AEGAEUM JOURNAL ISSN NO: 0776-3808
The Legislative and Judicial dilemma in Harmonising religious freedom and secularism in India
Dr. Vipin Malhotra Associate Professor, Department of Political Science, Sri Aurobindo College, University of Delhi, New Delhi, India. Mobile: 98688177335 E-mail: [email protected] B.A( Hons), M.A, M.Phil, PhD in Political Science, LLB, LLM
Abstract The democratic aspirations of the people of India were cherished at the dawn of independence. India embarked upon a constitution for self which could accommodate equality of law, freedom of religious denominations,and achieve fraternity amongst its diverse demography. Aspiration of a secular polity was enunciated to realise these goals. The conflicts between different kind of religious freedoms and the notion of secular polity soon falsified the legal perception of equality and brotherhood in the society at large. Type of secularism which Indian legislature contemplated proved to be a utopia, infact, a mirage which only satisfied the hunger of unscrupulous power grabbers. Who adopted the policy of appeasement to muster the votes of illiterate masses on the religious sentiments. The given article deals at length the various incidence which damaged the secular fabric of India in the name of personal law. Superstitious believes and practices. Despite, the progressive attitude of the judiciary, the legislature could not keep itself away from luring itself from using the masses on religious sentiments for coming to power, despite, several landmark steps to achieve a secular polity. The BJP government has also not been able to provide a uniform civil code to its people. Through its efforts to abolish Article 370, criminalising triple Talaq, and pass Citizenship Amendment Act, 2019 can not be overlooked the secular polity demands yet much more than that. If India Aspires for a genuine secular polity, then it has to think of curving religious freedom.
Keywords Constitution of India,gender equality, Personal law, Secularism. The Legislative and Judicial dilemma in HarmonisiHarmonisingng religious freedom and secularism in India
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Introduction The Indian Constitution (26 th January 1950) was enforced to achieve the defined goals in letter and spirit to restore its age-old glory. The democratically elected Legislatures, responsible Executive and independent Judiciary, entrusted the job of building India into the Sovereign Democratic Republic with secular credentials enshrined in the fundamental rights and directive principles of the state policy. Over time, the constitutional system of India has come under severe strains. Three organs of the state could not bear the influence of the religious sentiments of the people. The electoral politics corrupted by the communal menace has not been able to perform its legislative functions in tune with the demand of a secular society. Undue stress on religious sentiments by the legislators has affected the working of the Judiciary, posing a threat to the mandates of the constitutional system of India. The various flaws in the constitution, coupled with the lack of sincerity or its promulgation, has virtually eroded the rule of law, especially in the sphere of establishing India as a secular state. Upendra Baxi, an eminent legalist, while talking about the status of the Indian constitution, maintained that like the disputed structure of Ayodhya, the Indian constitution also requires a “Kar Seva” to bring Indian political system back to its track.
It is important to remember that the process of secularisation was powerfully helped by the elaboration of natural law instead of law derived from the sanctity of religion. Amid this process, there emerged the Modern Nation-State, the question arose and indeed arose in our country with a particular sense of legitimacy about the nature and character of our state. Is the state an instrument for enforcing divine law? Alternatively, is state an instrument for the enlargement and protection of the totality of national interest, transacting religious or denominational divisions? It is from these considerations that there arose the need for the state, confining itself to the affairs of this world and thus being secular rather than being an instrument of any particular faith or dogma. It may be noted that the concept of secularism in India arose to achieve two-fold motives. Firstly, it has come to impart and teach scientific temperament and modernize society. Secondly, the multireligious nature of Indian culture demanded that along with modernization, the society should have some force to harmonise it. However, the process of secularisation could hardly satisfy any.
Personal Law And Status of Women: Demolishing the Fantasy of equality of or before Law
The Rule of Law, on which the concept of secularism rests, has come under the spell of various religions, which are continuously fondling with the process. In India, there are laws and procedures relating to crime, laws relating to evidence, laws governing the transfer of property, and taxation. All these laws concerning a variety of affairs could not strengthen the secular legal system. Personal became more political. If the words secular, secularism and secularisation are to go understood as part and parcel of a universal process of secularisation of the human mind, then we have inflicted enormous damage on the nation-building process in India. An unacceptable and false translation of the words “secular” and “secularism,” i.e., which equates to the doctrine of religious tolerance, in words like Dharma-Nirpeksh and Sarva Dharma Sambhava have generated high schizophrenia in our politics. The Jammu, Kashmir, Punjab and other parts of the country, where, still religious animosity exists, are a glaring example of this phenomenon, where all political parties make their electoral calculations in terms of Hindu, Muslim, Sikh, Christian, etc. [1] The quest to preserve self-identity on the religious ground becomes a logical result of it. The Uniform Civil Code, in this respect, has sparked off much controversy since the time of our constitution- making. The prerequisite of a secular state is that all citizens are governed not only by a Common Criminal Code but also by a Common Civil Code. Different Personal Laws perpetrate not only discrimination on the grounds of caste, sex, creed, and even religious identities, which is not in keeping with the secular ethos. All citizens should have a collective identity, a national identity. It is only when this sense of collective identity develops that secularism will be useful in making the nation secure with a viable polity, based on national interest. It is also argued that under a secular constitution, everyone should be equal before the law. However, if personal laws are allowed to be practised, not only would there be sexual inequality, but also the women of one
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community would become more privileged than the women of another religious community. The following points establish such inequalities: (1) The Muslims are polygamous, but the Hindus, Christians, and Parsis are monogamous. (2) The Muslims are allowed extra-judicial divorce, but the Hindus, Christians, and Parsis can affect divorce only through court. (3) A wife married under the Muslim law could be divorced by the husband at his whim or pleasure, but a wife married under the Hindu, Christian, or the Parsi law and be divorced by the husband only on specific grounds specified in those laws. (4) Under the Muslim law, husband apostasy from Islam results in the automatic dissolution of a Muslim marriage, under the Hindu law, apostasy from Hinduism by either of the spouses does not affect a Hindu marriage. However, it confers on the non-apostate spouse a right to sue for divorce.
