India: Judicial opinions on Hindu religion and Hindutva

(Northern Voices Online | March 18, 2013)

By Irfan Engineer

Definition of Hinduism has confounded the Indian judiciary. Hindu nationalists and Hindu religious institutions benefit from this confusion. The pendulum of judicial opinions swing from defining Hinduism as a religion, albeit one that embraces a multiplicity of gods, texts and religious rites in Commr. Of Wealth Tax, Madras Vs. Late R. Sridharan, to “Hindutva is the way of life”, as in Manohar Joshi’s judgment, and “Hinduism is neither a religion, nor Hindus constitute a religious community”, as in the recent judgment by the Income-Tax Appellate Tribunal in Nagpur. The former interpretation suits religious establishments and temples while the latter suits Hindu nationalists as they conveniently seek to impose Hindu religion as national culture.

The IT Appellate Tribunal, persuaded by the Appellant Shiv Mandir Devasthan Panch, described Shiva, Hanuman and Goddess Durga as super powers of the Universe, not representing any religion. The Appellant wanted to claim exemption under section 80G (5)(vi) of the Income Tax Act, 1961 on the ground that expenses for maintenance of the temple and worship of Shiva was not religious activity and open to members of all the communities and therefore charitable in nature.

Jurisprudence on Hindu idols:

Contrary to the view that Shiva was a super power and not god, earlier Judicial opinions have held idols as Gods and gave human persona and attributes. In Deoki Nandan v. Murlidhar, Supreme Court held that under the Hindu law, an idol is a juristic person capable of holding property and the properties endowed for the institution vest in it. In the Babri Masjid-Ramjanmabhoomi temple case, the Allahabad High Court held idols to be a minor in perpetuity with property vested in it, hence law of limitation does not apply. Deities can even seek partition of the undivided property under Hindu law by filing a suit in Court. Gift to the Deity reflects fiduciary capacity or position in shebaits (Sri Sri Sridhar Jew v. Manindra K. Mitter).

Swaminarayan Sampraday argued before Supreme Court (Shahstri Yagnapurushdasji v. Muldas Bhunadardas Vaishya) that they were distinct and separate from Hindus, in order to claim that the Bombay Hindu Places of Public Worship Act, allowing Dalits entry into the temples, did not apply to it. The Supreme Court although accepting the diversity in religious practices in Hinduism and that Hinduism was way of life, held that “beneath the diversity in all these aspects lie certain basic concepts – acceptance of Vedas as the highest authority and philosophical matters, the great ‘Rita’ of the universe and belief in rebirth and pre-existence”.

Way of life:

Hindu Nationalists have claimed Hinduism to be a religion or culture and way of life according to convenience and context. When surya namaskar, yoga and teaching Gita in schools was made compulsory for all school students in Madhya Pradesh, the BJP led State Government claimed that Gita was not a religious text as Article 28 of the Constitution of India prohibits teaching of religious texts in Schools receiving grant-in-aid from state. However, when state prosecutors initiated action against Russian edition of Bhagvad Gita in Tomsk in June 2011 to ban it on charges of religious extremism, BJP delegation sent a copy of Gita to the President of Russia along with a letter claiming that Gita promotes spiritualism. Minister of External Affairs S M Krishna in his statement to the Parliament on the subject described Gita as a “religious text”. MP Government even sponsors the senior citizens to perform pilgrimages to various religious places – only the pilgrimage centres are centres for Hindu pilgrimage. MP Govt. has belatedly included Ajmer in the itinerary after protests by secularists.

In the Manohar Joshi case’s judgment, the Supreme Court conflated Hinduism with Hindutva and opined that Hindutva was also way of life, contrary to the fact that Hindutva was political ideology constituting and defining Hindu community as a race by Savarkar and Golwalkar. Communal boundaries were defined to exclude Muslims and Christian from the nation and race and constitute them as enemies of Hindu Rashtra. Savarkar distinguished between Hinduism and Hindutva. While conflating Hinduism with Hindutva, the Court gave no reasons whatsoever, let alone cogent reasons. Savarkar’s Hindutva was to position Hindu race rather than Hindu religion as superior. According to Savarkar, ‘Hindus are not merely the citizens of the Indian state because they are united not only by the bonds of love they bear to a common motherland but also by the bonds of blood of the mighty race incorporated with and descended from the Vedic forefathers’. But Savarkar did not stop at this concept of a common fatherland and a common racial bond. Rather, for him, a Hindu was also one who inherits Indian civilization ‘as represented in common history, common heroes, a common literature, a common art, a common law and common jurisprudence, common fairs and festivals, rites and rituals, ceremonies and sacraments’. Hindus are thus defined in terms of their common cultural heritage. A Hindu, according to Savarkar is a ‘person who regards the land of Bharatvarsha from Indus to the Seas as his fatherland (pitrubhumi) as well as his holyland (punniyabhumi) – that is the cradle of his religion. It is through this elision of fatherland and holyland that Savarkar constructs the political category of Hindu in opposition to non-Hindus, particularly to Muslims and Christians. Despite the fact that Muslims and Christians ‘have inherited along with Hindus a common fatherland and a greater part of the wealth of common culture – language, law, custom, folklore and history, (they) are not and cannot be recognized as Hindus.

