Supreme Court of India, Hinduism and Hindutva

Heidelberg Papers in South Asian and Comparative Politics
South Asia Institute Department of Political Science
University of Heidelberg
Defining Religion: The Indian Supreme Court and Hinduism
By Ronojoy Sen
Working Paper No. 29 November 2006

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Working Paper No. 29, November 2006
Defining Religion: The Indian Supreme Court and Hinduism
RONOJOY SEN [The Times of India, New Delhi]1

In this paper I examine how the Supreme Court in independent India has
defined Hinduism and the consequences that flow from attempts to define
Hinduism. The Court’s proclivity to define religion, especially Hinduism,
can be seen as flowing partly from Articles 25 and 26 — often referred to as
the freedom of religion clauses — of the Indian Constitution. Article 25
guarantees the right to “profess, practice and propagate religion”, but also
permits the state to regulate “economic, financial, political or other secular
activity associated with religious practice” as well as provide for “social
welfare and reform” of Hindu religious institutions.2 Article 26 guarantees
religious denominations, among other things, freedom to manage their
religious affairs.3 Since the “wording of Articles 25 and 26 establishes the
primacy of public interests over religious claims and provides a wide scope
for governmentally sponsored reforms,”4 the Supreme Court has often had

to adjudicate on which religious denomination or institution legally qualifies
as Hindu.
I propose that the Supreme Court rulings on what does and does not
qualify as Hindu are embedded in a discourse on classical or high Hinduism
that originated with the nineteenth century reformation of Hinduism. For the
greater part of its existence in independent India the Court appropriated this
discourse about classical Hinduism to emphasize the inclusive and tolerant
qualities of Hinduism as well as to advocate reform of Hinduism. Perhaps
the most influential of these rulings was the Supreme Court’s judgment in
Sastri Yagnapurushdasji v. Muldas Bhundardas5 or the Satsangi case. In
this case Hinduism was memorably described as a “way of life.” This
understanding of Hinduism would be used in several later court rulings. But
in the mid-Nineties — when the Nehruvian consensus on secularism had
been severely shaken by the rise of the Hindu nationalists — the Court in
the controversial ‘Hindutva’ ruling6 conflated an inclusivist discourse on
Hinduism with the exclusivist version of Hinduism propounded by Hindu
nationalists. Though the Hindutva judgment was viewed by some as an
aberration, I argue that, paradoxically, it was a product of the dominant
judicial discourse on Hinduism.
Genealogy of ‘Hinduism’
It is now commonly accepted that use of the term ‘Hinduism’ or ‘Hindu’ to
denote a single religious community is of recent origin. As historian Romila
Thapar points out, “the first occurrence of the term ‘Hindu’ is as a
geographical nomenclature.”7 The earliest mention of Hindu can be found in
the inscriptions of the Achaemenid empire which refer to the frontier region
of the Indus or Sindhu as ‘Hi(n)dush’. Much later, Arabic texts would refer
to the land across the Sindhu or Indus river as ‘Al-Hind’. W.C. Smith
writes, “The term Hindu, and its dialectical alternative Sindhu, are the Indo-
Aryan word for ‘river’, and, as a proper noun, for the great river of the
northwest of the sub-continent, still known locally as the Sindh and in the
West through the Greek transliteration as ‘Indus’. As a designation for the
territory around that river (that is, meaning roughly, ‘India’) the word was
used by foreigners but not internally, and indeed it (and the Persian
counterpart ‘Hindustan’, introduced and used by Muslims) is still primarily
an outsider’s name for the country.”8
It was only from the nineteenth century that the term Hinduism.9
came to be in vogue. In large measure it was introduced by British scholars,
missionaries and administrators. However, as Frykenberg notes, the term
Hindu was used by the British in a negative sense to “characterize all things
in India (especially elements and features found in the cultures and religions
of India) which were not Muslim, not Christian, not Jewish, or, hence, not
Western.”10 In this sense, as Frykenberg, as well as Heinrich von
Stietencron, point out ‘Hindu’ merely supplanted the earlier term ‘gentoo’
which was used to designate heathens.11 This meant that the multiplicity of
beliefs, practices and doctrines within Hinduism was subsumed under one
omnibus term. But the plurality within Hinduism continued to confound the
“Western love of definition and neat pigeon-holing.”12 In fact, the narrative
of Hinduism confounding outsiders has a long history: the famous medieval
traveler Albiruni (973-1048) was clearly perplexed during his travels in
India by the diversity among Hindus.13 One of the reasons for this sense of
confoundment was that unlike other world religions Hinduism is “not a
linear progression from a founder through an organizational system.”14
Instead Hinduism can be read as a “mosaic of distinct cults, deities, sects
and ideas and the adjusting, juxtaposing or distancing of these to existing
ones, the placement drawing not only on belief and ideas but also on the
socio-economic reality.”15 Faced with what appeared to them to be a
bewildering mosaic, Western scholars often resorted to metaphors like the
‘jungle’ or ‘sponge’ to map Hinduism.16
At the same time, the British made a distinction between the living
religion of the Hindus and what was characterized as the purer Vedic
religion. P.J. Marshall points out from the latter half of the eighteenth
century the “Europeans had begun to make the distinction, which was to
have so long a life, between what they regarded as ‘popular’ Hinduism and
‘philosophical’ Hinduism. Popular cults were described to be condemned or
ridiculed, but most writers were also prepared to admit the existence of
metaphysical assumptions and ethical doctrines in Hinduism which they
could approve because they seemed to be similar to western concepts.”17
Through the nineteenth century European scholars contributed profoundly
to the modern construction of Hinduism by first “locating the core of Indian
religiosity in certain Sanskrit texts” and second by defining Hinduism based
10 Robert Eric Frykenberg, “The Emergence of Modern ‘Hinduism’ as a Concept and as a
Institution: A Reappraisal with Special Reference to South India,” in Gunther D.
Sontheimer and Herman Kulke eds., Hinduism Reconsidered (New Delhi: Manohar
Publications, 1991), 31.
upon “contemporary Western understandings of the Judeo-Christian
traditions.”18
The search by Hindu intellectuals for a more pure form of Hinduism
was initiated by Rammohun Roy (1772-1833), who is recognized as a
seminal figure in the reform of Hinduism and hailed as the ‘father’ of
modern India. Roy, who was a passionate critic of polytheism, idolatry and
practices like sati, identified the Vedas and Upanishads as the true sources
of Hinduism. He writes, “The whole body of Hindu Theology, Law, and
Literature, is contained in the Veds, which are affirmed to be coeval with
the creation… But from its being concealed within the dark curtain of the
Sungscrit language, and the Brahmins permitting themselves alone to
interpret, or even to touch any book of the kind, the Vedant, although
perpetually quoted, is little known to the public: and the practice of few
Hindoos indeed bears the least accordance with its precepts.”19 By
translating the Sanskrit texts into Bengali, Roy wanted to strike a blow
against those who “prefer custom and fashion to the authorities of their
scriptures, and therefore continue, under the form of religious devotion, to
practice a system which destroys, to the utmost degree, the natural texture of
society, and prescribed crimes of the most heinous nature…”20
This ‘cleansing’ of Hinduism and an adoption of, what Thapar has
referred to as, the Semitic model would be a recurrent theme among Hindu
reformers in the nineteenth century and later. According to Frykenberg,
Indian reformers and leaders from Roy to Jawaharlal Nehru used the terms
Hindu and Hinduism in the ‘Brahminical’ or ‘classical’ sense. Ashis Nandy
et al describe the primary feature of the “new Hinduism” of the nineteenth
century thus: “[I]t defensively rejected or devalued the little cultures of
India as so many indices of the country’s backwardness and as prime
candidates for integration within the Hindu/national mainstream. Instead,
the new Hindus sought to chalk out a new pan-Indian religion called
Hinduism that would be primarily classical, Brahmanic, Vedantic and,
therefore, not an embarrassment to the modern or semi-modern Indians in
touch with the more ‘civilized’ parts of the world.”21
The brief discussion of the genealogy of the term ‘Hinduism’ makes it
apparent that the Supreme Court was entering into a contested terrain when
it attempted to define Hinduism. As Arvind Sharma puts it in an
introduction to a recent anthology on Hinduism, “The problem of defining
Hinduism has been endemic in the study of Hinduism since the term
Hinduism was coined and introduced early in the nineteenth century. It has,
however, increasingly become more acute.”22 In the subsequent discussion
of the judicial discourse on Hinduism, I intend to show that the Court
assigned a critical role to many of the dominant assumptions of the
reformist and neo-Hinduism in the nineteenth and early twentieth century.
At this point it might be useful to make a distinction between two
strands of reformist Hinduism: an ‘inclusivist’ and an ‘exclusivist’ model.
The most prominent proponents of an inclusivist Hinduism were Swami
Vivekananda (1863-1902) and Sarvepalli Radhakrishnan (1888-1975).
