Monday, 29 October 2012

My brief note of rebuttal to writer / publisher S. Anand's (Anand Navayana's) untenable rejoinder to my critique :


S. Anand quite conveniently, expediently and incredibly disowns the headline and blurb of the article he wrote and reported under the title “Dalits in reverse”, but he did nothing at the time or subsequently to ensure the publication of his disagreement with the headline, blurb or the premise of his report titled “Dalits in reverse”. But it is not just the title and the blurb of the report titled “Dalits in reverse”, but the report’s content of a series of reported statements attributed to a varied assortment of Brahmin individuals in order to give the false impression that Brahmins are being persecuted (like “Dalits” as the title  suggested). It was not just the title and the blurb, but the thrust of the entire report that uses a series of quotes from Brahmins of various walks of life to falsely claim that Brahmins are a persecuted lot. Contrary to S. Anand’s untenable claims, he has not “exposed”, condemned or critiqued Ashokamitran’s false claim of persecution of Brahmins like the Jews in the 1930s (in his report “We are like the Jews”) or his other Brahmin interviewees’ false claims of persecution on account of their Brahmin caste (in his report “Dalits in reverse”) since there is nothing in his aforementioned two reports to suggest that S.Anand condemned or critiqued the false claims of persecution made by Ashoka Mitran and an assortment of Brahmin interviewees on account of their Brahmin caste. Thus it is obvious that there was no gross misrepresentation on my part with regards to S. Anand’s reports titled “Dalits in reverse” and “We are like the Jews” since S. Anand simply denies that he ever wrote the title or the blurb of his report to untenably counter my critique nor does he deny that his aforementioned two reports sensationally showcased comments of Brahmin interviewees making false claims of persecution on account of their Brahmin caste. Contrary to S. Anand’s claims, his aforementioned two reports were not expressions of mocking some Tamil Brahmins for imagining that the tsunami was a result of the arrest of a Brahmin pontiff (Jayendra Sarwaswathi) nor was it a comedic treatise of the amusement S. Anand felt at Tamil Brahmins going into a sulk at the arrest of a Brahmin pontiff. There are no statements in his aforementioned two reports to suggest that S.Anand mocked or condemned the false claims of persecution made by his Brahmin interviewees on account of their Brahmin caste nor has S. Anand expressed his bemusement or disagreement towards the various false claims of persecution made by his Brahmin interviewees in these two aforementioned reports. These two journalistic reports of S. Anand were serious and pre-meditated journalistic reporting that used selective quotes of selected Brahmin interviewees who were selectively interviewed to feed the lie that Brahmins are being persecuted like Dalits and Jews in the 1930s as an apologia to Brahmin supremacy and to falsely portray the socially privileged supremacist class of Brahmins as a persecuted lot to an unsuspecting global readership in order to absolve Brahmins of any role in the social ills of the nation and society surrounding them. Moreover, the aforementioned two reports of S. Anand are based on interviews of an assortment of Brahmin individuals with the singular aim of getting the Brahmin interviewees to make various false claims of persecution of Brahmins and not for any other purpose. I never wrote that S. Anand has not filed other investigative reports regarding the criminal charges and other allegations against the Brahmin Pontiff Jayendra Saraswathi and the Mutt headed by the latter. I clearly mentioned in my original article rebutting S. Anand’s critique of Aamir Khan’s programme on untouchability that I was referring to the reportage of S. Anand by way of citing two of his aforementioned specific reports, and hence S. Anand’s claim that he was reporting what others (such as Ashoka Mitran) said and his claim of filing several other investigative reports on the criminal charges faced by the Brahmin Pontiff Jayendra Saraswathi does not justify or excuse the aforementioned two reports aimed at falsely portraying that Brahmins are a persecuted lot by selectively quoting a selected assortment of Brahmins, to the extent of ridiculously and delusionally claiming that Brahmins are being persecuted like Dalits and Jews in the 1930s. Kindly await my detailed and analytical refutation of S. Anand's rejoinder. 

Thursday, 18 October 2012

Why Dalits opposed a cartoon lampooning Dr.Ambedkar in a school text book - a perspective of a Dalit writer / journalist.


Why Dalits opposed a cartoon lampooning Dr.Ambedkar in a school text book - a perspective of a Dalit writer / journalist.

Written by Dr. Iniyan Elango, Correspondent; “Dalit Murasu” magazine.  

Most media perspectives and opinions on the controversy regarding the inclusion of a cartoon lampooning Dr.Ambedkar in a NCERT text book have been totally oblivious to the daily socially occurring reality of lampooning or defacing Dr.Ambedkar’s imagery as a bigoted act of oppression, stigmatization and humiliation heaped on Dalits.

In a period of nationwide Dalit resurgence, perpetration of vandalism and defacement on Dr. Ambedkar’s statutes and images is one of the most common and heinous ways by which caste Hindu bigots express their collective bigotry and hatred on Dalits. Thus, a caricature of a leader such as “Pandit” (Brahmin) Nehru holding a whip while standing beside a cartoon of Dr. Ambedkar with the latter depicted in a subordinate position to Nehru, which has been re-published in a text book six decades after its original publication - would only be seen as an act to hurt Dalit sensibilities at best and as an outright act of humiliating Dalits at worst. People who harp on freedom of expression fail to notice or ignore the bigoted tradition of defacing, vandalising or humiliating images and statutes of Dr.Ambedkar as an act of collective hatred, untouchability and bigotry against Dalits. Thus, if a caricature of Dr. Ambedkar such as the one that was published in a NCERT text book was drawn in the walls of a village or town, it would have been only perceived as an act of bigoted hatred and untouchability aimed at humiliating and oppressing Dalits, and would have led to caste violence. Why would the so called academics expect the situation to be any different if the same cartoon is published in a text book is beyond the cognition of those who have seen and experienced the subjective anger felt by most Dalits due to the humiliation, defacement and vandalism heaped on Dr. Ambedkar’s imagery as an act of collective hatred, violence and oppression against Dalits.

The fact that most high school students and college students of caste Hindu background are brought up on a heavy diet of bigotry and hatred against Dalits and the Dalit icon Dr. B.R. Ambedkar is evident from past instances such as the mass murderous violence unleashed by caste Hindu students against Dalit students in Maharashtra state in order to prevent the naming of the Marathwada university after Dr.B.R.Ambedkar which left dozens of Dalit students dead! In such a situation of rampant anti-Dalit and anti-Ambedkar bigotry amongst caste Hindu students, and given the total lack of curricular lessons advocating against the social realities of the bigoted and vertically graded caste system and untouchability practices for school students, and the total exclusion of Dr. Ambedkar’s writings against caste bigotry, untouchability and Hindu religion  from school curricula, and a total absence of a positive biographical account of Dr. Ambedkar’s academic, political, social and constitutional achievements in school text books, teaching students a prejudiced and biased cartoon that falsely portrays Dr. Ambedkar as an inefficient and ill treated subordinate to Nehru while the latter is illustrated as holding a whip besides Dr. Ambedkar, will only reinforce prejudiced stereotypes and bigoted perceptions of Dr. Ambedkar that is held by caste Hindu youth, and will only serve as a bigoted tool of humiliating and degrading Dr. Ambedkar’s image as an expression of hatred, humiliation and untouchability against Dalits. 

Why would anyone include a cartoon depicting Dr. Ambedkar in a negative and humiliating light in a school text book given the aforementioned bigoted social realities is something that is asked by all conscious and informed Dalits.  After all, political cartoons criticizing Hindu extremist fanaticism, Hindu religion, untouchability, Brahmin caste supremacy, caste bigotry or the caste system is not included in the school curricula for political science or sociology subjects and no cartoon lampooning Hindu superstitions, Hindu Godmen or Hindu Gods would be included in a text book. Certainly, no one would dare suggest that M.F.Hussain’s illustrations of Hindu Gods and Goddesses opposed by Hindutva fanatics should adorn a text book in the name of freedom of expression and “critical pedagogy”!

Freedom of expression is no justification to include bigoted cartoons that serve to perpetrate hatred, bigotry and humiliation against Dalits in a school text book through defacement or lampooning of Dr. Ambedkar’s imagery. This is why most Dalits oppose the teaching of a cartoon that lampoons Dr. Ambedkar by depicting him in the receiving end of a whip lashing caricature of Nehru – in a text book. Those who don’t see this point are ignorant or oblivious to the daily subjective realities of hatred and violence perpetrated on Dalits by way of defacing, vandalising and humiliating Dr. Ambedkar’s images and statutes! What seems humorous freedom of expression for the elitist pedagogues far removed from the oppressive social realities of Dalits is indeed hateful and bigoted defacement, humiliation and degradation of a Dalit icon’s image as an expression of murderous oppression and evil caste bigotry collectively strewn on Dalits!

I am sure that South Africans will not include a school lesson containing a cartoon lampooning Nelson Mandela as an inefficient subordinate beside a whip lashing caricature of a white Afrikaner leader! Then why would Indians want a school text book to carry a cartoon lampooning Babasaheb Dr. Ambedkar by falsely accusing him of being responsible for the alleged slow drafting of the Indian constitution and caricaturising him as an ill treated subordinate to a whip holding caricature of a caste Hindu and Brahmin leader such as Nehru which only reinforces bigoted stereotypes against Dalits and Dr. Ambedkar amongst misinformed, non-informed and prejudiced caste Hindu youth? 

The cartoon incorrectly claims that it took an unduly long time to draft the constitution and unfairly holds Dr. Ambedkar responsible for the allegedly slow drafting of the constitution by depicting Dr. Ambedkar as a rider on a snail with the snail figuratively representing the allegedly slow drafting process of the constitution. In addition, the cartoon depicts a whip wielding Nehru who is shown as standing besides Dr. Ambedkar riding a snail, with the snail metaphorically representing the allegedly slow drafting process of the constitution. This by itself is a historically false picture that humiliates and insults Dr. Ambedkar. There was no undue delay in the drafting of the Indian constitution. It is only natural that sufficient time should be taken by the constituent assembly to deliberate and draft a comprehensive constitution for a diverse, multi-ethnic, multi-cultural and complex populace such as the people of India. The constituent assembly only met for 166 days for deliberating the drafting of the constitution which cannot be considered as any undue delay in the drafting of the constitution. The fact that India became a republic by adopting a new constitution within three years of attaining independence from British rule shows that there was no undue delay in the drafting of the constitution. The time duration of three years that passed after independence from British rule before India became a republic by adopting the new constitution only shows that sufficient, necessary and justifiable time was spent in drafting and adopting a comprehensive constitution for the Indian people without any undue and unnecessary delay. Hence, it can be fairly concluded that the cartoon conveys a historically incorrect information by falsely alleging undue delay in the drafting of the constitution, and the cartoon also falsely blames Dr. Ambedkar for the falsely alleged delay in the drafting of the constitution and in addition falsely suggests that Nehru was accelerating the process of drafting the constitution by depicting Nehru as cracking a whip on Dr. Ambedkar.

Nobody denies that the cartoonist had the freedom of expression to portray his partisan views critiquing Dr. Ambedkar, however untenable and false, in a cartoon six decades ago. But where is the wisdom, ethics and morality in re-publishing that cartoon as a lesson in a school text book six decades later, considering the questionable and false message of the cartoon which is seen as reinforcing bigoted attitudes against Dalits and Dr. Ambedkar by a resurgent and assertive Dalit populace seeking to destroy bigoted stereotypes and prejudiced attitudes that shackles Dalits to the clutches of caste bigotry, caste oppression and the evil of untouchability? 

The imperative need of caste based reservation for ensuring social equity, since affluence cannot be a rational criterion to deny caste based reservation.


The imperative need of caste based reservation for ensuring social equity, since affluence cannot be a rational criterion to deny caste based reservation.  

By Dr. Iniyan Elango, Correspondent : "Dalit Murasu" magazine. 

The Shudra must not acquire knowledge and it is a sin and a crime to give him education. - If the Shudra intentionally listens for committing to memory the Veda, then his ears should be filled with (molten) lead; if he utters the Veda, then his tongue should be cut off.
-          The Code of Manu (Manusmrithi - which is still one of the scriptural basis for contemporary Hindu civil law in India).

This essay analyses why caste based representation (reservation) for backward castes and scheduled castes in education and employment is imperative for establishing social equity in a society ridden with the vertically graded bigotry of the caste system and why affluence cannot be a criterion to deny caste based reservation.

Caste based reservation in government jobs and higher education was first introduced during the British rule of India as representation through affirmative action in government jobs and higher education for castes traditionally excluded from government jobs and education such as castes of the Shudra Varna (backward castes) and Dalits (scheduled castes). Affluence is not the criteria for affirmative action (reservation) but social exclusion (backwardness) from government jobs and education caused by the discriminatory dynamics of the caste system over the centuries that denied and disapproved of education for castes of the Shudra Varna (backward castes) and scheduled castes (Dalits) irrespective of their affluence or the lack of it. Hence, affluence is not the criteria for affirmative action (reservation), and therefore, using affluence or the lack of it to deny or affirm reservation in jobs and education will be fallacious. Including or excluding castes for reservation based on affluence will only push in the factor of financial (economic) status as the criteria for reservation which is illegal, anti-constitutional and irrelevant to the social dynamics of the bigoted caste system. 

Hindu religious and mythological lore is full of stories about even wealthy Shudras getting killed for trying to acquire knowledge through penance, the famous one being the killing of Sambhuka by the Hindu God Rama, since Sambhuka (who was a Shudra) defied the bigoted caste laws by doing penance through uttering chants from the scriptures, an activity that is restricted only to Brahmins as an expression of the latter’s supremacist bigotry in the caste system). All Hindu Gods and Goddesses are portrayed as guardians of the bigoted caste system and Brahmin supremacist bigotry in Hindu religious mythology, scriptures and religious lore.  

Even in the USA, affirmative action and equal opportunity policies in higher education and employment does not shut off candidates from relatively well off backgrounds because using economic criteria will only aggravate the under-representation of races and peoples who are already under-represented in education and employment, by shutting off middle – class and upper class African Americans and other socially disadvantaged races from equal opportunity and inclusion in academia and employment. The aim of affirmative action is to enable equal opportunity for races and peoples under-represented in education and employment due to factors of bigotry. In USA, race is a bigoted factor that may cause under-representation of black people and other non-white races, and hence affirmative action and equal opportunity policies uses race as a criteria in USA. In India, caste is a bigoted factor that denied education and social equality to peoples of backward castes and Dalits for centuries, and hence caste is used for affirmative action (reservation) to backward castes and Dalits (scheduled castes) who were traditionally denied access to education and still denied social equality and denied state funded mandatory and universal access to primary and secondary education, due to the bigoted system of vertically graded inequality of castes and the caste bigotry of the Brahmin led “twice born” ruling class of castes.

Processes such as affirmative action (reservation) enable representation in education and employment for social groups (races or castes) who have been traditionally excluded from education, employment and governance due to bigotry. Thus affirmative action (or reservation as it is called in India) provides representation for social groups (races and castes) who have been traditionally excluded from education, employment and governance.  For example, in USA, African Americans avail affirmative action in higher education and in Universities, but no one says in USA that the affluent amongst African Americans should be denied affirmative action. There are innumerable affluent American residents of Indian origin (Brahmins and upper castes included) who avail race based affirmative action in USA. This is because affirmative action is given on the basis of social disadvantage caused by race in the USA, (just as reservation in India is given on the basis of exclusion caused by caste bigotry and caste inequality) and not on the basis of economic class. In India, affirmative action (reservation) is given on the basis of exclusion caused by caste inequality. The aim is to make the student body in universities and employees in government more representative of castes traditionally excluded from education and government employment in India such as the backward castes and scheduled castes (Dalits). In such a situation, applying economic criteria to exclude the affluent amongst African Americans or other races (in USA), or the affluent among backward castes or scheduled castes (in India) from affirmative action (reservation) will destroy the aim of affirmative action (reservation) since the very poor may not be always able to study up to the academic level required for university admission or government employment, and restricting affirmative action (reservation) only to the poor amongst African Americans, backward castes or scheduled castes will leave no one amongst them eligible for affirmative action (reservation) for  university admission and government employment, which will destroy the very purpose of ending the exclusion of African Americans, backward castes and scheduled castes in higher education and government employment through affirmative action. Hence affirmative action in USA is given on the basis of the race of the candidate – irrespective of the economic class of the candidate, so that any African American, Native American, Hispanic American or any candidate of non-white socially disadvantaged races in USA from any economic class will find equal opportunity, and avail the representation accorded in higher education and employment. So affirmative action is about representation of excluded groups (races and castes) in employment, education and governance and NOT about economic upliftment. 

Economic upliftment of financially challenged students can be furthered only through financial help via financial scholarships, financial grants, student loans, part-time jobs and teaching assistantships and not by affirmative action. Hence, the use of affirmative action (reservation) to facilitate representation of socially disadvantaged castes and races in education and employment cannot use the economic criteria and cannot exclude candidates on the basis of their economic class. Therefore, the exclusion of the affluent in affirmative action for socially disadvantaged races and castes such as backward castes and scheduled castes is untenable and wrong, and beats the purpose of representation of socially disadvantaged and educationally backward castes in education and employment, not the least because affluence does not abolish the bigoted caste identity, caste inferiorization, graded caste inequality, social stigma associated with untouchability for Dalits and caste based stigma or discrimination of a person in India. This is simply because caste identity is determined by the birth of a person and not by the economic class of a person. 


