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Secularism as Equal Citizenship

Promises and Threats

Sukumar Muralidharan (sukumar.md@gmail.com) teaches at the school of journalism, O P Jindal Global University, Sonipat.

A rejuvenation of the nationalist spirit, constructed in narrow terms of primordial identity is what the ruling party promises in its campaign for the Lok Sabha election. Though secularism was never a clearly defined or practised principle, the explicit signals of retreat from the promise of formal equality represent a clear and perilous regress.

Three legislative proposals introduced in the penultimate session of the current Lok Sabha, were advance intimation of the Bharatiya Janata Party (BJP) campaign themes. These were Citizenship (Amendment) Bill, the Triple Talaq Bill, and reservation for economically weaker sections. Cumulatively, the three reaffirmed the Hindutva construct of nationalism and reproached all other parties for abandoning that basic identity in their anxiety to play the politics of appeasement. A concurrent judicial manoeuvre sought to reclaim a site in Ayodhya scarred by strife, proclaiming the symbolic triumph of one faith over another.

After seeking to hustle the Ayodhya issue through its appeal process in the Supreme Court, the BJP briefly considered an ordinance to appropriate the land under dispute for the purpose of a temple. That plan was abandoned presumably, because executive pre-emption of a matter under judicial consideration seemed a risky flirtation with impropriety. When the Supreme Court decided on 8 March 2019, that it would refer the disputed land title to a three-member team of mediators, the BJP was none too pleased.

Earlier efforts at mediation failed in part because of the veto exercised by the BJP fraternity, and its obduracy in insisting that the faith of the country’s largest religious community was not negotiable. There has since been little hint of hardliners retreating from that posture.1 The mediation team is sworn to strict confidentiality and will work under a tight deadline of eight weeks. The likely impact on the course of the general election remains uncertain. And the moratorium on public disclosures is no assurance that political comment, especially during a contentious election campaign, will conform to basic norms of civility.

On the campaign trail through three northern states in November 2018, Prime Minister Narendra Modi accused the Congress party of pressuring Supreme Court judges, on pain of impeachment, to delay the Ayodhya title suit. Out of the 520 seats at stake in the three state legislatures, candidates of the Muslim faith won 11, and this was considered a breakthrough since in the outgoing assemblies, they had precisely three. If true, the Congress’s high-risk strategy of strong-arming the Supreme Court for the meagre political reward of a handful of seats, points towards a serious deficit of political imagination. And it is a measure of the party’s deep discomfiture at the accusation of indifference to the majority faith that it played a stodgy game of defence, going out of its way to declare on its campaign manifestos, a deep fealty to the precepts of Hindutva as defined in the BJP discourse.

Legislative Threats

At the moment of its birth, the Indian republic adopted a definition of citizenship that was agnostic towards religious identity. A law enacted in 1955 formalised conditions under which citizenship would be a birthright, and other conditions under which it could be obtained by registration. Identity criteria were absent in the latter, only a residence requirement was asked for. An amendment proposed in 2016, referred to a select committee and reintroduced in January 2019, allows a fast track to citizenship for members of five religious communities—Hindu, Christian, Buddhist, Zoroastrian and Jain—admitted into the country as refugees from three neighbouring countries of predominantly the Muslim faith.

In another signature initiative, the BJP government introduced a bill that would make summary divorce under Muslim customary law—the pronouncement of the “triple talaq”—a criminal offence. The Supreme Court had by majority ruling in August 2017, held the practice in breach of the basic rights of the female partner, giving anybody subject to summary divorce the legal remedy of claiming civil damages for desertion. The proposed amendment adds the additional jeopardy of imprisonment on criminal charges, potentially depriving the male partner of access to his livelihood while imposing the civil liability of maintenance to an abandoned spouse.

Political consensus failed at this point. With passage through the Rajya Sabha uncertain, both bills were allowed to lapse. A third legislative initiative from the government was nothing less than a constitutional amendment, creating a new class of entitlements for citizens who meet a yet undefined criterion of poverty. Affirmative action, or a policy of assured opportunities for certain classes in education and public sector employment, is a time-honoured remedy for deficits of social and educational capital. In the case of Indira Sawhney (Indira Sawhney and Others v Union of India 1992), the Supreme Court decided that reservations on an income criterion did not meet the test of validity under the Constitution.

