PART I THE MINORITY ISSUE:
We notice an increase in the number debates in recent times on the alleged 'discrimination' between the Majority religion and the Minority religions in the Constitution and also the very concept of Secularism. It is claimed by some that secularism is a vague western concept and not suited for India. Some of the scholars including Dr Balagangadara and Jakob De Roover are supporting this thinking attempting to give credence to this theory.
When I came across such discussions, as a Government Servant serving the Constitution for twenty years, it was normal for me to get a little surprised at such misleading theories. When I tried to explain on the online platform like Twitter, I realised that there is a need to comprehensively refute it, and hence this essay.
At the same time, I am aware that knowledge is vast and one should approach any issue with an open mind. Thus, this essay is also an opportunity for me to invite those who have a contrary opinion for a discussion in getting more clarity. I decided to write this in a simple language so that it is easy for everyone to understand.
Does the Indian constitution 'really' discriminate between religions?
The answer is a ‘No’. Discrimination involves an element of prejudice. The constitution does not have any such prejudice. But, then, why there is such a charge? Let’s go over the articles to understand it better.
14. The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.
15. (1) The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them.
(2) No citizen shall, on grounds only of religion, race, caste, sex, place of birth or any of them, be subject to any disability, liability, restriction or condition with regard to— (a) access to shops, public restaurants, hotels and places of public entertainment; or (b) the use of wells, tanks, bathing ghats, roads and places of public resort maintained wholly or partly out of State funds or dedicated to the use of the general public.
(2) No citizen shall, on grounds only of religion, race, caste, sex, place of birth or any of them, be subject to any disability, liability, restriction or condition with regard to— (a) access to shops, public restaurants, hotels and places of public entertainment; or (b) the use of wells, tanks, bathing ghats, roads and places of public resort maintained wholly or partly out of State funds or dedicated to the use of the general public.
16. (1) There shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State. (2) No citizen shall, on grounds only of religion, race, caste, sex, descent, place of birth, residence or any of them, be ineligible for, or discriminated against in respect of, any employment or office under the State.
These three articles make it very clear that all religions are the same in the eyes of the state. There is an insertion in Art 15, as 15 (5), thru the 93rd amendment of the constitution, which exempts the education Institutions run by the minorities from certain actions. We will come back to this later in the essay.
The controversial Articles from Art 25 to Art 30. Let’s see what they are:
25. (1) Subject to public order, morality and health and to the other provisions of this Part, all persons are equally entitled to freedom of conscience and the right freely to profess, practise and propagate religion. (2) Nothing in this article shall affect the operation of any existing law or prevent the State from making any law— (a) regulating or restricting any economic, financial, political or other secular activity which may be associated with religious practice; (b) providing for social welfare and reform or the throwing open of Hindu religious institutions of a public character to all classes and sections of Hindus.
26. Subject to public order, morality and health, every religious denomination or any section thereof shall have the right— (a) to establish and maintain institutions for religious and charitable purposes; (b) to manage its own affairs in matters of religion;
27. 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 or religious denomination.
28. (1) No religious instruction shall be provided in any educational institution wholly maintained out of State funds. (3) No person attending any educational institution recognised by the State or receiving aid out of State funds shall be required to take part in any religious instruction that may be imparted in such institution or to attend any religious worship that may be conducted in such institution or in any premises attached thereto unless such person or, if such person is a minor, his guardian has given his consent thereto.
29. (1) Any section of the citizens residing in the territory of India or any part thereof having a distinct language, script or culture of its own shall have the right to conserve the same.
(2) No citizen shall be denied admission into any educational institution maintained by the State or receiving aid out of State funds on grounds only of religion, race, caste, language or any of them.
(2) No citizen shall be denied admission into any educational institution maintained by the State or receiving aid out of State funds on grounds only of religion, race, caste, language or any of them.
30. (1) All minorities, whether based on religion or language, shall have the right to establish and administer educational institutions of their choice.
A plain reading of all Article 25-30 will show you that all religions are treated equally, except in Art 30 where the Constitution goes on to protect certain rights expressed.
Now, you may ask, ‘why these rights to only to Minorities? Does it mean the majority does not have the right to establish a similar institution?’ The answer is simple. Consider this logic: We have a teacher A and two students B and C. If A protects C, it does not mean that B is left unprotected. It is possible that B is strong by himself, and it's only C who needs protection. So, it's logical that B is protected by A and B is allowed to protect himself. In other words, only a person who has less immunity is given an antibiotic, not a healthy person. If we demand that healthy person also should be given an antibiotic, just because, it is given to the weak person, is a naive argument.
