Dr Jaime Torres Bodet Director General of UNESCO Jawaharlal Nehru and Abul Kalam Azad arriving at Parliament House for the session of the Indian National Commission for Cooperation with UNESCO.(HT Photo)
Dr Jaime Torres Bodet Director General of UNESCO Jawaharlal Nehru and Abul Kalam Azad arriving at Parliament House for the session of the Indian National Commission for Cooperation with UNESCO.(HT Photo)

Republic at 70: The unique goals and challenges of Indian secularism

Virtually all commentators agree that India is secular — which seems unarguable given the word’s inclusion in the Preamble. The truth, of course, is that secularism did not appear in the version of the Constitution whose anniversary we are now celebrating.
By Deepa Das Acevedo
UPDATED ON JAN 29, 2020 05:02 AM IST

The 70th anniversary of the Republic is turning out to be an especially fraught moment for one of its founding values: the equal participation and protection of individuals belonging to all faiths. This value is often called secularism, or more likely Indian secularism. But those labels do not do justice to the uniquely creative and challenging task that the Constitution’s framers took upon themselves with respect to religion. Nor do they adequately capture the efforts—more or less successful, as the case may be—of courts, legislators, citizens, and scholars to realize and improve upon those ideals, as with the Essential Practices Doctrine. As we pause to celebrate the longevity of India’s remarkable experiment with democracy, we ought also to ask ourselves some hard questions about the relationship between labels and values, ideals and realities, so that we may more honestly and confidently approach the next seventy years of the Republic.

Disputes over the nature of the relationship between religion and the Indian state have reached a kind of a stasis among academics and lawyers. Most commonly, “Indian secularism” is understood to mean something like the equal treatment of all religions. There are particular variants on this theme, of course: Bhargava (2005) calls it a “principled distance,” Jha (2002) calls it “equal respect,” and Dhavan (2001) defines secularism using a conceptual trio of religious freedom, celebratory neutrality, and reformatory justice. However, virtually all commentators agree that India is secular—which seems unarguable given the word’s inclusion in the Preamble—and that Indian secularism means something decidedly different from the American-inspired notion of a “wall of separation” between religion and state.

The truth, of course, is that secularism did not appear in the version of the Constitution whose anniversary we are now celebrating. Even though Indians have never been obsessed with this kind of “original” meaning in the way that Americans increasingly are, this original exclusion is worth remembering. It was not that the concept was unfamiliar to or ignored by the framers; on the contrary, the word “secular” did not appear in the document produced by the Constituent Assembly despite the fact that both KT Shah and Brajeshwar Prasad expressly advocated for its inclusion. This absence occurred in part because secularism was associated with an overly antagonistic relationship to religious life (Bhagwati 2005), in part because it conflicted with the Constitution’s reformatory impulses (Austin 2008 [1966]), and in part because “secularism” was being used by Nehru and others to reference something much broader—namely, an antidote to the four “isms” threatening the new nation: “casteism, communalism, linguism, and provincialism/regionalism” (Austin 2006 [1999], 557).

This broader understanding has been dominant ever since the word “secular” was introduced into the Preamble in 1976 via the Forty-Second Amendment, to considerable and often negative effect. The “semantic trap” (Austin 2006[1999], 558) of using a word to signal something besides its usual meaning has made India’s approach to religion-state relations confusing to those who would uphold it and easy fodder for those who seek to deviate from it. India has always been imagined as a place that would foster the equal participation and protection of individuals regardless of religious affiliation, but it has never been—and was never intended to be—a secular state.

What does it mean to say that India is not and was not meant to be a secular state? It means that the country is not founded on the ideal of separating religion and state after the manner of the American Constitution (if not American practice). It also means that governmental actors—judges, legislators, statutory officials—are more involved in understanding, shaping, and regulating aspects of Hindu religious life than that of any other community.

There are a multitude of sensible and progressive reasons for all of this. To begin with, India has never been in any danger of being anything save a Hindu theocracy, so the fact that its laws are more concerned with delimiting and regulating Hinduism than other faiths is eminently reasonable. Secondly, while there is no way for any state to engage with any faith without intruding on it enough to decide what counts (or not) as religion (Sullivan 2005), Hinduism’s internal diversity and decentralised nature engenders more state engagement than usual. Many of the roadside altars and neighbourhood temples that are central to the daily lives of millions of Hindus would not exist without some state apparatus to manage or subsidise them—or, as in Kerala, to redistribute some of the breathtakingly large income generated by a few elite institutions like Sabarimala. Above all else, the non-secular nature of the Indian state makes sense in a context where most individuals, be they constitutional framers or contemporary observers, do not feel that the good life is one where one’s religious beliefs and practices are left resolutely in the private sphere.

Over the years, India—and especially Indian courts—have developed innovative approaches to reconciling the non-secular nature of Indian democracy with those elements of the Constitution that promote a secular-liberal understanding of political belonging. Article 25(1), for instance, promises a conventional freedom of religion, while 25(2) allows the state to abrogate that freedom in the service of social reform. In response, the Supreme Court developed the Essential Practices Doctrine, which provides constitutional protection for essential aspects of religion as determined with reference to the religion itself.

Admittedly, the doctrine has narrowed over the years from being concerned with identifying what is “essentially religious” to seeking and protecting only that which is “essential to religion.” But even in its transformed and damaged state, the Essential Practices doctrine offers an approach to boundary-drawing that sometimes swings in favour of religion and sometimes against it, with the net effect of creating a kind of “dynamic equilibrium” between the two positions. It now stands in considerable danger, as the Supreme Court prepares to hear review petitions on the Sabarimala dispute with a bench that is large enough to overrule the doctrine itself.

The Essential Practices Doctrine does not promote secular governance. It can, however, promote the equal participation and protection of individuals from all faiths in the life of the nation, as the nation was intended to be. Like many other aspects of India’s legal infrastructure that are often puzzling or frustrating, it is more concerned with the spirit of the Constitution than with the labels we have occasionally attached to it. Clarity as to the real nature of that spirit will prove crucial if we are to carry over the founding ideals of the Republic into its next decade.

(Deepa Das Acevedo is a legal anthropologist at the University of Alabama.)

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