Reservation is not a tool to eradicate poverty but a system of representation for backward castes and Dalits (scheduled castes) who are excluded from government employment and higher education in the absence of such an affirmative action.  Poverty can be eradicated only by a welfare regime as in Europe that guarantees state funded mandatory universal primary and secondary education, universal access to government funded medical care, state funded housing for the homeless and social security doles to all impoverished and unemployable people. The central government bureaucracy and planning commission mostly staffed by Brahmins and “twice born” upper castes have not spent a penny for such a welfare state while wasting thousands of crores of rupees in unnecessary arms imports and arms purchases and other unnecessary excursions such as buying the debt of USA and giving hundreds of billions as grants to crisis stricken EU (as Manmohan Singh led Government did recently) when the people of India impoverished and oppressed by caste bigotry and untouchability go without access to education, medical care, housing, sanitation and social security payments.

In the absence of a welfare state that guarantees primary and secondary education and free higher education to the poor amongst backward castes and Dalits, shutting off the rich amongst them from reservation will leave no one from backward castes and Dalits eligible for reservation in higher education and government employment, thus perpetuating their exclusion from higher education & government employment. Even the recent “right to education act” should be considered as an eye wash because the act does not make the provision of primary and secondary education as a fundamental and non-negotiable duty of the Government and does not make access to primary and secondary education as a fundamental right of every child citizen, and does not provide for large scale building and upgrading of Government schools in villages, slums and Dalit ghettos which have no schools while unrealistically shifting the provision of primary and secondary education to the private sector by reserving 25% of seats in urban private schools to students from impoverished backgrounds which is neither absolutely enforceable nor beneficiary to backward castes, Dalits or rural and slum dwelling children.

Excluding the affluent (or the so called “creamy layer”) from representation of socially disadvantaged races and castes in education and employment, or saying that only the poor can represent socially disadvantaged races and castes, is as ridiculous as saying Martin Luther King, Nelson Mandela, Spike Lee, Barack Obama or for that matter artists and leaders who advocated the rights of those oppressed by the caste system such as Babasaheb Dr. B.R. Ambedkar, “Rettai malai” Srinivasan, M.C.Rajah, Ayothithasar, Thanthai Periyar, etc., cannot be leaders or representatives of their peoples because they had attained  relative affluence!! So if one applies the “creamy layer” (affluence) concept in enabling representation of castes and races by restricting representation in government, jobs and education only to the poor amongst socially disadvantaged races and castes, there will be no one to lead or represent those socially disadvantaged castes and races in education, employment and governance. This is what bigoted and reactionary interests in India want to happen by opposing affirmative action (reservation) based on caste (for backward castes and scheduled castes) by advocating “economic criteria” for affirmative action and exclusion of the affluent from caste based reservation while doing nothing to invest public finances for universal and mandatory access to government funded education, health care and housing for the poor.

Hence, any cap or restriction in the reservation for backward castes and scheduled castes in education and employment on the basis of the so called untenable and irrelevant “creamy layer” argument should be negated and nullified through appropriate and effective constitutional amendments.   

Actually, several statistics show that reservation in higher education and government employment for Dalits remain unfilled and incompletely implemented. In addition, the open unreserved category in employment and higher education in which candidates from all castes can compete was wrongly enforced and fraudulently misappropriated as reservation for Brahmins and upper castes (forward castes), thus nullifying the very purpose of reservation until it was effectively challenged and exposed in the courts of law.

Certainly, caste is not perpetrated or perpetuated by affirmative action (reservation) to backward castes and scheduled castes in government jobs and higher education, as it is evident from the fact that the bigoted practice and perpetuation of the graded inequality of the caste system and its allied oppressive practices continued unabated for centuries even before the advent of affirmative action (reservation) in modern times. Caste is perpetuated by the social practices of caste stigmatization due to the vertically graded inequality of castes, endogamous caste based marriages, caste based social association at the exclusion of people belonging to other castes, untouchability practices and segregation imposed on Dalits, atrocities and honour killings against those who transgress caste norms – particularly Dalits - which forces people to conform to bigoted caste norms out of fear, the Hindu religious sanctification of the caste system that reserves priesthood and religious sacramental performance to the caste at the summit of the caste system – namely the Brahmins, thrusting various forms of physical labour on backward castes and Dalits, forcing  degrading work on the basis of caste descent on Dalits,  and the lack of equal and universal access to education, social equality, skills and employment irrespective of caste. This being the case, there is a great need to extend caste based reservations for backward castes and scheduled castes to the private sector.

Reservation in Tamil Nadu is as high as 87% because the vast majority of the peoples come under the caste category of Shudras (backward castes) and scheduled castes (Dalits). Shudras are lower in the caste hierarchy to “twice born” castes such as Brahmins – Baniyas (Vysyas) and Kshatriyas. For centuries, education, commerce and governance in India were the preserve of the aforementioned three “twice born” castes, leaving the Shudras (backward castes) educationally backward despite some of them being land owning farmers.  The vast majority of the Shudras found themselves doing various forms of physical labour based on their caste descent and excluded from education while being considered inferior in birth to Brahmins and other “twice born” upper castes (even if the Shudra happens to attain more wealth than Brahmins).  But the Shudras (backward castes) were still higher than the untouchables (Dalits) in the bigoted and vertically graded inequality of castes, because Dalits are in the bottom rung of the caste system as outcasts and untouchables. The castes which are lower in the caste hierarchy amongst the Shudras and bonded to various occupations of physical labour and suffering a more severe exclusion from education are referred to as “most backward castes” in Tamil Nadu state. Since the backward castes, most backward castes and scheduled castes comprise of almost 90% of the population of Tamil Nadu, naturally – the reservation earmarked for them in higher education and government jobs reflects their proportion of the population and is hence 87% in Tamil Nadu.

Representation in government jobs and higher education for castes which have been made socially and educationally backward due to the bigotry of the caste system irrespective of their financial status (meaning socially inferiorized in the vertically graded inequality of the caste system and traditionally excluded from education) is the premise of the reservation system in Tamil Nadu. But since the vast majority of the peoples are socially and educationally backward due to the bigotry and exclusion caused by the caste system, reservation earmarked for backward castes, most backward castes and scheduled castes is high as 87% in Tamil Nadu. There is no point in blaming the Government of Tamil Nadu for the large percentage of backward castes in Tamil Nadu, when the Hindu caste system has inferiorized almost all of the population as “Shudras”, and hence naturally, almost all of the population would be considered as backward castes. If the Supreme Court has restricted the overall reservation (for both backward castes and scheduled castes) to 50% it is demographically and factually unjust and wrong, when the vast majority of the Indian peoples have been socially inferiorized as “Shudras” (backward castes), banned from education for centuries and divided by the bigoted and vertically graded caste inequalities that preaches superiority and inferiority by birth apart from being bonded to various forms of physical labour by caste descent. If one also includes the population of scheduled castes segregated, oppressed and exploited as “untouchables” (along with those backward castes inferiorized as “Shudras), almost all of the Indian populace (except for the Brahmins and “twice born” upper castes) would fall under the category of socially and educationally backward peoples. Hence the 50% cap on reservation for (backward castes and scheduled castes) in education and employment as dictated by a Supreme Court judgment should be negated and nullified through a constitutional amendment. 

The system of caste based reservation (representation) ensures that no one particular caste usurps and dominates most of the opportunities in Government employment and higher education. In the absence of caste based affirmative action (representation or reservation), the danger of Brahmins and “twice born” upper castes cornering all jobs in the Government and all opportunities in education did happen during the days before caste based reservation came into practice. Hence, in the land of the bigoted caste system, caste based reservation in education and employment is essential to ensure equitable representation of all castes in employment and education. Therefore, there is an acute need to extend caste based reservation to private sector corporate employment and private sector educational institutions of higher education.


But efforts for annihilating the bigoted caste identities (that sustains the division of society and nation through the bigoted and vertically graded inequality of castes) should go hand in hand with social justice measures such as caste based reservation for backward castes and scheduled castes in education and employment. Hence community certificates that are used to sanction affirmative action (reservation) for backward castes and scheduled castes - should not be issued with caste names and should carry only the general terminology of “backward communities” or “scheduled communities”. In addition, any kind of usage of individual caste identities of backward castes and scheduled castes should be banned, while community certificates and reservation can be continued to be accorded based on the general terms such as “backward communities and scheduled communities”. Off springs of marriages between Dalits and non-Dalits should not be thrust with their parents’ caste and should be declared “casteless” and reservation accorded to them accordingly. Bigoted preaching of superiority or inferiority of any caste should be criminalised and so should be the usage of any caste identity or caste name in any form including the use of caste surnames. Use of caste surnames has already been largely discontinued amongst most Tamils in Tamil Nadu due to Periyar’s self-respect movement, even though caste bigotry, graded caste inequalities, oppression and segregation of Dalits and untouchability practices continue to be alive and well amongst Tamils. All caste based advertisements including caste based matrimonial advertisements in all forms of media should be made illegal. Along with these measures, all caste hereditary and caste descent based menial and degrading labour should be banned, and segregation of Dalits in ghettos or slums or the so called "Cheris" should be ended by providing Dalits housing and land inside the towns and villages where caste Hindus live. Government schools, Government hospitals and Government offices should be built in segregated Dalit neighbourhoods so that caste Hindus who use them would have to visit segregated Dalit habitats thus socially integrating caste Hindus with Dalits and ending the segregation of Dalits. And in addition, all people irrespective of caste background should be allowed to train and work as Hindu temple priests to end the religiously sanctioned monopoly of Hindu priesthood held by the Brahmin caste and to end all other allied caste discrimination and untouchability practices in Hindu temples, rituals and sacraments.

Those who oppose caste based reservation in education and employment while wanting to preserve their bigoted caste identities and doing nothing for the annihilation of the caste system - are like those who want to have the cake and eat it too!  Before we can talk about ending caste based reservations, we need to bring in strict and strong laws to criminalise, proscribe and ban any and all expressions, rituals, manifestations, institutions, traditions, occupations, segregation and social practices associated with caste, caste identities or the caste system including the banning of any usage of caste names, encourage the culture of courtship and dating across castes to enable men and women to choose their own life partners across caste barriers instead of resorting to caste based arranged marriages, give incentives in employment and education for non-Dalits and Dalits who inter-marry and create a welfare state in the lines of western Europe that guarantees universal  access to education, universal access to health care, universal access to housing for the homeless and social security doles to the unemployed, thus creating social equality! Only after achieving such a casteless society and social welfare state can we talk about ending caste based reservations for backward castes and scheduled castes! Those who want to sustain the bigoted caste system and its associated regressive and oppressive social practices but oppose caste based reservations are hypocritical bigots!

The time has come to speed up the process for the annihilation of castes to create a nation that truly guarantees equality, fraternity and liberty to all her citizens. All Indian citizens who are committed to creating a modern, progressive and egalitarian India should contribute to this struggle for annihilation of castes.

Creating social equity through caste based reservation for backward castes and scheduled castes in education and employment is one of the primary and fundamental steps in the long drawn out process of annihilating the bigoted caste system!  



It is obvious that the central government bureaucracies, diplomatic services, IAS and IFS cadre, military officers’ corps, higher judiciary, elite academic institutions such as the IITs and AIIMS and various state government bureaucracies are still overwhelmingly staffed with Brahmins and upper castes. It is also lamentable that caste based reservation for backward castes and scheduled castes have not been extended to judiciary and military services. A few years ago, the “Outlook” magazine ran a cover story on the domination of Brahmins in central government bureaucracies (“The Durbar Hall Pundits”, Outlook, June 04, 2007). Thus it is obvious that the current reservation regimes in education and government employment for backward castes and scheduled castes have not made any dent on the Brahmins’ and “twice born” upper castes’ monopolistic control over the Indian state machinery as the ruling class of castes. This means that current reservation regimes for backward castes and scheduled castes are being insufficiently or improperly implemented, and the 50% cap imposed by the supreme court on reservation for backward castes and scheduled castes in education and employment should be done away with by way of a constitutional amendment, and the exclusion of the so called “creamy layer” from reservation should be scrapped through a constitutional amendment for all the reasons analysed and explained above and more. In addition, reservation in education and employment for backward castes and scheduled castes should be extended comprehensively to all private sector institutions. 

Reservation for backward castes and scheduled castes should be particularly extended to all printed media and visual media organs such as newspapers, magazines, journals and television news broadcast channels, since all these mainstream media organs are financially owned and / or editorially controlled or predominantly staffed by Brahmins - Baniyas and "twice born" upper castes. Even columnists are predominantly Brahmin and upper caste. Every journal and newspaper should be compelled by law to employ and publish the writings of columnists and journalists from Dalit and backward caste background, particularly opinion of those Dalit and backward caste writers who vehemently condemn and oppose the bigotry of Brahmins, caste, Hinduism and social segregation called "untouchability"!


When the Malay people are given reservation and prioritization in university education and private sector employment in Malaysia, and when admission to university, medical colleges and other professional colleges in Singapore are reserved on a racial basis according to the population numbers of a particular race with the Chinese applicants garnering the largest chunk of reservation in universities and colleges in Singapore since the Chinese are the largest demographic group in Singapore, followed by Malays and Indians (Tamils), one fails to understand the hypocritical hue and cry made by caste bigots and the Brahmin led upper caste Indian media against caste based reservation in Indian universities and colleges for those castes excluded from education for millennia and victimized by the caste system in manifold ways such as backward castes and scheduled castes.  It is high time reservation for backward castes and scheduled castes are extended to private sector employment in India just as the reservation enjoyed by Malays in the Malaysian private sector. And reservation for backward castes in university and professional colleges in India should be extended without the “creamy layer” prejudice, just as the reservation enjoyed by Chinese students in Singaporean universities and colleges. It is obvious that the academic standards and the society at large have not suffered in any manner by the reservation in education and employment for various races in Malaysia and Singapore, but in fact the economy, professional standards and society have benefited by the race based reservation practiced in Singapore and Malaysia with regards to both public and private sector employment and university and college admissions. 

Tamil Nadu has made relatively significant progress in public health care and in the standard of Government Hospitals (compared to their counterparts in Northern India), and Chennai has become a “medical city” and a nerve centre for “medical tourism” apart from becoming a citadel of scores of multispeciality corporate hospitals, mainly because of the reservation (affirmative action) in medical college admissions to backward castes and scheduled castes which produced a huge number of doctors specializing in various medical super-specialties over the past six decades, which has boosted up the standard of medical profession both in the private sector and the public sector.  This would not have been possible if a Brahmin and upper caste elitist monopoly was allowed in the medical profession as it was before the political ascendancy of the Dravidian movement in the late sixties and seventies which expanded reservation in university and college education to backward castes and scheduled castes, by extending reservation to various categories such as rural students from scheduled castes and backward castes and children of inter-caste marriages, all of which is in serious jeopardy because the Brahmin led central government bureaucracy and higher judiciary are trying to scuttle the reservation regime in state medical colleges for backward castes and scheduled castes by bringing in an "All India" entrance test, and just as all entrance tests this would also be a bigoted filtering mechanism to keep out students from backward caste and scheduled caste backgrounds from the annals of higher professional medical education, which will seriously impede the standards and progress made by Tamil Nadu in medical education. 

Monday, 8 October 2012

Rebuttal to S. Anand’s criticism of Aamir Khan and Satyamev Jayate:





Rebuttal to S. Anand’s criticism of Aamir Khan and “Satyamev Jayate”:

By Dr. Iniyan Elango, Correspondent: "Dalit Murasu" magazine.

S. Anand’s (a.k.a Anand Navayana's) criticism of Aamir Khan’s television programme “Satyamev Jayate” in his opinion piece “Silence Eva Jayate” (Outlook, July 23, 2012) is untenable and biased. A television programme with limitations of time and which focused on the particular issues of untouchability and manual scavenging may not be able to dwell in detail about other related issues such as reservations (affirmative action). In a time limited television programme focusing on the bigoted evil of untouchability practices for the first time in the history of popular Indian television, the absence of biographical accounts of Babasaheb Dr. Ambedkar may be excused. A time limited singular episode of a television talk show programme cannot be expected to comprehensively pack together all facets and facts about the evil of untouchability and related issues. Technical and editorial necessity editing out or conjuring up visuals in a television talk show does not amount to any ethical transgressions. Aamir Khan needs to be congratulated for highlighting the evil practices of untouchability and manual scavenging in a popular programme on national television for the first time in the popular commercial television history of India!

S. Anand’s lamentation at the exclusion of the so called “Dalit capitalists” and members of the “Dalit Indian chamber of commerce” in a television programme that sought to highlight the evil practices of untouchability and manual scavenging is like lamenting the lack of black African businessmen in a television programme about the racism of the erstwhile apartheid regime and shanty towns of South Africa. Aamir Khan was justified in excluding the so called “Dalit capitalists” who only serve the purpose of vested interests wanting to hide the abject poverty, segregation, illiteracy, disease and atrocities forced on the vast majority of Dalits due to the social exclusion caused by untouchability, by advertising a few rich Dalit businessmen.