Under the Parsi law, too, any spouse ceasing to be a Parsi Zoroastrian would only entitle his or her spouse to sue for dissolution but would not otherwise affect a Parsi marriage. Under the Christian law, a change of religion by one or the other spouse does not affect a Christian marriage except where the apostate husband has married again, in which case the wife would be entitled to sue for divorce. (5) Under Muslim law, a divorced wife is not entitled to any maintenance except during the period of Iddat. Still, another personal I laws allow divorce as also post-divorce permanent alimony. (6) Under the Muslim law, the daughter inherits half the share, but under the Hindu law, a daughter shares equally with a son. (7) Under Muslim law, a person cannot dispose of more than one-third of his property by will, but other personal laws do not impose such limitations. (8) The Muslim law confers on a person the right to pre-empt any property in respect of which he is a co-sharer or a participator in appendages or immunities or an adjoining owner. Still, other personal laws do not confer any such right. The above discriminations militate against the spirit of a secular constitution and hence must be removed by enacting a Common Civil Code. It is high time already, and 73 years have passed since our country became independent and 70 years since our constitution was promulgated. However, there is no sign of the enactment of a Common Civil Code. [2] The efforts to achieve a Uniform Civil Code has been frustrated by the fundamentalist, and leaders having secular credentials have not been able to generate much will power in this regard. The history of the Indian state is full of such instances. One such blow was heralded on Indian secularism in 1985, in the Shah Bano Judgement.
Shah Bano Case Shah Bano was a Muslim woman of 73 years, who had filed a case under section 125 of the Criminal Procedure Code for maintenance against her husband from whom she was separated. She was awarded maintenance under this law by the Madhya Pradesh High Court [3] . Her husband filed an appeal against this judgment in the Supreme Court, claiming that the High Court judgment violated the provisions of Muslim Personal Law. According to which a divorcee was entitled to maintenance only for three months, called Iddat period whereas, under section 125, Cr.P.C., maintenance to a divorcee is to be paid by the husband for life or until she remarries. The Supreme Court, however, upheld the lower court judgment, arguing that it was given under common secular law and that as argued by Shah Bano’s advocate, it is in keeping with the Quranic Verse 2.241 The Supreme Court did not accept the plea by the advocate of the Muslim Personal Law Board that it was violative of Muslim Personal Law. [4] The furore over the Shah Bano judgment was compounded by this manner in which the verdict was framed. The previous judgments by Justice Krishna Iyer were structured in the framework of social justice; by contrast, Justice Chandrachud’s judgment in the Shah Bano case was located in the terrain of Muslim Personal Law. The judgment made repeated reference to Muslim Personal Law and “Islam undoubtedly, the Muslim husband enjoys the privilege of being able to discard his wife whenever he chooses to do so, for a reason good, bad or different. Indeed, for no reason at all”. The issue was defined exclusively in terms of Personal Law. As a result, the debate focused on the interpretation of Muslim law. This was not all. Chandrachud’s critical comments on Muslim Personal Law were generally resented by the Ulemas, who condemned the judgment as an attempt to undermine the Personal Law of Muslims. [5] Behind the diatribe lurked the fear that if secular laws prevailed over religious laws, it would open the way for Courts to modify the Personal Law, which would weaken their stranglehold over the Muslim masses.
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Shah Bano was not the first one to be granted maintenance rights. Two significant judgments by Justice Krishana Iyer in the Tahira Bai Vs. Ali Husain Fidul Chothia and Fazlunbi verses Khader Ali cases in the 1970s granted maintenance to Muslim women under section 125 of Cr.PC. None of these judgments evoked any protest. The controversy sparked off by the Shah Bano judgment injected life into Muslim organisations which were starved for action on communal lines. For the first time after partition, the political balance shifted in their favour as they were allowed to take the initiative in articulating the grievances of Muslims. Many of these organisations - the Muslim Majlis Mushwarat, the Muslim Personal Law Board, the Muslim League, the Jamaat-e-Islami, the Awami Action Committee and Jamaat-ul-Ulema-I-Hind widened their sphere of influence by mobilising Muslim opinion against the Supreme Court judgment. Though a large number of Muslim organisations were involved in whipping up fundamentalist sentiments, the campaign failed to gain popular support in the first phase of the movement, which focused on the issue of the maintenance rights for women. The movement gained momentum towards the end of 1985 when the focus of the debate was shifted from the relatively minor issues of maintenance rights for women to the much larger issue of the status of the Muslim minority and its right to exist as a religious community in a secular society. In the second phase of the campaign, the community’s identity had taken on a reality which was expressed in an idiom, drawing heavily on religious symbols. This process of community definition had critical political repercussions. In April 1985, G.M. Banatwala, a Muslim League member from Kerala, introduced a Private Bill in Parliament to ensure the continuance of the regime of Personal Law. [6] “The talk of the Uniform Civil Code is an attack on the traditional spirit of tolerance and secular ideals.” [7] The AIMPLB warned the government that “it would be unwise and against the interest of national unity to arouse fears and apprehensions and to create a sense of religious insecurity.” [8] From city streets and mosques, the Maulvis and communal minded politicians harped on the fear that the Supreme Court verdict was “a death warrant of Muslim identity in Hindu India.” [9] Sidetracking the issue of Muslim women’s rights; the movement concentrated attention on the imperative need to protect the Muslim Personal Law. Muslim organisations in Uttar Pradesh, Bihar, Kashmir, Andhra Pradesh, and Kerala were pressed into service by the mullahs and conservative leaders to rouse Muslim masses against what they