What does it mean to be a Hindu? How the Supreme Court of India has defined Hindus

01, Dec 2017 | Amala Dasarathi, Madhusruthi Neelakantan and Vandita Khanna

The term “Hindu” has been defined in the Constitution under Article 25(2)(b) Explanation II as “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” and the various codified Hindu Laws such as The Hindu Marriage Act, 1955 (HMA), Hindu Adoption and Maintenance Act, 1956 (HAMA), Hindu Minority and Guardianship Act, 1956 (HMGA) & Hindu Succession Act, 1956 (HSA) as

“(a) to any person who is a Hindu by religion in any of of its forms or developments, including a Virashaiva, a Lingayat or a follower of the Brahmo, Prarthana or Arya Samaj;

(b) to any person who is a Buddhist, Jain or Sikh by religion, and

(c) to any other person domiciled in the territories to which this Act extends who is not a Muslim, Christian, Parsi or Jew by religion, unless it is proved that any such person would not have been governed by the Hindu law or by any custom or usage as part of that law in respect of any of the matters dealt with herein if this Act had not been passed”

The Supreme Court of India has defined Hindus in ways that further the narrative of the Hindu right. Several themes emerge from a reading of judgments weaved into definite descriptions of Hinduism. Firstly, a Hindu has been consistently conflated with an Indian, a trend that has been witnessed since the case of Sastri Yagnapurushdasji v. Muldas Bhudardas Vaishya. In tracing the etymology of the term, Hindu, to the first settlers near River Indus, the Court has created an adequate path for itself to appropriate definitions of religious communities and conflate religion with philosophy and national identity:

“the term “Hindu”, even today, stands for Indians in general. In foreign countries all Indians are sometimes described as “Hindus”. Even as a term used for Indians professing a particular type of beliefs, which are presumed to have an indigenous origin, it is wide enough to include Jains and Sikhs…”

–[Commissioner for Hindu Religious and Charitable Endowments, Mysore v. Ratnavarma Heggade]

The above understanding of the term Hindu has allowed the judiciary to explore the definition of Hindutva in a set of eleven judgments delivered in 1995, infamously termed as the Hindutva judgments. Verma, J., speaking on behalf of the three-judge bench, firstly conflated Hinduism with Hindutva in identifying both as a way of life or state of mind of the Indian people. Besides an a-historic reading of the socio-political concept of Hindutva, the Court in the case of Ramesh Prabhoo v. Prabhakar Kunte and Bal Thackeray v. Prabhakar Kunte went to the extent of equating Hindutva with Indianisation, i.e. “the development of uniform culture by obliterating the differences between all the cultures co-existing in the country.”

Secondly, the judiciary has conceded to the polytheistic attributes of Hinduism which make it difficult to define it within a framework of a universal and definite set of essential practices. In the case of Ganpat v. Returning Officer, the Court acknowledged the variance and eclecticism of the Hindu religion which hinders the judiciary from determining “whether a person is practicing or professing Hindu religion or not. The absence of allegiance to a particular tenet or philosophic concept, and practice of multifarious religious performances within the Hindu religion has however effectively enabled the judiciary to justify the claim of Hinduism as a way of life distinct from other religious doctrines. Moreover, the existence of differing and necessarily conflicting tenets of Hinduism has been cited in the case of Tilkayat Shri Govindlalji Maharaj v. State of Rajasthan to judicially appropriate the right to determine essential practices, a right and liberty previously accorded to the religious community itself.

Despite realizing limits in definitively identifying core elements of Hinduism, the judiciary has engaged in the task of evolving a working formula in the case of Yagnapurushdasji:

“Acceptance of Vedas with reverence; recognition of the fact that the means or ways to salvation are diverse and realization of the truth that the number of gods to be worshiped is large, that indeed is the distinguishing feature of Hindu religion. This definition brings out succinctly the broad distinctive features of Hindu religion”

In so doing, the Court has effectively erased the otherwise celebrated heterogeneity within the Hindu religion. Concretising the juridical Hindu identity inevitably allows for prioritizing of a particular Hindu and privileging a particular Hindu’s Hinduism. Notwithstanding such erasure, the Court has reiterated the tolerance that Hinduism celebrates. The tolerance of Hinduism has been lauded to have even enabled Islam, Christianity, Zoroastrianism, Judaism, Buddhism, Jainism and Sikhism to find shelter and support upon this land in the case of Dr. M. Ismail Faruqui v. Union of India. The case of Bramchari Sidheswar Shai v. State of West Bengal further affirmed the benevolent and inclusive character of Hinduism in embracing all ideals of all religions and expressly deemed the Hindu religion to be the universal religion. The judiciary has moreover readily quoted Dr. Radhakrishnan who explains the capacity of Hinduism to “steadily absorb the customs and ideals of peoples with whom it has come into contact[to be] able to maintain its supremacy and its youth” in the case of Yagnapurushdasji.

