The Gita as India's National Book?: Bizarre JudgmentBacks Hindutva's Assault on Indian Constitution

The American Muslim, 17 September 2007

By Gautam Kumar

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

While Srivastava is entitled to hold his own views on
the veracity or otherwise of the Gita in his personal
capacity, surely it is not in his right to define
ultimate religious truth for others in his capacity as
a judge. By pronouncing that the Gita 'is a guiding
force for all the religions', he makes a clearly
unwarranted claim, for he is no divinely-guided
prophet to dictate how other religions should be
'guided'. His announcement that 'The true
essence of all the religions in world (sic.) are echos
(sic.) of Geeta' is equally ridiculous, reflecting
the deeply-entrenched Brahminical ethos that seeks to
reduce all other religions to its alleged derivatives.

Srivastava retired five days after delivering his
absurd judgment, but that is not likely to be the end
of this sordid story. Clearly, his judgment might well
serve as an incentive or precedent to other
similarly-minded judges to pass similarly outrageous
decrees in the future. In the name of defending the
Constitution, clearly Srivastava has undermined it,
making a complete mockery of its commitment to
secularism, social justice and equality for all Indian
citizens.
===================================================

This article is based on the uncertified copy of
Srivastava's judgment hosted on the Allahabad High
Court's website. For details, see
http://www.allahabadhighcourt.in/ejurix/servlet/WebViewJudgement?casetype=WRIC&caseno=56447&year=2003&judgementdate=30/08/2007