India and China

A COMPARATIVE ANALYSIS OF SECULARISM IN INDIA AND CHINA

Dissertation submitted in part fulfillment for the requirement of the

Degree of

LL.M.

Submitted by Supervised by

SHINY PRADEEP PROF. (DR.) M.P. SINGH

National Law University

Delhi (India) 2016

DECLARATION BY THE CANDIDATE

I hereby declare that the dissertation entitled “A Comparative Analysis of Secularism in India and China” submitted is the outcome of my own work carried out under the supervision of Prof. (Dr.) M.P. Singh, Visiting Professor, NLU Delhi, currently Chancellor, Central University of Haryana and Chair Professor, Centre for Comparative Law, NLU, Delhi.

I further declare that to the best of my knowledge the dissertation does not contain any part of work, which has not been submitted for the award of any degree either in this University or any other institutions without proper citation.

Place: New Delhi Shiny Pradeep 22LLM15

Date: 30 May 2016 National Law University, Delhi

CERTIFICATE OF SUPERVISOR

This is to certify that the work reported in the LL.M. dissertation entitled “A Comparative Analysis of Secularism in India and China”, submitted by Shiny Pradeep at National Law University, Delhi is a bonafide record of his/ her original work carried out under my supervision. To the best of my knowledge and belief, the dissertation: (i) embodied the work of the candidate himself/ herself; (ii) has duly been completed; and (iii) is up to the standard both in respect of contents and language for being referred to the examiner.

Prof. (Dr.) M.P. Singh,

Visiting Professor, NLU Delhi

ACKNOWLEDGEMENT

At the very outset, I would like to thank my mentor, Prof. (Dr.) M.P. Singh, without whose invaluable guidance and support, this work would not have been completed. I am thankful to him not just for his support and guidance as a mentor, but also the inspiration that I drew from him as a student throughout the year. There are but few teachers like him.

I am extremely thankful to this University, to the Vice Chancellor and the Registrar for providing enriching resources and up to date facilities which makes doing research a smooth process. The help of the library staff has been invaluable and prompt.

I am also thankful to Kanika Gauba, who helped me cull out the relevant research articles in the very beginning, many of which helped me in formulating an important theme of my arguments. Many thanks are also due to Akhilendra, who working on a related topic, listened to my half- baked arguments, gave me suggestions and pointed out some important literature that I otherwise might have missed. My two constant companions throughout the year, Kamakhya and Jitamanyu have been my support system here. Their company has made this journey a really memorable one.

My grandmother‘s invaluable life lessons of being patient and never losing your calm are some things that always come in handy when nothing else does. My mom, dad and brother never fail in their support in any endeavor I undertake for which I am really gratuitous.

iii

LIST OF ACRONYMS AND ABBREVIATIONS

AIR All India Reporter

CAD Constituent Assembly Debates

Ed. Editor

Edn. Edition

Ibid Ibidem i.e. that is

Ors. Others p. page pp. pages

SC Supreme Court

SCC Supreme Court Cases

Supra See Above

US United States of America v. Versus

Vol. Volume

LIST OF CASES

Abington School District v. Schempp, 374 U.S. 203 (1963)

Ahmedabad St. Xaviers College Society v. State of Gujarat, AIR 1974 SC 1389

Engel v Vitale, 70 U.S. 421 (1962)

Everson v. Board of Education, 330 U.S. 1 (1947);

Quareshi v. State of Bihar, AIR 1958 SC 731

Ratilal Panchand v. State of Bombay 1954 AIR 388

TABLE OF CONTENTS

CHAPTER 1 ...... 1 INTRODUCTION ...... 1 1.1 Literature Review...... 2 1.2 Research Problem ...... 4 1.3 Objectives ...... 5 1.4 Hypotheses ...... 5 1.5 Research Methodology ...... 6 CHAPTER 2 ...... 7 UNDERSTANDING SECULARISM ...... 7 2.1. Origin of the Concept...... 7 2.2 Understanding Secularism in today‘s diverse, diverging and converging World ...... 9 2.2.1 The Criterion for a Secular State ...... 10 2.2.2 Why secularism? ...... 13 2.3 What does separation entail? ...... 15 2.4 If separation is necessary, to what extent? ...... 16 CHAPTER 3 ...... 19 SECULARISM IN THE INDIAN CONTEXT ...... 19 3.1 Does secularism in the Indian context seem to be losing its ground? ...... 20 3.2 Is secularization of the Society a necessary implication of secularism? ...... 22 3.3 Why secularism became necessary in the Indian context? ...... 24 3.4 Why secularism in the Indian context does not need an alternative? ...... 26 3.5 Whether Indian secularism can be considered a Distinctive Model? ...... 28 3.5.1. Indian constitution incorporates the right to freedom of religion taking care of India‘s peculiar circumstances ...... 28 3.5.2 Indian Secularism provides flexible approach to the State ...... 33 3.5.3 The Indian responses to religious issues in the modern world ...... 35 3.5.4 The distinctive and exemplary aspects of Indian Secularism ...... 36 CHAPTER 4 ...... 41 RELIGION AND LAW IN THE PEOPLE‘S REPUBLIC OF CHINA ...... 41

4.1 Is the question of religious tolerance and respect pertinent in the Chinese context? ..... 41 4.2 To what extent is religious autonomy guaranteed by the Constitution of China or enforced by substantive laws? ...... 44 4.2.1 Restriction regarding granting legitimacy to religions ...... 44 4.2.2 Restriction regarding freedom of expression in religious matters ...... 45 4.2.3 Direct control and interference in religious affairs ...... 45 4.2.4 Lack of remedies in case of breach of religious autonomy ...... 46 4.3 To what extent are the spheres of state and religion separated in China? ...... 47 4.4 Can China be said to be largely religiously tolerant? ...... 50 CHAPTER 5 ...... 52 A COMPARATIVE ANALYSIS OF SECULARISM IN INDIA AND CHINA ...... 52 5.1 Different historical trajectories of the two countries ...... 53 5.2 Distinctness of the Asian traditions and compatibility with secularism ...... 56 5.3 Conclusion ...... 59 CHAPTER 6 ...... 61 CONCLUSION AND SUGGESTIONS ...... 61 6.1 Towards a balanced and contextual approach ...... 61 6.2On the issue of legal convergence ...... 63

CHAPTER 1

INTRODUCTION The idea of secularism continues to be viewed with skepticism in the non-West because of its origination in the West. The approach towards secularism has until now been dogmatic, viewing church-state separation as the indispensable characteristic of secularism. In the light of such an approach, secularism is being perceived increasingly in the non-West as a diversity-resistant concept and therefore not suitable for culturally diverse societies. Having stated that, it also needs to be kept in mind that ‗secularism‘ did not originate in a vacuum. The problems that it arose to address in the European countries can be found in the other traditions too. Moreover, even the Western form of secularism as of date does not remain uncontested and flawless. The West being faced with radically increasing diversity, has started facing hitherto unknown challenges. The revival and reformulation of secularism is much needed in today‘s globalizing world. Here, it needs to be emphasized that the Indian form of secularism has been inherently a rather fluid, flexible and encompassing model and therefore might have some lessons in store for the West. However, this is not to say that Indian secularism is going in the right direction. Even it is facing an internal crisis which comes to surface with the growing communalism in the society evident through the ever increasing riots. What has resulted in this crisis? What has resulted in secularism being questioned worldwide? I endeavour to delve deeper into some questions of this nature in this work. Also, taking the two non- Western and culturally distinct countries, India and China, (one following the model of secularism whereas other being an officially atheist country) I seek to analyze the nature and extent of religious liberty guaranteed there, and does less religious autonomy automatically entail (what can be called) a milder form of secularism?

1.1 Literature Review

From the West to the East

The major Indian religions since ancient times included within their ambit the totality of the way of life and religion was the central unifying force. Donald Eugene Smith has traced how with the colonization of India, the concept of ‗equality of all before the law‘ was incepted, not before known. This principle led to the birth of ‗state‘ and ‗citizenship‘. 1 The European historical experience beginning from the sixteenth century and onwards has been taken by the West itself as a universally applicable phenomenon. It has also been misconceived that all the societies of the world eventually have to go through the same process and therefore ultimately come to the same solution. This deterministic reason has largely ignored the sheer value that religion has held in Indian lives.2 As Gandhi rightly opined, India did not need secularism. The Indian society, though having some social hardships, was culturally mired in such a way that there prevailed tolerance in pluralism. However, after the seeds of majority-minority were sown, with the mobilization of the idea of Hindu revivalism as a nationalist force, the natural default condition of Indian society was disturbed and secularism, thus, was started to be considered inevitable and later indispensable.3 Here, Madan rightly states ―such people [majority of Indians] do not know whether it is desirable to privatize religion, and if it is, how this may be done‖.4

Modernization and Secularization

A view that has emerged over the years is that the role of religion needs to be circumscribed if the modern South Asian states have to emerge. A preconceived notion that Smith has is that there is no alternative that the nascent states like India can exercise. The European path of ‗modernization‘ seems to be the desirable and the destined goal.

1 Donald Eugene Smith, INDIA AS A SECULAR STATE 265-91(Princeton University Press, Princeton, New Jersey 1967). 2 T.N. Madan, Secularism in its place, in SECULARISM AND ITS CRITICS 297-315 (R. Bhargava ed., Oxford University Press, Delhi, 1998). 3 Akeel Bilgrami, Secularism It’s Content and Context, in SECULARISM, IDENTITY, AND ENCHANTMENT (Harvard University Press, 2014). 4Supra note 2.

According to him, ―secularization of law is an important facet of the modernization of the state‖.5For Smith, the existence of the two major traditions (Hinduism and Islam) with many minorities and the conflicts within them is an obstruction to the path of modernization. The two views on secularism that then emerged were the Western conception, where secularism is usually understood as the opposite of ‗secular‘. The second is the Indian version emphasizing upon respect for all religions.6 Due to modernization, it seems that where earlier, the Indian version, implying tolerance and respect for all religions was predominant, in the recent times; the Western notion has become more acceptable to the westernized and modern educated middle class.7 Nandy‘s position is that the forces of modernization and secularism as prevalent in the West have disturbed the religious harmony that had long been an inherent part of the Indian society. The problem of religious fanaticism and communalism are also a repercussion of the growing modernization and secularization for Nandy as well as for Madan. In fact, elaborating upon the Hindu and Islamic traditions, Madan establishes that only a hierarchical relation with religion having primacy and the state or secular sphere coming within its ambit has been the better and more workable model for India. This is because the major Indian religions, Hindu and Islam have always had a centralized conception of religion in the matters of governance

The Contextual Approach

The critics of Indian secularism have failed to comprehend the concept in a holistic manner. Their claim that the main threat to secularism is a result of a deeper internal crisis is acceptable but the very conceptual basis of secularism cannot be called flawed. What needs to be understood here is that even the Western form of secularism is not uncontested and that even Indian secularism has a certain history.8 Thus, the earlier writings on the subject should not be left out in developing an understanding of it. Indian secularism, right from the time of its conception during independence and framing of the

5 Supra note 1. 6 Ashis Nandy, An Anti-secularist Manifesto, INDIA INTERNATIONAL CENTRE QUARTERLY 35-64 VOL. 22, NO. 1, SECULARISM IN CRISIS (SPRING 1995). 7 Ibid. 8 Rajeev Bhargava ed., SECULARISM AND ITS CRITICS, (Oxford University Press, Delhi, 1998).

Indian Constitution did not perceive of separation as complete non-intervention or strict neutrality of the state in religious matters. It has always implied a ‗principled distance‘ involving a contextual moral reasoning. In some matters, the state can turn hostile to religion, in some matters remain indifferent and in some actively encourage religion.

Religion in China

The Constitutional history of China with its distinctive features, its present institutional structure under the Constitution and the status of some of the fundamental freedoms need to be understood before trying to comprehend the interface of religion and law. The extent of state intervention in religious affairs and the manner in which the state can exert its authority on religious establishments helps one in understanding the true picture as far as religious freedom in China is concerned. 9 Even on minor issues concerning religion, legal provisions in the nature of policy regulations have been strictly laid down in China. Other important issues of collective religious rights, community rights, establishment and their legal requirements, religious autonomy for communities have also been legislated upon in a detailed manner in the regulations.10

1.2 Research Problem The rising problems of communalism and fanaticism in India have raised serious doubts on the secular nature of the Indian state and particularly on the future of secularism in India. In China, the Tiananmen Square killings and the persecution of the supporters of the Falun Gong movement raised doubts amongst the entire global community on the nature of religious autonomy that the State guarantees to its citizens. The burqa ban in France continues to be debated for quite some time. The above are problems that arose in very different modern-nation states (with their distinctive politico-legal systems) which makes one ponder over the changing dynamics of the interplay between religion, law and

9 Qianfan Zhang, THE CONSTITUTION OF CHINA, A CONTEXTUAL ANALYSIS 243 (Hart Publishing, 2012). 10 Zhao Jianmin, LAW AND RELIGION IN CHINA 137 (Wolters Kluwer, 2014).

state. What needs to be given importance, the individual, the society as a whole or the state? Where does law find a place in the picture and tries to balance the often conflicting interests of the individual, the society and the state?

The problems arising in the secular states worldwide (even in the West where ‗secularism‘ originated as an idea) have raised doubts on the legitimacy of secularism as a normative doctrine, as an ideal for the present day nation-state. This makes one reconsider the reasons for its origin and their applicability in the modern times. This is not to deny that secularism is under threat because of the way it has been conceived in different societies but to assert that it still holds much value as an ideal if reformulated to suit the changed scenario.

1.3 Objectives The objectives of this study are as follows: 1. To understand the history of secularism and its relevance for the present times. 2. To trace the reasons which gave rise to secularism in the larger context, and find out whether they apply equally well in the Non-Western Cultures too. 3. To outline the problems which misunderstanding of secularism has given rise to in today‘s world. 4. In the light of the above, to identify the core values that should inform the ideal of secularism. 5. To establish that rejecting secularism as having failed in the non-West and seeking an alternative to it is not a viable option.

