India’s great secular confusion – Michel Danino

Indian secularism

Prof Michel DaninoIndia’s brand of secularism denies equal rights to a perceived “majority”. It has no roots in the history of the land: the word “secularism” does not exist in any Indian language (except for recent coinages)…. – Prof Michel Danino

India seemingly has armies of self-appointed guardians of secularism, such as those who recently petitioned the Supreme Court to turn Ayodhya’s disputed site to a public purpose (The ‘secular’ solution for Ayodhya) But secularism in India is as enigmatic an animal as the proverbial elephant variously described by blind men: it has been all things to all people.

Indeed, although it frequently figured in the debates of the Constituent Assembly, the word “secularism” did not appear in the 1950 Constitution of India; Nehru was initially cold to it: “Another word is thrown up a good deal, this secular state business. May I beg with all humility those gentlemen who use this word often, to consult some dictionary before they use it? It is brought in at every conceivable step and at every conceivable stage. I just do not understand it.”

His influential minister for Agriculture, P.S. Deshmukh, is on record for questioning “the specious, oft-repeated and nauseating principle of secularity of the state. I think that we are going too far in this business of secularity.” Nauseating or not, the principle was parachuted into the Constitution by the 42nd amendment of 1976 (promulgated during the Emergency), which turned India from a “sovereign democratic republic” to a “sovereign, socialist secular democratic republic.” But there was a catch: “secularism” was left undefined, which is uncharacteristic of Constitutional amendments.

If so, we should expect it to have the conventional meaning. Let us therefore heed Nehru’s advice and turn to our dictionaries: “The principle of separation of the state from religious institutions,” says the Oxford Dictionary; “indifference to or rejection or exclusion of religion and religious considerations,” adds the Webster.

The former definition reflects the expulsion of Christianity from state matters which European nations opted for (to varying degrees) from the eighteenth century onward; also of Islam by Turkey in 1923. Was such a concept ever relevant to the Indian context, where compulsion in matters of religion and belief is repulsive to the ethos of the land? No Jain, Buddhist or Hindu king or emperor, to my knowledge, ever imposed a “state religion”; nor was India the scene of “religious wars,” whatever doctrinal frictions there may have been. Even those Islamic rulers who declared their intention to draw India into Dar al-Islam failed in the end.

Besides, the same Constitution which declares all Indians equal irrespective of their religion, caste or gender, proceeds, in Articles 28 and 29, to give religious and linguistic minorities the right to manage their places of worship and educational institutions. The civil code, too, is religion-specific as regards marriage, divorce, inheritance, etc.

This is anti-secular on the face of it. How do we get out of this embarrassing situation? By what I call a “sleight of word”—by declaring that “secularism” actually means something else: for instance, equidistance from, or neutrality towards, all religions (which is not the case), tolerance (why not use this word, then?), or perhaps some combination of atheism, rationalism and agnosticism (why not those words?).

Strictly speaking, then, India’s brand of secularism denies equal rights to a perceived “majority”. It has no roots in the history of the land: the word “secularism” does not exist in any Indian language (except for recent coinages); more importantly, “India has all along been trying experiments in evolving a social unity within which all the different peoples could be held together, while fully enjoying the freedom of maintaining their own differences. … This has produced something like a United States of a social federation, whose common name is Hinduism,” wrote the impeccably secular Rabindranath Tagore in his 1917 essays on nationalism.

Already expressed in Ashoka’s Edicts and many classical texts, this mix of integration, mutual respect and “full freedom” could, or perhaps should, have produced an Indian alternative to the European concept by building on the land’s long experiments in religious coexistence.

