Justice R. A. Jahagirdar
During the freedom struggle and during the deliberations of the
sessions of the Indian National Congress, prior to independence, there
was little, if any, debate on
secularism
and on what character the State of India was to take. It was no doubt
accepted that India, inhabited by many religions, will not discriminate
against any religion and will allow freedom of religions to the
followers of different religions.
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| Justice RA Jahagirdar |
Independent India was anointed in a bloodbath consequent to communal
riots that rocked the sub-continent for nearly two years. The Muslim
majority areas of the British India were constituted into Pakistan, a
theocratic Islamic State – a concept that was duly incorporated later in
the Constitution of Pakistan. It should be remembered that in the
history of the world Pakistan is the first and the only Islamic (indeed a
theocratic) State born or established as such. Other Islamic States
were States already existing that came to acquire Islamic character.
This development has certain political and social consequences that
should form the subject of a separate study.
Because of the generally non-communal character of the political
party that spearheaded the freedom struggle and the wise leadership that
guided Indian polity at the initial stages, India fortunately did not
become a religious or a theocratic State. The debates in the Constituent
assembly that framed the Constitution of India show that there was
unanimity on the point that there would be no discrimination based on
religion, though there was no common understanding what
secularism
meant. Surprisingly or otherwise, there was no discussion on this
subject at least in the public till the sixties. Apparently there was no
judgement either of a High Court or of the Supreme Court dealing with
the subject – or else there would have been some debate among our alert
academicians.
Studies in Indian Secularism
In 1963 there appeared what has been regarded as a pioneer study on
secularism
in India. This was 'India as a Secular State' by Prof. Donald E. Smith
of Princeton University, New Jersey. Around the same time there was
another study on the subject made by Ved Prakash Luthera of University
of Delhi, India, which was awaiting publication. It was published in
1964 as 'The Concept of the Secular State in India'. In the Preface to
his book Luthera mentions that when Donald Smith’s India 'As A Secular
State' appeared, his study had gone to the press but Smith had read the
manuscript of Luthera’s study. As will be mentioned later, the two
authors take contrary views on the subject.
Thereafter, for reasons which are not clear, regular discussion and
debates took place on this subject, namely, Secularism and India. It
would be in order to take note of some of the earlier studies which were
published. In November 1965 The Indian Law Institute, New Delhi, had
organised a seminar on 'Secularism: Its Implications For Law and Life In
India' and the papers presented at the seminar along with the inaugural
address by the then Chief Justice of India were published in a volume
under the same title.
Challenges to Secularism
Prof. A.B. Shah, the Founder-President of the Indian Secular Society,
Poona, wrote some articles in a newspaper which brought forth some
responses. A Muslim friend put some questions to Shah and he responded
to them in his characteristically frank and outspoken manner. Then there
was his correspondence with Shankaracharya of Puri. All this material
has been published in 1968 in a book under the title 'Challenges to
Secularism'. This book deserves much wider reading than it seems to have
enjoyed. Sample the following headings: The Challenge from
Hindu Obscurantism; The Challenge from Muslim Obscurantism; Dialogue with a
Hindu Obscurantist (i.e. Shankaracharya of Puri).
A collection of essays in the form of a symposium has been edited by
Prof. V.K. Sinha and has been published under the title of Secularism In
India on behalf of International Association For Cultural Freedom. The
readers will be interested to note that this volume contains criticism
of Prof. Smith’s book by two other academicians viz. Prof. Marg Galanter
of University of Chicago and Prof. John T. Flint at the State
University of New York at Binghamton, New York, and Prof. Smith’s
rejoinder to the same.
During the forty years or so
secularism
has been a supremely debated, discussed and contested subject. In India
everyone says he is a secularist. Hindutvavadis insist that they are
the true secularists and the Congress is pseudo-secularist; some Muslim
scholars – notable among them Dr. Rafiq Zacharia and Asghar Ali Engineer
– propound a theory that Islam based upon the Holy Quran is secularist.
Moreover so many topics and sub-topics related – directly or indirectly
– with
secularism
have been the subject of secular discourse in India that it is not
possible to survey it within the space permitted for this essay. I
intend to cover the debate in so far as it deals with three questions,
which I formulate as follows:
- What is the true meaning of secularism?
- Is the Republic of India, as per the Constitution of India, a secular State?
- Is secularism desirable or possible in India?
The Meaning of Secularism
To answer the first question, a survey – though very brief – of the origin of the concept and meaning of
secularism is necessary. As a concept,
secularism was the product of Renaissance in Europe though the word
secularism
was not then used. Secular attitude arose as a reaction to the tendency
displayed during the medieval ages to despise human affairs and to
meditate upon God. If a beginning is to be made towards understanding
the meaning of this word, one may turn to the Oxford English Dictionary
(OED Vol.IX 1978), which states that
secularism
is the doctrine that morality should be based solely on regard to the
well-being of mankind in the present life to the exclusion of all
considerations drawn on belief in God or in a future State. OED further
points out that it was George Holyoake (1817-1906) who gave this name to
the definitely professed belief.