1.4 Hypotheses

1. Secularism essentially entails the separation of the religious and the political spheres (having been derived from the Church-State Separation in the Western World). 2. Being based on the homogenous and culturally distinct societies of the West, secularism is not a suitable option for the widely prevalent diversity in the non- West.

1.5 Research Methodology The research methodology adopted in this work is doctrinal. The researcher has studied and analyzed the provisions of the Constitution as well as of other substantive laws and regulations to understand the present position on the subject. The researcher has analyzed some of the important case laws on the topic and the writings on the subject by eminent political scholars. In addition to this, the surveys done by some international organizations have also been referred.

CHAPTER 2

UNDERSTANDING SECULARISM

“No idea lives forever. But no good idea should be lost because its supporters are intellectually too lazy to properly defend it.”

-Rajeev Bhargava

2.1. Origin of the Concept Almost all the political scholars who have dealt with the topic of ‗secularism‘ have recognized the difficulty of defining the term ‗secularism‘. This is because it arose in a particular culture and spread worldwide gradually. However, being culture specific, it took its own different forms in different communities and in what are now modern nation-states. However, before going into the nuanced issues that arose as a result of transplantation of the concept, it would be better to understand and analyze its historical background. This is because a contextual understanding of the history of secularism in any given context becomes integral to understanding how it is being grappled with in the world today. To comprehend as to what it entails as a concept, an understanding of the circumstances which gave ri4se to it becomes essential. Moreover, when we understand the problems which secularism originated to address, we would be in a better position to decide what secularism11 should entail as a concept and what should be left out of its ambit. More importantly, we will realize that there need not be any given set pattern or criterion which a state needs to fulfill to be labeled ‗secular‘. Rather, it‘s more about the values that a given state deems fundamental, uncompromising that help in setting a boundary line between the religious and the secular spheres.

11 This position has essentially been taken by Rajeev Bhargava and has been an underlying basis in all his works. He opines that though secularism arose predominantly in the West, understanding it only within the confines of church-state separation might be problematic. I have dealt with this aspect in Chapter 2 elaborately.

The concept of ‗secularism‘ as it exists today, whether taken as a Western imposition or not, is definitely of the Western origin. It has its evolution in the ‗Wars of Religion‘12, fought in the West where the Church was a dominant institution and generally was sought after the medieval times to be separated from the public sphere.13 With the growing conflicts in the different forms of Christian communities, an increasing need was felt to separate the religious sphere or the spiritual sphere from the ‗temporal‘ one. This was essentially sought to be achieved by agreeing upon certain fundamental values which would have a consensus of the different religious confessions. The two ways14 through which this was sought to be achieved were; first, to arrive at a consensus upon certain common fundamental values extracted from all religious confessions which would serve as the core principles governing the public sphere. Since they would be derived from all the religious confessions, all individuals would be able to identify with them and there would be less likelihood of conflicts resulting from disagreements between the different confessions or the likelihood of dominance of one sect over the others. This first way has been called by Taylor as the ―common ground approach‖. The second way was to make the public sphere based on certain core human values ensuring the dignity and respect of individual life. These would be agreeable to all and be completely separated from the religious sphere and thereby legitimize the power of the governing authority. Taylor uses the term ‗independent ethic approach‘ for this second method. The first method implied the extraction of certain common beliefs from all religious confessions/sects, while the second method implied excluding everything religious from the purview of the public sphere and restrain it to the private individual lives. Here, the emphasis was on the belief that relegating religious faith to the private domain was not a sin and anyway it could be legitimately practiced by believers as they considered appropriate in their personal lives.15

12 Charles Taylor, Modes of Secularism, in SECULARISM AND ITS CRITICS 32-33 (R. Bhargava ed., Oxford University Press, Delhi, 1998). 13 Ibid. 14Ibid. 15 Charles Taylor relies upon the work of Thomas Hobbes in the second part of ‗Leviathan‘ and as Taylor states, this second part has come to be dominant in the modern Western Secularism. However, Taylor goes on to argue that Secularism deriving from either of these ways, i.e. ‗common grounds‘ or ‗independent ethic‘ is bound to fail in the modern day because of the diversity that is a characteristic feature of today‘s

However as Rajeev Bhargava states, though primarily secularism originated in the West , it need not be seen restricted to only the Western society and studied exclusively in the context of the separation between the church and the state. Firstly, this would be undermining secularism as a normative doctrine. Secondly, Western notion of secularism is diversity resistant and does not address the peculiar situations of the non-Western World.16 Therefore, as a normative doctrine, it has to be understood in the wider context of making the state largely independent of the conflicts among the religious communities.17Rajeev Bhargava and Akeel Bilgrami, in their distinctive ways have tried to open newer dimensions to the concept of secularism building upon its relevance in the present context.18 Their underlying objective is to emphasize upon the ‗contextual‘ aspect of secularism so that it is no longer seen with a narrow perspective as a universal normative doctrine. By contextual, they do not merely try to imply its applicability in distinct cultures and societies but as seen in the frame of ‗contextual morality‘. It is this wider sense of secularism which has been tried to be built upon in this dissertation, which is particularly relevant in the Indian context.

2.2 Understanding Secularism in today’s diverse, diverging and converging World Secularism is hard to be confined within the bounds of a given definition or within a few fixed categories. It cannot even be exactly illustrated or exemplified by the select few examples. This is because secularism being a multi-value doctrine19 would always differ corresponding to the societal norms, values and ideals. Rather, it molds itself to the societal conditions in which it is adopted. This can be explained and elaborated upon by employing the concept of ‗legal transplantation‘ which is gaining increasing popularity (because of its utility) in comparative legal studies. Legal transplantation can simply be world. Thus, the need is for a new form based on ‗overlapping consensus theory‘ of Rawls which can be modified a bit to suit the needs. 16 Rajeev Bhargava, States, Religious Diversity and the Crisis of Secularism, THE HEDGEHOG REVIEW: VOL. 12, NO. 3 (FALL 2010) 17 Rajeev Bhargava, Giving Secularism Its Due, ECONOMIC AND POLITICAL WEEKLY, VOL. 29, NO. 28, 1784-1791 (Jul. 9, 1994). 18 See generally Rajeev Bhargava, The Distinctiveness of Indian Secularism, in THE FUTURE OF SECULARISM, 20-53 (T.N. Srinivasan ed., Oxford University Press, Delhi, 2006); Akeel Bilgrami, Secularism It’s Content and Context, in SECULARISM, IDENTITY, AND ENCHANTMENT (Harvard University Press, 2014). 19 Ibid, both Bhargava and Bilgrami, agree that secularism is based on multiple values.

explained as the process of borrowing and adopting a socio-legal or a legal-cultural concept from one legal tradition or society to another. In such borrowing, the concept does not remain identical to what it was in its original state and develops into a new, distinct form after adoption. The borrowing can produce both positive and negative results.20 Secularism, in my opinion, is a classic example of legal transplantation from the West to the Non-West. Having been adopted in a scenario where it did not naturally originate, it does produce some counter effects as well as takes its own peculiar form in the new adoptive society.

There is abundance of quality work which political scientists and scholars have already done on the subject, analyzing its various aspects in detail. Still coming to a ‗fixed‘ definition does not seem plausible. In my opinion, it is not even required. Despite the fact that confining secularism within definite boundaries is not necessary, it is necessary to have an in depth understanding of its characteristics. This becomes all the more indispensable in the context of the diverse society we inhabit as well as of the increasing diversity worldwide. Therefore, for determining whether the value of ‗secularism‘ as an ideal for a democratic polity, one needs to go to the roots of it. This would also help us to come to the conclusion as to whether any alternative to secularism is required or even plausible as is being increasingly claimed in today‘s world.

2.2.1 The Criterion for a Secular State Donald Eugene Smith‘s classic work titled ‗India as a Secular State‘ would be an appropriate starting point to understand the constituent elements of secularism. Though this is not the only criterion to determine whether a state is a secular state or not but it does give some clarity in understanding the elements of secularism. Therefore, Smith‘s work, though published in 196321, continues to provide a good starting point even today. Smith lays down the criterion which a state should fulfill to be considered a secular state. He bases his theory on the relationships between citizens, religion and the state. According to him, there are three sets of relations, between;

20 See generally Esin Orucu, Unde Vendit, Quo Tendit comparative law? in COMPARATIVE LAW IN THE 21ST CENTURY 1-18(A. Harding, E. Orucu eds., Great Britain, 2002). 21 Donald Eugene Smith‘s work India as a Secular State was originally published by Princeton University Press in 1963.

1. Religion and the individual, 2. State and the individual, and 3. Religion and state.22

These relationships result in the right to religious freedom to the individual, citizenship and the separation of religion and state.

(i) The first relationship entitles the citizens to the right of religious liberty. This essentially entails that a person is free to embrace or denounce any religion and the state has nothing to do with such a freedom of the citizen. That is, the relationship of religion and the individual in a secular state, as per Smith, essentially excludes the state from its purview in all possible ways. (ii) The second relationship exists between the state and the individual and religion is nowhere in the picture. The state, here, in framing its laws and policies for its citizens would give no regard at all to the religious beliefs or preferences of the citizens. Only where the exercise of religious freedoms of individuals would start endangering the vital functions of the state; public order, morality or health or even security, would the state intervene in religious matters. Smith goes a step further to recognize the community rights of individuals collectively for religious purposes. (iii) The third relationship exists between state and religion which is essentially one of ‗separation‘. The underlying basis is that state and religion are two separate entities trying to operate in two distinct spheres to achieve completely unrelated and independent objectives. This third relationship and so also the term ‗separation‘ have been problematic as far as definition of ‗secularism‘ is concerned. What Smith implied from separation was ‗mutual exclusion‘. Going back to the history of secularism and analyzing the circumstances in which it originated in the West, the meaning of separation would be ‗mutual exclusion‘ or what is popularly referred to as ‗the wall of separation idea‘ of secularism. However, as I seek to establish through this paper, the wall of separation model is

22 D.E. Smith, India as a Secular State, in SECULARISM AND ITS CRITICS178-79 (R. Bhargava ed., Oxford University Press, Delhi, 1998).

but one of the forms of secularism. Even where there is state interference or intervention in religious affairs, the state can still be appropriately secular. The latter form can be found in non-Western countries like India. Due to increasing diversity the wall of separation model, it is being seen, does no longer suffice even in the West. Even the West needs to revise the model which it has been following.

As already stated, I chose to begin with Smith‘s conception of a secular state as it provides a good starting point to understand the dynamics at play between religion, state and individuals. At the time Smith wrote, many countries such as India were in the early years of their independence. These non-Western countries had their histories quite distinct from the West and were religiously and culturally diverse societies. Because of their distinctive pre-historical past, they started treading the ‗liberal democratic nation‘ path quite late.23 Till this time, the West had developed ‗secularism‘ suiting the needs of their societies, which started being considered as the ‗hallmark‘ of secularism by which all other later evolved forms of secularism would be judged.24

However, after the end of the colonial rule, the newly independent states started striving towards the path of being a ‗nation‘ following the West and thus gradually imbibing the socio-political concepts of the west. Secularism is one such concept. In these societies, state and religion had never operated as two completely distinct spheres. Rather they were interdependent.25 However, since the cultures of these states were quite distinct and had a strong influence on the people, the people remained largely attached to their core beliefs and practices. Thus, the Western concepts were emulated but with largely native cultural foundation. Based on these reasons and more, Marc Galanter has criticized the three principles laid down by Smith in his criterion of a secular state calling them inadequate.26 According to Galanter, these are conflicting principles when seen in operation in many situations. For instance, in situations where individual religious liberty can be compromised by collective religious autonomy, where separation of religion and

23 Marc Galanter, Secularism East and West, in COMPARATIVE STUDIES IN SOCIETY AND HISTORY, VOL.7, NO.2, (JAN, 1965). 24 Ibid 183-184. 25 Ibid. 26 Supra note23.

state can be compromised allowing state intervention, etc. These points made by Galanter seem particularly relevant in the Indian scenario.

Taking the peculiar case of India, I seek to analyze through this work as to what extent the dynamics have changed between the three units; state, religion and individual from what Smith foresaw and whether it is actually compromising on the core concept of ‗secularism‘ as such. Moreover, to what extent the three principles of Smith can be made flexible and therefore applicable to scenarios other than the ‗wall of separation‘ model of the West, particularly of the United States, will also be analyzed.

2.2.2 Why secularism? Through the above discussion, it is clear that a broad and popular understanding of secularism is the separation of the spheres of state and religion (or what can be called in some scenarios as separation of state institutions from organized religion). The larger question is why the religious sphere needs to be separated from the political one? Rajeev Bhargava gives multiple reasons, which seem convincing and acceptable, considering the minimal objectives that any polity seeks to achieve.27 These are also in conformity with the minimalist expectations that the people of a state have; whether believers, non- believers, secularists and non-secularists. The five reasons that Bhargava gives can be summed up as follows:

1. Autonomy; this reason is based on the view that religious as well as public institutions are both very powerful and command the utmost allegiance from the people. When the two are integrated, with the increased authority at their disposal, there would be a danger of autonomy being compromised to a significantly larger extent than when the two are separate. Thus, ―separation is required to curb political and religious absolutism‖.28

27 Rajeev Bhargava, What is Secularism For?, in SECULARISM AND ITS CRITICS 487 (R. Bhargava ed., Oxford University Press, Delhi, 1998). 28 Ibid.

2. Equality; the argument on this side is the obvious one, that no one should be favoured for their membership of a particular group or community, thus separation becomes indispensable for egalitarianism.29 3. Democracy; the underlying basis of democracy is that power should not be concentrated in the hands a particular group. Integration of religious and the political sphere always has this danger for the simple reason that control of political domain by the religious authorities is more likely to subvert democratic values. 4. Instrumental Rationality; according to this argument, both the practices that are suitable for both the distinct domains should only be adopted and employed. Religion being a deeply private matter, makes it unfit of being governed by the state which essentially uses its coercive power in its operation. Using coercive power of the state in private religious domain cannot be productive. Here, the argument is not of separation of religion and state because weaknesses in the religious sphere but because of the compelling, coercive public sphere. 5. Argument of an ordinary life;30 this argument states that the core aim of the state is to provide for the minimalist material needs of the people to ensure a decent standard of living. The notion of ordinary life is to be distinguished from a life which aims at the achievement of certain high values, ‗ultimate ideals‘31. Since ultimate ideals of people are subjective and conflicting, these should be expunged from the domain of the state matters.

