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We
lost our first war of independence in 1857-58.
The
inefficiency, intrigues and the rot that plagued
the Mughal Empire finally paved the way for the
establishment of British rule in India. Right
from the beginning the British were very clear
that if they had to rule India for a long time
and that too with the help of Indians they had
to change the mindset of the people by educating
them in such a way that they not only felt ashamed
of their own past, their own culture, their own
tradition but also appreciated and followed everything
British. T.B. Macaulay's minutes regarding the
Indian education policy made all these very clear.
All these contributed not only towards the consolidation
of British Rule in India but also perpetuating
various myths and wrong policies such as:
- That
new education system with the feeding of distorted
versions of India's past took its toll. That
this country was never a nation, it was in the
process of becoming one because of the British
magnanimity; that India was a land for invasions
and the Vedic Aryans came from Europe or central
Asia.
- Knowledge
contained in the entire Brahmanical literature
- Right from Vedas to Sayam of 14th century
- was not more than what was contained in the
'paltry abridgment' of preparatory books in
England. India was an uncivilized pastoralist
country.
- Political
awareness and occasional confrontation brought
in their wake some measures of self-rule and
with that came in the British treatment of the
Indian People class-wise i.e. the policy of
divide and rule. They treated Muslims and depressed
classes as separate identities and gave them
separate electorates.
- The
psyche of the Muslim leaders was that of dethroned
rulers treating other Indians as their subjects.
- For
Hindu leaders, Muslim participation became a
must for the success of the freedom movement.
(Savarkar's call: "If you come along with you,
if you do not, without you; if you oppose, in
spite of you, I will fight for independence,"
- came a little late).
- In
Europe the concept of national identities and
religious and linguistic minorities developed
with the collapse of five empires after the
1st world war and the birth of several nations.
The same is being thrust upon India ignoring
completely the cultural unity of this country.
- A
strident assertion by the Muslim leadership
of their separate religious identity eliciting
assurance of protection and a policy of appeasement
is again becoming prominent.
- These
assurances getting the title of secularism,
and resulting in 'Negationism'; negating everything
from the National tradition, which preceded
all aggressions, and which was described by
others as Hindu.
The
confusion prevails even after 15th August, 1947.
The Independence of the country was marked by
the pain and trauma of a bloody division. Pakistan
was founded on the fallacious two-nation theory
and it proclaimed itself to be an Islamic State:
A large Muslim population (which had voted for
Muslim League's Pakistan) remained in India and
the Indian leadership got afflicted with the 'minority'
syndrome.
Indian
tradition and ethos have never been in favour
of theocracy, and hence on the eve of Independence
it proclaimed itself to be a sovereign, Democratic
Republic securing to all its citizens, among other
thing, Liberty of though, expression, belief,
faith and worship.
The
process of constitution-making as reflected in
the Constituent Assembly Debates was burdened
by the concern for the 'minorities' and by the
presence of a theocratic state in the neighbourhood.
While rejecting the original proposal for communal
reservations, the constitution-makers ensured,
through the enactment of Articles 25,26,27 and
28, Right to Freedom of religion and through Articles
29 and 30, the Cultural and Educational Rights
of minorities. The Constitution-makers did not
deem it necessary or prudent, to mention secularism
in the document. In fact, Shri. M.C. Setalvad
in his Patel Memorials Lecture (1965) on secularism
points out that the proceedings of the Constitution
Assembly show that "two attempts made to introduce
the word 'secular' in the Constitution had failed."
He also quotes Dr. Radhakrishnan who said that
"the religious impartiality of the Indian State
is not to be confused with secularism or atheism".
At the same time he asserted that '….nevertheless,
it could not be said that the Indian State did
not possess some important characteristics of
a secular State'. He then stated that the idea
of a secular State in the sense of a State which
treats all religions alike and displays benevolence
towards them was in a way more suited to the Indian
environment and climate than that of truly secular
State by which he meant a State which creates
complete separation between religion and the State.