The next step is to find out what Holyoake meant by
secularism.
Unfortunately, primary sources in the nature of collection of Holyoak’s
own writings are not available – at least not easily. But, happily,
wholly reliable material is available to show the unmistakable views of
Holyoake and Bradlaugh. In 1851, a definite stage in the emergence of
explicit
secularism
was reached by the founding of the Central Secular Society by Holyoake.
The Society issued a statement of secularist doctrine proclaiming:
- science as the true guide of man,
- morality as secular, not religious, in origin,
- reason as the only authority,
- freedom of thought and speech, and
- that owing to the uncertainties of survival we should direct our efforts to this life only.
George Holyoake was no less an atheist than Charles Bradlaugh.
Holyoake had been sentenced to six months’ imprisonment for making the
blasphemous statement that God should be retired. It should be
remembered that Holyoake published 'The Trial of Theism' in 1858. It is
also recognised that his coining of the word ‘secularism’ was an attempt
to give atheism some respectability. In March 1870 there was between
Holyoake and Bradlaugh a debate on the proposition that “(t)he
principles of
secularism
do not include atheism” Holyoake in support of the proposition
canvassed that “… the secularist concerns himself with this world
without denying or discussing any other world, either the origin of
this, or the existence of that”.
Bradlaugh, on the other hand, held “that the logical consequence of
secularism
is the denial, the absolute denial of Providence”. In short, Holyoake
said that ignoring God was enough; Bradlaugh insisted that God should be
banished. This minor difference between them did not affect their
common conviction that
secularism
demanded complete separation of the Church from the State and the
abolition of all privileges granted to religious organisations.
Wall of Separation
The theory of separation of the Church from the State had been
earlier, in December 1791, incorporated in the U.S. Constitution by the
First Amendment which stated that “Congress shall value no law
respecting an establishment of religion, or prohibiting the free
existence thereof; …”. Two theories were originally competing regarding
the true meaning of this amendment. One theory was that the amendment
bans the preferential treatment of any particular religion or sect by
the State. The other theory was contained in the famous letter which
Thomas Jefferson wrote to a group of Baptists in Danbury, Connecticut,
in 1802 wherein he opined that the purpose of the First Amendment was to
build ‘a wall of separation between Church and State’. Seventy-seven
years later i.e. in 1879, Chief Justice Waite, while giving the
unanimous opinion of the Court, characterised this statement by
Jefferson as “almost an authoritative declaration of the scope and
effect of the amendment”.
The U.S. Supreme Court has from time to time wrestled with this
question but the long line of decisions till today have consistently
taken the view that State-aided schools cannot allow the school time to
be utilised for anything connected to religion, even non-denominational
religion, nor can such schools permit their premises even outside the
school time, to be used for any religious purposes. No tax in any
amount, large or small, can be levied to support any religious
activities or institutions, whatever they may be called, or whatever
forms they adopt to teach or practice religion.
I cannot resist the temptation of recalling one opinion of the
Supreme Court viz. Engel v. Vitale which held that even optional prayers
in aided schools were unconstitutional. The majority opinion was
delivered by Justice Hugo Black who was a devout Baptist and Sunday
School preacher. He was denounced as a Communist and an atheist. It was
the wise counsel of the then President of U.S., John Kennedy, that the
Americans should accept the decision which was a “welcome reminder to
every American family that we can pray a good deal more at home and
attend our Churches with a good deal more fidelity and we can make the
true meaning of prayer more important in the lives of all our children”.
Incidentally, Justice Black was, in his younger days, a member of Ku
Klux Klan and anti-Black. As a judge of the Supreme Court, he was a
strong de-segregationist. Carl Sagan has pointed out that as a member of
the Ku Klux Klan, Black wore white robes and intimidated the blacks; as
a judge of the Supreme Court he wore black robes and intimidated the
whites.
Multi-religious Society
America, a secular State in concept and practice, was founded by
Pilgrim Fathers. Immigrants, who have poured into this country for over
two centuries, have been intensely religious people. Even today there
are probably more religious societies, groups, sects – incorporated or
not – in America than in any other country.
American society is not secular though the State is. The world’s
first fundamentalist movement was born in this country. It is for this
reason, namely the existence of so many denominations of religion,
amounting to plurality of religions, that it was thought to have a wall
of separation between the Church and the State. This would, the
Constitution-makers realised, prevent the dominance of any one
particular denomination and secondly would prevent any one denomination
members, if in power, from meddling into the affairs of another
denomination. The American example demonstrates that in a
multi-religious society it is not only necessary but also possible to
build a secular State. This holds a valuable lesson to India.
