Some Strange Inconsistencies In Our National Discourse – Part 2

 1. Majority and Minority

The Marxist historians have often repeated,​

“​[There is]​…no such thing as Hinduism, just a word used by Arabs to describe the assortment they encountered, just an invention of the communalists to impose a uniformity…”[1]

Let us assume for a moment that there is no monolithic structure called Hinduism and it is a random assortment of various castes, sects, and groups. But this non-existent ‘Hinduism’ suddenly turns into a Hindu majority that oppresses all minority factions. Can it not be argued from the previous thesis that Hinduism is a conglomeration of various minorities?

It is noteworthy to record here the typical mistake made by some historians and sociologists – while comparing religions and traditions, we should never compare one religion’s tenets with another religion’s practices. Either we compare tenets of both religions or the practices of both religions.[2]

According to the National Commission for Minorities Act, 1992, the six minority communities in India are Muslims, Christians, Sikhs, Buddhists, Zoroastrians, and Jains. The Hindu society is divided into several castes and sects, with different provisions and regulations for each, but the minority religions are put under the same umbrella.

To see the practical implications of this unfair legal division, we can take a look at the educational institutions run by minorities. Now, according to The Right of Children to Free and Compulsory Education Act, 2009, all educational institutions should reserve a certain number of seats for socially underprivileged students. Clearly, this Act has been enforced in the spirit of affirmative action.

However, this Act does not apply to minority institutions. In other words, these institutions can take whoever they wish. So, technically speaking, a minority-run school can fill their classrooms with rich, influential, upper caste Hindus and no law would prevent them.

2. Religious and Secular

It is strange how words take on different meanings in different cultures. In India, the word ‘secular’ has come to mean ‘treating all religions the same.’ However, the word ‘secular’ simply means ‘anything that is outside the purview of religion’ – it comes from the Latin saecularis, meaning ‘worldly’ or ‘temporal.’ The 42^nd Amendment of the Constitution of India (enacted in 1976, in the peak of the Emergency) added the words “Socialist” and “Secular” to the Preamble, thus making it: “WE, THE PEOPLE OF INDIA, having solemnly resolved to constitute India into a SOVEREIGN SOCIALISTSECULAR DEMOCRATIC REPUBLIC…” If the government is truly secular, then there is no need for it to engage with religion. Is India even close to being secular?

According to Article 25 in The Constitution of India, every Indian has the freedom to practice and propagate his/her religion. However, according to a clause in Article 25, there is a provision for the state to enact laws that may regulate or restrict “any economic, financial, political or other secular activity which may be associated with religious practice.”

State governments can enact (and many have enacted) laws that empower them to regulate or restrict religious institutions. But such laws have been enacted only for Hindu temples. And further, as per these laws, not only can the state regulate/restrict but can actually take over the running of a temple. The funds collected from such temples directly go to the state coffers. In other words, they don’t necessarily go towards the maintenance and upkeep of temples. Also, the officials selected are not necessarily competent to manage the temples.

Isn’t state interference in the special case of Hinduism unjustified when we already have a general provision in the Civil Procedure Code (Section 92) [3] for the judiciary to pass judgments in matters regarding any charitable or religious trust in case of mismanagement or violation of public morality? The irony is that even with the existence of this provision it is a legal (and political) nightmare for the state to interfere in the case of mosques and churches.

If we are truly a secular nation, then we should not be mixing religion with politics – a blunder that every single political party in India is guilty of. Has this blatant disregard for our Constitution ever highlighted by our intellectuals? A classic example of disregard to the constitution is the nation-wide subsidies given to Haj pilgrims since the ’60s (in fact, any ‘sponsorship’ for Haj is forbidden in Islam itself). In the past few years, some state governments began to offer subsidies to Kailash-Manasarovar pilgrims. All such subsidies are unconstitutional, but they continue to exist.

3. Article 370

Article 370 of the Constitution of India grants special autonomous status to Jammu and Kashmir. It is drafted in the Amendment of the Constitution section, Part 21, under Temporary and Transitional Provisions. In 1949, Jawaharlal Nehru asked the Kashmiri leader Sheikh M Abdullah to consult with Dr. Bhimrao Ambedkar (the then law minister) to prepare the draft of a suitable article to be included in the Constitution; Dr. Ambedkar refused and finally it was drafted by Gopalaswami Ayyangar.[4]

As per this article, many laws that apply to other states of India don’t apply to J&K. Except for defence, foreign affairs, finance and communications, the Parliament needs the State Government’s concurrence for applying all other laws [5]. Indian citizens cannot buy land in J&K but the other way round is possible. Indian citizens cannot get State Government jobs in J&K but the other way round is possible.

We know from history that Jawaharlal Nehru was pretty much the root cause of the Kashmir problem. He ignored the cabinet on the vital question of plebiscite in Kashmir and took the decision by himself [6.] Nehru couldn’t care less for Jammu and Ladakh, spending money only for the Kashmir valley. Nehru was also responsible in no small measure for the discrimination between Hindus and Muslims in Kashmir [8].

