2015 was an
interesting year for India. It began with the NITI Aayog replacing the Planning
Commission, the institution that had set the country’s development agenda for
more than half a century. It ended with PM Modi infusing new vigour into
India-Pakistan diplomacy. And in between ISRO sent up India’s first space
observatory, the Supreme Court struck down Section 66A of the IT Act, Bihar
elected Nitish Kumar to power again and Chennai recorded the highest rainfall
it had received in 100 years (to put it mildly). Yet the story that probably
dominated maximum newsprint and mind-space was the death of Mohammad Akhlaq at
the hands of a lynch-mob in Dadri, UP. It threw up questions on
tolerance, secularism, and divided public opinion (if Twitter is a gauge for
public opinion, in any case) like no other. Hence, at the end of 2015, it is
worth an attempt to summarise the substantive changes that with respect to
secularism and religious rights.
The Constitution
and Indian Secularism
It is worth the
effort to clarify the semantics at the outset, since disagreements are often a
result of differences in understanding.
Indian State:
Secularism and Tolerance
Secularism is a
more accurate adjective for institutions or the state than people. So it is
unfair to talk of the Dadri incident as an indictment of the failure of Indian
secularism. After the event, as is its duty in any case, the police
investigated the incident and the state took measures rehabilitate the family
of the victims[iii]. In the process, some (either part
of the government, or part of the ruling party at the Centre) made worrying
statements that seemed to justify the lynching[iv][v]. The protests by civil society that followed were
against this bigotry, not against the Indian state. Of course the discussion
finally degenerated into slanging matches on Twitter and assertions and counter-assertions
of ‘India is tolerant/ intolerant’, which did not do anything for demanding
accountability of ministers, and everything to polarise further. In this din,
areas where we should have been raising questions got ignored. For example in
November, the Punjab Cabinet approved an amendment that would allow those
guilty of ‘sacrilege’ to be given life imprisonment[vi].
Section 295A of the Indian Penal Code (IPC) already provides for a punishment
of three years or fine or both in case of “[vii]
Then there was the
Government of Maharashtra which faced criticism twice this year-first for the
ban on the slaughter of bulls and bullocks in Maharashtra (cow slaughter having
been banned earlier), and second, the proposed meat ban during the days that
Jains observe Paryushan. Both times, they were accused
of impinging on individual liberties and the right to livelihood, in order to
appease a section of their vote-bank. More generally, the issue raised the
question of whether religious sentiment and religious rights should be honoured
above other fundamental rights-a subject matter for the judiciary for the
coming years.
The Indian
Judiciary and Secularism: No gain, (maybe) some loss
Article 21 of the
Constitution states than an individual cannot be deprived of his right to life
and liberty except through procedure established by law. Through the years, the
judiciary has taken a broad view of this and included within the right to life,
the right to livelihood, the right to live with human dignity, the right to
shelter, the right to decent environment including pollution free water and
air, among others. A petition to the Supreme Court invoked this last right,
asking for a ban on the bursting of firecrackers during Diwali[viii].
The important question is whether burning crackers is an essential practice
under Hinduism (and hence protected under Article 25). There are also attached
questions of individual liberty, though there may be reason to curb individual
liberties if they cause substantial negative externalities to others, and the
right to livelihood of those working in the fireworks industry. Either way, the
Supreme Court did not take a decision on it this year, with the next hearing
scheduled for 2016.
The other case
where the conflict between the right to life and religious practices remained
unresolved was on the Jain practice of Santhara in which Jains renounce food
and water towards the end of their lives. The adherents of Jainism do not
consider this to be suicide, but an act of ‘purification’ that is practised
only when the process of natural death has already started. However, in Nikhil
Soni v Union of India, the Rajasthan High Court (HC) directed the state to
abolish the practice, reasoning that it violated Sections 306 and 309 of the
IPC (suicide and abetment to suicide respectively) as the right to life did not
include within it the right to die. Moreover, it argued that the Santhara is not
an essential practice under Jainism, and thus need not be protected by Article
25. The decision was criticised on both grounds-that Santhara is in
fact an essential religious practice, and secondly that while the Supreme Court
did not recognise the right to die, it did recognise the right to die with
dignity[ix]. The Supreme Court later stayed this
decision, and will take the final call on this in the years to come.
An issue where we did get
a decision from the Supreme Court this year was on whether the principles in
the Agamashastras could be used to appoint archakas (priests)
to temples. Agamas are scriptures that detail the manner in which worship is to
be conducted in temples following Vaishnavism, Shaivism and Shaktism. In
2002, the Supreme Court had affirmed that priestly appointments were a secular
activity [thus open to state intervention under Article 25] and upheld the
right of non-Brahmins to be appointed as priests. Accordingly the Tamil Nadu
government issued an order allowing all individuals (irrespective of caste) to
be appointed as priests in Agama temples, also opening institutes to impart
training for this purposes[x]. The present case
revolved around the challenge to this government order. The Supreme Court this
time invoked Article 16 (5) which says that equality of opportunity in public
employment does not render any law illegal that provides for only a member of a
particular denomination to hold an office associated with the affairs of that
religion or denomination[xi]. For example, in the
appointment to a temple of the Vaikhanasa sect, it was membership of the
prospective priest to that sect, that mattered, not caste per se. Hence, the
court ruled that temples could appoint archakas in accordance
with the Agama scriptures as long as the principles contained therein were not
in violation of the Constitution. Whether the principles contained in a
particular Agama were unconstitutional or not, the judgment said, could only be
determined on a case to case basis[xii].
