Here is an interesting article posted on the blog law and other things by Shamnad Basheer:
Many of us have lamented the fact that although the "national law schools" have churned out very gifted lawyers, we've lost many of them to law firms. It is but natural that many of them are attracted to financially rewarding jobs that law firms typically guarantee. However, given that these law schools were established to induce alternative forms of lawyering aimed at improving society, we have to admit that there has been a failure of sorts...and a massive one at that.
It pains me to see so many of our students devastated during the campus recruitment phase when they fail to land jobs with prestigious firms. And the one question I always ask is: are you sure this is what you want to do? Or are you merely following in the illustrious footsteps of your seniors? Surely, there are a million different ways of putting legal skills to use? Thinking "out of the box" and doing something different than being a mere cog in the wheel of corporate transactional lawyering is certainly more appealing?
More importantly, if you expand out the "base" of potential legal career opportunities, you don't need to depend so heavily on firms that come to recruit? And surely, this will help future generations of law students that take inspiration from you... and relieve themselves of the herd mentality to think differently?
Why don't you try something different, I ask in all earnestness?
I see a blank face...a blank stare...and often times, a smirk...
So what ails? Why don't many of our students consider alternative legal careers and look beyond law firms? Or perhaps join firms, but move beyond the typical corporate transactional work to do more pro-bono stuff?
I hope to engage with these maladies another day. In the meantime, I'm delighted to report on a fabulous alternative lawyering initiative sparked up by a bunch of bright lawyers who recently graduated.
Styling themselves as the Pre Legislative Briefing Service (PLBS), these young turks have begun engaging with the Indian law making process in a fairly intense way. They pick up drafts of recent bills that are before Parliament, study it extensively and come up with nuanced reports on the various legal/policy implications of the bill.
Most recently, they've done an in-depth study of the nuclear liability bill and raised points that stalwarts who've been shouting in the media have simply failed to appreciate. If you wish to read their analysis of this bill, please see this report posted on SSRN.
Engaging with legal policy at this level will no doubt improve the quality of our laws in the long run. And we will have to much to thank this bright bunch for.
I list out details of their service and the team below:
The Pre-Legislative Briefing Service (PLBS)
i) To provide rigorous, independent and non-partisan legal and policy analysis of Bills introduced in Parliament
ii) To suggest appropriate legal reform to enable bills to pass tests of constitutionality if challenged
iii) To suggest appropriate policy reform if the legislative policy is to be sound in principle and efficacious in practice
Members:
1. Arghya Sengupta, B.A.LL.B. (Hons.), National Law School of India University, Bangalore (2008), Rhodes Scholar (2008), B.C.L., University of Oxford (2009) Current Status: M.Phil. Candidate in Law, University of Oxford.
2. Prashant Reddy T., B.A.LL.B. (Hons.), National Law School of India University, Bangalore (2008) Current Status: Research Associate, Ministry of HRD Chair on Intellectual Property Rights, West Bengal National University of Juridical Sciences, Kolkata.
3. Sanhita Ambast, B.A.LL.B. (Hons.), National Law School of India University, Bangalore (2009) Current Status: Candidate for the Masters in Law and Diplomacy and LL.M. joint degree, at the Fletcher School of Law and Diplomacy, Tufts University and Harvard University.
4. Shivprasad Swaminathan, B.S.L; LL.B., Indian Law Society, Pune (2004), B.C.L., University of Oxford (2006), Clarendon Scholar (2008) Current Status: D.Phil. Candidate in Law, University of Oxford
Contact: prelegislativebriefingservice@gmail.com
For those of you who've engaged with law making in this country and are privy to the legal illiteracy widely prevalent amongst Parliamentarians, you'll appreciate how valuable this offering really is.