It is also observed that a secular State is not
easy to define. According to the liberal democratic
tradition of the West, the secular State is not
hostile to religion but holds itself neutral in
matters of religion. Our constitution undoubtedly
lacks a complete separation between the Church
and the State as in the United States and at the
same time we have no established Church as in
Great Britain or some other countries. In our
country all religions are placed on the basis
of equality and it would, therefore, seem that
it is erroneous to describe our country as a secular
State.
With
this clear understanding of secularism, the Founding
fathers did not hesitate to provide for abolition
of untouchability by Article 17, and to preserve
the legislative power of the State for providing
for social welfare and reform or the throwing
open of Hindu religious institutions of a public
character to all classes and sections of Hindus
by Article 25(2)(b) with Explanation II to the
same Article which explains that reference to
Hindus shall be construed as including a reference
to persons professing the Sikh, Jaina or Buddhist
religion and the reference to Hindu religious
Institutions shall be construed accordingly.
However,
the dominant sections of the political class,
viz. the Congress and its progeny and the stridently
vocal section, viz. the leftists of various hues
continued with their own version of the political
idiom of secularism, minorities, communalism,
Fundamentalism, Majority (Hindu) communalism and
even created a straight jacket of political ideology
of secularism, socialism, democracy and non-alignment.
This was in the nature of ideological terrorism
and found expression in Constitutional Amendments
and legislations. It is par of recent history,
that even though the Constituent Assembly had
consciously avoided the expression 'secularism',
it was introduced by the fraudulent 42nd Constitutional
Amendment in the Preamble of the Constitution,
in 1976, during the infamous Emergency, with the
entire opposition in jail, to make us a secular
and socialist republic. Even the Representation
of People Act, 1951was amended to make it obligatory
on every registered political party to swear by
socialism and secularism.
However,
through the history of 50 years of Independent
India, the process of Deconstruction also commenced.
I am using the term Deconstruction with apologies
to the late M. Tacques Derrida distinguished French
writer and philosopher who used it as a philosophical
method. This deconstruction means not destroying
ideas, but pushing them to the point where they
come apart and expose their latent contradictions.
It means reading against the grain of supposedly
self-evident, socialism, Hindutva, National Unity,
Dharma, Religion, Social History and Nationalism.
It
is interesting to note here that during the lucid
period of 1977-79, after the people had overthrown
the authoritarian regime and installed the Janata
Rule, the defiling of the Constitution was sought
to be mended and the regime of the 42nd Amendment
was sought to be dismantled. For the purpose Constitutional
Amendments were proposed. The Constitution (Forty-fifth
Amendment) Bill, 1978 was introduced in the Lok
Sabha and was duly passed. Clause 44 of this Bill
sought to amend Article 366 (which is the Definition
Clause) to introduce the definitions of secularism
and socialism. The proposed amendment was as follows:
-
the expression 'REPUBLIC', as qualified by the
expression 'SECULAR' means a republic in which
there is equal respect for all religions; and
-
the expression 'Republic', as qualified by the
expression 'SOCIALIST', means a republic in
which there is freedom from all forms of exploitation,
social, political and economic".
This
clause of the Amendment was voted down in Rajya
Sabha, where the Congress enjoyed a majority.
The terms thus remain undefined in law. And we
have the observations of a Judge of the Supreme
Court (A.M. Ahmadi, J. in S.R. Bommai) to the
effect that:
"The
term secular has advisedly not been defined presumably
because it is a very elastic term not capable
of a precise definition and perhaps best left
undefined."
In
these circumstances, it fell upon the Supreme
Court to propound the real meaning of these various
concepts and while doing this the Judges of the
Apex Court did not hesitate to underline the ethos
of this notion. As and when the occasion arose,
the Judges ruled on the various concepts of secularism,
national unity, Dharma and Hindu/Hinduism.
This
process began almost with the establishment of
the Republic on 26th January, 1950.
