India wouldn’t have been democracy or secular nation without firm commitment of Nehru, Sardar

godboleDr Madhav Godbole, former Union Home Secretary, was to deliver BG Deshmukh lecture on April 4 at the Maharashtra branch of the Indian Institute of Public Administration (IIPA). The invitation had come from the Maharashtra chief secretary. The speech was printed to be circulated to the audience. However, on April 1, the ex-bureaucrat was informed by email that the lecture had been cancelled. No reason was given. Excerpts from the speech, titled “Is India Secular”:

At the outset, I must say how happy I am to have this opportunity to address this august gathering in the memory of Late B.G. Deshmukh, one of the most illustrious civil servants of India. I had the privilege of working closely with him in the state and the centre. It was because of him that, as principal finance secretary, I could initiate and vigorously implement zero-base budgeting in the state and earned, what some of the detractors believed, the ignominious, but what I am ever proud of, nick-name of “Mr. No”. I am glad to know that this “glorious” tradition of finance secretary being the ‘punching bag’ has continued in Maharashtra to this day!

If only all states had more “Mr. Nos”, the state governments would have done yeomen service by enhancing the rate of growth of the states and ensuring more productive public expenditures. B.G., as he used to be fondly and reverentially known, was brutally frank and open in tendering his advice to his colleagues and political executives. He achieved the rare distinction of occupying the three highest and most coveted positions in the civil service of chief secretary of a state, cabinet secretary and principal secretary to prime minister. He personified the best in the “endangered species” of the civil service.

I am going to speak today on whether India is a secular nation. I have deliberately framed the question so as not to restrict it to ‘India as a secular state’. For, I believe, it is not enough if the Indian state is secular, which it is not. It is equally, if not more, important that we are a secular society, a secular nation. I believe this question needs to be asked, reflected upon and answered truthfully. My latest book, “Secularism–India At Cross-Roads”, on this subject is being brought out by Rupa & Co., New Delhi, shortly. It is perhaps the first book totally devoted to operationalisation of secularism and comprehensively looks at the constitutional, statutory, policy and administrative issues in the light of the experience of the working of secularism gained over the last 66 years since the adoption of the Constitution.

The Backdrop

At the outset it must be stated that I am a firm believer in the concept of secularism. It is my conviction that India’s survival as a multi-religious, multi-lingual, multi-racial, multi-cultural society will depend on how successful it is in working its secularism. Presently, religious minorities constitute about 20 per cent of India’s population, with Muslims accounting for 14.2 per cent. According to some estimates, in a few years, this percentage is likely to stabilise at a little over 25, with Muslims accounting for 20 per cent. With extremist and radical external forces such as Islamic State of Iraq and Syria (ISIS) and Inter-Services Intelligence (ISI) of Pakistan, to name just two, bent on disturbing the peace and tranquillity in the country, it will be fool-hardy to neglect the welfare of minorities. No society can prosper or be at peace with itself if one-fourths of its population feels neglected, deprived and unwanted.

There is a great deal of talk in the country about the appeasement of minorities in general and Muslims in particular but socio-economic indicators of Muslims brought out by Justice Sachar Committee bring out convincingly how this so-called “vote-bank” of some political parties has remained at the margin all these years. It is shocking to see that Parliament did not have time to discuss the findings of this report as also the major recommendations of Justice Ranganath Misra Commission report. Both these high level expert groups were appointed by the then United Progressive Alliance (UPA) government. Many in this distinguished gathering are aware of the predecessor-successor complex which is so common in civil services. Unfortunately, studies of expert committees and commissions too have been afflicted by this virus. Secularism was expected to bring about the integration of the diverse elements of Indian society. But, it is a travesty that the majority community as well as the minorities are dissatisfied with it. In fact, the concept of secularism has lost all credibility.

It must be stated that India would not have been either a parliamentary democracy or a secular nation, to whatever degree it is, without the firm commitment of Jawaharlal Nehru and Vallabhbhai Patel to these precepts. The Indian Constitution is one of the most explicitly secular Constitutions in the world though the founding fathers of the Constitution could not agree on calling it ‘secular’ for fears that it would be perceived as anti-religious or irreligious in the Western sense of the term. It was felt that by calling it secular, the Constitution would be denuded of the ethical and moral underpinning of the religious precepts which are so necessary for the governance of the country. This deficiency was made good during the Emergency in 1976 by the Forty-second Amendment by the inclusion of the word ‘secular’ in the Preamble of the Constitution.

