......It is
somewhat remarkable that this broad sweep of Hindu religion has been eloquently
described by Toynbee. Says Tonbee; "When we pass from the plane of
social practice to the plane of intellectual outlook, Hinduism too comes out
well by comparison with the religions and ideologies of the South-West Asian
group. In contrast to these Hinduism has the same outlook as the
pre-Christian and pre-Muslim religions and philosophies of the Western half of the
old world. Like them, Hinduism takes it for granted that there is more
than one valid approach to truth and to salvation and that these different
approaches are not only compatible with each other..but are not only compatible
with Day Experiment in Western Civilisation" by Toynbee, pp. 48-49).
The Constitution-makers were fully conscious of this broad and comprehensive character of Hindu religion; and so, while guaranteeing the fundamental right to freedom of religion, Explanation II to Article 25 has made it clear that in sub-clause (b) of clause (2) the reference to Hindus shall be construed as including a reference to persons professing the Sikh, Jains or Budhist religion, and the reference to Hindu religious institutions shall be construed accordingly."
In order to consider what is the Hinduism, the judgment of the Apex Court reported in AIR 1996 SC 1113, Dr. Ramesh Yeshwant Prabhoo v. Prabhakar Kashinath Kunte and others is very relevant. Paragraphs 38, 39 and 40 of the judgment are being quoted below:-
"38. These Constitution Bench decisions, after a detailed discussion, indicate that no precise meaning can be ascribed to the terms 'Hindu', 'Hindutva' and 'Hinduism'; and no meaning in the abstract can confine it to the narrow limits of religion alone, excluding the content of Indian culture and heritage. It is also indicated that the term 'Hindutva' is related more to the way of life of the people in the sub-continent. It is difficult to appreciate how in the face of these decisions the term 'Hindutva' or 'Hinduism' per se, in the abstract, can be assumed to mean and be equated with narrow fundamentalist Hindu religious bigotry, or to be construed to fall within the prohibition in sub-section 3 and/or (3A)of S. 123 of the R.P. Act.
39. Bharucha, J. in Dr. M. Ismali Faruqui v. Union of India, (1994) 6 SCC 360: (1994 AIR SCW 4897), (Ayodya case), in the separate opinion for himself and Ahmadi, J. (as he then was), observed as under:
".......Hinduism is a tolerant faith. It is that tolerance that has enabled Islam, Christianity, Zoroastriansim, Judaism, Buddhism, Jainism, and Sikhism to find shelter and support upon this land...."
(at page 442) (of SCC): (at p. 4971, para 159 of AIR)
40. Ordinarily, the Hindutva is understood as a way of life or a state of mind and it is not to be equated with, or understood as religious Hindu fundamentalism. In "Indian Muslims - The Need For A Positive Outlook" by Maulana Wahiduddin Khan, (1994), it is said:
"The strategy worked out to solve the minorities problem was, although differently worded, that of Hindutva or Indianisation. This strategy, briefly stated, aims at developing a uniform culture by obliterating the differences between all the cultures co-existing in the country. This was felt to be the way of coomunal harmony and national unity. It was though that this would put an end once and for all to the minorities problem".
(at page 19)
The above opinion indicate that the word 'Hindutva' is used and understood as a synonym of 'Indianisation',e.e. Development of uniform culture by obliterating the differences between all the cultures co-existing in the country."
A judgment reported in 1993 ALL.L.J., 1379, Smt. Indumatee Koorichh v. The Family Court, Lucknow and another of the learned Single Judge of this Court has also 'Hindu' religion. Relevant party of Paragraph 27 of the judgment is being reproduced below:-
"27......expression 'Hindu' under the acts has been taken to mean and include in itself every person man or woman or child who is not a Muslim, Christian, Parsi or Jew and also such person, who being Muslim, Christian, Parsis or Jew when, he gets himself converted into the Hindu way of life either as a Vaishnavait, Shivait, Buddhist, Sikh or the like cults of Hindu faith and religion. Those religions, as have got their origination in foreign land or lands other than mother India, the great Hindustan, and, as such, their followers are not included in phrase Hindu. Thus considered in wider horizon or sense of connotation a person born in India or Hindustan or whose parents have taken birth in India or Hindustan the land surrounded by Himalayan range on the north and Sindhu the Sea known as Indu sarovar in the south and having faith and allegiance with this land and its culture may be called a Hindu irrespective of difference of approach towards one truth and one goal."