The Income Tax Appellate Tribunal’s order in a way is a double edged sword and cuts at the root of Hindutva ideology. Hindutva claims Hindus to be not only a community, but also a political community, taking advantage of the diversity of belief of Hindus. Hindutva aims to emulate the religions that it is opposed to in many respects. Hindutva aims to homogenizing the beliefs of Hindus and militarize Hindu religious community. The political structure of such a community would be a benevolent authority to which all the members should submit and those who resist would be dealt with by necessary force and subject to punishments. The Tribunal’s order runs contrary to such a vision of Hindutva by opining that Hindus did not even constitute a religious community.

Discrimination:

The underpinning of all the varied judicial opinion is that they see varied cultural and traditional practices of Hindu religion and not its doctrines. Whereas when Islam or Christianity comes up for judicial scrutiny, they rely on doctrines and texts, not how it is actually lived by the communities professing the religion. Hence Hinduism appears to be diverse but Islam and Christianity appears to be doctrinaire and dogmatic. There are varied interpretations of Islam and Christianity and lived religion is as diverse as Hinduism. Thus Muslims in Lakshadweep and Christians in Meghalaya are matrilineal societies. There is lot of shared cultural and religious practices between Hinduism, Christianity and Islam. While Shiva, Hanuman and Durga are super powers of universe, even Allah is described in Quran as Rabbul Alamin, God of entire universe and not Rabbul Muslimeen – God of Muslims. One of the many names of Allah in Qur’an is “Jabbar”, as God is powerful, therefore, Allah is also a super power of the Universe. In Christianity, God is the eternal being that created and sustains the universe. Church and Mosques are more inclusive spaces than temples as opined by the Tribunal. While Dalits do not have entry in most temples, everyone is welcome in Sufi shrines, mosques and churches. However, Islam and Christianity will always be held as religion and Muslims and Christians to be one overarching community.

New meanings of religion in nineteenth century:

In the nineteenth century India, religion assumed new meaning. The term “Hindu” was used more as a geographical term to describe people inhabiting the geographical territory on the south-eastern side of River Sindhu which was mispronounced as Hindus. Hindus were people following diverse traditions and religious practices which had absorbed from various influences in different historical phases. However, this diversity was also punctuated with exclusion and caste based hierarchy. Diversity was perforce to maintain graded inequalities, forced traditional occupations and exclusion of vast sections from privileges. Rules of purity and pollution were invented to justify the exclusion. Excluded communities were left to their own religious traditions and rituals so long as they respected the boundaries of exclusion and followed their traditional occupations. While the privileged upper-castes guarded the purity of their traditions to justify their privileges, the excluded lower-castes were liberal in absorbing from various influences and traditions, including Islam and Christianity, as they had little stake in the hierarchical caste structure. On one hand this gave rise to religious diversity and on the other hand syncretic traditions emerged wherein community practices included traditions of more than one religion. It was difficult to clearly demarcate religious boundaries of the followers.

Colonial rulers needed to, and believed in enumerating their subjects and naming their religions. It is the process of enumeration that necessitated rigid religious boundaries to be constructed. Religious identities were arbitrated by the colonial state. As numbers could mean power, the native upper caste elite triggered Shuddhi movement to Sanskritize and Tablighi movement to Islamize the fuzzy communities, and deepen and strengthen religious boundaries.

It is this reality and history that judicial opinions have ignored which has resulted in discrimination of and othering of minorities in spite of many landmark judgments protecting their rights. The judicial opinions are taken advantage of by the Hindutva forces as their stand gets legitimized. Hope this trend is arrested for survival of democracy in India.