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Many
admirers of India often go out of the way to depict India as
the "world's largest democracy" and a "secular" state, which
through its constitution guarantees fundamental human rights
to all Indians - the implication being that such rights are in
practice as a matter of routine. Yet, dismaying as it may
seem, I have never come across any piece of written
information analyzing the Indian Constitution itself, let
alone all those enshrined fundamental rights that it
guarantees to its citizens. Coupled with aggressive
Soviet-style "active measures" channeled by the Indian
government, several intellectuals outside of India have fallen
prey to the media blitz.
Before
analyzing the rights enshrined in the Indian Constitution, a
few words on the constitution would be helpful to the readers.
The Indian Constitution (promulgated in 1950) is the longest
constitution ever written. As of September 1991, the
Constitution of India comprised 395 Articles, 10 Schedules, 4
Appendices, and constitutional amendments totaling more than
seventy-five in number. Include to this list amendments of
previous amendments - often each amendment encompassing
multiple smaller amendments within its charter. India's
constitution can safely be characterized as the most
complicated of all modern political documents available.
Highly
placed Indians with some insight into their constitution will
often take delight in saying that it is based on sound
fundamental principles derived from the constitutions of no
less than five great western democracies: Australia, Canada,
England, Ireland, and of course, the United States. It all
sounds great. Even more impressive is when you hear that the
Bill of Rights of the U.S. Constitution has made its way into
the Indian Constitution. This is always followed by a note of
special thanks to the framers of India's constitution, with
particular tribute paid to the likes of Dr. Ambedkar (well
known leader of the Untouchables), who chaired the drafting
committee that devised the Indian Constitution. Justifiably, a
question begs to be asked: Are all things mentioned above
true?
To answer
that question, one must at least procure the most recent copy
of the Indian Constitution, read it, understand it, and then
present the facts as they stand. I did exactly that, which is
why I am writing this article.
I hope the
reader is familiar with the first ten amendments (commonly
called "The Bill of Rights") of the U.S. Constitution, which
were ratified in 1791. This information is important since
these rights were purportedly imported into the Indian
Constitution. For the purpose of this article, it will be
worth the effort to reproduce the First Amendment of U.S.
Constitution, which states:
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.
The
Substance
Part III
of the Indian Constitution (Articles 12 through 35) constitute
the entire minutia on fundamental rights. Of these 24
articles, Articles 19 and 25 are the only ones that truly
correspond to the First Amendment of U.S. Constitution. Allow
me to reproduce Article 19 in its entirety:
Protection
of certain rights regarding freedom of speech, etc.
(1) All
citizens shall have the right -
(a) to
freedom of speech and expression;
(b) to
assemble peaceably and without arms;
(c) to
form associations or unions;
(d) to
move freely throughout the territory of India;
(e) to
reside and settle in any part of the territory of India; [and]
(f) deleted
(g) to
practice any profession, or to carry on any occupation, trade
or business.
(2)
Nothing in sub-clause (a) of the clause (1) shall affect the
operation of any existing law, or prevent the State from
making any law, in so far as such law imposes reasonable
restrictions on the exercise of the right conferred by the
said sub-clause in the interests of the sovereignty and
integrity of India, the security of State, friendly relations
with foreign States, public order, decency or morality, or in
relation to contempt of court, defamation or incitement to an
offence.
(3)
Nothing in sub-clause (b) of the said clause shall affect the
operation of any existing law in so far as it imposes, or
prevent the State from making any law imposing, in the
interest of the sovereignty and integrity of India or public
order, reasonable restrictions on the exercise of the right
conferred by the said sub-clause.
(4)
Nothing in sub-clause (c) of the said clause shall affect the
operation of any existing law in so far as it imposes, or
prevent the State from making any law imposing, in the
interest of the sovereignty and integrity of India or public
order or morality, reasonable restrictions on the exercise of
the right conferred by the said sub-clause.
(5)
Nothing in sub-clause (d) and (e) of the said clause shall
affect the operation of any existing law in so far as it
imposes, or prevent the State from making any law imposing,
reasonable restrictions on the exercise of the right conferred
by the said sub-clauses either in the interests of the general
public or for the protection of the interests of any Scheduled
Tribe.