dubbed as “interference in the Muslim Personal Law.” [10] To counter such propaganda, a movement was launched. A committee for the Protection of the Rights of Muslim women in Calcutta was formed. The committee organised public meetings and conventions in different parts of the country to highlight the issue of women’s rights, submitted Memoranda to the Prime Minister emphasising the need to protect all sections of the Minorities, particularly women. [11] Its chief concern was to safeguard the rights guaranteed by the Indian Constitution. It was pointed out that though laws relating to marriage and divorce form part of the civil law, maintenance was included in criminal law to prevent a divorced woman destitute. Section 125 Cr.PC is a mild provision; under it, a magistrate can ask a husband to provide up to Rupees 500 a month for the maintenance of his wife, provided the husband has sufficient means, and the wife is unable to maintain herself. The distinguished experts in Shariat law like M. H. Beg, Murtaza Fazal Ali, Bahrul Islam, S. A. Masad, Daniel Latifi, and A.G Noorani defended the rights of Muslim women. Justice M.H. Beg, Chairman of The Minorities Commission, stated that granting maintenance to Muslim women under section 125 CrPC in “did not interfere in any way with the Muslim Personal Law” and those who say anything to the contrary ‘neither know the Quran nor the Muslim Personal Law nor equality nor justice nor the obligation of the Indian citizen under the constitution.’ [12] Asghar All Engineer, a Bombay based activist for social reform summed up the case of those who favoured the change, “giving more than what is stipulated by the jurists is no violation of Shariah or the injunctions of the Quran.” [13] Their forceful articulation refuted the claims of Muslim leaders that the community was unanimously opposed to the Supreme Court verdict in favour of maintenance. It also showed that the sentiments and feelings aroused by the fundamentalist movement were not uniform or purely religious; they were contingent on the social circumstances of the community and were very much inspired by the fundamentalist movement. In the beginning, even the Congress party welcomed the Supreme Court verdict granting maintenance to Muslim women. Arif Mohammed Khan, Minister of State for Home in the Union Cabinet, said that he had the backing of the overwhelming majority of their members of Parliament, including the Prime Minister who congratulated him, or his “excellent speech” denouncing the Banatwala Bill in Parliament. But the defeat of the Congress party in the by-elections of December 1985 in Muslim Majority areas sent shocking waves. Fearful of further electoral reverses, the government initiated several moves to assuage Muslim feelings. Members of the
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All-India Personal Law Board were summoned to Delhi for consultation. The Prime Minister also attended the All-Muslim Conference and assured his audience that the Muslim Personal Law would not be modified or altered. [14] In May 1986, the Muslim Women Bill, 1985, was introduced in Parliament. The bill condemned Muslim women to the status of second- class citizens by denying them the option to avail of section 125 of Cr.PC It incorporated the arguments of the AIMPLB and the Muslim League that a woman’s natal family should maintain her after her divorce and not the husband, as she has ceased to be his wife. The significant provisions of the bill introduced in Parliament included: Where a divorced Muslim woman is unable to maintain herself after the period of Iddat , the Magistrate, when approached may make an order for the payment of maintenance by her relatives who would be entitled to inherit her property on her death according to Muslim Law in proportions in which they would inherit her property. But where a divorced woman has no relatives or any one of them has not enough means to pay the maintenance, the other relatives who have been asked to pay the shares of the defaulting relatives, the Magistrate would order the State Wakf Board to pay the maintenance, ordered by him, on the shares of the relative’s who are unable to pay. The Muslim Women Bill was widely criticised. Even those Muslims who were dissatisfied with the Supreme Court judgment disapproved of the Act. A significant section of Muslims was of the view that a woman should have the option to be governed by their Personal Law or by the provisions of the Civil Code on maintenance. The right to maintenance was inconsonance with the prevailing family laws in several Muslim countries which had modernised family laws. The right of maintenance was available to women in Morocco, Turkey, Iraq, Egypt, Libya, Tunisia, Syria, and Algeria. In sharp contrast, Indian Muslim women were forced to depend on the charity of relatives and Wakf Boards for support. The political considerations behind the Congress strategy were revealed in the course of the debate on the bill in the Lok Sabha. A.K. Sen, Law Minister, defended the introduction of the new legislation by stating that it was “the consistent policy of the government that in matters of a community, priority would be given to the leaders of the community.” [15] This recognition of the so-called Muslim leadership meant that the government had no choice but to disregard the view of so many Muslim groups who had expressed their opposition to the bill. [16] The Congress Party insisted that the government was constrained to introduce the bill because of section 125 of the Cr.PC was perceived by Muslims as an interference in their Personal Law. [17] “We have to tread very carefully for Muslim Personal Law as it is linked to the Muslim religion in the minds of most Muslims. We might have our views, but we can not deny the perception of the Muslims,” [18] observed a government spokesman. Similarly, Arun Nehru, Minister of State for Home and confidence of Rajiv Gandhi reasoned; if the majority of Muslims feel that the bill is in their interests, we can not impose our views on them. [19] This argument assumed that Muslims constituted a self-contained and monolithic community. The other communities should have no say in their matters. For 31 years, the Muslim woman was rendered destitute and forlorn in the name of personal law. The instant triple talaq and the subsequent consequences were more horrifying when they used to discover that there is no maintenance after the period of Iddat. The constitutional validity of Muslim women (protection of rights on divorce) act 1986 was challenged because it violated the fundamental