Vivekananda, the founder of the Ramakrishna Mission, probably did most
to shape the discourse on Hinduism in modern India as well as popularise
Hinduism in the West. Radhakrishnan, a distinguished philosopher who
taught at Oxford23 and later became President of India (1962-67), would
develop many of Vivekananda’s ideas on Hinduism. Both of then forcefully
argued for Hinduism as a universal and tolerant religion founded on the
Vedas. These ideas would play a central role in the Court’s understanding of
Hinduism. However, I argue that the Court, by adopting the inclusivist
model of Hinduism, also contributed to the construction of a homogenous
Hinduism which was inimical to variations in beliefs, practices and
doctrines. In this paradoxical sense the Court understands of Hinduism
overlapped with the exclusivist strand associated with the founder of
contemporary Hindu nationalism, Vinayak Damodar Savarkar (1883-1966)
and his notion of ‘Hindutva’ (Hinduness), a strand which I will discuss at
greater length below. Before turning to an analysis of the court’s definition
of Hinduism I will briefly outline the inclusivist and the exclusivist models
of Hinduism. One must keep in mind, however, that there are significant
common features in the models which contributed in part to the Court’s
conflation of Hinduism with Hindutva.
Inclusivist Hinduism
The Frenchman Francois Bernier, who visited India between 1656 and
1668, wrote of the pluralism of Hinduism and tolerance of the Hindus.24
However, the conceptual framework for the inclusive model of Hinduism
was laid at the end of the nineteenth century by the eminent Oxford
Sanskritist Monier Monier-Williams (1819-1899).25 In his influential book,
Religious Thought and Life in India, Monier-Williams writes, “It
[Hinduism] claims to the one religion of humanity, of human nature, of the
entire world. It cares not to oppose the progress of any other system. For it
has no difficulty in including all other religions within its all-embracing
arms and ever-widening fold.”26 He describes the Hindu religion as one
“based on the idea of universal receptivity” which has “first borne with and
then, so to speak, swallowed digested, and assimilated something from all
creeds.”27 In a more recent reformulation, the German Indologist, Paul
Hacker, argued that the inclusivism (Inklusivismus) associated with
Hinduism is often confused with tolerance. According to Hacker,
inclusivism “consists in claiming for, and thus including in, one’s own
religion what really belongs to an alien sect.”28 He points out that “it would
perhaps be more accurate to speak of inclusivism in many cases where we
are inclined to see Hindu tolerance.”29 Hacker singles out Vivekananda and
Radhakrishnan as the most notable practitioners of this method of
inclusivism. Both Vivekananda and Radhakrishnan were also the leading
proponents of Advaita Vedanta.30 Though Hacker’s additional assertion that
there was inclusivism rather than tolerance in Indian tradition has been
contested, his claim about the displacement of tolerance by inclusivism is
useful in discussing the thoughts of Vivekananda and Radhakrishnan.
Perhaps the most powerful articulation of the inclusivist model of
Hinduism was Vivekananda’s now legendary address at the Parliament of
Religions in Chicago in 1893 where he declared: “I am proud to belong to a
religion which has taught the world both tolerance and universal acceptance.
We believe not only in universal toleration but we accept all religions as
true.”31 This theme of the tolerance and universality of Hinduism,
specifically Vedantic Hinduism, would find pride of place in several of
Vivekananda’s speeches. At yet another lecture in America, Vivekananda
clearly outlined his idea of an inclusivist Hinduism: “Ours, as I have said, is
the universal religion. It is inclusive enough, it is broad enough to include all
ideals. All the ideals of religion that already exist in the world can be
immediately included, and we can patiently wait for all the ideals that are to
come in the future to be taken in the same fashion, embraced in the infinite
arms of the religion of the Vedanta (italics added).”32 Thus, the infinite
capacity to accommodate differences and dissent becomes the principal
feature of Hinduism.
“[S]ect after sect arose in India and seemed to shake the religion of the Vedas to its
very foundations, but like the waters of the seashore in a tremendous earthquake it
receded only for a while, only to return in all-absorbing flood, a thousand times
more vigorous, and when the tumult of the rush was over, these sects were all
sucked in, absorbed, and assimilated into the immense body of the mother faith.”33
According to Vivekananda, the Hindu religion was founded on the Vedas
which “are a series of books which, to our minds, contain the essence of all
religion.” More importantly he believed that only Vedanta could be the
basis of a universal religion. “[O]ur claim is that the Vedanta only can be
the universal religion, that it is already the existing universal religion in the
world, because it teaches principles and not persons. No religion built upon
a person can be taken up as a type by all the races of mankind… Now, the
Vedantic religion does not require any such personal authority. Its sanction
is the eternal nature of man, its ethics are based upon the eternal spiritual
solidarity of man, already existing, already attained and not to be
attained.”34
Despite his professed openness to other religions, Vivekananda believed in
the superiority of Hinduism. At a speech in Madras, he said, “Ours is the
religion of which Buddhism with all its greatness is as rebel child, and of
which Christianity is a very patchy imitation.”35 Harking back to the theme
that Vedantic religion represented eternal truths, Vivekananda emphasized
that only Hinduism had the potential of being a universal religion: “You
hear claims made by every religion as being the universal religion of the
world. Let me tell you in the first place that perhaps there never will be such
a thing, but if there is a religion which can lay claim to be that, it is only our
religion and no other, because every other religion depends on some person
or persons… But the truths of our religion, although we have persons by the
score, do not depend upon them.”36
For Vivekananda, the Vedas were also the fundamental unifying force
among Hindus belonging to different sects. Addressing a gathering in
Lahore in 1897 Vivekananda spoke on ‘The Common Bases of Hinduism’:
“Perhaps all who are here will agree on the first point that we believe the
Vedas to be the eternal teachings of the secrets of religion. We all believe
that this holy literature is without beginning and without end, coeval with
nature, which is without beginning and without end; and that all our
religious differences, all our religious struggles must end when we stand in
the presence of that holy book; we are all agreed that this is the last court of
appeal in all our spiritual differences.”37
In keeping with his belief in a higher religion, Vivekananda castigated, as
Tapan Raychaudhuri puts it, the “mindless imbecilities of popular
Hinduism.”38 To quote once again from Vivekananda’s speech in Madras,
“The fact is that we have many superstitions, many bad spots and sores on
our body – these have to excised, cut off, and destroyed – but these do not
destroy our religion, our national life, our spirituality. Every principle of
religion is safe, and the sooner these black spots are purged away, the better
the principles will shine, the more gloriously.”39
Many of Vivekananda’s ideas on Hinduism, especially its capacity to
assimilate, its unique role as a universal religion and the centrality of the
Vedas, would be distilled by Radhakrishnan to define Hinduism as a “way
of life” rather than a religion. Radhakrishnan has written how as a young
student he was profoundly affected by Vivekananda and his mentor
Ramakrishna Paramahansa. In the famous Upton lectures at Oxford in 1926,
Radhakrishnan famously described Hinduism thus: “Hinduism is more a
way of life than a form of thought. While it gives absolute liberty in the
world of thought it enjoins a strict code of practice. The theist and the
atheist, the sceptic and the agnostic may all be Hindus if they accept the
Hindu system of culture and life (italics added).”40 Radhakrishnan goes on
to compare Hinduism to a “fellowship” by saying, “Hinduism is not a sect
but a fellowship of all who accept the law of right and earnestly seek for the
truth.”41
Radhakrishnan links the very difficulty of defining Hinduism or finding
common characteristics to its ability to assimilate and absorb external
influences. “The ease with which Hinduism has steadily absorbed the
customs and ideas of peoples with whom it has come into contact is as great
as the difficulty we feel in finding common features binding together its
different forms.”42 This assimilative quality of Hinduism, according to
Radhakrishnan, has enabled it to withstand the onslaught of different people
and ideas that have poured into India since the earliest times. “Though
peoples of different races and cultures have been pouring into India from the
dawn of history, Hinduism has been able to maintain its supremacy, and
even the proselytising creeds backed by political power have not been able
to coerce the large majority of Indians to their views.”43 Thus Hinduism has
“come to be a tapestry of the most variegated tissues and almost endless
diversity of hues.”44
For Radhakrishnan, like Vivekananda, the Vedas and Vedanta remained the
spiritual core of Hinduism through its entire history of development.
Though Hinduism has continued to develop and grow through the ages, it is
“not to be dismissed as a mere flow and strife of opinions, for it represents a

steady growth of insight, since every form of Hinduism and every stage of
growth is related to the common background of the Vedanta.”45 He writes
that “those parts of the new faith which are not in conformity to the Vedic
Canon tends to be subordinated and gradually dropped out.”46 Again like
Vivekananda, Radhakrishnan believed that in spite of the surface differences
there was a fundamental unity among Hindus. The inchoate nature of
Hinduism does not deter Radhakrishnan from asserting, “In spite of the fact
that Hinduism has no common creed and its worship no fixed form, it has
bound together multitudinous sects and devotions into a common
scheme.”47
Exclusivist Hinduism
The term ‘neo-Hinduism’ has been used to describe the thought and
philosophy of a whole range of Hindu reformers and ideologues, including
Bankimchandra Chattopadhyay, Swami Dayanand, Vivekananda,
Radhakrishnan and Mohandas Gandhi. According to Paul Hacker, neo-
Hinduism was characterized by an invoking of the ‘Hindu tradition’ in
response to the encounter with the West. However, a crucial element of neo-
Hinduism was a “reinterpretation” of tradition.48 Some scholars have argued
that the differences among the neo-Hindus were marginal while others are
of the view that there were fundamental differences in the ideology of the
several important figures clubbed under the neo-Hindu label.49 My view is
that a broad distinction can be made between an inclusivist and an
exclusivist discourse about Hinduism. At the same time the reader should
keep in mind that inclusivism and exclusivism are not watertight categories.