It is disconcerting to see that, in recent times, serious questions are being raised about India’s secularism. It is for the first time since independence that the Hindu Rashtra ideology is being talked about so openly, defiantly and persistently. It is interesting to note that Jawaharlal Nehru had made his position clear on Hindu Rashtra way back on 6 September 1951:

“It may sound very nice to some people to hear it said that we will create a Hindu Rashtra etc… Hindus are in a majority in this country and whatever they wish will be done. But the moment you talk of Hindu Rashtra you speak in a language which no other country except one can comprehend and that country is Pakistan because they are familiar with this concept. They can immediately justify their creation of an Islamic nation by pointing out to the world that we are doing something similar. Hindu Rashtra can only mean one thing and that is to leave the modern way and get into a narrow, old fashioned way of thinking, and fragment India into pieces. Those who are not Hindus will be reduced in status. You may say patronisingly that you will look after the Muslims or Christians or others as in Pakistan they say that they will look after the Hindus. Do you think any race or individual will accept for long the claim that they are looked after while we sit above them?”

If the Supreme Court had not categorically declared in S.R. Bommai v. Union of India ((1994) 3 SCC 1) that secularism is a part of the basic structure of the Constitution and Parliament has no powers to dilute it in any way, concerted efforts would have been made by some political parties to amend the Constitution to dilute its secular tenets. In retrospect, it is fortunate that the proposal of the Janata government contained in the Forty-fourth Amendment Bill, 1978, for effecting amendment of the Constitution by holding a referendum on certain important matters such as its secular or democratic character, abridging or taking away fundamental rights, prejudicing or impeding free and fair elections on the basis of adult suffrage, and compromising the independence of the judiciary, did not find acceptance in the Rajya Sabha.

Otherwise, attempts would even have been made to rally public opinion in favour of doing away with the secular characteristics of the Constitution and I would not be surprised if, in the present polarised political atmosphere in the country, it would have found a majority support. The Supreme Court itself has expressed apprehensions in this regard: “India till now is a secular country…we do not know for how long it will remain a secular country.”

Against this background, it is necessary to examine what needs to be done to safeguard secularism from political turmoil and vicissitudes and to ensure that it will continue to be an important ingredient of the basic structure of the Constitution. In this context, it will be appropriate to recall what Jefferson, the statesman who played a great part in the making of the American Constitution, had stated: “We may consider each generation as a distinct nation, with [a] right, by the will of the majority, to bind themselves, but none to bind the succeeding generation, more than the inhabitants of another country.” I hope proposals made hereafter would be looked at in this light.

Secularism– Constitutional Precepts and Reality

A series of articles in the Constitution underline the precepts of secularism. These include: article 14–equality before law; article 15–prohibition of discrimination on grounds of religion, race, caste, sex or place of birth; article 16–equality of opportunity in matters of public employment which, inter alia, lays down that no citizen shall, on grounds of religion, race, caste etc. shall be ineligible for, or discriminated against in respect of employment or office under the state; article 19–protection of certain rights regarding freedom of speech and expression, to assemble peaceably and without arms, to form associations or unions, to move freely throughout the territory of India, to reside and settle in any part of the territory of India, and to practice any profession, or to carry on any occupation, trade or business; article 21–protection of life and personal property; article 25–freedom of conscience and free profession, practice and propagation of religion; article 26–freedom to manage religious affairs; article 27– freedom as to payment of taxes for promotion of any particular religion; article 28– freedom as to attendance at religious instruction or religious worship in certain educational institutions; article 29–protection of interests of minorities; and article 30–right of minorities to establish and administer educational institutions.

Reference must also be made to the two provisions in the directive principles of state policy which have considerable significance in sustaining secularism in the country. These are article 44–uniform civil code for the citizens, and article 48–organisation of agriculture and animal husbandry which has been invoked for banning cow slaughter in a number of states. Particular attention may also be invited to article 51A on fundamental duties which, in clause (e), lays down the duty to promote harmony and the spirit of common brotherhood amongst all people of India transcending religious, linguistic and regional or sectional diversities; and to renounce practices derogatory to the dignity of women; and clause (f) to value and preserve the rich heritage of our composite culture.

