India's Falling Secularism

Rohith Santhosh BA.LLB (H), Student of LLM in Constitutional & Administrative Law School of Law Christ Deemed to be University, Bengaluru

ABSTRACT:

This article deals with the secularism provisions in Indian Constitution and how they’re being violated by the ones who are supposed to enforce it. The article analyses the constitutional sections and judicial precedents that enforce secularism in the Indian context. The article also touches upon important events and incidents that are violative of the secularist framework of the state. Another objective of the article is to show how majoritarianism stands against secularism in any democracy. India’s rich religious heritage and imbalanced religious divisions are also looked upon in this article. The fact that many provisions on paper fails to be applied in the practical sense is proved through this article.

1. INTRODUCTION

The world’s largest democracy at present is facing an existential crisis. The crisis arises from internal factors threatening to dismantle the democratic and secular framework of our constitution, which is one of the elaborately written ones in the entire world. The formation of the Republic of India happened after the struggles that lasted for centuries. The Indian fight for independence is a lesson for the entire world’s history text books. The colonial forces united a sub continent divided by religion, caste and small kingdoms to fight for one common objective, freedom. Post Independence, the biggest burden on the makers of the constitution was to frame a constitution that will protect the citizens of India from the horrors of the British slavery and imperialism. The new constitution should be one that gives hope and safeguards the citizens against every single draconian law that they had to endure under foreign rule. The makers of the constitution even borrowed numerous ideas and provisions from the Magna Carta, the American Bill of Human Rights, The Universal Declaration of Human Rights just to name a few.

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The Preamble of Indian Constitution begins in the following way;

WE, THE PEOPLE OF INDIA having solemnly resolved to constitute India into a SOVEREIGN, SOCIALIST, SECULAR, DEMOCRATIC, REPUBLIC and to secure to all its citizens.1

The words Secular and Socialist were added by the 42nd Constitutional Amendment in 1976.2

This article aims at understanding and discussing the threats faced by the Indian constitution in the present scenario and especially in respect to the secular and democratic framework of the constitution. The article will also analyse how majoritarianism, an inevitable feature in democracy stands as a contradicting factor to any secular nation and its ideals.

2. SECULARISM

The dictionary defines secularism as “the belief that religion should not be involved with the ordinary social and political activities of a country”3. Secularism is an ideology that separates religion and religious institutions from exerting dominance in public spheres or public governance. It calls for the freedom and right to practice individual religions without harming or interfering with the same right of others. The ideology also stresses upon equality in a way that one’s religious affiliation doesn’t put them in a position of disadvantage in the public sphere or on provisions of governance. It naturally prevents government from making laws on the basis of religion but doesn’t prevent law making within a particular religion in order to prevent intra discrimination within the religion. A secular state is where the state is kept separate from religion, and the state doesn't segregate or support people dependent on their religious convictions. Inside a secular nation, the administration doesn't meddle with religion and its exercises, as long in that capacity exercises are done under the limits of the law. A common state isn't motivated by religion while figuring laws and arrangements. The foundation of a mainstream secular state is important if a nation is to have genuine opportunity of religion. Nations can become secular upon creation, (for example, the United States), or in the wake of experiencing secularization where the religion (the congregation) is isolated from the state, (for example, France).

The number of secular states in the world is less than hundred with some being extremely self proclaimed and only on papers. Europe and Africa boasts the highest number of secular states in the world. Iran used to be a secular state from the 1925 which went down to drain and turned into an Islamic Republic with the 1979 Islamic revolution that happened in the nation.4 Iraq is another nation where the 2005 Constitution identified Islam as a state religion for Iraq. The states that identify themselves to a particular religion stands in the path of equality and religious freedom

1 The Constitution of India 1950 2 http://www.legalserviceindia.com/legal/article-750-preamble-to-the-indian-constitution.html accessed on 14/01/2020 04:00 PM IST.