More importantly, from the perspective of inspiring younger law students to think of alternative careers, the PBLS team couldn't have done better. Rather than playing around with the nitty-gritty of the law in badly drafted statutes, these recent graduates have decided to influence the very formation of the law itself. Certainly a much higher and more valuable terrain to play on. Perhaps law schools need to take a cue from this and focus more on the art and science of law making, rather than merely interpreting statutes and cases.
Thursday, July 22, 2010
Tuesday, July 6, 2010
Mcdonald v. Chicago: Due Process
The case is available here
Here is an article by Mr. Abinav Chandrachud on the Indian "due process" doctrine.The article reads as under (courtesy Hindu) :
Two decisions announced by the Supreme Court of India in May strikingly indicated that the American doctrine of “due process” has firmly become a part of Indian constitutional law, despite the Constitution-framers' contrary intentions. In the first of the two cases, decided on May 5, Selvi v. Karnataka, the court considered the constitutionality of the investigative narco-analysis technique, holding it permissible only when the subject consents to its use. In the second case, decided on May 11, Union of India v. R. Gandhi, a Constitution Bench unanimously held that certain provisions of the Company (Second Amendment) Act, 2002, establishing the National Company Law Tribunal and Appellate Tribunal, suffered from unconstitutional “defects.”
These decisions have been analysed and re-analysed for their immediate policy implications. However, the philosophy underlying these decisions, namely, constitutional “due process,” highlights the paradigm shift in the court's approach to original constitutional norms, and deserves analysis.
The American doctrine of “due process” had been rejected by the framers of the Indian Constitution at the time of its enactment. The fifth and fourteenth amendments to the American Constitution provide that life, liberty and property cannot be deprived without “due process of law.” This seemingly innocuous phrase, borrowed, oddly, from per legem terre in the Magna Carta, acquired a nuanced meaning in the American constitutional context, consequent to years of judicial exposition.
Over time, the phrase acquired “substantive” and “procedural” meanings, each of which enhanced the powers of the judiciary. For example, in exercise of powers conferred by the “due process” clause of the Constitution, American courts would create “new” or unenumerated rights. Most notably, these were the rights to abortion, marriage, homosexuality, the use of contraceptives, child-rearing, and so on. The “due process” clause mandated harmonious constitutional interpretation, and enabled American courts to apply federal constitutional standards against the States on principles of “fairness” or “ordered liberty.” Interestingly, in the Magna Carta the phrase “due process of law” was meant to curb the powers of the royal judiciary in favour of the feudal baronage, quite contrary to the spirit of judicial activism that is now attributed to the clause.
One of the leading members of the committee constituted to draft the Indian Constitution, B.N. Rau, travelled to the United States, where he met Justice Felix Frankfurter, a Judge on the Supreme Court. At the time, Justice Frankfurter was involved in a judicial tussle with Justice Black over the meaning of the phrase “due process of law.” Justice Black hoped that it would be interpreted to strictly incorporate rights traditionally available against the federal government, and made available against the States. By contrast, Justice Frankfurter advocated a less stringent approach, arguing that the due process clause merely required the courts to apply the principles of “fairness” or “ordered liberty” against the States. Justice Frankfurter advised B.N. Rau to avoid the due process clause in the Indian Constitution because it imposed an “undue burden” on the judiciary. Consequently, in 1949, the phrase “due process of law” was dropped from the text of what was to become Article 21 of the Indian Constitution, despite what appeared to be strong support for the clause on the sub-committee on fundamental rights.
However, despite the express textual choices of the framers of India's Constitution, the “due process” clause found a backdoor entry into Indian constitutional analysis in the late 1970s through the right to equality, which has ever since become a conduit for activist constitutional interpretation. In Justice P.N. Bhagwati's classic opinion in the Maneka Gandhi case, it was held that the Constitution mandates “fair” procedure when rights are deprived. Although the court would repeatedly hold in subsequent cases that the American standard of “due process” did not apply to the Indian Constitution, in reality the court would apply nothing less than due process standards to administrative and legislative authorities in its emphasis on “fair, just and reasonable” procedure.
