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October     Last updated: October 14: 7:00 p.m.

Agenda
On Constitutional Review—I

Uttamchand Issrani

The number of amendments made in the constitution untill now shows that there are some basic lacunas in the constitution which should be removed. Past experience shows that the constitution has not kept us united. It has divided the nation in compartments. Justices Shelat and Grover J.J. while deciding Keshwananda Bharti's Case (A.I.R. 1973 S.C. Page 1568 para 503) have said: "Before the Scheme of the Constitution is examined in details it is necessary to give the pattern which was followed in framing it. The Constituent Assembly was unfettered by any previous commitment in envolving a constitutional pattern suitable to the genius and the requirements of the Indian people as a whole". "The Assembly had before it the experience of working of the Govt of India, 1935, several features of which could be accepted for the new constitution. Our Constitution borrowed a great deal from the Constitutions of other countries. e.g. United Kingdom, Canada, Australia, Ireland, United States of America and Switzerland. Part IV of the Constitution containing the Directives Principles of State Policy was inspired largely by similar provisions in the constitution of Eire Republic". (1937).

It is, therefore, that we are unable to find any thing in the Constitution which may be called 'OURS or OUR OWN can such a Constitution inspire any national pride, spirit of any self confidence in the people of India. The preamble of the Constitution begins with the words, we the people of India and Art. I say that the name of this country shall be India that is Bharat... Does the name India that is Bharat... Does the name India reflect, That it is an ancient nation? Does it not suggest that this country had no name but one given by outsiders? It is not a fact that the full name of this country is 'Bharatvarsh' and later known as Hindustan'. How and why is it necessary to retain the word 'India' or 'Indians'? It is not a fact that ours is one of the old or perhaps the oldest of the nations of the world which occupied the place of pride in the ancient times. Does the preamble or any of the Articles of the Constitution show any such things so as to make the people feel proud of the nation. The words used in the preamble all appear to have been borrowed from the constitutions of other countries. The preamble could be very simple, befitting and reflecting our philosophy in "Sarve Bhavantu Sukhinah Sarve Santu Niramayah, Sarve Bhadrani Pashantu Ma Kashchit, Dukh Bhagbhavet".

Our Constitution talks in so many words about Justice, Social, Economic and Political and that Equality of status and opportunity shall be secured to all the citizens of the country and fraternity assuring the dignity of the individual and the unity and integrity of the nation shall be promoted. Have any of the objects shown in the preamble been achieved or it appears that we are going in the opposite direction? ..... Why is it that after long span of fifty years we are laballed as undeveloped or under developed country? It is not the economy alone which raises the status of the citizens or the country but it is the unity, integrity of the nation consisting national pride and spirit, which is the cause of its greatness. This unity and integrity must be everlasting and not a temporary or reactionary one shown at the time of foreign attacks on the borders of our country. Unity and integrity of a country is not necessarily a geographical or territorial but definitely a cultural and historical one. Culture and the history of the country has been given a go-bye in our Constitution. It is only a conglomeration of different constitutions.

It no where reflects or shows our ancient philosophy. Let us not feel shy or apologetic of calling this country as Bharatvarsh or Hindustan or its culture to be 'Bharti' or Hindu. The word "Hindu" does connote or promote any particular religion. It is a way of life as propounded by the Constitution bench of the Supreme Court in Shastri Yagnapurushadji V/s Madras Budhordas Vaishya A.I.R. 1966 S.C. 1119 which says, "Who are Hindus and what are the broad features of Hindu religion. That must be the first part of our enquiry in dealing with the present controversy between the parties. Quoting from the book of Dr Radhakrishnan (The Hindu view of Life) Supreme Court says 'The Hindu Civilisation' is so called, since its original founders or earliest followers occupied the territory gained by the Sindhu (The Indus) river system corresponding to the North-West Frontier Province and the Punjab. This is recorded in Rig Veda, the oldest of the Vedas. The Hindu scripture which gave their name to this period of Indian History... When we think of Hindu religion we find it difficult, if not impossible to define Hindu Religion or even adequately describe it. Unlike other religions in the world, the Hindu religion does not claim any one prophet: it does not worship any one God; it does not subscribe to any one dogma; i.e. does not believe in any one philosophic concept; it does not follow any one set of religious rates or performances; in fact, it does not appear to satisfy the narrow traditional features of any religion or creed. It may broadly be described as a way of life and nothing more. ... the term 'Hindu' according to Dr Radhakrishnan, had originally a territorial and not a credal significance. It implied residence in a well defined geographical area.