S. Anand lacks the moral locus standi to criticise Aamir Khan and his television talk show. It is natural that the past history and journalistic record of a writer would be called into question, when the writer puts himself on a pedestal to criticise a ground breaking television programme which exposes the evil of untouchability practices in popular Indian television. Past journalistic record shows that writer / journalist S. Anand himself is guilty of exactly what he accuses Justice (retired) C.S. Dharmadhikari of (in his opinion piece criticising Aamir Khan’s talk show), which is being an apologist for “Brahmanness” and bigoted Brahmin supremacism. S. Anand himself belittled the suffering and oppression unleashed on Dalits by ludicrously equating Brahmins (who are at the summit of the caste system) with Dalits in a report filed by him in Outlook magazine a few years ago (“Dalits in reverse”, Outlook, April 11, 2005). In this report S. Anand falsely claimed that Brahmins in Tamil Nadu are being persecuted like Dalits, by atrociously branding Brahmins as “Dalits in Reverse”, on the pretext of a Brahmin pontiff’s (Kanchi Sankaracharya’s) arrest on charges of murder under the rule of a very Brahmin chief minister (Ms. J. Jayalalitha). Another news report of S. Anand filed in the Outlook magazine again ludicrously claimed that Brahmins in Tamil Nadu are being persecuted like the Jews during World War II (“We are like the Jews”, Outlook, April 11, 2005), again on the pretext of the arrest of a Brahman pontiff on charges of murder. It seems that
S.Anand believes in the dictums of the bigoted code of “Manu” since “Manu’s Code” states that no Brahmin should be punished for committing the offence of murder thus explaining S. Anand’s series of reportage and writing which bigotedly and maliciously attempt to falsely misrepresent the arrest of a lone Brahman seer on charges of murder as an (imagined and non-existent) oppression of the socially privileged and bigotedly supremacist caste of Brahmins. (“Manusmrithi” or “Manu’s Code” is the Brahmin racist Hindu scripture written many centuries ago which codified the bigoted caste system and is still one of the scriptural basis for Hindu law). Anand also conspicuously fails to mention that it was a Brahmin chief minister called Ms. J. Jayalalitha who ordered the arrest and prosecution of the Kanchi Sankaracharya on charges of murder and hence arresting the Brahmin Pontiff on charges of murder has nothing to do with activism against Brahmin supremacist bigotry but was a routine Governmental act of asserting law and order against a murderous criminal. But since arresting a Brahmin Pontiff on charges of murder is unheard of, and since Brahmins in general and Brahmin pontiffs in particular are considered above punishment in the bigoted societal values of the caste system as codified by “Manusmiruthi”, S. Anand goes over the top with his apologia for Brahmin supremacist bigotry by exaggerating and falsely portraying a routine police duty of arresting a man (Brahmin Pontiff) on charges of murder as oppression of Brahmins when in reality Brahmins are the oppressing caste supremacist class at the summit of the caste system and are certainly not the oppressed. It is obvious that S. Anand would not have portrayed the arrest of a non-Brahmin Hindu Godman as an act of oppressing the entire caste to which the non-Brahmin Godman belonged to. It is abjectly ridiculous that S. Anand made delusional and ludicrous false claims that Brahmins of Tamil Nadu are being oppressed like “Dalits and Jews during World War II” under the rule of a Brahmin chief minister who is known for appeasing Orthodox Hindu religious Brahmanism, Brahmin supremacist agenda and harbouring Hindu nationalist extreme right wing Brahmin supremacist advisors such as “Cho” Ramasamy.  

The situation of Brahmins being the elite and socially privileged upper class caste of India who practice the bigoted principle of ultimate supremacism of the Brahmin caste over the rest in the caste system is true for Tamil Nadu as much as it is true for all of India. This being the case, it is an atrocious lie, ludicrous falsehood and a travesty of truth to describe Brahmins as “Dalits in reverse” or to suggest that Brahmins are being oppressed like Dalits or like Jews during World War II, as S. Anand did in his reports and articles.

The vast majority of Dalits who are at the bottom of the bigoted caste system are bonded to inhumane and degrading labour, forced into insanitary segregated slums, and suffer from high levels of illiteracy, homelessness and ill health, along with being victims of various kinds of barbaric atrocities and killings unleashed on Dalits by all castes in Hindu religious society. Brahmins of Tamil Nadu (and India) have a critical and controlling presence in the mainstream media, government bureaucracy, corporate industry, computer software businesses, the arts, elite academia, higher judiciary, etc. I need not list all the media organs and corporate companies owned or controlled by Brahmins in Tamil Nadu and India. Similarly, it will be an unnecessary exercise to list the conspicuous presence of Brahmins in the bureaucracy, arts and the media in Tamil Nadu and India. Outlook magazine itself carried an article on the domination of Brahmins in the bureaucracy (“The Durbar Hall Pundits”, Outlook, June 04, 2007). In addition, Brahmins are also bigotedly feted as the “most superior caste” in the caste system while enjoying their bigoted monopoly in temple priesthood and sacramental performance of Hindu religious rituals to assert their Brahmin caste supremacy in socio-religious terms. Brahmins have never suffered any act of overt violence specifically directed against them in Tamil Nadu or India unlike the Dalit people who are victims of daily acts of violence, rapes, killings and atrocities due to caste bigotry, nor are Brahmins being persecuted or socio-economically discriminated against in India. On the contrary, some caste fanatic outfits associated with Brahmins such as the “Ranvir Sena” and other private armies of the “Bhumihars” (who are considered as Brahmins by caste) have been implicated in the whole sale mass murder, rapes and pillage of hundreds of Dalits in North Indian states such as Bihar and Uttar Pradesh. 



It has to be also emphasized that the Brahmins are the ideological, intellectual and socio-political leaders, guardians and founders of the Hindu fascist RSS organization whose off shoots such as the BJP (Bharathiya Janatha Party) , Bajrang Dal, Vishwa Hindu Parishad, ABVP (Akhil Bharathiya Vidyarthi Parishad), Hindu Munnani, etc., actively recruit backward caste and Dalit street cadre with vitriolic, hateful and xenophobic demagoguery against Muslims and Christians, thus using the brainwashed and illiterate Dalit and backward caste street cadre to attack and pillage Muslims and Christians. Several pogroms and mass murders of Muslims and Christians have been thus executed by Hindu fascist outfits controlled by Brahmins and “twice born” upper castes, the notable of which were the anti-Muslim pogrom in Gujarat during 2002 which subjected several thousands of Muslims to, arson attacks, mass murder and mass sexual assaults and the murderous carnage against Dalit Christians and indigenous tribal Christians of Orissa state in the year of 2008.  Brahmin leaders such as Rama. Gopalan of Hindu Munnani in Tamil Nadu state are in the forefront of such hateful and bigoted Hindu religious fanaticism that violently targets religious minorities such as Muslims and Christians. The aim of such violent and hateful Hindu nationalist – fascist violence is mainly to distract backward castes and Dalits from their own inferiorized, excluded, discriminated and oppressed status in Hindu religion and Hindu society, thus preventing backward castes and Dalits from any inclination to challenge the bigotry of the caste system and that of the ruling class of “twice born” supremacist castes led by the Brahmins and Baniyas, while using the brainwashed and illiterate Dalit and backward caste street cadre to attack and pillage Muslims and Christians.


This being the case, a journalist like S. Anand who belittled and trivialised the suffering, untouchability and violent oppression unleashed on Dalits through his apologia for Brahmin supremacy by peddling the blatant lie that Brahmins are being oppressed like Dalits and Jews during World War II, - has no moral standing to hypocritically criticise Aamir Khan for his talk show programme that highlighted the evil of untouchability in popular Indian television.

S. Anand’s critique of Aamir Khan and “Satyamev Jayate” is a classic case of the pot calling the kettle black! 
S.Anand has acted against Dalit interests by attacking a movie star's show that specifically rallied public opinion against the bigotry of untouchability and manual scavenging by engaging mass television audiences.


Tuesday, 24 July 2012

My letter to "The Hindu" protesting an advertisement for flats which restricted the sale of flats to "ONLY BRAHMINS:

My letter to "The Hindu" protesting an advertisement for flats which restricted the sale of flats to "ONLY BRAHMINS" is given below and can also be read by clicking on the link below: (This letter was published only after a complaint to the Press Council of India, and the emailed letter of Honourable Justice Markandey Katju, Chairman, Press Council of India is also given below): 

http://www.thehindu.com/opinion/letters/article3555784.ece



Your ‘Property Plus’ supplement (April 7, 2012) carried an advertisement for the sale of flats with a caption stating “only Brahmins,” excluding non-Brahmin castes, Dalits and religious minorities such as Muslims, Christians, Jains, Buddhists, Sikhs, etc., from buying or residing in the flats, thus discriminating against people on the basis of caste and religion, thereby violating the letter and spirit of Articles 15 and 17 of the Constitution. Excluding Dalits from buying the advertised flats can only be construed as an expression of untouchability against them.
Excluding people based on caste or religion from the sale, rental or residence of housing facilities is a blatant act of bigotry and oppression that causes great distress to the victims apart from leading to social balkanisation of our nation due to caste segregation and religious polarisation. Such advertisements and business practices which exclude people on the basis of caste or religion should be proscribed.
Iniyan Elango, Chennai

Emailed letter of Honourable Justice Markandey Katju, Chairman, Press Council of India, in response to my complaint:

Dear Siddharth and Dr. Ilango,

I have seen the complaint of Dr Ilango and Siddhartha's letter to him.

I entirely agree with Dr. Ilango that the publication in The Hindu that certain flats are for sale to Brahmins only is totally unacceptable in the modern age.The caste system is a curse on our country, and the sooner it is destroyed the better. It is keeping us divided at a time when we must remain united to face the huge challenges before the nation (see in this connection my article on the caste system on my blog justicekatju.blogspot.in and on the website kgfindia.com) Hence the aforesaid publication in The Hindu was in extremely bad taste. I request the editor to take care this does not happen again.

Since Dr. Ilango's letter is being published in The Hindu I am allowing the matter to rest. However, I  request Siddharth to publish this email in the Hindu at the earliest.

 Regards,   Justice Katju


My letter to "The Hindu" on caste segregated habitats:

My letter to "The Hindu" on caste segregated habitats is given below and can also be read by clicking on the following link: 


http://www.thehindu.com/opinion/letters/article3374716.ece


This refers to the article “Agraharam — time virtually stands still here” (April 29). “Agraharams” are exclusive dwellings of Brahmins where caste segregation and untouchability are practised. We cannot have a sense of nostalgia or respect for such segregated habitats if we want to foster social equality and fraternity.
The caste system is a vertically graded system in which one caste professes superiority over another. That is why thinkers like Dr. B.R. Ambedkar and Periyar wanted the annihilation of all castes. Even non-Brahmin caste Hindus segregate themselves from Dalit habitats. This does not excuse the bigotry of those who segregate themselves in caste-based dwellings — Brahmins (who are at the summit of the caste system) or any other Hindu caste.
It is a shame that despite the passage of almost seven decades of independence, Dalits are forced to live in segregated and insanitary ghettos in every village and town. In their case, there is no self-segregation as in the case of Agraharams. Segregation is forced on them by the rest of the Hindu society due to the evil of untouchability. There is no place for caste-based segregation in a civilised and egalitarian society.
Iniyan Elango,
Chennai

My letter to "The Hindu" on the Racism of Caste:


May 31, 2012.

The Editor
The Hindu

Dear Madam / Sir,

This letter is with regards to the op-ed column titled “Let’s stop pretending there’s no racism in India” by Mr. Yengkhom Jilangamba (The Hindu, May 29, 2012). While I sympathise and agree with Mr. Jilangamba’s views, I have to emphasize that prejudice against Indians from north-eastern states is not the only form of racism in India. Mr. Yengkhom Jilangamba’s opinion piece overlooks the age old forms of prejudice, discrimination and oppression based on professing superiority or inferiority of endogamous caste descent in the vertically graded and bigoted system of castes which has been condemned as racism by no less a body than the United Nations Human Rights Council (formerly known as United Nations Commission on Human Rights) and the latter’s "Committee On The Elimination Of Racial Discrimination"(CERD) and the Office of the High Commissioner for Human Rights.

The Committee on the Elimination of Racial Discrimination (CERD) has made it clear that caste falls within the ambit of the International Convention on the Elimination of Racial Discrimination (ICERD), ratified by India. General Recommendation 29 (2002) of CERD states as follows: “CERD strongly condemns descent-based discrimination, such as discrimination on the basis of caste and analogous systems of inherited status, as a violation of the Convention.” In addition, CERD reaffirmed through general recommendation 29 (2002) that CERD seeks to eliminate discrimination based on "descent" which includes discrimination against members of communities based on forms of social stratification such as caste and analogous systems of inherited status which nullify or impair their equal enjoyment of human rights. General Comment 20 of the Committee on Economic, Social and Cultural Rights, also unequivocally prohibits discrimination on grounds of birth.

Thus it is amply clear that discrimination and bigotry based on caste is part and parcel of the legal discourse against racism under international human rights law.

Racism is not strictly limited to discrimination based on skin colour or physical racial features, but a belief system of bigotry that discriminates, inferiorizes or oppresses people based on their human (biological) descent. Anti-Semitism professed by Nazis against Jews is indeed considered as the most virulent form of racism human history has ever known, even though both Nazis and Jews were white skinned. Similarly, according to International Human Rights Law, any form of prejudice, bigotry, discrimination or oppression based on caste descent is indeed racism even though those who profess superiority of caste descent and suffer inferiority of caste descent (imposed on them) may not be physically very dissimilar to each other, but belong to different endogamous caste descent.

The vertically graded bigotry of castes where each caste is considered superior and inferior to castes below and above respectively, (except for Brahmins who are considered as the “most superior” caste and Dalits who are relegated as “most inferior” as outcasts – untouchables at the bottom of the caste system), is indeed the most virulent, long surviving and most resistant form of racism the World has ever known. But a state of silent acquiescence of the intellectual and media class of India to the bigoted, reactionary and regressive principles inherent in the practice of caste has so far prevented the genesis of a national fervour for ending all practices and manifestations of caste bigotry in India. 

The racism of caste bigotry and its off-shoot called “untouchability” are the causes for honour killings, atrocities against Dalits, bondage to inhumane labour, poverty, caste segregation, social exclusion from literacy, housing and health-care and discrimination against students in elite higher educational institutions such as IITs, AIIMS etc., which has pushed many students of IITs and AIIMS (from Dalit and OBC backgrounds) to commit suicide just as the reported murders and suicides of students from North Eastern India.

In addition, one has to also state that attitudes that foster discrimination against dark and black skinned people while associating beauty or attractiveness bigotedly with fair skin is rampant in Indian society, media, advertising and films, with a consequent flourishing of multi-crore industry in cosmetic creams that claim to bleach the skin to whitish fairness!

Prejudice against North Eastern students is only an extension of the entrenched racist attitudes that sustain caste bigotry and prejudice against dark skinned people in India. 

 Yours Sincerely, 

Dr. Iniyan Elango. 

THE ABBREVIATED VERSION OF THE ABOVE LETTER WHICH WAS PUBLISHED IN "THE HINDU" IS GIVEN BELOW AND CAN ALSO BE ACCESSED BY CLICKING ON THE LINK BELOW: 


Prejudice against north-easterners is not the only form of racism in India. The article overlooks the age-old forms of prejudice, discrimination and oppression based on caste. The vertically graded system, in which each caste is considered superior and inferior, is indeed the most virulent, long-surviving and resistant form of racism the world has ever known. But the silent acquiescence of the intellectuals and the middle class in the regressive principles inherent in the practice of caste has prevented the emergence of a national fervour for ending the system.
Iniyan Elango,
Chennai

Thursday, 23 February 2012

On Lok Pal and Corruption:



Oskar Schindler was a corrupt businessman but he saved thousands of Jews from certain murder. Adolf Hitler may not have received a bribe but he was a totalitarian mass murderer. Therefore, being corrupt does not make someone automatically a bad human being. The Brahman led upper caste media’s obsession with financial corruption of (non- "twice born") politicians and bureaucrats  and the fact that the Anna Hazare movement is propped up by the "twice born" upper castes belies the "twice born" upper caste led ruling class’ and media class’  bigoted supremacist agenda to persecute the political representatives and bureaucrats of backward caste and Dalit background by focusing on the financial corruption of backward caste and Dalit politicians and bureaucrats, while the caste system and Brahman led "twice born" upper caste ruling class’ bigotry which is the fountainhead of oppression of hundreds of millions of "Shudra" and Dalit masses by impoverishment, social exclusion, illiteracy, homelessness and atrocities, are  overlooked and hidden from the media’s agenda. 

To mention an analogy, focusing on the alleged financial corruption of backward caste and Dalit politicians and bureaucrats at the expense of ignoring varied manifestations of the bigoted caste system (such as the violent  oppression, social exclusion, birth based graded supremacist bigotry, illiteracy, bondage to caste descent based degrading labour, homelessness, atrocities, poverty and Brahmin supremacist and "twice born" castes' supremacist control over the state machinery and media as the ruling class of castes) is like advocating against the alleged financial corruption of black African politicians and bureaucrats while ignoring the bigotry, social exclusion and oppression of racist apartheid in the erstwhile apartheid South Africa. 

Current Indian laws are enough to tackle corruption and the Lok Pal Law advocated by the "twice born" upper caste coterie controlling Anna Hazare is nothing but a  law aimed at creating an extra-constitutional - dictatorial - anti-democratic super governmental body which can be controlled by the Brahmin led "twice born" supremacist caste elites without accountability to people or elections and which can over-ride the elected parliament of the people. Lok Pal is nothing but a Brahmin led upper caste project to create a extra-constitutional and dictatorial body that would over-ride the elected political representatives and their government, supersede elected parliament and serve as a dictatorial body that will serve the Brahmin led "twice born" elite of India. 

Monday, 6 February 2012

Hindu Law in India violates freedom of thought, conscience and religion (Corrected Version)


Hindu Law in India violates freedom of thought, conscience and religion
By Dr. Iniyan Elango, MBBS., LLM.

(This is a thesis that was written several years ago) 


Abstract.

