PRESIDENT OF HINDU-RASHTRA

(Project towards the fulfilment of the Mid Term in the subject of Comparative Constitutional Law
Project)

SUBMITTED TO: SUBMITTED BY:

Mrs. Sayantani Bagchi Name: Sneha Naresh
Assistant Professor Roll No: 1950
Faculty of Law Name: Manugonda Soumya
National Law University, Jodhpur Roll No. 1910
Semester: VII
B.A., LL.B. (Constitutional Law Hons.)

NATIONAL LAW UNIVERSITY, JODHPUR

SUMMER SESSION

(JULY – NOVEMBER 2023)

 TABLE OF CONTENTS

Abstract ........................................................................................................................................................ 3

Research Questions .................................................................................................................................... 4

Research Problem ....................................................................................................................................... 4

Introduction: Constitutional Secularism .................................................................................................. 5

Models of Secularism ................................................................................................................................. 6

1. Assimilative Secularism (United States): ..................................................................................... 6

2. Visionary Secularism (Israel): ........................................................................................................ 7

3. The Ameliorative Secularism (India) ........................................................................................... 8

Elements of Hindu-bias in the Constitution......................................................................................... 10

1. Naming of India as ‘Bharat’ in Article 1 of the Indian Constitution: ................................... 10

2. Preference for Hinduism in Article 25 of the Indian Constitution: ...................................... 12

3. Protection of cows in Article 48 of the Indian Constitution: ................................................ 13

4. Hindi in Devanagari as the official language under Article 343 of the Indian Constitution:
13

Growth of Hindutva Ideology in India ................................................................................................. 15

Recommendations & Conclusion ........................................................................................................... 18

 ABSTRACT

This paper aims at exploring the concept of Constitutional Secularism and its significance in the Indian Constitution.
India is unfortunately, not secular any sense especially under the activities of the present-day BJP-led Union
Government. The aim for India should be assimilative secularism in order to uphold the Indian Constitutional
morality and its Ideals of democracy and liberty. The paper suggests that the Hindu extremist forces need to be
banned from politics as a solution to the issue India is currently facing. India is not just at risk of losing its secular
nature, but such organizations cause disturbances to internal peace and security. Violence along communal lines is
incited deliberately for political gains. The paper brings to light a paradox: How is an extremist right-winged
government ruling a Secular State?
 RESEARCH QUESTIONS

1. What is secularism, does it have a fixed definition and what are the models of secularism?
2. Which model is most conducive for a liberal democratic society?
3. Which model does India fall under?
4. Is India truly secular?
5. Given freedom of political parties in India, should right wing parties be allowed to contest
elections given India’s secular constitutional objectives?

RESEARCH PROBLEM

The conflict between constitutional secularism and its authority in India under a right-wing
government: It’s root causes, continued issues and solutions.
 INTRODUCTION: CONSTITUTIONAL SECULARISM

“[R]eligion is mixed up in everything and . . . everything is a religious act for Hindus.”1

‘Secular State’ details the relationship between the State and religion.2 It allows individual freedom
of religion, and strives to establish equality among citizens irrespective of their religion, and is not
‘constitutionally connected’ to a religion.3 There is debate around the interpretation of secularism:
does it refer to a complete disconnect of the State from religion; impartiality; a corrective check or
a connection towards all religions?

Gary Jacobsohn’s book,4 The Wheel of Law offers some insight into Indian secularism and the
models available through a comparative study. According to Jacobsohn, a secular constitution
must not be identified with secularization (process of disassociating polity from religion), nor must
it be so conflated as to become anti-religion.5 A secular constitution is a “polity where there exists
a genuine commitment to religious freedom that is manifest in the legal and political safeguards
put in place to reinforce that commitment.”6

Jacobsohn elucidates the purpose of having multiple models of secularism because a ‘one size fits
all’ approach cannot be followed. There must be an ideal arrangement for every State (given its
public morality) for striking the perfect balance between religion and the State and therefore ensure
maximum protection to both liberal-democratic and religious principles. The analysis of such
permutations and combinations must be done by observing the ‘facts on the ground’ and by being
attentive to the ‘actual conditions’ with respect to the manner in which religious life is experienced
by that society.

1 Alexis de Tocqueville, Democracy in America. New York: Random House, Oeuvres Completes, vol. 3, ECRITS ET
DISCOURS POLITIQUES (1962).
2 DONALD EUGENE SMITH, INDIA AS A SECULAR STATE, PRINCETON UNIV. PRESS (1963) at 177.
3 Id.
4 GARY JEFFREY JACOBSOHN, THE WHEEL OF LAW: INDIA’S SECULARISM IN COMPARATIVE CONSTITUTIONAL

CONTEXT, PRINCETON UNIV. PRESS (2003) [hereinafter, Jacobsohn].

