On lopsided interpretation of secularism since the very beginning of the constitutional era (Tahir Mehmood)

From: The Times of India

Appeasing the majority?
Tahir Mahmood Jul 18, 2013, 12.00AM IST

Pitched political battles are being waged between the votaries of secularism (the Congress) and those who complain about minority appeasement (the BJP). But neither of them discuss a third possibility : Indian-style secularism actually appeases the majority, at the expense of the country's two largest minorities Muslims and Christians. It`s worth pointing out, in that regard, the religious provisions in the Constitution as well as the lopsided interpretation of secularism since the very beginning of the constitutional era.

At the time of its adoption, the Constitution neither declared any state religion nor proclaimed India a secular state. By pronouncing 'equality before law and equal protection of laws' as fundamental rights, it mandated the state not to discriminate between the two 'on grounds only of religion, race, caste, sex, place of birth or any of them' in respect of public places and employment or appointment under the state.

This was considered enough to make the country `secular` without a formal declaration to that effect. The principle of undeclared secularism was, however, countered by several community-specific provisions either initially incorporated into the Constitution or inserted by some early amendments to it. In the years to come, the state applied, and the courts interpreted, some general constitutional provisions in ways that benefited particular religious communities.

Twenty-six years after its promulgation, the Preamble to the Constitution was amended to include the word `secular`, but all the religion-based provisions survived and remain in force to this day. The custodians of state authority have also continued to apply, and the courts of justice interpret, the general constitutional provisions the same way as before. Successive governments and the judiciary have consistently believed that these special constitutional provisions, administrative measures and judicial decisions detract nothing from the secularity of the state.

Among the religious provisions in the original version of the Constitution, in the chapter on Directive Principles of State Policy, was Article 48 that mandated the state to protect by law the cow and its progeny. Interpreting the laws, the Supreme Court made it clear that the mandate was based on Hindu beliefs. In a later case, the court even said that secularity of the state would not be `relevant` for deciding whether an administrative action mitigating the rigidity of any such law on religious grounds was permissible.

While another Article protected the religious right of the Sikhs to carry the kirpan, among the religious provisions introduced later by way of amendments was Article 290-A, directing the governments of Kerala and Tamil Nadu to pay from their respective exchequers substantial annual annuities to dewasom temples.

The word `only` in the non-discrimination provisions of the Constitution left room for according special favours to particular sections of citizens. Combining caste with social backwardness, the Constitution empowered the state to grant special favours to Scheduled Castes by way of protective discrimination, deciding which castes would be brought under the umbrella.

Although social stratification has always been, and remains, a general phenomenon shared by all religious communities, a Constitution (Scheduled Castes) Order was quickly promulgated, furnishing the initial list of `Scheduled Castes`, subject to a condition that only Hindu members of those castes would be covered by the list. Converts to Buddhism from castes named `neo-Buddhists` were to be excluded.

While the Sikhs succeeded just six years later to get their lower castes included, the Buddhists had to wage a 40-year-long struggle to get relief. The Muslims and Christians, who also share those castes, are still struggling against this discriminatory provision. The theoretical egalitarianism of these global faiths is invariably cited to keep their followers out of the ambit of the privileged class of Scheduled Castes.

If a Scheduled Caste Hindu, Buddhist or Sikh were to embrace Christianity or Islam, he would lose his SC status and all its attendant privileges. But should he ever return to his original faith, the privileges would be automatically restored. Although this is not made clear in the Constitution or the Scheduled Castes Order of 1950, this is how the apex court has interpreted the law, asserting it would `serve the interest of justice.`

But no government or court has ever introduced the `interest of justice` principle in respect of any non-minority institution. On the contrary, recognition of `minority character` of even historic minority institutions has been a hard nut to crack. Despite constitutional provisions, state actions and judicial interpretations of a clearly religious nature, the state`s blanket secularity has always been claimed as an alibi to deny any form of `protective discrimination` to Muslims and Christians.

Secularism has been developed on these clearly non-secular lines by political parties claiming to be absolutely secular and minority-friendly. How about parties who denounce their `pseudo-secularism` accusing them of `minority appeasement`? Will the policies hitherto followed to interpret state secularity entitle votaries of `cultural nationalism` to develop secularism to their liking? In view of the forthcoming possibility of change of guard this question merits serious consideration by all right-thinking citizens.

The writer is a former chairman of the National Minorities Commission and an ex-member, Law Commission of India.