Material deprivation was often the consequence of wider social and educational debilities, and constitutional provisions were available for their remedy without notifying a specific class of citizens as beneficiaries on grounds of poverty. Economic deprivation could be addressed through fiscal policies, and the subtext of the proposal to reserve 10% of public sector jobs for the economically underprivileged is an unwitting admission of failure on the distributive justice front. Decades of jurisprudence have been overturned and multiple uncertainties caused in how a complex system of affirmative action will cope with the new wild card.

While it remained in play, the Citizenship (Amendment) Bill stirred up deep resentments in the north-eastern states. For the BJP, which in July 2018 had made an ambitious pitch for mass support through the National Register of Citizens (NRC), it was a gamble with unpredictable consequences. The NRC as an effort at separating the Indian citizen from the immigrant, was promised under the Assam Accord signed between Rajiv Gandhi’s administration in 1985 and a rebellious student movement on the cusp of transformation into a political party. But it was delayed for many years because of the sheer complexity of separating citizen from immigrant in a region of shifting topographies and diverse ethnicities, where identity papers are a rarity for current, not to mention past, generations. When completed, the NRC enumeration presented four million out of Assam’s known population of 33 million with the prospect of a grim stateless future. In neighbouring West Bengal, there was an explosion of fury.

The BJP’s strategy may have been to risk the ire of West Bengal for the political reward of consolidation in Assam and other north-eastern states, where immigration triggers deep sensitivities. It proceeded soon afterwards, to overturn that calculation with the citizenship law amendment. The Asom Gana Parishad (AGP), successor to the student body that negotiated the Assam Accord, pulled out of its alliance with the BJP amid a wave of protest. With the bill having since lapsed, the AGP has embraced the alliance afresh, though without securing an assurance that the BJP will abandon the citizenship law amendment.

A selective morality speaks out loud in the concern shown for refugees from Muslim majority countries in India’s neighbourhood. Earlier in 2018, contesting a petition to halt the forced repatriation of Rohingya Muslim refugees fleeing military atrocities in Myanmar, the government submitted to the Supreme Court that India could not become the “refugee capital of the world.” There has since been a pattern of hostile actions against Rohingya refugees across settlements in India.2

Alibis could be offered for this pattern of behaviour, but none really viable.3 In the assessment of responsible United Nations agencies, the Rohingya are refugees from a cycle of violence that have “all the hallmarks of genocide.” If India’s reluctance to bear the refugee burden is a consequence of economic incapacity, that would not square with its eagerness to accept people of five other faiths with a fast-track offer of citizenship.

Worries that India’s proposed citizenship law amendment violated the right to equality under the Constitution were easily, even rather facetiously, finessed. An alien cannot count upon this protection of the Indian state, since equality is proffered as a right only to citizens. Yet even with all possible critiques exhausted, one remained with troubling persistence: the proposed amendment was in effect, the imposition of a religious test for citizenship.

Ambiguous Secularism

Never formally defined, Indian secularism does not go so far as the United States (US) constitution, in firmly mandating the “disestablishment” of religion. Though prone to infirmities in interpretation, the US constitution’s first amendment principle, that no law could be made relating to the “establishment of any religion,” was among the grounds on which several courts struck down President Donald Trump’s move early in his tenure, to ban the entry of citizens from a number of Muslim majority countries. After three iterations that sought to bring the notification in closer alignment with legal fundamentals, and a narrowing of the scope of the ban to fewer countries, the US Supreme Court upheld it by a majority of one, while chiding Trump for his frequent public utterances suggesting that religious animus rather than security calculations, lay behind the move.

