January 07, 2016

India: Constitution and secularism (A.G. Noorani)

Frontline [Print edition : January 22, 2016]

Published on the web: January 6, 2016

Constitution and secularism

The 42nd Amendment made formal the Constitution’s basic commitment to the idea of a secular state—quite contrary to the BJP position that the amendment incorporated the idea in the Preamble. By A.G. NOORANI

UNION Home Minister Rajnath Singh’s remarks on November 26 during the Lok Sabha debate on “commitment to the Constitution” and Dr B.R. Ambedkar’s sterling contribution to its making deserve to be welcomed. They remove all doubt on the Bharatiya Janata Party’s (BJP) allergy to the nation’s credo of secularism. He asked for a moratorium on the use of the term “secularism”. He argued that Ambedkar had never thought of putting the term in the Constitution “but the word[s] ‘socialist’ and ‘secularism’ were incorporated in the Preamble through the 42nd Amendment. We have no objection. Let bygones be bygones.” Realising that he had let the saffron-hued cat out of the BJP’s bag, he went on to dilute his revealing remarks: “Dr Ambedkar had never thought of the necessity to incorporate it [sic] in the Preamble as these two words were part of the Constitution. It is inbuilt in the Indian system.”

Precisely. Then why refer to the 42nd Amendment at all? His discomfort with the credo is evident from his complaint: “Today, secularism is the most abused word. This abuse should stop as it abets communal tension.” Pray, how? Now read this expression of distaste straight from his heart: “We should instead use the term to mean ‘class neutral’. Even the Constitution-makers did not include the word secular in the Preamble because they knew our religion [read: Hinduism] was intrinsically secular and didn’t consider a separate mention essential” (emphasis added, throughout).

Constitutional illiteracy is combined with political deceit. Does the Constitution describe India as a democracy? It saw no need for that because the ideal is spelt out in specific provisions which mandate free and fair elections to the legislatures on the basis of adult suffrage with an independent Election Commission to monitor it. Next, the governments so elected, at the Centre and in the States, are made responsible to the directly elected legislature. The very Constituent Assembly that enacted the Constitution enacted the two Representations of the People Acts, 1950 and 1951.

Likewise, secularism is writ large in a mosaic of constitutional provisions; to wit, first on citizenship (Article 9); on non-discrimination on grounds of religion, race, caste, etc. (Article 15), generally and specifically in public employment (Article 16); the fundamental rights to freedom of religion individually (Article 25) and collectively (Article 26); ban on discrimination in state-aided educational institutions (Article 29(2)), on taxes for the promotion of religion (Article 27); on religious instruction in them (Article 28) and on exclusion from the general electoral roll on any such ground as well (Article 325). What does it all add up to but a secular state?

The BJP has always been uncomfortable with secularism. On September 16, 1990, in Kolkata, K.R. Malkani, its vice-president, urged a “redefinition” of secularism. On October 2, 1990, its president, L.K. Advani, frankly complained that “secular policy is putting unreasonable restrictions on Hindu aspirations”. He went on to assert at Ayodhya on November 19, 1990, that “henceforth only those who fight for Hindu interests would rule India”. Jaswant Singh felt “diminished” when Nepal ceased to be a Hindu state.

The BJP is heir to the Bharatiya Jana Sangh, which was founded by a former president of the Hindu Mahasabha, Syama Prasad Mookerjee, under a pact with the Rashtriya Swayamsevak Sangh (RSS) boss, M.S. Golwalkar. These elements were not only far outside the Congress movement but antagonistic to it. The Indian National Congress amended its constitution to exclude them from its membership. Article V(c) said: “No person who is a member of any elected Congress committee can be a member of a communal organisation, the object or programme of which involves political activities which in the opinion of the working committee are anti-national and in conflict with those of the Congress.” (Proceedings of the Working Committee, December 11-16, 1938.)

On June 5, 1947, B.M. Birla wrote to Vallabhbhai Patel: “I am so glad to see from the Viceroy’s announcement [of the Partition of India] that things have turned out according to your desire. It is no doubt a very good thing for the Hindus and we will now be free from the communal canker.

“The partitioned area, of course, would be a Muslim state. Is it not time that we should consider Hindustan as a Hindu state with Hinduism as the state religion? We have also to strengthen the country so that it may be able to face any future aggression.” Patel’s retort was swift. He replied on June 10, 1947: “I also feel happy that the announcement of 3 June at least settles things one way or the other. There is no further uncertainty. … I do not think it will be possible to consider Hindustan as a Hindu state with Hinduism as the state religion. We must not forget that there are other minorities whose protection is our primary responsibility. The state must exist for all, irrespective of caste or creed.” If a Hindu state was excluded, what other state had Patel in mind but a secular one? (Durga Das; Sardar Patel’s Correspondence; Volume 4; page 56.)

