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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