The two latest decisions of the Supreme Court are striking for their express rejection of the framers' textual value choices. While previous Supreme Court opinions would at least theoretically reject American “due process,” in the narco-analysis case Chief Justice K.G. Balakrishnan held that “substantive due process” is now a “guarantee” under the Constitution. This declaration is a remarkable rejection of the framers' decision to delete the due process clause. In its narco-analysis opinion, the court upheld a right to mental privacy, recognising an “unenumerated” right as American courts would in exercise of the due process clause.
The right to privacy has been around in Indian constitutional law for decades, and the court's opinion in Selvi merely adds to the existing body of law on constitutional privacy. However, in expressly articulating the “guarantee” of due process, the court has on one of only a few occasions in its history recognised that India follows the due process doctrine, expressly rejecting the framers' intentions.
In R. Gandhi, decided on May 11, the court held that certain provisions of the law regarding the appointment and qualifications of the members of the National Company Law Tribunal, suffered from unconstitutional defects. However, the Indian Constitution does not strictly or textually permit courts to strike down a piece of legislation merely because its provisions are “unfair” or “arbitrary,” in the absence of a violation of one of its enumerated provisions. To overcome this difficulty, the court in this case held that principles such as “independence of the judiciary” are part of the “essence” of the right to equality, and consequently must be enforced. Formerly, principles such as “independence of the judiciary,” “rule of law” and “separation of powers” would usually be applied using the basic structure theory only to constitutional amendments. In its R. Gandhi opinion, the court has remarkably applied loose constitutional principles rooted in its understanding of “fairness” or constitutional “basic structure” to ordinary law, much in the same way as Justice Frankfurter would have done in the American due process cases.
The theory of “original intent,” whose most vociferous proponent, Justice Antonin Scalia, now sits on the American Supreme Court, demands that courts interpret constitutional provisions according to the intention of the framers of the Constitution. In Indian constitutional law, the theory was followed strictly by the court until after its decision in the habeas corpus case, where the Supreme Court followed the framers' intentions and permitted civil liberties to be suspended during the Emergency. The illegitimacy of the court's opinion in the habeas corpus case subsequently offered a sufficient moral basis for the rejection of the theory of original intent. The Supreme Court's latest opinions strike a lethal blow to the theory of original intent, and firmly recognise that constitutional “due process” is here to stay.
Here is an article by Mr. Abinav Chandrachud on the Indian "due process" doctrine.The article reads as under (courtesy Hindu) :
Two decisions announced by the Supreme Court of India in May strikingly indicated that the American doctrine of “due process” has firmly become a part of Indian constitutional law, despite the Constitution-framers' contrary intentions. In the first of the two cases, decided on May 5, Selvi v. Karnataka, the court considered the constitutionality of the investigative narco-analysis technique, holding it permissible only when the subject consents to its use. In the second case, decided on May 11, Union of India v. R. Gandhi, a Constitution Bench unanimously held that certain provisions of the Company (Second Amendment) Act, 2002, establishing the National Company Law Tribunal and Appellate Tribunal, suffered from unconstitutional “defects.”
These decisions have been analysed and re-analysed for their immediate policy implications. However, the philosophy underlying these decisions, namely, constitutional “due process,” highlights the paradigm shift in the court's approach to original constitutional norms, and deserves analysis.
The American doctrine of “due process” had been rejected by the framers of the Indian Constitution at the time of its enactment. The fifth and fourteenth amendments to the American Constitution provide that life, liberty and property cannot be deprived without “due process of law.” This seemingly innocuous phrase, borrowed, oddly, from per legem terre in the Magna Carta, acquired a nuanced meaning in the American constitutional context, consequent to years of judicial exposition.
