The way we really are
Religion and law do interact meaningfully in India despite the few controversies, writes Tahir Mahmood.
Among the eight South Asian nations in SAARC, India stands out as a secular country. In the others, one or the other faith has the status of state religion — Buddhism in Bhutan and Sri Lanka, Islam in Afghanistan, Bangladesh, Maldives and Pakistan and, until very recently, Hinduism in Nepal.
Of course, India has its own unique concept of secularism. Neither by law nor in practice do we have a US-type ‘wall of separation’ between religion and state: the two can well interact within constitutional parameters. In fact, Indian secularism does not require banishment of religion from societal affairs — the only demand of secularism here is an absolute equality of all faith traditions in the eyes of the state (sarva dharma sambhav).
The Constitution itself includes some religion-related provisions. It has a directive principle of state policy for the legal protection of the cow revered by Hindus; and a clarification that carrying the kirpan will be a fundamental right for the Sikhs.
On the other hand, the Hindu custom of ‘untouchability’ is abolished and the validity of legislation removing caste-based restrictions on entry into temples is specifically decreed. Caste-based discrimination is prohibited, but the state can make ‘any special provision’ for the ‘scheduled castes’ — whose net, prescribed by an ancillary law includes Hindus, Sikhs and Buddhists.
Collection of tax for promoting any religion is disallowed, but the states of Kerala and Tamil Nadu must pay from their consolidated funds specified annuities for the upkeep of temples in the former Travancore and Cochin territories.
Barring these exceptional provisions, the Constitution assures its citizens non-discrimination on religious grounds and protects the rights of all individuals to freedom of conscience and of profession, practice and propagation of religion, as also the right of all religious denominations to manage their own ‘affairs in religion’.
Simultaneously, it asserts that people’s right to religious freedom ‘shall not prevent’ the state from making any law ‘providing for social welfare and reform’ or from ‘regulating or restricting any economic, financial, political or other secular activity which may be associated with religious practice.’ It also proclaims for citizens the fundamental duty ‘to develop scientific temper, humanism and the spirit of inquiry and reform’.
There is, thus, in our Constitution a curious admixture of secular and religious elements, and it is this judicious blend that determines the contours of secularism here. Though the ideal of secularism was incorporated into the Constitution as part of its basic structure even initially, a prefatory declaration that we are a secular state was made by an amendment a quarter of a century later.
The idea behind this delayed action was to provide time for the world to get familiarised with what we Indians would mean by the principle of ‘secularism’.
There has been massive legislation to regulate certain religious affairs, including shrine management and regulation of pilgrimage and, of late, religious conversion — some of these not free from controversy. As regards family relations, we have evolved over the years a dual system of religion-based and secular laws — with a choice between the two for individuals — subjecting both to periodical reforms.
The constitutional and legislative provisions relating to religion and religious matters have been interpreted by the higher courts — defining the role of religion in state affairs and vice versa.
They lay down the limits of religious rights and freedoms of both individuals and communities. These rulings generally reflect objectivity and impartiality though all know of the controversial cases that are however, few and far between!
For those who count these things, the country has had four Presidents and an equal number of Chief Justices, from religious minorities in 56 years of the post-Constitution era.
At present the head of state, the head of government and the army chief all belong to minority communities. These facts, past and present, definitely reflect India’s constitutional policy of ‘Unto God what belongs to God and unto Caesar (the state) what is Caesar’s.’
The writer is Expert-Member, National Commission for Religious and Linguistic Minorities