5 Id. at 27-28
6 Id. 28
 MODELS OF SECULARISM

Jacobsohn in his book proposes three constitutional models of secularism. These models are not
meant to be rigid or mutually exclusive.

1. Assimilative Secularism (United States):

The ultimate goal of this model is ‘political assimilation’ and the supremacy of political
principles in development of the State. This model is most conducive to achieve liberal
democratic goals. Justice Douglas commented on Article 25 of the Indian Constitution,
“[I]t may be a desirable provision. But when the Court adds it to our First Amendment…
we make a sharp break with the American ideal of religious liberty as enshrined in the First
Amendment. The First Amendment commands government to have no interest in
theology or ritual.”7

Nehru stated, “The United States of America solves its minority problems, more or less,
by trying to make every citizen 100 percent American. They make everyone conform to a
certain type. Other countries, with a longer and more complicated past, are not so
favourably situated.”8 Jacobsohn claims that this manner of assimilation works for the US
due to its non-burdensome past as compared to countries such as India. Being an
American consists largely of sharing in those ideas that define political community
membership. Assimilation strictly refers to principles, not religious or ethnic code of
conduct set to achieve social conformity.

Jacobsohn gives an example of polygamy in the US to explain this. In Late Corporation v.

United States,9 Justice Bradely described the practice as “abhorrent to the sentiments and
feelings of the civilized world… the organization of a community for the spread and
practice of polygamy is, in a measure, a return to barbarism.”10 The assault on the Mormon
community who practice polygamy can be seen as a defence of liberal constitutionalism. It
affirms the supremacy of the civil law. In Reynolds, the Court was questioned: “So here, as
a law of the organization of society under the exclusive dominion of the United States, it
is provided that plural marriages shall not be allowed. Can a man excuse his practices to

7 McGowan, Accommodation of Religion: An Update and a Response to the Critics, GEORGE WASHINGTON L. REV. 60.
(1992.) at 575–6.
8 JAWAHARLAL NEHRU, THE DISCOVERY OF INDIA, OXFORD UNIV. PRESS (1997) at 154.
9 Late Corporation of the Church of Jesus Christ of Latter-Day Saints v. United States, 136 U.S. 1 (1890).
10 Id.
 the contrary because of his religious belief?”11 To which the Court’s answered: “To permit
this would be to make the professed doctrines of religious belief superior to the law of the
land, and in effect to permit every citizen to become a law unto himself. Government could
exist only in name under such circumstances.”12

One can argue then, that the overturning of Roe v. Wade,13 and ban on abortion,14 is against
the secular nature of the US Constitution as it values Christian religious beliefs more than
liberal democratic rights.

2. Visionary Secularism (Israel):

Visionary secularism is where equality is present on paper, but discretionary authority exists
to discriminate between groups on the basis of religion. Jacobsohn states, “[T]his
pretended right of every qualified subject to a share of the honours and profits in the
disposal of the supreme magistrate is altogether groundless and visionary.”15 Religious
liberty in Israel is shaped by two standards: equal civil rights and equal protection of laws.
However, it is argued that the latter only applies to civil laws for natural liberty.16

Yoav Peled observed, “[T]he dominant strain in Israel’s political culture may be termed
ethno-republicanism. Jewish ethnicity is a necessary condition for membership in the
political community, while the contribution to the process of Jewish national redemption
is a measure of one’s civic virtue… Thus, while Jews and Arabs formally enjoy equal
citizenship rights, only Jews can exercise their citizenship as practice, by attending to the
public good.” Peled refers to Israeli polity as a two-tiered democracy: For the fulfilment of
Jewish national aspirations, Arab national aspirations must be denied.

For example, Yosifof was an Israeli Jew who had been convicted for the offense of bigamy.
He argued that bigamy would not be an offence under Muslim Law, and claimed equal

11 Reynolds v. United States, 98 US 145 (1878) at 166.

12 Id. at 167.
13 Apurva Vishwanath, What is Roe v. Wade which the US Supreme Court overturned, and why is it significant?, INDIAN

EXPRESS (June 24, 2022) https://indianexpress.com/article/explained/explained-roe-v-wade-us-supreme-court-

overturned-significant-abortion-constitutional-right-7989490/.
14 State Bans on Abortion Throughout Pregnancy, GUTTMACHER INSTITUTE (Aug. 29, 2023)

https://www.guttmacher.org/state-policy/explore/state-policies-later-abortions.
15 Jacobsohn, supra note 4.
16 Philip Hamburger, Equality and Diversity: The Eighteenth-Century Debate About Equal Protection and Equal Civil Rights,

The Supreme Court Rev. (Chicago: University of Chicago Press) (1993) at 299.
 protection under the law. His conviction was upheld, and Justice Laudau stated that
discrimination “is permitted subject to the condition that it expresses itself in the form of
a classification on a reasonable basis, while in our case discrimination is forbidden in all
circumstances and is not limited by considerations of public order, and other
considerations of a like nature… We must ask ourselves whether the men and women of
the same community regarded as one unit are discriminated against. The answer to the
question cannot be otherwise than in the negative”17 Individuals who experience varied
legal realities across communities do not have a claim for discrimination.