This definition of Hindu has further been defined by a Constitution Bench judgment of the Apex Court reported in AIR 1971, 1737, D.A. V. College, Jullundur etc. v. The State of Punjab and others. Paragraphs 12, 13 and 16 of the said judgment are being reproduced below:-
"12. For the purposes of Art. 29(1) even though it may not be necessary to enquire whether all the Hindus of Punjab as also the Arya Smajis speak Hindi as a spoken language, nonetheless there can be no doubt that the script of the Arya Samajis is ditinct from that of Sikhs who form the majoirty. It is claimed that while the Sikhs have Gurumukhi as their script the Arya Samajis have their own script which is the Devnagri script. Their Claim to be a religious minority with distinct script of their own seems to us to be justified as would appear from the following:
13. The Arya Samaj is a reofrmist movement, believes in one God and in the Vedas as the books of true knowledge. It holds that it is the duty of every Arya Samaji to read the Vedas and have them read, to teach or preach them to others. It has a distinct organisation, the membership of which is open to all those who subscribe to its aims and objects. The Arya Samajis worship before the vedic fire and it begins with the burning of incence (the homa 'sacrifice') accompanied by the chanting of Vedic verses.
xxx xxx xxx
16. The passage read above show beyond doubt that the Arya Samaj by "rejecting the manifold absurdities found in Smriti and in tradition and in seeking a basis in the early literature for a purer and more rational faith" can be considered to be a religious minority, at any rate as part of the Hindu religious minority in the State of Punjab.
In this regard, constitution of Hindu Society and what is Hindu religion has been considered by the Apex Court in Bal Patil v. Union of India case (supra). Paragraphs 26, 27, 28 and 30 of the Judgment are being reproduced below:-
"26.The so-called minority communities like Sikhs and Jians were not treated as national minorities at the time of framing the Constitution. Sikhs and Jains, in fact, have throughout been treated as part of the wider Hindu community which has different sects, sub-sects, faiths, modes of worship and religious philosophies. In various codified customary laws like Hindu Marriage Act, Hindu Succession Act, Hindu Adoptions and Maintenance Act and other laws of pre and post Constitution period, definition of 'Hindu' included all sects, sub-sects of Hindu religions including Sikhs and Jains.
27. The word 'Hindu' conveys the image of diverse groups of communities living in India. If you search for a person by name Hindu, he is unidentifiable. He can be identified only on the basis of his caste as upper caste Brahmin, Kshatriya or Vaish or of lower caste described in ancient India as Shudras. Those who fall in the Hindu class of 'Shudras' are now included in the Constitution in the category of Scehduled castes with special privileges and treatment for their upliftment. This was found necessary to bring them at par with upper castes in Hindu society. The aboriginals, who have no caste were considered as distinct from four castes or Varnas of Hindu society. They have been treated favourably in the Constitution as Scheduled Tribes. For them also there are provisions for special treatment and grant of special privileges to bring them on level with the other castes from the main advanced streams of Indian society.
28. There is a very serious debate and difference of opinion between religious philosophers and historians as to whether Jains are of Hindu stock and whether their religion is more ancient than the vedic religion of Hindus. Spiritual philosophy of Hindus and Jains in many respect is different but the quintessence of the spiritual thought of both the religions seems to be the same. The influence of Hindu vedic religion is quite apparent in the custom, style of living belief and faith of Jains. Jains do not worship images or idols of Gods but worship their Tirathankars meaning their ideal personalities who have attained human perfection and excellence by a process of self-improvement. The literal meaning of the word 'Jain' is one who has attained 'victory'. It signifies a person who has attained victory over himself by the process of self-purification. 'Jain' is a religious devout who is continuously striving to gain control over his desires, senses and organs to ultimately become master of his ownself.