Prior to the Revolution in 1789, France was a Catholic country,
having a Catholic monarch, with the Roman Catholic Church as the
Official Church and the Roman Catholic religion as the official
religion. The Church commanded power, prestige and pelf. The Church
controlled the educational system including the schools and enforced the
civil law which was the religion-made law. This situation could be
described as that when the State was in the Church and not the Church in
the State.
M. Jean Banbarot, an authority on French
laicite, the French equivalent of
secularism, has, in an illuminating contribution to 'Secularism And Its Critics', traced the development of
secularism
in France through three stages over a period of two centuries. The
French Republic has ultimately evolved into a wholly secular republic.
Today the Church is in the State and not the State in the Church. The
educational system has been completely freed from the thralldom of the
Church – “in the French republican school, one does not learn to believe
but to reason”.
Remember, France was the most religious nation in the world, but by a
cultural revolution was transformed into the most secular State. Today
it is impossible to know the religious composition of the French society
because census does not ask for nor records the religious affiliations
of the French citizens.
Turkey
Turkey was the centre of the Ottoman Empire and the seat of Caliphate
– the supreme religious and secular head of Musalmans all over the
world. The religion was Islam, the most difficult religion confronting
secularism.
After Mustafa Kamal came into power he dethroned the Sultan and
abolished the Caliphate much to the chagrin of the leaders of the Indian
Muslims. A rigorous
secularism
was introduced by making it an offence to wear a fez cap (a symbol of
Islam), abolishing all monasteries and religious houses and confiscating
their properties, closing Muslim religious schools and starting State
non-religious schools, replacing Shariat law by Swiss Civil Code,
Italian Penal Code and German Commercial Code, abolishing polygamy and
opening the professions to women who were prohibited from wearing
purdah. Ataturk, the Father of Turks, with the submissive collaboration
of the Turkish National Assembly, established a secular State and
created a secular society which have survived till today though facing
some challenge from Islamic revivalism.
The justification for the review of the evolution of secular States
in the three countries made above is the need to emphasize the fact that
in all these countries there were deeply religious societies. Yet
secular States with obvious benefits have been established in these
countries. Whether
secularism
is desirable in a multi-religious society like India is another matter.
But it is incorrect to say that in India where there are many
religions, predominantly only two –
Hindu and Muslim –, a secular State cannot be established.
It would, I think, be appropriate at this stage to dispose of the views of two eminent scholars on
secularism.
The former President of India, Dr. S. Radhakrishnan, should not, with
great respect, have been expected to pronounce authoritatively on
secularism. However, in the discourse on
secularism
in India, some participants have quoted a passage from his "Recovery of
Faith'. I would refrain from reproducing in extenso Dr. Radhakrishnan’s
view of
secularism. For the present purpose the following extract is enough to inform ourselves his views on the subject:
"No group of citizens shall arrogate to itself rights and privileges
which it denies to others. No person should suffer any form of
disability or discrimination because of his religion but all alike
should be free to share to the fullest degree in the common life. This
is the basic principle involved in the separation of Church and State.
The religious impartiality of the Indian State is not to be confused
with
secularism
or atheism. Secularism as has been defined is in accordance with the
ancient religious traditions of India". (emphasis provided).
At best this means that in secular society everyone should be free to
practice his or her religion. In my opinion, this is of very little use
in the discussion on secular State.
Colour of Secularism
Justice P.B. Gajendragadkar, who, as the Chief Justice of India, had
inaugurated the seminar on Secularism organised by the Indian Law
Institute in New Delhi, delivered Kashinath Trimbak Telang Endowment
Lectures in February 1970 when he was the Vice-Chancellor of University
of Bombay. The subject of the lectures was 'Secularism and the
Constitution of India'. Gajendragadkar has in those lectures reviewed
the development of
secularism in Europe, America and Turkey and has also noticed the meaning of
secularism
as unfolded by Encyclopaedia Britannica and Encyclopaedia of the Social
Sciences. After doing this he has proceeded to state as follows:
"The word ‘secular’, like the word ‘religious’, is amongst the
richest of all words in its range of meaning. It is full of subtle
shades which involve internal contradictions, and of these
contradictions the conventional dictionary meaning can scarcely give a
correct view.”
This, with great respect, is hardly the correct way to approach the
subject and unfortunately this view has coloured much of the later
discussion that took place in India.
‘Oh, water, what is your colour?’
‘The colour of whatever you mix me in!’
The meaning of
secularism,
it is believed, has emerged with sufficient clarity from the survey of
historical development made earlier herein. The next question is whether
India, as unfolded by the Constitution, is a secular State. What did
the Constitution-makers intend it to be? The Constitution, till the 42nd
Amendment in 1976, did not contain the word ‘secular’ except
incidentally in Article 25(2)(b). Prof. K.T. Shah was the only member
who made a valiant effort to get a provision regarding the secular
character of India included in the Constitution. The following
amendment, moved as Amendment No.366, was defeated on 3rd December 1948.