(6)
Nothing in sub-clause (g) of the said clause shall affect the
operation of any existing law in so far as it imposes, or
prevent the State from making any law imposing, in the
interest of the general public, reasonable restrictions on the
exercise of the right conferred by the said sub-clause, and,
in particular, nothing in the said sub-clause shall affect the
operation of any existing law in so far as it relates to, or
prevent the State from making any law relating to -
(i) the
professional or technical qualifications necessary for
practising any profession or carrying on any occupation, trade
or business, or
(ii) the
carrying on by the State, or by a corporation owned or
controlled by the State, of any trade, business, industry or
service, whether to the exclusion, complete or partial, of
citizens or otherwise.
Granted
much of the above narrative is redundant; nobody doubts the
clarity of Clause 1 of Article 19. However, given what is
written in Clause 2 and onwards, everything changes. The
fundamental rights given in Clause 1 have been for all
practical purposes nibbled away one by one, thanks to Clauses
2 to 6. The reader must have noticed that Clause 1f, which had
been "to acquire, hold and dispose of property," is missing.
The 44th Amendment expunged that portion in 1978. Things get
even more complicated when you encounter Articles 352 through
360 of the Indian Constitution, which essentially deliver the
emergency provisions. Since numerous geographical areas of
India frequently fall under these emergency provisions, the
reality of the fundamental rights supposedly guaranteed under
Article 19 and others is revealed, as citizens are forced to
live under the enacted draconian laws.
What makes
the fundamental rights problem even more tedious is that
according to the 40th Amendment, the draconian laws may not be
challenged before any court on the ground of violation of
fundamental rights. If one or more groups of people have
suffered terribly from the repressive hands of the State, the
41st Amendment nails you right back in your proper place. This
amendment has provided that the President, Prime Minister and
State Governors are immune from criminal prosecution for life
and from civil prosecution during their term of office. What
about the Press in India? The exuberant Indian Press exercises
its freedom of speech freely, as the apologists will always
remind you. But the facts are otherwise. Indian journalists
have learned too well how to kowtow to the ruling Indian
leaders.
Now, let
us take a look at Article 25:
Freedom of
conscience and free profession, practice and propagation of
religion -
(1)
Subject to public order, morality and health and to the other
provisions of this Part, all persons are equally entitled to
freedom of conscience and the right freely to profess,
practice and propagate religion.
(2)
Nothing in this article shall affect the operation of any
existing law or prevent the State from making any law -
(a)
regulating or restricting any economic, political or other
secular activity which may be associated with religious
practice;
(b)
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. Explanation I - The wearing
and carrying of kirpans shall be deemed to be included in the
profession of the Sikh religion. Explanation II - In
sub-Clause (b) of clause (2), the 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.
In a
historical sense, Article 25 is unique. Even though Hindu
hands wrote it in 1950, future Hindu hands have spared it thus
far from additional amendment. Those responsible for writing
Article 25 were cunning and deceptive - they knew how to
shelter it behind the barrage of words only a few could
understand. I have attempted to unravel the mystery of Article
25 to the best of my abilities.
Teachings
such as peaceful co-existence, high morals, high ethical
values, and respect for fellow humans are integral to any true
religion. Given that, why is religious freedom contingent upon
factors of public order, morality, and health with respect to
religion in India as in Clause 1? Is there such a religion
that violates the norms of decent human morality? If there is
any such religion, one would think the framers of the Indian
Constitution would have alerted us or perhaps would have
"banned" that particular religion.
