I've recently been involved with some discussions where people have questioned why India needs "secularism," and even just what secularism means in India. Since I have researched the issue of secularism as part of my academic work (my upcoming book is called Literary Secularism), I thought it might be interesting to look at the Indian and American approaches to secularism in comparison as a thought exercise. Instead of focusing on recent issues such as the train bombings in Mumbai last month, or almost-current events like the Gujarat riots of 2002, I wanted to back up a little and take a brief look at the texts of the respective Constitutions themselves. I think this comparative exercise might shed some insight on the value and importance of secularism in both countries.
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Let's start with the First Amendment of the U.S. Constitution, implemented in 1791:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.
Mainly because it refers to so many different things, this has become one of the most hotly debated sentences in the English language. The first phrase guarantees the "free exercise" of religion, and it's coupled with a statement that the U.S. government is forbidden to associate with an "Established" church.
The First Amendment was a brilliant solution to the kinds of sectarian wars that had been so damaging in Europe in the early modern era, and it also addressed the concerns of many religious sects that had fled to America from Europe to escape persecution by their governments. The clause helped to bring the country together at the moment of its founding, and it's worked fairly well for more than two hundred years since. Admittedly, the rule wasn't always applied as strongly as it should have been (many individual states had de facto established churches for many years), and it wasn't really until the 1940s that smaller, more esoteric sects like the Jehovah's Witnesses were guaranteed the right to religious expression that the mainstream had earlier considered an annoyance. (The Jehovah's Witnesses wanted the right to proselytize door-to-door as part of the free exercise of their faith; see Cantwell v. Connecticut.)
But it's also important to note that the U.S. courts made a number of decisions against religious community rights, starting as early as the Civil War era, when the Supreme Court ruled against the Mormons on the matter of Polygamy (see Reynolds vs. United States). At the time the Mormons were extremely unhappy that what they saw as a fundamental aspect of their religious tradition was being declared illegal. But they learned to live with it, and today the community thrives in a modified form.
We can think about this history in light of India, and come to two loose conclusions. Admittedly, the histories of religion and the law in India and the U.S. are different, so there's a limit to how far you can take this. Nevertheless:
1) Allowing the majority religious community to "establish" itself is a bad idea even if some people think that the majority religious tradition is historically a tolerant, inclusive one. Limits ought to be placed on the role of religion in government -- pretty strict ones -- for the benefit of the country as a whole. If the government didn't make an effort to protect the rights of India's many religious minorities at the time of its founding, the country would never have come together to begin with. If it doesn't continue to do so now, it won't stay together.
2) Following the example of the Mormons, minority religious practices that are disrespectful of human rights (especially women's rights) can be banned by the state. That means that the state has the authority to ban polygamy in Islam (still technically legal in India), as well as "Triple Talaq." In the short run, some Indian Muslims would be unhappy about these changes, but in a modern nation-state the government has the authority to decide on fundamental rights for all its citizens. (Of course, given current political circumstances, changing this law is an impossibility -- even the NDA government didn't try it during the years it was in power. Also, many people would argue that the problem in India is that the existing laws aren't enforced adequately -- witness female foeticide, which continues though sex-selecting ultrasounds are banned.)
The Indian Constitution is longer and more complex than America's (there is a decent amount of information at Wikipedia, for those who are unfamiliar with it). The statements concerning secularism are much longer than in the U.S. version, and while they are more specific (the U.S. First Amendment is maddeningly general), their specificity has not made them any less controversial. Moreover, Indian Parliaments have been prone to make many minor and major Revisions and Amendments over the years. In 1976, the language of the Preamble itself was changed -- and the words "socialist" and "secular" were inserted, so that the opening sentence now reads: "WE, THE PEOPLE OF INDIA, having solemnly resolved to constitute India into a SOVEREIGN SOCIALIST SECULAR DEMOCRATIC REPUBLIC and to secure to all its citizens..." Were these insertions really necessary? Some of the changes made over the years detract from the power of the Constitution as a whole.