"The State in India being secular shall have no concern with any
religion, creed or profession of faith; and shall observe an attitude of
absolute neutrality in all matters relating to the religion of any
class of its citizens or other persons in the Union.”
To be sure, neither this amendment nor the speech which Prof. Shah
made in support of the amendment would have brought about a situation of
“a wall of separation between the State and the Church”. But it would
have put a brake upon the State functionaries freely using the State
finance and the machinery for pilgrimages and other religious
activities. Prof. Shah’s amendment would have also prevented the State
media, especially radio and television, from broadcasting bhajans,
prayers, religious discourses etc.
Non-Discrimination
The trend of speeches of some of the members on related subjects did
not show a full and proper understanding of the need to define
secularism or in fact an understanding of
secularism. The following extract from the speech of
Pandit Laxmi Kanth Maitra on 6th December 1948 can be said to reflect the consensus of the members:
By (a) secular State, as I understand it, is meant that the State is
not going to make any discrimination whatsoever on the ground of
religion or community against any person professing any particular form
of religious faith. This means in essence that no particular religion in
the State will receive any State patronage whatsoever.
The non-discriminatory character of a secular State is undoubtedly
imprinted on the Constitution. There is freedom of religion – the right
to freely profess, practice and propagate religion. Every religious
denomination has been given the fundamental right to establish and
maintain its own institutions and to manage its own affairs in matters
of religion (Art.25).
There are a couple of provisions, which, it is easily seen, do not
prevent the utilisation of funds belonging to the State for non-secular
purpose. Article 27 stipulates that no person shall be compelled to pay
any taxes, the proceeds of which are specifically appropriated in
payment of expenses for the promotion or maintenance of any particular
religion. Does this prevent appropriation from the general revenue for
such purposes? It is the application of funds from the general revenue
that is making possible the broadcasting of devotional songs and Kirtans
and telecasting unabashedly of religious programmes. It is the
application of funds from the general revenue that facilitated the 300th
Anniversary of Khalsa on which Rs.300 crores are reported to have been
spent. Can you legally prevent the reconstruction of Babri Masjid or
construction of Ram Temple at Ayodhya with the aid of Government funds?
Article 28(1) says: “No religious instruction shall be provided in any
educational institution wholly maintained out of State funds” [Emphasis
mine]
Note that the ban applies only to institutions wholly maintained out
of State funds and not to institutions recognised by the State or
receiving aid out of State funds. It is well known that almost every
private educational institution in India is run to a great extent on
funds provided by the State or State agencies. The mischief that would
be occasioned by this provision was recognised by Prof. K.T. Shah who
unsuccessfully sought to get the words “wholly maintained” substituted
by “wholly or partly”.
These provisions have been noted by Luthera in his book. He has also
pointed out that the State in India can get entangled in the management
of religious affairs and institutions. For these and other reasons and
in the light of the connotation the word ‘secular’ has acquired
historically and legally, Luthera has argued that India is not a secular
State.
The Somnath Episode
An early challenge to the theory and practice of
secularism
in India was provided by the episode involving the reconstruction of
Somnath Temple in Gujarat. As is well known to students of Indian
history, Somnath temple was destroyed in AD 1025 by Mohmed Gazri and the
Shivalinga was broken into pieces. Since then the
Hindu
sentiment had been strongly agitated and reconstruction of the temple
and the installation of a new consecrated lingam had been strongly
desired by believing Hindus.
After India attained independence in 1947, moves were initiated
towards the reconstruction of the temple. K.M. Munshi, in his
'Pilgrimage to Freedom' recalls that Sardar Patel, as Deputy Prime
Minister, pledged the Government of India to the reconstruction of the
historical temple and that the Cabinet, presided over by Jawaharlal
Nehru, decided to reconstruct the temple at Government cost. But
Gandhiji advised Sardar Patel not to have the temple constructed and
suggested that sufficient money should be collected from the people for
this purpose. This advice was accepted and a committee for overseeing
the project was appointed under the chairmanship of K.M. Munshi. The
decision of the Government, therefore, became irrelevant.
What followed is important. The Constitution of India came into force
in January 1950 and in December of the same year Sardar Patel passed
away. Munshi invited President Rajendra Prasad to perform the ceremony
of the installation of the deity and requested him to accept the
invitation only if he was sure of fulfilling the promise. This was
because Munshi suspected that Jawaharlal Nehru might jeopardise the
President's commitment. However, the President Prasad stood by his
commitment and performed the installation function on 11th May 1951.
It seems Jawaharlal Nehru did not take well the association of Munshi
with the work of the restoration of Somnath temple. For, Munshi says :
At the end of a Cabinet meeting Jawahar called me and said 'I don't like your trying to restore Somanath. It is
Hindu revivalism.
This Cabinet meeting was of 23rd April 1951 because in a letter which
Munshi wrote on 24th April 1951, he recalls "Yesterday you referred to '
Hindu
revivalism'...". This letter sets out the history of the restoration
work with which, as the letter sets out, the States Ministry was closely
associated.