The problem with
this reasoning is that while it recognises that denomination matters-such that
not all Brahmins can become archakas in the temple of a
specific sect, it does not answer whether only some castes can
become archakas. For example, as the Hindu points out, the priests
in a Vaikhasana or Pancharatra temple have to descend from a particular gothra. This
may disqualify Dalits from priesthood completely, since categorised as
‘outcastes’ in the past, they may not have the status of being descendants of a
rishi at all[xiii].
Wish-list for
the New Year
2016 will probably
see some clarity on some of the issues above. Here is hoping that the judiciary
strikes the right balance between guarding religious rights while also
upholding individual liberties, and the rights to equality and life. Let’s also
hope that 2016 sees all governments, the Centre and the states, prefer
liberalism to populism. And lastly, let’s hope that as citizens (and otherwise)
we can begin to start having more civil debates and informed discussions on
secularism and religion in India.
[i] http://indiankanoon.org/doc/1983234/
2015 was an
interesting year for India. It began with the NITI Aayog replacing the Planning
Commission, the institution that had set the country’s development agenda for
more than half a century. It ended with PM Modi infusing new vigour into
India-Pakistan diplomacy. And in between ISRO sent up India’s first space
observatory, the Supreme Court struck down Section 66A of the IT Act, Bihar
elected Nitish Kumar to power again and Chennai recorded the highest rainfall
it had received in 100 years (to put it mildly). Yet the story that probably
dominated maximum newsprint and mind-space was the death of Mohammad Akhlaq at
the hands of a lynch-mob in Dadri, UP. It threw up questions on
tolerance, secularism, and divided public opinion (if Twitter is a gauge for
public opinion, in any case) like no other. Hence, at the end of 2015, it is
worth an attempt to summarise the substantive changes that with respect to
secularism and religious rights.
The Constitution
and Indian Secularism
It is worth the
effort to clarify the semantics at the outset, since disagreements are often a
result of differences in understanding.
Secularism means
that the state does not legally ally itself with any religion. In the West,
this has taken the form of a separation between Church and State. The Indian
Constitution also does not privilege any religion over another, but does allow
the state to intervene in matters of religion.
Article 30 extends the
right to religious minorities to establish and administer educational
institutions. Additionally, the state cannot discriminate against it when
granting funds to educational institutions[i]. More
crucially, Article 25, while granting individuals the right to follow, freely
practice, profess and propagate their religion (subject to health, morality and
public order),allows legislation to regulate or restrict secular activities
associated with religious practice. The State may also enact laws to bring
about social welfare and reform and is explicitly empowered to throw open ‘all
Hindu religious institutions of a public character’ to all classes and sections
of Hindus[ii].
One can argue about
how fair the implementation of Article 25 has been, but without the allowance
for reform, the purpose of a Constitution that went to great lengths to
guarantee equality and individual liberties to its citizens would be defeated.
This also means that the judiciary has to often step in to resolve conflicts
between religious rights and other rights to delineate when state intervention
is acceptable.
Indian State:
Secularism and Tolerance
Secularism is a
more accurate adjective for institutions or the state than people. So it is
unfair to talk of the Dadri incident as an indictment of the failure of Indian
secularism. After the event, as is its duty in any case, the police
investigated the incident and the state took measures rehabilitate the family
of the victims[iii]. In the process, some (either part
of the government, or part of the ruling party at the Centre) made worrying
statements that seemed to justify the lynching[iv][v]. The protests by civil society that followed were
against this bigotry, not against the Indian state. Of course the discussion
finally degenerated into slanging matches on Twitter and assertions and counter-assertions
of ‘India is tolerant/ intolerant’, which did not do anything for demanding
accountability of ministers, and everything to polarise further. In this din,
areas where we should have been raising questions got ignored. For example in
November, the Punjab Cabinet approved an amendment that would allow those
guilty of ‘sacrilege’ to be given life imprisonment[vi].
Section 295A of the Indian Penal Code (IPC) already provides for a punishment
of three years or fine or both in case of “[vii]
Then there was the
Government of Maharashtra which faced criticism twice this year-first for the
ban on the slaughter of bulls and bullocks in Maharashtra (cow slaughter having
been banned earlier), and second, the proposed meat ban during the days that
Jains observe Paryushan. Both times, they were accused
of impinging on individual liberties and the right to livelihood, in order to
appease a section of their vote-bank. More generally, the issue raised the
question of whether religious sentiment and religious rights should be honoured
above other fundamental rights-a subject matter for the judiciary for the
coming years.
