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Secularism: A Beleaguered but Enduring Constitutional Value




Srishti Agnihotri[1]

To describe these times as ‘the worst of times’ would not be a very cruel reproach. The world is reeling under a pandemic. India is in its 2nd week of a lockdown that has caused an unprecedented movement of migrant workers and thrown the Indian poor into food insecurity, even as authorities took steps to make ration and cash available. To make matters worse, the recent spike in cases in Delhi attributed to an event hosted by the Tablighi Jamat in New Delhi has been accompanied by a communal hue to the coverage accompanying the COVID-19 outbreak.

Such communal reporting cannot be seen in isolation. It comes a mere month after the Delhi riots in which lives were lost, families lost their homes and livelihoods, and questions were raised on whether various state instrumentalities acted fast enough to protect the victims of these communal riots. These communal riots followed closely on the heel of public protests in India against the Citizenship Amendment Act, 2019, which, among other things, states that  “any person belonging to Hindu, Sikh, Buddhist, Jain, Parsi or Christian community from Afghanistan, Bangladesh or Pakistan, who entered into India on or before the 31st day of December, 2014 ….shall not be treated as illegal migrant for the purposes of this Act.” The critics of the Amendment Act, have taken issue with its exclusion of Muslim individuals, alleging, rightly so, that it violates Article 14, the equality clause of the Indian Constitution.

This article is not about the spread of COVID 19, or whether the Tablighi Jamat’s leadership was responsible for violating any laws. Issues of responsibility, whether criminal or moral, in holding a large gathering at the time of an emerging global pandemic will be fixed as the law takes its course and more facts come out. It is, however, important to flag that giving a communal hue to the spread of COVID-19, and linking it with the religion of the attendees of the event, which is entirely irrelevant to the spread, prevention and containment of the disease, serves no purpose than to divide Indian society, and weaken our commitment to secularism.

The idea of secularism, a core constitutional value, has faced unprecedented onslaught in the past decades. However, this core constitutional value has also been an enduring value.

Though the word “Secularism” was inserted into the preamble of the Indian constitution by the 42nd Amendment (in the year 1976), the idea of ‘secularism’ was very clearly enshrined in the Constitution from the very beginning, though the conceptions of secularism differed.[2] The Constituent Assembly Debates, according to Shefali Jha in her analysis of the Debates, reflect three competing visions of Secularism that our constitution-makers were putting forward, two of which I will refer to here:

  1.   The no-concern theory of secularism (which according to Jha saw a line of separation between religion and state)

  2. The equal respect theory (which, according to Jha, meant that the state was to respect all religions equally, rather than maintain a line of separation from all religions).

According to Jha, neither of these positions (no-concern or equal respect) were entirely successful and the constitution-makers favoured an intermediate position, which entailed guaranteeing to people the right to religious practice and refusing to acknowledge political safeguards for religious minorities.[3]

While conceptions of secularism differed, its place in the heart of the constitutional scheme was not in doubt, and its insertion in 1976, through the 42nd Amendment, can be seen as ‘the formal’ insertion of the ‘spirit’ of secularism which was always there in the constitution. [4] The Indian vision of Secularism, however, marked a clear departure from the Western, ‘wall of separation’ view of the secular state.[5] Articles 17, 25(2), 30(1 & 2) of the Indian Constitution, which allow some state regulation of religion, mark a departure from the ‘wall of separation’. However, according to Rajeev Bhargava, these provisions cannot be seen as a departure from secular principles, and the distinctive nature of Indian secularism makes sense given India’s social context and history.[6]

Rajeev Dhavan also writes on the distinctiveness of Indian secularism that, “the object of the Constitutional Compact was not to assimilate all Indians into a new kind of secular and scientific socialism. Rather it was to protect the infinite variety and strength of group life so long as India’s essential unity was not threatened and group life was not organized to permit or sustain the exploitation of any particular citizen or group.” [7]

Clause (1) of Article 25 states that “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, practice and propagate religion.”

Clause (2) of Article 25 saves the power of the State to:

  1. Regulate or restrict any economic, financial, political or other secular activity which may be associated with religious practice;

  2. 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.

We see that the freedom of religion guaranteed under Article 25 can be circumscribed by law which aims at social welfare and or reform.

There has also been scholarly discussion on whether the appellation of ‘Secular’ can apply to the Indian state given the provisions of the Constitution, which provide for the regulation of religion.  According to Acevedo[8] the position in the Indian Constitution is not secular in-principle, given the regulation of religious institutions (Hindu temples and mutts being notable), and the internal regulation and reform of religion, even though the objectives of this departure from the principle of secularism are reasonable.

