It has been an interesting year for India. 2015 began with the NITI Aayog replacing the Planning Commission that had till then set independent India’s development agenda every five years. It ended with Modi throwing his weight behind a more cooperative India-Pakistan relationship. And in between the Indian Space Research Organisation set up India’s first space observatory, the Supreme Court struck down Section 66A of the Information Technology 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, Uttar Pradesh. It threw up questions on tolerance, secularism, and divided public opinion (if Twitter is a gauge for public opinion) like no other issue. Hence, at the end of 2015, a review of the substantive changes that the media reported this year, with respect to Indian laws, secularism and religious rights, is warranted.
The Indian Constitution and 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 privilege any religion over another. In the West, this has taken the form of a separation between Church and State. The Indian Constitution, while not allying itself with or against any religion, does allow the state to intervene in matters of religion. For example, the state cannot discriminate against minority-run educational institutions (and minorities have the right to establish and administer such institutions) when granting aid. 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.
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 and other rights to delineate when state intervention is acceptable.
The Indian state: Religious sentiment versus individual liberty
Secular 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 to rehabilitate the family of the victims[i]. 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 or condone the lynching. 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. Section 295A of the Indian Penal Code (IPC) already provides for a punishment of three years or fine or both in case of “deliberate and malicious intention of outraging the religious feelings of any class of citizens of India”.
Then there was the government of Maharashtra that 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 beef ban issue, besides providing an opportunity for further displays of bigotry, 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 year.
Indian judiciary and religious rights: 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. 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 some adherents renounce food and water, and carry out a “fast-unto-death”. This to Jains is not suicide, but an act of “purification”, 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. The HC reasoned 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 not being an essential practice under Jainism, Santhara need not be protected by Article 25. The decision was criticised on two grounds — that Santhara is in fact an essential religious practice and that while the Supreme Court did not recognise the right to die, it did recognise the right to die with dignity. The Supreme Court later stayed this decision, though it is yet to take a final call on the matter.
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 belonging to specific Hindu sects. In 2002, the Supreme Court had ruled 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 eligible for appointment as priests in Agama temples, also opening institutes to impart training for this purpose. The present case revolved around the challenge to this government order.
The Supreme Court this time invoked Article 16 (5) that 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. 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, would be determined on a case to case basis.
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 ask whether only some castes can become archakas. As The Hindu points out, priests in Vaikhasana or Pancharatra temples have to be descendants of specific rishis (that is, belong to particular gothras). 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. Thus, the best that can be said about this decision is that it leaves the scope for future judicial intervention.
Wish-list for the New Year
2016 will probably see some clarity on some of the issues above. Here is hoping that the judiciary succeeds in striking a balance between guarding religious rights and upholding individual liberties, and the rights to equality and life. Let’s also hope that 2016 sees all governments, the Centre and the states, value liberalism over 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.
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