Some of the important elements for the framework of the exclusivist
formulation of Hinduism were provided by nineteenth century figures such
as Dayanand (1824-1883) and Chattopadhyay. Two features of
Chattopadhyay and Dayanand’s work would play a significant role in
Savarkar’s Hindutva ideology: the idea of a Hindu rashtra or nation (as
opposed to a religion or civilization) and the distinction between a ‘Hindu’
(which included Buddhists, Jains and Sikhs) and the ‘Other’ represented by
Muslims and Christians. As several recent studies have shown
Chattopadhyay was a crucial figure in the nineteenth century response to
colonial rule.50 Besides his novels like Anandamath, which is famous for the
celebrated patriotic hymn ‘Bande Mataram’ and its anti-Muslim rhetoric,51
Chattopadhyay contributed significantly to laying the ideological
foundations of a “national religion” based on Hindu ideals. In one of his
later works, Krsnacaritra, Chattopadhyay sought to reinterpret Krishna as a
“respectable, righteous, didactic, ‘hard’ god, protecting the glories of
Hinduism.”52 Dayanand, on the other hand, was much more involved in the
actual reform and organization of Hinduism. He believed that a regeneration
of the Hindu community was possible by going back to the Vedic texts and
with this in mind he founded the Arya Samaj in 1875. Daniel Gold has
observed that the Samaj “presents one of the closest parallels to Western
fundamentalism of all the Indian groups… a definite religious group with its
own leaders, guiding texts and sacraments.”53 At the same time, Dayanand
made a concerted effort to establish the superiority of Vedic Hinduism54 visa-
vis Islam and Christianity55 in works like the Satyarth Prakash56 as well
as to mobilize Hindus around issues such as ‘reconversion’ (suddhi), cow
protection and the importance for nationalism of the Hindi language.
If Chattopadhyay and Dayanand foreshadowed exclusivist Hinduism, then
undoubtedly the locus classicus of this variety of Hinduism was Savarkar’s
Hindutva. Savarkar, who was sent to jail by the British government in 1910
for revolutionary activities, wrote Hindutva while in prison.57 The treatise,
which was published in 1923, was the product of a period when “the arrival
of pan-Indian electoral politics had created a space for a political definition
of the Hindus that could be more exclusivist.”58 Like many Hindu
intellectuals before him, Savarkar, too, engaged with the problem of how to
define ‘Hinduism’ and ‘Hindu’. In tracing the origin of the term ‘Hindu’,
Savarkar refused to accept standard interpretations that held that the term
was coined by outsiders to describe the people living across the Indus river.
In his seminal text, Hindutva, he wrote, “Thus Hindu would be the name
that this land and the people that inhabited it bore from time immemorial
that even the Vedic name Sindhu is but a later and secondary form of it.”59
The key innovation by Savarkar was that “the concept of Hindu is
given a predominantly territorial component, a concept of holy land is
specifically introduced in a fashion that would create a stratarchy of
Indians.”60 “We have found,” Savarkar writes, “the first important essential
qualification of a Hindu is that to him the land that extends from Sindhu to
Sindhu is the Fatherland (Pitribhu), the Motherland (Matribhu) the land of
his patriarchs and forefathers.”61 More importantly, Savarkar specified that
the “Dharma of a Hindu being so completely identified with the land of the
Hindus, this land to him is not only a Pitribhu but a Punyabhu, not only a
fatherland but a holyland.”62 This meant that Muslims and Christians, who
might have been born in the “common Fatherland”, could not be regarded as
Hindus: “For though Hindustan to them is Fatherland as to any other Hindu
yet it is not to them a Holyland too. Their Holyland is far off in Arabia or
Palestine.”63
Savarkar coined the word ‘Hindutva’ to substitute for Hinduism which, in
his book, “meant a theory or code more or less based on spiritual or
religious dogma or system.”64 According to Savarkar it was of paramount
importance to distinguish between Hinduism and Hindutva: “Hinduism is
only a derivative, a fraction, a part of Hindutva… Hindutva embraces all the
departments of thought and activity of the whole Being of our Hindu
race.”65 Savarkar elaborated this notion by ascribing three “essentials” to
Hindutva – a common nation (rashtra), a common race (jati) and a common
civilization (sanskriti). This meant that religious belief and practice was
ascribed a secondary status in Savarkar’s conception of Hindutva. Hence,
Chetan Bhatt observes, “The displacement of ‘Hinduism’ by Hindutva
represented a substitutionist logic that strictly demoted religion or religious
belief. This was both an essential step in his primarily non-religious,
territorial and racial conception of Hindutva and its most contradictory,
because at some stage, Muslims and Christians had to be excluded from the
Hindu nation precisely because of Savarkar’s view of the radically different
nature of their religion that was seen as coextensive with their identities.”66
The exclusivist logic of Savarkar was extended by M.S. Golwalkar. He was
the most prominent ideologue of the Rashtriya Swayamsevak Sangh
(RSS).67 Founded in 1925, the RSS aimed to revitalize India’s cultural life
by organizing branches (sakhas) where the country’s youth could learn
discipline and devotion to the nation. In 1938, two years after he became
sarsanghchalak (supreme director) of the RSS, Golwalkar published We or
Our Nationhood Defined. Regarding the origins of the Hindus, Golwalkar
declared in his book that Hindus came “into this land [Hindusthan] from
nowhere, but are indigenous children of the soil always, from times
immemorial and are natural masters of the country.”68 Borrowing from
extant notions of nationalism, Golwalkar stressed that the ‘Hindu’ nation
was founded on a defined territory, race, religion, culture and language. This
concept of the Hindu nation was marked by exclusivity: “All those not
belonging to the national i.e. Hindu Race, Religion, Culture and Language
naturally fall out of the pale of ‘National’ Life.”69 Golwalkar’s message to
the non-Hindus was unambiguous and draconian:
The non-Hindu peoples in Hindusthan must either adopt the Hindu culture and
language, must learn to respect and hold in reverence Hindu religion, must entertain
no idea but those of glorification of the Hindu race and culture i.e. they must not
only give up their attitude of intolerance and ungratefulness towards this land and its
agelong traditions but must also cultivate the positive attitude of love and devotion
instead — in one word they, must cease to be foreigners, or may stay in the country
wholly subordinated to the Hindu nation, claiming nothing, deserving no privileges,
far less any preferential treatment – not even citizens’ rights.70
In keeping with this line of thinking, Golwalkar made an ominous reference
to the example of Nazi Germany and how it had shown that it was
impossible “for Races and cultures, having differences to the root, to be
assimilated into one united whole, a good lesson for use in Hindusthan to
learn and profit by.”71
Balraj Madhok is a figure of the next generation of Hindu nationalism. His
interpretation of Hindutva is constructed as a leader of the Bharatiya Jan
Sangh party. 72 Madhok was motivated by a desire to widen the appeal of
Hindutva. His thinking is affected by post-nationalist, post-independence
electoral and party competition. The Jan Sangh,73 which was the predecessor
to the Bharatiya Janata Party (BJP), was founded in 1951. Madhok made an
effort to downplay Hindutva and to highlight the term ‘Bharatiya’, a
Sanskrit word for Indian. He wrote, “At the same time there is no sense in
making a fetish of the word Hindu. Instead of forcing it on those who do not
like it today, it should be popularized as a synonym of ‘Bharatiya’ in writing
and speaking.”74 However, he was clear that by the Indian nation he meant
Hindu rashtra. But at the same time he took a more accommodating
approach than Savarkar or Golwalkar by stressing that “Christians and
Muslims living in India are also Hindus if India and Indian culture
commands their first and foremost allegiance.”75 According to Arvind
Sharma, this signaled a subtle shift in the understanding of Hindutva:
“During the period when the Jan Sangh functioned as a party [1951-1979],
the concept of Hindutva underwent an ideological shift. It took the form of
identifying India with Hindutva, rather than Hindutva with India.”76 Now
that the reader has been introduced to the discourse and discursive
formations with respect to Hindu, Hinduism, Hindutva and Hindu rashtra,
the analysis can move on to the Court’s definition and understanding of
Hinduism.
The Satsangi case
The first case in independent India in which the Supreme Court famously
attempted to define Hinduism was Yagnapurushdasji v. Muldas.77 The 1966
case involved the Satsangis or followers of Swaminarayan (1780-1830) who
claimed that their temples did not fall under the jurisdiction of the Bombay
Harijan Temple Entry Act, 1948. The Act provided that every Hindu temple
shall be open to Harijans or untouchables. By the time the case reached the
Supreme Court via a trial court and the Bombay High Court, the Central
Untouchability (Offences) Act of 1955 had already come into effect. The
case made by the Satsangis was that the “Swaminarayan sect represents a
distinct and separate religious sect unconnected with the Hindus and Hindu
religion, and as such, their temples were outside the purview of the said
Act”.78
The Satsangis claimed separate status on four grounds. First, they argued
that Swaminarayan, the founder of the sect, considered himself as Supreme
God. Second, it was urged that the Satsangi temples could not be regarded
as Hindu temples since they were used to worship Swaminarayan and not
any traditional Hindu deity. Third, it was pointed out that the Satsangis
propagated the idea that worship of any god other than Swaminarayan was a
betrayal of faith. Finally, it was contended that there was a procedure of
initiation (diksha) into the Swaminarayan sect by which a devotee assumed
a distinct and separate identity.