Thus, giving protection to the Minorites is NOT discrimination. We should also not miss the point, that A is NOT barred from equally protecting B when the need arises. If so, where is the discrimination here?
In a democratic set-up, the majority have an inherent advantage and the minority have an inherent disadvantage. So, it is but normal that the minorities would seek protection form the discretion of the majority. This gets more accentuated if we consider the circumstances during when the Constitution was written more particularly in the background of partition.
Indeed, at the time the constitution was written there were already quite a number of educational institutions being run by the minorities. All the Constitution did was to went ahead to protect such rights. It may be noted that the constitution did not create any new right, but just protects the existing right of the minorities.
Now, let’s come to the 93rd amendment inserted in Art 15(5). It reads as below:
(5) Nothing in this article or in sub-clause (g) of clause (1) of article 19 shall prevent the State from making any special provision, by law, for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes or the Scheduled Tribes in so far as such special provisions relate to their admission to educational institutions including private educational institutions, whether aided or unaided by the State, other than the minority educational institutions referred to in clause (1) of article 30.
This is an extension of Art 30. Though it does not talk about RTE (Right to Education), the 'exemption' to institutions run by the minority enabled them to stay out the RTE. This 'exemption' is actually the same protection given in Art 30, in a new bottle. So, the same logic will apply here too.
Thus we find that the 'protection' given by the constitution is legitimate. We can also see that the Constitution does not prohibit the Govts from extending the same protection to the majority community. Putting both of these together, we find the allegation of 'discrimination' evaporating.
The govts can't shift the responsibility on the constitution if they do not want to give the same protection to the majority. It is left to the government to extend the same protection or not. Indeed since 1947, till today, the cabinet of India has been predominated by the majority community, irrespective of the political parties in power. Same is the case with every Parliament including the current. So, where is the question of anybody acting against the interest of the majority? (By the way, RTE is not applicable even to Vedic Pathshalas too.)
However, in my personal opinion, there is a scope to modify the RTE, to make it applicable partially on both minority & majority run institutions. The protection given in Art 30 can't be absolute protection. Any protection can be only against a malfide action and can't be against a benign action. Thus, the exemption under Art 15(5) can be removed.
Indeed, the advisory committee on RTE has recommended that Minority institutions shall be included in the Scheme. The Kerala High Court in the case of Mrs.Sobha George Adolfus vs State Of Kerala on 2 June 2015, held that Minority institutions do come under RTE Act and the rights conferred under Art 30 are not unfettered.
Thus we find that the 'protection' given by the constitution is legitimate. We can also see that the Constitution does not prohibit the Govts from extending the same protection to the majority community. Putting both of these together, we find the allegation of 'discrimination' evaporating.
The govts can't shift the responsibility on the constitution if they do not want to give the same protection to the majority. It is left to the government to extend the same protection or not. Indeed since 1947, till today, the cabinet of India has been predominated by the majority community, irrespective of the political parties in power. Same is the case with every Parliament including the current. So, where is the question of anybody acting against the interest of the majority? (By the way, RTE is not applicable even to Vedic Pathshalas too.)
However, in my personal opinion, there is a scope to modify the RTE, to make it applicable partially on both minority & majority run institutions. The protection given in Art 30 can't be absolute protection. Any protection can be only against a malfide action and can't be against a benign action. Thus, the exemption under Art 15(5) can be removed.
Indeed, the advisory committee on RTE has recommended that Minority institutions shall be included in the Scheme. The Kerala High Court in the case of Mrs.Sobha George Adolfus vs State Of Kerala on 2 June 2015, held that Minority institutions do come under RTE Act and the rights conferred under Art 30 are not unfettered.
Thus, seen from any point of view the Constitution does not come in the way of Govts treating the Religions equally. It is up to the govt to make such laws that can ensure equal treatment to all religions, while the minority religions and their rights are protected from the malafide action of the Govts.
PART II: SECULARISM:
Secularism is introduced in the Preamble of the Constitution vide the 42nd amendment in 1976. Since then there have been questions and discussions on what exactly is secularism. The dictionary defines it as ‘indifference to, or rejection or exclusion of, religion and religious considerations.’