Though Bhargava relies on the argument of an ordinary life as the underlying basis of what he terms ‗political secularism‘, in my opinion, all these reasons, though in different degrees, form the basis of separating the state from the religious domain and thus form the concrete basis for secularism. Before carrying further the analysis of what secularism largely means or what sort of characteristics every model of secularism must necessarily possess, it would be purposeful to raise some pertinent questions on the nature and extent

29 See generally M.Walzer, Liberalism and the Art of Separation, in POLITICAL THEORY 315-330 VOLUME 13, NO.3, AUGUST 1984. 30 Bhargava bases his argument of ordinary life on the notion as described by Charles Taylor, SOURCES OF THE SELF, Part 3, (Cambridge University Press, 1989). 31 Ibid

of separation between the religious and the political spheres. Moreover, extreme criticism which even rejects the legitimacy of secularism as a concept of any utility in non-Western societies needs to be understood and analyzed. Much of the criticism seems justified though the arguments in support of such criticism might be stretched too far many a time. Analyzing the nature and extent of separation would help in looking at the criticism in the right perspective and also in finding a solution for the modern problems that have arisen in polities having a close link with their cultural traditions.

2.3 What does separation entail? The different forms of separation as understood from the different secular polities existing in the world today are:

1. Separation which implies complete exclusion 2. Separation implying distance, but not complete exclusion

In the mutual exclusion form of separation which essentially Smith32 has talked about, the state remains totally segregated from religious matters, especially from every form of positive interference in the latter. Varying from case to case, the state may just be aloof and act as a stranger to all the religions or it may actively discourage religion. The former represents the non-interventionist form whereas the latter represents the interventionist form of exclusion. In the interventionist form, there is generally a perceived sense of mutual hostility between the two. Whereas in polities having a large share of the non- interventionist form, the view is that any interface between religion and polity would only corrupt or contaminate politics. Therefore, in order to maintain its purity, such a state tries to remain a complete stranger to the religious affairs. Here, secularism represents what Bhargava calls ‗a doctrine of political taboo‘.33 The second form generally denotes the non-preferential approach. France would be a classic example of this second form where distance between religion and state is maintained as a matter of course but the state

32 Supra note22. 33 Ibid.

always can intervene to exert its authority and direct control over religion, only to subvert it.34

2.4 If separation is necessary, to what extent? Not all polities are the same. They differ in terms of their cultural traditions to a significant extent. As the cultural mores and values differ, so do their political and democratic principles and practices. Marc Galanter writing (and his criticism of Smith‘s criterion of a secular state) seems to reflect this point. His argument is that secular theory is in itself inadequate and being undergirded only in the West, it needs to be reformulated so that it has more than merely parochial value.35 This is the underlying basis for making an enquiry of this nature. The deeper questions that arise here are whether separation is possible or required and, if required, then what are the justifications for it.36 Another crucial question is after the separation of the two spheres, do they overlap? Or should there remain some link between the two? If yes, what should the link be and how should they interact or relate to each other?37 On the question of whether it is possible for the political and religious spheres to be completely independent of each other, I believe the answer varies from culture to culture, region to region. Even Smith who seems to have relied on the Western ‗wall of separation‘ model of secularism acknowledges that complete separation and independence of the religious and political domains from each other is not possible.38 Even in US, complete religious liberty cannot be ensured. In the present day context, many states have sought to deliberately keep the two spheres completely excluded from each other. The examples of Turkey and France would be relevant in this regard. Whereas in Turkey, an unprecedented form of secular state in an unenviable manner was created, France seeks to follow a model where religion is confined to an extremely private, personal sphere of individual life. These states constitute appropriate examples of the states increasingly claiming to keep the two spheres completely separate from each other. Whether they were so in the past is a completely different question. However, the histories of these two states seem to have

34Rajeev Bhargava, States, Religious diversity, and the Crisis of Secularism, 22 March 2011, https://www.opendemocracy.net/rajeev-bhargava/states-religious-diversity-and-crisis-of-secularism-0 35 Supra note 23. 36Supra note27. 37 Ibid. 38 Supra note 22.

influenced the choices they have made regarding the form and manner of applying the ideal of secularism to their polities. Moreover, this practice in my opinion does not go a long way and does not provide a universally applicable model of secularism (not that I attempt to devise a universally applicable model). Scholars largely agree and rightly so, that at least in the sub continental cultures, it is very difficult to separate the religious sphere from the political.39 With respect to the question whether the separation between the two spheres is required, I opine that in today‘s world, to a large extent such a separation is essential. But in what manner this separation is achieved becomes the deciding factor as to what course the polity would take. In the later part of my writing, I will elaborate as to how and why the method of separation of the two spheres becomes crucial.

The general implication of a state claiming itself as ‗secular‘ is taken as the absolute separation of the public sphere from the religious one. But from the available data of different states, it is learnt that a complete separation of religious matters and practices from non-religious ones is neither necessary nor practicable. In this sense, it will only be a misconception to consider merely those states as secular which have an absolute separation between religion and the state. Absolute separation or complete non- interdependence is in my opinion only a futile goal, even for those states which are on the road to achieve such a goal.

Certain factors can help in deciding in what spheres the state and religion need to function completely independent of each other and where they can exert influence over each other. This would also help in developing a conception of secularism that does not seem adverse to the interests of deeply religious individuals and communities, for whom religious values matter far more than the ultimate objectives and ideals of the state. Moreover, the misconception (if it can be called so) that secularism makes the position of the believers and people identifying with religion inferior and subordinate to those identifying largely with the national identity can also be clarified.40 These factors seem

39 Ibid. 40Ashis Nandy, in his famous work, ‘The Anti-Secularist Manifesto’ has claimed that the process of modern westernization is trying to increasingly secularize the society. One of its implications has been of limiting the political personality of the religious-believer in the democratic process.

to find a reflection in the Indian Constitution where religious liberty has been made a fundamental right. Even collective right of religious autonomy has been incorporated in the Indian Constitution. These rights have been incorporated with certain limitations, restrictions which seem justified and indispensable in any polity, more so in India (in light of its diversity). The guiding factors for such a separation would be the functions, such as those of administration and management, which the state is better equipped to perform. To ensure the freedoms which the state has guaranteed under the Constitution, the state has to necessarily undertake some affirmative obligations. For example, funding of establishing educational institutions of minorities who are not under the capability to do so would justify the state interference. This makes religious intervention permissible to the required extent. I have addressed this issue in detail in the next chapter which deals specifically with secularism in the Indian context.

CHAPTER 3

SECULARISM IN THE INDIAN CONTEXT Through this chapter, I seek to focus on some of the problems that have arisen in India as a result of the interplay of religion and state. Mostly, these problems, namely, religious fanaticism, fundamentalism, and communalism are home-grown. These problems have arisen as a result of the attitude of ignorance, not just by political leaders but also by the intellectuals; political scientists, legal scholars and jurists alike. Secularism, being contextual in nature, required being dealt with according to the needs of the changing times. The problems mentioned above are a result of the misconception and non- contextual applicability of secularism which failed to provide the reinforcement that it required both as a normative doctrine and a value-based idea. Every idea needs nurturing and tender care. If not nurtured and cared at the appropriate time and in the required manner, it slowly dies its natural death.

What I seek to put through this paper is that, though going through a bad phase, Indian secularism has never been per se a bad, meaningless and purposeless idea. Though having started on the right track, something seems to have gone wrong. This is reflected through the evolution of the ancient Indian culture, the Constituent Assembly debates and finally the provisions of the Constitution itself.

In the beginning, I bring into focus some of the allegations made on the workability of secularism in India and then move towards the characteristics that Indian secularism has always possessed. To substantiate my point, I put forth some of the reflections of the Constituent Assembly Debates, cite the pertinent Constitutional Provisions and also contrast them with countries like the USA, which have served as a model for India but not entirely. To the extent there is similarity between Indian secularism with these other forms (particularly the US model), it substantiates and provides strength in its favor. To the extent there are differences, it just leaves room for the distinct Indian religious traditions to develop independently in their own manner. Here, neither the claim that Indian secularism curtails religious liberty and throws religious ideals and values out of

the public domain nor the one that states that Indian constitution allows too much state intervention, making it paradoxical to the true idea of secularism itself, would be the right one to make.

3.1 Does secularism in the Indian context seem to be losing its ground? In the Indian context, a new stance on ‗secularism‘ seems to be gaining increasing ground. Popular Scholars who seem to be taking this new stance, like Ashis Nandy and T.N. Madan, are of the opinion that secularism has largely failed in the Indian scenario. They seem rather hopeless about the future of secularism in India and feel that there is a need for an alternative to the concept of secularism. The underlying basis behind their claim is that secularism is increasingly being equated with the absolute separation between the religious and the political spheres or with the maintenance of strict neutrality and an attitude of indifference of the state towards the religious affairs. As a result of this understanding being popularized, the Indian state seems to be on the path to secularize the society which hitherto has been deeply religious.

Ashish Nandy holds the view that secularism as a normative concept is failing not just in India but in countries like Soviet Russia, France, etc. which India earlier looked up to and which seemed to be quite ahead of India as far as political development was concerned.1 In the beginning of his widely discussed work ‗Anti-Secularist manifesto‘, Nandy divides secularism into two types; (i) the secularism which is more common to the western world and which increasingly reflects the modernist version of the term, he perceives this form to be the opposite of ‗sacred‘. This form of secularism necessarily devalues religion in the public sphere and aims at freeing of politics from religious values.2 Nandy uses the term ―official secularism‖ for this form as applicable in the modern context in India. (ii) The second type he classifies as the Indian version of secularism, which is the opposite not of ‗secular‘ but of ―ethnocentrism, xenophobia and fanaticism‖. This version has as its underlying basis, the respect and tolerance of all religions. It was largely prevalent for a long time but has now started to fade, especially with the advent of modernization. Nandy‘s stance is that the democratic forces in India in the present day are forcing one to

1 Ashis Nandy, An Anti-secularist Manifesto, INDIA INTERNATIONAL CENTRE QUARTERLY 35-64 VOL. 22, NO. 1, SECULARISM IN CRISIS (SPRING 1995). 2 Ibid.

choose from among the two forms. Put forth in a more straight forward manner, there is not much choice left and people are being compelled to align towards the former Western model. However, as Bhargava claims, the increasing attitude in India is that of seeing everything and everyone as divided into either Western modern or indigenous traditional.3 Seen in this background, it is not completely clear whether it is the forces of modernization which have taken over or is it the prevailing miscomprehensions relating to the concept of secularism.

Nandy explains his point further. At the time of the framing of India‘s constitution, Indian political leaders were aware that the European concept of Church-State separation could not be copied in the Indian context. India was largely unaware of the church-state separation debate. As India adopted and strived increasingly towards the idea of modern nation-state, it also moved towards the European conception of secularism. This was because the nation-state formation had as its basis the separation of church-state.

Firstly, the positive impact of religious values on politics has been curtailed in the name of secularism, where the discourse between the private and the public has been curbed. Secondly, the political identity of people has been curtailed and this has been done in the name of democratization. Thirdly, religious people have been subordinated in the political sphere with the promotion of western scientific rationality.

The main contentions that Nandy has against what he calls ―official secularism‖ (that is secularism of the Western modernized form) are: (i) that official secularism compares the ideals of modernity with realities of religions and cultures, (ii) it tries to limit the democratic process by truncating the political personality of the citizen and (iii) it is insensitive to the cultural beliefs of the religious people. He further states that what has started being done in India is that instead of making a religious use of politics, a political use of religion is being made. While people, in the pursuit of modern democratization are seeking to shed their ethnic consciousness, they remain attached to it deep down.

3 Bhargava, The Distinctiveness of Indian Secularism, in THE FUTURE OF SECULARISM 20-53 (T.N. Srinivasan ed., Oxford University Press, Delhi, 2006).

While the concerns raised by Nandy are not unjustified and unreasonable, the argument that Nandy has made against the idea of modern nation-state and the problems that came along with it seems to be stretched a bit too far. Akeel Bilgrami holds the view that such arguments against what is popularly referred to as Nehruvian Secularism are ill- configured. 4 Bilgrami‘s take on the issue of ‗modernity‘, rather anti-modernity in the popular debates of today is commendable. He opines that terms such as ‗modernity‘, do not come under categories which would help in furthering the understanding of political and cultural concepts and therefore, a ―moratorium‖ should be placed upon them.5 In my opinion, this is the right approach to take as focusing on the debate of modernity and the adoption of the idea of nation-state along with all that it brought with it, sometimes renders the a meaningful exercise a futile one.

3.2 Is secularization of the Society a necessary implication of secularism? In an indigenous and traditional society or a society which is evolving from such a state, it becomes essential that its values and ideals are taken care of. They should be neither subverted nor undermined, particularly if they do not wrongfully affect the interests of others. Nandy has quite relevantly made a distinction between the tolerance of the state and that of the society. His claim is that tolerance of state does not ensure tolerance of the society and without the latter; the state cannot go very far. He also states that though the secularization of Indian state has gone far but still there are limits to the extent to which it can secularize the Indian society. What these assertions essentially imply is that there is only a limit to which the principles and ideals of the state can be imposed upon the society, especially when this is done to uproot the long held ideals of the society.

Thus, the view that modernist forces in India are increasingly seeking to secularize the society and the concern that it has some serious adverse consequences is not a misplaced one. Empirical data available substantiates the argument made. However, the argument cannot be substantiated in its entirety. Firstly, though not wrong, it is based on a misconceived notion regarding the understanding as well as workability of secularism in

4 Akeel Bilgrami, Secularism, Nationalism and Modernity, in SECULARISM AND ITS CRITICS 380-81 (R. Bhargava ed., Oxford University Press, Delhi, 1998). 5 Ibid.

the Indian scenario. In my opinion, these assertions can be taken as reasonable and justified only when they are given as arguments asserting misinterpretation and misapplication of secularism in India. Such arguments cannot go so far as to justify an alternative to the very idea of secularism. Indian society is, and can remain as deeply religious as it desires to be. Such a position would also come with its own limitations which I will discuss in a later part of this Chapter.