Legally established Hindu religious identity violates freedom of thought, conscience and religion as legislated in International Human Rights Law. The Hindu identity denotes the identity given to the peoples of the Indian sub-continent and not a singular religion. A system of preordained and descent based socio-economic hierarchical standing (such as the caste system) was legally instituted by the British as a religion (Hinduism) with an enforceable religious civil law, which violated the fundamental principle of allowing people to freely choose a religious identity based on a particular school of thought, conscience and religion, which affected the freedom of thought, conscience and religion of a wide variety of peoples in the lower echelons (and outside) of the hierarchical descent based socio-occupational bondage system of caste, apart from others who professed diverse schools of thought, conscience and religion. The legally defined Hindu religious identity actually denotes a system of descent based hierarchical social standing coupled with a preordained descent based occupational system, but is not a school of singular religion, thought or conscience for all those peoples who live in this system. The British (and Indian) legal codification, statues and judgments that define Hindu religion as law are fundamentally based on the scriptures that propound theological tenets and the caste system of the “Sanathana Dharma” religion, and only the so called "twice born" upper castes [Brahmins, Kshatriyas and Vysyas (Baniyas)] have exclusive scriptural and religious rights for study, membership and practice of these scriptures. This imposes a religious identity on peoples who do not have the basic right to be scriptural or sacramental members of the very religious label that is imposed on them, while negating their own independent right for a religious identity, and these peoples are namely, the "non-twice born" lower castes (Shudras or backward castes), atheists, Sikhs, Jains, Buddhists, indigenous peoples, various native (non-Hindu) religionists and Dalits (who are peoples segregated as outcasts and untouchables from the Hindu religious society of vertically graded and hierarchical castes). The legal violation of freedom of thought, conscience and religion of Buddhists by way of imposing the Hindu identity and the Hindu civil law on Buddhists contravenes British case law as established by the Privy Council. Incidents of overt usurpation and violation of Buddhist places of worship by Hindu theologians and Hindu legal regimes further aggravates the freedom of religion of Buddhists. Remedy to this situation can only be by way of a secular civil law regime, (while preserving religion based civil law for those members of religious minorities who want to invoke them), and this secular civil law regime should be accessible to the various peoples whose freedom of thought, conscience and religion is violated by the legal and constitutional imposition of Hindu religious identity and the Hindu Law on them.

Methodology: Literature review and qualitative analysis. 
A detailed literature review and collection of qualitative data by way of journals, media, case law, internet, books and other published sources to identify, document, research and qualitatively analyse the various factors that are cause for persecution in India by violating the freedom of thought, conscience and religion was undertaken. The sociological, psychological, cultural, religious, political and economic implications will be emphasized in the overall qualitative analysis, apart from the human rights legal connotations and violations.


Chapter 1


What is freedom of thought, conscience and religion under International Human Rights Law and British Law?


It is important to emphasize the context in which the freedom of thought, conscience and religion is denoted legally for the purposes of establishing the violation of such a freedom in India. To claim that a freedom is violated in void is to make a tall claim, and therefore, clearly establishing the legal parameters for the expression of a specific freedom becomes essential for establishing the violation of those parameters in a particular legal or constitutional situation. For the purposes of this dissertation, the freedom of thought, conscience and religion is to mean the freedoms that is enshrined and enacted in the body of International human rights and humanitarian law. The freedom of religion, which apart from other rights related to freedom of religion, should also include the right to freely manifest one's own religion in worship, observance, practice and teaching, and is accorded by the main international conventional instruments on human rights such as follows:

Article 18 of the International Covenant on Civil and Political Rights 1966
[1] states as follows[2]:

1. Everyone shall have the right to freedom of thought, conscience and religion. This right shall include freedom to have or to adopt a religion or belief of his choice, and freedom, either individually or in community with others and in public or private, to manifest his religion or belief in worship, observance, practice and teaching.

2. No one shall be subject to coercion, which would impair his freedom to have or to adopt a religion or belief of his choice.

3. Freedom to manifest one's religion or beliefs may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others.

4. The States Parties to the present covenant undertake to have respect for the liberty of parents and, when applicable, legal guardians to ensure the religious and moral education of their children in conformity with their own convictions.

Article 9(1) of the European Convention on Human Rights and fundamental freedoms of 1950
[3] states as follows[4]:

Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance. 

Freedom to manifest one's religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or the protection of the rights and freedoms of others.

Article 12 of the American Convention on Human Rights 1969
[5] states as follows[6]:

1. Everyone has the right to freedom of conscience and of religion. This right includes freedom to maintain or to change one's religion or beliefs, and freedom to profess or disseminate one's religion or beliefs, either individually or together with others, in public or in private.

2. No one shall be subject to restrictions that might impair his freedom to maintain or to change his religion or beliefs.

3. Freedom to manifest one's religion and beliefs may be subject only to the limitations prescribed by law that are necessary to protect public safety, order, health, or morals, or the rights or freedoms of others.

4. Parents or guardians, as the case may be, have the right to provide for the religious and moral education of their children or wards that is in accord with their own convictions.

Article 18 of the Universal Declaration of Human Rights
[7] states as follows[8]:

Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance.

UN Declaration
[9] on the Elimination of All Forms of Intolerance and of Discrimination based on Religion and Belief is based on General Assembly resolution No. 36/55 of 25 November 1981, which again accentuates the freedom of religion under International Human Rights Law.

Under British Law, freedom of religion is legally entrenched under Article 9 of the Human Rights Act of 1998, which nationally legislates the same article of the European Convention on Human Rights and fundamental freedoms. This freedom can be enunciated as follows
[10]

Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance.

Freedom to manifest one's religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.

Thus for the purposes of this dissertation, the freedom of thought, conscience and religion will include all the freedoms and rights enshrined in International human rights conventions, treaties and body of law as elaborated above.

Chapter 2

What is meant by the term “Hindu”?


The history and background of Hindu Law and the Hindu religious identity is described and analysed here only with the stated aim of enabling the reader to understand the violation of the freedom of thought, conscience and religion caused by the imposition of the Hindu Law on a wide variety of non-Hindu peoples in India, including the Buddhists. This situation cannot be understood without stating, analyzing and establishing how the modern Hindu Law was constituted and how the legally codified Hindu religious identity came into being, and eventually came to be imposed on a wide variety of peoples whose freedom of thought, conscience and religion was usurped (including that of the Buddhists) in India.

Before the advent of the British, the term “Hindu” was not a religious term but a term that denoted all inhabitants of the Indian sub-continent. The word “Hindu” was never denoted or used in a legal, social and factual sense to describe any singular religion, until the British instituted the term to give a legal meaning of a singular religion. The word “Hindu” was first used
[11] by Muslim invaders for “all Indian creeds” in which the uncompromising Unitarianism of the followers of the Prophet detected signs of the worship of idols. Hence the term “Hindu” was originally a generic term that referred to all inhabitants of the Indian subcontinent (just as the term “British” is used to refer to all inhabitants of the British Isles), but the term "Hindu" never constituted a particular reference to any singular religion, until the term was chosen by the British to describe the new religion that was legally institutionalized by the British led colonial administration and colonial Government for all inhabitants of India who did not apparently follow a Semitic religion. This was more of a negative classification for administrative purposes of the colonial administration than a positive assertion of a truthful religious identity.

It is evident
[12] that those outside the Indian sub-continent used the term Hindu to basically refer to the designation of a (Indian) nationality. The inhabitants of the Indus valley were called “Indoi” by the Greeks[13], and the name was extended to comprehend all the dark people who lived beyond the Indus. The religion(s) of Hindus were called as Hinduism by foreigners for want of another word[14]. The fact that Hinduism was used as a term of reference for more than one religion should be noted, which ceased to be the case when the British legally usurped the term to the single religion that was created, codified, legalized and institutionalized by the British colonial administration of the East India Company and later by the British Indian Government.

Thus it is obvious that the words “Hindu” or “Hinduism” never referred to a single religion, but were terms that referred to all the peoples in the Indian sub-continent and their many religions in the Indian sub continent. It is evident that Hinduism was a collective term used to refer to all the diverse religions of the peoples living in India, before it was legally institutionalized to denote a single religion.

The British colonial administration certainly did not use the words “Hindu” and “Hinduism” in a pluralistic meaning as referred above. The British rulers of India systematically set about to legally create a single religious legal identity based on an all encompassing singular religious civil law founded on the body of scriptures of a singular scriptural religion ("Sanathan Dharma") that was studied and practiced only by the so called "twice born" upper castes, and by actually equating the social system of caste as a religion, which was patently a dishonest exercise, to put it mildly. This is was more so, considering the fact that the diverse populace of India who belonged to different castes and tribes (outside of the "twice born" upper castes) practiced different schools of thought, conscience and religion and it was dishonest and false to clump all of them as “one” Hindu religion, instead of honestly using the term “Hinduism” as a pluralistic "umbrella" term to refer to many religions of India, (such as the word Semitic that makes a pluralistic reference to the three Semitic religions).

The original name given to the singular religion that was legally instituted by the British for all those Indian inhabitants who did not follow a Semitic religion was actually “Gentoo” (with its origin in the word “Gentiles”). The first English book that translated and compiled all the relevant Sanskrit language scriptures of “Sanathana Dharma” (the scriptural religion of the "twice born" upper castes) was actually a book titled “A Code of Gentoo Laws
[15]”. The latter book was translated from the original Sanskrit text to Persian and then to English, at the behest of British Viceroy Warren Hastings who ruled British Indian colonies held by the East India Company. The book was actually titled “A Code of Gentoo Laws” or “Ordination of the Pundits” and was printed in 1776, reprinted in 1777 and 1781. Hence “Gentoo” (and eventually “Hindoo)” was a religious terminology that was manufactured by the imagination of the British, but none who lived in India ever used the term “Gentoo”, “Hindu” or “Hinduism” to denote a single religion or refer to themselves, until the British invented and instituted the Hindu identity along with the Hindu law as a legal personality of a singular religion.

Hence for starters, to invent, institute, codify, legalize and use the words “Hindu” and “Hinduism” as a reference to a single religion (while negating the pluralistic meaning of the term that refers to diverse religions and peoples), was by itself a false and fraudulent exercise that violated the fundamental principle of thought, conscience and religion.

Chapter 3

What is Hindu Law?


Hindu Law is the civil law that is applied to all people who are legally considered as members of the Hindu religion. The erstwhile British Government in India legally instituted the Hindu Civil law as the civil law for all Indian peoples who are considered Hindu by religion.

The Hindu Law is currently applied to the following peoples
[16]:
  • The Brahmans or the priestly caste.
  •  
  • The Kshatriyas or the warrior caste.
  •  
  • The Vaisyas or the trading castes
  •  
  • The Sudras (as an expression that includes “all” Hindus who do not belong to either of the aforementioned superior classes).
  •  
  • Vesyas a fifth division that follow the professions of dancing and prostitution.
  •  
  • Hindus who made a declaration that they were “not” Hindus for the purpose of the “special marriage act” of 1872.
  •  
  • And in the absence of a special custom the Hindu Law is applied to: Jains, Sikhs, Nambudri Brahmans, Lingayats (who are considered as Shudras)[17], Arya Samajists, etc., among various other castes (the complete list of which is beyond the scope of this analysis).
  •  
  • Many aboriginal tribes come under the sway of Hindu Law, such as the Rajgonds who are not Hindus, but the presumption is that Hindu law governs them unless the contrary is shown[18].
  •  
  • Scheduled castes who are social groups declared by the Government in the “scheduled” list, who are considered as outcast and untouchable by the Hindu society of vertically graded hierarchical castes.

The Hindu civil law or the Hindu religious identity as a socio-legal terminology never existed as a legal tool that applied to a singular religious identity, until the British East India Company (and later) the British Crown instituted and legalised them as such.

The powers of the courts of India to apply the Hindu Law to the Hindus is derived from
[19] and regulated by certain statutes of the British parliament and by imperial and provincial legislation passed during the British rule, which unless altered or repealed are continued in force under the express provisions of Article 372 of the Indian constitution. Thus the Hindu religious identity is nothing but a legislation of the British parliament.

According to Hindu Law
[20] the members of the first three castes of Brahmans (priests), Kshatriyas (warriors) and Vaisyas (traders) are “twice born” or “regenerate”. The second birth[21] or regeneration consists in the study of the Vedas or sacred literature and in the performance of "samskaras" or sacraments. All these are denied[22] to the Sudras except for the "Samskara" of marriage. Thus it is obvious that those who are legally considered as Sudras are denied study and practice of religious literature of Hinduism which itself is a serious violation of thought, conscience and religion, which will be analysed later in this dissertation. 

It is also obvious that those who are legally considered as Shudras (by case law
[23]) are all those who don’t belong to the “regenerate or twice born” castes, which includes all the various castes lower to the "twice born" upper castes in the vertically graded caste hierarchy, scheduled castes who are social groups considered as untouchable and outcast by all the vertically graded castes in the caste hierarchy, indigenous peoples (aborigines) and other social groups, religions and castes who are considered as “Hindus” for legal purposes as listed above, which includes Sikhs, Jains, Buddhists, Lingayats, etc[24].

Chapter 4

Sources of Hindu Civil Law:


Hindu Civil law and the Hindu religious identity were based on the religious scriptures of the Brahmins and "twice born" upper castes written in the Sanskrit language, including the scriptures that codified the caste system. The Sanathana Dharma religion was actually the exclusive preserve of the three "twice born" upper castes in the  vertically graded hierarchical caste system of social descent and descent-based occupations. The "twice born" upper castes called their religion as “Sanathana Dharma” and referred to the caste system imposed (by the "twice born" upper castes) on lower castes and outcasts (Dalits) as “Varnashrama Dharma”. The twice born or regenerate upper castes followed religious and sacred scriptures that codified “Varnashrama Dharma” and “Sanadhana Dharma”, all of which was combined and made as the basis for the Hindu Law Hindu religion legally codified by the British Government in India. This is evident from the following analysis of the sources of the Hindu Civil Law.

Thus the British institution of a new singular Hindu religion transformed a vertically graded social hierarchical system such as the Varnashrama Dharma into a religion, since the Hindu identity and the Hindu Civil law were based on the religious scriptures of the "twice born" upper castes, which included both the scriptures of the caste system and the religious philosophy of the "twice born" upper castes.

The Sources of Hindu Law are
[25] said to be as follows:

Primarily the sources of Hindu Law are “Sruthi” (things heard) and “Smiruthi” (things remembered). The former were said to be the actual utterings of the “creator”. The latter, although of divine origin, were couched in the language of the “rishis” (sages) and sages of antiquity, the Sruthi were in words that would be recited and sung. They comprised of the four Vedas, the six Vedangas, or appendages to the Vedas, and the Upanishads. There are a few passages in the Vedas which incidentally allude to a rule of law, or which gave an instance from which a rule of law may be inferred. Codes of Sastras or Smiritis were based on older Smritis and on what are called Sutras. Although in theory Hindu law is based on the Vedas, which are said to be of divine origin, in matters of the law the Vedas are of no great authority than the Smiritis (things heard by the Rishis or sages of antiquity), or codes of revealed law. For all practical purposes it is unnecessary to trace the law earlier than the Dharma Sastras.

The principle codes or “Sanhitas” constituting the Dharma Sastras are as follows
[26]:

The Code of Institutes of Manu (which contains much of the legal codification of the caste system and caste descent based socio-economic and political laws). It was translated by Sir William Jones, who considered that it was written in the thirteenth century B.C, but modern investigations places it much later.

The codes or Institutes of Yajnavalkya

The code or Institutes of Narada

Commentaries and digests based upon the Shastras which led to two principles schools of Hindu Law:

(a) The Mitakshara School, which prevails through out India except where the Bengal school prevails. This school is further sub divided into the following schools:
(1) Benares school
(2) Dravida or Dravira school
(3) The Maharashtra School
(4) The Mithila school

(b) The Bengal or the Daya-Bhaga school, which prevails where the inhabitants of the country speak the Bengali language.

Even though further study of the religious sources of Hindu Law are beyond the scope of this dissertation, it suffices to say that the Hindu law is based on various religious scriptures that codify the vertically graded caste descent based society and vertically graded caste descent based occupational economy, apart from the philosophical belief systems of Hindu religion, but the study, understanding and practice of these scriptures has been proscribed to all except the "twice born" or regenerated upper castes, even though all of these peoples excluded from studying these religious scriptures (by law), have been legally labelled as belonging to the same religion as the "twice born" or regenerated "twice born" upper caste peoples. This is akin to be legally called as a Christian while being legally banned from studying or reading the Bible. (And this Hindu scriptural ban on those who are not "twice born" upper castes from the study and practice of the Hindu scriptures is the factor which enabled the Indian supreme court to negate progressive measures aimed at liquidating the caste system such as nullifying statutory laws enacted by states such as Tamil Nadu to enable people of all castes (including Dalits) who train and work as Hindu temple priests). In addition to suffering the hierarchical and vertically graded descent based socio-economic exploitation based on the forced "Hindu" religious identity, the scriptures of which are banned for the study or observance of those who suffer the twin humiliations of (being forced to) carry the very religious identity that denies them study and the scriptural and sacramental practice of the same religion while also imposing a system of bigotry such as the vertically graded system in the name of the same religion (Hinduism) on them.