The
Bombay Prevention of Excommunication Act, 1949,
was successfully challenged by the religious head
of the Bohra Community, in the case of Sardar
Taheruddin Sayedna Saheb vs. State of Bombay (A.I.R.
1962 S.C. 853, 871), wherein Ayyangar, J. explained:
"Articles
25 and 26 embody the principle of religious tolerance
that has been the characteristic feature of Indian
Civilisation from the start of History. The instances
and periods when this feature was absent being
merely temporary aberrations. Besides they serve
to emphasise the secular nature of the Indian
democracy which the founding fathers considered
to be the very basis of the constitution."
In
the S.R. Bommai case, even while upholding the
supersession and take over of the B.J.P. ruled
States under Article 356 of the Constitution,
after the demolition of the Babri structure at
Ayodhya on 6th December, 1992, on the specious,
untenable, intangible and vague ground of secularism,
the Judges of the Supreme Court recognized that
the secularism of the Indian Constitution is not
of the Western variety, but is based on the tradition
and ethos of this country. They (particularly
Sawant, J.) extensively quoted Dr. Radhakrishnan,
Swami Vivekananda, and Mahatma Gandhi, all of
whom view secularism, in the light of the Hindu
view of life, religion and man. While tracing
the history of secularism of Prof. Holyoake, describing
him as the father of modern secularism, and his
associate charles Bradlaugh who wanted Morality
to be understood by excluding all considerations
drawn from the belief in God, K. Ramaswami, J.,
in the same case (S.R. Bommai) concludes:
"If
any group of people are subjected to hardship
or sufferings, secularism always requires that
one should never remain insensitive and aloof
to the feelings and sufferings of the victims.
At moments of testing times, people rose above
religion and protected the victims. This cultural
heritage in India shaped that people of all religious
faiths, living in different parts of the country
are to tolerate each other's religious faith or
beliefs and each religion made its contribution
to enrich the composite Indian culture as a happy
blend or synthesis. Our religious tolerance received
reflections in our Constitutional creed."
Jeevan
Reddy, J. notes a little grudgingly:
'This (i.e. secularism) may be a concept evolved
by western liberal thought or it may be as some
say, an abiding faith with the Indian people,
at all points of times'.
After
the demolition of the Babri structure on 6th December,
1992, the Central Government took over the entire
area by enacting the Acquisition of Certain Area
at Ayodhya Act, 1993. The constitutional validity
of this enactment was challenged in the Supreme
Court by Dr. M. Ismail Qureshi and certain other
parties.
The
main ground of challenge was secularism and the
attendant rights of freedom of religion and equality.
Justice J.S. Varma, who wrote the majority view
of holding the Act valid traced the meaning of
secularism and for that purpose he relied on an
Address by Dr. Shankar Dayal Sharma, President
of India. Dr. Sharma stresses the difference between
our understanding and that in the west and says
that for us secularism denotes Sarva Dharma Sama
Bhav, an approach of tolerance and understanding
of the equality of all religions. He further says
that this philosophical approach of understanding,
co-existence and tolerance is the very sprit of
our ancient thought. In support of this assertion
he quotes Yajurveda, Prithvi Sukta of Atharva
Veda and Rigveda. He then concludes that this
enlightenment (of developing Sarva Dharma Samabhav
or secular thought and outlook) is the true nucleus
of what is now known as Hinduism.
Even
in his dissenting judgment Bharucha, J. observes
that Hinduism is a tolerant faith. It is that
tolerance that has enabled Islam, Christianity,
Zoroastrainism, Judaism, Budhism, Jainism and
Sikhism to find shelter and support upon this
land.