At any rate, let's look more closely at at least one of the provisions concerning secularism in the Constitution, Article 15:
15. Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth.—(1) The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them.
(2) No citizen shall, on grounds only of religion, race, caste, sex, place of birth or any of them, be subject to any disability, liability, restriction or condition with regard to—
(a) access to shops, public restaurants, hotels and places of public entertainment; or
(b) the use of wells, tanks, bathing ghats, roads and places of public resort maintained wholly or partly out of State funds or dedicated to the use of the general public.
(3) Nothing in this article shall prevent the State from making any special provision for women and children.
(4) Nothing in this article or in clause (2) of article 29 shall prevent the State from making any special provision for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes.
This is just the first of several clauses dealing with "religion, race, caste, sex, place of birth" etc. in the Indian Constitution, and it's immediately apparent that the intent and structure of the Indian text is quite different from the American version. In India, the Constitution Assembly felt obliged not just to establish general laws, but to make specific statements regarding actual religious practices and communities. Untouchability was banned (Article 17); discrimination over access to water was banned (above); discrimination in public places such as hotels and restaurants was banned.
From the beginning, then, the Indian government took on the role of reforming religion in the pursuit of social justice and equality. Nehru, Ambedkar, and other progressives understood traditional religious practices and values (from all of India's religious communities) to be the major impediment to the kinds of modernizing, integrating social reforms they wanted, and the Constitution reflects that focus.
They were not bothered by the American idea of the "separation of church and state." In India's case, religion is so constantly present in everyday life, and so powerful in the social order, that the concept doesn't really make sense. The state has to intervene in religious matters, to guarantee, for instance, that all castes of Hindus have the right to enter temples. The Indian Constitution is an activist, reformist constitution. It is also incremental -- some of the changes desired would not have been accepted by most Indians in 1948. (The Hindu Marriage Act, which made major reforms on issues such as dowry, child marriage, and polygamy affecting the Hindu community, was implemented in 1955.)
What couldn't be included under "Fundamental Rights" for practical reasons was relegated to a special section of the Constitution indicating "Directive Principles of State Policy" (Part IV). These are essentially suggestions for future legislators -- it would be great if you could go in this direction, that's really what we'd like to do, but can't. One of the most famous of these directive Articles is Article 44: "44. Uniform civil code for the citizens.—The State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India." Sixty years have passed, and nothing much has happened regarding civil codes. Directive Princples like Article 44 solve the question of the Constitutional Assembly's "intent" that dogs so many legal debates in the U.S., but otherwise they don't seem to matter much.
The activist approach of the Indian Consitution has helped to modernize India in many ways quite quickly. But it also has some unresolved flaws. One is the Civil Code issue I already mentioned. The other issue is caste reservations, which are allowed by the Constitution in Article 15:
(4) Nothing in this article or in clause (2) of article 29 shall prevent the State from making any special provision for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes.
It's worth noting that while the Constitution bans untouchability, it neither formally nor "directively" bans the idea of caste-based social relations. Defenders of reservations in employment and education argue that any society in which an institution like caste exists is going to be an institution where discrimination by caste exists. Opponents argue, first, that the reservations "Schedules" which determine proportional quotas aren't based on current demographic realities (as I understand it, caste is not indicated in the Indian census). Second, the opponents of reservations say that some of the communities included, specifically on the OBC lists, are no more "Backward" than any other, non-Scheduled group. And third, they argue that the continued growth of this system actually reinforces social division by caste; those divisions might, with the modernization of social life in Indian cities, have withered away.
Though the hot debate we saw earlier in the year has died down somewhat this summer, I think that the reservations issue is going to be one of the most divisive ones India has to deal with going forward. I personally opposed the latest expansion of the OBC quotas that were introduced by the UPA government this spring, but separate from that issue is the general issue of what to do with the caste-based reservations system as a whole. And there I don't have an obvious answer, though I do think this might actually be a bigger issue than Hindu-Muslim relations in the long term, as it encompasses nearly every Indian citizen.
[Cross-posted at Sepia Mutiny]