Instead, secularism has been a source of endless controversy and bitter feelings. As Taslima Nasrin once declared, “Most secular people are pro-Muslim and anti-Hindu. They protest against the acts of Hindu fundamentalists and defend the heinous acts of Muslim fundamentalists.” Or to quote the respected advocate, statesman, educationist and litterateur K.M. Munshi: “The word ‘secularism’ in India has no bearing on the attitude and conduct of individuals nor of religious groups. However, it has been used as a slogan of varying significance. In its name, anti-religious forces, sponsored by secular humanism or Communism, condemn religious piety, particularly in the majority community. In its name, minorities are immune from such attention and have succeeded in getting their demands, however unreasonable, accepted. In its name, again, politicians in power adopt a strange attitude which, while it condones the susceptibilities, religious and social, of the minority communities, is too ready to brand similar susceptibilities in the majority community as communalistic and reactionary. How secularism sometimes become allergic to Hinduism will be apparent from certain episodes relating to the reconstruction of Somanath temple. These unfortunate postures have been creating a sense of frustration in the majority community.”

By another sleight of word, such a statement would be viewed as “communal” today. But whether this “majority” really exists or is a construct deserves our attention. So does the important application of secularism to the world of education. – The New Indian Express, 19 March 2018

» Michel Danino is a guest professor at IIT Gandhinagar and a member of the Indian Council of Historical Research.

Secularism


 

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Video: Are Hindu moral codes unchangeable? – Bharat Gupt

Perversion of secularism and the non-implementation of a uniform civil code – Nithin Sridhar

Nithin SridharIndia should have evolved an indigenous social and legal system rooted in Dharma. … Such a social and legal system would have developed unique responses to challenges that are unique to Indian society; would have been fair and righteous towards everyone, irrespective of their affiliations, and would have been, at the same time, firmly rooted in Indian civilization. But since we have already imported an alien system of secularism, it would do us good if we remove the prevalent perversions and implement it in its true sense by enacting a fair uniform civil code. – Nithin Sridhar

Dalai Lama Quote India is probably the only country, wherein the concept of secularism is most perverted, both in principle and practice. After Independence, India, first borrowed this alien principle without giving a thought regarding its necessity and applicability in Indian society, and then perverted it beyond measure to selectively implement it for petty political ends, with disastrous results.

Secularism in simple terms means “separation of State and Religion”. That is religious concerns will not dictate State policies and the State will not interfere in religious activities. This concept of secularism originated in the European society, necessitated by the constant struggle for power between the Church and the Monarchy. Secularism was thus a unique solution in response to unique challenges prevalent in Western civilization in general and European society in particular.

Since Indian civilization, being rooted in the concept of Dharma, wherein even a ruler is subjected to its tenets and answerable to his citizens, no dichotomy between religion and government ever existed. More importantly, the very concept of religion as understood in Western (Abrahamic) civilization is alien to India. Sanatana Dharma is not merely a religion bound by certain principles of faith, instead it is a way of life based on eternal principles that sustains all life—individual, social, ecological, and universal. Thus sacred as well as secular, social and political as well as religious and spiritual, all aspects of life derive their sustenance from Dharma. Thus, dichotomies like religion vs. science, state vs. church, etc., which were an important force in the European society, never even sprouted in India.

Yet, ignoring these realities of Indian civilization, the Indian leaders, after independence, first imported secularism into India and then perverted its tenets and selectively implemented them in appeasement of certain “minority” communities, all the while being discriminating towards the majority community. How else can one explain contradictory actions of various state and central governments during the last seven decades?

Let’s take the example of religious institutions like places of worship belonging to various religions. Various state governments, especially in South India have taken control over Hindu temples and are earning crores of rupees from them. This is a clear violation of secularism, which mandates no interference of governments in religious activities. Add to this is the fact that out of the crores that these state governments are earning from temples, only a fraction of the amount is set aside for the maintenance of temples, and the rest is diverted to the government’s coffers. How is it secularism? Now consider this, the same state governments have allowed a free functioning of churches and mosques without any state intervention in the name of “secularism”. Moreover, crores of taxpayers’ money are spent by some of the state governments to help minority communities to renovate and build their places of worship.

In other words, the state governments have encroached upon places of worship belonging to the majority Hindu community, all the while allowing churches and mosques a free run. They are, further, looting the money from the temples and then spending taxpayers’ money on the churches, mosques, and the like. This is how secularism—the separation of religion and government—is being practiced in India. But this perversion of secularism and discrimination against the majority is, perhaps, most visible in the case of religion-specific personal laws enshrined in our constitution, despite the fact that the Directive Principles call for the eventual adoption of a uniform civil code.

