30, Aug 2007

The
Gita as India’s National Book?: Bizarre Judgment Backs Hindutva’s Assault on Indian Constitution.

By Gautam Kumar

Justice S.N.Srivastava of the Allahabad High Court, who retired earlier this month, is no stranger to controversy. Some months ago, he stirred a hornet’s nest by ruling that Muslims in Uttar Pradesh were not a minority, although they form only around a fifth of the population of the state. And just last week, five days before he was to be relived of his responsibilities, he passed yet another bizarre judgment, recommending that the Government of India declare the Bhagwad Gita as the country’s national ‘dharma shastra’ or religious book. He also made unwarranted comments about non-Hindus, particularly Muslims. Not surprisingly, critics denounced the judge for what they saw as his unabashed Hindutva leanings.

As in his controversial judgment in the earlier case about the status of Muslims in Uttar Pradesh, in the present case Srivastava clearly overstepped his brief, so critics argue. The case in hand did not require Srivastava to pontificate on the Gita, let alone recommend that it be hoisted upon all Indians as their national ‘religious book’. Yet, he did not limit himself to what was strictly required by the case, using the opportunity to make remarks that clearly defy the constitutional principles of secularism and equality.

The case that Srivastava was hearing related to a dispute over a property dedicated to the Hindu deity Shri Shaligram Shila, a form of Krishna, in the Mohalla Til Bhandeshwar locality in Varanasi. The case involved two Bengali Brahmins, Shyamlal Ranjan Mukherjee and Nirmal Ranjan Mukherjee, both of whom claimed control over the said property.
The former, the petitioner in the case, had shifted to Gujarat for work, and in the meanwhile the latter sold the said property to a fellow Hindu. In his complaint, the former questioned this sale deed, claiming that a person entrusted with the responsibility of taking care of a property dedicated to a Hindu deity could not sell or mortgage it. In his defence, the latter argued that he had sold the property because the locality in which it was located had been
allegedly affected by ‘communal violence’ for many years, because of which he and his family had felt insecure, compelling them to shift to Allahabad, along with the deity he was meant to take care of.

That, in short, were the bare facts of the case. But rather than restrict himself to the case, Srivastava went on to raise several questions and pass remarks that, critics would argue, the case did not require him to. Srivastava’s clumsy English, glaring throughout the text of his judgment, may be excused, but several of his conclusions are clearly contentious. The defendant’s claim of his locality being affected by communal tension seems to have been taken at face value by Srivastava, who used it to create the distinct impression that Hindu temples in particular were under attack in Uttar Pradesh and elsewhere. This suggestion was reinforced by Srivastava’s lengthy references to colonial and Hindutva writings on alleged temple destruction by Muslim rulers, which, of course, have no direct bearing
on the case but seem to have been marshaled in order to back a distinct Hindutva and anti-Muslim agenda.

Curiously, there was no reference in Srivastava’s judgment to the wanton destruction of Muslim places of worship (besides the regular anti-Muslim pogroms, in Uttar Pradesh and elsewhere) that continues to happen on a far larger scale than the destruction of Hindu religious places. Instead of referring to this issue as well, Srivastava approvingly quoted Sanjay Goswami, Amicus Curiae in the case, who argued that ‘it is the duty of the state of U.P. to take appropriate steps to look after such properties to ensure proper management, security and safety of religious rights of Hindus from communal violence, grabbing by anti-social or communal elements [Â…]’. The need for similar protection of Muslim religious institutions and properties was left unmentioned.

Srivastava went further to support Goswami’s case for state protection to Hindu temples in Uttar Pradesh by referring to his contention that if no such protection were provided ‘a time might come when properties of temples or religious institutions will go in the hands to (sic.) anti-Hindu forces and communal forces will be encouraged to create communal tension who (sic.) would engineer atmosphere of communal violence to grab Hindu religious institutions’. No mention was made here of Muslim religious institutions grabbed or destroyed by Hindutva hordes, a major phenomenon in post-1947 north India. Nor did Srivastava appear to take serious note of the fact that the disputed religious property that the case he was hearing was sold to a Hindu, and not to a Muslim, a fact that might have greatly weakened his argument about ‘anti-Hindu’ forces allegedly seeking to capture Hindu shrines.