It is clearly stated by law that, only the twice born or regenerated peoples (namely the three) "twice born" upper castes have the legal and religious scriptural right to study the various “sacred” religious scriptures of Hinduism which forms the basis of Hindu Civil Law as described above. This can be reiterated as follows: According to Hindu Law
[27] the members of the first three castes of Brahmans (priests), Kshatriyas (warriors) and Vaisyas (traders) are “twice born” or “regenerate”. The second birth[28] or regeneration consists in the study of the Vedas or sacred literature and in the performance of “samskaras” or sacraments. All these are denied[29] to the Sudras except for the “Samskara” of marriage. Thus, Hindu Law is enforced on a vast populace who are legally considered as Shudras, who do not have any legal right to even scripturally or sacramentally study or observe the religious scriptures of the religion that is imposed on them by way of a religious identity and religious law, namely the Hindu Law.

Chapter 5.

How did the Hindu Civil Law and the legalised Hindu identity develop?


A brief account of the development of the body of the Hindu Law is warranted, to understand how the British created the legal basis for imparting justice according to Hindu Law that warranted the creation of a legal Hindu religion and legally codified Hindu religious identity.

In 1757
[30], on account of the British victory at Plassey, where a military force led by Robert Clive defeated the forces of the Nawab of Bengal Siraj-ud-daulah, the East India Company found itself transformed from an association of traders to rulers exercising political sovereignty over a largely unknown land and people.

Less than ten years later
[31], in 1765, the Company acquired the Diwani of Bengal, or the right to collect revenues on behalf of the Mughal Emperor, in Bengal, Bihar, and Orissa. The consolidation of British rule after the initial military victories fell to Warren Hastings, who did much to dispense with the fiction that the Mughal Emperor was still the sovereign to whom the Company was responsible[32]. When the British East India Company held sway over the peoples of Bengal, Bihar and Orissa, the company felt a need to have a legal code to administer civil justice to the people. It was obvious that a uniform code of civil justice did not exist for all peoples who lived under the administration of the company. Warren Hastings, who was the first Governor General of India from 1773 to 1784, was committed to the prescription of “Hindu Law for Hindus and the Muslim Law for Muslims”.

It is obvious the word “Hindus” as a term was used by alien peoples to refer to various peoples and religions of India, but the British used the same word as a legal term to refer to a single religion that could be “applied” to peoples who did not subscribe to the Semitic perception of religion (as in Judaism, Christianity, Islam apart from the Persian Zoroastrianism), even though Hindus were not one people practicing one religion, but diverse peoples following different schools of thought, conscience and religion. Even though a singular uniform Hindu Law did not exist for all peoples who were considered as Hindus, the British went on to codify and enforce such a law that was primarily based on the religious and caste scriptures of the "twice born" upper castes, even though, local customs were given primary consideration. But as far as the matter of religion and religious law was concerned the “Shastras” or the Sanskrit language scriptures of the “twice born” regenerated upper castes was considered as the basis of the newly established Hindu Law. This was despite the fact that few of the inhabitants of India knew anything of these Shastras
[33], which were the preserve of the "twice born" upper caste Brahmans, and it was obvious none of the vast majority of Indian peoples had any access to the study of these Shastras except the "twice born" upper castes. “Inheritance, marriage, caste and other religious institutions were to be administered to the Hindus according to the laws of the Shaster[34]. Thus the Hindu identity as a religion and its legal enforcement for civil matters became a matter of the “Shastras”, the sacramental and scriptural study of which was an exclusive and monopolistic privilege of the "twice born" upper castes, even though the legal Hindu identity and Hindu law based on the Shastras were enforced upon a vast majority of peoples who were not socially, religiously or legally allowed to sacramentally or scripturally study the Shastras as a matter of law.

Warren Hastings’ Plan of 1772
[35], which closely connected with the plan of March 28th 1780 became the administration of Justice regulation of April 11th, 1780, which stated that the responsibility of the Shastris (Brahman caste exponents of the Shastras), for the law they reported and for the sentence depending there from.

Native law officers
[36] who were drawn from the Brahman caste and known as “Pundits” were made available to British judges to advise them on the “Shastras” to enable the British justice system for “Hindus” to work. (A similar system of law officers was made available for advising on Islamic law who were referred to as “Kazis”). In time this system of native law officers was extended to all those areas where the British justice system was introduced, including the Supreme courts of the Presidency towns. But British Judges soon lost trust in their native law officers. The Judges had a distrust, a lack of confidence in the integrity and honesty of the Pandits (and the Kazis), who were being regarded as being susceptible to bribery and corruption. Moreover Justice William Jones observed[37] that this “simply led to a system that simply pronounced Judgment on the reports of other men”. Thus it was argued that the decisions were in fact the decisions of the native law officers rather than of the Judges[38], thus leaving very little room for independent and objective Justice. All this made the British to decide that some Judges must be guided without the help of the Kazis and the Pundits, by “translating into English the Hindu and Muslim Laws”. (Since this dissertation is concerned only with the Hindu Law it will not dwell into the Muslim Law situation).

Thus the only effective curative for the unsatisfactory state of affairs that prevailed was deemed to be a preparation of books explaining the principles of these laws. “Nothing but an ascertainment of the law can prove a corrective of this evil” was the verdict of Sir Francis Macnaghten. Thus various English books were compiled by the British Government of the East India Company and later by the Royal British Government, which were translations of various Sanskrit texts of the religious scriptures of those considered as “twice born” or “regenerated”, namely those who are referred to as "twice born" upper castes in the vertically graded hierarchical descent based system of social standing and occupation.

In the preamble of regulation III of 1793, Lord Cornwallis declared that the aim of the Government was to preserve the Indian laws of the “Shastras” and the Koran in the matters to which they have been invariably applied”. Previously, Warren Hastings had ordered
[39] “the laws of the Koran with respect to Mohammedans and those of the Shaster with respect to the Gentoos shall invariably be adhered to”.

The following can be considered as various milestones in the development of the legal body of Hindu Law in India in terms of legal literature
[40]:

Eleven of the most learned and eminent Pundits were invited to Calcutta from different parts of Bengal. The most authentic books on Hindu Law, both ancient and modern were collected. The original text of the Hindu code was prepared in the Sanskrit language under the title of “Vivadarnava Setu” or the “bridge across the ocean of litigation”. The Pandits started their work in May 1773 and completed it in February 1775. The text was translated into the Persian language, and, from the Persian version an English version was prepared by Nathaniel Brassey Halheid under the title “A code of Gentoo laws” or “Ordination of Pundits”. The work was more popularly known as “Halheid’s Code of Gentoo Laws”. It was published in London in 1776.

Justice Jones of the Calcutta Supreme Court published his Institutes of Hindu Law or the Ordinances of Manu early in 1794.

The digest of Hindu Law projected by Justice William Jones was ultimately prepared after his death by Pandit Jagannath that was later translated into English by H.T.Colebrooke. This digest deals with Law of contract and succession for members of the legally designated Hindu religion and ran into four volumes that was published in Calcutta inn 1797 and in London in 1801.

But Governor Elphinstone of Bombay rang a discordant note
[41] by saying that “what we call as Hindu Law applied to the Brahmans only”. Elphinstone wanted to research and codify the religions and laws of each and every group in India based on a diverse and honest fashion, but his endeavour was never really accomplished and the law that was applied only to the Brahmans (and "twice born" upper castes) was applied to all in the sub-continent by way of a legally designated civil law and religion, which violated the freedom of thought, conscience and religion of the masses who lived (and live) in the Indian sub-continent.

Other British works on “Hindu Law” in the English language are as follows
[42]:

Considerations of Hindu Law by Sir Francis Macnaghten, a judge of the Calcutta Supreme Court, which was published in 1824.

Elements of Hindu Law by Sir Thomas Strange who was the Chief Justice of the Madras Supreme Court, and was published in 1825.

Principles and precedents of Hindu Law by Sir William Hay Macnaghten, which was published in 1829.

Mayne’s Treatise on Hindu Law and usage, which was published in 1878.

With increasing availability of English language texts on what the British considered and codified as the religious civil law for all those who were considered as Hindus, the British Judges no longer needed the help of “native law officers” called “Pandits” to dispense Hindu Law, (and “Kazis” for Muslim Law). Thus in 1864, the Government came to the conclusion that it was no longer necessary to continue the offices of the Hindu and Muslim Law officers and Act XI of 1864 put an end to this situation. Thereafter the obligation to find the principles of Hindu Law as applied to all those who were legally considered as members of the Hindu religion devolved on the Judge himself
[43]. Thus Hindu Law as applied to members of the legally codified Hindu religion largely became a matter of case law[44].

Chapter 6

What was the situation before the British came to India?


The situation that existed with regards to religion and civil law matters before the advent of the British can be summarised as below based on the observations and research of Mr. J. Duncan M. Derrett
[45]:

When the British East India Company acquired the Diwani (i.e., became the Diwan) of the Mughal emperor in respect of the provinces of Bengal, Bihar and Orissa, the fundamental law was Islamic Law. The Islamic law however explicitly recognized the jurisdiction of “Hindu” referees and arbitrators to settle disputes amongst Hindus according to their own laws and customs, reserving to itself the exclusive jurisdiction in matters of crime and the constitutional and fiscal administration. The greater part of the litigation was never brought before Muslim officials, but was settled by recourse to traditional methods of resolving disputes, which differed according to the caste, status in society and the locality of the parties.

And there was a powerful opinion voiced in the early British period that though the Shastras ought to be consulted, few of the inhabitants knew anything about it
[46], (and hence it cannot be basis for a law of a collective singular religion or religious law).

In the above description the author (Mr. Derrett) obviously refers to Hindus in terms of being members of a society who practiced diverse customs, religions and traditions, but were not members of a single religion. Moreover the fact that most of the populace belonging to these diverse groups and castes never practiced or enforced the laws of the “Shastras” (religious scriptures of those legally considered as “twice born and regenerated” upper castes) is also evident. The fact that diverse castes, religious groups and tribes had their own traditional methods of resolving disputes such as “caste assemblies” or “village councils” should also be noted. Mr. Derrett mentions
[47] the role played by tribal governments, hierarchy of political governors among agriculturalists, “panchayat” or ad-hoc committee of castes, etc., in the administration of civil justice, which should have been obviously based on tribal and caste religions and customs of individual castes and tribes. Moreover, the higher the standing of the parties the greater was the likelihood that the “Sastra” would be consulted and applied[48] in civil justice, meaning that lower castes and outcasts had no use for the “Shastric” law of the "twice born" upper castes, which was codified by the British as Hindu religion and Hindu Law, and applied on the same lower castes who never followed Shastric Law. Therefore, to create a singular legal religion (Hinduism) and Hindu religious law on the basis of the Shastras for all Indian people and to enforce that religion in terms of a civil law regime for all Indian peoples was patently oppressive, legally false and violative of the freedom of thought, conscience and religion of these religiously diverse peoples.

The situation pertaining to civil legal matters that existed before the British invented the Hindu religious identity and the Hindu law can be further observed as follows based on passages from the same book by Mr. Derrett
[49]:

· The capacity to legislate irrespective of Shastric authority undoubtedly existed, and was utilized in countless precedents before the coming of the British. In these circumstances, the suggestion that Hindu Law, as left by legislation up to the year 1947, for example, was a “religious law”, (and that its amendment would place religion in jeopardy) was a novelty.

· Records of the period of Buddhist ascendancy
[50] also show that the public were not so welded to Shastric rules.

· There were also territories
[51] in India, like Punjab, Oudh, Kumaon Hills, Central Provinces, called the non-regulation provinces, where the sacred books of the Hindus had not penetrated and had not much impact on rural life.

Thus it is obvious that there was no uniform or single religious law or indeed a religion that governed all of the peoples of India on civil, religious and personal matters, before the British created the Hindu legal religion and the Hindu Law, based on the scriptures of the "twice born" upper castes' religion which was not allowed to be (sacramentally or scripturally) studied or practiced by the lower castes, outcasts, indigenous peoples or any of the other native religionists in India, who were all nevertheless wrongly and unjustly bought under the legal purview of the Hindu religion and the Hindu Law.

Therefore it can be argued that the British legal institution of a singular religion for all Indian peoples and a singular religious law for all Indian peoples by way of Hindu religion and Hindu Law, was an attempt to make it easier for the British to administer civil legal justice for the entire sub-continent in a manner that was easier and suitable for the convenience of British imperial interests, rather than to undergo the laborious process of recognizing the traditional methods and laws of resolving disputes which differed according to caste, religion of each caste, status and locality, which would have certainly thrown open the fact that different peoples and castes in India practiced different religions, thought and conscience based on diverse theological schools of thought and did NOT subscribe to a single concocted religious label termed as "Hinduism".

Therefore a singular religion ((Hinduism) as legally instituted by the British colonial government was unfortunately a religion from which most Indian peoples (except the "twice born" upper castes) were banned from participating or studying (sacramentally or scripturallly) because of the caste system, even though they were fraudulently declared as belonging to the same religion (as the "twice born" upper castes) by way of legal institution of the Hindu religion and Hindu civil law, which only had the effect of robbing the freedom of religion of castes which were lower to the "twice born" upper castes in the vertically graded caste hierarchy (backward castes), outcasts (Dalits), indigenous peoples and other native Indian religionists, while entrenching the caste system in the garb of a legally codified (Hindu) religion.

Chapter 7

How do Indian legal constitution, case law and statutory instruments violate freedom of thought, conscience and religion?


Fundamentally in India, the Hindu religious identity is not a matter of free and independent expression of the freedom to thought, conscience and religion, but a mandatory religious label imposed by law. In other words one is considered as a Hindu by religion according to law even if that person denies being a Hindu by faith or belief. This by itself is a vagrant violation of the freedom to thought, conscience and religion.

All those who are not Muslims, Christians, Jews and Parsis are automatically considered as “Hindus” by religion under Indian law (even if they deny being Hindus) and the religious personal law of Hindus (Hindu Civil Law) is automatically imposed on all of them.

This is a situation that is enabled by Indian legal statutes and the constitution. All those who are banned from the (sacramental and scriptural) study or practice of the Sanathan Dharma religion of the "twice born" upper castes (such as all those who are lower to the "twice born" upper castes in the vertically grade caste system) and all those who are not members of the Hindu religious society and hence are not in a position to practice or accept scriptural Hinduism of the "twice born" upper castes (and the hierarchical caste system sanctioned by scriptural Hinduism) are nevertheless legally, judicially and governmentally considered as “Hindus” and their freedom of thought, conscience and religion thus violated. Schools of thought, conscience and religion thus violated are as follows: atheism, Sikhism, Jainism, Buddhism, indigenous religions, native religions which are separate and independent of Hindu scriptural religion, religions of Dalits who are physically outcast and segregated from the Hindu caste society as untouchables and various schools of religion followed by various castes, including various caste groups in the vertically graded caste hierarchy which are lower to the "twice born" upper castes (backward castes).

The constitutional and legal statutes that enable these violations are as follows:

Article 25 of the constitution of India:

25. Freedom of conscience and free profession, practice and propagation of religion. -
(1) Subject to public order, morality and health and to the 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 and sections of Hindus. 

Explanation I. - The wearing and carrying of kirpans shall be deemed to be included in the profession of the Sikh religion.

Explanation II. - In sub-clause (b) of clause (2), the reference to Hindus shall be construed as including a reference to persons professing the Sikh, Jaina or Buddhist religion, and the reference to Hindu religious institutions shall be construed accordingly.


It is obvious from the above that Jains, Buddhists and Sikhs have been constitutionally stripped of their religious identity and freedom of religion by the constitutional imposition of Hinduism on them. Mr. J.D.M. Derrett comments on the above situation as follows [52]: “From this it was evident that ‘social welfare and reform’ could be operate as a justification for any attack upon the profession, practice and propagation of any religion". 
Other statutes and legislation in India that similarly violates the freedom of religion by clumping “all” who are not Jews, Muslims, Parsis and Christians as being “Hindus” are as follows: 

1. Hindu Marriage Act 25 of 1955
2. Hindu succession Act, 30 of 1956
3. Hindu Minority and guardianship act, 32 of 1956
4. Hindu adoptions and maintenance act, 78 of 1956.


Hindu Marriage act of 1955 states as follows:

This Act may be called the Hindu Marriage Act, 1955.
(2) It extends to the whole of India except the State of Jammu and Kashmir, and applies also to Hindus domiciled in the territories to which this Act extends who are outside the said territories.

2. Application of Act. - (1) This Act applies, -
(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, Prarthana or Arya Samaj;
(b) To any person who is a Buddhist, Jaina 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, unless it is proved that any such person would not have been governed by the Hindu law or by any 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.

Thus it is obvious that the religious identity of Hinduism as defined by law in India is more of a negative demographic classification, than a true reference to a school of thought, conscience and religion. It is obvious to anybody that these constitutional provisions and statutes in India do not just violate International human rights law defining freedom of thought, conscience and religion, but makes an absolute mockery of the tenet of the freedom of thought, conscience and religion, as enshrined in International Human Rights Law.

Thus all peoples in India, who are not Jews, Muslims, Christians and Parsis are automatically (by default) and legally deemed to be members of the Hindu religion on whom the Hindu Law and the Hindu religious label is applied, thus making them all constitutionally and legally “Shudras” because according to case law, all those Indians who are not "twice born" upper castes are Shudras [53]. (It is a different matter that “Shudras” are referred and described in profane terms such as “bastards” in various Hindu scriptures, thus theologically and legally bastardizing these peoples apart from robbing their right to thought, conscience and religion.)