The reality is however quite disappointing. The majority community as also the minorities are totally disillusioned with the working of secularism. Instead of being the cementing force, secularism has led to alienation of all communities. This is borne out by series of failures in important areas. These include grievance of Hindus that rules, regulations and restrictions are being prescribed only for the their religious institutions; non-implementation of the uniform civil code; passage of Muslim Women’s Divorce Act to appease the radical, orthodox and conservative Muslim elements, totalling disregarding the liberal and reformist Muslim view; propagation of religion by Muslims and Christians leading to large-scale conversions, particularly in the tribal areas and of persons below the poverty line, and unjustified protection given to minority educational institutions.

Equally disconcerting are some other signposts which raise serious doubts about how secular India is. Most important of these are non-separation of religion from politics, wanton demolition of the Babri Masjid, anti-Sikh riots in Delhi and other places in 1984, horrific riots in Mumbai in December 1992 and January 1993, and unbelievable atrocities in riots in Godhra and other cities in Gujarat 2002, continued widespread communalism and communal violence in several parts of the country which led to 8,449 communal incidents resulting in 7,229 deaths and 47,321 persons injured in a brief span of 1954 to 1985, and banning of cow slaughter leading to curtailment of freedom of persons about what to eat and restricting their freedom to carry on any profession and trade.

Due to constraints of time and space, I shall briefly deal with only a few of these features. What is striking is the total lack of political will on the part of all political parties to address these critical issues, thereby raising serious doubts about their real commitment to secularism, whatever may be the rhetoric indulged in by them for public consumption.

There are two very strong views in the country regarding enactment of a uniform civil code. It needs to be noted that while an impression was created by the speeches of Vallabhbhai Patel, Nehru and others in the Constituent Assembly that Muslims had agreed to go along with the provision for uniform civil code, careful reading of the debates clearly shows that all Muslim members, without an exception, were stoutly opposed to making a provision for a uniform civil code even in the directive principles of state policy and had in fact pressed for deleting it altogether. There has been no change in the stand of the Muslims since then. It is clear that no political party, including the BJP, will be able to get such a bill passed in Parliament. In my soon-to-be released book on secularism I have elaborately brought out the strong opposition of Hindus which had to be resisted while enacting the Hindu Code and how there was a persistent cry of Hindu religion being in danger. Even prominent leaders of the Congress party itself, like Rajendra Prasad, who was the President of the Constituent Assembly and also the President of India later, were stoutly opposed to the reforms in Hindu law.

We, as a nation, should be eternally grateful to Jawaharlal Nehru for standing firm and having the relevant enactments passed. It is, however, unfortunate that Nehru did not show similar courage in initiating enactment of a uniform civil code. If reforms in Muslim personal law had been pursued, the social and religious ethos of the country would have undergone significant changes by now. Having lost the golden opportunity at that time, it will be impossible to enact a uniform civil code now, irrespective of the exhortations of the Supreme Court, unless there is a strong reformist and liberal move from within the Muslim community. Sadly, all political parties are remiss in encouraging modern, scientific, enlightened, progressive and liberal leadership among the Muslims.

While enactment of a uniform civil code will thus have to inevitably wait, separation of religion from politics is of such urgency that no time should be wasted in bringing this about. It is interesting to note that the Constituent Assembly (Legislative) had passed an explicit resolution on the subject as far back as 3 April 1948. In fact, it was perhaps the first major resolution passed by the Assembly. The resolution moved by Ananthasayanam Ayyangar read as under:

Whereas it is essential for the proper functioning of democracy and the growth of national unity and solidarity that communalism should be eliminated from Indian life, this Assembly is of opinion that no communal organisation which by its constitution or by the exercise of discretionary power vested in any of its officers or organs, admits to or excludes from its membership persons on grounds of religion, race and caste, or any of them, should be permitted to engage in any activities other than those essential for the bona fide religious and cultural needs of the community, and that all steps, legislative and administrative, necessary to prevent such activities should be taken.

