Author: Rakesh Bhatnagar
Publication: www.indiatime.com
(The Times of India)
Date: February 21, 2001
Though the terms "Hindu" , "Hinduism"
and of course, "Hindutva" have assumed significance in the current socio-political
set up, it however remained a crucial proposition for the Supreme Court
to define it in a manner to suit the various laws governing the community.
While dealing with a case of a married
Hindu tribal woman seeking criminal action against her husband belonging
to the same caste and tribe for indulging in bigamy , an offence under
section 494 of IPC, the court faced a peculiar situation where the tribal
customs and legal rights were to be balanced without hurting the sentiments
of the either beliefs.
The tribal conventions ruled the
roost as the woman lost for bigamy is permissible under the tribe's customs.
The husband has , thus been allowed to continue to enjoy the second marriage
even though the first nuptial cord in still tied , legally.
But, the court had to enter into
a debate on ``who is Hindu?'' for the applicability of the Hindu Marriage
Act 1955. The Act is applicable to a person who is a Hindu by religion
in any of its forms or developments including a Virashaiva, a Lingayat,
or a follower of the Brahmo, Prarthana, or Arya samaj and also to persons
who are Buddhist, Jain, or Sikh by religion. It also applicable to any
other person who is domiciled in India and is not a Muslim,Christian, Parsi
or Jew by religion.
The term ``Hindu'' is not defined
in the Constitution or in the Indian Succession Act or any other enactment.
But way back in 1903, the then Privy Council (Bhagwan Koer versus J C Bose)had
made certain interesting observation while dealing with the same issue
as to ``who is an Hindu''.
It said:``The Hindu religion is
marvelously Catholic and elastic. Its theology is marked by eclecticism
and tolerance and almost unlimited freedom of private worship. Its social
code is much more stringent , but amongst its different castes and sections
exhibits wide diversity of practice .''
The Privy Council further said:``No
trait is more marked of Hindu society in general than its horror of using
the meat of the cow.Yet, the Ch...rs who profess Hinduism , but who eat
beef and the flesh of dead animals , are however low in the scale included
within its pale''.
After saying the Council noted that
``it is easier to say who are not Hindus, not practically and separation
of Hindus from non-Hindus is not a matter of so much difficulty. The people
know the differences well and can easily tell who are Hindus and who are
not''.
Ironically the terms Hindu and Hinduism
have become more political than a watchword for a liberal approach. Its
use immediately attracts a debate on secularism vis- a- vis communalism.
Though continues to look for a definition , the terms were the bone of
contention in various election petitions and also before and aftermath
of demolition of the disputed temple-mosque structure in Ayodhya nine years
ago.
While dealing with the Presidential
reference on acquisition of land around the disputed structure, the minority
judgment delivered by two Supreme Court judges had said : Certain provisions
of the Ayodhya land acquisition legislation particularly section 3 was
offensive to " the principle of secularism being slanted in favour of one
religious community against another".
The then Justice A M Ahmadi and
Justice S P Bharucha , while refusing to entertain the Presidential reference
and also striking down the Act, said the state is bound to honour and to
hold the "scales even between all religions". The State cannot have its
own religion for secularism is the basic structure of the Constitution.
But the apex court had said certain miscreants responsible for the Ayodhya
tragedy could not be "identified and equated with the entire Hindu community".
It was evident from the strong reaction and condemnation by the Hindus
of the demolition in general "bears eloquent testimony to this fact".
It said:`` The miscreants who demolished
the mosque had no religion, caste or creed except the character of a criminal
and the mere incident of birth of such a person in any particular community
cannot attach the stigma of his crime to the community in which he was
born".
In a way , the apex court has tried
to define the term Hindu , Isn't.