From a legal point of view, the term “Sudras” refers to all who are not "twice born" upper castes [53], which includes (apart from those scripturally considered as “Sudras” or lower castes), Dalits, indigenous peoples and all native Indian religionists who are not Jews, Muslims, Christians and Parsis. This shows that even though the castes lower to the "twice born" upper castes consider themselves to be superior to outcasts and untouchables (Dalits) in the caste hierarchy, for the purposes of Hindu Civil Law and from the perspective of "twice born" upper castes, lower castes belong to the same group (Sudras) that is excluded from the study and practice of the "twice born" upper caste religion, along with the outcasts (Panchamas), indigenous peoples and other native religionists who are all considered as those who are inherently, legally and religiously excluded from the (sacramental and scriptural) study and practice of the religious scriptures of the "twice born" upper castes which forms the scriptural and legal basis for the Hindu religion and Hindu civil law, while being audaciously and simultaneously legally imposed with the Hindu religious label due to the legal situation in India. Similarly Jains, Sikhs and Buddhists also become “Shudras” based on the case law and the legal situation as mentioned above. As told before, this is akin to legally calling a billion people as Christian after banning them from scripturally or sacramentally practicing or studying Christianity, while also subjecting them to bigotry in the name of Christianity. Of course Christianity does no such thing and does not find itself as a perpetrator of such a fraudulent bigotry in the name of religion or law, but if one replaces the word “Christianity” with the word “Hinduism”, the audaciousness and gall of this legalized fraud will be more perceptible.

Chapter 8

A Legal definition of Hindu belief that is negated by the imposition of Hindu religious identity on peoples who do not subscribe to this belief:


A legal and judicial basis exists in India to describe what constitutes as a belief in Hinduism as a religion (and not as a system of social standing). This is based on a judgment delivered in a case by the Supreme Court of India, which was widely known as the “Sastangi” case. But Indian legal regimes (and Hindu Law) impose the Hindu religious identity on peoples and religions who do not subscribe to this belief system which has been judicially validated as a legal definition for the belief in a “Hindu” religion. Thus the laws in India and Hindu law continue to violate the freedom of thought, conscience and religion, by imposing the Hindu religious identity on peoples who follow religions that negate this philosophical belief which has been decreed as the “legal” philosophy of the Hindu religion. This philosophical definition of the belief in the Hindu religion based on the “Sastang” case, is described as follows by Mr.Derrett [54]:

“Acceptance of the Vedas with reverence; recognition of the fact that the means or ways to salvation are diverse; and realisation of the truth is that the number of Gods to be worshipped is large, that is indeed is the feature of the Hindu religion”.

This definition according to J.D.M. Derrett (based on the Indian Supreme court judgment in the "Sastang' case) brings out the broad distinctive features of the Hindu religion. But the legal reality in India is that very many schools of thought, conscience and religion which negate this fundamental belief (that is legally and judicially ascribed to be a “belief” in the Hindu religion), have been legally imposed with the Hindu religious label and the followers of these religions have been legally declared as “Hindus”, in abject violation of their thought, conscience and religion. Some examples of this situation are as follows:

The religion and school of thought followed by Lingayats, Jains, Buddhists, indigenous tribal peoples, Sikhs, atheists and members of various other non-Hindu native Indian religions (which either negate the “Vedas” or preach monotheism or atheism), have nothing to do with the aforementioned legal (judicial) definition of “Hindu religious philosophy” but never-the-less, they have all been legally imposed with the Hindu religious label in violation of the above Indian supreme court case law which propounds this legal definition of a fundamental belief in the Hindu religion. One especially wonders how Buddhism, a religion that negates God can be declared as a “Hindu” religion by constitutional and other legal statutory means in India, and also in violation of the Indian Supreme Court decision in “Sastang” case that deems belief in many Gods as one of the legal definitions of being a Hindu by philosophical religious belief.

Thus the only available legal definition of a Hindu belief system (on the basis of case law as found in the "Sastang" judgment of the Indian supreme court) is indeed violated by the various legal and constitutional regimes in India which forces legal membership of the Hindu religion on peoples who do not share this legally and judicially defined belief in the religion, but who are never-the-less, brought under the purview of the Hindu religious identity and Hindu religious civil law based on the Hindu religious scriptures (of the "twice born" upper castes), in violation of their freedom of thought, conscience and religion.

Chapter 9

The legally codified Hindu religious identity stands for a system of descent based social hierarchy and not for a free choice of religious belief:


Freedom of thought, conscience and religion according to various tools of International human rights law were seen at the outset of this dissertation.

Mr. Duncan Derrett, who is a legendary authority on Hindu Law, describes (in his own words) the nature of the Hindu religion, which negates any system of belief but only social standing as follows[55]:

“One is free to have any and every belief or no beliefs at all without forfeiting one’s religious denomination and affiliation. But on the other hand, if one’s social status is disturbed, it would follow that one’s religion is likewise in doubt”

“Religious affiliation is not a question of an individual’s belief, for on that footing he is free to believe or not believe in anything he likes, but of a social belonging”

“Change in personal belief does not mean a change in social belonging”


Thus it is obvious that what is considered as Hindu religion actually negates the fundamental right to define one’s religious belief in terms of freely exercising one’s freedom of thought, conscience and belief (as defined in International human rights law), but is rather a situation of social standing (which in Hindu terms is one’s caste descent), which cannot be altered by the exercise of one’s will, freedom, thought, conscience or belief in a faith. Thus the very basis for Hinduism as a religion negates the premise of freedom of thought, conscience and religion as defined in International Human Rights Law. That the Hindu religion (as backed up by Hindu Law) which was legally constituted by the British fails the test of religion as defined by meanings and definitions of conventionality and international human rights law instruments is obvious.

The British appropriated the societal caste system as a religion by ascribing the religious term “Hindu” to this vertically graded system of hierarchical descent based social standing. What the British called as a singular religion of Hinduism was not at all a religion in which all the people were equal members by way of a common belief system of thought, conscience and religion, like for example, members of Judaism, Islam, Buddhism or Christianity are. What the British called as a Hindu religion actually referred to a vertically graded system of caste descent based social standing and hierarchical caste descent based socio-economic occupational system. This British manufactured religious label (Hinduism) was legally imposed on all the tribes, castes and native religions that existed in India, who were all brought under the scriptural and legal authority of the "twice born" upper castes' religious scriptures - when ironically all these peoples were scripturally and customorily excluded from the (sacramental and scriptural) study, practice and membership of the religion of the "twice born" upper castes, despite being imposed with the mandatory Hindu religious identity which negated the individual expressions of thought, conscience and religion of all these peoples.

This was indeed a deviant scheme that had nothing to do with a conventional practice of a religion. This socio-cultural system based on a vertically graded hierarchical social standing and descent based bondage to an occupation is a system that was not based on the freedom of thought, conscience and religion, but a bigoted system of material economic exploitation and descent based bigotry (such as a society based on social segregation, slavery and bonded labour).

The British colonialists who came to India before the French revolution, ended up administering an imperial state and colonial holdings, and invented the socio-legal Hindu identity and the Hindu civil law (as described above), without realizing (or indeed realizing) that they were equating an hierarchical and vertically graded descent based bigoted system of social standing and pre-ordained vertically graded descent based occupational system as a “religion”. May be the British did this consciously in order to secure the vertically graded caste hierarchical bigoted system for the advantage of the British colonial economy and industry, so that the "twice born" upper castes served the interests of British imperialism.

The truth is that each and every caste at any level of the vertically graded and bigoted caste system (including those outside the caste system such as Dalits and indigenous peoples) were free to believe in any form of religion or religious worship they wanted to, which had nothing to do with the "twice born" upper caste religious scriptures that were deemed as the legal basis for the Hindu religion and Hindu Law as codified by the British. Thus all individual rights to thought, conscience and religion of lower caste groups (Other Backward Castes), Dalits (scheduled castes), indigenous peoples and other native religionists were lost, and all of these peoples' religions’ lost the right to their independent socio-legal recognition as a religion under Indian law, because of their usurpation by the legal codified Hindu religious label by way of the institution of a Hindu legal identity as a religion based on Hindu Law, as described above.The religious and scriptural authority of the "twice born" upper caste religion as codified by the British in Hindu law - further subverted these rights, which was not the case before the British institution of the Hindu Law and the Hindu religion.

This violated the freedom of thought, conscience and religion on the following counts:

(1) Imposing a (Hindu) religious label on a people [Shudras - backward castes, Dalits - scheduled castes, indigenous peoples - scheduled tribes and other native Indian religionists] who did not have the sacramental or scriptural right to the study and practice of the sacred scriptures of that (Hindu) religion and who did not have the sacramental and scriptural right of membership in that (Hindu) religion, which per se is a gross violation of the freedom to thought, conscience and religion. For example, from a subjective standpoint, even though I am legally considered to be a Hindu in India, I was (and am) not allowed to study in a Hindu seminary when I expressed interest to study the Hindu religion to be a Hindu theologian or priest, because only Brahmins and "twice born" upper castes are allowed the sacramental and scriptural study, practice and membership of the Hindu religion in Hindu religious seminaries.

(2) Negating any and all individual schools of thought, conscience and religion (except for Judaism, Islam, Christianity and Zoroastrianism) by denying the legal recognition to these independent religious schools [of lower castes (backward castes), Dalits (scheduled castes), indigenous peoples (scheduled tribes) and other Indian religions) by legally subverting and usurping them by way of the legal imposition of the Hindu religious identity and Hindu law on one and all in India (as described above), and legally instituted subservience to the scriptures codifying the Hindu religious identity and the caste system (as in the British codified Hindu civil law), on all of these individual and diverse schools of religions and religionists in India.

(3) Legally instituting a system of vertically graded and bigoted caste descent based social standing (and not independent and free choice of belief in a faith) as a religion, which violates the international legal definition of what a religion should be (based on International Human Rights and Humanitarian Law).

As it was established above, the scriptural religion (“Sanathana Dharma”) of what is considered today as “legal” Hinduism under Hindu (civil) law is actually the religious preserve of only the "twice born" upper castes belonging to the “twice born”, "regenerate" and “superior” hierarchical divisions of the caste system, namely the priests (Brahmans), warriors (Kshatriyas) and the merchants (Vysyas).

Indeed, (as it was seen from above) those at the lower levels of the vertically graded bigotry of the caste system (Shudras- the so called backward castes), and those outside the caste system (outcasts or Panchamas who are referred to as “Dalits” or “scheduled castes”), were never given the theological, religious or legal right to learn, practice, observe, preach or believe in the “religion” of the "twice born" upper castes, while they were all free to follow their own forms of thought, conscience and religion. Thus this collective system of vertically graded caste descent based hierarchical and segregationist system of economic and occupational exploitation and bigotry was falsely ascribed as a religion, while any individual free choices and free expressions of thought, conscience and religion by any individual member or individual caste of the caste system was never accorded the status of an independent religion, but was subverted and usurped by the legally instituted Hindu religious identity which simply applied the Hindu religious label to all those who were considered as members of the caste system, with the religious scriptures of the "twice born" upper castes (including the scriptures that codified the caste system) forming the legal basis for such a legally instituted Hindu religion.

To give a comparative (hypothetical) example for this situation is to ascribe (hypothetically and metaphorically) a religious identity for the erstwhile Apartheid system practiced by the South African Afrikaners as the “Afrikaan” religion, with the Afrikaners as the "twice born" upper castes, mixed races as lower castes and South African indigenous populations as outcasts and untouchables! (Please remember that this is just an hypothetical analogy!) And in addition, calling all those peoples oppressed by the apartheid system as “Afrikaan” by religion and also branding the religions of those oppressed by this apartheid system as a “part” of the “Afrikaan” religion, while also considering white Afrikaners as members of the "Afrikaan" religion, thereby denying and negating the independent freedom of thought, conscience and religion of those peoples oppressed and segregated by the Apartheid system! I hope this hypothetical and metaphorical example brought out the essence of the socio-legal fabrication of the Hindu religion by British colonialists (who did not have the patience, intellectual honesty, liberalism or the tolerance to recognize and record the manifold diverse religions of India which they negated by clumping all peoples of India who exercised diverse thoughts of conscience and religion as members of one singular religion invented and codified by British Law.

As a matter of fact, the British went onto give the backing and force of the British Indian state for the enforcement of every bigoted tenet of the caste system by way of the Hindu civil law that was instituted and enforced by the courts of British India. Marriages between couples belonging to different castes were declared as illegal by British Indian courts on the basis of the Hindu Law that legalized the religious scriptures of the "twice born" upper castes that codified the caste system. Inter-caste marriages were made legal only after independence from British rule when Dr.B.R.Ambedkar was the law minister. This further proves that Hindu religion and Hindu Law only served the purpose of protecting and securing the hierarchical and vertically graded stratification of the descent based occupational and socio-economic system of bigoted and vertically graded social caste standing - by penalising marriages across caste barriers and by recognizing only arranged marriages based on caste identities, for which the full force of British Law and state machinery was accorded, in the name of “religion”! This situation did not change until the year 1949, which was after the end of British rule in India. Mr. Derrett[56] says “marriages between persons of different castes was void until 1949 (Act No.21 of that year), and this reform was continued in sections 5 and 29 of the Hindu Marriage Act. Thus the British played a major role in saving and securing the caste system for modern and post-modern times by legally institutionalizing and enforcing caste based forced marriages and the scriptures that codified the caste system in the name of a colonially invented religious label and religion based law that was singularly based on British parliamentary legislation and British case law!

The same Hindu Law deemed that an adoption was illegal if an adopted son hailed from a caste that was different from that of the adopting father, which was also enforced by British and Indian courts [57] until this was reformed just a few years ago ! Any act that resulted in the “loss of caste” of an individual was also challenged under the purview of the Hindu Law, which was dutifully enforced by British and Indian courts based on the Hindu Civil Law[58]. Similarly, divorce of any married “Hindu” woman was illegal[59] until a law was legislated (after the British left India) to legalize the right of divorce of “Hindu” women under the stewardship of Dr.B.R.Ambedkar. It is needless to add that denying the right of divorce to Hindu women and denying their right of remarriage to any man of their choice, further strengthened the stratification of society based on the vertically graded and hierarchical caste system - by way of the caste based system of arranged marriages which could not be defied or threatened even by divorce, because divorce may lead to "twice born" upper caste Hindu women or any woman in the vertically graded bigoted system (possibly) marrying any man of their liking (including men belonging to a lower caste in the vertically graded system or outcast background), thus weakening the caste system, which cannot be allowed to happen. While “Hindu” women were denied the right to divorce by Hindu Law, the same religious Hindu Law gave “Hindu” men the right to polygamy, which was abolished by way of legislation only after independence from British rule. Based on the same Hindu Law “Hindu” women were denied equal inheritance rights to property on par with men, in order to deny material power to women who may damage the material basis of the upper castes in the vertically graded caste system by marrying outside their caste. Until to this day “Hindu” women do not have absolute equal rights to inheritance of property on par with men and this has still not been fully rectified by legislation, due to unstated (but apparent) fears that materially empowered women may marry outside their caste and damage the material basis of the caste of their descent and the caste system, which also motivates the killing of couples who marry across caste barriers.

Thus it is evident that the Hindu law and the Hindu religion were seen and enforced by the British and Indian legal establishments as an institution of the vertically graded, hierarchical and bigoted caste system than as a system of free choice of belief  in thought, conscience and religion. Essentially, the legalized Hindu religious identity (as enforced by the Hindu Law) was nothing but an apartheid law that sanctioned and enforced all the tenets of the bigoted caste system under the garb of a religion.

Various other (but not all) bigoted tenets of the caste system which were legally packaged as a (Hindu) religion by way of Hindu law (by the British colonialists in cahoots with the only literate non-British Indian peoples at that time, namely the Brahmans and "twice born" upper castes), was marginally negated by specific legislations initiated by few idealist leaders during the early stages of post-colonial India, (and those idealists such as Dalit leader Dr. B.R. Ambedkar mysteriously died quite early too, before they could complete their task).

By equating a vertically graded bigoted system of hierarchical social standing, social segregation and pre-ordained caste descent based labour as a “religion”, the real and practical expressions of thought, conscience and religion of those castes and peoples (who were denied access to the practice, observance and learning of the religion of “twice born” upper castes), such as the religions of lower caste groups (backward castes), outcast Dalits (scheduled castes), indigenous peoples (scheduled castes) and other native Indian religionists which had nothing to do with Vedic Hinduism of the “twice born” upper castes, were all denied the legal recognition of a religion independent of Hinduism, while they were legally branded as “Hindus” and forcibly brought under the theological, socio-cultural and legal authority of the Hindu religious identity and the Hindu Civil Law, which should count as the most blatant and audacious violation of the fundamental freedom to thought, conscience and religion which ever occurred in the history of humanity. Hence, the “Hindu” religious identity is actually a caste descent based vertically graded system of social standing, but not a system of universal and singular religious belief based on the freedom to thought, conscience and religion.

This vertically graded and hierarchical social and occupational system of social standing, which the British wrongly called as a (Hindu) religion, was inherently a system that enforced a caste descent based labour and occupational system, but it never prescribed a uniform and singular study, observance and practice of a scriptural religion for all who lived in that vertically graded and bigoted system of hierarchical descent based social standing. As a matter of fact, (as it was seen from the statements and analysis above), one has to reiterate that those in the lower levels of this hierarchical and vertically graded system of bigotry (backward castes) and outside this system (scheduled castes) were excluded from the study, practice and observance of the scriptural, sacramental and ritual religion of the three "twice born" upper and superior castes, whose scriptural religion was usurped by the British for codifying their new religion called “Hinduism”.