30. Thus, 'Hinduism' can be called a general religion and common faith of India whereas 'Jainsim' is a sepcial religion formed on the basis of quintessence of Hindu religion. Jainism places greater emphasis on non-violence ('Ahinsa') and compassion ('Karuna'). Their only difference from Hindus is that Jains do not believe in any creator like God but worship only the perfect human-being whom they called 'Tirathankar'. Lord Mahavir was one in the generation of Tirathankars. The Tirathankars are embodiments to perfect human-beings who have achieved human excellence at mental and physical levels. In philosophical sense, Jainism is a reformist movement amongst Hindus like Brahamsamajis. Arasamajis and Lingayats. The three main principles of Jainsim are Ahinsa, Anekantvad and Aparigrah. (See:-1) Encyclopedia of Religion and Ethcis, Vol. 7 pg.465;2) History of Jains by A.K.Roy, pgs. 5 to 23: and Vinoba Sahitya, Vol.7 pg. 27 to 284)."
It is settled now that Hinduism is not a religion but is a way of life and combination of different religions and represents a culture and is a combination of various religions founded and developed by the different saints, philosophers propounded by different philosophy relating to worship, thoughts, ways of worship of the Almighty/God. The details have already been discussed above. In fact Hindusim represents all thoughts, beliefs and way of worship borne in India.
Considering the various judgments of the Apex Court and High Court, Hinduism represents Indian culture and not a religion, which includes Sikhism, Jainism, Buddhism, Arya Samaj, Kabir Panth, Radha Swamy, Dhan Nirankar and Lingayats etc., the philosophy and thoughts and belief in which Lord, Ram, Lord Krishna, Shaivismwere considered God and a number of other Religions founded by a number of Saints, Acharyas or Panths and several other Philosophers. Each and every tribal, castes, sub-castes have their own God or Goddess, different way of life, different beliefs and thoughts and most of them have different way of worship, all Tribals have different religion with different God and Goddess.
Bhaktimarg, Philosophy of Rama Krishna Panth and Vivekanand Karmayog, Shaivists, thoughts of Gita and several Religions founded by Philosphers and Thinkers such as OSO by Acharya Rajnish, ISCON, who believes in Lord Krishna only. The propounders in the Gyan Yog founded by Saints, philosophers and religious thoughts, Kabirpanthis, and thousands of such thoughts, way of worship and Beliefs.
Basic concept of Hinduism is that way of reaching to the eternal truth and to the Almighty is manifold and has given freedom to all the members of the society to reach to the Almighty through their own way as thoughts, belief the way of worship may be different. Such freedom in the field of religion on Indian soil is derived from thousands of philosophies, Thoughts and different ways of worship, traditions and belief from time to time throughout the history of India. Combination of such religion, thought, belief or way to reach to the eternal truth is Hinduism. Hinduism cannot be equated as religion but it represents a civilization & culture and way of life born and brought up on Indian soil and as such the arguments of Sri N.A. Khan that Muslims minority may be considered 50% to the largest religious community, i.e., Hindu is totally unsustainable in law. Every religion, thought, belief way of worship born and broughtup on Indian soil is altogether different/distinct from each other within the fold of Indian culture which assimilate in Hindu culture. In view of the discussions made above that more than several hundred religions within the fold of Hindu culture constitute a separate and distinct religion and each religion group is a religious minority in India. Thus, all religious groups within the Hindu culture are religious minority in comparison to single muslim religious majority of having population of 18.50% in State of U.P. and 13.80% in all India basis.
It is surprising that Union of India by Notification dated 23.10.1993 recognized Sikhism, Jainism and Buddhism as minorities and did not consider any other religion like Bahabi, Sufism, Aryasamaj, Kabirpanthi, Aghorpath and other religions born and broughtup in India as minorities, though the Apex Court in the case of Arya Samaj has considered as Arya Samajis as a religious minority group in the State of Punjab. The State of U.P. and Union of India by issuing the notification under the National Minority Act, 1992, have not applied mind as to any other Religious group at all. In fact, Buddhism and Jainism are also part of the Indian culture. They were born and developed as a reformative religion in Indian society. The Apex Court in Bal Patil and another V. Union of India and others (supra) referred above considered question of minority and laid down law.
As stated (supra) that neither Union of India nor State of Uttar Pradesh or Minority Commission of India or State Minority Commission brought any material to show that what are the norms for declaring any community as religious minority community, this Court on consideration of proceedings of Constituent Assembly and judgments of the Apex Court considered the question of religious minority and its various aspects, particularly, when Sri S.M.A. Qazmi, learned Advocate General, State of Uttar Pradesh did not give any assistance to the Court, though being Advocate General of the State of U.P. he was expected to render assistance to the Court, but he only chose to depute Sri B.N. Yadav and Sri Jai Krishna Tiwari, learned Standing Counsel, for assistance of the Court, though hearing of the case continued for about three months.