This episode gives rise to some important questions. Was the
Government of India justified in resolving to undertake the restoration
work of a temple (though as a result of Gandhi's suggestion the money
was not provided by the Government)?
If such a decision was taken in a Cabinet meeting over which the
Prime Minister presided, was he justified in protesting to the President
about the latter's participation in the function and in chiding Munshi
for associating with a work of
Hindu
revivalism? It is true that the Prime Minister's protest and rebuke
occurred after the 'secular Constitution' came into force but no
Government could have disassociated with the implementation of a
decision taken by it.
These questions have been rendered irrelevant by the conduct of the
later Prime Ministers (not excluding Jawaharlal's daughter) and the
Presidents travelling at State expense to religious places and for
religious functions.
M.N. Roy had already commented on this phenomenon in his article in 'The Radical Humanist' of 14th May 1950 as follows:
What is necessary is not facile profession of
secularism,
but a movement for the popularisation of cultural values. The process
of secularisation, assuming that it is desired by the Government, cannot
be promoted by legislation or executive orders. But men at the helm of
affairs could help, if they did not willingly swim with the contrary
current, as they do as a rule. The President of the Republic, Governors
and Ministers of the States and the lesser are frequently taking leading
parts in public religious ceremonies. This demonstrative religiosity is
entirely different from religion as a part of one's private life.
Warming up to his theme, Roy pointed out :
The President of the USA or the Prime Minister of the British Labour
Government may go to the Church on Sundays and try to lead their
personal lives and conduct the affairs of the State according to
Christian morality. But their daily lives, either as private citizens or
a Statesmen, do not bear the faintest stamp of religious ritualism.
No wonder that even the agnostic Jawaharlal could not prevent the
birth of Independent India as an astrologically auspicious time.
Is India a Secular State?
A very comprehensive study of the Constitution of India and also of
the social and cultural conditions in India with a view to determining
whether 'India is a secular State' has been made by Prof. D.E. Smith in
India as a Secular State noticed earlier. It has been rightly regarded
as a pioneering study on the subject. Contrary to popular understanding,
Prof. Smith does not assert that India is a secular State. To the
question whether India is a secular State, his answer is a qualified
‘Yes’. The reason why he does not answer in the negative is that he
poses the question, in this author’s opinion, wrongly, as: What is the
meaning of the term ‘secular State’ in the Indian context? There were
several features of the Constitution which were strongly suggestive of
secularism. The prevalent cultural indicators were supportive of
secularism.
On page 40 of his book, he formulated his famous table enumerating five characteristics of the three religions -
Hinduism,
Buddhism and Islam - which indicated whether they were favourable to
the secular State. Of five factors, four were positive in the case of
Hinduism
and Buddhism while four were negative in the case of Islam - which
meant that the possibility of an Islamic society becoming secular is
practically nil.
However, Prof. Smith did not fail to notice that the forces of
Hindu
communalism were biding their time and thought it was not unlikely that
the future would bring circumstances more congenial to their growth. He
was cautious not to dismiss the possibility of a future
Hindu
State, but felt that on the basis of evidence then existing the
possibility did not appear a strong one. His ultimate verdict: the
secular State has more than an even chance of survival in India.
Degrees of Secularism
I believe that Prof. Smith is in error in holding that India is a secular State, to a degree. There cannot be degrees of
secularism
- at least in such a way that quantitative difference results in
qualitative one. The provisions in the Constitution have been examined
earlier here which are capable of producing secular practices. On the
other hand, they have created and are creating a situation of
non-secular and anti-secular ethos. Luthera is more correct on this
question.
This is so despite what is stated in some of the judgments of the
Supreme Court of India. Recently the Supreme Court had an opportunity of
examining whether dismissals of the Bharatiya Janata Party (BJP)
Governments in some States and imposition of the President's rule under
Article 356 of the Constitution on the ground "that a situation has
arisen in which the government of the State cannot be carried on in
accordance with the provisions of the Constitution ..." was right or
not. This was consequent to the demolition of what was known as Babri
Masjid at Ayodhya, Uttar Pradesh, by the BJP volunteers and other
members of the Sangha Parivar. The BJP was in power in Uttar Pradesh. It
should be recalled that the BJP had contested the election and had come
into power on the basis of a Manifesto, which contained the following:
BJP firmly believes that the construction of Shri Ram Mandir at
Janmasthan is a symbol of the indication of our cultural heritage and
national self-respect. For BJP it is purely a national issue and it will
not allow any vested interest to give it a sectarian and communal
colour. Hence Party is committed to build Shri Ram Mandir at Janmasthan
by relocating superimposed Babri structure with due respect." [ Emphasis
mine ]
The emphasised words were used to indicate the BJP stand that the
structure was not a mosque at all and it was built upon a site where Ram
Mandir (temple) originally existed.
