The recent protests in India against the Citizenship Amendment Act (CAA) has made me think of some fundamental questions about India, “Is India really a secular country as our preamble (and media in about every sentence) says it is” and few Indians, “If these people are protesting against an act which does not concern them in ANY way, what will they do when a Uniform Civil Code (UCC) will be implemented where these people will lose their special rights?”.

I tried to find my own answer to the first question and I hope sanity will dawn by the time UCC comes into existence.

Q: Is India a secular country?  Answer (as per my research): Indian secularism does not align with the original concept of secularism.

Q: Why? 

The essence of the original secularism: Separation of State and Religion.

Which means that the state (i.e. governing body) will not adopt any religion of its own. The state shall grant equal rights to all its citizens irrespective of the religious beliefs. Religious beliefs cannot interfere to abolish or over-rule these rights.

(Counter examples of non-secular states: Pakistan is an Islamic republic, England is a Christian state, Israel is a (an only) Jewish state, Bhutan is a Buddhist state. Google search did not give me any examples of “Hindu” states although being the third largest religion in the world. Nepal adopted secularism since 2006)

The Indian state can be said as secular because

1. It says so in the preamble.
2. It grants freedom to practice any religion to all the citizens in the country
3. It has not adopted any religion of its own.
4. Article 14: The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.
5. Article 15: The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them.

Are these laws not sufficient to declare India as a “secular” state? The answer to this question would have been Yes had the Indian constitution not have found the need to differentiate between religions and give special rights to religious minorities. 

Of course, in a country as diverse as India special provisions to certain groups of society are expected. But if the word religion comes 19 times and the word minority comes 10 times in the constitution it begs the question, is the state even trying to separate itself from religion?

Till 1976, our preamble described India, that is Bharat, as a SOVEREIGN DEMOCRATIC REPUBLIC. In 1976 during the time of Emergency the then PM Mrs. Indira Gandhi through the 42^nd Amendment, inserted the words “SOCIALISTS SECULAR”. So now our constitution preamble describes India, that is Bharat as a SOVEREIGN SOCIALIST SECULAR DEMOCRATIC REPUBLIC. Makes you wonder why did Dr. Babasaheb Ambedkar or any other member of the constitution committee not think of describing India as a secular country back then?

The constitution when referring to Hindus specifically includes Sikhs, Jains and Buddhists as a group, Article 25(2)(b) Explanation II. While I have nothing against this grouping per se, it boggles me as to what business does the constitution have in forming this group? Why should there be any grouping based on religion?

While Dr. Ambedkar wanted to bring in the Uniform Civil Code, it was opposed by the minority religious group leaders, not all, so he tried to bring in something alternate to that, a Hindu code bill. The Hindu code bill was also opposed by the majority however the basic civil liberties acts of marriage, property, minority and guardianship and adoption and maintenance were implemented as four separate acts.

These basic civil rights laws are specifically applicable only to the Hindu community, obviously including Sikhs, Buddhists and Jains, while minorities have freedom to follow their religious beliefs. Please don’t take my word for it, read the below Acts, just the name would be sufficient but I am giving the links to the whole acts in case anyone is interested:

Act 25: The Hindu marriage Act, 1955 (1).

Act 30: Hindu Succession Act, 1956 (Property rights act) (2)

Act 32: The Hindu minority and Guardian Act, 1956 (3)

Act 78: The Hindu adoption and maintenance Act, 1956 (4).

In all of the above Acts following is the Application of the act:

“This Act applies- (a) to any person, who is a Hindu by religion in any of its forms or developments, including a Virashaiva, a Lingayat or a follower of the Brahmo, Prarthana or Arya Samaj,

(b) to any person who is a Buddhist, Jaina or Sikh by religion, and

(c) to any other person who is not a Muslim, Christian, Parsi or Jew by religion unless it is proved that any such person would not have been governed by the Hindu law or by any custom or usage as part of that law in respect of any of the matters dealt with herein if this Act had not been passed. ”

Because of this distinction, cases such as Shah Bano vs the Union of India (1985) and Shayara Bano vs. the Union of India (2017) come up which challenge the religious laws which are against giving alimony to the divorced wife in case of Shah Bano and advocating heinous practices of Triple Talaq, Nikah Halala and Polygamy in case of Shayara Bano. These cases not just reflect the injustices done by the state towards these women but also highlights how the absence of precise common laws lead to an utter wastage of state and judiciary’s time and resources.

While these acts are for the good of the Hindu society why do the people from other religion have to live under 2 sets of laws? Is this not defying the whole purpose of inventing the idea of Secularism?

Ask yourself, if we were living in truly secular country would women like Shayara Bano have had to go to court to fight against instant divorces, nikah halala and polygamy?

Moving on to Educational rights. Article 30(1): All minorities, whether based on religion or language, shall have the right to establish and administer educational institutions of their choice.

Why couldn’t it just say ‘any citizen’ shall have the right to establish and administer educational institutions of their choice? Why special preference to minorities to administer educational institutions “of their choice”? Considering human nature and logic, the chances of this law being used as a loophole are higher.

In 2009, the Right to Education act was passed by the government whose noble purpose was to educate all children between age 6 to 14. They say the road to hell is paved with good intentions; this act does not prove them wrong. While the government has mandated to implement this act even in private schools (the irony just begins here), the minority institutions are exempted from the application of this act using article 30(1) along with the additional Clause 5 of Article 15 which states:

“(5) Nothing in this article or in sub-clause (g) of clause (1) of article 19 shall prevent the State from making any special provision, by law, for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes or the Scheduled Tribes in so far as such special provisions relate to their admission to educational institutions including private educational institutions, whether aided or unaided by the State, other than the minority educational institutions referred to in clause (1) of article 30.”

Moving forward to Right to worship: In certain states like Tamil Nadu, Maharashtra and few more the religious places of worship of the majority i.e the Hindu temples are under the state government control, even though the constitution gives religious freedom to ALL religions. The places of worship for religious minorities are autonomous. The Hindu temples in these states pay 18% tax to the government while the religious minorities do not pay any tax. Hard to believe? Sound absurd? Yes and yes.  

While I am glad for the minorities who have freedom of worship and autonomy, why should the majority tolerate the interference of the government in their personal religious matters and how fair is this even?

Taking into consideration all these special provisions, we can probably guess why the word “secular” was never mentioned in the constitution and it took Emergency like situation to add it in the preamble.

In some parts, the constitution is unfair to the majority while in some it is unfair to the minority. So, for me it is high time that we introduce the Uniform Civil Code and actually take concrete steps towards implementing separate state laws free from religious laws for ALL CITIZENS.

My purpose in writing this article was to make everyone aware that by just saying India is secular over and over does not make it secular and why UCC is necessary to make it actually secular. Hope it has also made you think.

Jai Hind.

References:

1. https://highcourtchd.gov.in/hclscc/subpages/pdf_files/4.pdf
2. https://revenue.tripura.gov.in/sites/default/files/hindu-succession-act-1956.pdf
3. http://legislative.gov.in/sites/default/files/A1956-32_0.pdf
4. http://tcw.nic.in/Acts/Hindu%20adoption%20and%20Maintenance%20Act.pdf
5. https://www.india.gov.in/sites/upload_files/npi/files/coi_part_ful
6. https://www.youtube.com/watch?v=Id5lY5ce53w
7. https://www.youtube.com/watch?v=ecCEAFg1IXs
8. https://www.youtube.com/watch?v=js936p_cvTE
9. https://www.youtube.com/watch?v=c7EeB4ay_lQ