Hindu Code BillsThe presence of numerous personal laws goes against the very essence of secularism. Add to this, the fact that the way these personal laws have been enacted is completely discriminatory in nature. On the one hand, the Muslim community is governed by the laws which are largely derived from Sharia and Islamic jurisprudence. Similarly, Parsis have personal law rooted in their tradition. The Jews are not governed by any personal laws, but instead are governed by the dictates of their religion. Christian personal laws are also in sync with their religious tradition. On the other hand, the majority Hindu community is governed by secularized Hindu laws which are uprooted from Hindu tradition and practices. Though custom and usage have been deemed important in the Hindu personal laws, yet through passage of various civil laws like Hindu Marriage Act, 1955, Hindu Succession Act, 1956, Hindu Minority and Guardianship Act, 1956 and the Hindu Adoptions and Maintenance Act, 1956, etc. the rules governing Hindu marriage, divorce, inheritance, etc. have been thoroughly secularized. Regarding the Hindu Code Bills of 1950’s, Dr. Parminder Kaur, Assistant Professor, Guru Nanak Dev University Regional Campus, Gurdaspur, writes in her article thus: “The Hindu Code Bills were a series of laws aimed at thoroughly secularizing the Hindu community and bringing its laws up to modern times, which in essence meant the abolition of Hindu law and the enactment of laws based on western lines that enshrined the equality of men and women, and other progressive ideas.”

Thus the Hindu community has been forced to shed its centuries-old customs and traditions, whereas minority communities like Muslims are freely allowed to retain their practices. Add to this the fact that Sikhs, Jains, Buddhists, etc. all come under these Hindu personal laws, and thus are denied personal laws based on their own traditions and practices. It is a different issue that Sikhs, Jains, and Buddhists share a common framework of Dharma with mainstream Hinduism and are deeply rooted in Indian culture and tradition. The point is just like various communities within mainstream Hinduism have their unique customs and practices, even Sikhs, Jains, and Buddhists have their unique customs and practices, all of which have been discarded and replaced by secularized Hindu personal laws. This is a classic case of discrimination in the name of “secularism”.

The argument here is not that the present secularized Hindu laws are bad for the society, or that Hindus must imitate the customs and practices prevalent in Hindu society many centuries ago. The issue here is one of fairness and equal treatment. Either there should be a uniform civil code keeping with the true notion of secularism, wherein all citizens are treated as citizens, without reference to their religion in civil issues, or there should be as many personal laws as necessary to cater to various local customs, traditions, and practices. Even if one were to have a uniform Hindu personal law in such a scenario, then it must have enough flexibility and space to accommodate diverse local beliefs and practices among various communities, and these are to be framed after discussions with various religious authorities and community leaders from across the country and be rooted in Hindu religion and traditions. This is definitely not the case in the present scenario, wherein minority Muslims are allowed to follow religious principles, whereas majority Hindus, including Sikhs, Jains, and Buddhists are forced to follow secularized personal laws.

Ishwar Chandra VidyasagarMore importantly, there was no necessity to secularize Hindu laws and Hindu society to usher in positive changes that were necessary, according to changing times. These positive changes could have been evolved from within Hindu tradition and culture itself. Hinduism has always been an evolving religious tradition. The presence of numerous smritis, dharma shastras, and many other texts, with each putting forward different viewpoints suitable to their own time and space, is the best evidence regarding flexibility and continuous evolution of Hinduism. Ishwar Chandra Vidyasagar, who was instrumental in bringing in the Hindu Widows’ Remarriage Act of 1856, accomplished it by putting forward evidences, illustrations, and arguments from within the Hindu tradition. Thus, genuine Hindu personal laws, suitable for present times, rooted in values like righteousness, duty, fairness, equal opportunity to women, etc. could have been easily evolved from within Hindu philosophy and culture, through a consensus arrived after discussions and debate among various religious authorities and representatives of various Hindu communities belonging to different geographical regions. But, short-sightedness and a romance with western ideals and systems of governance, made our Indian leaders ignore Indian ideals and models present within Indian civilization.

