Secularism — implicit from day one, explicit in 1976

The Hindu

a day ago

'God is dead. God remains dead. And we have killed him. Yet his shadow still looms…', said Friedrich Nietzsche. As many as 66 Constitutions make some reference to God in their Preamble. True, Nehru led from the front in India's adoption of secularism. He explicitly said in his autobiography of how what he called 'organized religion' filled him 'with horror... almost always it seemed to stand for a blind belief and reaction, dogma and bigotry, superstition and exploitation'. Nehru's strong views on religion did play a significant role in India's choice of secular polity. Unlike today's politicians, he did not need religion to succeed in politics.
Though the Supreme Court has said more than once that the term secular in India does not connote either strict separation between religion and state like in France or the non-establishment of religion like in the United States, the debate on the artificial imposition of secularism during the Emergency and the urgent need for its deletion continues though Indian secularism is rooted in Emperor Ashoka's Dhamma and is consistent with noble ideals of India's freedom struggle. Article 51A(b) makes it a fundamental duty of every citizen 'to cherish and uphold noble ideals which inspired our national struggle for freedom'. Secularism was one such ideal.
Secularism spells autonomy
The advocates of Hindutva think that minorities have got some special privileges through secularism and that the time has come to bring an end to neutrality of the state in religious matters. Unfortunately, supporters of a theocratic state do not understand that secularism is basically good for religions as it protects religions from state domination and interference. Religions remain independent and autonomous under secularism. If a religion becomes state religion, the state takes over the control of such religion.
Our secularism ensures autonomy of the Hindu religion and the proponents of Hindutva must understand this. Has not Islam been destroyed through various so-called Islamic states? Mahmud Ghazni and Illtutmish defied the caliph and assumed the title of king . Zawabit or state-made laws prevailed over Shariah during medieval India. Did not Henry VIII defy Papal authority just to marry Anne Boleyn and create the Anglican Church with the King as its head. In the consecration of the Ram temple in January 2024, the state's decision prevailed over the theological view of the Shankaracharyas. The state, not religion, decided what is auspicious.
Is the salvation of souls really the mandate of a modern state? British Political theorist John Locke in his famous 'A Letter Concerning Toleration' (1689) forcefully said no because the state was brought into existence only for 'procuring, preserving, and advancing' citizens' civil interests. Care of souls, he argued, was not given to the state because the state consists of only outward force while religion consists of the inward persuasion of mind. Roger Williams, the founder of Rhode Island, favoured separation of the church from the state to protect the garden of the church from the 'wilderness of secular order'.
Secularism could triumph in the 18th century because reason triumphed over religions. While secularism is nothing but an idea of modernity, a non-secular theocratic state is the relic of the past. Even if we are fed up with modernity, the moot question is this: should we become a Saudi Arabia, an Iran or a Pakistan? An overwhelming majority of Hindus do not want to emulate these regressive countries.
The importance of the Ashokan edicts
Should we reject secularism because this term was not used in the original Constitution? To say that India's Constitution became secular in 1976 is a blatant lie. Like several other things borrowed from Ashoka the Great who ruled from 268-232 BC, the seeds of Indian secularism too can be traced back to Ashokan edicts. Rajeev Bhargava has written extensively on the significance of these edicts. Rejecting the idea of one particular religion as a state religion, Rock Edict 7 said that all religions should reside everywhere, for all of them desire self-control and purity of heart. One of the biggest problems of today's India is hate speech. Rock Edict 12 prohibited glorification of one's religion and condemnation of others' religions. Ashoka's dhamma was not religion but the principles of governance, i.e., constitutional morality and ethics that a king must follow. He favoured the acceptance and co-existence of different religions and went beyond mere toleration.
The Motilal Nehru Committee's constitution (1928) which was the first attempt to draft the Constitution clearly stated in Clause 4(11) that 'there shall be no state religion for the Commonwealth of India or for any province in the Commonwealth, nor shall the state either directly or indirectly endow any religion or give any preference or impose any disability on account of religious belief or religious status'.
The Karachi Resolution of the Congress in 1931 which presented the blueprint of a future Swaraj in Resolution no 2(9), specifically declared that the 'state shall maintain neutrality in regard to all religions'. Even the Hindu Mahasabha's draft constitution of 1944 with V.D. Savarkar's blessings too declared in explicit terms in Article 7(15) that 'there shall be no state religion or either centre or provinces.'. Why do we refuse to follow even Savarkar?
On October 17, 1949 when the Preamble of the Constitution was under discussion in the Constituent Assembly, H.V. Kamath proposed that the Preamble should begin with the words 'in the name of God'. We should thank god that in an overwhelmingly religious country, god lost by 17 votes in a tally of 68 to 41. Similarly, the word 'secular' was not specifically included; yet, members, in one voice, spoke of it being a fait accompli of a liberal democratic constitution and consistent with the ideals of our freedom struggle. No member of the Constituent Assembly ever proposed a Hindu Rashtra including Syama Prasad Mookerjee.
Three years prior to the insertion of the word secular, the Supreme Court had held secularism to be the basic structure in the Kesavananda Bharati case (1973). Silences of the Constitution are equally important. For instance, the words federal, judicial review, rule of law too have not been used in the Constitution. But these ideas have rightly been held as part of the basic structure.
On the jurisdiction model
If we are really fed up with the separation model of secularism, we should consider the jurisdiction model. We have several options from modern democracies. Certainly, we may declare in the Constitution that Hinduism (not Hindutva) is the dominant spiritual heritage of India — just like in England where the Anglican Church is the official Church of England and the king is the defender of faith but recognises equal rights to all citizens ensuring freedom of religion and prohibiting all discriminations on the basis of religion. The Irish Constitution is another model. Its Preamble begins with the name of the Most Holy Trinity, but the state cannot endow any religion or discriminate on religious grounds. 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'. But Article 4 talks of the right to equality. Article 5(2) guarantees the right to life, liberty and honour without any discrimination based on religion and gives freedom of religion to all faiths. Muslims of Western Thrace in fact have 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 either using civil courts or sharia courts.
Article 2 of Pakistan's Constitution declares Islam as the state religion. Only a Muslim can occupy high constitutional office. But even the Preamble itself explicitly lays down that the 'adequate provision shall be made for the minorities freely to profess, practice freedom of religion and develop their culture'. Moreover Article 36 again says that the state shall safeguard the legitimate rights and the interests of minorities including their due representation in the federal and provincial services. Accordingly, the Constitution makes a provision of reservation for them.
Though Article 9 of the Sri Lankan Constitution falls short of declaring Buddhism as state religion, it does give 'Buddhism' the 'foremost place' and places an obligation on the state to protect and foster Buddha Sasna. Of course, it not only guarantees freedom of religion but (unlike India) in Article 10, explicitly 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 and High Courts.
Our secularism based on Ashoka's Dhamma was designed to allow people to live together in civility and promote equal respect for all religions. The state must remain religion neutral. India's opposition to Pakistan was based on the separation of religion and state. The framers of the Constitution too intended a secular state, and not a theocratic state. Even the Bharatiya Janata Party has been insisting on its opposition to the Congress's negative secularism and used to promise positive secularism. If what was implicit from day one was merely made explicit in 1976, 'Humgama Hai Ku barpa (what is the fuss about')?
Faizan Mustafa is a Constitutional Law expert and presently serving as the Vice-Chancellor of Chanakya National Law University, Patna, Bihar. The views expressed are personal