3. The Ameliorative Secularism (India)

The term chosen signifies the layered and multifaceted character of Indian nationalism
inclusive of its commitment to social reform and (yet) its anchored nature towards religious
traditions. Jacobsohn observes that Indian judges use the ‘essential practices test’ as a tool
for social reform: an approach that is flawed at its very core. For instance, the Court of
Bombay upheld the validity of the Bombay Prevention of Hindu Bigamous Marriages Act
of 1946. Later, the Hindu Marriage Act, 1955 outlawed bigamy/polygamy. In Narasu
Appamali, Justice Chagla observed, ““[I]t is rather difficult to accept the proposition that
polygamy is an integral part of Hindu religion.”18 In Ram Prasad, the Court similarly
concluded that polygamy is not “an essential part of the Hindu religion.”19 It gives the
judiciary great power to encroach into the domain of religious freedom. It is also
problematic because, what if an essential religious practice is violative of the fundamental
rights of the community those religious laws are applicable to? A former Indian Chief
Justice observed, “Because of the personal laws and the fact that religion plays such a
profound role in people’s lives, inquiring into the essentials of religion cannot be
avoided.”20 Limiting the impact to non-essential practices can cause judicially sanctioned
transformations. Justice William O. Douglas noted while citing Narasu Appamali, “It
comported with traditional concepts for the court to hold that bigamous marriages could
not gain immunity from prosecution by being called a part of religion.”

17 Yosifof v. Attorney-General, In Selected Judgments of the Supreme Court of Israel—vol. 1. 1948–53. Ed. David
Goitein. Jerusalem: The Ministry of Justice. (1962) at 185.
18 State of Bombay v. Narasu Appamali, AIR 1952 Bom 84 at 86 [hereinafter, Narasu].
19 Ram Prasad v State of U.P., AIR Allahabad 411 (1957) at 312.
20 Interview with the author, March 10, 1999, New Delhi.
 Besides judicial pronouncements as a vehicle for social reform, incrementalism is also
an essential feature of ameliorative secularism. Given India’s pervasive relationship
with religion, the lawmakers and judiciary have recognized that any change would take time
and would vary between communities. The polygamy cases show the efforts taken by the
State to ameliorate social circumstances in one community (which they perceived was ready
for change) but did not disturb polygamy in Muslim law. It was stated in Narasu Appamali,
that “the State may rightly decide to bring about social reform by stages and the stages may
be territorial or they may be community-wise.”21

21 Narasu Appamali supra note 18 at 87.

 ELEMENTS OF HINDU-BIAS IN THE CONSTITUTION

From the previous Section, it is pertinent to observe that India given its plurality of religions and
ethnicities, cannot achieve assimilative secularism. This is understandable as it is circumstantial and
it is possibly a decent idea to continue along the path of making small increments towards social
reform. In this Section, the author dwells into the instances where there have been deliberate
attempts to glorify (or) undermine any religion from a constitutional and political
perspective.

Pritam Singh argues in his paper,22 that the Constitution of India has elements of Hindu bias
present in it and is not truly secular in nature. This bias must be viewed as a result of the Hindu-
dominance witnessed in the national movement for India’s independence,23 and the ideologies of
the leaders in said movement (and consequentially the Constituent Assembly) such as Gandhi and
Nehru.24 The present rise of the Hindutva forces, he argues, is merely a continuation of that bias.
In order to oppose such extremism, the secular ideologists must raise necessary criticisms against
the independence movement, its leaders and the present Constitution of India.

1. Naming of India as ‘Bharat’ in Article 1 of the Indian Constitution:

The name ‘Bharat’ was intended to reflect the glorious Hindu past, before the Muslim and British
invasions. OHK Spate commented, “In Hindu literature the sub-continent as a whole is styled
Bharat-Varsha, the land of the legendary king Bharata;25 but it seems safe to say that there was little
feeling of identity over the whole country… “Bharat” ... is used mainly by the romantic Hindus.”26

In August of 1949, a Hindu sanyasin started a fast unto death which would be broken only on two
conditons: (i) Hindi should be adopted as the national language, and (ii) India must be renamed as
Bharat. Austin recorded that Nehru, along with other Congress leaders assured her that Hindi
would be adopted upon which she broke her fast.27 The name Bharat indicates a Hindu
ownership of the nation after many centuries of foreign rule.