rights of Muslim women under article 14, 15, 21 of the Indian constitution. How could Muslim women be barred from the secular remedy of providing maintenance, available to other women of the country under section 125 of Cr.PC? The supreme court in 2001 in the Danial Latifa Vs. Union of India, while upholding the validity of the Muslim woman act 1986, also provided the act maintenance must be given to Muslim divorce women for life long not only during the period of Iddat.they can not be barred from seeking a remedy under Section 125 of the Cr.PC. This was a landmark case in secularising the issue of maintenance for the Muslim woman. [10] Responding to various writ petitions against the menace of triple talaq, Shayara Bano Vs. Union of India and others; Suo Motu In Re: Muslim Women’s Quest For Equality Vs. Jamiat Ulma-I-Hind; Aafreen Rehman Vs. Union of India and others; Gulshan Parveen Vs. Union of India and others; Ishrat Jahan Vs. Union of India and others; Atiya Sabri versus Union of India and others. In 2017, adopting a robust posture, the supreme court of India declared the practice of triple talaq unconstitutional and violation of the rights of Muslim women. The supreme court also directed the government to make suitable laws for the protection of Muslim married women. Subsequently, on 28 December 2017, the government of India passed the Muslim Women (Protection of Rights on Marriage) Bill in Lok sabha keeping in view 100 cases of instant triple talaq since the Supreme Court judgment in August 2017. According to the bill, whosoever pronounces triple talaq in any form writing or by electronic means such as email, SMS, and instant messengers are to be imprisoned for three years. However, the
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bill could not be passed in Rajya sabha since the government did not have an adequate majority. The government reintroduced the bill in Loksabha in 2018 and 2019 but met with the same fate as the government could not get it passed in Rajya Sabha due to lack of majority and unwillingness of secular parties to interfere in the personal law of Muslim community. The practise of triple talaq continued unabated. To stop the menace of triple talaq the government of India promulgated an ordinance on September 19, 2018, despite the severe opposition from the so-called secular parties and orthodox Muslims, when the BJP government came to power again in May 2019, it passes the Muslim woman (protection of rights on marriage) Act 2019. On 31 st July, Act received the consent of the president of India has eight sections. Wherein not only the practice of instant triple talaq was criminalized, but also the Muslim woman and her children were to be given subsistence allowance during the trial and punishment. Though the efforts of the government in passing a law against triple talaq were commendable and must be lorded, the other issues related to Muslim marriage, polygamy, inheritance, will, guardianship remained unresolved. Instead of just passing and act on triple talaq, the government should have come up with a more comprehensive Muslim code Bill in line with the Hindu Code Bill passed in the 1950s, setting aside the perception of Sudo seculars and fundamentalist Muslims. The Muslim woman can not be denied the right to equality and right to a dignified matrimonial life, merely on the whims and fancies of such elements. If the argument of conservative Muslim opinion is accepted on this ground, it would mean that only Hindus should be concerned about caste riots or untouchability or dowry deaths since these matters mainly concern that community. Under these circumstances, the question of a separate Personal Law for the Sikhs and other communities are frequently raised. The mandate of the constitution for uniform civil code has been put in abeyance by the different governments on the one or other pretext. Though Law and order are given in the state list of the constitution of India. Yet, no state has come forward to enact uniform Civil code for its state. Even where, the BJP which has come in power by a thumping majority did not make any effort in this regard, despite always pressing for a uniform civil code for all the communities in its manifesto. Goa is an exception, which is the only state in which the Uniform Civil Code exists, though for different reasons. Goa adopted common family law in 1870 inline with the Portuguese civil code. In 1954 a particular marriage act allowed for civil marriage outside any religious affiliations. After the Shah Bano case, BJP has always prominently highlighted the need for a uniform civil code replacing all kinds of personal laws. In 2014 when BJP came to power, the issues related to uniform civil code surfaced again. In December 2015, spokesperson of BJp, a supreme court lawyer, filed public interest litigation in the supreme court to instruct the government to legislate on uniform civil code as mandated by article 44 of the directive principles of the state policy and the constitution of India [21] . However, the PIL was dismissed by the supreme court on the ground that it can not compel the government to legislate on a specific matter if the aggrieved parties do not approach the court for remedy. Ashwini Upadhyaya approached then law minister Sadananda Gowda [22] to seek the opinion of law commission in this regard. On 7th October 2016, the chairman of law commission Justice B.S. Chauhan circulated a letter to all communities to carry out family reforms in consonance with Article 44 of the Indian constitution. [23] Soon various organisations especially the Muslim organisations opposed this move of the government on the ground that there are so many other issues incorporated in directive principles of the state policy for the well being of people which should be implemented at the outset, like, total prohibition, universal education for all children, provision of health facility for all, etc. they maintain that the primary thrust of Indian constitution is to incorporate unity in diversity upholding the cultural values, religious beliefs, and faith, The institution of the family is firmly founded on such norms. The uniform civil code will destroy the aliment of diversity in Indian society. The questionnaire floated by the law commission is not acceptable to Muslims. [24] The uniform civil code thus seems to be a mirage that alludes the legislators many more years to come. BJP though its progressive stand on article 370, triple talaq does not appear to able come forward with a comprehensive family code for all communities, ensuring gender equality.