It must be mentioned straightaway that in S.R. Bommai the Judges did not examine the concept of
secularism
in the light of the theory of separation of Church and State but dubbed
as secular the situation existing in the context of the Constitutional
provisions such as Articles 25, 26, 29, 30, 44 etc. Sawant, J., who
delivered the leading judgment, after examining the Articles mentioned
above and some more, said:
These provisions by implication prohibit establishment of a
theocratic State and prevent the State either identifying itself with or
favouring any particular religion or religious sect or denomination.
The State is enjoined to accord equal treatment to all religions and
religious sects and denominations.
Basic Structure
Some other judges delivering separate but concurring judgments went further. K. Ramaswamy, J., for example, opined:
Secularism is, therefore, part of the fundamental law and basic
structure of the Indian Political System to secure to all its people
socio-economic needs essential for man's excellence with material and
moral prosperity and political justice.
After examining the relevant Articles, Jeeven Reddy, J. (for himself and on behalf of S.C. Agarwal, J., said:
Secularism is thus more than a passive attitude of religious
tolerance. It is a positive concept of equal treatment of all religions.
More eloquently, though not accurately, he proceeded to say:
In short, in the affairs of the State (in its widest connotation)
religion is irrelevant; it is strictly a personal affair. In this sense
and in this behalf our Constitution is broadly in Agreement with the
U.S. Constitution, the First Amendment whereof declares that 'Congress
shall make no laws respecting an establishment of religion or
prohibiting the free exercise thereof ...' (generally referred to as the
"establishment clause"). Perhaps, this is an echo of the doctrine of
separation of Church and State; may be it is the modern political
thought which seeks to separate religion from the State - it matters
very little.
Even better: "In this view of the matter, it is absolutely erroneous to say that
secularism is a 'vacuous word' or 'a Phantom concept'."
It is at this stage necessary to examine the judgment of the Supreme
Court in Dr. Ramesh Yashwant Prabhoo v. Prabhakar Kashinath Kunte and
others (hereafter Prabhoo's case). This was a judgment of a bench of
three judges (not the Constitutional Bench) which by this judgment
disposed of two appeals from the judgments in election petitions of
Bombay High Court. The question before the Court was whether the
prohibition of an appeal by a candidate to vote for him on the ground of
his religion [Section 123)(3) of the Representation of the People Act]
was violative of the fundamental right under Article 19(1)(g) of the
Constitution. Such a prohibition would be permissible if it amounted to a
reasonable restriction under Clause (2) of Article 19.
This question was answered in the affirmative so emphatically that
the secularists' joy knew no bounds. A restriction can be said to be
reasonable if it is on the ground of, among other things, "public order,
decency or morality". In paragraphs 28 and 29 of the judgment, the
judges held that seeking votes at an election on the ground of the
candidate's religion in a secular State is against the norms of decency
and propriety of the society. Proceeding further, the judges said, in
paragraph 30, that in the context of the abolition of separate
electorates based upon religion and
secularism
being the creed in the Constitution scheme, appeal on the ground of the
candidate's religion was inconsistent with decency and propriety of
societal norms.
On the facts, the judges found that appeal made by the candidate was
of the prohibited kind. This should have been enough for the disposal of
the appeal. But the judges, on being invited to do so or otherwise,
launched into a discussion of
Hinduism and
Hindutva and proceeded to say that mere references to
Hinduism or
Hindutva are not proscribed. What is surprising, to say the least, is the interpretation of
Hindutva in paragraph 39 of the judgment. The judges opined:
"Ordinarily,
Hindutva is understood as a way of life or a state of mind and it is not to be equated with, or understood as religious
Hindu fundamentalism."
This opinion is sought to be based upon a passage in Indian Muslims -
The Need for A Positive Outlook (1999) by Maulana Waliduddin Khan, a
liberal Muslim Scholar. The passage has been extracted out of context
and in fact has been scribed by the Maulana as the view of the
Hindutvavadis. That is not definitely the opinion of the Maulana.
What is surprising is the learned judges' failure to notice the meaning of
Hindutva
as propounded by the Hindutvavadis beginning from Savarkar, who in fact
coined the word exploited by Lal Krishna Advani and his party as
reflected in the Manifestos of the BJP. This part of the judgment has
received widespread criticism and has opened an unwarranted controversy
which will have to be laid to rest soon by a larger bench of the Supreme
Court as soon as possible.
Major Religions
Prof. T.N. Madan is a prolific writer on
secularism
- having written books and several articles on the subject. For the
purposes of this essay I will make a reference to his contribution
'Secularism in Its Place' to a collection of essays Secularism and Its
Critics. Madan is of the view that
secularism
is a late Christian idea and it is not indigenous to the religious
cultures of India. He argues that the demand for removal of religion
from public life is predicated on the view that religion is irrational.
