3.1. Hindu law
India’s Constitution does not give a definition of the term Hindu, but it does define to whom the “Hindu Law” applies. It has to do this because in spite of its pretence to secularism, the Indian Constitution allows Muslims, Christians and Parsis a separate Personal Law. In a way, this separate treatment of different communities merely continues the communal autonomy of castes and sects accepted in pre-modern Hindu states, but it exposes the credibility deficit of Indian secularism. At any rate, the situation is that Personal Law is divided on the basis of religion, and that one of the legal subsystems is called Hindu Law.
Article 25 (2)(b) of the Constitution stipulates that “the reference to Hindus shall be construed as including a reference to persons professing the Sikh, Jain or Buddhist religion”.1 The Hindu Marriage Act of 1955 goes in greater detail to define this “legal Hindu”, by stipulating in Section 2 that the Act applies:
“(a) to any person who is a Hindu by religion in any of its forms and developments, including a Virashaiva, a Lingayat or a follower of the Brahmo, Prarthana or Arya Samaj,
“(b) to any person who is a Buddhist, Jain or Sikh by religion, and
“(c) to any other person domiciled in the territories to which this Act extends who is not a Muslim, Christian, Parsi or Jew by religion”.2
This definition of the “legal Hindu”, though explicitly not equating him with the “Hindu by religion”, is exactly coterminous with the original Islamic use of the term Hindu: all Indian Pagans are legally Hindus. The Buddhists, Jains and Sikhs are explicitly included in the “Hindus by law” but separated from the “Hindus by religion”: at this point, the law follows the usage established by Western scholars, contrary to the original usage.
Note that the changes in Hindu Law imposed by an Act of Parliament (on top of the very existence of separate Hindu and Muslim Law regimes) constitute a further measure of communal inequality. The secular government would not dare to touch the other religion-based law systems, as has repeatedly been shown in the past decades regarding items of Christian and Muslim Personal Law. An interference in Hindu Law by a national legislative body only makes sense in an avowedly Hindu state; in a sense, therefore, the Hindu Marriage Act constitutes an admission by Jawaharlal Nehru that ultimately India is a Hindu state.
Separatist Sikhs have at times criticized the inclusion of the Sikhs in the “legal Hindu” category. When Law Minister Dr. Bhimrao Ambedkar first introduced the Hindu Code Bill in 1951, Sikh spokesman Sardar Hukum Singh regarded the Bill as “a dubious attempt on the part of the Hindus to absorb the Sikhs”. Dr. Ambedkar replied: “The application of the Hindu Code to Sikhs, Buddhists and Jains was a historical development and it would be too late, sociologically, to object to it. When the Buddha differed from the Vedic Brahmins, he did so only in matters of creed, but left the Hindu legal framework intact. He did not propound a separate law for his followers. The same was the case with Mahavir and the ten Sikh gurus. The Privy Council had as early as 1830 laid down that the Sikhs were governed by the Hindu law.”3
This at once explains why Ambedkar’s neo-Buddhist followers have not objected to their inclusion in the “legal Hindu” category. On the contrary, this inclusion later served to justify their inclusion in reservation schemes and other benefits for Hindu ex-Untouchables: as Untouchability was a problem of Hindu society, it was reasonable that special benefits for this section of Hindu society only apply to ex-Untouchable members of the Hindu, or at least the “legal Hindu” category.
When the Ramakrishna Mission went to court to have itself declared a non-Hindu minority (in order to escape the legal anti-Hindu discriminations esp. in education), it claimed that its members could legally still be treated as Hindus in matters of marriage and inheritance, even while being recognized as non-Hindus in the religious sense.4 in effect, the Ramakrishnaites wanted to have the same status as Sikhs and Buddhists: legal recognition as “legal Hindus and religious non-Hindus”. They rightly understood that the law has created a category of semi-Hindus who have no separate traditions of personal law but have nevertheless a separate religious identity entitling them to the privileges accorded to the minorities.
The Indian laws make a distinction between what we may call the “Hindu in the broad sense”, to whom Hindu Law applies, and who is coterminous with the Hindu of Persian-Islamic usage, viz. every Indian Pagan; and the “Hindu in the narrow sense”, a category which may not include Buddhism and Sikhism. Though the law does not mention them, the tribal traditions are also taken to fall partly (except for a measure of accomplished sanskritization) outside this narrow category. Of course, the claims by different groups of belonging to this broad-Hindu but non-narrow-Hindu category should be considered separately and on their own merits, e.g. Buddhism’s claim to a distinct identity does not imply an endorsement of Sikhism’s claim to the same. The debate over whether certain communities come under the definition of Hinduism is largely a debate over whether it is the narrow or the broad definition that should be considered as the “true” definition.
3.3. The Scheduled Castes
A contentious point, esp. since the institution and expansion of caste-based reservation schemes, is the religious factor in defining the Scheduled Castes, the former Untouchables. The legal situation is as follows: “The Constitution (Scheduled Castes) Order 1950 said in so many words that a non-Hindu could never be a Scheduled Caste (even if belonging to a particular caste included in the official list of Scheduled Castes). By an amendment introduced in 1956, it was provided that only a Hindu or a Sikh could be a Scheduled Caste. The Scheduled Caste law is, thus, clearly religion-based and its religious basis has generated abundant case law. The Supreme Court has held that a Scheduled Caste Hindu on ceasing to be a Hindu also ceases to be a Scheduled Caste and, should he ever reconvert to Hinduism, he will also regain forthwith the Scheduled Caste status.”5
Meanwhile, Buddhists have also been explicitly included (and had already been implicitly treated) as belonging to the Hindu category in this regard, i.e. entitled to Scheduled Caste status if belonging to such a caste. Jains need no mention here, as they belong to the Vaishya upper castes; but the rare Scheduled Caste convert to Jainism would likewise remain entitled to benefits earmarked for the Scheduled Castes.