Some further points will help in clarifying the above issue of non-necessity of secularization of the Indian society. Firstly, as is evident from the Constituent Assembly Debates, ‗separation‘ in the Indian context never implied complete exclusion of religion from the state.6 Here, a point which I made in the earlier Chapter on the extent of separation needs to be reiterated and elaborated upon. Though a broad understanding of secularism implies the separation of organized religion from organized state, it is not the only way to look at it. The perspective needs to be broadened. The separation can take multiple forms, depending upon the scenario and the cultural context of the society one is talking about. The fact that there has to be a relationship between the state and religion is not disputable. Though usually this relationship entails complete exclusion and/or non- interference, the form of relationship cannot be confined to a fixed type. On this point, Bhargava states, ―just as without separation there is no secularism, just so a value-less separation does not add to secularism‖.7 Therefore, it can be stated that there is no given manner in which the values of secularism have to be conceived. Secondly, the substantive values which form the very essence of secularism cannot be lost sight of. Though the culture and polity of the West have differed (since pre- historic times) substantially from that of the East, it cannot be forgotten that secularism arose in a particular context in the West too. And that context gives some considerable credence to the doctrine of secularism.

Considering the above two factors; that secularism never implied complete exclusion in the Indian context and that there are substantive values which form the very core of secularism, it cannot be summed up that secularism necessarily implies secularization of

6 Constituent Assembly Debates (Proceedings), Volume VII, Tuesday, the 7th December, 1948. 7Supra note 3.

the society. Bhargava states, ―Secularism is compatible with the view that the complete secularization of society is neither possible nor desirable‖.8 How we define ‗secularization‘ would also help in coming to a conclusion about this issue. Secularization has an element of compulsion whereas secularism does not. Bilgrami explains this point well. He distinguishes ‗secularism‘ from ‗secular‘ and ‗secularization‘, stating that ―secularism is the name of a political doctrine‖. He further states, ―unlike the term secularization, it [secularism] is not so capacious as to include a stance against religion that requires redirection of either personal belief or, for that matter, any of a range of personal and cultural habits of dress or diet or…Thus it is not a stance against religion of the sort that atheists and agnostics might wish to take..‖9

From the above, it can be concluded that secularism has to be viewed with an independent perspective and as having it own core values. It needs to be distinguished from secularization and understood as well as applied in a broader sense.

3.3 Why secularism became necessary in the Indian context? Bilgrami defines secularism as a normative position which has two conflicting components that need to be balanced: (1) being a normative position, secularism represents an ideal (2) such an ideal needs to be studied and conceptualized in its historical context. 10 Therefore, in comprehending secularism in the Indian context too, history becomes important. This is because it gives an idea of the circumstances under which secularism originated and the sort of problems it was meant to address. This necessarily implies that the applicability of secularism is very context dependent. This point needs elaboration in the Indian scenario.

In India, the trajectory of secularism can be traced by considering Gandhi‘s views on relevance of secularism to the Indian society. As pointed out by Bilgrami, Gandhi‘s opinion was that Indian society was politically and culturally very different from that of the West where ‗state‘ was centralized. The centralization of ‗nation-state‘ in the West

8 Rajeev Bhargava, What is Secularism For? in SECULARISM AND ITS CRITICS 487(R. Bhargava ed., Oxford University Press, Delhi, 1998). 9 Akeel Bilgrami, Secularism It’s Content and Context, in SECULARISM, IDENTITY, AND ENCHANTMENT (Harvard University Press, 2014). 10 Ibid.

and the increasing force of the closely linked concepts of ‗citizenship‘ and ‗nationalism‘ in the Western society had made the need of ‗secularism‘ indispensable there. As against this, the diverse and pluralist society in India (though facing some of its own socio- cultural strains and problems) was largely tolerant and religiously and culturally synergetic. Therefore, for Gandhi and justifiably so, there was no reason to adopt the concept of secularism in India. Gandhi could foresee the result of reviving Hindu nationalism employed as a means to mobilize the masses in the struggle for independence. The natural result was the division of Indian society into majority and minority communities on the religious lines. This resulted in the threat of majority dominance and the inevitable implication of minorities becoming defensive. This is how the seeds of secularism were sown in India and the multitude of diversity in India makes the need for affirmative state intervention indispensable. A necessary demand of this majority-minority division was of a radical policy being devised and implemented by the state to resolve the majority and minority conflicts that would now time and again arise. In its adoption of such a radical policy, the state could either take the stance of maintaining indifference or neutrality towards all religions as mentioned by Taylor11 or to positively intervene in religious affairs as and when the need arises. The latter is majorly the stance taken by Bilgrami. I find Bilgrami‘s stance to be more justified and reasonable for the simple reason that it does not demand ‗indifference‘ of the state. Indifference, in my opinion, firstly, has a negative connotation and in graver forms might even start implying hostility between the state and religion. Secondly, indifference is not always possible to be maintained by the state. To elaborate, in every polity having religious diversity, there inevitably and necessarily arise circumstances where state intervention becomes indispensable. The problems arising in the French form of secularism (for instance, the burqa ban) and the ambiguity resulting from the US non-establishment clause exemplify the second point. The point would be reinforced by the words of Justice Frankffurter, in the concurring opinion in the case of McGowan v. Maryland12;

11 Charles Taylor, Modes of Secularism, in SECULARISM AND ITS CRITICS 32-33 (R. Bhargava ed., Oxford University Press, Delhi, 1998); Supra note 9. 12 McGowan v. Maryland, 366 U.S. 420, at 461-462 (1961).

―As the state‘s interest in the individual becomes more comprehensive, its concerns and the concerns of religion overlap. State codes and the dictates of faith touch the same activities. Both aim at human good, and in their respective views of what is good for man they may concur or they may conflict. No constitutional command which leaves religion free can avoid this quality of interplay.‖

From the above, I have tried to make a case that: i. Secularism in India was not required at the time of Gandhi but the change of political and social circumstances made it a requirement in the Indian context as well ii. Positive state intervention is generally required and more so in the case of radically diverse societies like India.

3.4 Why secularism in the Indian context does not need an alternative?

While some of the claims made against secularism in the Indian context largely seem to be justified, one thing which seems less clear is that of finding an alternative to secularism. In today‘s scenario, finding an alternative to secularism does not seem to be a viable option. Here, I would like to delve upon why secularism does not need an alternative and how in the Indian scenario it remains a workable concept even in the modern times. It would be purposeful to look at the different forms of secularism that Bhargava talks about. These are relevant because they point out the different underlying bases of secularism which help in broadening the scope for its applicability and understanding the true reasons that are in support of its applicability. Bhargava classifies secularism into three broad categories:

1. Ethical Secularism 2. Political Secularism 3. Contextual Secularism

Ethical secularism implies secularism based on high ideals which individuals hold as an integral part of a meaningful life, for example, equality, autonomy and democracy. The main aim of separation of religious and political spheres in this form of secularism is the attainment of these ‗ultimate ideals‘. However, one problematic aspect of Ethical

Secularism is that the fundamental ideals vary for different individuals and communities. This would make reaching of a consensus and living together harmoniously of people with different value systems impossible.

In political secularism, the main aim is attainment of an ordinary basic standard of life for all and ensuring a minimum of what makes for a decent and dignified life. It is not based on any values and ideals which individuals hold dear to them and cannot compromise upon. Since it is not based on values which vary, it is more practicable to be achieved.

The third form of secularism has been formulated by Bhargava specifically for the Indian scenario and he calls it ‗contextual secularism‘. This form has been discussed in detail in a later part of the Chapter.

The point why I have sought to explain the above two forms of secularism as classified by Bhargava is to emphasize why even without relying upon ethical ideals, a strong case for secularism exists. The point why secularism is essentially being questioned in today‘s context is because it does not appeal to the value systems of all. It rather compels individuals to fit in. On this point, Bhargava‘s opinion is that if people are generally assured that there‘s no one particular ideal which will dominate the political sphere, then everyone would be willing to restrict the scope their ideals to a certain extent. He further states:

―Secularism can be delinked from ethical conceptions and given a purely political character. If the state does not take upon itself the task of improving the quality of autonomous living or making people less and less dependent on what is widely believed to be cognitively false or illusory, it not unlikely that believers will easily put up with it.‖13

13 Supra note 8.

3.5 Whether Indian secularism can be considered a Distinctive Model?

3.5.1. Indian constitution incorporates the right to freedom of religion taking care of India’s peculiar circumstances The main source from which religious autonomy originates in India is the Indian constitution and the right to freedom of religion in its multiple dimensions is imbibed in the Constitution. The Indian constitution has made elaborate provisions for both; ensuring the free exercise of religion as well as abolition and checking of social evils and discriminatory practices of all sorts. One characteristic feature of the Indian Constitution is that it not only provides religious freedom to the individual in furtherance of his personal liberty and autonomy but also provides him ‗freedom from religion‘, which ensures that religion does not become a means to subvert the autonomy, liberty or dignity of the individual in any manner whatsoever. 14 Prof. P.K. Tripathi succinctly describes Indian Secularism in the following words:

―The principle of giving primacy to the individual, placing him before and above religion, and recognizing freedom of religion and of religious denominations as incidental only to his well-being and to a general scheme of his liberty is a distinguishing feature of Indian secularism. Conjointly with the principles of tolerance and equality, also incorporated side by side, it embodies our constitutional philosophy regarding religion.‖

Articles 25 and 26 of the Indian constitution lay down the substantive law regarding freedom of religion in India. Article 25 of the Indian Constitution incorporates the right to freedom of conscience, and free profession, practice and propagation of religion. Article 26 incorporates the freedom to manage religious affairs.

Article 25 states:

(1) 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 to freely profess, practise and propagate religion.

14P.K. Tripathi, Secularism: Constitutional Provision and Judicial Review, http://14.139.60.114:8080/jspui/bitstream/123456789/680/12/Secularism_Constitutional%20Provisions.pdf .

(2) Nothing in this article shall affect the operation of any existing law or prevent the state from making any law- (a) Regulating or restricting any economic, financial, political or other secular activity which may be associated with religious practice (b) 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.

Explanation I- The wearing and carrying of kirpans shall be deemed to be included in the profession of the Sikh religion.

Explanation II-In sub-clause (b) of clause (2), the reference to Hindus shall be construed as including a reference to persons professing the Sikh, Jaina, or Buddhist religion, and the reference to Hindu religious institutions shall be construed accordingly.

Article 26 states:

Subject to public order, morality and health, every religious denomination or any section thereof shall have the right-

(a) To establish and maintain institutions for religious and charitable purposes (b) To manage its own affairs in matters of religion (c) To own and acquire movable and immovable property; and (d) To administer such property in accordance with law.

Thus, while Article 25 recognizes the individual‘s right to religious freedom and autonomy, Article 26 recognizes the right of religious denominations and sects to establish institution and to manage their own religious affairs. This right cannot in any way be said to be abridging the secular ideals in the Indian context. Even when looked at in the light of D.E. Smith‘s concept of secularism (as was discussed in the first Chapter), the individual rights that Smith talks about can be extended to include community or group rights to religious autonomy. This, in no way, can be to subvert the secular goals of the Indian constitution. In fact, the Article is only in furtherance of one aspect of secularism, ensuring religious liberty, which in Indian context includes not just the ‗freedom to conscience ‘, but also ‗free profession, practice and propagation of religion‘.

In fact, because of the social evils which had prevailed in the past, the communities which had remained disadvantaged have been given special protection and promotion under the Indian Constitution. This is explicit through Article 15 of the Indian Constitution which though prohibiting discrimination on the grounds of religion, race, caste, sex or place of birth allows for an exemption under the clauses (3), (4) and (5). The exemption gives the power to the state to make special laws for women, children, and socially and educationally backward classes and for the citizens of Scheduled Castes and Scheduled Tribes. The state can also make such special provisions for the advancement of these sections (Schedules Castes and Scheduled Tribes or educationally and socially backward classes) as relate to their admissions in private educational institutions irrespective of whether these institutions are aided by the state or not.

Moreover, taking care of India‘s great diversity, the framers of the Indian Constitution were circumspect enough to bring within the ambit of the constitution the protection of minorities. Article 29 and 30 of the Indian Constitution provide for the ‗protection of interests of minorities‘ and ‗right of minorities to establish and administer educational institutions‘. While the term ‗minorities‘ is used in the marginal note of Article 29, it is not used in the text of the Article. The words used are ‗any section of the citizens residing in the territory of India‘. Thus, even majority can be included within the ambit of ‗any section... ‘.15

The scheme of Indian secularism is woven through the above articles in the Indian Constitution. While to outsiders who are not familiar with the way cultural and religious traditions have been practised in India and the value they hold for the Indian and the value they hold for individuals, the articles might seems somewhat dubious. However, any one well versed with Indian culture would see only value in them.

In the following paragraphs, I have described briefly the US model of secularism and tried to draw a contrast between the US and the Indian forms of secularism.

In the modern times, the model of US state secularism is treated as the ideal type in countries worldwide. Therefore, it would be pertinent here to draw on some of the

15 Ahmedabad St. Xaviers College Society v. State of Gujarat, AIR 1974 SC 1389.

developments in the United States and later contrast them with the Indian form. The beginning point should be the First Amendment to the US Constitution which stated that ―Congress shall no law respecting an establishment of religion or prohibiting the free exercise thereof‖. The two prohibitions imposed by the Constitution on the Congress, namely the ‗free exercise of religion‘ and the ‗non-establishment‘ of it (widely known as the ―free-exercise clause and the ―non-establishment clause‖ respectively) lay down the gist of the US law on secularism. The non-establishment clause is seen as a distinctive characteristic of the US secularism and can be understood in the context of the colonialist history. That was the time when religious persecution was happening on a massive scale and the colonialists could find in the newly colonized territories the freedom to exercise their own religions. Obviously, the newly formed state could not risk the horrors of history from being repeated and this precautionary approach was manifested in the First Amendment.16 The non-establishment clause was metaphorically expressed by Jefferson as intending to erect ―a wall of separation between the church and the state‖17.