Freedom of Religion - Anti-Thesis to Secularism; Not only the demand for the Personal Law has come as a contrast to the secular values, but Article 25(1) of the Indian Constitution, which says, “subject to public order, morality and health and to the other provisions of this part (fundamental rights), all persons are equally entitled to freedom of conscience and to the Right (freely to profess, practice and propagate religion)” Freedom of conscience has sparked off a considerable controversy as it is a piece of loose drafting since the state can not possibly force a person to hold certain beliefs, which
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infringe his freedom of conscience. A theocratic state does impose specific penalties on persons who profess religious beliefs, which are contrary to the established religion. But the Article just referred to guarantees the right, publicly to profess whatever religious beliefs one chooses. These two rights, namely, to hold religious beliefs and to profess them may not get appreciation in the secular scheme. This has been clarified by the Chief Justice of the High Court of Bombay in the State of Bombay vs Narasu Appa Mali [25] in which he stated, “ A sharp distinction must be drawn between religious faith and belief and religious practices. What the state protects is religious faith and belief. Concerning religious practices, he pronounced that if they “run counter to public order, the morality or health, or the policy of social welfare upon which the state has embarked, then the religious practices must give way before the good of the people of the state as a whole.” [26] Not only the religious practice but religious beliefs have also come in sharp contrast to the national interest. In the judgment of the National Anthem Case, [27] The Supreme Court of India, while reversing the decision of the Kerala High Court, held that nobody could be compelled to sing the National Anthem if he has a genuine conscientious religious objection. In the above case, three children belonging to the ‘Jehovah’s witness a religious sect of the Christian community, were expelled from a school for refusing to sing the National Anthem. They challenged the validity of the expulsion on the ground that it was violative of Article 25(1) of the Constitution of India. Their plea was that their religious tenets did not permit them to join any prayer or song except that it be a prayer of their God Jehovah. The Kerala High Court upheld the orders of expulsion on the ground that it was a fundamental duty of every citizen to sing the National Anthem. Doubtlessly, under the secular principle, nobody can be compelled to join prayer or song against his conscience and religious belief, but refusing to sing a National Anthem is a dangerous trend. It may, in the long run, lead to a grave threat to national unity. To respect National Flag and National Anthem is a fundamental duty. [28] Often, the Muslim MP s from different parties resisted chanting national song Vande Mataram on the pretext that it is against the teachings of Islam. [29] whereas the Fundamental rights Sub-committee of the Constitutional Assembly specifically mentioned that “no person shall refuse the performance of civil obligation or duties on the ground that religion so requires. [30] The growth of obscurantist rituals as part of religious practices has enormously increased, causing aspersion to secular beliefs. Innumerable Godmen harping upon the emotions of people in the name of spiritual and transcendental relief have cheated the masses in all facets, be it is monitory or physical. They have received ample Patronage from important persons, including ministers and officials. In October 1982, the Tamil Nadu government found it necessary to impose a ban on Yajnas at which snakes were being used, taking action under the law to protect wildlife. The malpractice had reached considerable proportions judging from the severity of the punishment, which could be meted out against offenders. It could amount to two years imprisonment or a fine of 2000 rupees or both. [31] In Kerala, there are some temples where the Thookam ceremony is still practised. According to tradition, one man was sacrificed every year. He was hung on iron Hooks, which were stuck into his back and suspended from a wooden structure in the temple, and after that, the temple was closed for forty-one days. The hooked individual, of course, never came out alive. Thookam is still performed, but at present, the ceremony is over in approximately half an hour. Five men presented themselves for Thookam in April 1983 at the Elavor Puthenkavu Bhagavathi temple in Kerala near Angamali. [32] In November 1982, a case came up before a division bench of the Supreme Court in which the owner of a cinema house was alleged to have been implicated in a case where a Harijan boy was sacrificed so that God would like his venture in running the cinema a success. The Supreme Court issued a notice to the state of Andhra Pradesh and others, directing them a speedy investigation should be carried out. The petition which had been moved by the organisation for people’s right, wanted that action to be taken against a minister of the state government who was allegedly involved in impeding the investigation. The allegation was that a 15-year-old boy, a labourer in a rice mill near Tenali, was beheaded on November 14, 1981. [35] A devotee of Sant Basaweswara was said to have offered a pair of slippers made out of his skin to the Sant’s temple in Basavana Bhagawade in Bijapur district in Karnataka. [34] No Shankaracharya nor even the Virat Hindu Sammelan has protested that this is the distortion of Hinduism. In the 70s and 80s, various cases of Sati were reported from different districts of Madhya Pradesh and Rajasthan. In Village Jhadli of Sikar District, seven incidents of Sati were reported between 1973 to 1980. The last incident occurred 250 years ago. In 1980 a 16- year girl named Om Kanwar committed Sati, acquiring mass support, two lakh people gathered to witness the Sati. On her name, a temple was constructed near Jhadli at Hathideh, which has become a place of pilgrimage.