He believes that "in the prevailing circumstances
secularism
in South Asia as a generally shared credo of life is impossible, as a
basis for State action impracticable, and as a blueprint for the
foreseeable future impotent. He makes what he calls an excursus into
South Asia's major religion "to make the point that the search for
secular elements in the cultural traditions of this region is a futile
exercise for it is not these but an ideology of
secularism is absent and is resisted".
He takes full note of the Muslims' resistance to the reform of family
law, Shah Bano case, the Hindutvavadis' agitation for the demolition of
Babri Mosque in Ayodhya and Sikh and
Hindu
fundamentalists facing each other in Punjab and the killing of
innocents by Sikh terrorists - even in the context of secularisation in
everyday life. Then he takes to following judgment which I would regard
as astounding:
But surely these phenomena are only apparently contradictory, for in
truth it is the marginalisation of religious faith, which is what
secularisation is, that permits the perversion of religion. There are no
fundamentalists or revivalists in traditional society. [Emphasis mine]
In the end Madan rejects
secularism as a western modern idea unsuited to the pious society of India and stresses the need for some form of modern
secularism in the Indian cultural context.
I will also briefly dispose of the view of another writer, Aashis
Nandy, who too has written extensively on the subject. Nandy, in his
contribution 'The Politics of Secularism and The Recovery of Religious
Toleration', canvasses the thesis of the cultural inappropriateness of
secularism on grounds that the public/private distinction lying at the heart of modern
secularism makes no sense to the faithful.
Let me at this stage state that rejection of
secularism
on the ground that it is a western concept is perverse nationalism. You
may, on this ground, reject, as some in this country do, modern
medicine. Democracy, equality, liberty, which were wholly unknown to
Indian and Asian societies - can we legitimately reject them? USA was a
highly religious society when the wall of separation was built; Catholic
Church practically ruled the French society which was also intensely
religious; Turkey was the heart of Islamic world. All these countries
have accepted
secularism as the foundation of their States.
Religion In Its Place
I do not expect that a socio-political revolution of the type that took place in France will take place in India; imposition of
secularism,
as was done in Turkey, is not desirable in India, nor is it possible
even with a dictatorship which itself will not be accepted by the
Indians. If a secular State is desirable in a multi-religious country
that is India, it can be done and done easily by amending the
Constitution to separate religion from all State activities and
activities on behalf of State. To be sure a Secular State cannot build a
secular society but a secular State can be established even in a
non-secular society. This will put religion in its place where it
belongs - the hearts and the homes of the individuals. Why talk of
putting
secularism in its place as Madan has done!
In the concluding Chapter entitled 'What is Secularism For?' in
Secularism And Its Critics, Rajeev Bhargav has discussed the
desirability of
secularism in a modern State and has analysed the implications of
secularism
looked at from different points of view. He appreciatively enumerates
the arguments for the separation of religion and State broadly on the
following grounds. First, religious and political institutions must be
separated from one another because both are powerful institutions that
command peoples unqualified allegiance. Secondly,
secularism
is required in order to ensure equality so that no person by virtue of
being a member of one institution should be guaranteed membership in
another institution. "Separation is required in order to ensure a subtle
and complex equalitarian system". Thirdly, democracy requires that
there be no concentration of power in any one institution. "Separation
is required to curb political and religious absolutism". Finally
secularism will inculcate the value of fully transparent life.
Religion is a storehouse of superstition and falsehood. A life free
of illusion is a life without religion. If this is generally true, then
it must be true of our political life. Our polity must be governed by
true and self-evident principles, not by false and obscure dogmas. It
follows that religion and politics must be separated.
Two more practical arguments are also valid. At least in a
multi-religious society, the State cannot be entrusted with any
functions derived from or dependent upon a religion or religions. The
State, after all, is a coercive machinery and there should not be
coercion in matters of faith.
Ultimate ideals and religious ideals are not only irrelevant to but
are obstructive of, ordinary secular life in this world. Bhargava quotes
Charles Taylor, who has described ordinary life as the life spent in
the production and the reproduction of life as distinct from life spent
in the pursuit of some ultimate ideals. Ordinary life is not restricted
as mentioned by Charles Taylor.
Pursuit of Happiness
Ordinary life is the secular life in this world. Its legitimate end
is the pursuit of happiness (not pleasure) - in family life, in
learning, in arts, in music, in health. How is a religious teaching
useful in pursuit of happiness? Bhargava puts it at a slightly lower
level. "To sum up, ordinary life requires that an acceptable minimum
standard of human interaction exists and it is barbaric to fall below
it."
