Book Excerpt: Modern hindutva is based on India’s constitution: Subramanian Swamy

In that fundamental sense, while Hindu India may have been a union of kingdoms, it was fundamentally not a monarchy but a Republic. In a monarchy, the King made the laws and rendered justice, as also made policy but in Hindu tradition the king acted much as the President does in today’s Indian Republic.

The monarch acted always according the wishes and decisions of the court-based advisers, mostly prominent sages or Brahmins. Thus Hindu India was always a Republic, and except for the reign of Ashoka, never a monarchy. Nations thus make Constitutions but Constitutions do not constitute nations.

Because India’s Constitution today is unitary with subsidiary federal principles for regional aspirations, and the judiciary and courts are national, therefore the Rajendra Prasad—monitored and Ambedkar—steered Constitution— making, was a continuation of the Hindu tradition. This is the second pillar of constitutionality for us—the Hindutva essence! These aspects were known to us as our Smritis. Therefore, it is appropriate here to explore ways by which Hindutva can be blend into the present Constitution more explicitly.

The Hindutva plank of restoring temples that were demolished by Islamic tyrants and mosques built on it, is constitutional thanks to the judgment in the Farooqui case.

In this case [(1994) 6 SCC 361], the Constitution Bench has held that a mosque is not an essential part of Islam and hence it can be demolished for a public purpose by a Government. This opens the way for building a Ram temple in Ayodhya. Of course, the

1992 demolition of the Babri Masjid would have to regarded as an offence under the IPC because of a mob taking law into its own hands.

But the Babri Masjid demolition offence does not prevent a future Hindutva government from demolishing Masjids and Churches (also not an essential part of Christianity) built after demolishing Hindu temples.

As the House of Lords U.K has held (1992) in the Nataraj idol case, because of Prana prathista puja, according to Agama Shastra, a temple is always a temple even if in disuse.

Thus for restoring the Kashi Visvanath temple or the Krishna Janmabhoomi temple, demolishing of the existing mosques by a government is constitutionally permitted.

Even in the Ramjanmabhoomi temple case currently entangled on the unauthorized demolition by some people taking law into their own hands, it is an IPC offence and has no constitutional significance. Any government can even now take-over the project for public good, and build a Ram Janma bhoomi temple.

Third, Article 370 is peculiar provision. It can be deleted, without a Parliamentary amendment, by a Presidential notification, subject to the concurrence of the J&K Constituent Assembly which however has long ceased to exist.

Moreover, the moral basis for it has eroded completely because the Kashmiri majority has already driven out Pandits completely altering the religious composition of the state, to preserve which the Article was incorporated.

Hence, there is no fetter now to constitutionally abolish Article 370 by a notification. By way of abundant precaution the President can obtain the concurrence of the J&K Governor who legally can be treated as a proxy for the J&K Constituent Assembly.

 Since the Article 44 is a Directive Principle for State Policy to have uniform civil code and moreover since the Muslims on ground of violation of the Shariat have not objected to a uniform criminal code which the Indian Penal Code is, hence it is constitutional to enforce Article 44 as not violative of Article 15, since the latter is subject to reasonable restrictions of health, morality and public order.

The question whether India should adopt a uniform civil code should be treated as a legal question because it is a mandate addressed to the ‘State’ by Art. 44 under Directive Principles of the Constitution.

Unfortunately, in India, legal questions are politicised when it affects the “Muslim vote bank.”

Article 44 of the Constitution says –“The State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India.”

A controversy has however arisen as to the formation of a uniform code relating to the family or personal law of the parties relating to matters such as marriage and divorce, succession, adoption.

The framers of the Constitution clearly indicated what they meant by the word ‘personal law’ in Entry 5 of List III of the 7th Schedule of the same Constitution.

Entry 5 says:

“5. Marriage and divorce; infants and minors; adoption; wills; intestacy and succession; joint family and partition; all matters in respect of which parties in judicial proceedings were immediately before the commencement of this Constitution subject to their personal law.”

The fathers of the Constitution had witnessed the baneful effects of a claim for separate identity of the Muslim community on the ground that their religion prescribed a separate Personal Law,—resulting in the lamentable Partition of India on the footing of the theory of ‘two Nations’, founded on two religions.

Hence, in the Constituent Assembly it was made clear that in a secular State personal laws relating to such matters as marriage, succession and inheritance could not depend upon religion, but must rest on the law of the land. A uniform Civil Code was accordingly necessary for achieving the unity and solidarity of the nation. [K.M. Munshi, VII C.A.D., 547-48]. Every time subsequently the question of uniform Civil Code was raised by anyone in Parliament, the Government of India opposed it on the ground that to achieve it would be to hurt Muslim ‘sentiments’ and that no implementation of this Directive of the fundamental law could be made so long as the Muslims themselves would not come forward to ask for it. [see Prime Minister Rao Statesman, 1-6-1995; 28-7-1995], and also at his Independence Day Speech at Red Fort on 15-8-1995; Law Minister, Bharadwaj [Jugantar, 12-12-1993; Statesman, 22-7-1995]; Gadgil, Secretary General of Congress (I) Party [Vartaman, 21-4-1995]; Dinesh Goswami, Law Minister [U.N.I., 22-12-1989].