The Court rejected the contention of the Satsangis relying primarily on a
description of their religious practices by Monier-Williams in his Religious
Thought and Life in India. Based on its reading of Monier-Williams and
reports of the Gazetteer of the Bombay Presidency, the Court concluded: “In
our opinion, the plea raised by the appellants that the Satsangis who follow
the Swaminarayan sect form a separate and distinct community different
from the Hindu community and their religion is a distinct and separate
religion different from Hindu religion is entirely misconceived.”79 However,
the examination of the religious practices of the Satsangis was somewhat
incidental in the Court’s ruling.
Yagnapurushdasji was far more critical for the Supreme Court’s
construction of Hinduism, a construction that has since become hegemonic
in judicial discourse. Writing for the Court, Chief Justice P.B.
Gajendragadkar — who had already authored some of the most important
judgments on the question of freedom of religion — proceeded to enquire
“what are the distinctive features of Hindu religion.”80 At the same time, he
admitted that the question “appears to be somewhat inappropriate within the
limits of judicial enquiry in a court of law”,81 but he did not allow that
thought to deter him. Drawing primarily from English language sources, the
Court put forward the view that Hinduism was “impossible” to define:
“When we think of the Hindu religion, we find it difficult, if not impossible,
to define Hindu religion or even adequately describe it. Unlike other
religions in the world, the Hindu religion does not claim any one God; it
does not subscribe to any one dogma; it does not believe in one philosophic
concept; it does not follow any one set of religious rites.” Confronted with
this amorphous entity, the Court concluded, “[I]t [Hinduism] does not
appear to satisfy the narrow traditional features of any religion or creed. It
may broadly be described as a way of life and nothing more (italics
added).”82
Once the civilizational or cultural view of Hinduism was posited it
was not difficult for the Court to construct an all-encompassing version of
Hinduism that included a variety of creeds and sects. Hence, any reform
movements, including Buddhism, Jainism and Sikhism, were seen as merely
different sects within Hinduism.
The development of Hindu religion and philosophy shows that from time to time
saints and religious reformers attempted to remove from the Hindu thought elements
of corruption and superstition and that led to the formation of different sects.
Buddha started Buddhism; Mahavir started Jainism; Basava became the founder of
Lingayat religion, Dhyaneshwar and Tukaram initiated the Varakari cult; Guru
Nanak inspired Sikhism; Dayananda founded Arya Samaj, and Chaitanya began
Bhakti cult; and as a result of Ramakrishna and Vivekananda, Hindu religion
flowered into its most attractive, progressive and dynamic forms. If we study the79

teachings of these saints and religious reformers, we would notice an amount of
divergence in their respective views: but underneath that divergence, there is a kind
of subtle indescribable unity which keeps them within the sweep of the broad and
progressive Hindu religion.83

Gajendragadkar’s view is, in fact, enshrined in the Constitution where
Explanation II appended to Article 25 says that the “reference to Hindus
shall be construed as including a reference to persons professing the Sikh,
Jain or Buddhist religion”. What is noteworthy is that the Court could well
have decided Yagnapurushdasji without going into a detailed exegesis of
Hinduism. As Marc Galanter has pointed out in his analysis of
Yagnapurushdasji, the Court could have decided the case with reference to
Article 25(2)(b) of the Constitution, which empowers the state to overcome
caste and denominational barriers within Hinduism.84 In any case in an
earlier judgment the Court had said temple-entry acts prevail over
denominational claims to exclude outsiders.85
In Yagnapurushdasji, the Court used a variety of sources to define
Hinduism. Robert Baird describes the Court’s reasoning thus: “All of the
authorities to whom appeal is made stress the wide range of Hindu belief
and practice. That which had been the obstacle to constructing a model of
Hinduism which would fit the concrete data is turned into one of its major
characteristics — it is inclusive.”86 Radhakrishnan in particular plays a
crucial role in shaping the Court’s conception of Hinduism.
At the outset, Gajendragadkar quotes a question posed by
Radhakrishnan to get at a definition of Hinduism: “[T]o many Hinduism
seems to be a name without any content. Is it a museum of beliefs, a medley
of rites, or a mere map, a geographical expression?”87 To this question, the
Court offers a geographical solution provided by Radhakrishnan. “The
Hindu civilization is so called since its original founders or earliest
followers occupied the territory drained by the Sindhu (the Indus) river
system corresponding to the North-West Frontier Province and the
Punjab.”88 According to the Court, Radhakrishnan’s definition of Hindu
implied residence in a well-defined geographical area. “Aboriginal tribes,
savage and half-civilized people, the cultured Dravidians and the Vedic
Aryans were all Hindus as they were the sons of the same mother.”89
The next step in the Court’s construction of Hinduism is the stress
on its assimilative and tolerant character, a dominant idea in
Radhakrishnan’s conception of Hinduism: “Naturally enough it was realized
by Hindu religion that from the very beginning of its career that truth was
many-sided and different views contained different aspects of truth which
no one could fully express. This knowledge inevitably bred a spirit of
tolerance and willingness to understand and appreciate the opponent’s point
of view.”90 The Court also mentions Monier-William’s passage on
Hinduism’s ability to assimilate “something from all creeds”,91 which has
already been cited in this paper.
In formulating this overarching, all-embracing Hinduism, the Court
privileges another of Radhakrishnan’s major ideas: the “acceptance of the
Vedas as sole foundation of the Hindu philosophy.” Thus Gajendragadkar
writes, “Beneath the diversity of philosophic thoughts, concepts and ideas
expressed by Hindu philosophers… lie certain broad concepts which can be
treated as basic. The first among these basic concepts is the acceptance of
the Veda as the highest authority in religious and philosophic matters.”92
The Court even comes up with a working definition of Hinduism as
formulated by B.G. Tilak: “Acceptance of the Vedas with reverence;
recognition of the fact that the means to salvation are diverse; and
realization of the truth that the number of gods to be worshipped is large,
that indeed is the distinguishing feature of Hindu religion.”93
The importance of Yagnapurushdasji was that the Court was interpreting
Hinduism as an inclusivist religion drawing heavily from the ideas of
Radhakrishnan and his intellectual predecessors. In this sort of usage, as
noted earlier, certain features of Hinduism are most important: tolerance,
universality, a classical core and a search for a fundamental unity. The
Court’s views on Hinduism and indeed its inclusive nature recurred in
subsequent judgements. In several important later judgements, the Supreme
Court relied on the construction of Hinduism as elaborated in
Yagnapurushdasji. For instance, in Ganpat v. Returning Officer the Court
declares: “[I]t is necessary to remember that Hinduism is a very broad based
religion. In fact some people take the view that it is not a religion at all on
the ground that there is no founder and no one sacred book for the Hindus.
This, of course, is a very narrow view merely based on the comparison
between Hinduism on the one side and Islam and Christianity on the other.
But one knows that Hinduism through the ages has absorbed or
accommodated many different practices, religious as well as secular, and
also different faiths.”94
The inclusive model of Hinduism has also been used to determine
who qualifies as a Hindu for legal purposes. As Baird notes with respect to
the application of personal law, the Court has held that the Jains,95 who
consider themselves distinct from Hinduism, and the Lingayats,96 a ‘lower
caste’ within Hinduism, would be treated as Hindus. Since
Yagnapurushdasji, claims put forward by different Hindu sects to be
regarded as a separate religion have not found favour with the Court.
Among the more prominent cases was the denial of the status of a separate
religion status to the Arya Samaj97 and Ramakrishna Mission.98 Let us
briefly examine the Ramakrishna Mission case which was interesting for
two reasons: first the Calcutta High Court accepted the claim of the Mission
to be a separate religion, but the Supreme Court eventually reversed the
decision; and second, the Mission’s argument was that Hinduism did not
qualify as a universal religion. Unlike the Satsangi case where the entry into
temples was at stake, the Ramakrishna Mission case revolved around the
limits of state action with regard to institutions run by the Mission. In
settling the case, the Court was forced to examine the doctrinal content of
Ramakrishna and Vivekananda’s teachings to decide whether their followers
could be classified as Hindus.
Ramakrishna Mission Case
In the Ramakrishna Mission (RKM) case the issue at hand was the West
Bengal government’s right to interfere in the administration of and
appointment of teachers to in educational institutions run by the RKM.
When the case first came up for hearing before a single judge of the Calcutta
High Court and subsequently before a division bench,99 the lawyers
representing RKM argued that ‘Ramakrishnaism’ was a minority religion
and hence covered by Article 30,100 which guarantees minorities control
over educational institutions. In fact, the lawyers turned around the Court’s
model of inclusivism elaborated in Yagnapurushdasji and argued that
‘Ramakrishnaism’ was a “world religion” while Hinduism was not.
The cult or religion of Shri Ramakrishna Paramahansadeb is that all beings are the
manifestations of God and all religions are but different paths of reaching God…
There is no necessity of one surrendering his own religion, be he a Hindu or a
Christian or Muslim or Jew in order to be a follower of the cult or religion of Shri
Ramakrishna… Thus in fact, Thakur Shri Ramakrishna preached a World Religion
which is quite different from all other religions.101
The argument by the RKM lawyers was that Ramakrishna founded a
“universal” religion which was “meant not for the members of any
particular caste, creed or religion but for the entire mankind.”102
The RKM lawyers pointed to the life of Ramakrishna and his famed
experimentation with different religions as the prime example of his
universal beliefs: “Sri Ramakrishna practiced Hinduism and particularly
Bhakti Yoga — the Path of Love. He, however, did not stop there and
instead of confining himself within Hinduism and experimenting with other
paths according to the tenets of Hinduism, embarked upon altogether novel
experiments in accordance with the principles of other religions.”103 Thus
Ramakrishna for a brief period “practiced Islam as a devout Muslim” and
had visions of Christ when he went into a trance.