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This temple is like other temples that have been exempted from tax, which itself speaks in volume about the genuineness of secular commitment of Indian society. Four members of the family who carried the corpse were charged under the Cr.PC for abetment to suicide and not under the Sati A bolition Act. It was generally believed that the case against them would not be pursued. In short, as the report concludes, “Legal inaction gives. Silent sanction to Sati . So does tax exemption [35] In 1983 three cases of Sati took placed in Panna district of Madhya Pradesh, two of which were successful. [36] These cases of Sati also acquired mass support and were glorified. [37] In 1987 same kind of incidents took place at Deorala, Rajasthan, which was supported by various fundamentalists politicians. Wherein a woman named roop Kanwar committed Sati. Though the practice of Sati was abolished around 200 years ago, yet in secular India, the incidences of such kind make us believe that religious superstitions are still dominating the mindset of people at large. [38] Hardly any person has been convicted by the courts for these incidents; the criminal cases are still lying pending. The other religious sect, the Daudi Bohras, a minuscule Muslim community that comprises just around five lakh members, has also generated considerable controversy as part of their religious freedom, throwing cold water on the secular practices. Asghar All Engineer, in his book The Bohras [39], gives numerous terrible examples. For instance, members of the Bohra community may not stand for election in Municipal and Assembly elections without the permission of Dai . They may not form associations for social welfare work. The reading of National Newspapers, which Dai disapproves of, is considered to be an offence. For all such cases, Dai can and has resorted ex-communication, but what does ex-communication involve? Is it the only denial of religious privileges? Is it only that an excommunicated person is forbidden to enter a Bohra mosque or to be buried in a Bohra graveyard? Such action by a religious organisation would be understandable, but the plight of those who are excommunicated is much worse than that of untouchables. An excommunicated person is debarred from maintaining social relations with his family. The family is threatened with ex-communication if it has anything to do with an excommunicated person. A son may not see his dying mother since she would be denied burial not only in a Bohra graveyard but in any Muslim grave-yard. If a woman is excommunicated, her husband is forced to divorce her. There have been murderous assaults on those urging reforms. An unofficial committee was set up in 1977 by the Citizens for Democracy in Bombay under the Chairmanship of Mr N Nathwani, an ex-judge and then an M.P. It included two Muslims, Alam Khundmiri of Osmania University and Dr Moin Shakir of Marathwada University. Ms Akil Dastur of Bombay University, Retd. Justice V.M. Tarkunde and Chandra Kant Barua of Ahmedabad were the other members. The Dai and Bohra establishment made many efforts to frustrate the working of the commission. The Nathwani Commission report, which is practically unknown to the general public, accepted the plea that those who failed to obey the dai in purely secular matters were being subjected to complete social boycott, mental torture, and frequent physical assaults. It is significant that the Dai , who is effectively denying to his followers' fundamental rights guaranteed by the constitution, has the support of the state and its highest dignitaries. President Zail Singh attended a reception in honour given by Dai in Bombay on the 29 th of September, 1983, and in praising the Bohra establishment referred to religions as a path to peace and happiness. [40] These sorts of visits are continuously undertaken by the high-level politicians to glorify such conservative and obscurantist practices in disregard of secular values. The term ‘to propagate’ has also generated enormous controversy. Even on the floor of the Constituent Assembly, many members found the term irrelevant, and to some, it was obnoxious. Tajmul Hussain urged that religion was a private affair between oneself and one’s creator, and it had nothing to do with orders, and therefore, the right to propagate religion was wholly unnecessary; all that the individual needed was the right to profess and practise religion privately. He felt that the propagation of religion had proved a nuisance in the country. [41] Another member, Lok Nath Mishra, also supported the view. To him, the aim of the Propagation of religion was political. He forcibly argued that while people might propagate their religion, if they wanted to, there was no justification for putting it in the constitution fundamental right and thereby encouraging it. Notwithstanding the support given ‘to the inclusion of the word ‘propagate,’ the true position in this regard is to be found in the following observations of Alladi Krishnaswami Ayyar; “it was probably unnecessary to have included the expression ‘propagate.’ because freedom of expression is already guaranteed under article 19 (draft constitution), but the expression was inserted by way of abundant caution to satisfy “maintain missionary interests who were enthusiastic about it. [42]
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Taking undue advantage of this clause, the various incidents of proselytization have taken place, causing considerable tension between the two religions or religious sects. Recently in Jharkhand, 25 preachers were confronted by the local villagers. The preachers were involved in missionary conversion activities. They were spreading Christianity through the gospel. [43] After the promulgation of the constitution of India, Seven sates, which include Odisha, Madhya Pradesh, Arunachal Pradesh, Chhattisgarh, Gujarat, Himachal Pradesh, Jharkhand,and Uttrakhand passed anti-conversion legislations. BJP government is also committed to passing anti-conversion legislation at the centre. Despite the passing of anti-conversion law in different states, no one has been til date convicted in such laws. Conversion by semantic religions continues though at a tiny scale [44] If secularism has to be realised, especially in a multireligious society, then the horizon of the freedom of religion has to be narrowed.