The following statements from the important judgments would make the scope of the free-exercise clause and the non-establishment clause clear:

 Everson v. Board of Education

In this case, the meaning of the establishment clause of the first amendment was made clear holding that ―the ‗establishment of religion‘ clause of the First Amendment means at least this: Neither a state not the Federal Government can set up a church. Neither can pass laws which aid one religion, aid all religions, or prefer one religion over another‖.18

16 Supra note 14. 17 Thomas Jefferson's letter to the Danbury Baptist Association in 1802, U.S. Library of Congress. Retrieved 2006-11-31. 18Everson v. Board of Education, 330 U.S. 1 (1947); Abington School District v. Schempp, 374 U.S. 203 (1963).

 Engel v Vitale

In this case, the underlying basis of the non-establishment clause was explained as: ―Its first and most immediate purpose rested on the belief that a union of government and religion tends to destroy government and to degrade religion‖.19

The Indian constitution has largely treated the US model of secularism as an ideal one. At least for a long time and sub-consciously, this has been so. However, India did not borrow its secularism model lock, stock and barrel from the US. Prof P.K Tripathi also opines that, not completely imitating the US version, as was sought by some of the members of the Constituent Assembly, has only helped the Indian case. This is because even the US conception has its own share of problems and the two clauses seem to be giving rise to a lot of ambiguity and difficulties in interpretation as well as application. Firstly, the non-establishment clause has ―tended to inhibit legitimate state activities merely because of their possible tendency to aid religion‖. The interesting thing is that these activities which are inhibited by the state are of a harmless, moral nature. From an Indian perspective and in the Indian context, these same activities would be considered very natural, welcomed and unquestionable on this basis. Secondly, an implication of inhibiting the activities which are undertaken in furtherance of the exercise of religious beliefs and practices is restraint on the ‗free exercise‘ of religion and thus a violation of the ‗free-exercise clause‘ of the First Amendment of the US Constitution.20 The implication is better expressed by Justice Stewart in his dissenting opinion in the case of Abington School District v. Schempp, ―.A refusal to permit religious exercises thus is seen, not as a realization of state neutrality but rather as the establishment of the religion of secularism, or at the least, as government support of the beliefs of those who think that religious exercises should be conducted only in private.‖21

The majority view in the US seems to hold that the state should remain completely segregated from the domain of religious affairs. However, as far as Indian constitution is concerned, it borrowed from the free-exercise clause of the US Constitution but remained

19 Engel v Vitale, 70 U.S. 421 (1962). 20 By the Fourteenth Amendment to the Constitution of the United States of America, the First Amendment has been made applicable to the states also. 21 Supra note 18.

free from having any influence of the non-establishment clause. There are two main reasons which explain this: Firstly, Indians were deeply attached to their ethnic identities. As already stated above, Indian Constitution has taken care of this situation by incorporating minority rights under Article 29 and 30 of the Constitution. Moreover, the socio-religious structure of the Indian society and the adverse impact of the colonial rule on this structure made the adoption of non-establishment clause a completely unfit case for India. This situation has been sought to be addressed by incorporation of different articles in the Indian Constitution; for example, Article 15 which gives the state the power to enact special provisions for children, women, socially and educationally weaker classes, Scheduled Castes and Scheduled Tribes. Secondly, the social evils prevalent in the Indian society had started manifesting themselves in their worst forms during the colonial times and demanded immediate action on the part of the state. The state has again taken care of this situation, for example, through the enactment of Article 17 of the Constitution which abolishes the evil of ‗untouchability‘ in all its forms. Adopting and implementing the non-establishment clause would have meant that the state had no power of social reform. Therefore, Indian Constitution makers, acting in all their wisdom, considered it appropriate to incorporate provisions as suited to the peculiar Indian needs.

However, despite of this distinctiveness, things have gone wrong. Apart from all the safeguards that were sought to be built in the Indian Constitution by its framers, there were problems which arose with the passage of time and which could not have been preempted. These problems have raised questions on the very nature of Indian secularism and have resulted in the propaganda against the applicability of secularism in the Indian scenario. Such propaganda has gained increasing force, albeit amongst only a few sections of the Indian population. How to realize and build upon the nature of Indian secularism and address the apprehensions which have surfaced in the recent times is a crucial issue.

3.5.2 Indian Secularism provides flexible approach to the State This notion of Indian secularism is reflected in the works of Rajeev Bhargava and Akeel Bilgrami. Both of them are of the opinion that India being a deeply religious society with multiple religious communities, the necessity of state intervention as a matter of course

arises to protect certain values of the state (ranging from liberty to equality, etc.). What the two scholars (though in their own different ways) have focused on is ‗contextual secularism‘ which seems appropriate in today‘s context not just in India, but worldwide. By ‗contextual‘, they are trying to imply a sense of ‗contextual morality‘, the common values that the society adheres to, and on which it is bases its model of secularism. Bhargava has relied upon the concept of ‗perfect separation‘ in the American scenario propounded by James Madison, where separation must exist at each of the three levels: (1) Ends (2) Institutions and Personnel and (3) Law and Policy. 22 In the two predominantly Western forms of secularism, represented by the French and the US models, there has to be a separation in all the three spheres stated above. However, in the Indian context, we see that at the third level of law and policy, there is no strict separation. So, in the Indian context, there is no one-sided exclusion as in the French model or complete mutual exclusion as in the US Model.23 Unlike the US Congress, Indian Parliament can frame laws supporting a particular religious community or on religious matters generally. For US Congress, religion is a no-entry zone. The French model is completely different in this context. The spheres of religion and state are separated in France in such a manner that the state can intervene in religious affairs to assert its control. These models are essentially derived from the history of church-state separation and the precautionary approach these states employ to prevent the establishment of religion (church) in any manner whatsoever is strongly reflected in their models of secularism. India, unlike the West has had a history of tolerance and overall cultural harmony in the public sphere. Moreover, the magnitude of diversity in India gave rise its own sort of problems. These problems, with the formation of the modern nation- state, could not be addressed in any other manner but through state intervention. This resulted in India carving out its own style of secularism with its own flexible approach as was suited for the culturally diverse society.

22 Rajeev Bhargava, States, Religious Diversity and the Crisis of Secularism, THE HEDGEHOG REVIEW: VOL. 12, NO. 3 (FALL 2010). 23 Ibid.

3.5.3 The Indian responses to religious issues in the modern world With the advent of modernization and the creation of globalized world order, newer issues appear to emerge everyday in matters of traditions and cultures and the interaction between the different forms of traditions and cultures. Definitely, a lot has changed and a lot seems to be changing on every front as a result of modernization. The question then arises, have we come a long way? Have we really come as far as we wanted to? Or, did we detract somewhere in between? Is modernization itself to be blamed for our present situation? These are some of the issues which came to my mind when thinking about the effect that modernization had in the Indian scenario, especially with respect to secularism. Although, it is not within the scope of this paper to delve into all of these issues, but some analysis can be made so far as ‗secularism‘ is concerned.

In India, stereotyping anything and everything under the category of either ‗western modern‘ or ‗indigenous traditional‘ has become the norm. 24 I believe this is where the problem lies. Not everyone and everything can be painted black or white. Although the critics of secularism sometimes go wrong in basing their arguments on these stereotypes, Ashis Nandy‘s work25 appears to me to hit the point. It cannot even be labeled ‗stereotypical‘ as such. Nandy‘s argument is that the essence of the conflict between the religious and the secular spheres in Asian and African cultures is a result of the four different types of responses that different sections of these communities have towards ethnicity. Nandy has made a remarkable categorization of the four personality types, describing the secularists, the believers and the fundamentalists. The first he calls the ‗western man‘, a fictitious idealistic personality, which is the result of the West‘s success and the Non-West‘s failure. Nandy says that this personality type does not fit in with any of the others. He calls this one a dummy, not because is not present in the Non-West but because they way he is viewed in the Non-West is not how he views himself. This ‗ideal- Western man‘ has a ―managerial attitude towards ethnic and religious divisions‖ inspired ―hot-headed statecraft‖. The Second personality type is that of the ―westernized native‖. This is the one who has internalized the western secular ideals and fought for them. This is the type who reconstructs India‘s history of tolerance as that of secularism and can be

24 Supra note 3. 25 Supra note 1.

in a way said to be in a denial mode in the pursuit of lending legitimacy to western ideals. The ultimate aim of such a personality type is to westernize or modernize indigenous culture. The third type is the ‗zealot‘ who is commonly perceived as the aggressive believer or ‗fanatic‘ and thus feared. He uses his traditional religious values as a means for mobilizing the other religious believers. According to Nandy, he is the one who has acknowledged his defeat at the hands of the West and taken it as his goal to seek revenge, thereby internalizing the Western view. The fourth personality type is referred to by him as the ‗peripheral believers‘ and he states that this is the category generally found in the backwaters of South Asia who believes in living harmoniously with each other. Nandy‘s describes which of the above personality types have enmity or hostility towards one another. However, I have referred to the description of these personality types as responses to ethnicity for a larger reason. The point that needs to be noted here is that of the attitude of the peripheral believers. These are what can be described as the common average Indians, whose response gives an ideal representation of Indian secularism. Being indifferent about the secularism –debate, they are as wary of fanatics of their own religion as those of others. They are the ones who have actually internalized the Indian values of tolerance and unity and diversity and do not seem to be perplexed on account of trivial ethnic issues which seem to ignite a whole spate of riots for the fanatics. The fanatics and the so-called secularists who take either extreme seem to be moving around the Western personality type only.

3.5.4 The distinctive and exemplary aspects of Indian Secularism Rajeev Bhargava has talked about not just the distinctiveness of Indian secularism but also of how the West can learn from some of its characteristic features and cope with the ever increasing diversity in the globalized world order. Elaborating upon his theory of principled distance, he points out some of the distinctive characteristics of Indian secularism as well as some of the new ways of looking at it. In the following, drawing from the theories given by scholars like Bhargava and Bilgrami, I have tried to make a case for Indian secularism also pointing out where it needs to be revamped;

1. Secularism needs to be understood as a ‗multi-value doctrine‘. These values may differ from society to society. The present problems in the Indian context have

arisen because the values on which Indian secularism is based and its purpose seem to have been lost sight of. Thus, the need of the day is to retrieve the value content of secularism.26 2. One of the noteworthy points from Bhargava‘s theory is that of basing it on the distinction drawn by Ronald Dworkin between ‗equal treatment‘ and ‗treating everyone as equal‘. Treating everyone as equal at times might involve unequal treatment to serve the different needs of different people but having an attitude of equal concern and respect for all. As opposed to this, Equal treatment entails giving the same treatment to everyone irrespective of their different needs and situations in life. This situation, as earlier stated, has been very well taken care of by the Indian Constitution (more particularly, Articles 15, 16, 29, 30 of the Constitution ) 3. The conceptual basis of secularism cannot be said to be flawed. The secularism in India is different and unique because of the uniqueness of the way in which the constituent elements are related. This also results in uniqueness in the workability of the concept on Indian soil. 4. Historical developments are pertinent because the very idea of secularism arose in a particular context. Moreover, the predominant conception of secularism has been of church-state separation and of construing religious liberty individualistically. This conception however, is not applicable to the deeply religious and diverse societies of South Asia, middle-east and Africa. Thus, the values on which secularism in these societies is based need to be identified and developed upon. In the modern times, even the West cannot afford to be static about its conceptualization of secularism. Diversity is ever on the increase in the West too and is giving rise to newer issues and conflicts. Emergence of such issues points out that the Western notion of ‗secularism‘ also needs to be revised and reconstructed. 5. One common factor which made secularism seem necessary and required both in the West and South Asia has been that the religious oppression was increasing in both the societies. This resulted in the recognition of the rights of individual liberty and equality. Moreover, the fact that at the time of drafting of the Indian Constitution, though the word

26 Supra note 8.

6. Though the term ‗secular‘ was not used in the original draft of the Indian Constitution, but the substance could definitely be found in the Indian constitution. The Constituent Assembly debates at the time of drafting of the Constitution and the relevant provision illustrate a scheme where separation did not imply mutual exclusion of religion and state. The relation between state and religion was to be one where religious liberty and autonomy was allowed to persons including the promotion of religion but only to the extent as would not harm the larger state interests. 7. Another point of origin of conflict around secularism is the stereotypes that have been created in the Indian society. The individuals generally feel the indispensable need to completely side with one from among the two stereotypes; of the ‗Western modern‘ or the ‗Indian traditional‘.27 Whatever is associated with modernization is considered of Western origin and therefore bad for the indigenous society. Whatever originated and evolved on Indian soil is only considered to be acceptable in the Indian context. Therefore, the critics of secularism in India perceive as going back to the idea of tolerance as a viable option for the Indian society, even as of date. I shall come back to this point later in my conclusion delving upon why secularism, as of today, in India, neither has an alternative nor needs one. 8. A major factor that would broaden the understanding of secularism is of viewing it as a relatively fluid concept. Secularism as a doctrine, is neither timeless not fixed.28 Thus, though the seeds of secularism in India were sown in the colonial times, and the concept has largely been transplanted from the West, but it did not remain the same after the transplantation. It adapted itself on Indian soil, albeit in a way which gave rise to certain adverse effects. There are definitely certain acute flaws in both; the manner in which ‗secularism‘ is being conceptualized in India in the modern day and also the manner in which it is being applied on the Indian soil. The flaws in conceptualization can be said to have had repercussions on its workability.