This definition of a Hindu by the SC is strikingly similar to the Hindutva definition. The term Hindutva was coined by VD Savarkar in 1923. He used it for the first time in a pamphlet on Hinduism. It refers to an ideology that aims to define Indian culture in terms of Hindu values and unite all of Hindu society into one State. Hindutva ideology has gained a wide subscription recently, as India’s current Prime Minister has risen from the ranks of a Hindutva organization into political prominence. Hindutva defines a Hindu as a person who considers Bharat his motherland, fatherland and holy land. In his seminal book, Essentials of Hindutva, Savarkar writes that Hinduism is a fraction, a part of Hindutva. He says that the term Hindu dates back to a time pre-history, even. It refers to a common sense of identity and unity that those originally belonging to the land, that is now India, share.

In this scheme, Hinduism is not a religion, but a set of common values and an emotional attachment to a particular idea of India. This idea of India is a very Brahmanical, Vedic ideology-driven one. For instance, Savarkar lauded a group of Muslims who passed a resolution stating that cow slaughter is against Hindu-Muslim unity, in the 1940s. Its larger goal is to achieve a universal Hindu, Hindu Hindustan, leaving no space for differing or dissenting voices. However, it simultaneously calls itself Sanatan Dharma or eternal doctrine, thus saying that it will forcefully assimilate all those who refuse to fall within the folds of what it means to be Hindu on their own.

The law has a far reaching impact, especially in terms of its ability to define and delineate ideas and legitimize values. Such a broad definition of Hinduism, and the conflation of this with Hindutva, precludes even the possibility that Hindutva ideology can be divisive and narrow-minded. The BJP website reiterates this understanding of the SC by stating,

“Every effort to characterize Hindutva as a sectarian or exclusive idea has failed as the people of India have repeatedly rejected such a view and the Supreme Court, too, finally endorsed the true meaning and content of Hindutva as being consistent with the true meaning and definition of secularism. In fact, Hindutva accepts as sacred all forms of belief and worship. The evolution of Hindutva in politics is the antidote to the creation of vote banks and appeasement of sectional interests. Hindutva means justice for all.”

-(BJP Website at http://www.bjp.org/documents/manifesto/bjp-election-manifesto-1998/chapter-2)

This manifesto of the BJP raises several questions in this regard. How can Hindutva mean justice for all when it is largely biased towards the Hindu ideology? Can something that is deeply rooted in certain principles and values of one religion, said to be equally applicable to all? It not only ignores the diversity among religions, but also creates a class of Hindus that are ideal and superior. This ignores the orthopraxis which is a major tenet of Hinduism.

It is important to understand the diverse nature of Hinduism. There are many different examples in the history of this religion that display this. The Mahabharata, for instance, contains contradictions which reveal its lack of homogeneity. Hinduism is a religion that does not come from one text or one god or even one belief. It is a culmination of multiple abstract concepts and there exist multiple sources of these concepts. In fact, the Mahabharata, which is one of the most read texts of Hindu mythology, was written in order to make Brahmanism reach out to different geographical and social spaces. It was edited and published in different languages and the original version is markedly different from what we call the primary source today. All these concepts and abstracts that developed within different social contexts came together to be called Hinduism. Alternatively, like the Mahabharata, these versions of Hinduisms that existed in different texts started adopting themselves to their own social contexts and together referred to themselves as Hinduism. This diversity in Hinduism is what makes the religion what it is today. Hinduism is multifarious and no singular interpretation can be assigned to it or any of its basal texts.

The commitment of the BJP to create “One Nation, One People and One Culture” through Hindutva is antithetical to Hinduism itself. There is no one way or one life in Hinduism. Hence, by choosing Hindutva as a way of life, a Hindu can equally be rid of his Hindu experience. There is no space within this Hindutva way of life, that is highly similar to Hinduism, for the representation of a Muslim, Christian or Parsi. It is a space only created for a certain kind of Hindu life. This further contributes to the creation of a standard for Hindus that one has to reach in order to qualify and be recognized as a member of the religion. The Indian Constitution envisages a positive secularism, separating spiritualism from individual faith.

In the case of M Ismail, Verma, J. accepted secularism to denote “Sarva Dharma Samabhaav” an approach of tolerance and understanding of equality of all religions. Interestingly however, the Court drew linkages between secularism as “equal respect for all religions” and Hinduism as the true nucleus of such secular thought and outlook. This approach of drawing secularism from a religious concept like Hinduism is reflective of a method of strategic maneuvering adopted by the judiciary to look at Hinduism as a way of life, as a concept larger than a religion itself, to arguably escape the garb of un-secularism.

Feature Image: Vishnu Discoursing (19th century India. Opaque watercolor and ink on paper)

Los Angeles County Museum of Art


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