Over time, the phrase acquired “substantive” and “procedural” meanings, each of which enhanced the powers of the judiciary. For example, in exercise of powers conferred by the “due process” clause of the Constitution, American courts would create “new” or unenumerated rights. Most notably, these were the rights to abortion, marriage, homosexuality, the use of contraceptives, child-rearing, and so on. The “due process” clause mandated harmonious constitutional interpretation, and enabled American courts to apply federal constitutional standards against the States on principles of “fairness” or “ordered liberty.” Interestingly, in the Magna Carta the phrase “due process of law” was meant to curb the powers of the royal judiciary in favour of the feudal baronage, quite contrary to the spirit of judicial activism that is now attributed to the clause.
One of the leading members of the committee constituted to draft the Indian Constitution, B.N. Rau, travelled to the United States, where he met Justice Felix Frankfurter, a Judge on the Supreme Court. At the time, Justice Frankfurter was involved in a judicial tussle with Justice Black over the meaning of the phrase “due process of law.” Justice Black hoped that it would be interpreted to strictly incorporate rights traditionally available against the federal government, and made available against the States. By contrast, Justice Frankfurter advocated a less stringent approach, arguing that the due process clause merely required the courts to apply the principles of “fairness” or “ordered liberty” against the States. Justice Frankfurter advised B.N. Rau to avoid the due process clause in the Indian Constitution because it imposed an “undue burden” on the judiciary. Consequently, in 1949, the phrase “due process of law” was dropped from the text of what was to become Article 21 of the Indian Constitution, despite what appeared to be strong support for the clause on the sub-committee on fundamental rights.
However, despite the express textual choices of the framers of India's Constitution, the “due process” clause found a backdoor entry into Indian constitutional analysis in the late 1970s through the right to equality, which has ever since become a conduit for activist constitutional interpretation. In Justice P.N. Bhagwati's classic opinion in the Maneka Gandhi case, it was held that the Constitution mandates “fair” procedure when rights are deprived. Although the court would repeatedly hold in subsequent cases that the American standard of “due process” did not apply to the Indian Constitution, in reality the court would apply nothing less than due process standards to administrative and legislative authorities in its emphasis on “fair, just and reasonable” procedure.
The two latest decisions of the Supreme Court are striking for their express rejection of the framers' textual value choices. While previous Supreme Court opinions would at least theoretically reject American “due process,” in the narco-analysis case Chief Justice K.G. Balakrishnan held that “substantive due process” is now a “guarantee” under the Constitution. This declaration is a remarkable rejection of the framers' decision to delete the due process clause. In its narco-analysis opinion, the court upheld a right to mental privacy, recognising an “unenumerated” right as American courts would in exercise of the due process clause.
The right to privacy has been around in Indian constitutional law for decades, and the court's opinion in Selvi merely adds to the existing body of law on constitutional privacy. However, in expressly articulating the “guarantee” of due process, the court has on one of only a few occasions in its history recognised that India follows the due process doctrine, expressly rejecting the framers' intentions.
In R. Gandhi, decided on May 11, the court held that certain provisions of the law regarding the appointment and qualifications of the members of the National Company Law Tribunal, suffered from unconstitutional defects. However, the Indian Constitution does not strictly or textually permit courts to strike down a piece of legislation merely because its provisions are “unfair” or “arbitrary,” in the absence of a violation of one of its enumerated provisions. To overcome this difficulty, the court in this case held that principles such as “independence of the judiciary” are part of the “essence” of the right to equality, and consequently must be enforced. Formerly, principles such as “independence of the judiciary,” “rule of law” and “separation of powers” would usually be applied using the basic structure theory only to constitutional amendments. In its R. Gandhi opinion, the court has remarkably applied loose constitutional principles rooted in its understanding of “fairness” or constitutional “basic structure” to ordinary law, much in the same way as Justice Frankfurter would have done in the American due process cases.
