Shastri Yagnapurushdasji v. Muldas Bhudardas Vaishya (1966)

Every one of the four codifying Acts of 1955 and 1956 opens by saying who it applies to, and each of them uses the word Hindu without defining the religion. Section 2(1)(a) of the Hindu Marriage Act applies the Act "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 Samam" — but it nowhere says what being a Hindu by religion consists of. This is the decision in which the Supreme Court considered "the question as to who are Hindus, and what are the broad features of Hindus religion."

It is therefore the starting point for the whole paper. Until you know who the Act governs, no question about marriage, coparcenary, succession, adoption or maintenance can be answered.

The Court's first move was historical, and it is the part most often quoted. "the word Hindu is derived from the word Sindhu, otherwise known as Indus River". The Persians "pronounced this word Hindu and named their Aryan brethren" by it. Dr Radhakrishnan is cited for the observation that "the Hindu civilisation is so called since its original founders or earliest followers occupied the territory drained by the Sindhu (Indus) River system corresponding to the North West Provinces in Punjab", a matter recorded in the Rig Veda, "the oldest of the Vedas". So "The people on the Indian side of the Sindhu were called Hindus by the Persians and later Western invaders."

The conclusion drawn is the one to reproduce: "the term Hindu had originally a territorial and not a creedal significance. It implied residence in a well defined geographical area."

That origin is consistent with the account given elsewhere that in the earliest times the term "had a territorial significance", that "It only denoted nationality", and that the word itself "is of foreign origin", the designation having come into existence "with the advent of Greeks who called the inhabitants of the Indus valley as" Indoi, and having later been extended "to include all persons who lived beyond the Indus valley."

But the word has moved on: "Today, the term 'Hindu' has lost its territorial significance. It is also not a designation of Nationality."

Having disposed of geography, the Court turned to belief. It did not attempt a definition; it identified what all the divergent schools of Hindu philosophy hold in common.

Beneath "the diversity of philosophic thoughts, concepts and ideas expressed by Hindu philosophers who started different philosophical schools lie certain broad concepts which can be treated as basic."

Three such concepts are named.

First, the authority of the Vedas. "The first among these basic concepts is the acceptance of the Vedas as the highest authority in religious and philosophical matters." The Court draws the inference that gives the criterion its force: "This concept necessarily implies that all the systems claim to have drawn their principles from a common reservoir of thought enshrined in the Vedas."

Second, the world rhythm. "The other basic concept which is common to the system of Hindu philosophy is that all of them accept this view of the great world rhythm; vast periods of creation, maintenance and dissolution follow each other in endless succession."

Third, rebirth. "It may also be said that all the systems of Hindu philosophy believe in re-birth and pre-existence".

The passage is habitually quoted as if it were a test. It is not, and the safest answer says so. The judgment "gives a good working elaboration of Hindu religion in positive terms", but "it is equally true that any definition of the 'Hindu' in terms of religion will always be inadequate."

That admission explains the drafting of the statutes. Because no definition in terms of belief can be complete, section 2 of each Act works by three routes instead: a positive limb for those who are Hindu by religion in any of its forms; a second positive limb for Buddhists, Jainas and Sikhs; and a residuary limb applying the Act 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 Hindu law or its custom would not have governed him. The residuary clause exists precisely because the religious test fails.

On the reach of Hindu law. A person who accepts the Vedas as the highest authority, or who belongs to a reformist body such as the Brahmo, Prarthana or Arya Samaj, or to the Virashaivas or Lingayats, is within the statutory expression, however far his philosophy is from any other Hindu's. The three common concepts explain why a system so plural is nevertheless one system for legal purposes.

On conversion. The decision supports the settled approach that no formal ceremony is needed to become a Hindu. What is required is a bona fide intention, conduct evidencing it, and, in some cases, the acceptance of the community — the approach applied in Perumal v. Ponnuswamy, where it was held that "mere declaration by a person that he is a Hindu, will not convert him into Hinduism."

On the limits of a religious criterion. In any question on the Uniform Civil Code, this case is the answer to the assumption that personal law tracks a single doctrinal faith. A body of law that governs the followers of several distinct philosophies, plus Buddhists, Jainas and Sikhs, plus everyone domiciled in India who is not of four named faiths, is already far from being the law of one religion.

Hindu law does not apply to Hindus because they believe a particular thing. It applies to them because the statute says so, and the statute says so by a mixture of naming, deeming and exclusion — a structure the Court's own admission, that any religious definition "will always be inadequate", makes intelligible.