3 https://dictionary.cambridge.org/dictionary/english/secularism accessed on 14/01/2020 04:14 PM IST. 4 https://www.britannica.com/event/Iranian-Revolution accessed on 14/01/2020 04:17 PM IST. IJRAR2001301 International Journal of Research and Analytical Reviews (IJRAR) www.ijrar.org 200

© 2020 IJRAR February 2020, Volume 7, Issue 1 www.ijrar.org (E-ISSN 2348-1269, P- ISSN 2349-5138) guaranteed through numerous conventions including the Universal Bill of Human Rights which includes, the UDHR, ICCPR and the ICESCR. Thus it’s a huge challenge for any non-secular nation to claim a moral high ground in any human rights debate but contrary to that the world has ridiculed itself by providing strictly Islamic nations like Kingdom of Saudi Arabia high positions in international human rights organisations such as the Human Rights Council of the United Nations.

2.1 SECULARISM IN INDIA

The word ‘Secularism’ was added to the preamble through the 42nd Amendment Act in the year 1976 officiating India’s stance as a secular democracy.5 India’s constitution from its inception contained a set of fundamental rights that guaranteed religious freedom to all the citizens. Thus, the 42nd amendment only played an officiating role considering the nature of our constitution was already secular. Article 14 guaranteed equality as a fundamental right to every citizen irrespective of their religion and other backgrounds and articles including Articles 25-28 provides for religious freedom to all the citizens. Thus a proper balance between Article 14 and 25 to 28 will ensure a strong secularist framework for the nation. Pre-independence India had a lot of dirt on it in the lines of religious and caste based discrimination. Religion was the primary criteria that assisted the British in propagating their ‘divide and rule’ policy in India. The religious disagreements in this nation cost us immensely in the form of partition and subsequent creation of Pakistan. The constitution makers had a responsibility to make sure that the new republic is one without any religious discrimination and one that helps promote and propagate every religion without being discriminatory. Dr. B.R Ambedkar, the Chairman of the Constituent Assembly had very particular views about religious freedom; he had to ensure that his own community, ‘the dalits’ who faced widespread discrimination under religion shouldn’t be forced to face them in the new republic. 6 Thus the new constitution of India drafted by the constituent assembly while guaranteeing equal religious freedom also ensured that religion is never ever again used as criteria to impart discrimination. This was done using Article 15 and Article 17 of the constitution. While Article 15 prevented any form of discrimination, Article 17 aimed at the abolition of untouchability, a despicable practice that existed in India and still continues to do. India’s diversity is another important factor that affects the secular nature of the nation. India is home to almost all of the prominent religions across the world.7 Though, the last official census of 2011 puts Hindus at 80.5%, the rest 19.5% contributes to around 30 crores approximately.8 Even after being a minority in the

5 http://legislative.gov.in/constitution-forty-second-amendment-act-1976 accessed on 15/01/2020 10:12 AM IST. 6 Dr. B.R. Ambedkar's Views on Religion: A Sociological Analysis M.T. Joseph Indian Anthropologist Vol. 43, No. 2 (July-December 2013), pp. 43-54 7 http://censusindia.gov.in/Census_And_You/religion.aspx accessed on 15/01/2020 at 10:50 AM IST. 8 Source : Religion, Census of India 2001 IJRAR2001301 International Journal of Research and Analytical Reviews (IJRAR) www.ijrar.org 201

© 2020 IJRAR February 2020, Volume 7, Issue 1 www.ijrar.org (E-ISSN 2348-1269, P- ISSN 2349-5138) nation, India hosts the largest number of Muslims in the world after Indonesia and Pakistan.9 This unity in diversity is one of the primary reasons why India’s secularism needs to be safeguarded.

There are numerous legal precedents by the apex court that establishes India as a secular state. This includes,

S.R. BOMMAI Vs UOI10, where the court upheld that Religious tolerance and equal treatment of all religious group and protection of their life and property and the places of their worship are an indispensable part of secularism enshrined in our constitution. The citizen of this nation are free to profess, practice and prorogate such religion, faith or belief as they prefer, so for as the state is concerned i.e. from the point of view of the state, the religion, faith or belief of a person is irrelevant to it, all are equal and all are to be treated equally.” Further the Court while emphasizing upon the significance of Secularism declared it as the basic structure of the Constitution.