Nevertheless, the Supreme Court has recommended, more than once, to take early steps towards the formation of a uniform Civil Code [Mudgal v. Union of India (1995) 3 S.C.C. 635 — Kuldip Singh and Sahai JJ. (10 May, 1995).

That the Shariat is not infallible or immutable is evidenced by the patent fact that it has been discarded on modified in many respects by various Muslim States. And this has been achieved in an orthodox Muslim State such as Tunisia, through the process of liberal or progressive interpretation of the scriptures.

Advocates of immutability should be silenced by the following observations of a Muslim Judge of Pakistan, Huq, J., of the Lahore High Court –

“It would not be correct to lay it down as a positive rule of law that the present-day Courts in this country should have no power or authority to interpret the Quran in a way different from that adopted by the earlier Jurists and Imams. The adoption of such a view is likely to endanger the dynamic and universal character of the religion and laws of Quran.”

The ground of immutability of the Shariat was in fact raised by some Muslim members in the Constituent Assembly of India but was rejected on the opposition from Dr. Ambedkar. It would be an eyeopener to many today to recount what Ambedkar said [VII C.A.D. 55] in this context.

“… up to 1935 the North-West Frontier Province was not subject to Shariat Law; it followed the Hindu Law in the matter of succession and in other matters, so much so that it was in 1939 that the Central Legislature had to come into the field and to abrogate the application of the Hindu Law to Muslims of North-West Frontier Province and to apply Shariat Law to them… apart from North-West Frontier Province, up till 1937 in the rest of India, in various parts, such as the United Provinces, the Central Provinces and Bombay, the Muslims to a large extent were governed by the Hindu Law in the matter of succession … that in North-Malabar the Marumakkathayam law applied to all—not only to Hindus but also to Muslims.”

Even in the Ramjanmabhoomi temple case currently entangled on the unauthorized demolition by some people taking law into their own hands, it is an IPC offence and has no constitutional significance. Any government can even now take-over the project for public good. 

Even in India the Koranic laws of crimes and evidence have been supplanted as early as the 19th century by enacting the Penal Code and the Evidence Act, e.g., by saving the Muslims from the following mediaeval atrocities which are still prevalent in Muslim countries like Pakistan and Bangladesh.

(a) Chopping off the hands of a criminal as a punishment for theft, or stoning to death as a punishment for adultery.

(b) Adultery and apostasy being punishable by death.

(c) Where the witnesses are women, their value as against the evidence of men is in the ratio of 2:1.

The entire law of criminal procedure has been replaced in India by statute. The Indians laws of crimes and evidence make no distinction between Muslims and non-Muslims. The Judges in a Muslim dispute need not be Muslims.

In this context, one critic has pointed out that in Goa, from the days of Portuguese rule, the people have been governed by a uniform civil code, but for the matter of that, Goanese Muslims have not lost their identity or culture.

If it is contended that personal law, founded on religion, has any special status, the answer is that it is the British Parliament which made the English Crown the head of the Church and altered the law of royal succession; and an Indian Parliament superseded the Hindu law of marriage and succession, in the teeth of opposition from an enlightened section of Hindus. It was opposed by Dr. Rajendra Prasad himself on the grounds that Art.44, being applicable to all persons in the territory of India, should not be imposed on the Hindus alone and that the Government who sponsored the Hindu Code Bill to replace the personal law of the Hindus had no mandate from the Electorate in this behalf.

Above all, the Muslims who remained in India after the Partition did so with the full knowledge that divided India was going to adopt a Parliamentary system of democracy and not any Muslim system of the Middle Ages where Shariat would be the supreme law of the land.

They should also have known that a personal law founded on the religion of different communities was incompatible with the very concept of a ‘Secular’ State which divided India was going to be.

Factually also, the assumption of the Government of India that the entire Muslim community is opposed to the implementation of Art. 44 is not correct. The Shah Bano case demonstrated that it was only a section of the Sunni sect amongst the Muslims which was vehemently opposed to the judgment.

The Supreme Court can no more wash its hands off Art. 44 on the ground that it is a Directive Principle which is not directly enforceable. Jordan v. Chopra (1985) 3 S.C.C 62 Besides, some Supreme Court Judges had expressed their views to the same effect out of Court: Gajendragadkar, C.J., and Chairman, Law Commission, in his book—Secularism and the Constitution of India (1971), p.126; Shelat, J., Secularism, Principles and Application (1972); Hegde, J., in the Law Institute, in January,

1972; Tulzapurkar, J.,—article in A.I.R. 1987 Jours. 17; Beg. C.J., in his Motilal Nehru Lecture on ‘Impact of Secularism on Life and Law.’

Prior to Kuldip Singh, J., in numerous cases, the Supreme Court has remedied the inaction of the Government in other clauses of Directive Principles to implement various Directives, in Arts. 38, 39, 39A, 41, 42, 43, by issuing ‘directions’ which are mentioned in Art. 32(2) as legitimate instruments in the hands of the Court.

