Constitutional Secularism
in India
As a large country with over a billion- people: professing different faiths and belonging to diverging denominational groups; a variety of regional traditions and food cultures; indigenous communities; speaking several languages; India cannot but remain as a shining example of unity in diversity. It is this spirit of tolerance, accommodation and inclusion that is the hallmark of the Indian nationhood as envisaged and consciously chosen by the founding fathers of the Constitutional order when India regained independence from British colonialism in 1947. Respecting the dignity of the individual, and accommodating cultural differences by express recognition of minority rights; evolving the bond of fraternity across all category distinctions and constructing a public order where every social group finds equal access to flourish in togetherness is the idea of India that emerges from that founding document of the secular republic.
It is this Constitutional vision of India as a secular
nation that is increasingly under threat from ‘Hindutva’ political
mobilizations that seek to create a Hindu State in its place: a country where little
or no ‘space’ will be allotted to religious minorities, and, according to the
founding ideologues of ‘Hindutva’, the Muslims will be treated as second-class
citizens. As the Hindutva brigades openly acknowledge, their men have ‘infiltrated’
almost every State institution in the land and they enjoy brutal majority in
Parliament and they are the ‘government’ in Centre and in a majority of States: indeed, the ‘fringe’ has become the ‘mainstream’ in India today- virtually managing to
effect a ‘Constitutional Coup’ in the country through the capture of
institutions. The impunity enjoyed by those who destroyed a four century-old
Mosque in Ayodhya in broad day-light in 1992, as well as the Supreme Court judgement awarding
the Mosque to the Hindus show the limits of justice and secularism in India today.
The
‘Hindutva’ Challenge
As India is a Constitutionally-declared secular democracy and the world’s gaze is upon the nation’s top leader Narendra Modi who came to office with a dreadful record of presiding over the country’s worst anti-Muslim pogrom since independence, the project of remaking the nation as a majoritarian ethnic democracy is sought to be advanced by the party in power and its ideological followers through ‘stealth’ and ‘subterfuge’ on different fronts. Hence, it is instructive to note that in seeking to achieve their chosen political objectives, the Hindutva brigade has long weaponised the secular language of the Constitution and the legal system as well.
Among the technologies of governance on full
display now include the following: promoting a mythical uniformity by
destroying the autonomous identity of the only Muslim-majority State in the
Constitutional order; enacting controversial legislations that criminalize the
freedom to propagate and embrace a religion of one’s choice; that discriminate among
refugee claimants on the basis of religious identity; unleashing the ‘legal process’
as a ‘punishment’ on those who differ with the regime; stifling free speech by
criminalizing dissent in the country; infiltrating and capturing all State
institutions as well as the media- including social media networks with an ‘own’
army of ‘trolls’- to ‘control’ and
‘direct’ the flow of public discourse in
favour of the Supreme Leader, etc.
While the political project of remaking “New India” as a
majoritarian Hindu State is on full swing in the country, what is surprising in
the process is the virtual abdication of its Constitutional responsibility by
the higher judiciary to clarify searing normative questions. It is widely
observed in recent times that on several issues involving executive excesses, the
judiciary has come to adopt evasive balancing as a strategy to ‘bail out’ the
government of the day from abiding by its manifest legal obligations, often
hiding behind ‘national security’, ‘sealed-cover jurisprudence’ and ‘extraordinary
situation’, etc. Since many of these issues have profound implications for the
federal system of institutional balancing as well as the civil liberties of the
citizens, the dilution of Constitutional values by the very institutions meant
to safeguard those values is a source of disquiet and grave concern for the future
of our Republic.
‘Hijab’ as a Human Right
If we go by the textual language, the fundamental rights of
citizens enshrined in the Constitution of India include the right to life and
personal liberty. Likewise, freedom of speech and expression is also a basic
right. The right to personal freedoms has meaning only when it recognizes a
life of dignity and personal integrity of the individual where her personal
appearance and free expression is secured. A perusal of interpretative jurisprudence
rendered by the judiciary in India over the last 70 years would reveal to
everyone the capacious nature of these rights under the Constitution.
Likewise, under Article 25 (1) of the Constitution of India,
“all persons are equally entitled to freedom of
conscience and the right freely to profess, practise and propagate religion”. The
freedom of religion is subject only to State regulations that may be prescribed
to protect “public order, morality and health” or to restrict any “secular
activity which may be associated with religious practice”. Interpreting the
meaning and scope of the freedom of religion, India’s Supreme Court has time
and again made it clear that ‘essential religious practices’ of a community of
a people cannot be interfered with. In previous cases, both the Kerala High
Court and the Madras High Court, like the Malaysian Supreme Court in 1994, have
also agreed that wearing of ‘Hijab’ is an essential religious practice in Islam
worthy of protection under law.
It is also instructive to note that as a State Party to the 1966 International Covenant on Civil and Political Rights (ICCPR) and other international human rights instruments, India is also duty bound to respect its international legal obligations on freedom of religion.
According
to ICCPR, the right to manifest one’s religion or belief is required to be
recognized by the States for all persons. Art. 18 (1): "Everyone
shall have the right to freedom of thought, conscience and religion. This right
shall include freedom [...] either individually or in community with others and
in public or private, to manifest his religion or belief in worship, observance,
practice and teaching.’ Moreover, Art. 18 (3) clarifies: "Freedom to
manifest one's religion or beliefs may be subject only to such limitations as
are prescribed by law and are necessary to protect public safety, order,
health, or morals or the fundamental rights and freedoms of others."
According to the Human Rights Committee, the ‘freedom to religion or belief in worship, observance, practice and teaching’ encompass a broad range of acts. The authoritative General Comment issued by the HRC states: ‘The observance and practice of religion or belief may include not only ceremonial acts but also such customs as the observance of dietary regulations, the wearing of distinctive clothing or head coverings, participation in rituals associated with certain stages of life, and the use of a particular language, customarily spoken by a group.’
In
Lieu of Conclusion
The struggle for their right to wear ‘Hijab’ along with their uniforms by the young Muslim students in Karnataka represents a testing moment for the nation’s multicultural framework. Unleashing intimidatory campaigns on the public street- what Stanford-sociologist Thomas Blom Hansen recently called in his book “the law of force”, Hindutva groups and their sympathizers have sought to humiliate the students and teachers of an entire community by denying them their right to head covering. And by weaponizing the language of secularism [“uniforms in class room”], they attack and seek to erase cultural ‘difference’ of a religious minority [the right to wear a ‘Hijab’ along with uniform]. Given the clear right-wing shift in Indian politics in recent years as evidenced by the rise and rise of aggressive ‘Hindutva’ and the subsequent ‘evasive balancing’ by the courts on Constitutional guarantees on personal liberties, can we expect that justice will prevail, and that the right to freedoms will be upheld? Nothing is certain in the Indian political and judicial landscape today, and God knows Best.