22 Pritam Singh, Hindu Bias in India’s ‘Secular’ Constitution: Probing Flaws in the Instruments of Governance, 26 THIRD
WORLD QUARTERLY 6, 909-926 (2005).
23 M Galanter, Secularism East and West, in BHARGAVA, SECULARISM AND ITS CRITICS, at 237.
24 B Parekh, The legacy of the partition, in A SINGH (ED), PUNJAB IN INDIAN POLITICS, (1985).
25 Bharata was the son of Shakuntala and Dushyanta. He is an ancestor of the Kauravas and Pandavas who are the

main characters of the Mahabharata, which is one of the two main epics in Hindu mythology apart from the
Ramayana. Matsyapurāṇa 114, 9-10, see also Kane, PandurangVaman History of Dharmaśāstra (Ancient and Medieval
Religious and Civil Law), 3 Bhandarkar Oriental Research Institute at 67 (1973).
26 OHK SPATE, INDIA AND PAKISTAN: A GENERAL AND REGIONAL GEOGRAPHY (1963) at xxi, xxvii.
27 G AUSTIN, THE INDIAN CONSTITUTION: CORNERSTONE OF A NATION, Oxford Univ. Press (2004) at 293

[hereinafter, Austin].
Further, the usage of ‘Union’ over ‘Federation’ in Article 1, seen from a specific context has
Hindutva implications. The Cabinet Mission in 1946 had suggested India to be a loose federation,
with a weak centre and stronger states, the latter having residuary powers vested on them. This
was done keeping in mind the Muslim League’s concerns of Hindu domination if the Centre were
to be made too powerful. The plan did not succeed due to Congress opposition and this eventually
led to the partition – creation of Pakistan.28

K.M. Panikkar, member of the Constituent Assembly had stated, “Federation with limited powers
for the Centre, was an unavoidable evil in India, so long as the Muslim majority provinces had to
be provided for in an all-India centre...It is no longer necessary to provide for the very large
measure of power for the units, which a full union with the Muslim majority provinces
would have rendered unavoidable.”29 Nehru also expressed relief that Muslim bargaining power
had disappeared (upon the partition) and that the centralizing agenda could be implemented.

Some other members of the Constituent Assembly even articulated a Hindutva view of history as
a justification for a centralized form of government. Jaspat Roy Kapoor (United Provinces) stated,
“The two fundamental things about this Constitution are the unity of the country and a strong
Central Government...nobody should be sorry for it excepting one who would like to bring about
confusion and chaos in this country because his sympathies may be lying somewhere else
outside the borders of this country.” Of course, there were other leaders such as Ambedkar
who argued in favour of centralization for other reasons. Therefore, there was a convergence of
positions of the secular and Hindutva groups for having a strong centre.

There was strong opposition for this view, and understandably at that, from the Southern states.
N G Ranga stated, “[c]entralisation, I wish to warn this house...would only lead to Sovietisation
and totalitarianism and not democracy.” Mahmood Ali Baig lobbied for institutional safeguards
such as proportional representation to protect the interests of religious minorities and he opposed
a unitarist political system: “…in the hands of a Central Government which wants to override and
convert this federal system into a unitary system, it can be easily done. Now there is a danger of
this sort of Government becoming totalitarian.”30 TT Krishnamachari very correctly pointed out
that creation of a strong centre “would also mean the enslavement of people who do not speak
the language of the legislature, the language of the Centre.”31 The mood of the Constituent

28 AYESHA JALAL, THE SOLE SPOKESMAN: JINNAH, THE MUSLIM LEAGUE AND THE DEMAND FOR PAKISTAN,
Cambridge Univ. Press (1985).
29 Bhattacharya, The mind of the founding fathers, at 99.
30 CAD, Vol VII, 8 November 1948, at 296.
31 AD, Vol VII, 5 November 1948, at 234-35.
Assembly debates was Hindu majoritarian and “‘minorities were referred to as “disfigurement”,
“cancerous”, “poisonous” for the body politic.”32

2. Preference for Hinduism in Article 25 of the Indian Constitution:

Article 25 states, “Freedom of conscience and free profession, practice and propagation of
religion… (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 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.”33

The state takes special interest towards the “social welfare and reform” of Hinduism.34 The framing
of this article begs the question, why must a secular state be concerned only with the protection
of Hindu temples?35 Pratap Mehta,36 emphasised that India uses state power to consolidate Hindu
identity, such as the codification of the Hindu personal laws. Supreme Court judges act as
interpreters of Hinduism and decide what is essential for the religion.37 He further argued that the
State runs thousands of temples in the name of social reform. The overriding concern for inserting
this provision was to abolish the caste system,38 which is also an attempt to shape the Hindu
identity.