Not content with advocating special police protection for all Hindu religious institutions, Srivastava went on to refer in great detail to the contention of I.N. Singh, counsel for the Kashi Vidwat Parishad, Varanasi, who argued that the Hindu god Krishna, whose temple was at the centre of the present dispute, had a particular universal ‘importance’, because he had ‘given us Gita (sic.), which is a dharma shastra not only for the Hindus, but for the entire human being
(sic.)’. Singh urged that the Gita be declared as the ‘national dharma shastra’, or holy code of duties, of India, claiming that it had ‘nothing to do with any particular religion’, but, rather, that it propounded a ‘theory of duties of human beings’. He insisted that the Gita’s message was ‘relevant for all religions of the world’. He further urged that the state of Uttar Pradesh be directed to ‘protect all [Â…] religious institutions of all beliefs and thoughts (religions) (sic.)
within the fold of Hinduism’. In his judgment, Srivastava broadly concurred with this argument, claiming that such protection was necessary if ‘a temple or any other religious institution belonging to (sic.) Hinduism are (sic.) affected by frequent violence/tension’, adding that this was necessary in order to protect the religious freedoms of the Hindus as guaranteed by the Indian Constitution.

Srivastava devoted page after page of his lengthy judgment to what he termed as the ‘historical background of continuous attack on temples belonging to Hindus’, thus conjuring the spectre of Hinduism and its institutions being under continuous siege from Muslims. He argued that ‘Temples were always subject to attacks and constructions (sic.) of mosques and madrasas in their places for the last more than 1200 years’. ‘Such attacks’, he claimed, ‘are still continuing’. He conveniently ignored the long tradition of Hindu rulers destroying or forcibly appropriating places of worship of non-Hindus, such as the Jains and Buddhists, or even of fellow Hindus, a point that numerous historians have highlighted. Nor did he care to mention the long tradition of Muslim rulers having patronized and liberally supported numerous Hindu religious establishments. Nor, too, did he bother to mention the literally thousands of Muslim shrines (and lives) destroyed by Hindu gangs in the decades since 1947, a phenomenon much more widespread than contemporary temple destruction by Muslims. In this way, Srivastava sought to reinforce the image of the Muslim as the irredeemable iconoclast and the Hindu as hapless and innocent victim that is so central to Hindutva discourse.

Srivastava sought to argue, against the available evidence, that non-Hindus (Muslims, in particular) continue to be the source of communal violence in India. Thus, he spoke of ‘communal and anti-Hindu forces’ seeking to ‘create an atmosphere of communal tension and insecurity in (sic.) Hindus’ so as to allegedly grab their temples. He referred to the case under dispute in Varanasi as ‘only an example of situation (sic.) prevailing in state (sic.) of U.P.’, where, he
claimed, without offering proof, that Hindus are ‘insecure’ in areas where ‘population of members (sic.) of Hinduism are reduced and the population of non-Hindu communities has increased’. In such places, he contended, ‘anti-social and communal elements of other religious community (sic.) are now a dominant force, affecting religious rites
of worship and maintenance of temples of Hindus’. He claimed that these non-Hindus were allegedly inspired by the example of iconoclastic Muslim rulers of the past. They, he argued, have given the Hindus no option but to ‘leave the temples and transfer the properties attached with to the temple (sic.) to anti-social and communal elements’.

This, of course, represents a very partial view of, or some might say a complete reversal of, reality, given that Muslims have been and continue to be the worst victims of communal violence, often state-instigated, in Uttar Pradesh and in several other parts of India. Not surprisingly, there is no mention in Srivastava’s judgment of ‘anti-social’ and ‘communal’ elements among Hindus, these epithets being reserved for non-Hindus alone, particularly Muslims.

Srivastava rounded up his long diatribe by arguing that Hindu temples in Uttar Pradesh were under grave threat from non-Hindu ‘anti-social’ forces. Hence, he concluded, ‘as such all the temples of religions within the fold of Hinduism (sic.) require protection’. For this purpose, he suggested that the state create a separate security force or a separate section in the existing police forces.

Critics will find yet other parts of Srivastava’s judgment deeply disconcerting. For instance, Srivastava declares that all religious faiths which had their origins in India are part of that amorphous body now known as ‘Hinduism’, and among these he includes Buddhism, Jainism, Sikhism and the Kabir Panth. Adherents of these religions are thus sought to be effectively robbed of their separate identity through this arbitrary and hegemonic definition of Hinduism, as Srivastava reduces them to mere branches of the Hindu faith. Equally contentious is Srivastava’s announcement that ‘the Bhagwad Geeta is a Dharma Shastra of India’, and that it is ‘the duty of [the] State to recognize this text as the ‘National Dharma Shastra’. The judge’s  convoluted and puerile logic leads him to argue that, “As India has recognized (sic.) National Flag, National Bird, National Anthem and National Flower, ‘Bhagvad Geeta’ may also be considered as (sic.)
National (Rashtriya) Dharma Shastra’.