4. Uniform Civil Code

Article 44 of the Constitution of India says, “The State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India.” It is one of the directive principles of the Constitution. Basically it means that all Indian citizens would be governed by the same laws instead of each community deriving their legal system from their respective religious texts or traditional law texts.

As early as the 1950s, Nehru was unwilling “even to explore the possibility of a Common Civil Code for all communities” [9] but was very anxious to quickly pass the Hindu Code Bill – a series of laws that would change Hindu personal laws. The then president, Rajendra Prasad opposed this move, possibly because he was a conservative and uncomfortable with changes to Hindu law, but definitely because he did not like the way Nehru unilaterally and quickly wanted to bring it into effect [10].

The revised personal laws discarded many injunctions of the dharmaśāstras and brought in laws that were largely fair to both men and women. Nehru declared that the Hindu Code Bill would liberate our people, especially women [11].  However, he didn’t speak a word about Muslim women. Incidentally, the chairman of the committee that reviewed the draft of the Hindu Code Bill, Dr. Ambedkar had a word to say, in a book that he wrote a few years earlier: “Granting all these provisions of law in her favour, the Muslim woman is the most helpless person in the world” [12].

The personal law for Muslims – The Muslim Personal Law (Shariat) Application Act, 1937 – is based on the sharia but over the years, it has been modified and some of the provisions of sharia have been replaced. “Muslim Criminal Law was abolished by the Indian Penal Code 1860… Muslim law of evidence [was abolished] by the Indian Evidence Act of 1872. The Child Marriages Restraint Act of 1929 made… [child] marriages illegal for Muslims as much as for others” [13].  Islamic law, which is largely derived from the Qur’an and the Hadith texts, does not separate between personal law and criminal law. But the law-makers who are fine with a common criminal code suddenly have a problem with a common civil code. And given that we already have a common law for Hindus, Buddhists, Jains, and Sikhs, it is only one more step to include the other religions as well [14].

5. Leftist only in Name

Some of our communists and anarchists are quite content receiving huge grants from capitalist countries in Europe and North America or from our own industrial houses [15]. They use the capitalist money to propagate their communist or anarchist agendas [16]. Some of the Non-Governmental Organizations (NGOs) run by leftists have funding from US Foundations that are a far cry from anything leftist [17]. Further, some of the literary and art festivals conducted by artistes and organizers who are clearly left-leaning are able to bring in tons of money from the corporate world [18]. This not only brings to question the intent of these communists but also of the capitalists who fund them so liberally.

Vikram Phadke, for his painstaking efforts in ensuring that all the law-related references were accurate and for explaining some complicated aspects of the law

Dr. Koti Sreekrishna, for his detailed feedback on topics related to religion and society

Aditya Jeurkar, for his invaluable insights on presenting the points in a balanced manner.

References-

1. Shourie, Arun. Eminent Historians: Their Technology, their Line, their Fraud. New Delhi: ASA, 1998. p. x (also see pp. 167-72)

2. Paraphrased from P V Kane’s History of Dharmaśātra – Poona: Bhandarkar Oriental Research Institute, 1962. Vol. V, Part II. p. 1029-30

3. For example, see The Hindu Religious Institutions and Charitable Endowments Act, 1997

4. See sections 42-44 of The Hindu Religious Institutions and Charitable Endowments Act, 1997

5. See The Charitable and Religious Trusts Act, 1920

6. Article 370: 10 facts that you need to know

7. What is Article 370? Three key points

8. Bhave, Y G. The First Prime Minister of India. New Delhi: Northern Book Centre, 1995. p. 51

9. Mishra, D P. The Nehru Epoch: From Democracy to Monocracy. New Delhi: Vikas Publishing House, 1975. p. 40

10. Singh, R N P. Nehru: A Troubled Legacy. New Delhi: Wisdom Tree, 2015. p. 51

11. Munshi, K M. Pilgrimage to Freedom. Vol. 1. Bombay: Bharatiya Vidya Bhavan, 1967. p. 286

12. Nehru, Jawaharlal. Presidential Address, The Indian National Congress. New Delhi, 1951. pp. 9-10

13. Shourie, Arun. Indian Controversies: Essays on Religion in Politics. New Delhi: ASA, 1993. p. 282

14. The setting up of a Common Civil Code will be a fitting tribute to one of the great sons of India, Dr. A P J Abdul Kalam, who spoke eloquently in its favour in 2003

15. For example, a left-leaning scholar like Prof. Sheldon Pollock is comfortable receiving a huge grant from the Murty Classical Library, which is funded by a self-proclaimed capitalist

16. For example, Arvind Kejriwal of the Aam Aadmi Party, a self-proclaimed anarchist got a lot of funds from capitalists in Europe and North America to fund his campaign

17. For example, the leftist/activist Teesta Setalvad was able to rope in a large sum (close to $300,000) from the Ford Foundation

18. The Jaipur Literary Festival being a case in point