The theory of “original intent,” whose most vociferous proponent, Justice Antonin Scalia, now sits on the American Supreme Court, demands that courts interpret constitutional provisions according to the intention of the framers of the Constitution. In Indian constitutional law, the theory was followed strictly by the court until after its decision in the habeas corpus case, where the Supreme Court followed the framers' intentions and permitted civil liberties to be suspended during the Emergency. The illegitimacy of the court's opinion in the habeas corpus case subsequently offered a sufficient moral basis for the rejection of the theory of original intent. The Supreme Court's latest opinions strike a lethal blow to the theory of original intent, and firmly recognise that constitutional “due process” is here to stay.
Wednesday, June 30, 2010
The Secularism Debate: Cont.......
This aricle was orginally written by Justice R.A. Jahagirdar available here. It reads as under:
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.
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.
Hindutva
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.
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.
Readers are invited to express their views.
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.
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.
Hindutva
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.
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.
Readers are invited to express their views.
Friday, June 25, 2010
S.R. Bommai v. Union of India: Revisting the Secularism Debate
The nine judge bench decision of the Supreme Court of India in S.R. Bommai v. Union of India raised some interesting questions relating to secularism and its interplay with article 356 of the constitution. The two important supplementary questions before the apex court in this regard were:
1. Whether Secularism is the basic structure of the constitution?
2. Whether under our Constitution no party or organization can simultaneously be a political and a religious party?
Here are some of the excerpts from the majority decision (Justices Sawant, Kuldip Singh, Jeevan Reddy, Agrawal and Pandian):
One thing which prominently emerges from the above discussion on secularism under our Constitution is that whatever the attitude of the State towards the religions, religious sects and denominations, religion cannot be mixed with any secular activity of the State. In fact, the encroachment of religion into secular activities is strictly prohibited. This is evident from the provisions of the Constitution to which we have made reference above. The State's tolerance of religion or religions does not make it either a religious or a theocratic State. When the State allows citizens to practise and profess their religions, it does not either explicitly or implicitly
allow them to introduce religion into non-religious and secular activities of the State. The freedom and tolerance of religion is only to the extent of permitting pursuit of spiritual life which is different from the secular life. (para. 148)
In view of the content of secularism adopted by our Constitution as discussed above, the question that poses itself for our consideration in these matters is whether the three Governments when they had to their credit the acts discussed above, could be trusted to carry on the governance of the State in accordance with the provisions of the Constitution and the President's satisfaction based on the said acts could be challenged in law. To recapitulate, the acts were (i) the BJP manifesto on the basis of which the elections were contested and pursuant to which elections the 3 Ministries came to power stated as follows : "BJP firmly believes that construction of Sri Ram Mandir at Janmasthan is a symbol of the vindication of our cultural heritage and national self-respect. For BJP it is purely a national issue and it (sic) not allow any vested interest to give it a
sectarian and communal colour. Hence party is committed to build Sri Ram Mandir at Janmasthan by relocating superimposed Babri structure with due respect." (para. 150)
Given the above position, it is clear that if any party or Organisation seeks to fight the elections on the basis of a plank which has the proximate effect of eroding the secular philosophy of the Constitution it would certainly be guilty of following an unconstitutional course of action. Political parties are formed and exist to capture or share State power. That is their aim. They may be associations of individuals but one cannot ignore the functional relevance. An association of individuals may be devoted to propagation of religion; it would be a religious body. Another may be devoted to promotion of culture; it would be a cultural Organisation. They are not aimed at acquiring State power, whereas a political party does. That is one of its main objectives. This is what we mean by saying "functional relevance". One cannot conceive of a democratic form of Government without the political parties. They are part of the political system and constitutional scheme. Nay, they are integral to the governance of a democratic society. If the Constitution requires the State to be secular in thought and action, the same requirement attaches to political parties as well. The Constitution does not recognise, it does not permit, mixing religion and State power. Both must be kept apart. That is the constitutional injunction. None can say otherwise so long as this Constitution governs this country. Introducing religion into politics is to introduce an impermissible element into body politic and an imbalance in our constitutional system. If a political party espousing a particular religion comes to power, that religion tends to become, in practice, the official religion. (para. 310)
All other religions come to acquire a secondary status, at any rate, a less favourable position. This would be plainly antithetical to Articles 14 to 16, 25 and the entire constitutional scheme adumbrated hereinabove. Under our Constitution, no party or Organisation can simultaneously be a political and a religious party. It has to be either (para. 310)
Though Soli Sorabjee’s is in agreement that these findings of the apex court form the ratio of the case, he criticizes the same on a number of grounds in his article available here. Some of the excerpts from the article are as follows:
According to Justices Jeevan Reddy and Agrawal "if the President was satisfied that the faith of these BJP governments in the concept of secularism was suspect in view of the acts and conduct of the party controlling these governments ... we are not able to say that there was no relevant material upon which he could be so satisfied". The situation following the destruction of the Babri mosque was "full of many imponderables, nuances, implications and intricacies. There were too many ifs and buts which are not susceptible of judicial scrutiny".