Thus the Constituent Assembly while framing Articles 29 and 30 of the Constitution of India was to provide equality of minority and majority and not to give any privilege based on inequality.
The Constitution-makers were fully conscious of this broad and comprehensive character of Hindu religion; and so, while guaranteeing the fundamental right to freedom of religion, Explanation II to Article 25 has made it clear that in sub-clause (b) of clause (2) the reference to Hindus shall be construed as including a reference to persons professing the Sikh, Jains or Budhist religion, and the reference to Hindu religious institutions shall be construed accordingly."
In order to consider what is the Hinduism, the judgment of the Apex Court reported in AIR 1996 SC 1113, Dr. Ramesh Yeshwant Prabhoo v. Prabhakar Kashinath Kunte and others is very relevant. Paragraphs 38, 39 and 40 of the judgment are being quoted below:-
"38. These Constitution Bench decisions, after a detailed discussion, indicate that no precise meaning can be ascribed to the terms 'Hindu', 'Hindutva' and 'Hinduism'; and no meaning in the abstract can confine it to the narrow limits of religion alone, excluding the content of Indian culture and heritage. It is also indicated that the term 'Hindutva' is related more to the way of life of the people in the sub-continent. It is difficult to appreciate how in the face of these decisions the term 'Hindutva' or 'Hinduism' per se, in the abstract, can be assumed to mean and be equated with narrow fundamentalist Hindu religious bigotry, or to be construed to fall within the prohibition in sub-section 3 and/or (3A)of S. 123 of the R.P. Act.
39. Bharucha, J. in Dr. M. Ismali Faruqui v. Union of India, (1994) 6 SCC 360: (1994 AIR SCW 4897), (Ayodya case), in the separate opinion for himself and Ahmadi, J. (as he then was), observed as under:
".......Hinduism is a tolerant faith. It is that tolerance that has enabled Islam, Christianity, Zoroastriansim, Judaism, Buddhism, Jainism, and Sikhism to find shelter and support upon this land...."
(at page 442) (of SCC): (at p. 4971, para 159 of AIR)
40. Ordinarily, the Hindutva is understood as a way of life or a state of mind and it is not to be equated with, or understood as religious Hindu fundamentalism. In "Indian Muslims - The Need For A Positive Outlook" by Maulana Wahiduddin Khan, (1994), it is said:
"The strategy worked out to solve the minorities problem was, although differently worded, that of Hindutva or Indianisation. This strategy, briefly stated, aims at developing a uniform culture by obliterating the differences between all the cultures co-existing in the country. This was felt to be the way of coomunal harmony and national unity. It was though that this would put an end once and for all to the minorities problem".
(at page 19)
The above opinion indicate that the word 'Hindutva' is used and understood as a synonym of 'Indianisation',e.e. Development of uniform culture by obliterating the differences between all the cultures co-existing in the country."
A judgment reported in 1993 ALL.L.J., 1379, Smt. Indumatee Koorichh v. The Family Court, Lucknow and another of the learned Single Judge of this Court has also 'Hindu' religion. Relevant party of Paragraph 27 of the judgment is being reproduced below:-
"27......expression 'Hindu' under the acts has been taken to mean and include in itself every person man or woman or child who is not a Muslim, Christian, Parsi or Jew and also such person, who being Muslim, Christian, Parsis or Jew when, he gets himself converted into the Hindu way of life either as a Vaishnavait, Shivait, Buddhist, Sikh or the like cults of Hindu faith and religion. Those religions, as have got their origination in foreign land or lands other than mother India, the great Hindustan, and, as such, their followers are not included in phrase Hindu. Thus considered in wider horizon or sense of connotation a person born in India or Hindustan or whose parents have taken birth in India or Hindustan the land surrounded by Himalayan range on the north and Sindhu the Sea known as Indu sarovar in the south and having faith and allegiance with this land and its culture may be called a Hindu irrespective of difference of approach towards one truth and one goal."