With Hindu
leaders in charge of a Hindu India, the name of the game is
unchecked fundamentalist Hinduism, however undesirable it
might be to a reasonable mind. But during British India, this
unchecked Hindu fundamentalism came very close to being curbed
as recorded in a superbly written book, Mother India by
Katherine Mayo (Greenwood Press Publishers, 1927), which
states:
It is true
that, to conform to the International Convention for the
Suppression of the Circulation of and Traffic in Obscene
Publications, signed in Geneva on September 12, 1923, the
Indian Legislature duly amended the Indian Penal Code and Code
of Criminal Procedure; and that this amendment duly prescribes
set penalties for "whoever sells, lets to hire, distributes,
publicly exhibits ... conveys ... or receives profit from any
obscene object, book, representation or figure." But its
enactment unqualified, although welcome to the Muhammadans,
would have wrought havoc with the religious belongings, the
ancient traditions and customs and the priestly prerogatives
dear to the Hindu majority. Therefore the Indian Legislature,
preponderantly Hindu, saddled the amendment with an exception,
which reads:
This
section does not extend to any book, pamphlet, writing,
drawing or painting kept or used bona fide for religious
purposes or any represented sculptured, engraved, painted or
otherwise represented on or in any temple, or on any car used
for the conveyance of idols, or kept or used for any religious
purpose.
To
conclude, in India, the freedom to practice religion is
conditional. The power to interpret and exercise the
conditional requirements is in the hands of Hindu leaders and
nobody else. This is radically different from what is in the
United States where the practice of religion is free,
unconditional right. Conversely, in India of today, the
practice of religion is a "politician-sanctioned" unreliable
right.
Clause 2a
of Article 25 is muddy at best. Considering the constitutional
write-up, it seems religion is composed of economic,
political, and worship activities. Anything other than worship
activity is termed "secular." Therefore, in accordance with
the constitution, the Indian State has the right to interfere
with those activities of the church it considers "secular."
The church, structure included, is after all an economic
adventure. In a socialist country like India, organized
religions (Christianity, Islam, Sikhism, etc.) with large
groups of people interacting among themselves and others
amounts to nothing less than political activity. Any
propagation of religion will require a number of "secular"
tasks: financial, organizational, and personnel activities
(just to name a few).
The Indian
State can constitutionally restrict any one or all of these
"secular" endeavors, thereby effectively hampering genuine
propagation of any religion it desires. This has already
happened, as illustrated in another fine book - Soft State:
A Newspaperman's Chronicle of India by Bernard D. Nossiter
(Harper & Row Publishers, 1970). I suppose one way to be
safeguarded from state incursion is for an individual to
worship in the open air (which will insure no economic
activity) or alone within the confines of a house (which will
insure no political activity). How one worships individually
in these conditions may be beyond the Indian State's intrusive
nature. Let's hope.
Now,
consider Clause 2b. What does freedom of religion have to do
with social welfare and reform? This sub-clause contains a
statement with strange wordings that need some scrutiny.
First, are Hindu religious institutions of a public character?
This term is ambiguous and could mean literally anything or
absolutely nothing. My gut feeling is that it pertains to
Hindu schools, the temples, and ashrams. Second, is a
reference to the “classes” of Hindus. This is an inappropriate
western terminology in reference to the Hindu society.
Nonetheless, if the term has to be used, the majority of the
Hindu population falls into the low class while the minority
are in the middle and upper classes. Third, are the “sections”
of Hindus. At the lowest common denominator, the bulk of Hindu
sections comprise the Vaishnava, Saiva, and Sakti.
If my
reading of this sub-clause is correct, then it is safe to say
that the state can regulate the opening of Hindu temples,
schools, and/or ashrams to all high, middle or low Hindu
classes irrespective of whether one is Vaishnava, Saiva,
Saktia, or what have you. This interpretation may be off the
mark if I am reading incorrectly because of the use of terms
that are vague. Unfortunately, the framers of the constitution
missed the crux of the problem.
The Hindu
society is governed by caste (or varna), and not by the
classes and sections. And certainly the caste is not the same
thing as class and section. If you feel that the framers of
the constitution were themselves not sure of what they wrote
or its underlying meaning, they perhaps hoped that the reader
would be reassured in the offering of Explanations I and II.
If one examines Hindu scriptures, for example the Bhagavata
Gita, it is not uncommon to see that a transition from one
topic to another is often disconcertingly abrupt. This is
clearly the case here also.