Explanation II of Article 25, and the Hindu personal laws,39 define a Hindu to include Buddhists,
Jains and Sikhs (despite their protest).40 There is also a negative description of a Hindu, to not
include a Muslim, Christian, Parsi or Jew. Despite giving the freedom of conscience, atheism is
not an option for an Indian. This is an attempt by the Indian State to construct a homogenous,
assimilationist and consolidated Hindu identity. Alam has observed that, “‘the Brahmanical
features of Hinduism were deliberately selected, promoted and projected at the national level in a

32 R Bajpai, Constituent Assembly debates and minority rights, ECON. & POL. WEEKLY (May 27, 2000) at 1839.
33 CONST. OF INDIA, art. 25.
34 See R Bajpai, The conceptual vocabularies of secularism and minority rights in India, 7 J. OF POL. IDEOLOGIES 2, (2002) at

179- 197.
35 DE Smith, India as a secular state, in BHARGAVA, SECULARISM AND ITS CRITICS, Princeton Univ. Press (1963)

[hereinafter, Smith].
36 P Mehta, Why the BJP is calm: What would a Hindu state do that the secular state has not done already? TELEGRAPH, (Mar. 4,

2004) [hereinafter, Mehta, Why the BJP is calm].

37 The use of the Essential Religious Practices Test (‘ERP Test’) was also seen in the cases of Indian Young Lawyers’

Association v. State of Kerala, (2019) 11 SCC 1 (Sabarimala Case); Shayara Bano v. Union of India, (2017) 9 SCC 1
(Triple Talaq case). Instead of judging on the touchstone of Article 14 and 15, the Court proceeded to look into
whether Triple Talaq is an ERP for Muslims or not. It decided that its not an ERP, and banned the practice in India.
38 P MEHTA, THE BURDEN OF DEMOCRACY (2003) at 58.
39 CONST. OF INDIA, art. 25; Hindu Marriage Act, 1955, § 2.
40 A Alam, Secularism in India: a critique of the current discourse, in P BRASS & A VANAIK (EDS), COMPETING

NATIONALISMS IN SOUTH ASIA, (2002) at 101.

manner that, for all practical purposes, blurs the distinction between Hindu nationalism and
Nehruvian secular composite nationalism.”41

3. Protection of cows in Article 48 of the Indian Constitution:

Article 48 states, “Organisation of agriculture and animal husbandry.—The State shall endeavour
to organise agriculture and animal husbandry on modern and scientific lines and shall, in particular,
take steps for preserving and improving the breeds, and prohibiting the slaughter, of cows and
calves and other milch and draught cattle.”42

Kancha Ilaiah, a dalit activist and scholar argued that, “Indians do not live with one mode of
scriptures. We have the Buddhist scriptures, we have had the Bible as a living book for 2000 years
in India. The Quran has been in India for more than 1000 years. The Dalits in the spiritual realm
have more affinity with Buddhism and Christianity than Hinduism. In their spiritual realm, the
cow is not sacred. How can Hindutva forces impose their spirituality on others?”43 Smith states
that, “‘The cow protection legislation is undoubtedly the result of Hindu communalism: the
coercive power of the state is pressed into the service of Hindu religion, to the detriment or at
least inconvenience of beef-eating Muslims and Christians.”44 Pratap Mehta refers to cow
protection as ‘the most symbolically potent of Hindu demands’.45 Jagat Narain Lal, member of the
Constituent Assembly supported the addition of this provision due to its Hindu-majoritarian
nature and stated, “‘The majority of the people of the country hold the cow sacred. They hold very
strong views on this.”46

4. Hindi in Devanagari as the official language under Article 343 of the Indian Constitution:

Article 343 states, “Official language of the Union.—(1) The official language of the Union shall
be Hindi in Devanagari script.”47 Article 351 states, “Directive for development of the Hindi
language.—It shall be the duty of the Union to promote the spread of the Hindi language, to
develop it so that it may serve as a medium of expression for all the elements of the composite
culture of India and to secure its enrichment by assimilating without interfering with its genius, the
forms, style and expressions used in Hindustani and in the other languages of India specified in

41 Id.
42 CONST. OF INDIA, art. 48.
43 K Ilaiah, Cow and culture, HINDU, (Oct. 25, 2002).
44 Smith, supra note 35 at 489.
45 Mehta, Why the BJP is calm, supra note 36.
46 CAD, Vol XI, 25 November 1949, at 948.
47 CONST. OF INDIA, art. 343.
the Eighth Schedule, and by drawing, wherever necessary or desirable, for its vocabulary,
primarily on Sanskrit and secondarily on other languages.”48

Lelyveld argued that Gandhi campaigned vigorously for Hindi and established the Hindi Prachar
Sabha in Madras, 1927 with the aim of teaching speakers of southern languages (Tamil, Telugu,
Kannada and Malayalam) Hindi. He (Gandhi) also advocated for all Indian languages to be written
in the Devanagari script.49 In the Constituent Assembly debates, TT Krishnamachari (Madras)
said, “I refer to this question of language imperialism... I would, Sir, convey a warning on behalf
of the people of the South… that there are elements in South India who want separation... and my
honourable friends in UP do not help us in any way by flogging their idea “Hindi imperialism” to
the maximum extent possible.”50 Although the non-Hindi linguistic groups succeeded in getting
constitutional recognition for their languages, they could not stop Hindi from being accorded the
status of official language. Austin states, “‘It was one of the unfortunate coincidences of Indian
history that Hindustani was a northern language and that it was given special status by North
Indians, like Nehru, Prasad, and Azad and by north-oriented Gujaratis like Gandhi and Patel.”51