Secularism in India rests on infirm foundations, having been written into the Constitution in 1976 by the ill-remembered “emergency” regime. Though the Constituent Assembly witnessed a lengthy debate on religion in public life, the final outcome was ambiguous. The freedom to profess, practise and propagate all religions was written into the fundamental rights, limited only by the dictates “public order, morality and health.” Regulations and restrictions were permitted by law on any “economic, financial, political, or other secular activity that may be associated with religious practice,” establishing a principle of state primacy. Constitutional articles that prohibited religious instruction in publicly-funded educational institutions, acknowledged the principle of disestablishment, before diluting it with another article permitting every denomination or sect to establish and maintain religious and charitable institutions. Yet another article prohibiting any manner of religious tax or levy on citizens, shifted the balance back towards a principled distance between church and state.4

In this mix of ambiguity, actual political practice came to be marked by mixtures in varying proportions of religious confessionalism, a brand of secular practice dignified by the slogan “sarva dharma samabhava.” Though a dubious ideological inheritance, the BJP’s effort today to transform that variegated mix into monotonic uniformity promises a future of turbulence. Prime Minister Modi’s assertion that two recent rulings of the Supreme Court, both connected to religious practice, are fundamentally different, affords some sense of how this skewed perception could tilt the balance away from a semblance of equality. The outlawing of summary divorce process under Islamic law is a laudable assertion of gender equality, said Modi in an interview to usher in the new year on 1 January; but opening the Sabarimala shrine in Kerala to pre-menopausal women is a transgression of hallowed tradition.5

Secularism was vigorously debated in the Constituent Assembly, though with varying inflections. A first draft of the Constitution conceived of equality before the law as a principle embedded in strong guarantees of minority rights. In the aftermath of partition, seen as the outcome of the community-based template of political competition introduced under British rule, Sardar Vallabhbhai Patel spoke of the “changed circumstances” which warranted a redefinition of basic principles. Minority representation was discussed at length and set aside as a superfluity. There was no case for assured representation on communal lines, since the guarantees of equality before the law and access to public services and employment would ensure fair outcomes for all. Both separate electorates and assured communal representation were unthinkable, nothing less than an incentive for certain citizens to “exclude” themselves and “remain perpetually in a minority.”6

Equality embraced the right to be different, though not a difference in rights. Exceptions would apply only for classes of citizens suffering a deficit of social and cultural capital, that were not remediable through the guarantees of equality and fair opportunity.7 But with all this, the Constitution felt compelled to create a rubric of a “minority,” though defined in a very slippery fashion.8

Equal citizenship based on a charter of rights was a principle that the Constituent Assembly members could easily embrace. In the real world of dislocation and trauma outside, partition triggered a number of local vigilante efforts to inscribe a narrower identity on the incipient nation. The surreptitious introduction of idols into the Babri Masjid at Ayodhya, where a dispute over building rights on an adjacent site had simmered since the late 19th century, was one such act, though by no means the only one.9

It is on record that Prime Minister Jawaharlal Nehru wrote insistently to the chief minister of Uttar Pradesh at the time, Gobind Ballabh Pant, demanding that the idols smuggled into the Babri Masjid be removed. Less known is his suggestion in a 1949 letter to the Minister of Works and Housing, Mehr Chand Khanna, of a wider problem involving the expropriation of a number of Muslim places of worship.10

Nehru’s insistence on the reversal of these intrusions gradually receded from the attention span of governments at state and local levels. Ayodhya, like the numerous other incidents from the time, would have faded into the recesses of memory, had not the politics of waning upper-caste hegemony and the decline of the Congress provided occasion for it to spark back to life. Several of the toxic ingredients of the ideology that led to partition, emerged afresh at this point. There was a revival of the stigma attached to people of the Muslim faith, for their sin of having divided the sacred topography of the country and for their insistence on maintaining a separate identity within India, while courting special favours from opportunistic and unprincipled governments led by the Congress party.

Of State and Religion

Nehru’s so-called “appeasement” of minority identities began to be contrasted with the greater awareness shown by his putative rival Sardar Patel, of the need for a revival of the national spirit. The new normal in the majoritarian offensive also required a recasting of the nationalist pantheon. Modi’s commitment to building a Patel statue to epic scale, was an early intimation of this intent, which also served the ideological project of diminishing the Congress, which he has insistently portrayed as dynastic heir to all the sins of India’s first Prime Minister. Inaugurating the Patel statue in October 2018, Modi waved aside critics of the extravagant project. A unified India, he said, was Patel’s bequest; but for him, devotees of Lord Shiva would require visas today to visit the coastal Gujarat shrine of Somnath. This dubious factoid runs through Modi’s narrative, alongside another, that Nehru had opposed the rebuilding of Somnath.