Thus both on the ground of sufficiency of evidence and its relevance the majority upheld on the facts the dismissal of the three State governments.
It is not the conclusion reached by their Lordships which raises serious questions but their observations having far reaching effect made in the course of the judgment. According to Justices Jeevan Reddy and Agrawal "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 favourable position". They further held that "under our Constitution, no party or organisation can simultaneously be a political and a religious party. It has to be either."
There is no dissent or qualification or reservation by any of the other judges on this part. Accordingly the legal position enumerated by Justices Jeevan Reddy and Agrawal can be regarded as the law laid down by the apex Court. It is impossible to describe them as obiter dicta.
It is submitted that these propositions are over-broadly stated. It assumes that every religious party is necessarily and intrinsically anti-secular for which there is no warrant. Again there is no basis for the supposition that "if a political party espousing a particular religion comes to power, that religion tends to become, in practice, the official religion". A religious party may have a humanistic creed and its activities may not be at all calculated to subvert or sabotage secularism. It all depends upon the constitution, organisation and, above all, the actual functioning of a party. It must be remembered that the right of association is a guaranteed fundamental right under Article 19(1)(c) which can be restricted reasonably only on the grounds mentioned in Article 19(4).
I will post some related literature on these issues subsequently. I invite readers to comment on these issues too.
1. Whether Secularism is the basic structure of the constitution?
2. Whether under our Constitution no party or organization can simultaneously be a political and a religious party?
Here are some of the excerpts from the majority decision (Justices Sawant, Kuldip Singh, Jeevan Reddy, Agrawal and Pandian):
One thing which prominently emerges from the above discussion on secularism under our Constitution is that whatever the attitude of the State towards the religions, religious sects and denominations, religion cannot be mixed with any secular activity of the State. In fact, the encroachment of religion into secular activities is strictly prohibited. This is evident from the provisions of the Constitution to which we have made reference above. The State's tolerance of religion or religions does not make it either a religious or a theocratic State. When the State allows citizens to practise and profess their religions, it does not either explicitly or implicitly
allow them to introduce religion into non-religious and secular activities of the State. The freedom and tolerance of religion is only to the extent of permitting pursuit of spiritual life which is different from the secular life. (para. 148)
In view of the content of secularism adopted by our Constitution as discussed above, the question that poses itself for our consideration in these matters is whether the three Governments when they had to their credit the acts discussed above, could be trusted to carry on the governance of the State in accordance with the provisions of the Constitution and the President's satisfaction based on the said acts could be challenged in law. To recapitulate, the acts were (i) the BJP manifesto on the basis of which the elections were contested and pursuant to which elections the 3 Ministries came to power stated as follows : "BJP firmly believes that construction of Sri Ram Mandir at Janmasthan is a symbol of the vindication of our cultural heritage and national self-respect. For BJP it is purely a national issue and it (sic) not allow any vested interest to give it a
sectarian and communal colour. Hence party is committed to build Sri Ram Mandir at Janmasthan by relocating superimposed Babri structure with due respect." (para. 150)