Contrary to the Satsangi ruling, the Calcutta High Court agreed that as
compared to Hinduism Ramakrishnaism was far more inclusive and labelled
it as a “Religion Universal.” The Court declared, “In order to be a follower
of Sri Ramakrishna, non-Hindus are not required to embrace Hinduism and
to undergo Suddhi or other form of purification. He could continue to
profess and practice his own religion and at the same time be a follower of
Sri Ramakrishna’s faith.”104 Contrasting ‘Ramakrishnaism’ with Hinduism,
the Court said: “Hindu religion does never admit any person professing
another faith and religion such as Muslim, Christian or Buddhism etc. in it
unless such person gives up his religion to embrace Hinduism.”105 However,
a follower of Ramakrishna is catholic in his beliefs: “A traditional Hindu
claims to be a Hindu and Hindu only, and believes in the Vedas only, and
not in the scriptures of any other religion;… But a follower of the cult or
religion of Shri Ramakrishna, coming originally from the Hindu fold,
though a Hindu, claims to be something more at the same time. As a
follower of Shri Ramakrishna’s Religion Universal, along with the Vedas,
he accepts also the Holy Koran, the Holy Bible and all other religious
scriptures to be true.”106 Further, the Court contended that Ramakrishnaites
reject an “integral part of Hindu religion” — the caste system.107
In light of the Satsangi ruling and specifically Gajendragadkar’s mention of
Ramakrishna and Vivekananda as reformers working within the ambit of
Hinduism, there was every chance that the Calcutta High Court judgment
would be appealed in the Supreme Court. Indeed ten years after the high
court ruling, the Supreme Court overturned the ruling. In an article written
well before the Supreme Court judgment Baird correctly predicted: “The
inclusive model of Hinduism utilized in the Satsangi and succeeding cases
could have accommodated the followers of Ramakrishna as well. But, in the
interests of preserving the religious control of the College, the Calcutta High
Court modified that model so that the Ramakrishnaites became distinct…
But in the light of Supreme Court statements on Hinduism as a religious
category it is difficult to see the Supreme Court affirming this decision.”108
Not surprisingly, the Supreme Court based its decision on Yagnapurushdasji
and the “features of Hindu religion” outlined by the earlier ruling. After
quoting copiously from Yagnapurushdasji, the Court opined that the
Calcutta High Court rulings “directly conflict with the aforementioned
views of the Constitution Bench of Hindu religion in the case of
Yagnapurushdasji Shastri.”109 The Court also referred to the opinions of
Vivekananda and writings on Ramakrishna to conclude that they were not
founders of a separate religion.
Thus, from what is said of Ramakrishna and Swami Vivekananda and of their
religion by great world thinkers and philosophers, the glory of Ramakrishna is that
he preached and made his principal disciple Swami Vivekananda to preach the
religion of the Vedanta which is the religion of the Hindus…110
However, the Court did accept that RKM could be “regarded as a religious
denomination within Hindu religion”111 and could claim the fundamental
rights guaranteed by Article 26. Thus, the Ramakrishna Mission case is a
clear example that given the inclusivist model of Hinduism outlined in
Yagnapurushdasji it is virtually impossible for any religious sect to seek
exit. Just as the RKM was accorded the status of a denomination within
Hinduism, so other sects such as the Arya Samaj or the Ananda Margis have
successfully fought for the right to be recognized as a denomination. But the
status of a minority religion has been denied in all cases.
The Hindutva ruling
The ‘Hindutva judgements’ is the collective name given to seven decisions
handed down by the Supreme Court in 1996. The cases involved twelve
members of Hindu nationalist parties such as the Bharatiya Janata Party and
Shiv Sena. The twelve members, which included Shiv Sena chief Bal
Thackeray and then Maharashtra chief minister Manohar Joshi, were
charged with violating section 123 of the Representation of People Act,
1951 (RPA) by appealing to Hindutva. Section 123(3) 112 prohibits election
candidates from appealing for votes on the grounds of religion or religious
symbols among other things. Section 123(3A) prohibits attempts to promote
enmity on grounds of religion, race, community or language. On the specific
question of whether an appeal to Hindutva constitutes a violation of the
RPA, the main opinion of the Court was delivered in Prabhoo v. Kunte113
where Ramesh Yeshwant Prabhoo, then mayor of Bombay, and his election
agent, Thackeray, faced charges of a corrupt practice i.e. appealing for votes
on religious grounds or promoting enmity on religious grounds.
The Court first dealt with the question of the constitutionality of
section 123 of the RPA, which was challenged by the appellants. The Court
upheld the constitutionality of the relevant sections of the RPA on the
grounds that they were “enacted to so as to eliminate from the electoral
process, appeals to those divisive factors which arouse irrational passions
that run counter to the basic tenets of our Constitution, and, indeed of any
civilised political and social order.”114 Writing for the Court, Justice J.S.
Verma said: “Under the guise of protecting your own religions, culture or
creed you cannot embark on personal attacks on those of others or whip up
low hard instincts and animosities or irrational fears between groups to
secure electoral victories.”115
On the basis of speeches by Thackeray,116 the Court held that there
was an appeal to voters to elect Prabhoo because he was a Hindu. The Court
also held that one of Thackeray’s speeches included derogatory references
to Muslims. On these counts, the Court concluded that Prabhoo and
Thackeray were guilty of corrupt practices.117 However, the most important
aspect of the ruling was the discussion on the legitimacy of appealing to
‘Hindutva’ during the election campaign. In discussing Hindutva, Justice
Verma first went over the definition of Hinduism presented in
Yagnapurushdasji. Basing his opinion on his reading of the inclusivist
Hinduism of Yagnapurushdasji and on another later decision,118 Verma
proceeded to conflate Hindutva with Hinduism by arguing that Hindutva
was a “way of life” and could not be equated with “narrow fundamentalist
Hindu religious bigotry.”119
Thus, it cannot be doubted, particularly in view of the Constitution Bench decisions
of this Court that the words ‘Hinduism’ and ‘Hindutva’ are not necessarily to be
understood and construed narrowly, confined only to the strict Hindu religious
practices unrelated to the culture and ethos of the people of India, depicting the way
of life of the Indian people. Unless the context of a speech indicates a contrary
meaning or use, in the abstract these terms are indicative more of a way of life of the
Indian people and are not confined merely to describe persons practicing the Hindu
religion as a faith (italics added).120
In conflating Hindutva with Hinduism, the Court ignored the sacred soil and
birth/race aspects of Hindutva as defined by Savarkar and Golwalkar.
The Court, however, did not stop at that. Quoting from an obscure
book on Indian Muslims,121 Verma then went on to opine that “the word
‘Hindutva’ is used and understood as a synonym for ‘Indianisation’, i.e.
development of uniform culture by obliterating the differences between all
the cultures co-existing in the country.”122 According to the Court, the terms
Hinduism and Hindutva by themselves did not violate the provisions of the
RPA. “Considering the terms ‘Hinduism’ or ‘Hindutva’ per se as depicting
hostility, enmity or intolerance towards other religious faiths or professions,
proceeds from an improper appreciation and perception of the true meaning
of these expressions emerging from the discussions in earlier authorities of
this Court… It is indeed very unfortunate, if in spite of the liberal and
tolerant features of Hinduism recognized in judicial decisions, these terms
are misused by anyone during the elections to gain any unfair political
advantage.”123 But unfortunately, these terms could be and arguably were
misused in the way specified.
For the Court, the context in which the terms Hinduism and
Hindutva were being used and to what end were very important. Thus
Verma wrote, “It is the kind of use made of these words and the meaning
sought to be conveyed in the speech which has to be seen and unless such a
construction leads to the conclusion that these words were used to appeal for
the votes for a Hindu candidate because he is not a Hindu or not to vote for
a candidate because he is not a Hindu, the mere fact that these words are
used in the speech would not bring it within the prohibition of subsection (3)
or (3A) of Section 123.”124
Though Verma assimilated Hinduism and Hindutva, he was silent on the
antecedents of Hindutva. For example, he did not consider Savarkar and
Golwalkar’s use of sacred soil and race to include some and exclude others
as foreigners. However, the intense debate generated by the Hindutva
judgment brought out some of the important ramifications of the ruling.
Commentators were troubled by the fact that the Court by inferring the
meaning of Hindutva from Hinduism had “obscured the historical
background as well as the contemporary political context”125 of Hindutva. It
was argued that the Court failed to “recognize that Hindutva as an
expression has a special meaning and is associated with the social and
political philosophy of Savarkar and Golwalkar.” 126 It was further pointed
out that the judgment implied that “Hinduism, the religion of the majority of
Indians, comes to reflect the way of life of all Indians.”127
At the other end of the spectrum, the Hindu nationalists were
jubilant. Soon after Prabhoo, an editorial in the Organiser, the journal of the
RSS, stated, “The apex court has fully and unambiguously endorsed the
concept of Hindutva which the [BJP] has been propounding since its
inception.”128 The BJP referred to the judgment in the party’s 1999 election
manifesto: “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 Hinduism as being consistent with the true meaning and definition of
secularism.”