Alok Rai,52 argued that although Kaithi script was more widely used, Devanagari was preferred
due to the latter’s close association with Brahmanical Hindu identity. He uses data provided by
Vedalankar: the number of primers in the North Western province schools in 1854 that used
different scripts; Kaithi: 77,368 and Devanagari: 25,151.53 However, “Kaithi was unacceptable to
the Nagari/Hindi propagandists. It appears that there were some crucial disqualifications that
attached to Kaithi. It was perceived to have some association with Hindustani rather than with
Sanskrit. It was, moreover, known to Hindus and Muslims alike and so might not have appeared
‘pure’ enough to proponents of the Nagari variant-Devanagari, no less, the script of the scriptures.
Perhaps most crucially, for instance, it could not serve as a basis of ‘differentiation’.”54

48 Id. at art. 351.

49 D Lelyveld, Words as deeds: Gandhi and language, in BRASS & VANAIK, COMPETING NATIONALISMS IN SOUTH ASIA,
p 181.
50 CAD, Vol VII, 5 November 1948, at 235.
51 Austin, supra note 27 at 298.
52 A RAI, HINDI NATIONALISM (2002) at 109 [hereinafter, Rai].
53 S VEDALANKAR, THE DEVELOPMENT OF HINDI PROSE LITERATURE IN THE EARLY NINETEENTH CENTURY

(1800-1856 AD) (1969).

54 Rai, supra note 52 at 52.
 GROWTH OF HINDUTVA IDEOLOGY IN INDIA

Hindutva and Hinduism are not synonymous. Hindutva is “a modern political ideology that views
India as a Hindu nation and defines Indian culture in terms of Hindu cultural values. Its goal is to
make India a Hindu state.”55 Savarkar stated in his 1923 treatise that true Indians are only the
Hindus as their punyabhumi (holy land) and pitrubhumi (fatherland) is India. Christians and
Muslims are not Indian as their holy lands are in “far off Arabia or Palestine”.56 Savarkar’s
successor, Madhav Sadashiv Golwalkar who was one of the founders of the Rashtriya
Swayamsevak Sangh (RSS), stated that foreigners (Muslims and Christians) in India “must either
adopt the Hindu culture and language, must learn to respect and hold in reverence Hindu religion
... must lose their separate existence to merge in the Hindu race, or … stay in the country wholly
subordinated to the Hindu Nation, claiming nothing, deserving no privileges, far less any
preferential treatment — not even citizen’s rights.”57

The Sangh Parivar (a conglomerate of Hindutva organizations such as the RSS, BJP, VHP etc)
entered political centre-stage during the 1980’s Ram Janmabhoomi movement. Ram, a Hindu God
was born in Ayodhya (present day Uttar Pradesh). It was contended that a Ram temple existed
there which was demolished by the Mughal Emperor Babar who built the Babri Masjid in its place.
In December 1992, the Hindutva activists broke down the mosque,58 which triggered violence
across India along communal lines.59 They targeted and killed thousands of Muslims in western
Gujarat, which was met with apathy from the government leading to speculations of the violence
being state-authorized ethnic cleansings.60 The BJP went from winning just 2 seats in the 1984
general election to heading coalition governments at the Centre in 1998, 1999, 2014 and 2019. The
Supreme Court handed the disputed site to the Hindus for the construction of a temple,61 despite
having a weak case.62

55 Sudha Ramachandran, Hindutva Violence in India, 12 COUNTER TERRORIST TRENDS & ANALYSES 4 (June 2020) at
15-20.
56 VINAYAK DAMODAR SARVARKAR, HINDUTVA (1923) at 113.
57 MADHAV SADASHIV GOLWALKAR, WE, OR OUR NATIONHOOD DEFINED (1939) at 47-48.
58 Babri Masjid demolition: December 6, 1992, a day that lives in infamy, INDIA TODAY, (Dec. 6, 2018),

https://www.indiatoday.in/india/story/babri-masjiddemolition-anniversary-1403792-2018-12-06.
59 Zoya Hasan, Communal Mobilization and Changing Majority in Uttar Pradesh, Religion, Community, and the Politics of

Democracy in India, in DAVID LUDDEN, (ED.), MAKING INDIA HINDU, (New Delhi, Oxford University Press, 2005) at
81-97.
60 Ashutosh Varshney, Gujarat 2002 was independent India’s first full-blooded pogrom. Delhi 1984 was a semi-pogrom, THE