Nehru had welcomed the resolution and assured that the government “wished to do everything in their power to achieve the objective which lies behind this resolution… The only alternative is civil conflict. We have seen as a matter of fact how far communalism in politics has led us; all of us remember the grave dangers through which we have passed and the terrible consequences we have seen…” The resolution slightly amended to permit any activities other than those essential for the bona fide religious, cultural, social and educational needs of the community was passed by the Constituent Assembly. But, though Nehru was prime minister for 17 years, he failed to take any action on the resolution. The only other time when any political party enjoyed 2/3rd majority in the Lok Sabha, so as to be able to see through such a constitutional amendment, was when Indira Gandhi and Rajiv Gandhi were in power.

But they too did not find it politically expedient to act on the resolution. It was only after the demolition of the Babri Masjid, when the secular credentials of the Congress party were being seriously questioned in India and abroad, that P.V. Narasimha Rao government brought the Constitution (Eightieth Amendment) Bill and a bill for amendment of the Representation of People Act before Parliament in 1993 to bring about separation of religion from politics. However, no effort was made by the government to take other political parties into confidence and to build a national consensus and create pressure of public opinion on the subject. The bills were so shoddily piloted in Parliament as to raise serious doubts whether the government wanted them to be passed at all or whether it was meant to be just a window-dressing exercise.

As a result, the bills failed to receive adequate support and had to be withdrawn. Though over two decades have elapsed since then and though the Congress or UPA led by that party was in power for most of this period, no effort was made to revive the proposal. This once again brings out the hollowness of the commitment of so-called secular parties to secularism. With the BJP in power at the centre since 2014, it will be futile to expect any action in the near future. But, unless this issue is addressed seriously, India’s secular credentials will continue to be questioned.

Demolition of Babri Masjid a shameful chapter

Demolition of the Babri Masjid is a shameful chapter in India’s recent history raising serious doubts about its secularism. I was destined to live through this ignoble chapter at close quarters as the union home secretary. All efforts made by the ministry of home affairs to avert the tragedy by resorting to action under article 355 (Duty of the Union to protect States against external aggression and internal disturbance) for taking possession and safeguarding the Babri Masjid by central forces, followed by imposition of President’s Rule in Uttar Pradesh under article 356 (Provisions in case of failure of constitutional machinery in States) of the Constitution were frustrated due to the disinclination of the prime minister to act. I have brought out the happenings of the period at length in a 80-page chapter titled ‘The Ayodhya Debacle’ in my memoirs Unfinished Innings published by Orient Longman way back in 1996. I have also dealt at length in my article in the Economic and Political Weekly, with the untenable defence given by P.V. Narasimha Rao in his book Ayodhya 6 December 1992 published by Penguin/Viking, posthumously, in 2006, in which Rao has claimed that he was unable to take any action due to the restrictive provisions of the Constitution and that he was made a scape-goat by Congress party. This must be the only case of its kind in history in which the prime minister has alleged of being made a scape-goat!! Otherwise, it is the well accepted prerogative of prime ministers to find a scape-goat for each of their lapses!

The Ayodhya debacle has several other firsts to its credit. Prime Minister Rao’s assurance of “rebuilding the mosque” given immediately after its demolition on 6 December 1992 has remained on paper. Kalyan Singh, who was the chief minister of U.P. at the time and who had given assurances to the National Integration Council, the government of India and the Supreme Court to fully safeguard the Babri Masjid, has been elevated as a Governor by the NDA government. Earlier, the Supreme Court, before which he was hauled up for contempt of court, gave punishment of imprisonment till the rising of the court and a token fine of Rs 2,000! The judicial commission of inquiry under the chairmanship of Justice M. Liberhan, set up within a week of the demolition of the mosque, created a world record by taking 17 years to complete the inquiry and effectively found no one guilty! The CBI cases against the perpetrators of the crime are still languishing though 22 years have elapsed. It is this callousness and connivance which goes to show how sham is India’s commitment to secularism. On this background to call secularism a part of the basic structure of the Constitution makes no sense.

Equally disconcerting is the manner in which perpetrators of crimes in the widespread communal riots have been casually and leniently handled by the respective state governments. In spite of appointing dozens of committees and commissions to identify those responsible in the anti-Sikh riots in Delhi, hardly any action has been taken against the leaders of the Congress party who are alleged to have instigated the riots. These riots took place under the benign leadership of the central government and were therefore all the more shocking. The riots in Mumbai in December 1992 and January 1993 is another can of worms. Justice Srikrishna Commission has commented on them at great length. But the political parties and persons responsible have been permitted to go scot-free. The usual adage of the law taking its own course has been held to ridicule.