State efforts to curb communal violence Obscurantist believes, superstitious values and malicious propaganda on religious grounds has also been used to incite communal riots and secessionist movements. The State has been seeking to curb these sorts of unlawful activities. When Unlawful Activities Prevention Act was enacted in 1967, the original draft contained the provisions defining “ unlawful activity” as “ any action taken by such person or association which promotes or attempts to promote on the grounds of religion, race, language, caste or community or any other ground whatsoever, feelings of enmity or hatred between different religious, racial or language groups...” but when enacted, the scope of the legislation was finally restricted only to secessionist activities. [45] The matter came up once again f or consideration at the conference of chief ministers of states held in May 1968. But there was no attempt to extend the provisions of the legislations to communal activities. [46] Another endeavour was directed to curb antisocial activities, when in December 1980, the Parliament passed the Code of Criminal. Procedure (Amendment Bill). The amending bill sought, according to the statement of objects and reasons, to enable the law enforcement agencies to deal effectively with anti-social elements, habitual criminals, and those creating enmity between different groups and communities. According to this Bill, bail would be made difficult. Accused could be imprisoned if he fails to appear in the court. And the power to take security proceedings under sections 108, 109, and 110 of the code would be vested in Executive Magistrates. The Bill was opposed by the members of Parliament on the ground that such unlimited powers in the hands of Magistrates would lead to the erosion of civil liberties. The minister of state for Home Affairs, Mr P Venkata Subbaia in his reply to the debate, said that there was nothing wrong about vesting such power in Executive Magistrates since they were the ones in charge of law and order. He assured the opposition that the measure was designed to take preventive action against anti-social elements and habitual offenders and not against anybody else. [47] To check the violence of any kind, on 6 th May 1981, Disturbed Areas Special Courts Amendment Bill was passed in Lok Sabha. The Act empowered the Central Government to declare an area as a “disturbed area” and set up special courts for speedy disposal of cases in connection with communal, religious, regional, linguistic, or such other disturbances. [48] However, the act was misused for toppling the state governments for political reasons. After the demolition of the Babri Mosque on 6 th December 1992, the state Assemblies led by the B.J.P. government were dissolved, whereas the Congress-led state assemblies were not touched. Bombay, Surat, Ahmedabad, and Baroda were also severely affected by communal violence, but no action was taken by the Centre against these state governments. In 2011 the national advisory council under the chairmanship of Mrs Sonia Gandhi drafted the Prevention of Communal and Targeted Violence (Access to Justice and Reparations) Bill, 2011, which evoked considerable resistance from the opposition parties. The bill sought to link the crime of communal violence with the religious and linguistic majority. According to the bill, wherever the communal riots take place, the majority community is to be held responsible. Amongst the minorities, the SC/STs were also included. The bill further proposed that civil servants of that area should also be held responsible For dereliction of their duty in their area. The opposition party, especially the BJP, opposed the bill on the ground that the bill itself breeds communalism [49] and has no place in the secular country. It is untenable by any legislature. The BJp branded the bill by congress as its policy of appeasement and wooing the minority votes. [50] The bill was dropped amidst the fiercest resistance on 5 th February 2014. [51]
However, these legislative efforts have remained ineffective. They have neither been able to check anti-social activities nor promote communal harmony.
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The communal riots have been on the increase, especially after the 1970s for different reasons. The social elements are constantly using religious appeals to commit crimes and spreading communal hatred. The communal conflicts are not restricted to Hindus and Muslims. They are widespread amongst the other minor communities. The Sant Nirankari - Akali feud was brought to a dramatic climax on the 24 th of April 1980 when the then Sant Nirankari Guru, Baba Gurbachan Singh, was shot dead while alighting from his car to enter the Sant Nirankari Bhavan in Delhi. The assassins allegedly sought refuge in the Golden Temple in Amritsar. The Blue Star Operation in 1984 was a consequence of the lack of administrative and political will to control the antisocial activities under the garb of religion. After the assassination of Prime Minister Indira Gandhi, Anti Sikh riots took place in various parts of north India, including Delhi, wherein more than 5000 Sikhs were killed. The carnage of communal riots took place in 1985 in different cities of Gujrat, which lasted for eight months, 275 people were killed, and thousands of them were injured. Due to Babri masjid and ram mandir controversy chain of communal riots broke out in 1987 Meerut and Delhi riots, 1990 Hyderabad riots, 1992 Bombay riots, 2002 Gujrat riots. The demolition of the disputed structure on the 6 th of December, 1992, proves the fact beyond question, the omnipotence of religious influences has continuously rendered the legal and political institutions weak and ineffective. The process of secularism has not received a slick, because, the disputed structure was broken, but because the secularist forces believed that the secular values rested in the preservation of the disputed structure. Here it is worth pointing out that it is the duty of our political processes to judicially solve these sorts of matters without letting them reach such a situation, where; it is difficult to control it. After a prolonged Judicial battle of more than 134 years, The dispute of Ram Janmbhoomi Babri Mosque finally came to an end on 9November 2019. [52] It was a sigh of relief for any government, which was a source of trouble for every government. The efforts of the BJP government should be appreciated that it managed the whole affair without any hue and cry. Massive Hindu Muslim riots broke out in Bhagalpur in 1989 on petty issues on Muharram and Vishari Puja, which claimed more than 1000 lives and led to the displacement of more than 50 thousand people.]53] In 1989-1990 more than 5 lakh Kashmiri pandit was displaced from Jammu Kashmir and many more killed due to the ongoing Secessionist and fundamentalist movement in Kashmir. The embroiled of the Hazratbal Shrine in October 1993 is a clear example of the role of religious influence upon the secular functioning of the state apparatus. In 2013 the Hindu Muslim riot took place due to the minor incidence of eve-teasing 62 persons were killed, hundreds were injured; more than 50 thousand were displaced. Similarly, over a minor issue, Hindu Muslim riots took place in 2014, a minor issue of a piece of land. In 2017 when self-styled Godman Ram Rahem was arrested for the charges of rape and murder, the riots broke out in Panchkula, Haryana. In 2019-20 chain of communal riots broke out in the various parts of India for the issue of citizen amendment act, which provided for the citizenship to persecuted minorities in the neighbouring states.