Nationalist historiography recognises three recalcitrant princely states—Jammu and Kashmir, Hyderabad and Junagadh—whose integration into the Indian Union is a story of subtle statesmanship and purposive military coercion. In the political inflection that the BJP imparts, Nehru is seen as indecisive and effete, while Patel’s determination and iron will were instrumental in concluding all three episodes to India’s advantage.

In a more factual version currently being discovered amid the ideological detritus of partition and its reading within the teleologies of the modern nation, the integration of Jammu and Kashmir was preceded by a fearsome bloodbath unleashed by the Dogra Maharaja against his subjects in the border regions of Poonch, and the military action in Hyderabad was followed by perhaps a more heinous massacre. These retrievals of history sit alongside similar stories recorded from other princely states, where large-scale atrocities against people of the minority faith occurred, such as Alwar and Bharatpur.11

Junagadh’s accession, which Prime Minister Modi was gesturing towards as he spoke of devotees requiring a visa to visit Somnath, did not on available reckoning, involve similar atrocities. But as with all such matters involving the quest for moral clarity, it is useful to look towards M K Gandhi, whose speeches at the time gently deprecate the triumphalism and speak urgently of reconciliation.

Addressing a prayer meeting on 27 November 1947, as the fate of Jammu and Kashmir hung in the balance, Gandhi spoke out against the Dogra Maharaja and his Prime Minister. He was worried about the spiral of violence, but encouraged by the visit by Sheikh Mohammad Abdullah to Jammu. “There had been considerable excesses by the Hindus there,” Gandhi said:

I don’t know if what happened in Jammu was at the instance of the Maharaja. ... But these things happened and it is a matter of great shame for us. Still Sheikh Abdullah did not lose his balance and the Hindus in Jammu fully supported him.

Gandhi was grateful at the integration of Junagadh after a brief army siege, but alive to potential signs of trouble in “Kathiawar,” as he saw the region he had been born and raised in. Strife in the region was something he could not countenance. “I have received a telegram from a Muslim at the right moment,” he said:

Kathiawar is a region where the Muslims used to live in peace and nobody ever disturbed them. … Now, in that same Kathiawar such a situation has developed that they wonder if they can live there at all. … for me, this is unbearable because I was born in Kathiawar, and I know all the Princes and thousands of people there.12

It was in this mood of estrangement, if not overt violence, that Sardar Patel visited Junagadh in the company of the Union Minister for Public Works, N V Gadgil. In a later memoir, Gadgil recorded the moment a decision to construct Somnath was made. “One morning, while walking on the beach, the idea of the restoration occurred to me and I mentioned it to Vallabhbhai,” he wrote. Patel apparently approved of the project and Gadgil subsequently made an announcement of the intention to “restore the ancient glory that Somnath once was.”

Gadgil had in mind a project his department would execute, though he soon ran into a snag:

Earlier it had been decided to undertake the work through the central government. Nehru did not approve. On Gandhi’s advice it was decided to entrust the work to a Trust which would have one representative of the central government.

Sardar Patel had died by the time reconstruction was completed, but in one of the first instances of conflict between independent India’s heads of state and government, Nehru firmly set his face against any manner of official patronage of the inaugural. President Rajendra Prasad nonetheless went ostensibly in his “personal capacity” and delivered an anodyne speech celebrating the richness of India’s cultural heritage.13

Nehru’s tussle with the President was an early assertion of his determination to keep religion out of state policy. At a time when calls for the government to actively sponsor another temple building project, this time at Ayodhya, have begun to resonate on the campaign trail, the Somnath chapter will be variously and mostly inaccurately, rehashed. Yet, if the reconstruction of Somnath was a gesture of triumphalism that did little to soothe the deeply troubled mood after independence, the project at Ayodhya is a sign that the ghosts of partition are yet to be laid to rest.