In contemporary anti-Hindu polemic, chiefly by Christian missionaries, and here by the Muslim chairman of the Minorities’ Commission (an intrinsically anti-Hindu institution), it is frequently claimed that: “This law has been clearly designed with the object of preventing low caste Hindus, even if disgruntled with religion-based social inequalities, from converting to Christianity or Islam.”6
If this seems plausible, and is hence repeated faithfully in most Western publications, it is nonetheless untrue. The Government of India Act (1935), enacted by the British who had other concerns, already excluded Christian converts from the Scheduled Castes category.7 This was done after consultation with the missionaries, who were honest enough to acknowledge this as the obvious implication of their own boast that conversion brought freedom from caste disabilities. As long as Christians and Muslims propagate the notion that their own religion is egalitarian and caste-free, it is only logical that converts have to give up their Scheduled Caste status.
Today, all while propagating the necessary connection between Hinduism and caste disabilities, the Churches are clamouring for the recognition of their SC converts as “Dalit Christians”. If they haven’t had their way so far, it is mainly due to the opposition not from the Hindutva forces but from the neo-Buddhists and the legitimate Scheduled Castes themselves. At the time of writing, the legal position remains that only followers of Indic religions are classified by caste, with the concomitant legal benefits in case of low castes.
3.4. The Scheduled Tribes
The Scheduled Tribes as such are not mentioned in the context of defining the borders of the Hindu community, for “tribal” is only recognized in law as a sociological rather than a religious category. A Christian tribal is consequently still entitled to all the special privileges of Scheduled Tribe status. Or to put it in Tahir Mahmood’s partisan language:
“The law on Scheduled Tribes is, on the contrary, wholly free from religious shackles. The ‘No non-Hindu please’ clause of the Constitution (Scheduled Castes) Order 1950 has no parallel in the Constitution (Scheduled Tribe) Order 1950. Nor is there any judicial decision saying that all Scheduled Tribes are born Hindus. Any change of religion on the part of a member of a Scheduled Tribe does not legally alter his or her Scheduled Tribe status. The modem Hindu code of 1955-56 does not apply to Scheduled Tribes. (…) In respect of several tribal communities there have been judicial decisions specifically affirming that the four Hindu law enactments of 1955-56 do not extend to the Scheduled Tribes.”8
This means, for example, that customary marriage systems including polygamy (abolished in the Hindu Marriage Act) are condoned in the case of tribals. There is undeniably a contradiction here, for the Hindu Marriage Act had defined the legal Hindu as including (apart from Hindus in the narrow sense, Buddhists, Jains and Sikhs) “any other person domiciled in the territories to which this Act extends who is not a Muslim, Christian, Parsi or Jew by religion”. In spite of that definition, Indian law in general treats tribals as non-Hindus.
The 1991 census also separated
tribal religion from Hinduism. It divided the population into eight
different categories: Hindus, Muslim, Christians,
Sikhs, Buddhists, Jains, “Other Religions and Persuasions”, and “Religion
non stated”. In appendix, the “other religions and persuasions” are
detailed, and about 60 tribal religions are specified.9
The prevalent academic and mediatic dicourse takes this line further, e.g.
by redefining the sanskritization of the tribals (the gradual adoption
of elements of Sanskritic civilization, which has been a natural and ongoing
process since many centuries) as “conversion to Hinduism”, on the same
footing as “conversion to Christianity”; and by describing Hindu social
activists working in tribal areas as a kind of missionaries, outsiders
propagating a religion that is quite foreign to the tribals. So,
against the historical definition of “Hindu” which includes all Indian
Pagans, and against the specific definition in the Hindu Marriage Act,
which is coterminous with the historical definition, official India treats
tribal religions as separate from Hinduism.
2Discussed in detail in Paras Diwan: Modern Hindu Law, Ch.1. The Prarthana Samaj was a 19th-century reform movement, the Maharashtrian counterpart of the Brahmo Samaj.
3D. Keer: Ambedkar, p.427, with reference to Times of India, 7-2-1951.
4About this claim of the Ramakrishna Mission, see below, Ch.6, as well as M.D. McLean: “Are Ramakrishnaites Hindus? Some implications of recent litigation on the question”, in South Asia, vol. 14, no. 2 (1991); and see also Ram Swarup: Ramakrishna Mission in Search of a New Identity, as well as his exchange of arguments with Ram Narayan in Indian Express on 19/20-9-1990 and 15/16-11-1990.
5Tahir Mahmood: “Are all Trials Hindus?”, Hindustan Times, 28-1-1999.
6Tahir Mahmood: “Are all tribals Hindus?”, Hindustan Times, 28-1-1999.
7For more detail on how Christian converts came to be excluded from the SC category, vide K. Elst: Decolonizing the Hindu Mind, p.555-558.
8Tahir Mahmood: “Are all tribals Hindus?”, Hindustan Times, 28-1-1999.
9Tahir Mahmood: “Are all tribals Hindus?”, Hindustan Times, 28-1-1999.