The Godhra riots were qualitatively different in that it was the state-sponsored violence against the minorities. The National Human Rights Commission and the Supreme Court have done a yeomen service in upholding the rule of law but the main issue of the urgency of reorganisation of police administration which has been highlighted by the judicial commissions as also the citizens’ commissions again and again has been over-looked. Even the directions of the Supreme Court issued as far back as 2006 in a public interest litigation have remained on paper. What kind of a robust and vigilant democracy are we if even the orders of the highest court in the country are not to be implemented?

Finally, the question has to be asked whether banning cow slaughter is in keeping with the concept of secularism. The Supreme Court upholding the constitutional validity of these enactments by a majority decision of 6:1 on 26 October 2005 ((2005) 8 SCC 534) has closed all options, at least for the present. It proves the adage that the Supreme Court is supreme only because there is no appeal over its decision. As one of the judges of the Supreme Court had said, “If there were an appellate court over us, probably a majority of our judgments would be upset.” It would also be worth recalling what Justice Brennan, a judge of the US Supreme Court, had said, “The Supreme Court [of United States] is not final because it is infallible; the court is infallible because it is final.”

In a secular state, religion is expected to be a purely personal and private matter and is not supposed to have anything to do with the governance of the country. The Supreme Court had observed in the Bommai case that if religion is not separated from politics, religion of the ruling party tends to become the state religion. This seems to be coming true. The BJP and its affiliate parties have given to the prevention of cow slaughter sanctity of Hindu religious precept. But this is hardly justified. Further, the fundamental right of persons to practise any profession or to carry on any occupation, trade or business contained in article 19 (1) (g) of the Constitution has been over-ridden by article 48, one of the directive principles of state policy. In the scheme of the Constitution, directive principles are not supposed to over-ride the fundamental rights. But, it has now become a sacrilege to even raise such questions.

Economic justification for enforcing cow slaughter is also highly questionable. It is unfortunate that though Nehru was staunchly opposed to prevention of cow slaughter, he did not oppose the inclusion of this provision in the Constitution. In fact, the discussion in the Constituent Assembly shows that a political decision to incorporate this provision was taken in the Congress Party meeting and it was merely formalised in the Constituent Assembly by putting forth spacious and unconvincing arguments. This is yet another instance of the ambivalence of the Constitution on secularism.

Constitution Making– Inevitably an Exercise in Give and Take

The gigantic, complex and highly emotive exercise of uniting and integrating this continental sized country, including, apart from British India, more than 550 princely states, and comprising multiplicity of religions, languages, cultures, customs, traditions, political and social divisions was attempted for the first time in the history of India and credit must be given to the founding fathers of the Constitution for carrying all these diverse elements with them and unanimously agreeing on such an epoch-making Constitution. Though the Congress party alone had an overwhelming presence all over the country, due to Mahatma Gandhi’s foresight, eminent persons representing different view-points were elected to the Constituent Assembly with the support of the Congress party. One of them was Dr. B.R. Ambedkar, who was also made the chairman of the drafting committee. Understandably, the Constitution was a compromise document. This is particularly evident in the provisions pertaining to secularism.

Nehru and Patel were particularly keen on doing away with the communal electorates and the reservation of seats in legislatures on the basis of the strength of religious communities. Once this objective was achieved with the concurrence of the minorities, the Congress party was prepared to concede the other demands of minorities as a compromise. As a result, provisions were made in the Constitution to include right to propagation of religion as a fundamental right, at the instance of Muslims and Christians on the ground that propagation was a part of their religion. The right of minorities to establish and administer educational institutions was also similarly recognised as a fundamental right, in spite of reservations expressed by several members including Jayaprakash Narayan and Rajkumari Amrit Kaur.

Operationalising Secularism

As stated earlier, India’s future is intrinsically tied up with secularism. To make a real success of it, time has come to seriously examine its working during the last 66 years since the adoption of the Constitution. There are no political compulsions any longer. I have made an objective and dispassionate attempt to look at the relevant issues in the discussion hereinafter. Since the proposals are aimed at strengthening secularism, they are not adversely affected by the injunction of the Supreme Court on non-amendability of the provisions pertaining to secularism.