27 Supra note 3. 28 Ibid.

9. One very relevant thing that Bhargava has stated is of developing a ‗trans-cultural‘ examination of the idea of ‗secularism‘ for a ―rich, complex and complete understanding of secularism‖. 29

Distinctiveness of Indian secularism can be explained in five points as noted by Bhargava:

1. Multi-value character 2. Idea of principled distance that is poles apart from one of mutual exclusion and strict neutrality 3. Commitment to a different model of moral reasoning 4. Allows hostility to religion in certain aspects while promoting active respect in others 5. Helps prevention of inter-religious oppression and intra-religious domination

The point that needs to be clarified is that secularism can no longer be viewed as something relevant only in the Western context. It needs to be looked at and understood in a holistic and contextual manner. People criticizing secularism as having utterly failed in the Indian scenario and of having produced contrary results need to reconsider their position. Instead of debating on the origin of the ‗term‘ and its applicability with respect to a particular society, it would be better to develop an approach which makes it more suitable for the needs of the day. A retrieval and reconstruction of the values of Indian secularism is quintessential not merely because it differs from the West but also because its substantive values have been forgotten and it is being claimed as meaningless and hollow. This is evident from the argument that the critics of secularism give connecting it and holding it responsible for all the problems of modern nation state, mindless industrialization, instrumental rationality, etc.

Therefore, now, the focus needs to be placed upon the cultural practices and value ideals of a wide variety of states instead of confining it to the models offered by a few chosen western secular states. Bhargava states, ―the best practices of nonwestern states such as India‖ need to be learned from. ―Once we do this, we will begin to see secularism

29 Ibid.

differently, as a critical ethical and moral perspective not against religion but against religious homogenization and institutionalized (inter- and intra-religious) domination.‖30

30 Supra note 22.

CHAPTER 4

RELIGION AND LAW IN THE PEOPLE’S REPUBLIC OF CHINA India and China had a distinct, deep cultural past. Both the societies have been deeply attached to their traditions to the present date. While India‘s past cultural and religious practices have been transformed as a result of colonization, China escaped being colonized and China‘s story thus unfolded in its own spontaneous way. In that sense, therefore, the radical changes that Indian tradition had to undergo, China did not. India‘s cultural and religious history during and after colonization is marked by both internal and external crisis and intra-religious as well as inter-religious conflicts. China‘s history, to that extent, wasn‘t one of religious conflicts and chaos. A major factor which explains this, besides history, is that China is comparatively less ethnically diverse compared to India. Thus, a study of religious freedom in China and the interplay of state and religion there, in a parallel context with India, would unfold how religion has been shaped and thrived in the two major societies of the world with deep cultural moorings.

4.1 Is the question of religious tolerance and respect pertinent in the Chinese context?

This question has been raised because in the early part of my work I was doubtful whether secularism is of any relevance in the Chinese context. This was majorly for two reasons, first, China being officially an atheist state and secondly, China‘s population, which one perceives to be homogenous, especially when India is taken as a comparator. This largely explains why instead of naming this chapter ‗Secularism in China‘, I used the title ―Religion and Law in China‖.

Before delving into the issue of religious freedom in China, it would be in point to have an understanding of the demographics and related facts pertaining to the ethnic and religious diversity in China. China has officially recognized 56 distinct ethnic groups, the largest among which is the Han Chinese which constitutes 91.51% of the population. The

ethnic minorities constitute 8.49% of the Chinese population according to a 2010 census.1 The government of the People‘s Republic of China is officially atheist. The authority which is responsible for governing religious affairs in China is the State Administration for Religious Affairs. The state extends its recognition of ―legitimate religions‖ to only five religions; Catholicism, Protestantism, Islam, Buddhism and Daoism.‖ However, the Director of the State Administration for Religious Affairs, Wang Zuo‘an, has stated that these are not the only five religions that the Chinese State recognizes but the most influential five religions in China.2 Moreover, it is generally noted by Scholars that there is no clear distinction or demarcation amongst many religions, mainly, Buddhism, Taoism and localized folk forms of practices. As is evident from China‘s history, the people on an average are not that inclined towards religious faiths and beliefs. A recent survey conducted by an international organization revealed that 61% of Chinese people acknowledged themselves to be ―convinced atheists‖, 29% to be non-believers.3 This partly explains and is turn explained by the promotion and spread of atheism which was significant particularly during the Cultural Revolution in China in the 1960s. But the data on people claiming to be religious believers or non-believers is doubtful and variable. Different surveys and literature portray different statistics and opinions. A specific demographic statistics reveal that between 30 to 80% of the Chinese people are engaged in the profession of some form of local folk religions and Taoism.

Another study conducted by the Yang Fenggang in Beijing in 2007 showed a different result; approximately 58 percent of the people surveyed claimed to believe in no religion or in any spiritual beings, gods, ghosts, etc. However, round about 44 percent of them professed some type of religious or spiritual practices in the last year. These practices widely varied, ranging from church prayers to practicing Feng shui or burning incense or worshipping a portrait at home. Moreover, around 49 percent of these people held religious beliefs in some form for example believing in reincarnation. If these people are

1 National Bureau of Statistics of China, Communiqué of the National Bureau of Statistics of People’s Republic of China on Major Figures of the 2010 Population Census (No. 1), 28 April 2011. 2 Katharina Wenzel-Teuber, People’s Republic of China: Religions and Churches Statistical Overview 2011, Translated by David Streit, statement on the website www.people.com.cn., March 9, 2011. 3 Win.Gallup-International-Religiousity-Index.Pdf, WIN/GALLUP INTERNATIONAL SURVEY, VOP(EOY) 2014 https://www.washingtonpost.com/blogs/worldviews/files/2015/04/WIN.GALLUP- INTERNATIONAL-RELIGIOUSITY-INDEX.pdf.

excluded, the ‗pure atheists‘ would constitute merely about 15 percent of the Chinese population.4

Zhibin Xie opines that it is difficult to provide an exact estimate of the religious believers and non-believers because official statistics do not take into account believers who are part of unregistered religious groups.5 However, what can be safely deduced is that in China, the Hans practice their own local forms of folk religions and the many ethnic minority groups have their indigenous religious forms preserved. These constitute approximately 2-3% of the population. Some of the intellectuals conform to the precepts of Confucianism. Stating that China has only five established religions and is historically constituted of only three religions would not present the complete story. Although during the Cultural Revolution, religious practices declined significantly in China, but after that they resumed. In fact, the Chinese landscape has been characterized with multiple temples, shrines, etc. This lends credence to the assertion that China is a religious diversity and that there a significant proportion of religious-believers, not merely of the state-recognized religions but other faiths too. 6

A noteworthy fact is that religious conflicts have been few in China‘s history. Secularism precisely originated in the West because religious conflicts and persecution took a massive scale and went on for a considerable period of time. As against this, China never had a religious war. Moreover, it is debatable whether China ever perceived ‗religion‘ in the sense it was perceived in the West. This explains why much of China‘s present ideology is Marxist which treats religion as ―the opium of the masses‖, and believes that religion exists to soothe people in their personal lives.7 Despite all this, religion is not completely irrelevant in the Chinese scenario. The very existence of a dominant ethnic majority with various ethnic minorities (practicing their distinctive religious faiths) makes the issue of religious autonomy, tolerance and respect crucial in the Chinese context too.

4 Richard Madsen, Religious Renaissance in China Today, JOURNAL OF CURRENT CHINESE AFFAIRS 2/2011: 17-42. 5 Zhibin Xie, RELIGIOUS DIVERSITY AND PUBLIC RELIGION IN CHINA 72 (Ashgate, Aldershot, 2006). 6 Tam Wai Lun, Local Religion in Contemporary China, CHINESE RELIGIONS IN CONTEMPORARY SOCIETIES 57-58 (James Miller ed., ABC-CLIO). 7 nd K Marx, Contribution to Critique of Hegel’s Philosophy of Right in THE MARX-ENGELS READER, 2 Edn 54 (RC Tucker ed., Norton, New York, 1978).

4.2 To what extent is religious autonomy guaranteed by the Constitution of China or enforced by substantive laws?

To comprehend and grasp the nature of religious autonomy in China, an understanding of some of the political freedoms also becomes essential. The majorly relevant legal provisions are Articles 35 and 36 of the Constitution of People‘s Republic of China (―Chinese Constitution‖). While Article 35 of the Chinese Constitution provides to the citizens the ‗freedom of speech, press, assembly, association, procession and demonstration‘, Article 36 ensures religious freedom to the Chinese citizens. However, none of the freedoms have been institutionally protected in China which has some major repercussions on the exercise of these freedoms.

While Article 36 guarantees religious freedom, it does so within very carefully circumscribed limits. The Article reads:

―Citizens enjoy freedom of religious belief. No state organ, public organization or individual may compel citizens to believe in or not to believe in any religion, nor may they discriminate against citizens who believe in or do not believe in any religion. The state protects normal religious activities. No one may make use of religion to engage in activities that disrupt public order, impair the health of citizens or interfere with the educational system of the state. Religious bodies and religious affairs are not subject to any foreign domination.‖

4.2.1 Restriction regarding granting legitimacy to religions

Though religious freedom is guaranteed as per the Constitution in China, there are Laws and regulations which seriously restrict the scope of exercising religious liberty. One of the major regulations is the ―Regulation on Religious Affairs‖ which was enacted by the State Council in the year 2005.8 The Regulation sets forth strict conditions for establishment of a ‗social organization‘ and thus poses serious constraints on the right to establish and practice religion. Qianfan Zhang states that besides giving legitimate recognition to only five religions, China also has restricted official recognition to only

8Premier Wen Jiabao, Regulations on Religious Affairs (Decree of the State Council of the People‘s Republic of China No.426 , adopted at the 57th Executive Meeting of the State Council on July 7, 2004).

―three self-patriotic churches‖.9 This has led to the growth of many underground and in- house churches which the Chinese government used to ―severely prosecute‖.10

4.2.2 Restriction regarding freedom of expression in religious matters The scope of religious autonomy is also restricted by the strict publication policy of the government. Certain ‗Regulations Governing Publication‘ need to be complied with in case of publications containing any sort of religious matter or information. Here, the fundamental requirement is that the matter does not

 ‗upset harmonious relations‘ between believers and non-believers or ‗ between different religions or within a religion‘, or  ‗propagate religious extremism‘, or  ‗violate the principle of religious autonomy and independence‘.

The strictness of these regulations is ensured by a further requirement of obtaining a certificate of approval before such materials are actually printed and circulated. The effect these requirements have is of posing serious hurdles on the freedom of speech in religious matters.

4.2.3 Direct control and interference in religious affairs

The Regulations on Religious Affairs incorporate the provisions which grant the state the power to exercise complete control over religious matters and to interfere in them as and when the state deems it fit. Under Article 40 of the Regulations, the state can order ‗the halt of religious activities held without authorization‘.11 It has to be taken care that the religious activities do not disturb the public security or social order.

The ‗National Religious Organizations‘ in China include the Taoist Association of China, the Buddhist Association of China, the Islamic Association of China, the Chinese Patriotic Catholic Association, Chinese Catholic Bishops‘ College, Three-Self Patriotic Movement Committee of the Protestant Churches of China, and China Christian

9 These Self-patriotic churches as explained by Qianfan, are those Catholic and Protestant Churches which have accepted the leadership of the Communist Party of China and function independently of the foreign churches, following the three principles of self-governance, self-support and self-propagation. 10 Qianfan Zhang, THE CONSTITUTION OF CHINA, A CONTEXTUAL ANALYSIS 243 (Hart Publishing, 2012). 11 Supra note 8.

Council.12 Thus, only the organizations of state recognized religions have been given the status of ‗national organizations‘. Though on paper, these organizations select their leaders according to their own procedures, generally it is seen that in case of disputes, the state has the power to interfere and get the leaders replaced. This becomes clearer when seen in the light of the fact that under Article 40 of the Religious Affairs Regulation, the state can order halt of large scale religious activities conducted ‗without authorization‘. Qianfan notes that in these types of cases, the states can even direct the organizations to change their religious personnel. Moreover, the registration of the specific group can be struck down under the same Article.

To sum up, the state is empowered to control religious freedom in a direct interventionist manner. It exercises this power by imposing strict legal consequence, for example, deregistration of churches, ordering replacement of persons responsible for the activities, etc. Moreover, a strict ‗registration‘ policy reveals that the control is maintained from a very basic level and not only to curb religious rebellions, riots or demonstrations.

4.2.4 Lack of remedies in case of breach of religious autonomy

Though the Constitution provides for religious freedom to citizens, as already stated, such freedom is largely restricted by the Religious Affairs Regulation. Moreover, such severe restrictions are imposed without providing for any substantive legal remedies to the citizens to claim redress when their freedom is unjustifiably violated. Only administrative reconsideration of the matter is permitted, that is a complaint needs to be filed before the local administrative authorities. Only after the administrative remedies stand exhausted can a judicial remedy be sought. Thus, judicial review as in case of India is not there in China. The four procedural laws of China, Civil Procedure Law of PRC (1991), Administrative Procedure Law of PRC (1989), Criminal Procedure Law of the People‘s Republic of China (1979), and Administrative Reconsideration Law of PRC (1999) do not have even a mention of religious groups or communities.13

12 The Embassy of the People‘s Republic of China in the United States of America, White Paper on Freedom of Religious Beliefs in China, 1997, http://www.china-embassy.org/eng/zt/zjxy/t36492.htm. 13 Zhao Jianmin, LAW AND RELIGION IN CHINA 137 (Wolters Kluwer, 2014).

A case14 would better illustrate to what extent religious autonomy in China has no redress. A civil action was filed against a school of the Sichuan University by a Fujian attorney. The claim was that a passage from a book titled ‘The Philosophical Principles of Marxism’ had a statement- ―religion is in nature spiritual opium for the working people‘. The legal basis behind the claim was violation of Article 36 of the Constitution which prohibited discrimination against religious believers. Though he demanded correction of the text and compensation for the spiritual damage, but his plea was rejected at all the three levels (the court, the superior court and the Ministry).

4.3 To what extent are the spheres of state and religion separated in China?

Article 36 of the Chinese Constitution which incorporates religious autonomy does not explicitly provide for separation of religion and state, but there is a general implicit consensus amongst the government and the academic community regarding such a consensus.15 Bringing in the point of Rajeev Bhargava here that secular states essentially separate the religious and the public spheres not just at the level of aims, but also of institutional framework. They might, however, be pursuing the same policy. Looking at China from this perspective, state interference seems to be the most at the level of institutional framework. The Chinese government has a stronghold not merely in exceptional cases where religion seems to be going a bit too far, but also in cases which appear to be affirmative and harmless exercise of practicing religion and establishing organizations for the better management of religious affairs. In fact, some of the wordings of statute enacted as a precautionary measure appear to use rather vague and ambiguous terminology. The attitude that the state has towards religion is reflected from the Falun Gong movement.