In
another case the Court was dealing with the constitutionality
of the U.P. Shri Kashivishwanatha Temple Act,
1983, and right to religious freedom under Articles
25 and 26. Talking of secularism and of India
as a land of multi-religious faiths, the Court
observed that majority is of Hindus, Hinduism
being their way of life, belief and faith. Unfortunately
they are disintegrated on the ground of caste,
sub-caste, sect, sub-sect. Unity among them is
the clarion call of the constitution. Unity in
diversity is the Indian culture and ethos. The
tolerance of all religious faiths, respect for
each other's religion are our ethos.
It
has already been held that cow-slaughter is not
an essential aspect of the religion of Muslims
and yet the same was sought to be justified on
the ground of secularism. The contention was rejected
by the Supreme Court in the case of State of West
Bengal & Ors. vs. Ashutosh Lahiri & Ors.
The
introduction of Jyotir Vidnyan as a subject of
study was challenged on the ground of secularism.
In the case of P.M. Bhagara vs. U.G.C. the Supreme
Court rejected the challenge, while observing
that ancient India studied Astronomy.
In
the case of Santosh Kumar vs Secretary, the Court
expressed deep concern for Culture in the context
of need to study Sanskrit, and rejected the secular
equation of Sanskrit with Arabic and Persisan.
The
reigning ideology of pseudo-secularism always
ignored the phenomenon of religious conversions
induced by force or fraud. They needed to be reminded
that the freedom of conscience guaranteed by Art.
25, is to profess, practice and propagate one's
own religion. It does not include right to convert.
If a person purposely undertakes the conversion
of another person to his religion, that would
impinge on the freedom of conscience guaranteed
to all the citizens of the country alike. Without
getting itself burdened by the secularist bogey
the constitution Bench of the Supreme Court so
held in the case of Rev. Stainistaus vs. - state
of M.P. while upholding the anti-conversion laws
of the states of Orissa and Madhya Pradesh.
National
Unity
The
decision of Bhagwati, J. in the Pradeep Jain case
is sometimes criticized for 'nationalising' medical
seats. But while talking about National Unity
he expresses the true character of our nationhood
which is hitherto ignored. The learned Judge notes
that for centuries India was never a single political
unit and yet India was forged into a nation on
account of a common culture evolved over centuries.
It is cultural unity which has welded this country
into a nation.
In
the case of Sastri Yagnapurushadri, while tracing
the philosophy of Hinduism, the Court pinpointed
the subtle indescribable unity of this society
while appreciating that Hinduism is a way of life.
In
the case of Bramchari Sidheswar Shai, the Court
was dealing with the Ramakrishna Mission's claim
to be a minority. While rejecting the contention
the Court Quoted Vivekananda who said ours is
a universal religion, and then observed that for
us Hindus this truth has been the very backbone
of our National existence.
In
several other cases the Court is eloquent about
the culture, the eternal values and the antiquity
of this ancient land.
Dharma
Modern
India commits the mistake of translating religion
as Dharma (However, it is gratifying that the
Hindi version of secularism in the constitution
is Sarva Pantha Samabhav). In two recent cases
the Court has made the distinction between religion
and Dharma.
In
the case of Narayana Deekshitulu the Court upheld
the abolition of hereditary right of Archakas
under the A.P. Charitable and Hindu Religious
Institutions and Endowments Act, 1987. The judgment
of both the Judges, viz. K. Ramaswami & B.L. Hansaria,
JJ. Are erudite thesis on religion as spiritual
attainment and Dharma as righteous foundation
of Social Order.
Again
in the case of Aruna Roy vs Union (the NCERT case),
Dharmadhikari, j., in his concurring judgment
elaborates on the Indian concept of Religion and
Dharma, and notes that Sanatana Dharma is elemental
to all Nations, while M.B. Shah, J., notes that
Dharma is akin to Rule of Law.
Now
a paradigm based on the concept of Dharma can
change the points of reference in Human Rights
jurisprudence. A lead has already been taken.
