What the courts miss in the Constitution

Sun 19 Feb 2017


Indian secularism continues to be misunderstood. Its nuance, complexity and distinctiveness remain painfully elusive.

Consider the recent Supreme Court judgment, Abhiram Singh v. C.D. Commachen , pertaining to the Representation of the People Act, Section 123(3) in which one of the learned judges, Justice T.S. Thakur, correctly notes that the courts must remain sensitive to India’s constitutional ethos to which secularism is integral. Citing S. Radhakrishnan and several court judgments, Justice Thakur then expounds the meaning of secularism: a secular state must not identify with any one religion or be controlled by it. It is neither pro-this or that god nor anti-god.

This is spot on because such identification accords privileged recognition to one religion, which violates the principle of equality. After all, one implication of any privileged recognition is lesser recognition to other religions, reducing them to secondary status. This is blatantly discriminatory. Besides, such privilege encourages other forms of disabilities in the non-religious social and political domain, inducing a vicious cycle of discriminations that cannot be tolerated in democracies. This, the judge concludes, “necessarily implies that religion will not play any role in the governance of the country”. The “encroachment of religion into secular activity of the state is strictly prohibited ”.

Flip side of the same coin

A second feature of Indian secularism, the judge says, is that it does not reject religion. A secular state does not entail the denial of “reality of an unseen spirit or the relevance of religion to life or that we exalt irreligion”. On the contrary, the state must guarantee everyone the freedom to practice, profess and propagate their religion. This is the flip side of the same coin. The prohibition on ‘mixing state power and religion’ entails that the state is under obligation to not encroach upon the free exercise of religion. In short, a state is secular if religion and state power are ‘kept apart’, strictly separated from each other and when this separation is required to protect inter-religious equality, non-discrimination, and the fullest possible exercises of religious freedom.

Though partly correct, this interpretation misses the truly distinctive feature of Indian secularism. While the judgment fittingly rejects the identification of a secular state with any one particular religion or non-religious philosophy, it injudiciously concludes that this implies that neither religion nor state can play any role in each other’s affairs. But the Indian Constitution allows the state to play a legitimate role in the affairs of religion. Likewise, it permits religious considerations to sometimes enter governance. Unlike the rhetoric and ideology of the American wall of separation, in India legitimate principled intervention of the state in religion and vice versa is constitutional. The two are distanced but not completely separated.

Religion in governance

For a start, state intervention does not always prohibit but rather facilitates the free exercise of religion. The recognition of a religious community is a positive act on the part of the state. Granting rights to religious minorities (Article 25 and 26) is a form of state intervention. Thus, religious minorities can set up and maintain their own educational institutions, something large religious communities routinely do without the need for special rights. Moreover, all religious groups, small or large, have equal opportunity to avail of subsidies by the state to run their schools and colleges. Similarly, the Indian state decides which special days associated with religion are to be declared national holidays. All such decisions are based on religious considerations and are integral to governance. Therefore, to say that religion does not play any role in the governance of the country is simply wrong.

Second, if hierarchical caste structure and patriarchy are intrinsic to the doctrine and practice of religions, then the constitutional ban on untouchability, the opening of temples to all Hindus regardless of their caste and gender, and the past/ future judicial reform of Hindu/ Muslim Personal Law demonstrates that the state can legitimately impinge on religion. It can do so also if religion or caste-based communalism disrupts social harmony. Indian secularism is hostile not to religion but to caste- and religion-based communalism. The same values — freedom, equality and social harmony — that prohibit the state from encroaching upon religion also allow it to intrude in it and permit the entry of religious considerations into the state.

In short, a distinctive feature of Indian secularism is that it rejects the ‘wall of separation’ but demands that the state keep a ‘principled distance’ from all religions. It requires that the state has a value-based engagement with or disengagement from religion. Indian courts must endorse and espouse principled distance and drop the tired rhetoric of strict separation.

[source:TheHindu]

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