The Constitution of India and Secularism

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.

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.

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, 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. 

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!"

Jai Karnataka! Jai Hind!

Collegium may not be perfect, but then NJAC will be dangerous!

One need not elaborate the problems with the present system of elevation of Judges for the higher judiciary, by the collegium of serving judges.

It is opaque, self-serving, fraught with nepotism, lacks professionalism and unscientific.

How nice it would be if we can have a better system!

Does NJAC fits the bill?! Sadly, it is not.

Why?

NJAC (National Judicial Appointments Commission), is a six member body, and will have three judges, the law minister and 2 independent members.

The catch is here. These two members are appointed by another committee having two politicians and one Judge. Thus these 2 members could be anybody agreeable to politicians. We all know how much credibility the political class in India holds, in-spite of having some of the best political leaders among us.

Now, we possibly have two members agreeable to the politicians, plus the Law minister, makes it exactly 50% strength of 'political sympathizers' in the NJAC. All they need is one more judge who has a tilt towards govt, if not a clear bias. Then the NJAC can easily select judges who are 'soft' to the government.

Thus, over a period of time, we will have more judges in the higher judiciary who have been elevated 'thanks' to the political masters, and in all probability soft towards the govt. So, there is all possibility, that NJAC will degenerate into another 'collegium' of the Parliament!

What will happen then? The independence of the Judiciary will be reduced to paper. The consequences will be irreversible, dangerous, and possibly destroy the spirit of the Constitution.

We will lose the last bastion that can stand a totalitarian govt.

And consider these:

1. The democracy, though vibrant in India, has not matured enough. When United Kingdom can run its democracy much smoothly without a written constitution, we struggle to run ours even with a detailed written constitution! Horse trading, Parliamentary impasse, Ordinance getting defeated in the floor are common to us. Thus, we are yet to mature.

Can an immature parliamentary democracy start tinkering with the judiciary? Is it not commonsense that we should put our own house in order first, before we poke our nose into neighbor's house?

2. Second is the process of election itself. In-spite of the marked improvement in the manner elections are conducted in India, and their general acceptability; the elections are far from being perfect. We all know how the voters are influenced. We all know about the inaccurate -rolls. Above all we have the first-past-the-post system, which throws up representatives who could have got more votes against that for! Thus, the parliament that we have has its serious limitations before it could arch forward to catch the absolute power, that it can get in an ideal democracy.

3. Third is the question of 'who will rein the govt, if it does a blunder?' What options we have? Only an independent judiciary can do that! If we take out that option, the next choice will be a coup d' etat. Do we want that?

Thus, though collegium has its own problems, let the Judicial independence be not disturbed. Let's keep the Parliament away from interfering in the higher judicial appointments. Let's see if the collegium system can be improved without interference from outside. That would be a useful discussion in the right direction.

My two cents!

Understanding the Govt: Part 18: Black Money and Black markets

“Aunty, what is Black money? What is the black market? I keep hearing so much about it. Why is it said to have been stashed away in Swiss banks?”

“Raju, I am glad you asked! Indeed when I was a child, I thought black money referred to the colour of the note or currency kept in some black box! Ha-ha!

To understand these, let’s assume a village ruled by a good king, with a population of 1000. He has a small army of 50 horsemen, and 50 soldiers and a small government with few officials.

Now, salaries have to be paid to the army and the officers? In addition, there will be other office expenditures too? To maintain all these, the king did what all other kings used to do, that is, collect a share from what the citizens produced. This share collected by the king or his government is generally called as Tax.

This was collected in the village market, when the citizens came to sell their grains or products they manufactured. This was called as ‘sales tax’. The king got Rs. 60,000 in this.

Meanwhile, the king came to know that, there are some items that were not produced in his village, but imported from neighbouring villages that were also sold in the same market. The king imposed a tax on them too. This was called as ‘customs duty’. This gave him Rs. 20,000.

The king also came to know that some items manufactured in his village were not sold in his market, but taken out of the village to be sold to other villages. So, the king taxed them at the place where they were manufactured. This was called as ‘excise duty’. This gave him another Rs. 10,000.

Then the king also taxed the rich people in his kingdom. This was called as ‘Income tax’. This gave him Rs.10, 000. Thus he got a total of Rs.1 lakh, and his revenue and expenditure was thus balanced. He could run his government efficiently and keep people happy.

But, the following year, a problem arose. The income came down to just Rs.70, 000. The worried king tried to find the reason. The reason was simple: his officers showed records where sales in the market had dropped. But, his intelligence department said that, production had actually increased, but it’s not coming for sale to the market!

It meant that some of the products were being sold secretly outside the market. What was sold outside the market was not known to government officers, hence not taxed, and thus the government lost the tax! Besides, absence of correct information about the quantum of produce and sales, led to wrong policies from the govt.

So, the king sent his officers to search and arrest all those who sold products outside the market. It was a difficult task, as people sold it secretly in every place possible, like their own homes, fields, roads etc. All these illegal trades happen in secret and is called as ‘black market trade’.

Thus ‘black market’ is a collective term used to describe any location, where any illegal transaction happens. It could be any place, including   homes, offices, even open roads or cars where such illegal deals are struck and goods exchanged!

The unaccounted money that is earned in such transactions is called as ‘black money’! Black money is nothing but normal money, but is earned by illegal means by cheating government officials and accounts.

The money earned in this manner cannot be deposited in the bank, as the government can verify the bank account and easily identify illegal money! So this black money remains as cash only!

But, soon, the black marketers started sending the money to banks outside the village, which was beyond the control of the king, where no one asked for accounts. One such ‘village’ is Switzerland, where the source of bank accounts are not questioned, and hence many black marketers have deposited their cash there.

A few black marketers, make false entries in their account books, and show black money as legally earned money. This is referred to as ‘money laundering’. If this false accounting is done involving someone from another country, then it is referred to as ‘Hawala transaction’, where our black money is exchanged for currency of another country.

Now you understand ‘black money’ and ‘black market’ issues, Raju?!”

“Very well Aunty! Can government not stop this black marketing and black money?”

“It’s very difficult Raju. Can the government monitor 24x7 what every person is selling or buying? So, as long as people transact without billing or accounting, there will be black money. Therefore, unless people demand a bill for every sale or purchase made, black money can’t be controlled.”

“Does it mean that in any transaction we have, we should insist on bill and not do anything without bills?”

“Yes Raju! Because, every bill generated is a document and it helps government officials calculate taxes due correctly. For every bill not given, some black money is created!

What imposes a danger to the country is that such black money can be used to buy from mercenaries, items  that are banned by government like  guns, illegal drugs etc. Now do you realise the dangers of having black money in the country?

“Oh yes Aunty! I understand. From today onwards I will do my bit to reduce black money. I will insist on being given a bill for every transaction, Aunty!”

Vani aunty smiled at Raju. She wished that every youngster in the country does the same.