Given the above position, it is clear that if any party or Organisation seeks to fight the elections on the basis of a plank which has the proximate effect of eroding the secular philosophy of the Constitution it would certainly be guilty of following an unconstitutional course of action. Political parties are formed and exist to capture or share State power. That is their aim. They may be associations of individuals but one cannot ignore the functional relevance. An association of individuals may be devoted to propagation of religion; it would be a religious body. Another may be devoted to promotion of culture; it would be a cultural Organisation. They are not aimed at acquiring State power, whereas a political party does. That is one of its main objectives. This is what we mean by saying "functional relevance". One cannot conceive of a democratic form of Government without the political parties. They are part of the political system and constitutional scheme. Nay, they are integral to the governance of a democratic society. If the Constitution requires the State to be secular in thought and action, the same requirement attaches to political parties as well. The Constitution does not recognise, it does not permit, mixing religion and State power. Both must be kept apart. That is the constitutional injunction. None can say otherwise so long as this Constitution governs this country. Introducing religion into politics is to introduce an impermissible element into body politic and an imbalance in our constitutional system. If a political party espousing a particular religion comes to power, that religion tends to become, in practice, the official religion. (para. 310)
All other religions come to acquire a secondary status, at any rate, a less favourable position. This would be plainly antithetical to Articles 14 to 16, 25 and the entire constitutional scheme adumbrated hereinabove. Under our Constitution, no party or Organisation can simultaneously be a political and a religious party. It has to be either (para. 310)
Though Soli Sorabjee’s is in agreement that these findings of the apex court form the ratio of the case, he criticizes the same on a number of grounds in his article available here. Some of the excerpts from the article are as follows:
According to Justices Jeevan Reddy and Agrawal "if the President was satisfied that the faith of these BJP governments in the concept of secularism was suspect in view of the acts and conduct of the party controlling these governments ... we are not able to say that there was no relevant material upon which he could be so satisfied". The situation following the destruction of the Babri mosque was "full of many imponderables, nuances, implications and intricacies. There were too many ifs and buts which are not susceptible of judicial scrutiny".
Thus both on the ground of sufficiency of evidence and its relevance the majority upheld on the facts the dismissal of the three State governments.
It is not the conclusion reached by their Lordships which raises serious questions but their observations having far reaching effect made in the course of the judgment. According to Justices Jeevan Reddy and Agrawal "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 favourable position". They further held that "under our Constitution, no party or organisation can simultaneously be a political and a religious party. It has to be either."
There is no dissent or qualification or reservation by any of the other judges on this part. Accordingly the legal position enumerated by Justices Jeevan Reddy and Agrawal can be regarded as the law laid down by the apex Court. It is impossible to describe them as obiter dicta.
It is submitted that these propositions are over-broadly stated. It assumes that every religious party is necessarily and intrinsically anti-secular for which there is no warrant. Again there is no basis for the supposition that "if a political party espousing a particular religion comes to power, that religion tends to become, in practice, the official religion". A religious party may have a humanistic creed and its activities may not be at all calculated to subvert or sabotage secularism. It all depends upon the constitution, organisation and, above all, the actual functioning of a party. It must be remembered that the right of association is a guaranteed fundamental right under Article 19(1)(c) which can be restricted reasonably only on the grounds mentioned in Article 19(4).
I will post some related literature on these issues subsequently. I invite readers to comment on these issues too.
Wednesday, June 23, 2010
About The Blog
Hello Readers
This blog will discuss several issues relating to the Constitution of India and related matters. The aim of this blog is to inculcate and facilitate the study of the Constitution and develop scholarship in the field.
Regards
SLCU CSG
This blog will discuss several issues relating to the Constitution of India and related matters. The aim of this blog is to inculcate and facilitate the study of the Constitution and develop scholarship in the field.
Regards
SLCU CSG
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