Despite the inclusion of the term ‘Secularism’ in the Preamble of the Constitution, the Indian State has, even within the framework of Indian Constitution itself, permitted intervention and legislated on issues that, if applied in the strictest of senses, could be in stark violation of the very term ‘Secular’, argues Gajanan Khergamker.
To understand the Right to Freedom of Religion in present-day context, the best indicator would be to analyse the manner the Sabarimala episode played out. The Sabarimala imbroglio was, for obvious reasons, a populist bone of contention for political parties that aligned swiftly despite differences for fear of upsetting a sizeable religious faction. It may be pertinent to note that the issues here were primarily dual in nature.
The Right to Equality of women being compromised by an arguably ‘patriarchal’ custom barring and selectively, those of menstrual age entry being in direct opposition to the Religious Freedom of the Sabarimala Temple Authorities in conducting their internal affairs as guaranteed by the Constitution of India. The September 2018 Supreme Court verdict upholding the rights of women of all ages to enter Sabarimala Temple stirred a hornet’s nest.
Despite the inclusion of the term ‘Secularism’ in the Preamble of the Constitution, the Indian State has, even within the Indian Constitution itself, permitted intervention and legislated on issues that could, if applied in the strictest of senses, be in stark violation of the very term ‘Secular’.
If followed in the strict sense, the State would not be permitted to intervene in any religious situation that would include the Reservation System, protection of Muslim Personal Laws and the Directive Principle to protect cows, all of which the Constitution ultimately went ahead with.
For the State to follow the spirit of secularism while avoiding its inclusion in the Preamble, the chairman of the drafting committee of the Constitution B. R Ambedkar had, during the Constituent Assembly discussions, said, “What should be the policy of the State, how the Society should be organised in its social and economic side are matters which must be decided by the people themselves according to time and circumstances. It cannot be laid down in the Constitution itself because that is destroying democracy altogether.”
When the Preamble to the Constitution was discussed in the Constituent Assembly at the onset, there were huge debates over the incorporation of secularism on which all the members agreed yet through extensive debates in the Constituent Assembly revealed the ambiguity inherent in the terminology predominantly Western, when applied in the Indian context. Questions were raised regarding the nature of its application and to what extent it was even possible.
In the debate on December 6, 1948, Lokanath Misra had said, “Do we really believe that religion can be divorced from life, or is it our belief that in the midst of many religions we cannot decide which one to accept? If religion is beyond the ken of our State, let us clearly say so and delete all reference to rights relating to religion.” Even vice president of the drafting committee H C Mookherjee had stated “are we really honest when we say that we are seeking to establish a secular state? If your idea is to have a secular state it follows inevitably that we cannot afford to recognise minorities based upon religion.”
Secularism, in the truest meaning of the term, as was meant to be understood at its place of origin, could just not be applied blindly to the Indian context. The term ‘secularism’ is known to have originated in late medieval Europe coined first by English secularist, co-operator, and newspaper editor George Jacob Holyoake was modelled on the theory that governments ought to have no religious connection, nor indeed anything to do with matters of religious belief or ritual. It was an extension of Democracy and Freedom, itself, from the control of the government.
It was manifestly a Western intervention, specifically a product of the Protestant Reformation and the Enlightenment. It went on to be treated as the ideal theoretical basis of nation-states utilised in lands outside the European continent, such as the United States, even Turkey. It was only inevitable for the creators of free, modern India, shaped by European thoughts and practices, to be ardent supporters of secularism.
Consequently, the Constituent Assembly adopted Articles 25, 26 and 27 of the Indian Constitution in order to further Secularism that, despite not being formally inserted in the document, was definitely embedded in the constitutional philosophy.
Incidentally, the very concept of Secularism was introduced only later through the 42nd Amendment of the Indian Constitution which gave unprecedented powers to the Parliament. Almost all parts of the Constitution, including the preamble, were changed with this amendment. Thereafter the description of India in the preamble was changed from “sovereign, democratic republic’ to a ‘sovereign, socialist, secular, democratic republic.”
The State’s controversial intervention on the Instant Triple Talaq issue, revived after the erstwhile Shah Bano Case, and its swift concurrence with the Supreme Court view followed by an ordinance, despite loud opposition in Parliament, wasn’t perceived as being violative of Secularism or ‘interference with religious affairs,’ but instead positioned and lauded as a win for Women Rights.
Interestingly, it may be noted here that Congress MP Shashi Tharoor recently, in a written question in Parliament, asked the government to clarify its position on Female Genital Mutilation – a practice among the Bohra Muslims in India.
Now, this move, for all obvious reasons, was politically motivated and reeked of mischief. After all, if the Congress MP was so keen on addressing the issue on Female Genital Mutilation, it could have well introduced a bill through its political party, in this case, the Congress Party.
However, to ask the government to clarify its position on Female Genital Mutilation, was an attempt to put the ruling party in a spot over the issue that could have well snowballed into a controversy. The move to legislate on a ‘personal’ religious issue, in the absence of a common code, could well be interpreted as interference from the government.
The government had replied that it was not introducing any legislation to ban it and that, in case of any objections raised, the Indian Penal Code (IPC) and the Protection of Children from Sexual Offences Act (POCSO) had adequate provisions to tackle issues arising. This, in short, meant that the affronted could avail justice under prevalent provisions of law while those who perceived it as a religious right could continue to enjoy the same.
The issue had been tackled with deft and finesse while the damage was averted. An attempt in the future to legislate on the issue could well have been seen as an affront to Secular fabric of India and interference in religious affairs.
In a democracy as vibrant and diverse as India’s, the voice of reason is often inundated by political posturing and populist positioning. Distinct from what ‘is’ right, sadly, it’s what is ‘seen as right’ that matters in a democracy driven by populism and the vote of the majority.
Now, whether the legislation likes it or not, the view of the agreeing majority matters to them the most. Any move to oppose a popular notion could only elbow any political party out of power. Going against the majority is like cutting the very branch one is sitting on.
It is a situation of conflict of interests where deft balancing holds the key to governance in a democracy. Reason is restricted by the sheer power of numbers which matter the most.
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Gajanan Khergamker
Gajanan Khergamker is an independent Editor, Solicitor and Film-maker. He is the founder of the International Think Tank DraftCraft.
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