The High Court of Karnataka has not been able to settle the hijab issue. Its judgment has further provoked the hijab-wearing college students in Udupi, who have now approached the Supreme Court of India to contest the order. The judgment of the High Court is very technical. It almost reads like a petition and betrays an excessive eagerness to disprove the other side. This unusual eagerness goes to the point where the court has dismissed a plea of a violation of fundamental rights by merely stating that there was no proper pleading.
Political dimension will fester
The issue of the hijab is political as well as constitutional. The top court will examine the constitutional aspect and its judgment will hopefully settle the issue. But the political dimension of the hijab issue will continue to trouble Indian society for a long time. No great research is needed to unearth the fact that the seemingly sudden eruption of this issue reflects an insidious intolerance which is quite uncharacteristic of the majority religious community. As a matter of fact, Hindu and Sikh women in northern India cover their heads on all important occasions such as a marriage, a funeral, religious ceremonies, etc. It is a measure of the transformation that has taken place in Indian society that a piece of cloth is enough to serve as provocation for people to come out onto the street and fight against each other. In such an environment of intolerance, the claims of traditional tolerance, pluralism and catholicity seem like a bad joke.
A moral framework
But the fact is that India does have such a past where people from other parts of the world were welcomed with open arms and allowed to live here in peace and amity for millennia. Proselytising religions did gain some following here but they never posed any serious challenge to the majority religion. A tolerance of other faiths and compassion toward fellow beings became an integral part of Indian traditions because of the Buddha. He gave India the moral framework within which to shape our exchanges with other fellow human beings. The transformation which is being brought about today is clearly outside that moral framework. The Buddha bequeathed to us great wisdom which is being frittered away with a vengeance.
The Constitution of India adopted that moral framework for the governance of India. Equality, justice and fraternity are as much a part of the great Buddhist tradition as of the modern European Renaissance. It is in fact the good fortune of India and perhaps a historical inevitability that leaders such as Jawaharlal Nehru and B.R. Ambedkar were there to give shape to the ideas of a modern nation, rooted essentially in the moral traditions of Buddhism and assimilating the egalitarian impulses of the modern world. Thus, the Indian Constitution provides for freedom of religion and conscience on the one hand and secularism for the governance of the country on the other. Many in this country passionately argue that secularism in India means that the state has equal respect for all religions. This mistaken emphasis leads rulers to attend religious ceremonies donning religion-specific dresses and performing rituals publicly. This is more political grandstanding than any genuine demonstration of faith.
But the point being made here is that under the Indian Constitution too there is a separation of religion from the state as in Europe. In fact, this separation was a major inflection point in the history of the Renaissance in Europe. The essence of India’s secularism is that the state has no religion. This is clear from Articles 27 and 28 of the Constitution.
Article 27 says that no tax can be levied for promoting any particular religion. In other words, no public revenue is permitted to be spent in favour of any particular religion. Article 28 says that no religious instruction shall be given in any educational institutions wholly maintained out of state funds. The same Article says that no educational institution recognised or aided by the state shall compel any person to attend religious classes or worship therein. Article 25(2)(a) empowers the state to regulate secular activities associated with religious practice. Article 15 prohibits any kind of discrimination on the ground of religion. Above all, freedom of religion is made subject to other fundamental rights, apart from the reasonable restrictions on the grounds of public order, morality and health. Thus, the freedom of religion under the Constitution does not enjoy the same status as other secular rights such as equality before law, non-discrimination, right to life and liberty, etc.
It is clear from the above that secularism enshrined in the Indian Constitution is based on the principle that the state has no religion. The Indian state is organised on this foundational principle. In Indira Nehru Gandhi vs Shri Raj Narain & Anr, the Supreme Court of India had reaffirmed this principle. The Court said: “the state shall have no religion of its own”.
Religiosity in public life
There is too much religiosity in public life in India. So, we have conveniently changed the meaning of secularism into ‘sarva dharma sambhav’ which would only lead to majoritarianism and, ultimately, to the establishment of a theocratic state. We have seen that such a state of mind as “samabhav” does not exist in reality in today’s India. Theocracy will ensure the disintegration of the country.
The reasons are not far to seek. India is a multi-religious country where the largest minority is around 200 million. The Government of India had notified as many as six minority religions in the country. So, a theocratic state with the majority religion as the state religion is an unworkable proposition.
Another crucial factor which makes a theocratic state impossible in India is the complex, inegalitarian, hierarchical and oppressive social structure of the majority religion. A theocratic state functions on the basis of religious laws, which in India means the Dharma Shastras according to which only a particular caste has the right to rule and a large majority of the population will have no right to be a part of the power structure. They will have no human rights and will be perennial victims of systemic oppression and injustice. Since a theocratic state based on the religious texts, in the Indian context, would mean a state which would deny equality before law and equal protection of law to the subaltern class and discriminate against them on the basis of caste, it will be inherently unstable. This may lead to perennial conflicts and the eventual disintegration of society.
A foundational principle
Therefore, we reach the inevitable conclusion that India, as a nation, can survive only as a secular state where the state has no religion and does not promote any religion. It is a measure of the thoughtlessness of people that educated Indians speak derisively of secularism and have begun to support the idea of a theocratic state based on the majority religion. Their mood is being shaped by the razzmatazz of the religio-political campaigns of today. The wise men who led the freedom struggle and framed the Constitution had a deep understanding of India’s multi-religious and multicultural character and also the complexities of its social structure. Secularism was chosen as the foundational principle of the republic to keep the nation united. Enlightened citizens should realise that if secularism is jettisoned, the hard-won national unity will be in peril. It is the patriotic duty of every citizen to strengthen secularism and thus save the republic.
P.D.T. Achary is former Secretary General, Lok Sabha