It is best to start the exercise with the basics. As stated earlier, the founding fathers of the Constitution had reservations about the word ‘secular’. But, as the Constituent Assembly debates bring out, there was no doubt in anyone’s mind that India was giving itself a secular Constitution. But, the definition of the word ‘secular’ was never debated or agreed upon. Even Nehru seemed ambivalent about the true meaning of secularism though he was responsible for firmly advocating it: “It is perhaps not very easy even to find a good word [presumably in Hindi] for ‘secular’. Some people think that it means something opposed to religion. That obviously is not correct. What it means is that it is a state which honours all faiths equally and gives them equal opportunities; that, as a state, it does not allow itself to be attached to one faith or religion, which then becomes the state religion.”  Banning of cow slaughter is clear proof that Hindu religion is being made into a state religion!

In 1976, when the word ‘secular’ was included in the Preamble by the Forty-second Amendment, again this question was evaded and no definition was provided. After the massive defeat of the Congress party in Lok Sabha elections in 1977, the question arose of reconsideration of this highly controversial amendment, which effectively had rewritten the Constitution on a number of crucial points. The Forty-fourth amendment bill introduced by the Janata government in 1978 contained definition of the word ‘secular’ as equal respect for all religions. However, this was objected to by the Congress party which still had a majority in the Rajya Sabha (as has been the position in 2014-16) and therefore this clause was dropped. Again, an effort was made in 1993 to include the same definition in the Constitution (Eightieth) Amendment bill on separation of religion from politics but, as stated earlier, this bill itself fell through. As a result, as of now, there is no definition of this term.

One has to fall back on the diverse ways in which the word has been described. In governmental parlance, it is understood as “sarva dharma samabhava”– treating all religions equally or equal respect for all religions. The Hindi translations of the word, namely, “Dharmanirapeksha” or “panthanirapeksa” or “nidharmee” too have been rightly questioned. Another definition put forth is that government should be equidistant from all religions. Serious questions have been raised about the validity of these definitions. For example, Late Justice R.A. Jahagirdar has, in his erudite articles in The Radical Humanist emphasised how these definitions are untenable.

The Supreme Court has been interpreting the word ‘secular’ in different ways. At one extreme was its interpretation in the Bommai case when it declared that there must be a wall between the state and the religion, and a political party must not be linked to any religion, as otherwise, the religion of such a party is perceived as a state religion.

Reference must also be made to the statement of H.R. Gokhale, law minister, during the Emergency. While piloting the Forty-second Amendment Bill in the Lok Sabha, Gokhale was highly critical of the concept of ‘basic structure’ devised by the Supreme Court. He said: “First of all I do not agree, with much respect to the Supreme Court, that there is something like the basic features which could not be amended…What is not defined cannot exist and it is incapable of defining it.” If the same logic is extended to secularism, since the word ‘secular’ has not been defined, does it mean that India is not secular?

Since secularism has been declared by the Supreme Court as a part of the basic structure of the Constitution, governments, both at the centre and in the states, must be made accountable for implementing it. But, how can the state be held accountable unless the meaning of the term ‘secular’ is clear? It is high time a national debate is started on the subject so as to arrive at a political and societal consensus and to include the definition in the Constitution.

Define the word ‘minority’

I shall now turn to the word ‘minority’. The concept of secularism is based on recognition and protection of minorities. The two cannot be separated. One would have therefore expected that the founding fathers of the Constitution would first define the term minorities. Unfortunately, this was never done. The Constitution merely takes off from where the British had left it, which was in fact the very epitome of the British policy of ‘divide and rule’. For want of a clear definition, the Supreme Court has adopted the highly questionable criterion of numerical strength. As a result, a community will be treated as a minority till its population exceeds 50 per cent of the total.

This will make a mockery of the concept of minority. In the Indian context, apart from other considerations, this is highly relevant. Muslims are already 14 per cent of the population. According to some estimates, their population is expected to stabilise at about 20 per cent in the next few years. Even if this estimate turns out to be an under-estimate, as some would like to believe, it may stabilise at 25-30 per cent of the total. Should it be recognised as a minority? What should be the cut-off? This issue needs to be debated. It is no doubt an extremely sensitive and divisive issue but, as a mature democracy, India must debate it rationally and objectively, keeping the political baggage aside.

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