It took the BJP long to laud Gandhi and longer still to laud Ambedkar. This is what Ambedkar wrote in a Memorandum on the Rights of States and Minorities, dated March 24, 1947, which he submitted to the Sub-Committee on Fundamental Rights set up by the Constituent Assembly’s Advisory Committee on Fundamental Rights, Minorities, etc.: “Unfortunately for the minorities in India, Indian nationalism has developed a new doctrine which may be called the Divine Right of the Majority to rule the minorities according to the wishes of the majority. Any claim for the sharing of power by the minority is called communalism, while the monopolising of the whole power by the majority is called nationalism. Guided by such political philosophy the majority is not prepared to allow the minorities to share political power, nor is it willing to respect any convention made in that behalf as is evident from their repudiation of the obligation (to include representatives of the minorities in the Cabinet) contained in the Instrument of Instructions issued to the Governors in the Government of India Act of 1935. Under these circumstances there is no way left but to have the rights of the Scheduled Castes embodied in the Constitution.” (B. Shiva Rao; Select Documents; Volume 2, page 113.)

The Constituent Assembly Debates show that its members simply took secularism for granted and saw no need for its explicit mention. The Supreme Court has also held that secularism is part of the unamendable “basic structure” of the Constitution. What is more, the judges explicitly referred to the 42nd Amendment of 1976 and said that it only made explicit what was implied in the Constitution. Consult the Debates and the Supreme Court’s ruling and the BJP’s sophistry becomes all too clear. Member after member said, months before the Constitution was adopted, that India had “declared” secularism as its credo.

On December 3, 1948, Professor K.T. Shah moved this amendment. “The state in India being secular shall have no concern with any religion, creed or profession of faith; and shall observe an attitude of absolute neutrality in all matters relating to the religion of any class of its citizens or other persons in the Union.” He acknowledged that “We have proclaimed it time and again that the State in India is secular”. Members agreed with that. There was no need to state the obvious. The amendment got nowhere. (Constituent Assembly Debates; Volume 7, page 815).

On the same day, Lokanath Misra also said: “We have declared the state to be a secular state” (ibid). On December 6, H.V. Kamath said: “We have certainly declared that India would be a secular state” (ibid, page 825). He was followed by Pandit Lakshmi Kanta Maitra, who said: “By secular state, as I understand it, is meant that the state is not going to make any discrimination whatsoever on the ground of religion or community against any person professing any particular form of religious faith. This means in essence that no particular religion in the state will receive any state patronage whatsoever. The state is not going to establish, patronise or endow any particular religion to the exclusion of or in preference to others and that no citizen in the state will have any preferential treatment or will be discriminated against simply on the ground that he professed a particular form of religion. In other words in the affairs of the state the possessing of any particular religion will not be taken into consideration at all” (ibid, page 831). On December 7, 1948, M. Ananthasayanam Ayyangar, later Speaker of the Lok Sabha, acknowledged: “We are pledged to make the state a secular one” (ibid, page 881).

Jawaharlal Nehru’s exposition of the provisions brings out the nuances of secularism. He said on August 12, 1949: “One word has been thrown about a lot. I should like to register my strong protest against that word. I want the House to examine the word carefully and it is that this government goes in for a policy of appeasement, appeasement of Pakistan, appeasement of Muslims, appeasement of this and that. I want to know clearly what that word means. Do the honourable Members who talk of appeasement think that some kind of rule should be applied when dealing with these people which has nothing to do with justice or equity? I want a clear answer to that. If so, I would only plead for appeasement. This government will not go by a hair’s breadth to the right or to the left from what they consider to be the right way of dealing with the situation, justice to the individual or the group.

“Another word is thrown up a good deal, this secular state business. May I beg with all humility these 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. It has a great deal of importance, no doubt. But, it is brought in all contexts, as if by saying that we are a secular state we have done something amazingly generous, given something out of our pocket to the rest of the world, something which we ought not to have done, so on, and so forth. We have only done something which every country does, except a very few misguided and backward countries in the world. Let us not refer to that word in the sense that we have done something very mighty.” (Constituent Assembly Debates, Volume 10; pages 398-401.)

The Congress was pledged to secularism since its birth. The Sangh Parivar, in its various avatars, opposed it and opposed the freedom movement itself. The Supreme Court put the imprimatur of its approval of “secularism” as part of the unamendable “basic structure” of the Constitution when it heard a batch of petitions on the imposition of President’s Rule in the States. The one in which it commented on secularism was the one that challenged the validity of the Centre’s dismissal of BJP-ruled States after the demolition of the Babri Masjid on December 6, 1992.

S.R. Bommai & Ors. vs. Union of India & Ors. was decided by the Supreme Court on March 11, 1994, ((1994) 3 Supreme Court Cases). In a bench of nine judges, seven judges held secularism to be part of the basic structure. They were A.M. Ahmadi, P.B. Sawant and Kuldip Singh with Ratnavel Pandian concurring; K. Ramaswamy and Jeevan Reddy with S.C. Agrawal concurring.