The fact that Hinduism does not stand for a school of religion, thought or conscience as known to conventional usage of the word “religion” should be very obvious. Personal belief, which is the cornerstone of any school of thought, conscience and religion, is rendered unnecessary in Hinduism, which is more about social standing in the vertically graded caste system than any belief system. Thus the practice of (the legally defined religion of) Hinduism fails the conventional test for a religion (based on international human rights law) but passes the test for a system of hierarchical and vertically graded caste descent based social standing and caste descent-based occupation.

“Varnashrama Dharma” was the bigoted caste system followed by the twice born upper castes, while “Sanathana Dharma” was the religion of the "twice born" upper castes. The social and occupational duties imposed by this system of hierarchical and vertically graded social standing and caste descent based forced occupation was given the status of a (Hindu) religious code and (Hindu) religious identity, thus legally concretizing the social and economic bondage of those in lower echelons of the caste system (backward castes) and outside the caste system (Dalits) in the form of a modern, but colonially invented religion. The tenets of the caste system were enforced by way of Hindu Law (and are still enforceable under Hindu Law in India) except for certain post-colonial Indian legislations that outlaws overt atrocities against Dalits and makes allowances such as inter-caste marriages. This in fact proves that the vertically graded system of caste has not been banned in India legally or otherwise, because in order to ban the system of caste in India one has to ban Hindu Law, since the latter is based on the scriptures codifying caste. Any real ban on the caste system has to ban the legally codified Hindu religion, thus exposing the fact that the legally codified Hindu religion actually stands for the caste system and not for a free expression of thought, conscience and religion.

To the credit of the three "superior" and "twice born" upper castes, they never pretended that Shudras (lower castes or backward castes) and Panchamas (outcasts – Dalits or scheduled castes) or indigenous peoples (scheduled tribes) can study, practice or observe the scriptural or sacramental religion of the three "twice born" upper castes called Sanathana Dharma, which they differentiated from the system of hierarchical and vertically graded social standing and caste descent based occupation that was called “Varnashrama Dharma”. But the British did not make this differentiation and clumped the victims of Varnashrama Dharma (caste system) as members of “Sanathana Dharma” (in connivance with the "twice born" upper castes), even though the Shudras and Panchamas never had any access to the study, practice and observance of the scriptural and sacramental religion of Sanathana Dharma except for the three "twice born" superior castes of the vertically graded caste system, who are bigotedly considered by the scriptures of Sanathana Dharma (and Hindu law based on the latter) as being “twice born” and regenerates”.

If the British had made the effort to differentiate the religious and scriptural belief systems of the "twice born" upper castes from that of the thoughts, conscience and religion expressed by the castes and peoples bonded by the "twice born" upper castes and the caste system, they would have applied the new religion (Hinduism) based on the scriptures of Varnashrama Dharma and Sanathana Dharma on only the "twice born" upper castes and not on all peoples of India who did not have the right of access to the study or practice of the religion of the "twice born" upper castes.

By legalizing a bigoted system of hierarchical and vertically graded social standing as a (Hindu) religion without enabling the victims of Varnashrama Dharma (caste system) to gain equal membership in the scriptural and sacramental practice of the (Hindu) religion of the "twice born" upper castes, which effectively destroyed the freedom of thought, conscience and religion of all the peoples subjugated by the "twice born" upper castes (such as backward castes, scheduled castes and scheduled tribes), apart from negating the independent religious identities of various schools of thought, conscience and religion that existed among the lower castes, Dalits and indigenous peoples, the British did a great injustice (in cahoots with the Brahmans and the "twice born" upper castes).

Some of the schools of thought, conscience and religion of lower castes, Dalits and indigenous peoples which were clumped with the religion of Sanathana Dharma by way of the legally instituted Hindu civil law and Hindu religion, never gained access to legal recognition of their freedom of thought, conscience and religion independent of Hinduism. The practitioners of these non-Hindu religions never had any access to the study, observance and practice of the Sanathana Dharma religion of the "twice born" upper castes. Hinduism legally sanctified the bigoted system of hierarchical and vertically graded social standing and descent based occupational system as a religion, while denying these non-Hindu (non- "twice born") religionists any access to independent legal recognition of their freedom of thought, conscience and religion independent of Hinduism. Thus the independent schools of thought, conscience and religion that existed among lower castes, Dalits and indigenous peoples were legally destroyed and made subservient to the scriptural religion of the three superior "twice born" upper castes (who were bigotedly considered as “twice born” by their religion), while the hierarchical and vertically graded bigoted system of caste social standing was legally recognized as the part of the newly instituted Hindu religion by the British.

Thus the lower castes, Dalits and indigenous peoples saw their freedom of religion being negated but their (lower) social and occupational standing in the caste descent based hierarchical and vertically graded caste system strengthened by the institution of the Hindu religious identity and Hindu civil law by the British. No wonder some commentators say that the British were responsible for entrenching the caste system in India by way of codifying the Hindu religion by way of colonial Hindu law (which is still in vogue in India).

Some of the religions of the lower castes, Dalits, indigenous peoples and native religionists which were denied their freedom of thought, conscience and religion and a legal religious identity independent of Hinduism because of the institution of the Hindu religion and Hindu Law (which is based on the religion of the "twice born" upper castes), are described in the following chapter.

Even today the Hindu civil law is based on the scriptures that codify the caste system and all matters pertaining to the civil rights of all those who are not Muslims, Christians, Jews and Parsis (Zoroastrians) is determined by the body of Hindu Civil Law. This situation entrenches various bigoted tenets and practices of the hierarchical, vertically graded and bigoted system of descent based social standing and forced occupational status on those who are in the various receiving ends of this bigotry (except for a few bigoted tenets such as the legal ban on inter-caste marriages that has been reformed or corrected by subsequent parliamentary legislation of “independent” India which were appended to the Hindu Civil Law).

It is obvious that Hindu civil law was based on scriptures that preached an oppressive and exploitative civil, behavioural, hierarchical and descent based occupational system of vertically graded social standing and labour, which was imposed by the three hierarchically superior ("twice born" upper castes) on the Shudras (backward castes) and the Panchamas (scheduled castes), and this is certainly not a law or system based on the assertion of the freedom of thought, conscience and religion on the part of the Shudras and the Panchamas. This system was given the force of British Law by the legal and colonial institution of the Hindu religion and Hindu Law, which negated the individual religions of those oppressed by the caste system by bringing them under the purview of the religious scriptures and religious authority of the "twice born" upper castes, particularly the Brahmins.

As a result of this, Shudras (backward castes) and Dalits (scheduled castes) had to fight (and are still fighting) to make inroads into the study, practice and observance of the scriptural and sacramental religion of the "twice born" upper castes imposed on them by way of the British institution of the Hindu religious identity (for no avail), even though they won the right to enter and worship in the temples meant for the "twice born" upper caste (Sanathana Dharma) religion during the early part of the twentieth century and in post-independent India.

But in many parts of India, Dalits (outcasts or scheduled castes) are disallowed from entering both the temples of Shudras (lower castes) and also the temples consecrated by the upper three superior "twice born" castes in the Hindu system of vertically graded social standing. Shudras are generally allowed to enter the temples consecrated by the upper three "twice born" castes but not allowed to study, practice or observe the scriptural and sacramental religion of the upper three “regenerate” or "twice born" castes, and are also banned from priesthood which is the hierarchical descent based preserve of the “most superior” Brahman caste. And all the native religions (independent of the "twice born" upper caste religion of Sanathan Dharma) that may be practiced by the lower castes, outcasts and indigenous tribes still continue to be referred to as “Hinduism” as a matter of law in India.

In the words of Mr. J.D.M. Derrett[60] it can be summarised as follows: “The Hindu system gave everyone his place in every possible contingency; individuality was not prized, disobedience was anathema; functions were fixed by the caste system; and sources of pressure (outside the wild and barely Hinduised tribes) were many".

Chapter 10

Religions of those peoples who were not upper castes, which were legally negated by Hindu law and Indian laws:


Since the freedom of thought, conscience and religion of those oppressed by the caste system at various levels has been violated and denied by the legalised religious institution of a vertically graded caste descent based hierarchical and bigoted system of social standing under the false garb of a religion, various religionists belonging to lower caste, Dalit, indigenous and other native religious backgrounds started fighting for "equal rights" in the newly constituted and legally fabricated Hindu religion, (such as gaining various forms of access to learning, observance, practice and membership of the "real" scriptural religion of the twice born upper castes, but in vain, except for gaining “rights to temple entry” and (to a lesser extent) to work as “priests” in temples patronized by their respective castes which are not consecrated by the "twice born" upper castes. This they had to do because, having lost any access to an independent legal status to their own religion and with the imposition of the new religious identity of Hinduism on them, the only other choice they had was to gain equal access to all aspects of the study and practice of the religious scriptures of the "twice born" upper castes which formed the basis of the new religion that was imposed on them. But this was no easy task and is still a non-starter for most of them. For example, a law enabling men and women of all castes to train and work as Hindu temple priests in the state of Tamil Nadu was abrogated by the Indian supreme court by citing the bigoted tenets of the caste system codified and sanctified by Hindu (civil) law.

But the legal institutionalization of the Hindu religious identity is so strong and the constitutional validity for such a religion so great, that those lower castes, Dalits, indigenous peoples and other native Indian religionists who find their expressions of thought, conscience and religion being subverted by the legal Hindu religious identity can do nothing except to turn their religious identity into another “caste” in the legally recognized Hindu religion and the social milieu sustained by it. This was already happening in various parts of India[61] where the hegemony of the “twice born” religion denied the freedom of thought, conscience and religion of those subjugated by the caste system.

We saw that independent religious identity (if any), of lower castes (and outcasts) in this hierarchical, vertically graded and bigoted system of social standing was negated and violated by the British institution of the Hindu religion and Hindu law that legally recognized only the scriptural religion of the upper three "twice born" upper castes while also legally equating the system of hierarchical and vertically graded social standing with that of the Hindu religion. As it is evident, the British instituted Hindu religion was primarily based on the religious scriptures of the twice born upper castes and those scriptures that codified the caste system which were referred to as the “Shastras”, (from the study and practice of which most of those oppressed by the caste system such as backward castes, scheduled castes and scheduled tribes were excluded and banned). Even though the local customs was given importance in the interpretation of the Hindu law, the primacy of the “scriptures” or the “Shastras” of the "twice born" upper castes as the basic codification of the Hindu Civil law prevailed.

As a matter of fact, the British Indian Government (followed by the Indian Government independent of the British) applied the Hindu Civil law and the Hindu identity on all those who were not following Islam, Christianity, Judaism and Zoroastrianism. This was based on the false and willfully wrong assumption that all those who did not profess the aforesaid four religions belonged to a “single” religion called Hinduism. The truth is that before the British codified the Hindu religion and Hindu Civil law and legally instituted the “Hindu” religion, there was no single religion (least of all a religion called “Hinduism”) that was followed by all of the Indian peoples who were not Muslims, Christians, Jews and Parsis. But there was one religion which was exempted by the British from the legal imposition of the Hindu identity and that religion was Buddhism, but this situation was reversed by the Indian Government after independence when the Buddhist religion was also brought under the purview of the Hindu civil law and the Hindu religious identity legally and constitutionally, thus violating the fundamental premise of the freedom to thought, conscience and religion of the Buddhists in India. This situation with regard to Buddhism will be further analysed in an ensuing chapter.

Before the legal institution and invention of Hinduism by the British, various Indian peoples followed various native religions based on their tribal and caste status.

Most of the peoples who occupied a lower social standing in this hierarchical and vertically graded descent based system of social standing (Shudras) and the peoples who were outcast from this system of social standing as untouchables (Dalits) apart from the indigenous peoples and atheists, indeed followed their own (but many) schools of thought, conscience and religion in terms of worship and belief, while appeasing this bigoted system of hierarchical and vertically graded social standing and forced occupational status. Thus for these peoples, the system of hierarchical and vertically graded social standing and descent based occupation was independent of the system of thought, conscience and religion they believed in.

The so-called “Shudras” (backward castes), Dalits (scheduled castes) and indigenous peoples (scheduled tribes) did not follow the religious belief system of the three superior "twice born" upper castes whose scriptural religion formed the basis of the British codified Hindu religion. This was simply because they (Shudras, Dalits and indigenous peoples) were explicitly excluded from the study, practice and observance of the Hindu scriptural and sacramental religion of the "twice born" upper castes. Thus, while appeasing the bigoted system of vertically graded social standing that was imposed on them, various Shudra (sub) castes and Dalit groups created or formed their own religions and spiritual belief systems which had nothing to do with the scriptural belief systems of the religion (Sanathana Dharma”) followed by the three "twice born" upper castes in the upper echelons of the caste system.

Thus, when the British codified a singular socio-legal Hindu religion based on the scriptures of the three hierarchically superior ("twice born" upper) castes as the new “Gentoo” (Hindu) religion, a bigoted system of vertically graded social standing was falsely (equated with) and (audaciously) converted into a system of thought, conscience and religious belief, thus robbing the freedom of thought, conscience and religion of those in the lower levels (and outside) of this system of social standing. As a result, the religion, thought and conscience of the lower castes (backward castes) and outcasts (scheduled castes and scheduled tribes) in this system of hierarchical social standing was (falsely) determined to be the same as that of the "twice born" upper castes in the upper (three hierarchical) levels of this vertically graded descent based and bigoted system of social standing, thus legally entrenching the caste system of social standing as a matter of socio-legal religious belief, while also destroying the independent identities of various schools of thought, conscience and religion followed and founded by the lower castes (Shudras) and outcasts who were forced with this bigoted system of caste based and vertically graded social standing. 

Most of the “Shudras” did indulge in many expressions of thought, conscience and religion apart from dutifully serving the caste system while also being excluded from the religion of the "twice born" upper castes. 

“Shudra” (lower caste) and “Panchama” (outcast) peoples who may fall under the category of agnostics or atheists were also “Hinduised” by the British instituted Hindu religion and Hindu Law.

Thus any schools of thought, conscience and religion that were founded and followed by the peoples of Shudra and Dalit background were legally “Hinduised” by the institution and imposition of the Hindu religion and Hindu civil law, thus forever preventing the liberation of these peoples from the bigotry of the vertically graded, societal, economic and legal system of hierarchical social standing by way of professing a new religion, because the bigoted system of vertically graded social standing was itself legally instituted as a religion. This development permanently destroyed the opportunity of liberation (from the caste system) that was offered to these peoples through an expression of thought, conscience and religion that was independent of the religion of the "twice born" upper castes.

Because of this situation, the only way of using freedom of thought, conscience and religion to escape from the yoke of the bigoted caste system is by conversion to Islam and Christianity, (because these are the only two proselytising religions whose right to thought, conscience and religion has not been violated by the Hindu Law). But before the institution of Hindu Law and the Hindu religion by the British, expression of various native forms of religion, thought and conscience was a powerful way to assert the peoples’ rejection of the "twice born" upper caste religion based on the caste system, until all these diverse forms of thought, conscience and religion of backward castes, scheduled castes and scheduled tribes were subverted by the very religious scriptures and the caste system codified by the upper caste religion, by way of the British instituted Hindu law and Hindu religion.

Some of the religions professed by various peoples in the caste system which were thus negated by the legal institution of the caste system and the religious scriptures of the "twice born" upper castes as the new Hindu religion, thus turning these religions as castes or sects of the British instituted Hindu religion under the Anglo-Hindu law are as follows[62]:

The Lingayat religion[63]: this is a religion that negated every aspect of the scriptural basis of the "twice born" upper caste religion but was nevertheless brought under the legal umbrella of the Hindu religion by the British. A person called “Basweswara”, who was himself from an upper caste background but disowned his caste and religion, founded this religion. His message negated all aspects of "twice born" upper caste scriptural religion and was casteless. But tragically, members of this religion have been turned into a “Shudra” caste and have been legally brought under the umbrella of the Hindu religion, based on the various legal regimes that violates freedom of thought, conscience and religion as described above.

The indigenous tribal religions of aborigines[64]: It is needless to say that aborigine peoples’ religions have nothing to do with the scriptures of the "twice born" upper caste religion, but they (too) have been victims of the legal regimes that forces the “Hindu” religious identity and Hindu religious Law on “all” peoples of India who are not Muslims, Christians, Jews or Parsis, thus legally forcing them under the Hindu religious identity.

The native religions of Shudra (lower) castes (backward castes) and Panchama (Dalit) outcasts, which were exclusive and independent of the scriptural religion of Sanadhana Dharma (which is the Sanskrit name for the "Hindu" religion of the "twice born" upper castes), were again “Hinduised” in the manner described and analysed in the preceding chapters and passages.

"Native indigenous religions" founded and followed by Dalits (outcasts), Bahujans (backward classes or those in the lower levels of the caste hierarchy), and indigenous tribal people that involve animal sacrifices, tribal pagan worship, non-Sanskrit and non-"twice born" rituals, non-Vedic and non-Upanishad scriptures, use of non-Sanskrit languages and indigenous traditions, should all be classified under "indigenous Dravidian religions" and not as "Hinduism", but identified by their specific names. But the legal imposition of the Hindu religious identity and the Hindu Law on all of such non-Hindu religions makes this impossible. Those lower caste (backward caste) Hindus who have accepted Sanskritic Hindu "twice born" scriptures and rituals along with their inferiorized socio-religious status in the Hindu religion, can feel free to call themselves as "Hindus" and worship in “Hindu temples of those who are legally designated as “twice born” peoples. But those of the so called "Shudra", "Panchama" or "indigenous tribal" background who follow indigenous Dravidian religions which have nothing to do with the Sanskritic and hierarchical and vertically graded caste based religion of the "twice born" Hindus, should be identified as belonging to "Dravidian indigenous religions" and their respective spiritual school of thought, conscience and religion should be described by their specified name. But the generic and false "Hindu" identity should never be forced on them in any form. But that is not the case currently and the Hindu religion and Hindu law is forced on all of such non-Hindu religions in various ways as described above. 