PRINT, (Feb. 26, 2020) https://theprint.in/opinion/gujarat-2002-wasindependent-indias-first-full-blooded-pogrom-

delhi1984-was-a-semi-pogrom/371684/.
61 Ayodhya verdict | Temple at disputed site, alternative land for mosque, rules Supreme Court, THE HINDU (Nov. 9, 2019)

https://www.thehindu.com/news/national/ayodhyaverdict-temple-at-disputed-site-alternative-land-formosque-
says-supreme-court/article29930961.ece.
62 Achin Vanaik, India’s Supreme Court Ruling Is Another Victory for Hindu Nationalism, JACOBIN, (Nov. 2019)

https://www.jacobinmag.com/2019/11/india.
There are many Islamophobic concepts present in India, such as the ‘love jihad’ wherein Hindutva
activists accuse Muslim men of ‘kidnapping’ ‘innocent’ Hindu women and forcing them to convert
for marriage. Love jihad is a ‘dangerous game’ according to them and must be countered with
violence.63 There have been several reports of Muslim men being assaulted and killed to ‘protect’
the Hindu daughters.64 The ‘Love Jihad’ Ordinance,65 states that any conversion of religion upon
marriage would attract three to ten years of imprisonment for the ‘accused’ (Muslim man).66 It also
states that such marriages would be void.67

Cow vigilantism is on the rise, and violence against beef-eaters (Muslims) is justified by the
Hindutva activists as it is their ‘sacred duty’,68 and an act of cow protection. Between May, 2015 to
December, 2018, 44 people (mostly Muslims) have been killed and 280 injured in more than 100
attacks across India.69

Such acts are openly aided/abetted by the government itself! Not a single Hindutva extremist
organization figures in India’s list of banned organizations even when there is evidence of the
Abhinav Bharat being involved in the Samjhauta Express and Mecca Masjid (2007) attacks and the
Malegaon blasts (2008).70 In multiple attacks, it is alleged that there is collusion between the Courts,
police and politicians to let them go unpunished.71

Pragya Thakur was an accused in the 2008 Malegaon blast case, and still faces multiple charges
under the UAPA. In 2019, she was given an MP seat. She continues to be a member of the Lok
Sabha at present.

In August, 2023, the Nuh district of Haryana witnessed communal clashes between the Muslims
and Hindus, wherein a group of men near Khedla Mod in Nuh, started pelting stones at VHP’s

63 MIHIR SRIVASTAVA & RAUL IRANI, LOVE JIHADIS: AN OPEN-MINDED JOURNEY INTO THE HEART OF WESTERN
UTTAR Pradesh, (2020).
64 Tushar Dhara, In Rajasthan, a case of love jihad cuts stereotypes of caste and party allegiances, THE CARAVAN (July 26, 2019),

https://caravanmagazine.in/politics/love-jihadrajasthan-bhadarna.
65 The Uttar Pradesh Prohibition of Unlawful Conversion of Religion Act, 2021.
66 Id. at § 3.
67 Id. at § 6.
68 Mohammed Sinan Siyech & Akanksha Narain, Beef-related Violence in India: An Expression of Islamophobia, 4

ISLAMOPHOBIA STUDIES J 2, (Spring 2018), at 190.

69 Iain Marlow, Cow vigilantes killed at least 44 people in three years, report finds, THE PRINT, (Feb. 20, 2019),

https://theprint.in/india/governance/cow-vigilanteskilled-at-least-44-people-in-three-years-reportfinds/195450/.
70 No One Killed Samjhauta Blast Victims? Aseemanand, 3 Others Walk Free 12 Years After 68 Died on Train, NEWS18 (Mar.

20, 2019) https://www.news18.com/news/india/nia-courtacquits-all-four-accused-in-samjhauta-express-blastcase-

2073275.html.
71 Mohammed Iqbal, Pehlu Khan lynching case: Rajasthan court acquits six accused, THE HINDU, (Aug. 14, 2019),

https://www.thehindu.com/news/national/pehlu-khanlynching-case-all-six-accused-acquitted-byrajasthan-
court/article29092863.ece.
Brij Mandal Jalabhishek Yatra.72 As per due process of law, they must be arrested and the cases
investigated. Instead, the government proceeded to demolish more than 750 buildings that mostly
belonged to Muslims on the ground that they are ‘illegally constructed’. No one was given notice
for the same, they simply woke up to rubbles of stone and dust.