Justice Ahmadi said: “Notwithstanding the fact that the words ‘socialist’ and ‘secular’ were added in the Preamble of the Constitution in 1976 by the 42nd Amendment, the concept of secularism was very much embedded in our constitutional philosophy. The term ‘secular’ has advisedly not been defined presumably because it is a very elastic term not capable of a precise definition and perhaps best left undefined. By this amendment what was implicit was made explicit. The Preamble itself spoke of liberty of thought, expression, belief, faith and worship. …I am, therefore, in agreement with the views expressed by my learned colleagues Sawant, Ramaswamy and Reddy, JJ, that secularism is a basic feature of our Constitution” (pages 77-78).

Justices Sawant and Kuldip Singh held: “Secularism is a part of the basic structure of the Constitution. The acts of a State government which are calculated to subvert or sabotage secularism, as enshrined in our Constitution, can lawfully be deemed to give rise to a situation in which the government of the State cannot be carried on in accordance with the provisions of the Constitution” (page 149). Justice Ramaswamy said: “The Constitution has chosen secularism as its vehicle to establish an egalitarian social order. I am respectfully in agreement with our brethren [P.B.] Sawant and [B.P.] Jeevan Reddy, JJ, in this respect. Secularism, therefore, is part of the fundamental law and basic structure of the Indian political system to secure to all its people socio-economic needs essential for man’s excellence and of [sic] his moral well-being, fulfilment of material prosperity and political justice”(page 170).

What Justices Jeevan Reddy and S.C. Agrawal noted should educate Rajnath Singh. “The significance of the 42nd (Amendment) Act lies in the fact that it formalised the pre-existing situation. It put the matter beyond any doubt leaving no room for any controversy. In such a situation, the debate whether the Preamble to the Constitution is included within the words ‘the provisions of this Constitution’ is really unnecessary. Even if we accept the reading of Shri Jethmalani, Preamble is a key to the understanding of the relevant provisions of the Constitution. The 42nd (Amendment) Act has furnished the key in unmistakable terms.” He added: “The fact that a party may be entitled to go to people seeking a mandate for a drastic amendment of the Constitution or its replacement by another Constitution is wholly irrelevant in the context. We do not know how the Constitution can be amended so as to remove secularism from the basic structure of the Constitution. Nor do we know how the present Constitution can be replaced by another; it is enough for us to know that the Constitution does not provide for such a course—that it does not provide for its own demise” (pages 236-237).

In his judgment, Justice Sawant quoted from the BJP’s Manifesto, which read thus: “BJP firmly believes that construction of Sri Ram Mandir at Janmasthan is a symbol of the vindication of our cultural heritage and national self-respect. For BJP it is purely a national issue and it [sic] not allow any vested interest to give it a sectarian and communal colour. Hence the party is committed to build Sri Ram Mandir at Janmasthan by relocating superimposed Babri structure with due respect.”

Justice Sawant noted that: “(ii) Leaders of the BJP had consistently made speeches thereafter to the same effect. (iii) Some of the Chief Ministers and Ministers belonged to RSS which was a banned organisation at the relevant time. (iv) The Ministers in the Ministries concerned exhorted people to join kar seva in Ayodhya on 6 December 1992. One MLA belonging to the ruling BJP in Himachal Pradesh made a public statement that he had actually participated in the destruction of the mosque. (v) Ministers had given public send-off to the kar sevaks and had also welcomed them on their return after the destruction of the mosque. (vi) The implementation of the policy pursuant to then … of the RSS was to be executed by the Ministers who were themselves members of the said organisation. (vii) At least in two States, viz., Madhya Pradesh and Rajasthan, there were atrocities against the Muslims and loss of lives and destruction of property.”

To no one’s surprise, Justice J.S. Verma, (Justice Yogeshwar Dayal concurring), studiously remained silent on the aspect of secularism. He delivered the majority judgment in the Babri Masjid case in which he went out of his way to make gratuitous remarks which would support the Hindu case. The Bench split along communal lines. The two judges of the Allahabad High Court at Lucknow who decided the Babri Masjid case copiously quoted from Justice Verma’s “helpful” judgment.

The day after Rajnath Singh initiated the debate, Prime Minister Narendra Modi replied. What he said is of absorbing interest: “In the year 2009, I was the Chief Minister of a State and when sixty years of the Constitution were completed then we had put the copy of the Constitution on the back of an elephant with grace and dignity. We had taken out a procession and the Chief Minister walked on foot before the elephant so as to make the people aware about the great importance of the Constitution. We had celebrated the completion of the sixty years of the Constitution in such a manner in Gujarat as I was the Chief Minister there. Therefore, we fully understand the value of our Constitution.” This impressive ceremony has no precedent in the annals of the celebrations of any Constitution.