Much of the debate around the Hindutva ruling centred on the
Court’s role in conferring legitimacy on the use of Hindutva in the public
sphere. There was also some discussion on what the judgment, and indeed
legislation like the RPA, meant for the Indian model of secularism. For
instance, Pratap Bhanu Mehta believes that both the Hindu nationalists and
their critics were united in their fear of religion as a “site of destructive
passion.”129 Mehta points out, “It seems that in India both ‘secular’ and
‘non-secular’ share the fear of unregulated religious exchange… and both
have no compunctions in giving the state powers to regulate religious
speech.”130 Taking a different line, Gary Jacobsohn argues that for Verma
secularism means “equal treatment under the law” and that this is more
“consistent with familiar Western norms of liberal democracy.”131 I do not
wish to enter into this debate but rather examine the Court’s conflation of
Hinduism with Hindutva, which was one of the striking aspects of Prabhoo.
In the next section of this paper I look at how it was possible for the Court
to appropriate the ‘inclusivist’ Hinduism of Yagnapurushdasji to justify the
‘exclusivist’ Hinduism as exemplified by Savarkar’s Hindutva.
Hinduism and Hindutva
The conflation of Hinduism with Hindutva in Prabhoo hinged on the crucial
use of the “way of life” metaphor. It is, therefore, appropriate to see how
this metaphor bridges the inclusivist and exclusivist discourses on
Hinduism. As indicated earlier, Radhakrishnan was a key figure in
describing Hinduism as a “way of life” rather than a religion based on
dogma. In Yagnapurushdasji, Gajendragadkar drew on Radhakrishnan’s
writings to describe Hinduism as a “way of life.” It is interesting to note that
around the same time as Yagnapurushdasji, the connection between
Hindutva and a “way of life” was already being made. In a book published
in 1969, Balraj Madhok uses the “way of life” metaphor to put forward the
view that it is “wrong to talk of Hinduism as a religion in the sense in which
Islam and Christianity are religions.” Why is this so? Taking the cue from
Radhakrishnan, Madhok writes, “Hinduism is not a very happy expression
because it creates confusion in the people’s minds about the word Hindu. It
creates the impression of its being a creed or religion, a particular dogma
and form of worship, which it is not. It comprehends (sic) within itself all
the forms of worship prevalent in India which do not interfere with the
worshipper’s loyalty to India, her culture and tradition, history and great
men.”132 While Madhok uses Radhakrishnan’s all-inclusive definition of
Hinduism as a religion without “any dogmatic creed”, he also adds a clause
of “loyalty” to the Hindu rashtra. In a later work, Madhok again takes
recourse to Radhakrishnan to explicitly make a connection between
Hindutva and a “way of life” and also employ Hinduism and Hindutva as
interchangeable categories: “Hinduism or Hindutva represents a specific
way of life and a cultural tradition in which different beliefs and thoughts
have been flourishing and co-existing side by side since the dawn of
history.”133
The shift from the inclusivist to the exclusivist discourse, as executed by
Justice Verma and by Madhok, is possible because at the heart of both the
discourses lies a project to homogenize Hinduism and deprive it of its plural
character. This is quite apparent in Savarkar’s formulation of Hindutva. One
of the fundamental principles of Hindutva was to give it a much broader
scope than Hinduism, which Savarkar saw as religious or spiritual dogma. A
major concern of Savarkar in formulating the concept of Hindutva “was to
avoid the political fall-out of an excessively narrow definition of
Hinduism.”134 As Savarkar writes in Hindutva, “This is Hindudharma – the
conclusion of the conclusions arrived at by harmonizing the detailed
experience of all the schools of religious thought – Vaidik, Sanatani, Jain,
Baudda (sic), Sikha or Devasamji. Each one and every one of these systems
or sects which are the direct descendants and developments of the religious
beliefs, Vaidik and non-Vaidik, that obtained in the land of the saptasindhus
or in the other unrecorded communities in other parts of India in the Vedic
period, belongs to and is an integral part of Hindudharma.”135 Sumit Sarkar
et al point out with regard to Hindutva: “Exclusion, however, goes along
with a supreme internal catholicity. All differences of ritual, belief, and
caste are irrelevant: what matters is not content but origin in (a vaguely and
arbitrarily defined) Bharatvarsha. Monists, monotheists, polytheists and
atheists, Sikhs, Arya Samajists, and advocates of Sanatan Dharma, are all
equally good Hindus for Savarkar.”136
The Indian Constitution and the Hindu Code Bill (which comprises
of four different Acts), too, take an undifferentiated view of Hinduism: it
includes anyone who is not a Muslim, Christian, Parsi or Jew under ‘Hindu’
as a legal category.137 Arvind Sharma notes that the “Indian government,
both in the language of the Indian Constitution adopted in 1950, and
subsequent legislation, has virtually adopted the Hindutva definition of a
Hindu — as one who belongs to any religion of Indian origin.”138 At one
level, it could be argued, that the Court with its inclusive model was merely
reinforcing the Constitutional (and legislative) view of Hinduism. But the
Court — with the Hindutva ruling — goes beyond the Constitutional
stipulation and uses the inclusive model to identify Hinduism (and Hindutva
as well) with “Indianisation” and development of a “uniform culture.”
The Court could make the argument about a “uniform culture”
because there is an implicit case for uniformity and homogenization in the
inclusivist model of Hinduism. Hacker identifies “a peculiar mixture of
doctrinal tolerance and intolerance” as a crucial aspect of neo-Hindu
thought. Thus the inclusivism of the neo-Hindus can be characterized as
appropriation of differences rather than recognition of differences. This
“intolerance” to difference is very much a part of the judicial discourse and
is best captured by Gajendragadkar’s summing up of Yagnapurushdasji: “It
may be conceded that the genesis of the suit is the genuine apprehension
entertained by the appellants, but as often happens in these matters the said
apprehension is founded on superstition, ignorance and complete
misunderstanding of the true teachings of Hindu religion and of the real
significance of the tenets and philosophy taught by Swaminarayan
himself.”139
This aversion to “superstition” and popular practices and a search for
the “true teachings” of Hinduism is an important element in the thinking of
most Hindu reformers starting from Rammohun Roy in the early nineteenth
century. Radhakrishnan unequivocally states, “In the name of toleration we
have carefully protected superstitious rites and customs.”140 Though he
argues that Hinduism’s method of assimilation is “essentially
democratic,”141 there is a hierarchical structure determining the entire
process: “Every God accepted by Hinduism is elevated and ultimately
identified with the central Reality which is one with the deeper self of
man… Hinduism absorbs everything that enters into it, magic or animism,
and raises it to a higher level.”142 The “central reality” of Hinduism is
represented by the Vedas which Radhakrishnan (and indeed many of the
earlier Hindu reformers) believe is the “basis of Hindu religion.” 143 Because
of the Vedic core of Hinduism, Radhakrishnan could assert that “differences
among the sects of Hindus are more or less on the surface” and that the
Hindus “as such remain a distinct cultural unit, with a common history, a
common literature and a common civilization.”144 In a similar vein,
Gajendragadkar finds a “subtle indescribable unity” within the “divergence”
of Hinduism. In the Court’s definition of Hinduism in Yagnapurushdasji,
too, “acceptance of the Vedas” is a key element. The appeal to the Vedas is
convenient because the “Vedic texts contain no Hindu dogma, no basis for a
‘creed’ of Hinduism, no clear guidelines for the ‘Hindu way of life’.”145 It is
precisely the open-endedness of the Vedic texts which make them the
perfect ally of Hindu reformers as well as the Court in their quest to
construct a more homogenized and rational Hinduism.
Conclusion
It can be argued that the convergence of the inclusivist and exclusivist
discourses on interpreting Hinduism as a “way or life” and on the project of
homogenizing Hinduism is a possible explanation for the Court’s conflation
of Hinduism and Hindutva. However, it is also vitally important to note that
this homogenization of Hinduism was inspired by fundamentally different
visions. In the case of Radhakrishnan, regeneration of Hinduism — in his
words placing “the whole Hindu population on a higher spiritual plane”146
— was his primary goal. Similarly Gajendragadkar was interested in
changes in the “whole social and religious outlook of the Hindu
community.”147 In contrast, Savarkar was putting forth a territorial and
racial conception of Hinduism. Religion per se has little connection with
Savarkar’s conception of Hindutva: he was not primarily concerned with
reform of Hinduism but with the political goal of creating a Hindu rashtra
(nation).