In Conclusion

It is perhaps most ominous that the judiciary, designated under the doctrine of separation of powers, as the guardian of constitutional rectitude against the majoritarian temptation, has not been free from the delirium. Amid the litigation that has sprouted around the Ayodhya issue, lawful restitution as a principle seems lost. So too, has criminal liability for the destruction of a 450-year-old monument on 6 December 1992.

In 1994, ruling on a plea that the government’s acquisition of the disputed area violated the equality principle, the Supreme Court enunciated a principle of the “comparative significance” of the land in question. It entered into a disquisition on “essential” religious practices to determine that a mosque, as a place of worship, is dispensable since prayer under the faith of Islam “can be offered anywhere, even in the open,” and mosques often ceased to be sites of worship after years of adverse possession. Since the Hindu faith too had an emotional investment in Ayodhya, anxiety over disproportionate harm caused one side was misplaced.

Meanwhile, the highest judicial bench also felt obliged to reiterate the self-evident truth that “the act of lynching is unlawful,” even if it has become “a sweeping phenomenon with a far-reaching impact.” There is much unintended irony in this, as also in the affirmation that the state has a “positive obligation to protect the fundamental rights and freedoms of all individuals irrespective of race, caste, class or religion.”14 That was the promise of equality that the Indian republic offered at the moment of its founding and it is something of a mortifying comment that seven decades later, the principle has to be reiterated in almost ritualist fashion by the highest judicial bench. The reality outside continues to defy those aspirations, as evidenced in the Supreme Court dictating in the same matter, a roster of duties to the executive, laying down principles such as the registration and investigation of lynching crimes, that should have been part of the basic training of the guardians of the law. That is eloquent testimony to how far the Indian republic has drifted, especially in the last five years, from its foundational promise of equality before the law.

Notes

1 The history of the Ayodhya dispute is presented in a series of documents, edited with annotations by A G Noorani (2003). Parts dealing with earlier mediation efforts are at pages 252ff.

2 Mid-January, India’s Border Security Force entered into a tense face-off with Bangladeshi counterparts over its effort to transfer some 31 refugees—16 of them children—across the border. The Hindu (2019) reported the incident with a New Delhi dateline and with official denials about any intent to “push” the refugees across the border. In the Bangladeshi press, as for instance in Daily Star (2019), the incident was reported from the border town of Brahmanbaria and described as a clear effort to push across the border a number of individuals with no clear claim to Bangladeshi citizenship, but ample documentation as refugees.

3 The United Nations (UN) Convention on Refugees, agreed in 1951, prohibits the forced repatriation of refugees in situations where they would be exposed to danger. But India is not a signatory to the convention and can claim freedom from this principle of “non-refoulement.” India is however, a signatory to the UN Convention Against Torture which spells out a clear principle in Article 3, that no state party “shall expel, return or extradite a person to another state where there are substantial grounds for believing that he would be in danger of being subjected to torture.” But India’s signing of the convention in 1997 in what seemed a brief visitation of ethical responsibility under the I K Gujral government, was not followed by its ratification.

4 The multiple layers and themes of the Constituent Assembly debates on religion are usefully presented in Tejani (2007: ch 6), and Bajpai (2011: ch 3).

5 The interview was recorded for telecast on New Year’s day 2019 by the news agency Asian News International. Its full transcript is available at NDTV (2019).

6 The quotes are at Rochana Bajpai (2011: pp 52–3, 120, 122).

7 The theme is addressed in Bajpai (2011), ch 4; also Tejani (2007), pp 257–60. Jaffrelot (2011: 7) describes the outcome of the Constituent Assembly debate on the question as a “Jacobin” rejection of communities, after the French revolutionary faction to which is ascribed the denial of any intermediary level of belonging between the citizen and the modern nation state.

8 In 2007, the National Commission for Religious and Linguistic Minorities, headed by a former Chief Justice of India, Ranganath Mishra, observed that the words “minority” and “minorities” occur frequently in the Constitution, without ever being defined at any point. Under the National Commission on Minorities Act, passed in 1992, a “minority” is any social group that is defined as such by the central government. See Minorities (2007: 4).