Despite the state relying on communist atheistic ideology, religion continues to play an important role in China in the personal lives of individuals. Citizens are expected to not challenge the ideology of the state. This is the major feature which distinguishes China

14 Wang Yi, The First Textbook Litigation Case in China and the Right to Education, (China Law Info, 15 April 2005), http://article.chinalawinfo.com/article/user/article_display.asp?ArticleID=30025. 15 Supra note 10 at 247.

from other secular states. In other secular states, the essence is that there is no ideology of theism or atheism that the state adheres too. 16 Thus, what can be derived from an analysis of religion and state overlap in China is that the State believes in and abides by atheism. To an extent, there is fear or insecurity of religious beliefs or movements taking over and trying to disrupt the communist state ideology which is now widely accepted by the people, at least in the official sphere. So religion does hold an influence and can be practised to the extent it remains restricted to the private lives with the maintenance of continuity of the state‘s atheistic beliefs and policies. CK Yang makes the picture clearer for us:

―Theistic beliefs remain a strong influence among the people in spite of persistent interference and systematic control from the new faith. The current picture is one both of a new nontheistic faith and old theistic traditions‖.17

To understand further, it would be better to consider a couple of examples.

 Falun Gong Movement

First would be the Falung gong movement. Falun gong has been understood by some scholars as a practice of spiritual cultivation followed in Chinese tradition and by some even as a religion or a religious practice. It is mainly involved in giving moral and philosophical principles and its practices result in improvement of health. It is associated with ‗qigong‘ which broadly covers some spiritual and physical exercises for spiritual as well as physical health, popular among mainly Buddhist sects since older times. Although some forms of the practice have been prevalent before, with the leader Long Zhi, it gained increasing popularity, not just nationally but internationally also. However, sometime in1996, there started building up some tensions between the Communist government and the Falun Gong. Falun gong withdrew from the ‗China Qigong Scientific Research Society‘. Later, the government demanded the Qigong groups to each set up a Communist Department within their organizations. Non-compliance resulted in the escalation of tensions. A campaign was launched to curb the Falun gong movement

16 Supra note 12. 17 C.K. Yang, RELIGION IN CHINESE SOCIETY, 401(University of California Press, Berkley,1961).

nationally. The after effect of the campaign was that people in huge numbers made demonstrations in public places demanding official recognition of Falun gong. However, the enmity kept growing fierce and persecution of the practice was ordered by the then Communist leader Jiang Zemin.

Persecution of those practicing Falun Gong began in 19990-2000 with the launch of the campaign of eradicating the group. There were demonstration and slogans against the group and the group‘s members were imprisoned, tortured, sometime this resulted in death too. The Tiananmen Square incidents are drew particularly wide coverage internationally where during 1999-2001, followers used to go the place peacefully demonstrating against the persecution and supporting Falun gong. The campaign took a bad turn with the Falun gongs books and other publications being burnt, its property being confiscated, website being hacked, etc. The campaign against Falun Gong continued which resulted in abandonment of all forms of demonstrations by the members of the group, including at the Tiananmen Square. As late as in 2014, some of the lawyers were detained and tortured for investigating the abuses inflicted on the group by the government.

On analyzing the developments relating to Falun gong in China; it becomes clear that the Communist ideology is to be held supreme. The major conflict arose when the group was seen as a danger to the Party‘s rule. Otherwise, in its week long lectures which were conducted during the years the group of growing, many state officials had participated, reported significant beneficial effects on health and supported the practice. Such support was one reason that the group grew on such a massive scale. But as it started being against the one-party rule in China, even if impliedly, the state saw it as possessing the huge capacity to go against the state. Even when precautionary approaches did not work, for example non-adherence of the direction of opening up Communist departments within the established organizations of Falun gong and other Qigong groups, the government went up in arms against the group aiming at its complete eradication.

The policy of control, of registration and deregistration of religious groups seems also to have a huge impact on the psyche of the average people. An outsider to the system can just guess in what ways are unregistered groups generally viewed by the public and that

would also decide whether they draw public support or not. However, with massive state control of the sort witnessed through the Falun Gong Campaign, it is no wonder that psychology of fear also works.

Be that as it may, relying on incidents like the Falun Gong alone might result in a narrow perspective. Definitely, events of that nature are to be condemned anywhere. But I believe there is more to the picture. As already stated, the movement had grown very popular even amongst government officials and was gaining huge support throughout China and later in some other parts of the world too. Thus, what can be deciphered is that as long as it is private lives, the Chinese place a great value on spiritual practices and moral principles. But as religion has never been the primary factor behind any governance or ruling force in China and since there have been but rare religious conflicts, religion gaining a force would generally be seen as something unnatural and thus something to be guarded against.

4.4 Can China be said to be largely religiously tolerant?

Despite the stronghold that the Chinese government exerts over religious matters, it cannot be taken as curbing the religious practices and freedom completely. Though to an outsider, it might look like freedom of religion in China is completely curtailed with very minimum scope left for the people to practice it; this is probably not how the Chinese people view it. Firstly, atheist ideology of the government is largely accepted and adhered to by the citizens there. It is a general understanding that the policy is based on the ground that the rights of freedom and equality of non-believers need to be respected as much as those of believers.18 Since there is a danger of propagation or practices only from the side of believers resulting into disharmony and disturbance in public order, religious affairs are kept a check on by the government. This is substantively also explained by the belief of the state in Communist Atheist ideology. Secondly, a characteristic feature of Chinese religious practices is the amalgamation of the three major religions of Buddhism, Confucianism and Taoism. Such an amalgamation comprises of the ―practice of meditation from Buddhism, rules of longevity from Taoism

18 Supra note12.

and Ethical standards from Confucianism‖.19 Thirdly, a distinctive feature of Chinese ideology has to be seen in the light of the precautionary approach that the state adopts to curb religious uprisings and rebellions. The spreading and practice of various religious forms should not have the danger of thwarting the existing government or endangering the set order. To an extent, the control of government at each level implies a fear in the government or its knowledge of the danger that a radical spreading of religion can take. Thus, the government adopts a precautionary approach. The Falun Gong incident can be understood in this context. Another factor which has resulted in acceptability of different religious views and increase in religious and cultural diversity in China is the opening of the state to the outside world.20 This has resulted from Chinese people exploring different cultures and drawing some influence from it, and also from Westerners arriving in China and settling there. Moreover as Zhibin explains, there have been some revivalist tendencies in China in the last few decades majorly because of the dissent some sections of the people have from the established and state recognized religious institutions.

The supervisory and the Controlling Role of the state in matters of religion which has persisted through history, confirms a subordinate sphere that religion occupies in China. However, the characteristic feature of China has been that the lives of people in general are governed much by the moral precepts and principles derived from the main religious traditions; Confucianism, Taoism and Buddhism. Thus, spirituality and moral norms hold substantial value for the Chinese. In this, China differs a lot from the West. But China can be said to be similar to the West on one principal aspect, that which restricts religion to a completely private domain. Religion is something which should heal and develop people spiritually but should not interfere in the domain of the state. This can be explained a bit by the Buddhist, Taoist and Confucianism ideology which hold a strong influence on the present forms of folk religions in China.

19 Wing-tsit Chan, RELIGIOUS TRENDS IN MODERN CHINA, 178 (New York, Octagon, 1969). 20 Supra note 5at73.

CHAPTER 5

A COMPARATIVE ANALYSIS OF SECULARISM IN INDIA AND CHINA At the outset, it would be an interesting exercise to draw some comparisons between India and China on how the two countries have perceived religion and continue to do so in the modern times. Moreover comprehending what governs the distinctive interplay of religion and politics in the two great civilizations can be a purposeful exercise for a few significant reasons. Firstly, in the modern context, increasing weight is being given to the study of the ancient and distinct cultural traditions and legal systems of Asia, Africa and the Middle East. Secondly, comparative law studies in public law field are gaining increasing ground and therefore such a comparative exercise would help in coming to a more sound understanding of the two unique and strong oldest traditions of the world. Thirdly, India and China are being seen as the Asian giants, having majority youth population and being the fastest growing economies in the world today. It would be interesting to see in other fields as well what the distinctive characteristics of the two countries are; where they converge and where they diverge. Fourthly and importantly, as was discussed in one of the earlier chapters, Western secularism itself is facing some problems and is under threat because of ever increasing diversity in the modern globalizing world. This is evident through issues like blasphemy laws, (for example, the ban on the famous novel ‗The Satanic Verses‘), growing Islamophobia, burqa ban, etc. which are arising more in the West than anywhere else. As we are entering a world of ―contested modernity‖91, it would be pertinent to start focusing on the East too (and generally worldwide). Thus, it is time to compare the distinct traditional and cultural forms of the East (for example those that China and India have) with those of the West on a leveled platform.

91 The term has been used by a British journalist and scholar, Martin Jacques in his famous book, ―When China Rules the World: The End of the Western Word and the Birth of a New Global Order‖.

In the beginning, I have described briefly the path that the histories of the two countries traced and how it influenced the constitutions and the politico-legal systems of the two countries. Different religions took birth and became dominant in these two countries at different stages of their history. Though it would not be possible to discuss here in detail this part of the history, but the impact they had in formulating the popular ideologies and moral philosophies is important and thus has been included. As I move forward, based on certain factors, I have analyzed the scope that the major religions in these two countries leave for encompassing the idea of secularism. Since I have used ‗secularism‘ in a broad context, the idea of secularism remains pertinent to be discussed in the Chinese scenario despite the fact that Chinese state believes in Communist atheist ideology.

5.1 Different historical trajectories of the two countries D.E. Smith says that there are four factors which have influenced religion in the South and South East Asia; the dominant religion(s), the nature of minorities, colonialism and nationalism.92 While the former two factors are relevant for both India and China, the latter two are only relevant in the Indian context. India‘s long colonial rule and the consequent nationalist tendencies became a major decisive factor in the evolution of religion in India. Some of the social evils also surfaced and became widely prevalent at the time of independence. In addition to this, the impact of the divide and rule policy and the introduction of communal electorates by the British posed new, unknown challenges. It would not be inappropriate to state that Indian society was left in a weird situation at this time and more so as far as the issue of religion was concerned. Some of the thoughts expressed by the Constituent Assembly members at the time of the Constituent Assembly Debates reflect such a situation. The emotional state of Indians at the time, if described through an adjective, would be better described as ‗paranoid‘. Drafting of the Indian Constitution taking into account all these factors thereby became an unenviable as well as a Herculean task.

As against the long colonial past of India, China escaped being colonized very narrowly. Chinese history has rather been characterized by a long imperial rule, with the reigns of

92 D.E. Smith, India as a Secular State, in SECULARISM AND ITS CRITICS 178-79 (R. Bhargava ed., Oxford University Press, Delhi, 1998).

different emperors. As a matter of course, its history took a different trajectory than India‘s and the problems China faced were of a completely different nature on the religious front. The decisive event in China‘s Constitutional history was the Sino- Japanese War of 1894 where in a single day the gigantic Chinese army was defeated by a relatively miniscule Japanese army. Apart from the Sino-Japanese War, China also fought wars with some Western imperialist powers, for instance the 1840 Opium War with Britain, after which China had to cede Hong Kong to Britain. There were other wars too which compelled China to sign a series of ‗unequal treaties‘. These defeats (and particularly so from Japan)left China with much bitterness and resentment. China was forced to reconsider its situation and reexamine its weaknesses. (China had a much stronger military base and yet was defeated at the hands of Japan). Reexamining their situation, the Chinese constitutional scholars realized that Japan was much ahead of China in its institutional and legal reforms, and a strong Constitution (the Meiji Constitution) was the cause of Japan‘s victory.93This led to the propaganda for constitutional reforms and constitutional monarchy in China. The reformist movement had its own obstructions and did not gain full swing for a long time. However, this marked the birth of Constitutional reforms in China. This would seem more pertinent more when seen in the context of the Confucian ‗Li‘ ideology which was held to be the main cause in China‘s historical defeats like those at the hands of Japan and the Western imperialist powers.

The concept of ‗Li‘ becomes indispensable in understanding the Chinese Constitutional history. Qianfan Zhang characterizes the ―Confucian Li as the social constitution‖ that was operative in the Chinese society for a long period of approximately 2000 years. However, it was because of China‘s early interactions with Western imperialist countries that the weaknesses in the concept of Li, particularly in dealing with the modern society were revealed. The Confucian tradition constituted of ethics and certain moral precepts such as humanity, righteousness, peace and harmony, on which detailed rules governing other spheres were based. In short, there existed a normative system with supreme emphasis being placed on ‗right conduct‘ and the development of ‗virtue‘. However,

93 Qianfan Zhang, THE CONSTITUTION OF CHINA, A CONTEXTUAL ANALYSIS 243 (Hart Publishing, 2012).

there soon ensued a conflict between the rule of ‗virtue‘ as reflected by the Confucian ideology and that between the rule of ‗law‘ represented by the Legalist tradition which grew in opposition to ‗Li‘ during the Warring period in China (77—221 BC). The coming in of the Qing Dynasty struck a major blow to the Confucian ideology deeply entrenched in China till then. This Dynasty made China United under one emperor (Qing Shihuang) and was characterized by persecution of Confucians on a massive scale. This was the time when the ‗Legalist tradition‘ took stronghold in China. This tradition employed strict penal rules and did not believe in ‗virtue‘. However, many of its parts are still said to have been derived from the Confucian tradition. Put simply, ‗Legalism‘ was concerned primarily with ‗realpolitik‘ whereas Confucianism with ‗humanism‘, ‗ethics‘ and ‗virtue‘.