Hence, when Justice Verma equated Hinduism with Hindutva he
was not only collapsing the inclusivist and exclusivist models, he was also
giving a highly political dimension to the judicial discourse on Hinduism.148
It has already been observed how Prabhoo was welcomed by the Hindu
nationalists as a vindication of Hindutva. Verma’s additional move of
equating Hindutva with ‘Indianisation’ gave the Court’s seal of approval, in
a sense, to the Hindu nationalists’ conception of the nation. This is clearly
illustrated in the ‘Vision Document’ released by the BJP prior to the last
general elections in India in 2004. Under the sub-heading ‘Cultural
Nationalism’ the document states, “Contrary to what its detractors say, and
as the Supreme Court itself has decreed, Hindutva is not a religious or
exclusivist concept. It is inclusive, integrative, and abhors any kind of
discrimination against any section of the people of India on the basis of their
faith.”149 The BJP, following the Verma judgment, says “Indianness,
Bharatiyata and Hindutva” must be treated as synonyms.150
Madhok’s strategy of using ‘Hindutva’ and ‘Bharatiya’ as
interchangeable categories is now very much the centrepiece of the BJP’s
ideology. The vision document as well as recent speeches and interviews by
Hindu nationalist leaders suggest that the language of inclusivism is being
used to justify Hindutva and an exclusivist agenda. In early 2004, the RSS
chief K.S. Sudarshan referred to Yagnapurushdasji and said since the
Supreme Court had said the term ‘Hindu’ referred to a way of life and not a
religion, Muslims and Christians should be considered as Hindus.151
In a significant blurring of the boundaries of inclusivism and
exclusivism, former Prime Minister Atal Bihari Vajpayee said in an
interview, “Hindus cannot be fundamentalists. The Hindu worldview, we
must remember, is inclusivist, as opposed to the exclusivist worldview of
other faiths.”152 This brings one back to the point about the convergence of
the inclusivist and exclusivist discourses in the Court’s reading of
Hinduism. Thus, the inclusivist discourse on Hinduism, as understood by

FOOTNOTES
1 Ronjoy Sen received his Ph.D. in Political Science in 2005 from the University of
Chicago and was a South Asia Fellow at the East West Center, Washington in 2005. He is
currently Assistant Editor for the Times of India in New Delhi.
2 Article 25 (1) Subject to public order, morality and health and to other provisions of this
Part, all persons are equally entitled to freedom of conscience and the right freely to
profess, practice and propagate religion.
(2) Nothing in this article shall affect the operation of any existing law or prevent the state
from making any law —
(a) regulating or restricting any economic, financial, political or other secular activity which
may be associated with religious practice;
(b) providing for social welfare and reform or the throwing open of Hindu religious
institutions of a public character to all classes of and sections of Hindus.
3 Article 26 states: Subject to public order, morality and health, every religious
denomination or any section thereof shall have the right –
(a) to establish and maintain institutions for religious and charitable purposes;
(b) to manage its own affairs in matters of religion;
(c) to own and acquire movable and immovable property; and
(d) to administer such property in accordance with law.
4 Marc Galanter, Law and Society in Modern India (New Delhi: Oxford University Press,
1997), 247.
5 AIR 1966 SC 1119.
6 R.Y. Prabhoo v. P.K. Kunte, AIR 1996 SC 1113
7 Romila Thapar, “Imagined Religious Communities? Ancient History and the Modern
Search for a Hindu Identity,” Modern Asian Studies 23, 2 (1989), 222.
8 Wilfred Cantwell Smith The Meaning and End of Religion: A New Approach to the
Religious Traditions of Mankind (New York: Macmillan, 1962), 30.
9 The Oxford English dictionary traces the first use of the term ‘Hindooism’ to 1829 in the
Bengalee and also to an 1858 usage by Indologist Max Mueller. See Richard King,
“Orientalism and Modern Myth of “Hinduism”’, Numen, vol. 46 (1999), 165. See also John
Stratton Hawley, “Hinduism and the Fate of India,” Wilson Quarterly (Summer 1991).
RONOJOY SEN


11 Heinrich von Stietencorn, “Hinduism: On the Proper Use of a Deceptive Term,” in
Sontheimer and Kulke (1991), 13.
12 Percival Spear, cited in Ronald Inden, Imagining India (Bloomington: Indiana University
Press, 2000), 85.
13 Arvind Sharma, “On Hindu, Hindustan, Hinduism and Hindutva,” Numen, Vol. 49
(2002), 7.
14 Thapar (1989), 216.
15 Ibid., 216.
16 See Inden (2000), chapter 3, for the use of metaphors by Europeans to describe
Hinduism.
17 P.J. Marshall, “Introduction,” in Marshall ed., The British Discovery of Hinduism in the
Eighteenth Century (Cambridge: Cambridge University Press, 1970), 20.
18 King (1999), 166.
19 Bruce Carlisle Robertson ed., The Essential Writings of Raja Rammohun Roy (Delhi:
Oxford University Press, 1999), 3.
20 Ibid., 36-37.
21 Ashis Nandy, Shikha Trivedy, Shail Mayaram, Achut Yagnik, Creating a Nationality:
The Ramjanambhumi Movement and Fear of the Self (Delhi: Oxford University Press,
2002), 58.
22 Arvind Sharma, “What is Hinduism?” in Arvind Sharma ed., The Study of Hinduism
(Columbia: University of South Carolina Press, 2003), 1-2.
23 Radhakrishnan taught Eastern religion and ethics at Oxford from 1936-52. He also held
teaching and administrative positions at Calcutta University, Mysore University and
Benaras Hindu University.
24 Francois Bernier, Travels in the Mogul Empire 1656-1668 (New Delhi: Oriental Reprint,
1983).
25 Sir Monier Monier-Williams was in 1860 elected the Boden Professor of Sanskrit at
Oxford edging out Max Mueller to the prestigious post. One of Monier-William’s major
achievements was the establishment of the Indian Institute at Oxford.
26 Monier Monier-Williams, Religious Thought and Life in India (New Delhi: Oriental
Books Reprint Corp, 1974), 6.
27 Ibid., 57.
28 Hacker, cited in Wilhelm Halbfass, India and Europe: An Essay in Understanding
(Albany: SUNY Press, 1988), 404-5. The original essay in German appears in Hacker,
“Inklusivismus,” in G. Oberhammer ed., Eine Indische Denkform (Vienna: 1983).
29 Halbfass (1988), 405.
30 See Ibid., 408-409, and Robert N. Minor, “Sarvepalli Radhakrishnan and ‘Hinduism’:
Defined and Defended,” in Robert Baird ed., Religion in Modern India (Delhi: Manohar,
1991).
31 Swami Vivekananda, The Collected Works of Swami Vivekananda I (Calcutta: Advaita
Ashrama, 1973), 1.
32 Vivekananda (1973), Collected Works III, 251-52.
33 Vivekananda (1973), Collected Works I, 6.
34 Vivekananda (1973), Collected Works III, 250.
35 Ibid., 275.
36 Ibid., 279-80.
37 Ibid., 372.
38 Tapan Raychaudhuri, “Swami Vivekananda’s Construction of Hinduism,” in William
Radice ed., Swami Vivekananda and the Modernization of Hinduism (Delhi: Oxford
University Press, 1998), 12.
39 Vivekananda (1973), Collected Works III, 279.
40 S. Radhakrishnan, The Hindu View of Life (New York: Macmillan, 1957), 77.
Radhakrishnan makes a similar statement in the same series of lectures: “While fixed
intellectual beliefs mark off one religion from another, Hinduism sets itself no such limits.
Intellect is subordinated to intuition, dogma to experience, outer expression to inward
realisation. Religion is not the acceptance of academic abstraction or the celebration of
ceremonies, but a kind of life or experience (italics added).” Radhakrishnan (1957), 15.
41 Ibid., 77.
42 Ibid., 12.
43 Ibid., 12-13.
44 Ibid., 20. 45 Ibid., 22.
46 Ibid., 23.
47 Ibid., 54.
48 Hacker, cited in Halbfass (1988), 220.
49 For instance there are some like Ashis Nandy who believe that Dayanand, Chattopadhyay
and Vivekananda had similar world views. See Ashis Nandy, The Intimate Enemy: Loss
and Recovery of Self Under Colonialism (New Delhi: Oxford University Press, 1992), 22-
26. However, there are other scholars who believe that figures such as Vivekananda and
Dayanand had fundamentally different ideas on Hinduism. See, for example, Shamita Basu,
Religious Revivalism as Nationalist Discourse: Swami Vivekananda and New Hinduism in
Nineteenth Century Bengal (New Delhi: Oxford University Press, 2002), 127: “The Swami
[Vivekananda] wanted to advocate a form of Hinduism that was a far cry from the parochial
version of the religion which the orthodox Hindu leadership wanted to popularize.
Vivekananda followed the model of the Reformation in depoliticizing Hinduism, confining
in a Lutheran manner the spiritual to the private sphere of life.”
50 See, for example, Partha Chatterjee, Nationalist Thought and the Colonial World
(Minneapolis: University of Minnesota Press, 1993) and Sudipta Kaviraj, The Unhappy
Consciousness: Bankimchandra Chattopadhyay and the Formation of Nationalist
Discourse in India (New Delhi: Oxford University Press, 1998).
51 See Tanika Sarkar, “Imagining Hindurashtra: The Hindu and the Muslim in Bankim
Chandra’s Writings,” in David Ludden ed., Contesting the Nation: Religion, Community,
and the Politics of Democracy in India (Philadelphia: University of Pennsylvania Press,
1996).
52 Nandy (1992), 24.
53 Daniel Gold, “Organized Hinduism: From Vedic Truth to Hindu Nation,” in Martin
Marty and R.S. Appleby eds., Fundamentalisms Observed (Chicago: University of Chicago
Press, 1991), 534.
54 For Dayanand’s relationship to the Vedas see Arvind Sharma, “Swami Dayananda
Sarasvati and Vedic Authority,” in Baird (1991). See also Kenneth W. Jones, Arya Dharm:
Hindu Consciousness in Nineteenth-Century Punjab (Berkeley: University of California
Press, 1976).