Hindutva
- A Way of Life:
In
the case of Sastri Yagnapurushadji, P.B. Gajendragadkar,
C.J. dwelt on the meaning of Hindu. He concluded
that it is difficult, if not impossible, to define
Hindu Religion. It does not satisfy the narrow
traditional features of any religion or creed,
because the Hindus do not have (i) one God, (ii)
one prophet, (iii) one dogma, (iv) one philosophical
concept or (v) one set of rites. He, therefore,
says that it may broadly be described as a way
of life, and nothing more. It is the reflection
of the composite character of Hindus. It is based
on the idea of universal receptivity. Saints and
religious reformers attempted to remove from the
Hindu thought and practices elements of corruption
and superstition. And yet a subtle indescribable
unity pervades.
In
the case of Commissioner of Income Tax vs. R.
Sridhavan, Jaswant Singh, J. quotes both Webster
and Encyclopaedia Britannica and says that Hinduism
is then both a civilisation and a conglomerate
of religions.
In
the case of Dr. Ramesh Prabhu and Manohar Joshi
the Supreme Court held that they had not committed
any corrupt practice under the Election laws when
they spoke of Hindutva or Hindu Rashtra. The Court
held that Hinduism or Hindutva are indicative
more of a way of life of the Indian people.
Thus
these judgments help us to reach the true meaning
of secularism, Dharma, Hindutva and National unity.
In a way they indicate the stand and position
of Hindu Nationalists. The Nation needs to take
a hard look at the reality of life and relinquish
secular dogmas that are badly affecting the health
of the polity. The relevant portions of these
judgments are complied here along with certain
relevant articles and reports to present a coherent
picture for the benefit of the layman.
These
judgments indicate the freedom found by the modern
intellectual from the western oriented dogmas.
Today the judicial talent is brooding over the
reach of Dharma, Dharmashastras and Mimansa. They
are the reflection of the contemporary Indian
entering the mould of a paradigm shift. The intellectual
community is gradually being liberated from Marxist
obscurantism, the antics of the Arjun Singh Brigade
notwithstanding.
The
indications are clear: When a Parliamentary Standing
Committee on value-based education identified
the core universal values to be Satya, Dharma,
Prem, Ahimsa and Shanti; when the UNESCO idea
of spiritual convergence is appreciated; when
the internationally accepted idea of spiritual
Quotient is recognised to be important facet of
human personality as relevant as the intelligence
quotient and emotional quotient.
Anybody
who sees duties and rights as the two sides of
the same coin goes nearer to the basic concept
of Dharma. When women's empowerment is based on
the tenet of 'family being the basic unit of the
society' it is Indian in essence.
The
more we recognise the importance and efficacy
of the Panchayat Raj Institutions as instruments
for reaching the goal of participatory democracy
the more we will shift to an Indian or Bharatiya
Paradigm consistent with our ethos. The earlier
we appreciate the place of tribals in forests
as the rightful habitants of the forest with their
right to the land and produce, the more we will
help them improve their lots without uprooting
them.
Human
Rights in the Indian context can never be irresponsibly
absolute. Vikramjit Banerjee in his article has
made out a forceful case for civilisational understanding.
He speaks of a paradigm shift in the human rights
discourse. Then he talks about - dharmic jurisprudence.
Then comes the profound statement - dharma itself
is neither a norm nor a duty but an eternal order
of things.
One
tends to agree with the author when he says that
it is imperative to formulate alternative models
of social welfare in terms of Bharatiya Culture
such as the ones of Deen Dayal Upadhyaya and Mohandas
Karamchand Gandhi.
Thus,
now, as the world civilisational discourse is
moving from the anticipated clashes to the more
basic search for one's rots, the Indian intellectual
owes it to himself and his society to recognise
his ethos and build a just society consistent
with it, liberating the thought and action from
dogmas of the Euro-centric world view, Marxist
or otherwise. In this process of deconstruction
the dogmatic definitions of secularism, Hindutva
will give way to their real meaning.
The
Supreme Court judgments could be seen as the first
rays of Truth that will enlighten the entire intellectual
discourse.
--Bal
Apte
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