There is not much dissent on the need for having a secular State. 'We are all secularists'. However like Mesopotamia,
secularism
means different things to different people. One of these meanings is
'Sarva Dharma Samabhav' which can be translated as equal regard for all
religions. Before proceeding to examine this concept I wish to recall
that by 42nd Amendment of the Constitution in 1976 the word 'secular'
was inserted in the Preamble to say that India would be a secular, among
other things, Republic. What was meant by secular was not mentioned;
Article 366 dealing with Definitions was not even remembered. The
Statement of Objects and Reasons of the 42nd Constitution Amendment Bill
explained that the purpose of inserting the word 'secular' was "to
spell out expressly" the high ideal of
secularism
- which meant that what was implied in the Constitution was to be made
explicit. That part of the 45th Constitution Amendment Bill (1978) which
sought to define the word
secularism
as equal regard for all religions (Sarva Dharma Samabhav) was passed by
the Lok Sabha but was rejected by the Rajya Sabha. An argument is,
therefore, available that the concept of Sarva Dharma Samabhav has been
rejected by the Parliament in its constituent capacity.
Dr. Amartya Sen, in his essay, 'Secularism and Its Discontents' to
"Unravelling The Nation", calls himself an unreformed secularist and
proceeds to propound the theory of symmetric treatment to all religions.
This, according to him, is warranted by the provisions of the Indian
Constitution. His conclusion in his own words was that :
It is hard to escape the need to see India as an integrally pluralist
society and to accept the necessity of symmetric treatment and secular
policies as crucial parts of that recognition.
Another Worldview
Prof. M.P. Rege, a great analytical philosopher of India, had, in his
editorial in the New Quest had canvassed the view that the concept of
secularism in India could have three meanings;
- the recognition that the State is secular and that religious
communities are ready to reformulate their values, norms and practices;
- the acceptance of Sarva Dharma Samabhav i.e. the attitude of equal
respect for all religions as a social and also as a religious value;
- the acceptance of the worldview which claims to be based on scientific knowledge and rational morality.
Prof. Rege considers the third view as the one having an aggressive
element because it denies any place to the transcendent. Prof. Rege
argues that
secularism
is no more than one member of a family of worldviews, relations between
which need to be based on the principle of Sarva Dharma Samabhav.
Prof. M.S. Gore, a former Director of Tata Institute of Social
Sciences, Bombay, has criticised Prof. Rege's view by pointing out that
regard for any religion is not consistent with the concept of
secularism,
that a life must be guided by reason and a life guided by reason must
take into account the material as well as the non-material needs of
human personality, that the shared values and norms for a life in this
world often run counter to the explicit norms of religion and that
theistic and transcendental belief systems have often tended to be
intolerant of each other. Prof. Gore rightly suggests that "even
secularism
of the agnostic variety need accept the right of another individual to
have his own belief system; this is not the same thing as respecting
that belief system itself." Despite the platitudes of politicians and
others there is in reality no respect among the adherents of one
religion for the religion of others.
Prof. H.Y. Siddiqui has accurately stated that instead of demanding a rational state of mind "the Indian concept of
secularism
demands acceptance of the values of other religions while permitting
the individual to believe in the values of his own religion".
His conclusion, in the following words, is unexceptionable:
The Indian concept of
secularism
therefore still is full of contradictions and therefore is unable to
provide a clear unambiguous guideline either to the individual or to the
State. As a consequence, the religious values continue to dominate the
day to day affairs and in the process generate tension because of
plurality of religious views.
The debate has taken place over too long a period and will continue ad nauseum unless one returns to the anchor concept of
secularism
mentioned in the beginning of this essay. Let the religions be followed
by those who want to follow. But do nothing that may make the religions
flourish. Enlarge the space of
secularism, which is at present shrinking. So done, India, for the anti-secularists, can at worst be a bowl of salad and not of stew.
A Secular State – No Less, No More
Rajiv Gandhi Institute For Contemporary Studies, New Delhi, had
organised, in January-February 1994, a meeting in New Delhi in which
papers by eminent intellectuals from different countries were presented
and have been published in a book entitled Religion and Politics Today.
Among those papers was one titled Integration and the Phenomenon of
Religious Communalism/ Fundamentalism in South Asia by Dr. Rasheeduddin
Khan, the then Director of the Indian Institute of Federal Studies,
Jamia Hamdard, New Delhi. Let me quote a paragraph from it :
The secular character of the State is exhibited when it remains
distant from, distinct from, religion-dominated politics. A secular
State, in the pursuit of State activities, governmental obligations and
administrative duties, should exhibit a capacity to show respectful
indifference to religions and indeed keep vigilant distance from the
politics of religious communalism.
It would be edifying to end this discourse with a reminder in the words of Dr. Rasheeduddin Khan from the same paper:
The modern Indian State is an association of citizens
equal and free, irrespective of caste, colour, sex, language, region,
climate or status. The State in India is not a federation of religions,
nor an aggregation of religious communities. The citizens of India, in
law and by the Constitution, are members of a common unified national
polity. A modern State is based on a Constitution - the fundamental,
secular, manmade law of the land. Therefore the State should act as a
State and a secular State as a secular State, no less and no more.
[Emphasis is mine].