To back this clearly unwarranted argument, Srivastava claimed that the Gita is ‘universal’ in its message and is not confined to Hinduism alone. He added that the Gita ‘inspired our national struggle and (sic.) all walks of life’. This struggle he identified as an alleged collective Hindu movement against ‘foreign’ (read ‘Muslim’ and other ‘non-Hindu’) invaders ‘right from the day of invasion of (sic.) Mir Qasim on (sic.) India in 712 to 1947’. ‘ He quoted from various
authors, foreign as well as ‘upper’ caste Hindu, to proclaim what he described as the alleged greatness of the Gita. He even went so far as to declare that all Indians must follow the Gita. Thus, he pronounced,  “[I]t is the duty of every citizen of India [Â…] irrespective of caste, creed or religion to follow (sic.) Dharm propounded by ‘Bhagwad Geeta'”.

The absurdity of these declarations is, of course, plainly obvious. The argument that the Gita inspired India’s national struggle reflects a dominant and hegemonic form of Indian nationalism that equates it with Brahminical Hinduism, leaving out the scores of Indian freedom fighters, Muslims, Sikhs, Christians, Dalits, Hindu skeptics, rationalists and atheists, for whom the Gita did not serve as a source of inspiration at all. It also clearly reflects the Hindutva understanding of Indian history, wherein the centuries of rule byTurks, Afghans and Mughals are described as a long period of ‘slavery’ of the Hindus, who are equated with Indians in general. Non-Hindus are thus effectively denied any space in this definition of the Indian nation.

In his passionate glorification of the Gita, Srivastava conveniently remained silent on one of its basic aims—the preservation and promotion of the horrendous caste system. The Gita defines dharma according to the varna or caste of a person, determined by birth, and thereby sanctifies the caste system that has consigned the vast majority of Indians to the status of ‘low’ caste Shudras and Ati-Shudras. This point has been amply dealt with by critical
historians as well as by numerous Dalit-Shudra leaders, such as Babasaheb Ambedkar, the framer of the Indian Constitution, and Mahatma Jotiba Phule, in their various writings. Srivastava’s plea that the Gita be made the ‘National Dharma Shastra’ of India can thus be construed as a thinly veiled argument for making the caste system the law of the land.

His ardent advocacy of Brahminical mythology led Srivastava to make the bizarre claim that ‘It has come in Geeta that the (sic.) God has given the theory of Karmayog to Surya [the Sun] and from Surya to the (sic.) Manu, and from Manu to other highly revered saints’. ‘It is now settled’, Srivastava declared, ‘that the Sun is the source of all human being (sic.) and also that entire (sic.) world and also source of energy to (sic.) all creations (sic.) of man kind (sic.) and source of life on earth’. Srivastava’s eulogies to Manu, the putative architect of the barbaric caste system, can well be said to be an open defiance of the principles of equality enshrined in the Indian Constitution. And by defending a fanciful Brahminical myth as gospel truth he has clearly violated the principle of secularism. Clearly, Srivastava seems better cut out as a temple pujari than as a high court judge.

In advocating that all Indians must ‘follow (sic.) Dharm propounded by ‘Bhagwad Geeta'” Srivastava makes a complete mockery of the pillar of secularism on which the Indian Constitution, which the judiciary is sworn to protect, is based.  Srivastava’s glorification of the Gita, the Bible of Brahminism, leads him on to terrain on which, clearly, he is unqualified to comment—defining religious ‘truth’ and the way other religions and their adherents must see themselves. This constitutes yet another clear breach of secularism. He speaks as ardent advocate of Brahminism, rather than as a judge, when he declares that ‘Theory (sic.) of Bhagwat Geeta speaks about internal and external truth’.

While Srivastava is entitled to hold his own views on the veracity or otherwise of the Gita in his personal capacity, surely it is not in his right to define ultimate religious truth for others in his capacity as a judge. By pronouncing that the Gita ‘is a guiding force for all the religions’, he makes a clearly unwarranted claim, for he is no divinely-guided prophet to dictate how other religions should be ‘guided’. His announcement that ‘The true essence of all the religions
in world (sic.) are echos (sic.) of Geeta’ is equally ridiculous, reflecting the deeply-entrenched Brahminical ethos that seeks to reduce all other religions to its alleged derivatives. Srivastava retired five days after delivering his absurd judgment, but that is not likely to be the end of this sordid story. Clearly, his judgment might well serve as an incentive or precedent to other similarly-minded judges to pass similarly outrageous decrees in the future. In the name of defending the Constitution, clearly Srivastava has undermined it, making a complete mockery of its commitment to secularism, social justice and equality for all Indian citizens.

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This article is based on the uncertified copy of Srivastava’s judgment hosted on the Allahabad High Court’s website. For details, see

http://www.allahabadhighcourt.in/ejurix/servlet/WebViewJudgeme

nt?casetype=WRIC&caseno=56447&year

=2003&judgementdate=30/08/2007