The idea of India’s secularism has also faced pushback from other quarters. The Hindu right, Acevedo notes, makes a distinction between, what it calls, “True Secularism” and “Pseudo Secularism”.[9] This is accompanied by the grievance that Hindus and Hinduism are disadvantaged in India, due to greater regulation, while minority religions enjoy a larger degree of freedoms. [10]

India’s secular credentials are also critiqued by those who feel that the converse is the case, and that “the Indian State privileges Hinduism over other religions”. [11]

On the question of whether India is secular (in-principle), given the State’s regulation of religion and religious institutions, I would argue, as has been argued before, that secularism takes different meanings in different contexts, and ‘separation of church and state is not the only Viable model for secularism.’ [12]

Assuming then, that India, at least on paper, is a secular state, something that is ‘made explicit[13] by the insertion of the term in the Preamble to the Indian constitution by the 42nd Amendment, one needs to consider how well this idea has endured in public discourse and public life, and why this core constitutional idea must be protected.

Taking a few steps back from the lockdown brought on by COVID-19, and the horrifying images of the riots in Delhi, one can remember a time of hope. The preamble to the Indian constitution was being recited by citizens, who stood up for the idea of secularism. Buses full of protesters were being picked up and taken to police stations, where they would continue to protest. In describing the protest site at Shaheen Bagh, Yamini Iyer writes that it is perhaps the first time that “the idea of secularism is being defined and given meaning by ordinary people”. [14] Whether the anti- CAA protests all over India are unprecedented or not, they are significant, in that a direct and palpable onslaught to the idea of secularism was met with by civil society reclaiming the term and galvanizing around it.

While the protests surrounding the Citizenship Amendment Act, and the proposed nation-wide NRC are reasons to hope, the rise of islamophobia, hate crimes and islamophobic dog-whistles is a cause of deep alarm. [15]

As contested and beleaguered as it is, the idea of secularism remains a core constitutional value. It is also a core constitutional value that people are able to galvanize around. This ability of secularism to galvanize Indian citizens is attributable to the fact that Secularism is a part of a larger idea: ‘the larger idea of heterogeneous identity’.[16]When Indian citizens stand up for the idea of secularism, they seem to be standing up for more than the mere requirement of the separation of church and state: they seem to be standing up for the continued existence of India as a multi-ethnic and plural society.

It is notable that anti-secular forces in India also desire to centralize many other aspects of Indian identity (e.g. Hindi as the unifying national language, and vegetarianism as the unified national dietary choice). The conception of a pluralistic India cannot survive such an onslaught. Indian civil society needs to maintain the momentum of the previous months and reaffirm their commitment to the Indian constitution and secularism given that the idea of India depends upon it.


 

Citations


1] Srishti Agnihotri is a Delhi Based Lawyer.

[2] Secularism in the Consituent Assembly Debates, 1946-1950, Economic and Political Weekly

Vol. 37, No. 30 (Jul. 27 – Aug. 2, 2002), pp. 3175-3180 (6 pages)

[3] Ibid

[4] Secularism: Why Nehru dropped and Indira inserted the S-word in the Constitution,  Adrija Roychowdhury | New Delhi | Updated: August 5, 2018 https://indianexpress.com/article/research/anant-kumar-hegde-secularism-constitution-india-bjp-jawaharlal-nehru-indira-gandhi-5001085/

[5] The Distinctiveness of Indian Secularism,  Rajeev Bhargava, T.N. Srinivasan (ed.) The Future of Secularism, Oxford University Press, Delhi, 2006, pp.20-53 (Available at https://iow.eui.eu/wp-content/uploads/sites/18/2014/05/Bhargava-04-Bhargava.pdf  )

[6] Ibid

[7] Religious Freedom in India, Rajeev Dhavan, The American Journal of Comparative Law Vol. 35, No. 1 (Winter, 1987), pp. 209-254 (46 pages)

[8] Secularism in the Indian Context, Deepa Das Acevedo, Law & Social Inquiry Volume 38, Issue 1, 138–167, Winter 2013

[9] Ibid.

[10] Ibid.

[12] Legalising Religion, The Indian Supreme Court and Secularism, Ronojoy Sen, East-West Center Washington.

[13] Secularism and the Indian Constitution, V.M. TARKUNDE, India International Centre Quarterly

Vol. 22, No. 1, SECULARISM IN CRISIS (SPRING 1995), pp. 143-152 (10 pages)

(See also For the first time, India is seeing secularism go from a top-down decree to a street slogan, Neeti Nair, https://theprint.in/opinion/india-seeing-secularism-go-from-top-down-decree-to-street-slogan/343834/  )

[16] The Threats to Secular India, Amartya Sen, Social Scientist, Vol. 21, No. 3/4 (Mar. – Apr. 1993), pp. 5-23 (19 pages)

Cover Photo: iStock

The views and opinions are those of the author and do not necessarily reflect those of the organization.

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