is of Hindus, Hinduism being their way of life, belief and faith. Unfortunately they are disintegrated on the ground of caste, sub‑caste, sect, sub‑sect. Unity among them is the clarion call of the constitution. Unity in diversity is the Indian culture and ethos. The tolerance of all religious faiths, respect for each other's religion are our ethos.

It is our experience that anything that has any relevance to Hindus or tradition is dubbed as communal and hence anti‑secular. The Courts have rejected this approach.

It has already been held that cow‑slaughter is not an essential aspect of the religion of Muslims and yet the same was sought to be justified on the ground of secularism. The contention was rejected by the Supreme Court in the case of  State of West Bengal & Ors. vs. Ashutosh Lahiri & Ors. The introduction of Jyotir Vidnyan as a subject of study was challenged on the ground of secularism. In the case of P.M. Bhagara vs. U.G.C. the Supreme Court rejected the challenge, while observing that ancient India studied Astronomy.

In the case of Santosh Kumar vs Secretary the Court expressed deep concern for Culture in the context of need to study Samskrit, and rejected the secular equation of Samskrit with Arabic and Persisan.

            The reigning ideology of pseudo‑secularism always ignored the phenomenon of religious conversions induced by force or fraud. They needed to be reminded that the freedom of conscience guaranteed by Art, 25, is to profess, practice and propagate one's own religion. It does not include right to convert. If a person purposely undertakes the conversion of another person to his religion, that would impinge on the freedom of conscience guaranteed to all the citizens of the country alike. Without getting itself burdened by the secularist bogey the constitution Bench of the Supreme Court so held in the case of Rev. Stainislaus v/s  state of M.P. while upholding the anti‑conversion laws of the states of Orissa and Madhya Pradesh.

NATIONAL UNITY

The decision of Bhagavati, J. in the Pradeep Jain case is sometimes criticized for 'nationalising' medical seats. But while talking about National Unity he expresses the true character of our nationhood which is hitherto ignored. Tle learned Judge notes that for countries India was never a single political unit and yet India was forged into a nation on account of a common culture evolved over centuries. It is cultural unity which has welded this country into a nation.

In the case of Sastri Yagnapurushadji, while tracing the philosophy of Hinduism, the Court pinpointed the subtle indescribable unity of this society while appreciating that Hinduism is a way of life.

In the case of Bramchari Sidheswar Shai, the Court was dealing with the Ramkrishna Mission's claim to be a minority. While rejecting the contention the Court quoted Vivekananda who said ours is a universal religion, and then observed that for us Hindus this truth has been the very backbone of our National existence.

In several other cases the Court is eloquent about the culture, the eternal values and the antiquity of this ancient land

DHARMA

Modern India commits the mistake of translating religion as Dharma. (However, it is gratifying that the Hindi version of secularism in the constitution is Sarva Pantha Samabhav). In two recent cases the Court has made the distinction between religion and Dharma.

In the case of Narayana Deekshitulu the Court upheld the abolition of hereditary right of Archakas under the A.P. Charitable and Hindu Religious Institutions and Endowments Act, 1987. The judgment of both the Judges, viz. K Ramaswami & B.L. Hansaria, JJ. are erudite thesis on religion as spiritual attainment and Dharma as righteous foundation of Social Order.

Again in the case of Aruna Roy vs Union (the NCERT case), Dharmadhikari, J., in his concurring judgment elaborates on the Indian concept of Religion and Dharma, and notes that Sanatana Dharma is elemental to all Nations, while M. B. Shah, J., notes that Dharma is akin to Rule of Law.

Now a paradigm based on the concept of Dharma can change the points of reference in Human Rights jurisprudence. A lead has already been taken.

HINDUTWA ‑

A WAY

OF LIFE:

In the case of Sastri Yagnapurushadji, P..B. Gajendragadkar, C.J., dwelt on the meaning of Hindu. He concluded that It is difficult, if not impossible, to define Hindu Religion. It does not satisfy the narrow traditional features of any religion or creed, because the Hindus do not have (1) one God, (11) one prophet, (ill) one dogma, (iv) one philosophical concept or (v) one set of rites. He, therefore, says that it may broadly be described as a way of life,and nothing more. It is the reflection of the composite character of Hindus. It is based on the idea of universal receptivity. Saints and religious reformers attempted to remove from the Hindu thought and practices elements of corruption and superstition. And yet a subtle indescribable unity pervades.

In the case of Commissioner of Income Tax vs. R. Sridhavan,. Jaswant Singh, J. quotes both Webster and Encyclopedia Brittannica and says that Hinduism is then both a civilization and a conglomerate of religions.

In the cases of Dr. Ramesh Prabhu and Manohar Joshi the Supreme Court held that they had not committed any corrupt practice under the Election laws when they spoke of Hindutwa or Hindu Rashtra. The Court held that Hinduism or Hindutwa are indicative more of a way of life of the Indian people.

Thus these judgments help us to reach the true meaning of secularism, Dharma, Hindutwa and National unity. In a way they indicate the stand and position of Hindu Nationalists. The Nation needs to take a hard look at the reality of life and relinquish secular dogmas that are badly affecting the health of the polity. The relevant portions of these judgments are complied here along with certain relevant articles and reports to present a coherent picture for the benefit of the layman.

These judgments indicate the freedom found by the modern intellectual from the western oriented dogmas. Today the judicial talent is brooding over the reach of Dharna, Dharmashastras and Mimansa. They are the reflection of the contemporary Indian entering the mould of a paradigm shift. The intellectual community is gradually being of liberated from Marxist obscurantism, the antics  of the Arjun Singh Brigade notwithstanding.

The indications are clear: When a Parliamentary Standing Committee on value‑based education identifies the core universal values to be Satya, Dharma, Prem, Ahimsa and Shanti; when the UNESCO idea of spiritual convergence is appreciated; when the internationally accepted idea of spiritual Quotient is recognised to be important facet of human personality as relevant as the intelligence quotient and emotional quotient.

Anybody who sees duties and rights as sides of the same coin goes nearer to the basic concept of Dharma. When women's empowerment is based on the tenet of 'family being the basic unit of the society' it is Indian in essence.

The more we recognise the importance and efficacy of the Panchayat Raj Institutions as instruments for reaching the goal of participatory democracy the more we will shift to an Indian or Bharatiya Paradigm consistent with our ethos. The earlier we appreciate the place of tribals in forests as the rightful habitants of the forests with their right to the land and produce, the more we will help them improve their lot without uprooting them.

Human Rights in the Indian context can never be irresponsibly absolute. Vikramjit Banerjee in his article has made out a forceful case for civilisational understanding. He speaks of a paradigm shift in the human rights discourse. Then he talks about dharmic jurisprudence. Then comes the profound statement = dharma itself is neither a norm nor a duty but an eternal order of things.

One tends to agree with the author when he says that it is imperative to formulate alternative models of social welfare in terms of Bharatiya Culture such as' the ones of Deen Dayal Upadhyaya and Mohandas Karamchand Gandhi.

Thus, now, as the world civilisational discourse is moving from the anticipated clashes to the more basic search for one's roots, the Indian intellectual owes it to himself and his society to recognise his ethos and build a just society consistent with it, liberating the thought and action from dogmas of the Eurocentric world view, Marxist or otherwise. In this process of deconstruction the dogmatic definitions of secularism, Hindutva will give way to their real meaning,

The Supreme Court judgments could be seen as the first rays of Truth that will enlighten the entire intellectuals discourse.

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