Explanations I and II are not even remotely connected with
Clause 2b. The fact is that both Explanations I and II
urgently call for explanation of their own. Explanation I
acknowledges the existence of the Sikh religion. Since the
issue is the individual religious rights (in Sikhism), the
proper word ought to be "kirpan," not "kirpans."
Moreover, Explanation II is notoriously flawed. Its intent is
obvious: the individual members of Sikh, Jain, and Buddhist
religions will be referred to as Hindus, and Sikhism, Jainism,
and Buddhism are to be considered merely sects of Hinduism.
Therefore, the state can interfere with their religious
institutions as it sees fit, under the guise of procuring
"social reforms."
The word
"secularism" is often invoked diligently by the caste Hindus
when describing the Indian State in a spirit of nationalistic
Hinduism, with an underlying implication of the Hindu
expansionist quest to absorb other religions. The western
definition of "secularism" is when the state and public
policies take precedence over religious considerations. In
other words, in the West, there is a separation of church and
state. But most Indians, including their leaders, have their
own self-serving definition. They define secularism as "equal
treatment of all religions by the state." Is that a desirable
goal? If it is then how can anyone achieve such a goal?
In the
Indian context, I suppose the easiest way for the state to
treat all religions "equally" would be to "get into" every
religion equally and if need be, somehow proclaim all
religions one and a part of Hinduism - therefore making
everyone in India a Hindu. This is precisely what is happening
in India. Since everyone is a Hindu, the leadership expects a
response in kind. It usually shows in an intellectually flawed
population who has stamped itself with a bogus notion echoed
in the buzzword called sameness. This is an expression
erroneously viewed as synonymous with equality.
Under this
framed scenario, the very thought of discrimination or even
persecution of one religion by another need not arise since we
are all the same, that is, Hindus. Obviously, this kind of an
argument carries a heavy price tag. When told that India's
sacred constitution exudes an egalitarian system, years of
Hindu conditioning have transfixed the populace to acquiesce
to any communiqué coming down from the top. Few will ever
fathom that India's egalitarianism is not the same sort we
know in a western sense, but is of an entirely different
substance. It is rooted in the infamous caste system, or in a
more precise language, the Hindu Apartheid. While the caste
system is alive, thriving, and functional, India’s Hindu
leaders boast of an Indian democracy, ignoring its pervasive
underlying segregation and inequality. This sounds
magnificently absurd. Many Indian leaders on one hand enjoy
the fruits of being born into an elite caste (while the
majority of the population rots at the lowest levels of
caste), while on the other hand mindlessly they sing the
gospel of equality.
The caste
being a substructure of Hindu society, the talk of "equality,"
"democracy," and "secularism" reverberates only to mislead the
masses. Not surprisingly, this kind of tactical maneuvering to
deceive is clearly evident in the Indian Constitution and
conspicuous in the state's public policy and internal
propaganda. While Sikhs, Jains, and Buddhists have already
been "secularized" constitutionally, Christians and Muslims
are now also in the process of being "secularized" through
state-orchestrated propaganda. Many Indian leaders now call
Indian Christians and Muslims "Christi Hindus" and "Mohammadiya
Hindus," respectively.
Conclusion
Other
amendments of the Bill of Rights in the U.S. Constitution
guarantee the American people numerous other fundamental
rights. These include protection against government officials
who might invade their homes and seize property without legal
permission (Amendment IV); protection against being "a witness
against himself" in any criminal case or being "deprived of
life, liberty, or property, without due process of law"
(Amendment V); the right of a person accused of a crime "to a
speedy and public trial by an impartial jury" (Amendment VI);
and protection against "cruel and unusual punishments"
(Amendment VIII). Can the Constitution of India match
word-for-word the U.S. Bill of Rights?
And, if it
cannot can its intentions at least match those of the U.S.
Bill of Rights? If reading Articles 19 and 25 has left you
with a cause for concern, then the remaining portions of Part
III of the Indian Constitution should not come as a surprise.
After due consideration, it remains unclear if the Indian
Constitution guarantees fundamental rights as is generally
claimed, despite the endless rhetoric from India’s leaders and
its intelligentsia.
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