Even in the matter of Art. 44, previous Benches of the Supreme Court had commented upon the inaction of the Government and the need for an early implementation of the Article –

(a) A unanimous Constitution Bench in the Shah Bano case (para. 32).(b) A Division Bench, speaking through Chinnappa Reddy, J., in Jordan’s case.

Today we have demonstrated by taking the “Teen Talaq” to Supreme Court and obtaining a judgment of the Constitution Bench that Teen Talaq is unconstitutional as vio; stove of equality before law [Article 14] and immoral [Article 25].

That the Shariat on personal law is not sacrosanct will appear from the following examples of Muslim majority countries which have superseded or modified polygamy.

Turkey: The Court can declare a second marriage as invalid on the ground that a spouse is living at the time of the second marriage [Turkish Civil Code, Art. 74].

Pakistan: A person cannot contract a second marriage without the permission of the Arbitration Council; and a wife can obtain divorce on the ground that the husband has married another wife.

Iran: A person cannot remarry without permission of the Court.

Egypt, Jordan, Morocco, Syria: Similar restrictions on bigamy as in Iran and Pakistan have been imposed in Egypt, Jordan, Morocco and Syria.

Tunisia: Bigamy is totally prohibited by the Tunisia Law of personal Status (s. 18).

Registration of all marriages, including those contracted in conformity with Shariat formalities, has been made compulsory in Iran, Algeria, Indonesia, Malaysia.

There is no reason why such law cannot be adopted in India. Fifth, the call for Hindutva has been held by the Supreme Court  in  Manohar  Joshi  [1996]  case  to  be  within  the Constitutional requirements of free speech. Hence, time has arrived for us to openly declare India as an ancient Hinducivilization, which is the only way we can perform the Fundamental Duty under Article 51-A(f), and boldly up revere our sacred symbols.

Factually also, the assumption of the Government of India that the entire Muslim community is opposed to the implementation of Art. 44 is not correct. The Shah Bano case demonstrated that it was only a section of the Sunni sect amongst the Muslims which was vehemently opposed to the judgment.

At present the Government has been taking over Hindu temples its resources and land and using it for all kinds of non- religious purposes under the states enacted Hindu Religious Institutions and Charitable Endowment Acts on the pretext of maladministration of the temple properties.

Under Article 31A of the Constitution such a take-over cannot be permanent. If maladministration charge is true, then the Government should rectify it within a reasonable period such as three years, and then hand it back. At present State governments have taken over tens of thousands of temples for decades. Time is now to get them released…

Throughout ancient Indian history, Hindu kingdoms, never required any ‘subject’ to be of Hindu religion in order to be regarded a first class citizen. Only in Asoka’s reign and Islamic rule, India was a theocracy. Hindu is naturally ‘Secular’. But secularism is a much-bandied-about subject nowadays. Unfortunately, those political parties who have been swearing by it all these years have failed to persuade the masses that secularism is good for country.

In fact, secularism as defined and propagated today has lost its relevance. The concept as understood by the masses of India stands thoroughly discredited. Hence the question is whether we should redefine secularism in keeping our civilization tradition to make it acceptable to the masses or capitulate to the rising fundamentalism in the country with dire consequences for national integrity and security.

When Rev. Martin Luther had defined secularism in Europe, it simply meant that the power of the state would be exercised independently of the directions of the Church. Thus, a secular government would act to safeguard the nation-state, even if such action was without Church sanction. Later, Marx calling religion the ‘opium of the masses’ defined secularism to completely eschew religion.

In India, Jawaharlal Nehru and his followers subscribed to the later Marxist redefinition of the concept in which even in public functions, cultural symbolism such as lighting a lamp to inaugurate a conference or breaking a coconut to launch a project was regarded as against secularism.

This orthodoxy induced a reaction in the Indian masses. Nehru failed to define what historical roots ought to be a part of the modem Indian, and what was to be rejected. In the name of‘scientific   temper’,   he   rejected   most   of   our   past   as ‘obscurantism’.

His orthodox secularism sought to alienate the Indian from his hoary past. Since nearly 85 per cent of Indians are pan- Hindu in beliefs, and Hindu religion from its inception has been without a ‘Church’, ‘Pope’ or ‘Book’ (in contra – distinction to Christianity), therefore neither Martin Luther nor Marx made any sense to the Indian masses.

Since there was little political challenge to Nehru after the untimely death of Gandhiji and Patel, the Marxian secularism concept superficially prevailed till Nehru’s demise in 1964. Themasses therefore humoured Nehru without accepting his concept of secularism. A Conceptual void however remained to be filled.

But Congress Party continued thereafter to fail to provide a political concept of secularism by which an Indian citizen could comprehend how he should bond “secularly” with another citizen of a different religion or language, or region and feel equally Indian. The Hindu instinctively could not accept the idea that India was what the British had put together, and that the country was just an area incorporated by the imperialists.

Such a ridiculous idea, fostered quixotically by Jawaharlal Nehru University historians, found just no takers amongst the Indian people. The void remained thus, but the yearning in the masses to be “Indian” grew over the years with growth of mass media. This void had therefore to be filled and the yearning of national identity required to be articulated for the masses.