It was September 2003 and a leading English daily of India was celebrating its 125th anniversary in Chennai. Inaugurating the grand event, the Prime Minister of the day, the late Atal Bihari Vajpayee said: “... In spite of the unfortunate aberrations, whose recurrence must be prevented, India will always remain an open, inclusive and tolerant nation, with the freedom of faith guaranteed to all not only by the statute book but also by the living traditions of this ancient civilisation.”
A leader, his assurance
He was referring to some ghastly incidents of violence against the two largest minorities in the country witnessed during those days in various regions. The gentle Head of the Government, endowed with exemplary political wisdom, was assuring the nation with confidence that those were just aberrations not to last long, and that the country would soon return to its age-old traditions of pluralism and religious tolerance. Vajpayee’s party had lost at the elections next year but, after a gap of a full decade, returned to power with a bang. Would anyone among the present masters of the nation’s destiny remember the solemn assurance their tallest ever leader had graciously extended to the nation? Vajpayee did not live long enough to witness the “living traditions of this ancient civilisation” being thrown into the dustbin of history. Unfortunately, even his sad demise did not act as a sobering reminder to the powers that be for the need to translate his pious hope into the ground reality of the day.
In retrospect, Vajpayee wanted the country to religiously continue treading the path it had chosen for itself while throwing away the yoke of colonial rule in 1947. In the year following the advent of independence in India, the United Nations had proclaimed a Universal Declaration of Human Rights, affirming in its preamble that all members of the world body that had been set up to strive for peace across the globe had “pledged themselves” to the “promotion ... and observance” of all the ideals enshrined in that so-called “Magna Carta of Humanity”. The Universal Declaration of Human Rights had asserted at the outset that “All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood.” In the coming years, its implications and demands were spelt out in the minutest details in the two International Human Rights Covenants of 1966, later suffixed with several follow-up instruments like the Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief (1981) and the Declaration on the Rights of Minorities (1992).
A masterpiece of wisdom
When the celebrated Universal Declaration of Human Rights was proclaimed by the United Nations, the newly freed India was in the midst of writing its Constitution for the future. Its noble architects, all highly enlightened leaders of the day, infused the letter and spirit of that masterpiece of human wisdom into its preamble under which the people of India “solemnly resolved” to secure to all its citizens justice, equality and liberty of all kinds and to promote among them all “fraternity assuring the dignity of individual and unity of the nation”. The details of these prefatory pledges were elaborated upon and fortified in Part III of the Constitution on people’s Fundamental Rights. Before too long it was realised by experience that there was a pressing need to alert the people of the country, both the rulers and the ruled, also to their constitutional duties to the nation and the society. Part IVA was then added to spell out citizens’ Fundamental Duties — joint and several. The foremost among these sacred obligations were, and remain, “to abide by the Constitution and respect its ideals and institutions” and “to promote harmony and the spirit of common brotherhood amongst all the people of India transcending religious, linguistic and regional or sectional diversities.”
Now, so many years after the beginning of the constitutional era, many deeply patriotic citizens of the country see the prevailing ground situation as an antithesis of the Constitution. They have begun wondering if that magnificent charter of governance “enacted, adopted and given to ourselves” two years after Independence was just an Interim Constitution to be replaced in the coming years with a brand new unwritten one drawn on diametrically opposite lines. Have we, they are asking, really decided to completely abandon our old commitments and allegiance to the international human rights instruments and to kick out our constitutional pledges to preserve religious pluralism and maintain the citizens’ dignity, equality and fraternity?
An inoperative IPC
Long before the advent of Independence, India had enacted and given to all its inhabitants an Indian Penal Code with a full-fledged chapter on “Offences relating to Religion” laying down penalties for outraging religious feelings, insulting religion or beliefs, disturbing religious assemblies, wounding religious feelings, and other nefarious activities of the sort. Why are, one may ask, these provisions of the Code lying totally inoperative while many people are openly flouting them in broad daylight? Television and newspapers regularly report how some of them, masquerading as saints, keep throwing dirt on the founder of the second largest religion of the contemporary world seen by its over two billion followers across the globe as the most highly revered figure next only to God. Does not all this attract application of the IPC offence of outraging religious feelings? And when some of them cross the limits to incite people to commit atrocities against, and even mass-killing, of the second largest group among the nation’s citizenry, is their audacity not covered by any provision of our Penal Code or by any other law of the country?
The election law of India laid down in the Representation of the People Act of 1951 declares “promoting or attempting to promote feelings of enmity or hatred” on grounds of religion, etc. between different classes of citizens “in connection with election” to be a punishable offence (Section 125). Referring to it, an eminent apex court judge of the past, the late V.R. Krishna Iyer, had once observed: “It is a matter for profound regret that political communalism is foliating and flourishing largely because parties and politicians have not the will, professions apart, to give up the chase for power through politicizing communal identity.” It is indeed saddening that, while the election law with its aforementioned penal provision remains intact, this lament of a deeply concerned jurist-judge seems to have become a permanent feature of political discourse across the country.
‘Golden thread of unity’
The top court of the nation has in fact been constantly spelling out for us, from the very beginning, the meaning and implications of the road map the Constitution of the country had laid for us soon after Independence. In the case of Ahmedabad St. Xavier’s College vs the State of Gujarat (1974), a large Bench of the Court had observed: “India is the second most populous country of the world. The people inhabiting this vast land profess different religions and speak different languages. It is a mosaic of different religions, languages and cultures. Each of them has made a mark on Indian polity and India today represents a synthesis of them all. Despite the diversity of religion and language there runs through the fabric of the nation the golden thread of a basic innate unity.”
Twenty years later in the cause célèbres captioned S.R. Bommai vs Union of India (1994), an even larger Bench of the Court had proclaimed that “Constitutional provisions prohibit the establishment of a theocratic State and prevent the State from either identifying itself with or otherwise favouring any particular religion” and “secularism is more than a passive attitude of religious tolerance. It is a positive concept of equal treatment of all religions.”
Announcing the tragic demise of the Father of the Nation on January 30, 1948, Jawaharlal Nehru had said: “The light has gone out of our lives; that light will be seen in this country and the world will see it for that light represented something more than the immediate present; it represented the living, the eternal truths, reminding us of the right path, drawing us from error, taking this ancient country to freedom.”
On that sad day, year after year since then, sirens have been blaring out in government offices and educational institutions alerting us to remember the teachings of that extraordinary leader who had played the key role in our struggle for Independence. But do we still have the will and the determination to let India remain what the Father of the Nation wanted it to be, then and always in future? Do we remember our first Prime Minister’s optimism that the Mahatma’s light “will be seen”? And, do we care for the solemn assurance given to the nation by another great Prime Minister of the country, Atal Bihari Vajpayee, in 2003 that “India will always remain an open, inclusive and tolerant nation”? Are there any answers?
Tahir Mahmood is a former Dean of the Delhi University Law Faculty