9 An exceptionally detailed and colourful reconstruction of the events is available in Jha and Jha (2012); Noorani (2003: I: 201–18) provides the documentary record.

10 On 24 September 1948, Nehru wrote to Khanna, reporting a conversation at which Maulana Abul Kalam Azad had informed Sardar Patel of some 15 mosques in Delhi, “which had been converted into some kind of temples with an idol installed inside them.” That was seemingly the first that Nehru had heard about it and he recorded how Patel was “most anxious to remove these temple emblems,” though preferable without using the police and in a “cooperative” fashion. Nehru underlined the “great significance” of the matter and urged Khanna to give it “some priority,” proceeding “in full cooperation with the Delhi authorities.” See Nehru (1948).

11 The incidents in Jammu and Kashmir are recounted by Snedden (2011); Muralidharan (2014) provides an account of relevant literature on Hyderabad. Mayaram (1997) deals with the events of Alwar and Bharatpur in depth. A briefer and more accessible account is at Mayaram (2000).

12 The full text of the speech can be found in the Collected Works of Mahatma Gandhi, Vol 97, pages 401–10.

13 The sequence of events is recounted in Noorani (2003: 11–15).

14 In the Teheseen Poonawala case (2018) [https://indiankanoon.org/doc/60399933/], the Supreme Court also prescribes an elaborate hierarchy in the police department, going from the district to the state capital, to monitor hate crimes and to ensure that they do not enjoy impunity.

References

Bajpai, Rochana (2011): Debating Difference, Group Rights and Liberal Democracy in India, Delhi: Oxford University Press.

Daily Star (2019): “No Resolution for Stranded Rohingyas,” Brahmanbaria, viewed on 19 March 2019, https://www.thedailystar.net/frontpage/news/no-resolution-stranded-rohin...
1690498.

Hindu (2019): “India Takes Back 31 Stranded Rohingya; BSF, Bangladesh Border Guards Stand-off Ends,” New Delhi, viewed on 19 March,
https://www.thehindu.com/news/national/bsf-hands-overs-31-rohingya-to-tr....

Indra Sawhney and Others v Union of India, 1992: SCC (L&S) Supp 1; Supp (3) SCC 217.

Jaffrelot, Christophe (2011): Religion, Caste and Politics in India, London: Hurst.

Jha, Dhirendra K and Krishna Jha (2012): Ayodhya: The Dark Night, The Secret History of Rama’s Appearance in Babri Masjid, Delhi: Harper Collins India.

Mayaram, Shail (1997): “Speech, Silence and the Making of Partition Violence in Mewat,” Subaltern Studies IX: Writings on South Asian History and Society, Shahid Amin (ed), New Delhi: Oxford University Press.

Mayaram, Shail (2000): “Recreating the Politics of Genocide,” Hindu, viewed on 19 March, https://www.thehindu.com/2000/12/03/stories/1303061h.htm.

Minorities (2007): National Commission for Religious and Linguistic Minorities, Report, Vol I, Ministry of Minority Affairs, New Delhi.

Muralidharan, Sukumar (2014): “Alternate Histories: Hyderabad 1948 Compels a Fresh Evaluation of the Theology of India’s Independence and Partition,” History and Sociology of South Asia, Vol 8, No 2.

NDTV (2019): “PM Narendra Modi’s Interview to ANI: Full Transcript,” Asian News International, viewed on 18 March, https://www.ndtv.com/india-news/pm-narendra-modi-interview-to-ani-full-t....

Nehru, Jawaharlal (1948): “Letter to Mehr Chand Khanna,” 24 September, Selected Works of Jawaharlal Nehru, S Gopal (ed), 2nd series, Vol 7, 1988, p 16.

Noorani, A G (ed) (2003): The Babri Masjid Question, 1528 to 2003, Vol I, Delhi: Tulika Books.

Snedden, Christopher (2011): Kashmir: The Unwritten History, Delhi: HarperCollins.

Tejani, Shabnum (2007): Indian Secularism, A Social and Intellectual History, pp 890–1950, Delhi: Sage.

Updated On : 22nd May, 2019

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