This import of secularism, and later its perversion in the form of discriminating personal laws, have done not much good for the minority communities, especially women of those communities, either. Polygamy is prevalent and legally sanctioned under Muslim personal laws, whereas it is prohibited for everyone else. A Hindu woman has an absolute right over maintenance from her husband upon divorce, but a Muslim woman will not get maintenance beyond the period of iddah. Similarly, the grounds of divorce have been detailed and the elaborate legal process have been thoroughly established in the case of Hindus and Christians, but a Muslim woman could be divorced merely by a repetition of “talaq” thrice by her husband. The Hindu undivided family gets tax rebates, but others are bereft of this benefit. Similar discriminations exist in the case of adoption laws as well.

The gist is the perversion of secularism which has resulted in non-implementation of a uniform civil code, which has not done any good to anyone. On the one hand, the Hindu personal laws have ushered in equality and fairness in certain spheres of social life in Hindu society, but have done so at the cost of uprooting Hindu society and the legal system from the foundations of Dharma, which is bound to have adverse effects over a long-term. On the other hand, presence of separate personal laws for minority communities has kept them away, especially Muslim women, from gaining any benefits that are available for Hindus.

Ideally, India should have evolved an indigenous social and legal system rooted in Dharma (righteous duty) and Indian civilization. Such a social and legal system would have developed unique responses to challenges that are unique to Indian society; would have been fair and righteous towards everyone irrespective of their affiliations, and would have been, at the same time, firmly rooted in Indian civilization. But since we have already imported an alien system of secularism, it would do us good if we remove the prevalent perversions and implement it in its true sense by enacting a fair uniform civil code. – IndiaFacts, 9 July 2016

» Nithin Sridhar is an editor at IndiaFacts and writes on politics, religion, and philosophy from Mysore. He tweets at @nkgrock.

Nehruvian Secularism

Shah Rukh Khan Quote

Scrap Section 377, bring in a uniform civil code: Justice Vikramajit Sen – Utkarsh Anand

Justice Vikramajit Sen

Utkarsh Anand“Justice Sen was associated with many important verdicts, the latest being the approval of the Kerala government’s policy to ban consumption of liquor in public and restriction of bar licences. Earlier, he also held that a single mother can be appointed as the sole guardian of a child.” – Utkarsh Anand

Days after demitting office, former Supreme Court Judge Vikramajit Sen said it is time to do away with Section 377 of the IPC, which makes gay sex, irrespective of age and consent, an offence punishable with a sentence up to life term.

Speaking to The Indian Express, Justice Sen, who retired on December 30, also said that secularism means “not recognising any religion”, and stressed the need for a uniform civil code.

“It is time for Section 377 to go. The society is mature enough to make its choices and exercise sexual preferences in private.

“Why a penal law and a court have to regulate what you do in private? Personal choices are to be validated if they do not violate anybody else’s rights,” he said.

“Secularism does not mean recognising all religions. It means not recognising any religion. This is why the uniform civil code is a major step towards attaining true secularism. Why should personal laws be allowed to trample upon civil rights? After all, religion is a private affair. Why should the state recognise any religion,” he said.

Uniform Civil CodeRecalling how he had nudged the government to initiate the process of consultation on the uniform civil code when a petition relating to divorce under the Christian law came up before him, he said a majority government must “strive towards it”.

“I believe most of the religions and communities are ready for it. And the rest can be brought on board by assuring them of a meeting ground after a broad-based dialogue. The uniform code will be helpful for women in particular,” he said.

Asked about the debate on intolerance, he refrained from commenting on the “politics of it”. Secularism, he said, entails unqualified tolerance to all thoughts and beliefs.