In another significant case of, M Ismail faruqui vs. UOI11, It was decided that it is obvious from the constitutional scheme that it guarantees equality in the matters of religion to all individuals and groups irrespective of their faith emphasizing that there is no religion of the state itself. The preamble of the constitution read in particular with articles 25 to 28 emphasizes this aspect and indicates that it is in this method this concept of secularism embodied in the constitutional scheme as a creed adopted by the Indian people has to be understood while examining the constitutional validity of any legislation on the touch stone of the constitution. 12

It is in another famous case law, Aruna Roy vs. U O I13, where the court held that notion of secularism is not endangered if the basic canons of all religions all over the world are studied and learned. Value based education will help the nation to fight against fanaticism, ill-will, violence, dishonesty and corruption. These values can be inculcated if the basic tenets of all religions are learned.14

The inequalities within religions were identified in another famous case law of Lata Singh vs. state of U.P15, where the Honourable Supreme court has held that caste barriers in societal interactions are anti – secular. Inter caste marriage shall be promoted, protected and conserved by the state to promote greater secular values. This is also a part of secularization process. The concept of secularism is not merely a positive attitude of religious tolerance. It is also a positive concept of equal treatment of all religions.16

9 https://www.pewforum.org/chart/interactive-data-table-world-muslim-population-by-country/ accessed on 15/01/2020 at 10:55 AM IST. 10 S.R Bommai v UOI 1994 AIR 1918, 1994 SCC (3) 1 11 Dr. M. Ismail Faruqui Etc, Mohd. ... vs Union Of India And Others AIR 1995 SC 605 A 12 https://indianexpress.com/article/what-is/ayodhya-land-dispute-case-what-is-the-1994-ismail-faruqui-judgment-case-5376560/ accessed on 15/01/2020 at 11:03 AM IST. 13 Ms. Aruna Roy And Ors vs Union Of India And Ors on 12 September, 2002 14 https://www.casemine.com/judgement/in/5767b12be691cb22da6d5845 accessed on 15/01/2020 11:19 AM IST 15 Lata Singh vs State Of U.P. & Another on 7 July, 2006 16 https://indiankanoon.org/doc/1364215/ accessed on 15/01/2020 12:04 PM IST. IJRAR2001301 International Journal of Research and Analytical Reviews (IJRAR) www.ijrar.org 202

2.2 THE THREATS TO SECULARISM IN INDIA

India’s secularism has always been a matter of curiosity to the world. A nation that can be regarded as the spiritual hub of the world with a population of almost 1.3 billion people who belongs to one or the other religion has secular written on their nation’s constitution. This harmonious co existence is one of the primary reasons why India needed to have secularism on paper and not merely as a practice. The intention behind bringing secularism under the “Basic Structure Doctrine” of the constitution was to provide it with an iron clad protection from amendments and forces that will try to meddle with it. The first and most gruesome slap faced by India’s secularism was when the Babri Masjid, a 15th century mosque in India was demolished by the right wing Hindutva forces in the country claiming the existence of a temple in that land before centuries. 17 This act of arson was done and celebrated by numerous democratically elected right wing leaders who occupied constitutional positions. The final nail in this particular coffin of secularism was struck when the Supreme Court recently gave a judgment favouring the ones who committed the demolition of the mosque and allowing them to have the land 18 while compensating the Muslims by providing them with 5 acres of land to construct the mosque. This was unbelievable from the Supreme Court of India, a secular democracy. The earlier parts of the judgment criticized the act of arson and violence that happened in Babri Masjid but in the end, the court let down the ones who faced the damage. The judgment seems to be out from the fear of the majority than on the basis of existing legal norms and statutes. This takes us to another important question, whether pre-republic incidents dating back to centuries can be taken into consideration while providing judgments in the present.

Another important issue we face right now is the close link shared by democratically elected government bodies with religion and religious institutions. For example, the Chief Minister of Uttar Pradesh, India’s most populated state is the ‘Mahant’ or head priest of the Gorakhnath Math, a Hindu temple in Gorakhpur.19 Recently, Yogi Adityanth-led government in Uttar Pradesh approved 440 crores in the budget to install a 221-metre tall statue of Lord Ram in Ayodhya. The statue is part of the Ram Nagari Ayodhya project which will be installed on the banks of River Sarayu.20 The question here is, whether the government of a state in the Union of India which has secularism written in its constitution’s preamble favour a particular religion and divert funds from the state’s budget for the propagation of the same. The affiliation of religious characters and the government doesn’t end here. Pragya Singh Thakur, presently a parliamentarian from Bhopal, the capital of Madhya Pradesh is one of the prime accused in the 2008 Malegaon Bombings. She’s a well-known face of right wing extremism with records of hate speeches and demeaning remarks even against Mahatma Gandhi, the ‘father of nation’ of the Indian state. It doesn’t end here, Anant Kumar