The Indian
Judiciary and Secularism: No gain, (maybe) some loss
Article 21 of the
Constitution states than an individual cannot be deprived of his right to life
and liberty except through procedure established by law. Through the years, the
judiciary has taken a broad view of this and included within the right to life,
the right to livelihood, the right to live with human dignity, the right to
shelter, the right to decent environment including pollution free water and
air, among others. A petition to the Supreme Court invoked this last right,
asking for a ban on the bursting of firecrackers during Diwali[viii].
The important question is whether burning crackers is an essential practice
under Hinduism (and hence protected under Article 25). There are also attached
questions of individual liberty, though there may be reason to curb individual
liberties if they cause substantial negative externalities to others, and the
right to livelihood of those working in the fireworks industry. Either way, the
Supreme Court did not take a decision on it this year, with the next hearing
scheduled for 2016.
The other case
where the conflict between the right to life and religious practices remained
unresolved was on the Jain practice of Santhara in which Jains renounce food
and water towards the end of their lives. The adherents of Jainism do not
consider this to be suicide, but an act of ‘purification’ that is practised
only when the process of natural death has already started. However, in Nikhil
Soni v Union of India, the Rajasthan High Court (HC) directed the state to
abolish the practice, reasoning that it violated Sections 306 and 309 of the
IPC (suicide and abetment to suicide respectively) as the right to life did not
include within it the right to die. Moreover, it argued that the Santhara is not
an essential practice under Jainism, and thus need not be protected by Article
25. The decision was criticised on both grounds-that Santhara is in
fact an essential religious practice, and secondly that while the Supreme Court
did not recognise the right to die, it did recognise the right to die with
dignity[ix]. The Supreme Court later stayed this
decision, and will take the final call on this in the years to come.
An issue where we did get
a decision from the Supreme Court this year was on whether the principles in
the Agamashastras could be used to appoint archakas (priests)
to temples. Agamas are scriptures that detail the manner in which worship is to
be conducted in temples following Vaishnavism, Shaivism and Shaktism. In
2002, the Supreme Court had affirmed that priestly appointments were a secular
activity [thus open to state intervention under Article 25] and upheld the
right of non-Brahmins to be appointed as priests. Accordingly the Tamil Nadu
government issued an order allowing all individuals (irrespective of caste) to
be appointed as priests in Agama temples, also opening institutes to impart
training for this purposes[x]. The present case
revolved around the challenge to this government order. The Supreme Court this
time invoked Article 16 (5) which says that equality of opportunity in public
employment does not render any law illegal that provides for only a member of a
particular denomination to hold an office associated with the affairs of that
religion or denomination[xi]. For example, in the
appointment to a temple of the Vaikhanasa sect, it was membership of the
prospective priest to that sect, that mattered, not caste per se. Hence, the
court ruled that temples could appoint archakas in accordance
with the Agama scriptures as long as the principles contained therein were not
in violation of the Constitution. Whether the principles contained in a
particular Agama were unconstitutional or not, the judgment said, could only be
determined on a case to case basis[xii].
The problem with
this reasoning is that while it recognises that denomination matters-such that
not all Brahmins can become archakas in the temple of a
specific sect, it does not answer whether only some castes can
become archakas. For example, as the Hindu points out, the priests
in a Vaikhasana or Pancharatra temple have to descend from a particular gothra. This
may disqualify Dalits from priesthood completely, since categorised as
‘outcastes’ in the past, they may not have the status of being descendants of a
rishi at all[xiii].
Wish-list for
the New Year
2016 will probably
see some clarity on some of the issues above. Here is hoping that the judiciary
strikes the right balance between guarding religious rights while also
upholding individual liberties, and the rights to equality and life. Let’s also
hope that 2016 sees all governments, the Centre and the states, prefer
liberalism to populism. And lastly, let’s hope that as citizens (and otherwise)
we can begin to start having more civil debates and informed discussions on
secularism and religion in India.
[i] http://indiankanoon.org/doc/1983234/
[ii] http://indiankanoon.org/doc/631708/
[iii] Admittedly, the media reported that
the police team collected a sample of the meat consumed by the family the
previous night, unnecessary if the purpose was to find out who was involved in
the lynching.
[iv] http://indianexpress.com/article/india/politics/dadri-lynching-an-accident-dont-give-it-a-communal-twist-says-union-minister-mahesh-sharma/
[v] http://indianexpress.com/article/india/india-news-india/bjp-mp-yogi-adityanaths-outfit-offers-guns-to-hindus-in-dadri/
[vi] http://www.thehindu.com/news/national/other-states/punjab-cabinet-approves-life-term-for-acts-of-sacrilege/article7897918.ece
[vii] http://indiankanoon.org/doc/1803184/
[viii] http://www.tribuneindia.com/news/nation/supreme-court-refuses-to-ban-firecrackers/151582.html
[ix] http://www.thehindu.com/opinion/op-ed/the-flawed-reasoning-in-the-santhara-ban/article7572183.ece
[x] http://www.caravanmagazine.in/perspectives/sacred-rights
[xi] http://indiankanoon.org/doc/211089/
[xii] http://supremecourtofindia.nic.in/FileServer/2015-12-16_1450255713.pdf
[xiii] http://www.thehindu.com/news/national/archakas-verdict-supreme-court-gives-little-consideration-on-implementation-of-agamas/article7996598.ece
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