“It is only through secularism and tolerance that our country will reach great heights. What the Islamic State (IS) is doing today is a sign of intolerance. And therefore, it must also be highlighted that the Muslim community in India has opposed the propaganda and methods of the IS. You have to provide a sense of inclusiveness to everyone,” he said.

Justice Sen, who is from Delhi, also commended the fact that the issue of pollution in the national capital has taken centrestage. “I am hopeful all the deliberations and attempts will lead to some positive results. The success, or otherwise, of the odd-even policy is yet to be seen so it will not be prudent to comment on it. But the fact that the issue of pollution has triggered debates and generated awareness is definitely encouraging,” he said.

Justice Sen was associated with many important verdicts, the latest being the approval of the Kerala government’s policy to ban consumption of liquor in public and restriction of bar licences. Earlier, he also held that a single mother can be appointed as the sole guardian of a child. He also gave rulings on expediting the land acquisition process, and was part of the bench that ruled against quota in super-speciality medical courses. – The Indian Express, 4 January 2016

Demonstration against Section 377 in New Delhi

India needs a common civil code rooted in reason, not sentiment – Mohan Guruswamy

People of India

Mohan Guruswamy“If a common set of laws for inheritance, marriage, divorce, custody, adoption and guardianship were to be framed with a special emphasis on gender equality, which neither resembled any existing personal law nor sought to impose any one personal law on the rest, it would simply be a common and secular civil code. Such a common and secular civil code, while not interfering with any of the rituals and many practices of the various religious and caste groups, would seek to merely legitimise the larger precepts of law that are being made secular.” – Mohan Guruswamy

Supreme Court of India in New DelhiThe Supreme Court on [October 12th] gave the Union government three weeks to come up with a proposal to amend the Christian divorce act while asking it to take a quick decision on a uniform civil code to end the confusion over personal laws.

“If you want to have a uniform civil code, have it. If you want to follow the uniform civil code, follow it. But you must take a decision soon,” a bench headed by justice Vikramjit Sen told solicitor general Ranjit Kumar.

We have a National Democratic Alliance government, and with the Bharatiya Janata Party alone having a majority in the Lok Sabha with 282 seats, the excuse for shelving the discussion for a Common Civil Code has evaporated. The BJP manifesto had promised to deliver on this issue. It’s time for a debate once again. It’s time that we are no longer separated by law.

Relevant laws

The cornerstone of a democratic society is equality. Without equality, there can be no justice, just as without justice there can be no equality. True justice cannot be based on unjust laws, though it is possible to have a law-abiding society with the most unjust laws in place.

Just laws are a pre-requisite for a democratic society and, therefore, a just and orderly society. The concept of justice also changes with the dynamics of the times. Laws evolved and deemed sacred in more primitive times cannot continue to be considered so, if they do not satisfy the conditionalities of the doctrine of equality.

On this, the tallest philosopher of our times, John Rawls, wrote: “Laws and institutions on matter, however efficient and well arranged, must be reformed, or, abolished if they are unjust.”

In his celebrated work, A Theory of Justice, Rawls said that every person possesses an inviolability founded on justice that even the welfare of society as a whole cannot override. As such, justice denies that this loss of freedom for a few is made right by a greater good shared by others.

It does not allow that the sacrifice imposed on a few is outweighed by the larger sum of advantages enjoyed by many. Therefore, it follows that in a just society, the liberties of equal citizenship are taken as settled. The rights secured by justice are not subject to political bargaining or to the calculus of social interest.

Favouring personal laws

Much of the legal argument by those still in favour of the existing system of separate personal laws on the basis of religion and custom derive from the premise that personal laws are part and parcel of the freedom of religion guaranteed by Article 25 of the Constitution of India. This is despite the fact that Clause 2 of the same article specifically saves secular activities associated with religious practices from the guarantee of religious freedom.

Even so, personal laws are not laws under Article 13, and, therefore, do not have to conform to fundamental rights and the doctrine of equality enshrined in Article 14.