This definition of Hindu has further been defined by a Constitution Bench judgment of the Apex Court reported in AIR 1971, 1737, D.A. V. College, Jullundur etc. v. The State of Punjab and others. Paragraphs 12, 13 and 16 of the said judgment are being reproduced below:-
"12. For the purposes of Art. 29(1) even though it may not be necessary to enquire whether all the Hindus of Punjab as also the Arya Smajis speak Hindi as a spoken language, nonetheless there can be no doubt that the script of the Arya Samajis is ditinct from that of Sikhs who form the majoirty. It is claimed that while the Sikhs have Gurumukhi as their script the Arya Samajis have their own script which is the Devnagri script. Their Claim to be a religious minority with distinct script of their own seems to us to be justified as would appear from the following:
13. The Arya Samaj is a reofrmist movement, believes in one God and in the Vedas as the books of true knowledge. It holds that it is the duty of every Arya Samaji to read the Vedas and have them read, to teach or preach them to others. It has a distinct organisation, the membership of which is open to all those who subscribe to its aims and objects. The Arya Samajis worship before the vedic fire and it begins with the burning of incence (the homa 'sacrifice') accompanied by the chanting of Vedic verses.
xxx xxx xxx
16. The passage read above show beyond doubt that the Arya Samaj by "rejecting the manifold absurdities found in Smriti and in tradition and in seeking a basis in the early literature for a purer and more rational faith" can be considered to be a religious minority, at any rate as part of the Hindu religious minority in the State of Punjab.
In this regard, constitution of Hindu Society and what is Hindu religion has been considered by the Apex Court in Bal Patil v. Union of India case (supra). Paragraphs 26, 27, 28 and 30 of the Judgment are being reproduced below:-
"26.The so-called minority communities like Sikhs and Jians were not treated as national minorities at the time of framing the Constitution. Sikhs and Jains, in fact, have throughout been treated as part of the wider Hindu community which has different sects, sub-sects, faiths, modes of worship and religious philosophies. In various codified customary laws like Hindu Marriage Act, Hindu Succession Act, Hindu Adoptions and Maintenance Act and other laws of pre and post Constitution period, definition of 'Hindu' included all sects, sub-sects of Hindu religions including Sikhs and Jains.
27. The word 'Hindu' conveys the image of diverse groups of communities living in India. If you search for a person by name Hindu, he is unidentifiable. He can be identified only on the basis of his caste as upper caste Brahmin, Kshatriya or Vaish or of lower caste described in ancient India as Shudras. Those who fall in the Hindu class of 'Shudras' are now included in the Constitution in the category of Scehduled castes with special privileges and treatment for their upliftment. This was found necessary to bring them at par with upper castes in Hindu society. The aboriginals, who have no caste were considered as distinct from four castes or Varnas of Hindu society. They have been treated favourably in the Constitution as Scheduled Tribes. For them also there are provisions for special treatment and grant of special privileges to bring them on level with the other castes from the main advanced streams of Indian society.
28. There is a very serious debate and difference of opinion between religious philosophers and historians as to whether Jains are of Hindu stock and whether their religion is more ancient than the vedic religion of Hindus. Spiritual philosophy of Hindus and Jains in many respect is different but the quintessence of the spiritual thought of both the religions seems to be the same. The influence of Hindu vedic religion is quite apparent in the custom, style of living belief and faith of Jains. Jains do not worship images or idols of Gods but worship their Tirathankars meaning their ideal personalities who have attained human perfection and excellence by a process of self-improvement. The literal meaning of the word 'Jain' is one who has attained 'victory'. It signifies a person who has attained victory over himself by the process of self-purification. 'Jain' is a religious devout who is continuously striving to gain control over his desires, senses and organs to ultimately become master of his ownself.
30. Thus, 'Hinduism' can be called a general religion and common faith of India whereas 'Jainsim' is a sepcial religion formed on the basis of quintessence of Hindu religion. Jainism places greater emphasis on non-violence ('Ahinsa') and compassion ('Karuna'). Their only difference from Hindus is that Jains do not believe in any creator like God but worship only the perfect human-being whom they called 'Tirathankar'. Lord Mahavir was one in the generation of Tirathankars. The Tirathankars are embodiments to perfect human-beings who have achieved human excellence at mental and physical levels. In philosophical sense, Jainism is a reformist movement amongst Hindus like Brahamsamajis. Arasamajis and Lingayats. The three main principles of Jainsim are Ahinsa, Anekantvad and Aparigrah. (See:-1) Encyclopedia of Religion and Ethcis, Vol. 7 pg.465;2) History of Jains by A.K.Roy, pgs. 5 to 23: and Vinoba Sahitya, Vol.7 pg. 27 to 284)."