Secularism, as per this definition is not new to India. The Charvaka school of Indian philosophy, one among the oldest schools of Indian Philosophy, rejects and excludes religion from life. The oldest of the scriptures in India, the Rig Veda, which talks about ‘Ritu’ or the cosmic rule that is beyond even the Gods, thus clearly posturing an idea where law reigns supreme. Even in the concept of ‘Raj Dharma’ has a tinge of secularism in that, as it talks about the supremacy of ‘Rule of law’. As late as the 18th century, we had enlightened rulers like Maharaja Ranjit Singh, who was secular in his outlook. Thus secularism, as an idea, is not at all new to India.
While the idea of secularism independently evolved in the west, as a part of the reformist or protestant thinking, it is definitely now new to India. Thus, both Dr Balagangadhara and Jakob De Roover are not right in portraying secularism as a Christian idea. (https://sites.google.com/…/colonialconsciousness/secularism… )
De Roover goes on to say that secularism is a ‘colonial project’ without giving any evidence of how and who implemented this ‘project’. A project is a set of conscious and planned steps taken towards achieving a pre-set result. Without giving evidence for each of these steps saying it as a ‘colonial project’ reeks of either ignorance or bias.
Meanwhile, in 1994, the Hon’ble Supreme court of India, in the famous SR Bommai Vs Union of India case, defined Secularism for the first time, and also declared it as a part of the ‘basic structure’ of the constitution. It held ‘Secularism is thus more than a passive attitude of religious tolerance. It is a positive concept of equal treatment of all religions. This attitude is described by some as one of neutrality towards religion or as one of benevolent neutrality. This may be a concept evolved by western liberal thought
Secularism has worked well so far both in India and in the world. Currently, 96 countries in the word are declared secular states, comprising of a population of more than half of the world. Indeed, a recent study has shown that secularisation preceded economic development. (http://advances.sciencemag.org/content/4/7/eaar8680) On the other hand, there is no evidence to show that those states who are officially religious are able to develop both economically or on the various factors of human development. Thus, the evidence and argument are clearly in favour of a secular state in the interest of the common man.
However, De Roover feels that secularism in India has failed. He does not provide any data but goes by the increase in the number of communal violence between Hindus and Muslims. This could be an erroneous conclusion, as we really don’t know what would have happened has secularism had not been there. Who knows, the situation could have been worse!
Secondly, the argument of De Roover that India was peaceful in the past even without secularisation is also erroneous. Because it misses the confounding variables which could have contributed to it. We also know that the concept of Secularism was not new to India. Hence, even that would have contributed to peace. Or we would have had violence and we are just not getting the pieces of evidence. The situation 100s of years back can’t be compared to the present situation. Indeed, the violence involved between different sects is common knowledge.
However, De Roover And Dr Balagangadhara are right when they talk about the internal pluralism in Indian society and the common framework among the people that allowed them to coexist. Their examples are fully accepted in this regard. They are also right that Hinduism is more tolerant than other religions like Islam and Christianity, as the Abrahamic religions do not accept any other God than their own, while Hinduism, in practice, has no qualms in accepting their God also as God.
I remember seeing the beautiful rendering of the famous song on Allah (Originally sung by Nagoor Hanifa) by Vittal Das Maharaj (https://www.youtube.com/watch?v=RE9XTaWr7A8) It is this ‘common framework’ created, established and sustained by the common man is likely to flourish when the state is secular. This can flourish only in an environment of equality and respect.
If the state slips from being secular and takes to any one religion, then it is likely to create misgivings and disturb the above mentioned ‘common framework’. As the famous saying goes, "Not only must Justice be done; it must also be seen to be done." Equal treatment of religions shall not only be there, but it shall also be seen to be there in a formal setup. If so, then the state can never be religious.
If the state slips from being secular and takes to any one religion, then it is likely to create misgivings and disturb the above mentioned ‘common framework’. As the famous saying goes, "Not only must Justice be done; it must also be seen to be done." Equal treatment of religions shall not only be there, but it shall also be seen to be there in a formal setup. If so, then the state can never be religious.
I conclude with these words of Mahatma Gandhi, “If I were a dictator, religion and state would be separate. I swear by my religion. I will die for it. But it is my personal affair. The state has nothing to do with it. The state would look after your secular welfare, health, communications, foreign relations, currency and so on, but not your or my religion. That is everybody's personal concern!"