But if personal laws were tested against the doctrine of equality under law, it will be found that a large number of them are unjust, arbitrary, and unconstitutional. It is this issue the Supreme Court addressed in the matter of Father John Vallamattom, when the Chief Justice ruled: “we find section 118 of the Act being unreasonable, is arbitrary and discriminatory, and therefore violative of Article 14 of the Constitution.”

Choosing reason

Most of those who oppose a common civil code do so on the grounds that this is not the time as the minorities, especially the Muslim community, spoken for by its self-declared leadership, are not ready for it.

A “theological” argument has also been advanced, that these existing laws are God-given and, therefore, cannot be tampered with. The rationality of such an argument, and of the persons who advance them, do not deserve any serious attention in this day and age. This is the same logic that wants us to suspend reason and believe that a particular God was born at a particular spot just because it is commonly believed to be so.

All laws, even the eternal ones, are man-made and reflect the level of thinking and advancement of human knowledge and civilisation at that moment of time. If we have to accept what lawgivers such as Manu evolved in the period before the Gupta Empire or in medieval Arabia as sacrosanct, then we will forever be condemned to be governed by archaic, unequal and unjust laws. In the age of reason, the demand that people obey laws must be rooted in reason and not sentiment.

Destabilise to modernise

The task of modernisation entails the destabilisation of many institutions. Our founding fathers, Hindus and Muslims alike, in the process of seeking to modernise India, had destabilised and uprooted many traditional institutions. They destabilised the manner in which much of Hindu society was organised. They destabilised the hierarchy of castes. They also outlawed many discriminatory practices, apparently ordained by Hindu religion and custom.

The traditional objections of a uniform civil code hark back to the argument posed when the matter was debated in the Constituent Assembly. The two main objections then were that it would infringe on the fundamental right to freedom of religion guaranteed by Article 25, and that it would constitute tyranny of the majority.

The first objection is misconceived because the directive in Article 44 does not infringe the religious practices as stated under Article 25. As stated earlier, secular activities associated with religious practices are specifically saved from the guarantee of religious freedom.

Finding common ground

The second objection would be valid, if the laws of one community were made incumbent on the rest. However, if a common set of laws for inheritance, marriage, divorce, custody, adoption and guardianship were to be framed with a special emphasis on gender equality, which neither resembled any existing personal law nor sought to impose any one personal law on the rest, it would simply be a common and secular civil code.

Such a common and secular civil code, while not interfering with any of the rituals and many practices of the various religious and caste groups, would seek to merely legitimise the larger precepts of law that are being made secular.

For instance, a Hindu from Kerala may marry his niece under the Marumakkathyam Law, whereas it would be decreed as a voidable marriage for a Mitakshara Hindu. Under a common and secular civil code, the validity of a marriage would begin with the age of consent and end with a legitimate registration or certification by any authorised person or body such as a priest or locally elected officials or even traditional village elders.

By applying the doctrine of equality, all grounds of divorce, like adultery, desertion and cruelty, will be equally available to husband and wife. Thus, if a concealed pregnancy by another man before marriage is a ground, so will the concealed pregnancy of another woman by the man. If bigamy is to be a ground for divorce, so will polyandry. Naturally, divorce by mutual consent will be allowed to the husband and the wife jointly.

Doctrine of equality

A common and secular civil code will also then address the issues that make marriages void or voidable in a uniform manner. A void marriage is one that in law does not exist. A voidable marriage is one that exists legally, and can only be annulled by a court of law.

When the equality doctrine prevails, it will entail that in matters of maintenance and alimony, it will become the duty of the spouse with the greater or only income to maintain the other. A similar application of the doctrine on the questions of inheritance, maintenance of children, custody and guardianship and adoption will result in a dramatically different and more egalitarian social scenario.

It is this more equal society that all religious conservatives fear most. Unfortunately, the political parties that profess to be secular and those who profess to oppose pseudo-secularism pander equally to conservatives the most. That seems to be the real problem. – Scroll.in, 17 October 2015

» Mohan Guruswamy is Chairman, Centre for Policy Alternatives, New Delhi.

Indian army signpost in the Himalayas