17 https://economictimes.indiatimes.com/news/politics-and-nation/babri-masjid-demolition-case-cbi-produces-half-a-dozen- witnesses/articleshow/71999823.cms?from=mdr accessed on 15/01/2020 12:37 PM IST. 18 https://www.indiatoday.in/india/story/ayodhya-ram-mandir-case-supreme-court-judgment-top-10-highlights-1617304-2019-11-09 accessed on 16/01/2020 12:08 PM IST 19 https://www.indiatoday.in/india/story/yogi-adityanath-leads-celebrations-at-gorakhnath-temple-1637013-2020-01-15 accessed on 16/01/2020 12:17 PM IST 20 https://www.indiatoday.in/india/story/uttar-pradesh-yogi-adityanath-govt-approves-budget-ram-statue-ayodhya-project-1615030- 2019-11-02 accessed on 16/01/2020 12:35 PM IST. IJRAR2001301 International Journal of Research and Analytical Reviews (IJRAR) www.ijrar.org 203

Hegde, a former Union Minister in the BJP government and presently a member of the Indian parliament had constantly went on public record asking for the removal of the word ‘secular’ from the Indian constitution.21

Another important secularism threatening factor in the nation is the rising cases of mob lynching where a particular religion is targeted. Most of the mob lynching incidents revolved around the consumption and transport of beef. Cow is a holy animal for the Hindus and despite that; India is one of the largest exporters of beef in the world. The industry contributes to the livelihood of a lot of Muslims in the country and these targeted attacks by right wing outfits have become an existence threatening factor for the Indian Muslims. The most horrifying incident was when the former Union Minister of State for Culture and Tourism, Dr Mahesh Sharma visited the funeral of the murder accused in Dadri Mob lynching case.22 Thus the alarming rise in crimes against minorities in the recent times is threatening the secular social framework of the nation.

The last and the most recent sword against secularism was wielded when the legislature brought about the Citizenship Amendment Act 201923 which made religion a criteria for providing citizenship to illegal migrants from Pakistan, Bangladesh & Afghanistan who entered the nation before the 31st of December 2014. Muslims were strategically excluded from the citizenship granting process while 6 other major religions in India were included. This along with a potential nationwide NRC as per the ruling party’s election manifesto puts forth an existential crisis for the religious minorities in the nation. The question here is again whether a secular, democratic nation can have religion as criteria while providing citizenship to individuals.

3. CONCLUSION

India is a nation with history that dates back to centuries. To quote, Swami Vivekananda, “I am proud to belong to a nation which has sheltered the persecuted and the refugees of all religions and all nations of the earth”.24 This was India for the world. We welcomed traders and refugees from around the world without looking at their religious beliefs. This was a time when India’s monarchies had strong affiliation to religions. The British used India’s religious sentiments to further its ‘divide and rule’ policy. Thus, it’s pertinent for us to remember that religious unity and fraternity is what helped us win freedom from the largest imperial force in the world, The British. The makers of our constitution had a vision of a nation that’s united despite all the diversity it holds. It took a lot of effort by men like Sardar Vallabhai Patel in uniting the nation that was divided into innumerable princely states ruled by Hindus and Muslims alike. When the secularism is threatened in the nation by the ones who are supposed to protect it, the voices of men like Mohammed Ali Jinnah who divided the nation on religious lines will be echoed.

21 https://www.outlookindia.com/website/story/union-minister-anantkumar-hegde-says-secular-people-dont-know-their-parental- blo/305951 accessed on 16/01/2020 12:54 PM IST. 22 https://www.indiatoday.in/fyi/story/mahesh-sharma-bjp-mohammad-akhlaq-ravi-sisodia-bishada-345600-2016-10-08 accessed on 17/01/2020 06:00 PM IST 23 http://egazette.nic.in/WriteReadData/2019/214646.pdf accessed on 17/01/2020 06:49 PM IST. /24 https://www.thehindu.com/opinion/op-ed/in-vivekanandas-country/article19715956.ece accessed on 17/01/2020 08:44 PM IST. IJRAR2001301 International Journal of Research and Analytical Reviews (IJRAR) www.ijrar.org 204