It is settled now that Hinduism is not a religion but is a way of life and combination of different religions and represents a culture and is a combination of various religions founded and developed by the different saints, philosophers propounded by different philosophy relating to worship, thoughts, ways of worship of the Almighty/God. The details have already been discussed above. In fact Hindusim represents all thoughts, beliefs and way of worship borne in India.
Considering the various judgments of the Apex Court and High Court, Hinduism represents Indian culture and not a religion, which includes Sikhism, Jainism, Buddhism, Arya Samaj, Kabir Panth, Radha Swamy, Dhan Nirankar and Lingayats etc., the philosophy and thoughts and belief in which Lord, Ram, Lord Krishna, Shaivismwere considered God and a number of other Religions founded by a number of Saints, Acharyas or Panths and several other Philosophers. Each and every tribal, castes, sub-castes have their own God or Goddess, different way of life, different beliefs and thoughts and most of them have different way of worship, all Tribals have different religion with different God and Goddess.
Bhaktimarg, Philosophy of Rama Krishna Panth and Vivekanand Karmayog, Shaivists, thoughts of Gita and several Religions founded by Philosphers and Thinkers such as OSO by Acharya Rajnish, ISCON, who believes in Lord Krishna only. The propounders in the Gyan Yog founded by Saints, philosophers and religious thoughts, Kabirpanthis, and thousands of such thoughts, way of worship and Beliefs.
Basic concept of Hinduism is that way of reaching to the eternal truth and to the Almighty is manifold and has given freedom to all the members of the society to reach to the Almighty through their own way as thoughts, belief the way of worship may be different. Such freedom in the field of religion on Indian soil is derived from thousands of philosophies, Thoughts and different ways of worship, traditions and belief from time to time throughout the history of India. Combination of such religion, thought, belief or way to reach to the eternal truth is Hinduism. Hinduism cannot be equated as religion but it represents a civilization & culture and way of life born and brought up on Indian soil and as such the arguments of Sri N.A. Khan that Muslims minority may be considered 50% to the largest religious community, i.e., Hindu is totally unsustainable in law. Every religion, thought, belief way of worship born and broughtup on Indian soil is altogether different/distinct from each other within the fold of Indian culture which assimilate in Hindu culture. In view of the discussions made above that more than several hundred religions within the fold of Hindu culture constitute a separate and distinct religion and each religion group is a religious minority in India. Thus, all religious groups within the Hindu culture are religious minority in comparison to single muslim religious majority of having population of 18.50% in State of U.P. and 13.80% in all India basis.
It is surprising that Union of India by Notification dated 23.10.1993 recognized Sikhism, Jainism and Buddhism as minorities and did not consider any other religion like Bahabi, Sufism, Aryasamaj, Kabirpanthi, Aghorpath and other religions born and broughtup in India as minorities, though the Apex Court in the case of Arya Samaj has considered as Arya Samajis as a religious minority group in the State of Punjab. The State of U.P. and Union of India by issuing the notification under the National Minority Act, 1992, have not applied mind as to any other Religious group at all. In fact, Buddhism and Jainism are also part of the Indian culture. They were born and developed as a reformative religion in Indian society. The Apex Court in Bal Patil and another V. Union of India and others (supra) referred above considered question of minority and laid down law.
As stated (supra) that neither Union of India nor State of Uttar Pradesh or Minority Commission of India or State Minority Commission brought any material to show that what are the norms for declaring any community as religious minority community, this Court on consideration of proceedings of Constituent Assembly and judgments of the Apex Court considered the question of religious minority and its various aspects, particularly, when Sri S.M.A. Qazmi, learned Advocate General, State of Uttar Pradesh did not give any assistance to the Court, though being Advocate General of the State of U.P. he was expected to render assistance to the Court, but he only chose to depute Sri B.N. Yadav and Sri Jai Krishna Tiwari, learned Standing Counsel, for assistance of the Court, though hearing of the case continued for about three months.
Thus the Constituent Assembly while framing Articles 29 and 30 of the Constitution of India was to provide equality of minority and majority and not to give any privilege based on inequality.
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