55 J.T.F. Jordens, Dayananda Saraswati: His Life and Ideas (Delhi: Oxford University
Press, 1978), 279.
56 There are two editions of the Satyarth Prakash – the first edition appeared in 1875 and
the second one was composed in the final years of Dayanand’s life. Jordens points out that
the second edition was more political and anti-British in tone.
57 Savarkar was released from prison in 1924 and subsequently became the president of the
Hindu Mahasabha from 1937-1943. Later, he was linked to Mahatma Gandhi’s assassins,
Nathuram Godse and Narayan Apte, but the charges against him were never proved.
58 Nandy et al (2002), 67.
59 V.D. Savarkar, Hindutva: Who is a Hindu? (Bombay: Veer Savarkar Prakashan. 1969),
10.
60 Nandy et al (2002), 67.
61 Savarkar (1969), 110.
62 Ibid., 111.
63 Ibid., 113.
64 Ibid., 4
65 Ibid., 3-4.
66 Chetan Bhatt, Hindu Nationalism: Origins, Ideologies and Modern Myths (Oxford and
New York: Berg, 2001), 85.
67 For details about the RSS see Walter Anderson and S. Damle, Brotherhood in Saffron
(Boulder: Westview Press, 1987) and Tapan Basu, Pradip Datta, Sumit Sarkar, Tanika
Sarkar, Sambuddha Sen, Khaki Shorts and Saffron Flags: A Critique of the Hindu Right
(New Delhi: Orient Longman, 1993), ch. 2.
68 M.S. Golwalkar, We or Our Nationhood Defined (Nagpur: Bharat Prakashan, 1947), 13
69 Ibid., 52.
70 Ibid., 55-56.
71 Ibid., 43.
72 Madhok, a former president of Jan Sangh, quit the party in 1973 after a bitter power
struggle.
73 For a history of the Jan Sangh, see Bruce Graham, Hindu Nationalism and Indian
Politics: The Origins and Develop Ibid.,1134.
74 Balraj Madhok, Indian Nationalism (New Delhi: Bharatiya Sahitya Sadan, 1969), 96.
75 Ibid., 96.
76 Sharma (2002), 24.
77 AIR 1966 SC 1119. For a close reading of the case see Galanter (1997), ch. 10.
78 Yagnapurushdasji at 1121.
80 Ibid., 1127.
81 Ibid., 1128.
82 Ibid., 1128.
83 Yagnapurushdasji at 1130.
84 Galanter (1997), 247.
85 Venkatramana Devaru v. State of Mysore, AIR 1958 SC 255.
86 Robert D. Baird, “On Defining ‘Hinduism’ as a Religious and Legal Category,” in Baird
ed., Religion and Law in Independent India (New Delhi: Manohar, 1993), 50.
87 Yagnapurushdasji at 1128.
88 Ibid, 1128.
89 Ibid., 1128. 90 Ibid., 1129.
91 Ibid., 1129.
92 Ibid., 1130.
93 Ibid. 1131.
94 AIR 1975 SC 423.
95 Shuganchand v. Prakash Chand, AIR 1967 SC 506.
96 Guramma v. Mallappa, AIR 1964 SC 520.
97 D.A.V. College, Batinda v. State of Punjab, AIR 1971 SC 1731.
98 Bramchari Sidheshwar Shai v. State of West Bengal, AIR 1995 SC 2089.
99 For an analysis of how the Calcutta High Court dealt with the case, see Brian K. Smith,
“How Not to be a Hindu: The Case of the Ramakrishna Mission,” in Baird (1993).
100 Article 30 reads: (1) All minorities, whether based on religion or language, shall have
the right to establish and administer educational institutions of their choice.
(2) The State shall not, in granting aid to educational institutions, discriminate against any
educational institution on the ground that it is under the management of a minority, whether
based on religion or language.
101 2 Calcutta L.J. (1983), 348
102 Cited in Smith (1993), 342.
103 Ibid., 342.
104 1 Calcutta L.J. (1986), 151.
105 2 Calcutta L.J. 348.
106 Ibid., 337.
107 Ibid., 394.
108 Baird (1993), 58.
109 Bramchari at 2099.
110 Bramchari at 2103.
111 Bramchari at 2107.
112 Section 123(3) of the RPA says: “The appeal by a candidate or his agent or by any other
person with the consent of a candidate or his election agent to vote or refrain from voting
for any person on the ground of his religion, race, caste, community or language or the use
of, or appeal to religious symbols or the use of, or appeal to, national symbols, such as the
national flag or the national emblem, for the furtherance of the prospects of the election of
that candidate or for prejudicially affecting the election of any candidate.”
113 See Barbara Cossman and Ratna Kapur, Secularism’s Last Sigh? Hindutva and the
(Mis)Rule of Law (New Delhi: Oxford University Press, 1999), chapter 2, for details on the
Hindutva cases.
114 Prabhoo at 1124.
115 Ibid., 1124.
116 Some of Thackeray’s speeches, which were quoted by the Court, included passages like:
“We are fighting this election for the protection of Hinduism. Therefore, we do not care for
the votes of Muslims. The country belongs to Hindus and will remain so.”
117 In contrast, in another of the Hindutva cases, then Maharashtra chief minister Manohar
Joshi was found not guilty for declaring in a public speech that the “first Hindu state will be
established in Maharashtra.” The Court ruled: “In our opinion, a mere statement that the
first Hindu state will be established in Maharashtra is by itself not an appeal for votes on
the grounds of his religion but the expression, at best, of such a hope.”
118 Commissioner of Wealth Tax, Madras v. Late R. Stridharan by L.R.s, (1976) Supp SCR
478. Here the Court said: “It is a matter of common knowledge that Hinduism embraces
within self [sic] so many diverse forms of beliefs, faiths, practices and worship it is difficult
to define the term ‘Hindu’ with precision.”
119 Prabhoo at 1130.
120 Ibid., 1129.
121 Maulana Wahiuddin Khan, Indian Muslims: The Need for a Positive Outlook (New
Delhi: 1994). The exact quote was: “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.” However Cossman and Kapur point out that it is
a cause of concern that the quoted passage is a description of the strategy of the Jana Sangh,
which is something that the Court does not mention or seems to be bothered about. See also
A.G. Noorani, Savarkar and Hindutva: The Godse Connection (New Delhi: LeftWord
Books, 2002), 74. Noorani writes that the Maulana was not writing in praise of Hindutva
but censuring it.
122 Prabhoo at 1130.
123 Prabhoo at 1131.
124 Ibid., 1131-2.
125 Cossman and Kapur (1999), 34.
126 Anil Nauriya, “The Hindutva Judgements: A Warning Signal,” Economic and Political
Weekly, 10, January (1996), 11.
127 Cossman and Kapur (1999), 33.
128 Organiser, Editorial, December 24 (1996)
129 Pratap Bhanu Mehta, “Passion and Constraint,” Seminar, 521, January (2003), 57.
130 Ibid., 57.
131 Gary Jeffrey Jacobsohn, The Wheel of Law: India’s Secularism in Comparative
Constitutional Context (New Delhi: Oxford University Press, 2003), 208. It must be noted
that Jacobsohn is commenting on Verma’s entire record in the Supreme Court, which
included the Ayodhya and Bommai judgments.
132 Madhok (1969), 95.
133 Madhok, Rationale of Hindu State (Delhi: Indian Book Gallery, 1982), 8.
134 Sharma (2002), 22.
135 Savarkar (1969), 108-9.
136 Sarkar et al (1993), 9.
137 Explanation II appended to Article 25 includes Sikhs Jains and Buddhists as Hindus.
The Hindu Succession Act of 1956, for instance, applies to: (a) to any 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, Prathana or Arya Samaj.
(b) to any person who is a Buddhist, Jain or Sikh by religion; and
(c) to any other person 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
other 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.
On this point also see Baird (1993), 43-44.
138 Sharma (2002), 24.
139 Yagnapurushdasji at1135.
140 Radhakrishnan (1957), 33.
141 Ibid.,42.
142 Ibid., 46.
143 Radhakrishnan, Religion and Society (London: Allen and Unwin, 1947), 109.
144 Radhakrishnan (1957), 14.
145 Wilhelm Halbfass, Tradition and Reflection Explorations in Indian Thought (Albany:
SUNY Press, 1991), 1. It is interesting to note that Max Weber believed that the “Vedas
defy the dharma of Hinduism.” Cited in Halbfass (1991), 1.
146 Radhakrishnan (1957), 33.
147 Yagnapurushdasji at 1135.
148 In an interview with the author in July 2004, Justice Verma refused to see Prabhoo as
crucial to the understanding of Hinduism or Hindutva. He preferred to view it as revolving
around “freedom of speech and expression.” See Jacobsohn (2003), 202-12, for Verma’s
views.
149 For the full text of the document see www.bjp.org.
150 See www.bjp.org. It was former Prime Minister A.B. Vajpayee who resurrected
Madhok’s idea at the end of 2002 during his annual ‘musings’. This was widely reported by
most major dailies in India. Senior BJP leader L.K. Advani stressed this point in a recent
interview to BBC when he said he preferred ‘Bharatiyata’ to ‘Hindutva.’ The Pioneer,
September 10, 2004.
151 The Times of India (Kolkata edition), January 25, 2004.
152 See www.bjp.org. The interview was conducted before the 2004 general elections.