Aboriginal tribes, savage and half-civilized people, the cultured Dravidians and the Vedic Aryans were all Hindus as they were the sons of the same mother. The Hindu thinkers recknoned with the striking fact that the men and women dwelling in India belonged to different communities, worshipped different gods, and practised different rites (Kurma Purana). "The history of Indian thought emphatically brings out the fact that the development of Hindu religion has always been inspired by an endless quest of the mind for truth based on consciousness that truth has many facets. Truth is one, but wise men describe it differently. The Indian mind has consistently through the ages, been exercised over the problem that faces the spirit at the end of life, and the interrelation between the individual and the universal soul. If we can abstract from the variety of opinion says Dr Radhakrishnan, and observe the general spirit of Indian thought we shall find that it has a disposition to interpret life and nature in the way of monistic idealism, through this tendency is so elastic, living and manifold that it takes many forms and expresses itself in even mutually hostile teachings".

Naturally when we consider this broad sweep of the Hindu philosophic concepts, it would be realised that under Hindu philosophy there is no scope for recommunicating and notion or principle as heretical and rejecting it as such. Supreme Court further quotes from Monier Williams who says: 'It must be borne in mind that Hinduism is far more than a mere form of heism vesting on Brahmanism... The Hindu who are not one people but many. It is based on idea of universal receptivity. It has even receptivity. It has ever aimed to accommodating itself to circumstances, and has carried on the process of adaptation through more than three thousand years. It has first borne with and then, so to speak, digested, and assimilated something from all creeds (Religious Thought & Life in India" by Monier Williams P. 57).

Supreme Court in R.Y. Prabhoo v/s P.K. Kunte (AIR 1996 SCW page 671) has also quoted from the book 'Present day Experiment in Western Civilisation' by Toynbee Pages 48-49 and has further said that the Constitution makers were fully conscious of this broad and comprehensive character of Hindu religion and so while guaranting the Fundamental Rights to freedom of Religion. Explanation II of Art. 25 has made it clear that in sub-clause (b) of clauses (2), the reference to Hindu shall be construed as including a reference to persons professing the Sikh, Jains or Buddhist religions. In another Constitution bench decision in Commissioner of Wealth Tax Madras v/s Late R. Sridharan (1976) Supply. S.C.R. 478 the meaning of Hinduism as commonly understood is stated as 'It is a matter of common knowledge that Hinduism embraces within itself so many diverse forms of belief, faiths, practices and worship that it is difficult to define the term 'Hindu' with precision. The Supreme Court has further looked into unabridged Edition of Webster's Third New International Dictionary of English, Encyclopaedia Britannica (15th Edition) Bal Gangadhar Tilak's Gita Rahasya and has held that no precise meaning can be ascribed to the words 'Hindu', Hindutva' & Hinduism' and no meaning in the abstract confine of Indian culture and heritage.

The term, 'Hindutva' is related more to the way of life of the people in the continent. Hindutva cannot be assumed to mean and be equated with narrow fundamentalist religious bigotry. Regarding the so-called or known 'Non-Hindus' Supreme Court has quoted Barucha & Ahmadi J.J. in Dr M. Ismail Farooqui v/s Union of India (1994 S.C.W. 4897): "Hinduism is a tolerent faith. It is that tolerance which has enabled Islam, Christianity, Zorroostrainism, Judaisms, Buddhism, Janism and Sikhism to find shelter and support on this Land". Supreme Court has also quoted from Indian Muslims-need for a positive outlook by Maulana Wahafuddin Khan (1994):- "The strategy worked out to solve the minorities problem was, although differently worded that of Hindutva or Indianisation. This strategy, briefly stated, aims at developing a uniform culture by obliterating the differences between all the cultures co-existing in the country. This was felt to be the way of communal harmony and national unity. It was thought that this would put an end once and for all to be monorities problem". The Supreme Court has in pragraph 40 has held that the word 'Hindutva' is used and understood as a synonym of Indianisation i.e. development of uniform culture by obliterating the differences between all the cultures co-existing in the country. In view of the above said decisions of the Highest court of the land, I suggest that in the Preamble of the constitution the word India be substituted or replaced by Bharatvarsh or Hindusthan and in Article I of the constitution the words, India that is Bharat be substituted by Bharatvarsh i.e. Hindusthan. (To be concluded)