But whenever a non-Hindu Indian religion is founded or followed by a person of Shudra, Panchama or a indigenous tribal background in India, the Brahman and other "twice born" individuals come to the place of worship and co-opt the new religion into Hinduism ("Hinduisation") by doing the following
[65]

** Installation of a Brahman priest and Sanskrit rituals, by theologically "Hinduising" the non-Hindu temple. 

** "Hinduisation" of the temple or place of worship of a particular "indigenous Dravidian religion", by bringing the non-Hindu place of worship under the Government department or legal regimes which administers or oversees Hindu temples. 

** Invention of a mythological story to connect the new non-Hindu religion with the Hindu pantheon of pagan Indo-Aryan Gods and their mythological stories. 

** Enforcing the ever present Indian legal regimes that declares all who are "not" Muslims, Christians, Jews and Parsis as being “automatically” Hindus, thereby legally branding the followers and founders of any particular non-Hindu "indigenous Dravidian religion" or non-Hindu Indian religion as "Hindus" for all practical legal, social, cultural and political purposes. 

Examples of such indigenous (non-Hindu) Dravidian religions are[66]

Dravidian Saivism (worship of the symbolic representation of the phallic and vaginal sexual union in the form of the "Lingam and the Yoni"), which has been radically and thoroughly "Hinduised" with the forcing of the Hindu identity on  Saivism culturally, socially, theologically and legally. 

Lingayatism: (Religion founded in the Karnataka state which dissociates from Brahmanic Sanskritic Hindu religion while expounding a facet of Dravidian Saivism). 

Tribal Muruganism: (Worship of the Tamil tribal deity Murugan) whose temples are predominantly found on hills. 

Vadalur Vallalarism: (Religion of Light worship),

Madurai Veeranism: (Worship of “Madurai Veeran” by Dalits and other backward castes. 

Ayyanarism: Worship of a rural indigenous God (termed “Ayyanar”) with animal sacrifices and liquor by backward castes and Dalits. 

Naga religion: snake worship. 

Mari worship: Worship of the trunkless head of Goddess "Mari" which is common among coastal fishing folk in Tamil Nadu state. 

Muniaandism: (Worship of tribal God “Muni Aandi”). 

Tree worship: (Worship of certain trees is very much a indigenous religion among indigenous tribal people, Dalits and lower (backward) castes in India). 

And this list may go on. But unfortunately almost all of these indigenous and non-Hindu native (or Dravidian) religions have been llegally and socially "Hinduised" by the "twice born" upper caste Sanskritic Sanathana Dharmists (Hindus) to perpetuate the false sociological mirage of a majoritarian society of a singular religion, which could be usurped for sustaining the power, elitism and perks enjoyed by the "twice born" upper castes as the ruling classes of India in all aspects of the state bureaucracy, military, media, culture and politics with the connivance of those representing the so called "Shudra" and "Panchama" classes. For this very purpose, even Buddhism, Jainism and Sikhism have been constitutionally Hinduised in India, as it is evident from the above analysis.

Thus non-Hindu Indian religions that challenged the caste system ended up as a part of the caste system and under the socio-legal label of Hinduism, due to the legal and social negation of their independent non-Hindu religious identity by the British legal institution of the Hindu religion, since the latter legally recognized and codified only the scriptural religion (Hinduism) of the "twice born" upper three castes that which imposed on peoples (backward castes, Dalits and indigenous tribal peoples) who were not allowed to scripturally study or ritually practice the Hindu religion of the "twice born" upper castes, while also legally equating the system of hierarchical and vertically graded social descent with that of the new Hindu religion. And over time, these non-Hindu religions were reduced to castes under the socio-legal umbrellaa of Hinduism and followers of these religions were also reduced to practitioners of the caste system (as it did happen in the case of Sikhs, Jains, Lingayats, etc).

Chapter 11

How is the freedom of religion of Buddhists violated?


One need not again go into the various constitutional and legal regimes in India that forces the Hindu religious identity on Buddhists, by declaring Buddhists as being “Hindus”, which is a situation that is imposed on “all” who are not Jews, Muslims, Christians and Parsis (Zoroastrians). But in the case of Jains, Buddhists and Sikhs, they are “Hinduised” also constitutionally by way of article 25 of the Indian constitution. A religion such as Buddhism that negates God has been illegally brought under the legal identity of Hinduism, in contravention and contradiction of the tenets of Hindu religious belief as codified by the judgment of the Supreme Court of India in the "Sastang" case (Shastri Yagnapurushadji Vs Muldas Brudards Vaishya 1966 SC 119) which states as follows: "Acceptance of the Vedas with reverence, recognition of the fact that means and ways of 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". Thus the vast number of non-Hindu Indian religions which does not accept the Vedas with reverence and which does not believe in plurality of Gods or ways of salvation, have ended up as being legally and socially part of "Hindu" religion, due to the legal regimes described above in contravention of the judgment in (Shastri Yagnapurushadji Vs Muldas Brudards Vaishya 1966 SC 119) which propounds the aforementioned legal and judicial definition of a belief in the Hindu religion.

It is obvious from the above statements and analysis that the Hindu religious identity is imposed on the Buddhists of India by way of constitutional and legal means that forces the Hindu religious identity under Hindu civil law on all those who are “not” Muslims, Jews, Christians and Parsis, apart from the specific provision of article 25 of the Indian constitution that clearly imposes the Hindu religion and Hindu Law on Buddhists, Sikhs and Jains. This situation, coupled with campaigns of Hindu fascist zealots that propagates and falsifies Buddha as a Hindu God and usurpation of Buddhist temple management by Hindus (including the medieval Bodh Gaya Temple
[67] in which Buddha was supposed to have attained enlightenment), has made it legally and theologically impossible for Buddhists to practise their religion independent of the legal and constitutional tag of Hinduism and Hindu applied to Buddhism and Buddhists in India.

Moreover the legal and constitutional regimes in India that declares Buddhists as being actually “Hindu” by religion, and thereby bringing all Buddhists under the purview of Hindu Law, is a development that took place after the independence of India from Britain. This is because case law exists in terms of British Privy Council judgments (during the period of British rule in India), that clearly decrees that Hindu law in civil matters (especially in matters of inheritance) should not be imposed on Buddhists. An example of such case law can be found in the privy council Judgment in Tan Ma Shwe Zin and Others v Khoo Soo Chong and Others Privy Council [1939] 4 All ER 4, where it has been clearly decreed that Hindu Law cannot be applied on Buddhists in matters of inheritance, which exactly is the case in India currently. This is because all (Indian) Buddhists have been decreed as Hindus in India and brought under the purview of the Hindu civil law and various legislation that pertains to Hindus, including the Hindu laws on inheritance. Therefore the violation of freedom of thought, conscience and religion imposed on Buddhists in India, contravenes even the judicial precedence set by British case law during the colonial period, when Buddhists were not subjected to Hindu Law, but only to Buddhist customary Law.

Chapter 12

Conclusion and Solution.


Hence it is obvious from the above that the legal violation of the freedom to thought, conscience and religion in India is manifold which need not be reiterated or restated. But they can be briefly summarised as follows:

§ Fundamentally sustaining a legal and constitutional regime which “forces” a religious identity on all peoples by legal statutes and constitution, (that declares all people resident in India as members of the Hindu religion except Jews, Muslims, Christians and Parsis), by negating the basis of individual free choice of thought, conscience and religion. This situation violates the thought, conscience and religion of all those who do not subscribe to the philosophy of Hinduism, including the Sikhs, Buddhists, Jains, Lingayats, atheists and various others who follow native non-Hindu indigenous religions and non-Hindu religious schools of thoughts which are theologically independent of legal Hinduism as codified by the "twice born" upper caste scriptures of Hindu Law.

A system of vertically graded bigotry of social descent is legally codified as a religion, by imposing the religion of the "twice born" upper castes on other lower castes and social groups in the caste system and also on those outside the caste system (such as Dalits and indigenous tribal peoples), thereby violating the freedom of religion of these peoples who do not have the legal right of access to the religious or seminary study of the scriptures or observance of sacred rites of the "twice born" upper caste religion, by causing the following two effects:

§ Legally forcing the Hindu religious label on any non-Hindu religion, thought and conscience practised by those lower castes (backward castes), outcasts (Dalits), indigenous tribal people and groups (who have no legal right of  access to the scriptural study or sacramental observance of the "twice born" upper caste religion),  even though the non-Hindu religion does not subscribe to the belief system that has been legally codified as the fundamental tenets of Hindu religion under Indian case law by way of legal precedence and in Hindu law, thereby denying those who follow these non-Hindu schools of thought, conscience and religion an identity that is independent of Hinduism.

§ Imposing a religion on various peoples derided as Shudras and Panchamas (backward castes, Dalits and indigenous tribal peoples) who do not have the legal right to scriptural study or the sacramental observance of the religion of the "twice born" upper castes which was codified as the "Hindu" religion. This situation has led to the farcical oppression of trained priests from backward castes and scheduled castes (Dalits) who have been restrained from working as priests in Hindu temples by the supreme court despite being legally considered as "Hindus", because they are bigotedly excluded from the scriptural study and sacramental observance of the "twice born" upper caste religion by the Hindu law based on Hindu scriptures.

India is a nation of very many non-Hindu religious minorities, but in reality a concocted and fabricated legal (Hindu) religion is imposed on billions of (non-Hindu) peoples - drawn from backward castes, scheduuled castes and indigenous tribes - professing various non-Hindu schools of thought, conscience and religion, who do not even have the legal right to scripturally study or sacramentally observe the religion of the "twice born" upper castes (Sanathana Dharma) which was christened and codified as “Hinduism” by the British.

The only solution to this situation in India which violates religious freedom by way of coerced socio-legal imposition of the Hindu religious identity on billions of non-Hindu peoples, is the codification of a secular civil law in India (based on international human rights and humanitarian law), while preserving the religion based Hindu civil law only for the real Hindus (namely the "twice born" upper castes). This secular civil law should apply to all those who do not have a religion based civil law in India, which will cover the entire population who are not "twice born" upper castes, Muslims, Jews, Christians and Parsis. All atheists, indigenous peoples, native non-Hindu Indian religionists, backward castes, Dalits and all those who profess a school of thought, conscience and religion that is independent of the religion of the "twice born" upper castes (including Buddhists, Jains and Sikhs) should be able to access this secular civil law. This secular civil law will also right many current wrongs (and injustices), such as the denial of unequivocal and absolute rights for “Hindu” women to inherit all property on par with men. This is especially vital because lack of material empowerment of women by way of material inheritance is the cornerstone of the foundation that sustains (and sustained) the hierarchical and vertically graded structure of the caste system.

And all citizens will have the right to access the proposed secular civil law, including those who have access to a religious civil law based on their religion, if they renounce their religion for all practical and legal purposes and declare themselves atheist, irreligious or as being members of any religion that is not "twice born" upper caste religion (Hinduism), Islam, Judaism, Christianity and Zoroastrianism.

Adoption of a secular civil law should be voluntary on the part of citizens and should not be "imposed". This dissertation does not wish to advocate a uniform civil code for all citizens of India. A forcibly imposed uniform civil code will still "maintain" the false religious identity of Hinduism, but a secular civil code that co-exists with other religious codes of civil law will allow citizens to be liberated from religion based civil legal strictures and also overthrow the Hindu legal identity, Hindu law and Hindu religious identity that is legally forced on those (non-Hindu and non- twice born peoples such as backward castes, scheduled castes and indigenous tribes) who have no legal right to scripturally study the Hindu religion in a Hindu seminary and are also denied the legal right to sacramentally observe or practice the Hindu religion, such as all those who are legally considered as "Shudras" under Indian Law, (which includes lower castes, outcasts, indigenous peoples and native religionists), all of whom are still denied the right to work as priests as Hindu temples despite getting trained as priests under a progressive law enacted by the Government of Tamil Nadu, thus proving these non-Hindu peoples though legally labelled as Hindus by the aforementioned legal regimes, are still not accepted as co-religionists by the "twice born" upper castes (Hindus).  

Footnotes: 

[1] UNTS, vol. 999, at 171 ff.
[2] 
http://www.cirp.org/library/ethics/UN-covenant/
[3] Goodwin-Gill, Guy S. Basic Documents in Human Rights Oxford University Press (2002) Fourth edition
[4] 
http://www.hri.org/docs/ECHR50.html
[5] O.A.S. Treaty Series No. 36.
[6] 
http://www.oas.org/juridico/english/Treaties/b-32.htm
[7] 
www.unhchr.ch
[8] 
http://www.un.org/Overview/rights.html
[9] 
www.unhchr.ch/html/menu/3/b/d_intole.htm
[10] 
http://216.239.59.104/search?q=cache:0iGddN5ZtUYJ:www.hmso.gov.uk/acts/acts1998/80042--d.htm+Human+rights+act+article+9&hl=en
[11] Sir Ernest John Trevelyan, D.C.L., Hindu Law Thacker, Spinck and Co., (1929) Third edition. p23
[12] Nirad C. Chaudhri The Continent of Circle Cahhtoo and Windus, London (1965) p35.
[13] J.D.M.Derrett Religion, Law and the state in India Faber and Faber (1968) p43
[14] J.D.M.Derrett Religion, Law and the state in India Faber and Faber (1968) p43
[15] M.P.Jain Outlines of Indian Legal History M.M.Tripathi Private Limited (1990) Fifth edition p585.
[16] Sir Ernest John Trevelyan, D.C.L., Hindu Law Thacker, Spinck and Co., (1929) Third edition. p23
[17] Tirkangauda v Shivappa (1943) Bom. 706, 45 Bombay Law review. 992, (’44) A.B. 40
[18] Dashrath Prasad v Lallosingh (’51) A.N. 343 (1951) Nag. 873.
[19] Sunderlal T. Desai Mulla's Principles of Hindu Law N.M. Tripathi Private Limited, Bombay (1982) p80
[20] ibid
[21] ibid
[22] ibid
[23] Muthusami Mudaliar v Masilamani (1909), 33 Mad. 342.
[24] But one has to differentiate the legal definition (by case law) of “Shudras” which refers to all of the peoples except "twice born" upper castes who are legally considered as “Hindus” (which means all those who are not upper castes, Jews, Muslims, Christians and Parsis), from the scriptural definition of Shudras which refers only to those lower castes within the caste system.
[25] Sir Ernest John Trevelyan, D.C.L., Hindu Law Thacker, Spinck and Co., (1929) Third edition. P10
[26] ibid
[27] Sunderlal T. Desai Mulla's Principles of Hindu Law N.M. Tripathi Private Limited, Bombay (1982) p79.
[28] ibid
[29] ibid
[30] 
http://www.sscnet.ucla.edu/southasia/History/British/BrIndia.html
[31] ibid
[32] ibid
[33] J.D.M.Derrett Religion, Law and the state in India Faber and Faber (1968) p230.
[34] The British East India Company Administration of Justice regulation, April 11, 1780.
[35] Plan for the administration of Justice extracted from the proceedings of the committee for circuit (Cossimbazar) 15 Aug., 1772 being pp. 13-15 of Extract of a letter from the Governor and Council at Fort William to the court of directors, 3 Nov. 1772. Forrest, Warren Hastings, II, App. B, p.290.
[36] M.P.Jain Outlines of Indian Legal History M.M.Tripathi Private Limited (1990) Fifth edition p581.
[37] Ibid p583
[38] ibid
[39] J.D.M.Derrett Religion, Law and the state in India Faber and Faber (1968) p289
[40] M.P.Jain Outlines of Indian Legal History M.M.Tripathi Private Limited (1990) Fifth edition p583-590.
[41] ibid
[42] ibid
[43] Masjid Shahid Gunj Mosque v Shiromani Gurudwara Prabandhak Committee, 67, I.A. 260.
[44] M.P.Jain Outlines of Indian Legal History M.M.Tripathi Private Limited (1990) Fifth edition p583-590.
[45] J.D.M.Derrett Religion, Law and the state in India Faber and Faber (1968) p229.
[46] Ibid, p230.
[47] Ibid, p278.
[48] Ibid, p278
[49] Ibid, p96
[50] ibid, p102.
[51] M.P.Jain Outlines of Indian Legal History M.M.Tripathi Private Limited (1990) Fifth edition p614.
[52] D.M.Derrett Religion, Law and the state in India Faber and Faber (1968) p444
[53] Muthusami Mudaliar v Masilamani (1909), 33 Mad. 342.
[54] J.D.M.Derrett Religion, Law and the state in India Faber and Faber (1968) p51.
[55] J.D.M.Derrett Religion, Law and the state in India Faber and Faber (1968) p57-58.
[56] D.M.Derrett Religion, Law and the state in India Faber and Faber (1968) p331.
[57] Ibid, p332.
[58] Ibid
[59] ibid, p333.
[60] D.M.Derrett Religion, Law and the state in India Faber and Faber (1968) p278.
[61] Ibid, p178.
[62] 
www.iniyan.blogspot.com
[63] ibid and J.D.M.Derrett Religion, Law and the state in India Faber and Faber (1968), p178.
[64] 
http://www.indianchild.com/indian_religions_tribal.htm
[65] 
www.iniyan.blogspot.com
[66] 
www.iniyan.blogspot.com
[67] 
http://www.ambedkar.org/News/letter.htm
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