ASSESSMENT Under a secular democracy where religion is an individual concerned, not a state affair, the absolute and unrestrained exercise of the same may fetter the freedom of co-religionists, and there may be clash and violence. Besides, the state may be confronted with numerous problems in regulating secular affairs. In no country of the world, unqualified and unlimited freedom of religion has been allowed, even in theocratic systems. Limitations on the freedom of religion or worship are inevitable in modern multi-religious society. Though there are adequate restrictions described in the Indian constitution to curb religious, yet the legal loopholes, electoral calculations of the legislators, and the constant politicisation of the judiciary have marred the process of secularism. J. Frankfurter rightly observed in the Flag Salutation Case that “to affirm that the freedom to follow conscience has itself no limits in the life of society would deny that very plurality of principle, which as a matter of history underlines protection of religious toleration. Thus, if religious beliefs and practices conflict with matters of social reform or welfare on which the progress of society and nation at large rests, in that case, such religious beliefs and practices will have to yield to the secular interests of the society. Many instances may be cited of practices which may create law and order problem and which may lead to mass violence and disturbance of peace and tranquillity. The State is required to take adequate measures; otherwise, there may be chaos and confusion in the society. For example, cow slaughter by
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a Muslim at a public place can be prohibited. [53] In the Anand Marg Case, the Supreme Court held that the “Tandav Dance in procession at public places by Anand Margis carrying lethal weapons and human skulls was not an essential religious rite of the followers of Anand Margis and hence the order under section 144 Cr.P.C. prohibiting such procession in the interest of public order and morality was not violative of the rights of the petitioner is under Articles 25 and 26 of Indian Constitution.” [54] However, in the Case of Ramjanam Bhoomi - Babri Masjid controversy, the state had not been able to take any prohibitory action, existing under those articles. The provisions under the Constitution of India align with the established principles of secularism, and the two do not represent anti-thesis to each other. However, lately, the right to freedom of religion is dangerously misused by individuals as well as communal organisations. What has happened in Golden Temple at Amritsar, demolition of the disputed structure at Ayodhya and militant’s occupation of the Hazaratbal Shrine at Srinagar is nothing but a blatant misuse of the religious freedom. The activities in the name of religion are proving a menace to the unity and integrity of the country find the government would be highly justified in curbing violence and other religious activities that are likely to pose a threat to the unity and integrity of the nation. Unfortunately, the government has acted as a catalyst for providing a fertile ground to these sorts of problems. It has lacked the uniformity of action in a similar kind of imbroglios. A feeling has grown in the majority community that secularism in India is being used as a political weapon to win away from the votes of Muslim and Christian minorities and to curb the growth and expansion of Hindu chauvinism. Lack of will and determination on the part of the state to have a Uniform Civil Code for all the communities of the country despite a categorical proclamation in the Constitution (Article 44) is a point of reference. The acceptance of personal law has dwindled the concept of secularism to a hoax, a mirage that can never be raised by our politicians and implemented by our Judiciary. One may not be in full accord with such feelings, but it may not be denied that secularism has suffered a significant setback in the country. The two basic postulates, secularism, and freedom of religion for individuals intended to work in complete collaboration, have not found full] expression in the social and political activities of the state and individuals. The concept of secularism is being subordinated to religious dogmatism and fanaticism. It appeared that both the communities who were always on feet to initiate communal violence on petty issues kept calm on the significant decision of the Supreme court. It appeared that Now Indian democracy is heading towards genuine secularism of its type but whatever, was achieved during the settlement of volatile issues of removal of article 370 and criminalization of triple talaq and the judiciary’s settlement of Ram Janmabhoomi and Babri mosque was undone by the frenzies of communal violence in a different part of the country on citizenship amendment act 2019. References [1] P. N. Haksar, “ Fundamentalism and secularism,” (New Delhi: National Convention to promote Communal Harmony and Constitutional Objectives, Papers and Reports, Apr. 30, May 1-2,1993), 5-6. [2] Asghar Ali Engineer, “ Should there be a common Civil Code?”, Vol. X (Delhi: University of Delhi,1997) 480-488. [3] What is Shah Bano case?, in Indianexpress [Online] (August 23, 2017); available from < https://indianexpress.com/article/what-is/what- is-shah-bano-case-4809632/ >. Also see, Mohd. Ahmed Khan v. Shah Bano Begum And Ors Decided 23 April 1985 (1) SCALE 767 = 1985 (3) SCR 844 = 1985 (2) SCC 556 = AIR 1985 SC 945 [4] Maintenance under Muslim Law, in topper [Online] Available from < https://www.toppr.com/guides/legal-aptitude/family-law- i/maintenance-under-muslim-law/> [5]Asghar Ali Engineer , The Shah Bano Controversy, (New Delhi: Orient Longman, 1987), 23. [6] Shishir Tripathi, Triple talaq negates both equality and dignity of Muslim women: Arif Mohammad Khan, in Firstpost [Online] ( India: Oct. 15, 2016) available from < https://www.firstpost.com/india/triple-talaq-negates-both-equality-and-dignity-of-muslim-women-arif- mohammad-khan-3050810.html >. [7] Muslim India Vol. III, No. 29, May, 1985. p.217. [10] statesman, Oct. 27, 1985. [9] Telegraph, Mar. 8,1986. [10] Indian Express Nov. 15, 1985. [11] Committee for Protection of Rights of Muslim Women. Memoranda submitted to the Prime Minister, Vol. XXIV, No. 27 (New Delhi: Feb. 24, and Mar. 1, 1986), 29-32. [12] Statesman, Apr. 27, 1985. [13] Telegraph, Sept. 1, 1985. [14] Telegraph, Dec. 4, 1985. [15] Telegraph, May 15, 1988. [16] Times of India, Dec. 28, 1985. [17] Gautam Novlakha, Ruling Parties Defense of Muslim Women’s Bill, Vol. XIV, No. 6, (Delhi: Social Scientist, 1986), 55-58.
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[18] Telegraph, May 15, 1988. [19] Ibid. [20] Danial latifi Vs Union of India in IndianKanoon [Online] (28 september, 2001) available from < https://indiankanoon.org/doc/410660/ > [21] Vanshika Sharma, “Article 44 of The Constitution: A Dead Letter” in legal Service India [Online] (Delhi), available from
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