The list goes on and on: the abrogation of Article 370, the CAA, a UCC that will just be of Hindu
ideals: the message is clear. The Union Government is triggering the Muslim population with dire
neglect, threats, violence and they will retaliate. Sri Lanka witnessed the civil war due to the Tamil
minority being pushed into a similar situation of helplessness and disrespect.73 Islamist and
international jihadists eye potential recruits among India’s angry Muslims. In February, 2020, the
Wilayat-al-Hind (The ISIS’s Indian affiliate) showed an image of a Muslim man being mob lynched
by Hindus. It called for the Muslims to retaliate: “Use this opportunity to strike them with a sword
or a knife or even a rope is enough to stop their breath, fill the streets with their blood.”74

72 Nuh Demolitions: Haryana Govt Tells HC That Due Process Was Followed, Denies Any ‘Ethnic Cleansing’, WIRE (Aug. 12,
2023) https://thewire.in/law/nuh-demolitions-haryana-govt-tells-hc-that-due-process-was-followed-denies-ethnic-
cleansing.
73 Steven R. Ratner, Accountability and the Sri Lankan Civil War, 106 AM. J. INT'L L. 795 (2012).
74 Corona Virus, VOICE OF HIND, (Mar. 2020) at 7.
 RECOMMENDATIONS & CONCLUSION

Turkey follows Kemalist principles; which de-establishes religion from politics. It follows the
Western idea that politics and religions are distinct categories and should be kept away from each
other, practically and conceptually. In the 1990s, the Welfare Party (Islamist) headed by longtime
Islamist politico Necmettin Erbakan became the ruling party at the Centre. He leaned too far from
the principles of the secular Turkish government, and was ousted from office through the
interference of the military. After this ‘soft coup’, Erbakan was banned for life from politics
because he tried to divert the country from Kemalist principles.75

Bangladesh posits a strange case of secularism: Article 2A declares the state religion to be Islam,
and yet ensure equal status for other religions.76 Secularism is mentioned in the Preamble,77 and
the non-justiciable Fundamental Principles of State Policy. Article 12 states, “The principle of
secularism shall be realised by the elimination of - (b) the granting by the State of political status
in favour of any religion; (c) the abuse of religion for political purposes…”

There is no law in India which keeps a check on the influence of religion on governance. There
are multiple religio-political parties/organizations which either directly contest elections (BJP) or
sponsor/promote right-wing parties. An attempt was made in 1993 for the State to ban such
parties and for it to enforce a separation between religion and politics through amendments in the
Constitution and the election law of India. Unfortunately, the move had to be abandoned due to
pressure from such parties and organizations.78 The Supreme Court of India observed as follows
in SR Bommai:

“In a secular polity like ours mingling of religion with politics is unconstitutional,
in other words, a flagrant breach of the constitutional features of secular democracy. It
is therefore imperative that religion and caste should not be introduces into politics
by any political party, association or individual, and it is imperative to prevent
religious and caste pollution of politics...If a political party espousing a particular religion
comes to power that religion tends to become, in practice, the official religion. All other
religions come to acquire a secondary status, at any rate, a less favorable position.
This would be plainly antithetical to the entire constitutional scheme.”79

Necessary constitutional amendments also need to be made to the Articles mentioned in Section
II. Under the BJP, there’s only regression: Naming the three new penal laws in Hindi,80 changing

75Kim Shively, Religious Bodies and the Secular State: The Merve Kavakci Affair, 1 J. MIDDLE EAST WOMEN’S STUDIES 3,
(2005) 46-72.
76
77
78 The Constitution (80th Amendment) Bill 1993 and Representation of the People (Amendment) Act 1993.
79 SR Bommai v. Union of India (1994) 3 SCC 1.
80 Know The Three New Criminal Bills: What’s New and What’s Old? WIRE (Aug. 25, 2023)

https://thewire.in/government/know-the-three-new-criminal-bills-whats-new-and-whats-
India’s name to Bharat,81 apathy towards Manipur,82 painting Hinduism to be inclusive and
egalitarian – and therefore framing the Uniform Civil Code based on Hindu personal law,83 the list
goes on. With the opposition lacking competent leadership and is losing popular support from
rather poorly thought-out, immature comments being made by certain ministers,84 the future looks
bleak.

old#:~:text=The%20Union%20home%20minister%2C%20Amit,to%20escape%20%E2%80%9Ccolonial%20legac
y%E2%80%9D.
81 Will India change its name to Bharat? ECONOMIST (Sept. 15, 2023) https://www.economist.com/the-economist-

explains/2023/09/15/will-india-change-its-name-to-bharat.
82 Sainico Ningthoujam, In Manipur, Violence Against Women, Impunity, and Apathy Show a Familiar Pattern of Events,

WIRE (July 26, 2023) https://thewire.in/women/in-manipur-violence-against-women-impunity-and-apathy-show-a-

familiar-pattern-of-events.
83 Ghazala Jamil, Uniform Civil Code: Another step towards making India a Hindu Rashtra? (July 27, 2023)

https://frontline.thehindu.com/the-nation/uniform-civil-code-another-step-towards-making-india-a-hindu-
rashtra/article67101084.ece.
84
Aniruddha Dhar, Udhayanidhi Stalin's ‘Sanatan Dharma’ remark sparks row, says ‘ready’ for legal challenge (Sept. 03, 2023)
https://www.hindustantimes.com/india-news/udhayanidhi-stalins-sanatan-dharma-remark-sparks-row-says-ready-
for-legal-challenge-101693699366683.html.