Updated: March 21, 2020 4:47:51 pm
The so-called high and impregnable walls between state and religion are now collapsing in India. Slogans like “goli maro.” and “Hindus are under threat” are catching the people’s imagination. So, let us be frank, we are losing patience with Nehruvian secularism. In his victory speech after the Lok Sabha election, Prime Minister Narendra Modi mocked his opponents by saying that no political party could muster the courage to even mention the word secularism while campaigning.
After the systematic targeting of religious minorities, increase in lynching cases, the partisan attitude of police during communal riots, the use of religious symbols in public discourse and the raising of slogans, “Jai Shri Ram” and “Allah-o-Akbar”, in Parliament, we have now, for the first time, added a religious test to the procedure of granting citizenship.
Secularism demonstrates modernity and remains the best option for any progressive nation. Is it not a fact that it made us a global power and Pakistan a failed state? Nepal saw merit in it and has become a secular state. But if Hindus really feel threatened from Muslims and Christians, we must address their concerns and not shy away from discussing the possibility of a Hindu rashtra. Minorities, too, are now fed up with this facade of secularism, with all state institutions tilting towards one religion. Perhaps some kind of Hindu rashtra can help us bring peace and save the country from the path of self-destruction.
We have several models from modern democracies to choose from, such as the Christian states of England, Ireland, and Greece, the Jewish state of Israel, Muslim states like Pakistan and Bangladesh and the Buddhist state of Sri Lanka. A Hindu rashtra will certainly sound the death knell of the idea of India that celebrated diversity and will lower our international standing, but minorities should not worry too much about it. Just like several other modern theocracies, a Hindu rashtra could guarantee substantial rights to religious minorities. It will not be based on the Manusmriti and will uphold modern ideas of human rights, particularly the right to equality and non-discrimination.
Hindutva fanatics will be hugely disappointed to know that the Hindu rashtra will not be entirely different from the current secular state. It will neither disenfranchise religious minorities nor will it take over their religious places or deny them the right to property, nor will it deport Muslims to Pakistan. Legally speaking, the declaration of a Hindu rashtra would merely require a 15-judge Supreme Court bench to overrule the basic structure limitation on the Parliament’s power to amend the Constitution.
Many experts have been writing that since India has not seen religious wars and the church-state conflict, secularism was an alien concept. Indians are essentially religious and, therefore, the wall that separates the state and church is inappropriate for us. In fact, that’s why Indian secularism talks of equal respect for all religions. There are two models of secularism — the non-establishment or the separation of the church and state model (USA, France) that India adopted and the jurisdiction model of England, Ireland and Greece. Nehruvian secularism intended to achieve the former. Under the separation model, the state and church are expected to be hostile to each other but in the jurisdiction model, the two may co-exist – therefore, it is possible to have a Hindu rashtra even under the secular model.
Since we are dissatisfied with the separation model, the European jurisdiction model could be our first option, if we want to become a Hindu rashtra. The Anglican Church is the official Church of England and the queen is the defender of faith. We, too, may declare Hinduism to be the official religion of the state and, like England, give equal rights to all citizens ensuring freedom of religion and prohibiting discrimination on the basis of religion. The Irish Constitution offers another model. The preamble begins with the name of the most holy trinity. But the state cannot endow any religion or discriminate on religious grounds. The 1937 Constitution did give a special status to the Catholic church, but the same was deleted in 1972.
Article 3 of the Greek Constitution declares the Greek orthodox church as the “dominant religion”. The opening words of the preamble are – “In the name of Holy, Consubstantial and Undivided Trinity”. Article 33 requires that the President and MPs shall take oath in the name of Holy Trinity. But, Article 4 talks of the right to equality. Article 5(2) guarantees right to life, liberty and honour without any discrimination on the basis of religion and accords freedom of religion to all faiths. The Muslims of Western Thrace have, in fact, the right to elect their own mufti (religious and judicial officer) and their disputes are resolved in accordance with Islamic law. They have an option of going to civil courts or sharia courts.
Israel does not have a written Constitution. But its basic law guarantees human dignity, liberty, equality and freedom of religion. The Jewish Democratic state has an arrangement to unite the synagogue with the state. In its original form, Zionism was all about civic nationalism. By the 1970s, Israeli identity was converted into Jewish identity. Interestingly, it has achieved secularisation without secularism. It gives a number of rights to its minorities. All religious groups have their own religious laws and courts. Arabic is the second state language. In fact, Sharia courts have more powers than Jewish, Christian and Druze courts and their decisions are executed like verdicts of civil courts. Arabs are mentioned as Arab-Israeli citizens.
One hopes that we will not prove Shashi Tharoor right and go Pakistan’s way. Pakistan’s Constitution starts with “In the name of Allah, the most beneficent, the merciful”. Article 2 declares Islam as the state religion. Only a Muslim can occupy high constitutional office. But even its Constitution, in the preamble itself, lays down that “adequate provision shall be made for the minorities to freely profess, practise their religion and develop their culture”. There is a provision that laws that are inconsistent with the state religion are to be struck down as unconstitutional, but Article 227(3) exempts the personal law of minorities from this repugnancy provision. Thus, Pakistan can never enact a Uniform Civil Code. Moreover, Article 36 says that the state shall safeguard the legitimate rights and interests of minorities, including their due representation in federal and provincial services. Accordingly, the Constitution reserves seats for them. If we go the Pakistan way, will we agree to such a reservation?
Bangladesh and Sri Lanka are much better options. Even though secularism was one of the fundamental principles of Bangladesh’s original constitution, it was deleted in 1977 by General Ziaur Rahman. Islam was declared the state religion in 1988. But in 2010, the Supreme Court of Bangladesh restored secularism as one of the basic features of the Constitution. In 2011, the Constitution was amended and the term “secular” was reinserted.
Though Article 9 of the Sri Lankan Constitution falls short of declaring Buddhism as the state religion, it does give “Buddhism” the “foremost place” and puts an obligation on the state to protect and foster, “Buddha Sasana”. It not only guarantees freedom of religion, but, unlike India, Article 10 gives “freedom to have or adopt a religion or belief of his choice”. Minorities are governed by their personal laws and sharia courts function within the premises of regular courts.
If we are really fed up with the separation model of secularism and want to adopt the jurisdiction model with India being declared a Hindu rashtra or giving Hinduism the status of dominant spiritual heritage, we must ensure that it brings with it genuine liberalism, substantive equality, modernity and, above all, state responsibility towards religious minorities with the guarantee of freedom and cultural autonomy. If even this cannot bring to an end the project of hate and polarisation, we have no option but to strengthen our original concept of secularism and work towards the emancipation of state from religion.
The writer is vice chancellor, NALSAR University of Law, Hyderabad
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