The present model of one party rule in China seems to be a result of the imperialist history of China under the reign of different emperors. Moreover, long and deep prevalence of Confucian ideology and its revival again and again after being shunned from public life reflects how strongly it had become entrenched in the Chinese mindsets. However, Confucianism‘s weakness in statecraft and providing a model for governance is treated to be the main cause of some of China‘s humiliating defeats. That explains why religion, though given importance in personal lives, is completely curbed and curtailed when it starts gaining public force (even if an iota of doubt arises of it capturing the public sphere).

In some ways, the Confucian ideology is comparable to the Indian concept of Dharma. For instance, rules relating to ancestors and relatives, of laying down principles for determining right or wrong, categorizing people into classes on the basis of their moral, social, familial status, age etc can be said to be common to both in some way. However, unlike China, in India, there has not been much resentment towards ‗Dharma‘ of the nature similar to what transpired in China. To explain, Dharma in the Indian context cannot be said to have acted as a causative factor for any major defeat of India as happened in the Chinese context. There were factors other than ‗Dharma‘ and ‗religion‘ that became a cause of India‘s colonization. Rather, ‗religion‘ became an identity issue in India when the British started questioning the Indian traditional set-up. Moreover, though

Dharma lost much of its significance in the societal order with the advent of the modern nation-state, people realigned themselves on religious lines.

Thus, while the Chinese history made religion confined to the private restricted sphere, Indian history can be said to have ‗reinforced‘ the concept of ‗religion‘, albeit in entirely different ways.

5.2 Distinctness of the Asian traditions and compatibility with secularism Much of Asia has been characterized by its own distinct religions, separate from Christianity. The major religions in Asia (especially those relevant for the present discussion) have been Hinduism, Buddhism and Islam. These religions have norms and practices, some of which go in favor of the Western Secularist Model whereas others go against it. A weighing and balancing of these is done by D.E. Smith in his analysis of secularism in the Asian context.94 According to Smith, the five major factors that would make a religion compatible with secularism are;

1. Its conception of History 2. Its tolerance for and acceptability of other religions 3. Its tendency towards institutionalization (building up ecclesiastical organizations) 4. Its historical practices of separation of the political and the religious sphere 5. Its role in governing social life

A comparative analysis of India and China based on these factors has been done below: i. Comparing the dominant religion in India and China will help in analyzing and coming to a conclusion as to whether these two countries are predominantly secular or not. Comparing the first factor, though Hinduism might have placed increasing reliance on the historical narratives of past glory and revivalist tendencies during the pursuit of independence, and is largely based on mythology, it does not place much importance on history to assert its value as a matter of course. History therefore is

94Supra note 92.

not of much importance to Hinduism. Buddhism, Daoism and Confucianism which together constitute religious ideologies of China‘s majority though in distinct forms. ii. The main tenet of Hinduism has been tolerance. In fact, the Hindu philosophy imbibes tolerance to such an extent that critics of secularism have time and again used it as their main argument vouching against the applicability of secularism in India. Moreover, the different Hindu communities and castes and the divergent practices persisting in Hinduism in different parts of India reflect this. As far as the predominant religions in China are concerned, they are focused on the moral precepts, humaneness and right conduct and cultivation of spiritual as well as mental wellbeing. Reliance is placed on different forms of meditation and related practices. Being aimed at spiritual development, these religions are also completely tolerant and acceptable of different religions. iii. Hinduism has never aimed at establishing any central authoritative institution. It has been concerned more with the moral tenets governing the conduct and the social life of individuals, with special emphasis on the concept of ‗duty‘. Though according to Smith, Buddhism has been focused at the creation of Sangha which he compares with the ecclesiastical church, I do not entirely agree with this point. The nature of the ‗Buddhist Sangha‘ is completely different from the Christian Church. Though Buddhism can be said to be a missionary religion, it has a completely distinctive underling basis, aimed at the three fold path where the political sphere is not of much concern. Other religions of China also had more or less similar characteristics. Thus, major religions in both India and China are not oriented towards ecclesiastical establishments. iv. Hinduism has been based on the varna system, segregating the different tasks in the society to be performed by the members of the different varnas. In the early part of its history, this varna system ensured a harmonious and orderly living through division of labour in the society. Its malpractices came to be manifested much later. In China, though Confucian beliefs have had a stronghold during much of its history but the religions themselves have always kept the private and the public lives separated. In the private, the Chinese religions have been aimed at mental and

spiritual cultivation, thereby leaving not much scope for religions interfering in the political functions of the state. v. As far as regulating social life is concerned, it has been Hinduism‘s main concern. In social norms and rituals, the Hindu philosophy is not compatible with maintaining distance from individual‘s life. Since peace, stability, tolerance and harmony with nature are the ideals of the Chinese religions, they only provide for moral norms governing conduct of individuals generally, but they are not concerned with governing the social set up as much as Hinduism does.

Having analyzed the above aspects of the Indian and the Chinese religions, one can come to the conclusion that overall, both the countries have a culture which is compatible with the ideal of secularism. However, the Chinese secularist model can be said to be corresponding to that of Turkey. I say this for a particular reason. Turkey brought about a secular state in 1920s. Although Turkey did not have very viable conditions for establishing a secular state, but as Smith points out, in Turkey only one factor, i.e. nationalism played the decisive role. Turkey after its defeat in the First World War, held the Islamic traditions to be the cause for its defeat. The building up of resentment resulted in the mobilization of people under the leader Mustafa Kemal and in support of its transformation into a westernized secular state, being much influenced by the European culture. In China too, the factor that had played a significant role in religions becoming segregated only to the private sphere was the bitterness of China‘s defeat in the Sino- Japanese wars and other wars with the Western imperialist powers. Moreover, in the Cultural Revolution of 1966-76, the aim was to uproot and throw everything of foreign origin away, people suffered much on the religious front too. Many Churches, Mosques were desecrated and temples burnt by the action of the Red Guards. The massive killings that occurred on the pretext of revival of moral philosophy (which it was claimed that the present government was compromising on account of its revisionist policy) left a lot of resentment and bitterness amongst the Chinese for decades. This is one reason behind the Chinese fear for popularization of religion. Any threat of the sort is out rightly averted by the state.

5.3 Conclusion

The ways the two countries have been influenced and remained attached to their strong rich cultural traditions is reflected in the social lives of individuals in the two countries. Moreover, the government policies and the ideologies of the states also exert a strong influence on the personal lives of individuals. There was an interesting international survey that categorized people into ‗believers‘, ‗non-believers‘ and ‗convinced atheists‘ categories. It revealed that while in China 61% people identified them to be ‗convinced atheists‘, in case of India, 2% claimed themselves to be non-believers. Secondly, in China, only 7% people identified themselves as ‗religious‘, in India 76% people acknowledged themselves to be religious believers.95 These facts do not seem to be completely false. While it is questionable to what extent the picture that these facts portray is true, they do reflect something significant. In China, individuals influenced by religious beliefs in some or the other forms do not openly accept it (another survey cited in the previous chapter revealed that 85% of the Chinese engage in religious practices in some or the other manner). This is somewhat explained by the fact that the policies and ideology that a state adopts as the official one has a huge impact on and comes to dominate people‘s beliefs, mindsets and lifestyles. This process seems to have worked in opposite ways in India and China. While in India, many of the social evils (especially those pertaining to untouchability, caste system in Hindu tradition) seem to have been eradicated by strong provisions in the Constitution, in China people have started shying away from accepting religious sentiments. This is substantiated even further by the fact that there are thousands of places of religious significance in China.

One difference has been that in China, religious forces are kept completely in check and direct control of the state administration, in India, a large amount of freedom is allowed. Both policies seem to have their repercussions. In China, there seems to be growing resentment among the public, firstly after the Cultural Revolution of 1966 and secondly after the infamous Tiananmen Square persecution that continued for long (the Falun Gong movement). In India, the real cause of concern is the increasing fanaticism,

95 Win.Gallup-International-Religiousity-Index.Pdf, WIN/GALLUP INTERNATIONAL SURVEY, VOP(EOY) 2014,https://www.washingtonpost.com/blogs/worldviews/files/2015/04/WIN.GALLUP- INTERNATIONAL-RELIGIOUSITY-INDEX.pdf.

communalism and Hindu revivalist tendencies. Both are a growing cause of concern for the respective countries, which right now do not absolutely seem to threaten peace and stability in the society. But if not addressed in the appropriate ways in time, they might take a rather nasty form.

CHAPTER 6

CONCLUSION AND SUGGESTIONS

In the light of the foregoing discussion I would like to make the following concluding remarks and suggestions.

6.1 Towards a balanced and contextual approach Firstly, it seems questionable and rather futile to debate on terminology. It does not mean that such a debate is over but quite some time in the process of such debate the focus on the substance is lost. Instead of focusing on the usage of the term ‗secularism‘, let us identify, acknowledge and built upon its core values as relevant in today‘s context and advance them.

Therefore, in engaging in the debate of secularism, its contextual focus should not be lost. This is where the work which supports the idea of secularism as well that which goes against it can become meaningful. Indian as well as foreign scholars who have done authoritative work on the relevance of religion in public life seem to agree on the significant role of religion in the lives of individuals in indigenous cultural societies like India. I will clarify and elaborate upon this point further taking an example. Even Donald Eugene Smith who, speaking for his time, supported much the idea of homogenization of personal laws of Hindus and Muslims in the pursuit of making India a fully secular modern nation state acknowledged that Hinduism and Islam had been much more than mere religions.1 They had been ways of life governing the conduct of individuals. Smith based his argument in favour of doing away with this personal legal system based on his belief that the modern nation state was the ideal and the goal that India was justifiably pursuing and that there was no alternative to such a goal.2

1 Donald Eugene Smith, INDIA AS A SECULAR STATE, 265-91(Princeton University Press, Princeton, New Jersey 1967). 2 Ibid.

Elaborating further this point, I believe that the dogmatic approach that we have been adopting towards secularism has caused all the resistance and counter-effects. Instead of conceiving it as a dogmatic doctrine which is diversity-resistant, focus should be on the ideals that are invaluable to the society. Then, it would become clear where the boundary line can be drawn between the religious and the political spheres. Here Akeel Bilgrami‘s stipulation of secularism where he emphasizes upon the principle of ‗lexicographical ordering‘3 or Bhargava‘s idea of ‗ethical secularism‘4 can be taken as the relevant examples. Bilgrami‘s stipulation is that in a society based on religious plurality, secularism would requires that all religious communities would have religious autonomy to the same extent and will be treated equally except when there is a conflict between these practices and the ideals that the society has set for itself and in such a case there would be ―a lexicographical ordering‖ where the ideals of the society would be preferred over religious autonomy or free exercise of religion. Bhargava‘s point of ethical secularism is also based on the realization of some ‗ultimate ideals‘ recognized by the society.

In my opinion, the approach of the above authors was already reflected in the Indian jurisprudence in the post-independence years, although things seem to have gone a bit haywire now. As far back as in 1954, the Indian Supreme Court in the case of RatilalPanchand v. State of Bombay5 held that the right to freedom of religion applied not merely to citizens but also to aliens. Such an extension of the right, Smith notes, seemed quite surprising in the face of the fact that many missionaries were then engaged in the practice of propagation of Christianity among minorities.6 Here, the value of tolerance can be said to be one of the high ideals implicitly recognized by the Indian society. Sometimes, such tolerance might require one community compromising certain of its lesser important rights for the values that another community values much more. For example, in the case of M.H. Quareshi v. State of Bihar7, the question was of the

3 Akeel Bilgrami, Secularism It’s Content and Context, in SECULARISM, IDENTITY, AND ENCHANTMENT 1- 62 (Harvard University Press, 2014). 4 Rajeev Bhargava, What is Secularism For?, in SECULARISM AND ITS CRITICS 488-90 (R. Bhargava ed., Oxford University Press, Delhi, 1998). 5RatilalPanchand v. State of Bombay, 1954 AIR 388. 6 Supra note 1. 7Quareshi v. State of Bihar, AIR 1958 SC 731.

constitutionality of the ban of cow slaughter, the court here upheld the ban on the basis that the Muslim community had the option of slaughtering goats.

Another such reflection is obtained through the provisions incorporated in the Indian Penal Code. Sections 295-298 of the Indian Penal Code criminalize the defiling and injuring of a place of religious importance or disturbing religious assembly when an act of that nature is permitted by the religion of the person engaging in it. Here, the lexicographical ordering can be seen to place ‗public order and morality‘ in a higher position than the religious freedom of an individual.

Through the above examples and statements, I am not trying to glorify the approach of the Indian judiciary or the general attitude which prevails in India. I am aware that there are enough instances which can be cited as a counter to the above. All I have tried to build upon is the position that if a society has some high ideals (even if implied) which it values more than all other values and doctrines, then these can justifiably be given a position superior to these values, or doctrines; one amongst those values which can be compromised in certain situations is religious autonomy.

6.2 On the issue of legal convergence

Another relevant argument that I want to emphasize upon while concluding is that of legal convergence that I mentioned briefly in the Chapter 1. This process has become much popular in the comparative legal studies in the 21st Century. My argument in the context of secularism is to substantiate the point I made in the beginning of this discussion thatany dogmatic approach which we may have been adopting needs to be dropped. Legal principles, concepts and doctrines are not always imposed from one jurisdiction to another but many a time, are adopted because of need and utility.8 Moreover, as is being increasingly understood, differences are also valuable as they help us in enhancing our societal understanding.9 Seen in this light, adopting different

8 R.B. Schlesinger, The Past and Future of Comparative Law, (1995) 43 AMERICAN JOURNAL OF COMPARATIVE LAW 477. 9 ST EsinOrucu, UndeVendit, Quo Tendit comparative law? in COMPARATIVE LAW IN THE 21 CENTURY 1- 18(A. Harding, E. Orucu eds., Great Britain, 2002).

approaches to ‗secularism‘ is only going to help the West and non-West in different ways.

To conclude, I would like to state that in their respective scenarios, China and India can adopt their distinctive approaches to secularism, more importantly towards guaranteeing religious autonomy to individuals and communities as both have incorporated such rights in their Constitutions. This has to be in a way which balances the rights and interests of the individuals and the religious communities without compromising upon the higher ideals that the two states seek to achieve.

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