Wednesday, 30 December 2015

Year in Review: Fundamental Right to Equality before the Law

Article 14 of the Constitution provides to all (irrespective of citizenship), equality before the law and equal protection of the law. I would rant about Salman Khan here, but the fact is that he did face prosecution. Compare this to Madhya Pradesh governor, Ram Naresh Yadav, named as an accused in the Vyapam scam, who could not be touched because of the immunity he enjoys by virtue of his position. 
Note that this is not a violation of the Constitution-the law of the land allows for these exceptions. It is interesting however that this immunity from criminal proceedings is available only during the term of the governorship. It should be quite an easy thing to remove the governor (only an executive order is needed for this unlike in the case of the Presidency where an entire procedure for impeachment has to be followed), and then prosecute him. Then again this seems to be too much to expect given that  nobody seems to have been touched by the Vyapam scam, except for those who have been deprived of seats and those who have been, well…dying.

Another example of these exceptions at work was when a Saudi diplomat walked off after being accused of raping 2 domestic workers at his home. To ensure that the two Nepalese women now get equal protection of the law, we have to depend on the Saudi government to waive the immunity. Keep your hopes in check, on that. 

Friday, 25 December 2015

Year in Review: Secularism and Religious Rights

2015 was an interesting year for India. It began with the NITI Aayog replacing the Planning Commission, the institution that had set the country’s development agenda for more than half a century. It ended with PM Modi infusing new vigour into India-Pakistan diplomacy. And in between ISRO sent up India’s first space observatory, the Supreme Court struck down Section 66A of the IT Act, Bihar elected Nitish Kumar to power again and Chennai recorded the highest rainfall it had received in 100 years (to put it mildly). Yet the story that probably dominated maximum newsprint and mind-space was the death of Mohammad Akhlaq at the hands of a lynch-mob in Dadri, UP.  It threw up questions on tolerance, secularism, and divided public opinion (if Twitter is a gauge for public opinion, in any case) like no other. Hence, at the end of 2015, it is worth an attempt to summarise the substantive changes that with respect to secularism and religious rights.

The Constitution and Indian Secularism

It is worth the effort to clarify the semantics at the outset, since disagreements are often a result of differences in understanding.
Secularism means that the state does not legally ally itself with any religion. In the West, this has taken the form of a separation between Church and State. The Indian Constitution also does not privilege any religion over another, but does allow the state to intervene in matters of religion. 
Article 30 extends the right to religious minorities to establish and administer educational institutions. Additionally, the state cannot discriminate against it when granting funds to educational institutions[i]. More crucially, Article 25, while granting individuals the right to follow, freely practice, profess and propagate their religion (subject to health, morality and public order),allows legislation to regulate or restrict secular activities associated with religious practice. The State may also enact laws to bring about social welfare and reform and is explicitly empowered to throw open ‘all Hindu religious institutions of a public character’ to all classes and sections of Hindus[ii].
One can argue about how fair the implementation of Article 25 has been, but without the allowance for reform, the purpose of a Constitution that went to great lengths to guarantee equality and individual liberties to its citizens would be defeated. This also means that the judiciary has to often step in to resolve conflicts between religious rights and other rights to delineate when state intervention is acceptable.

Indian State: Secularism and Tolerance

Secularism is a more accurate adjective for institutions or the state than people. So it is unfair to talk of the Dadri incident as an indictment of the failure of Indian secularism. After the event, as is its duty in any case, the police investigated the incident and the state took measures rehabilitate the family of the victims[iii]. In the process, some (either part of the government, or part of the ruling party at the Centre) made worrying statements that seemed to justify the lynching[iv][v]. The protests by civil society that followed were against this bigotry, not against the Indian state. Of course the discussion finally degenerated into slanging matches on Twitter and assertions and counter-assertions of ‘India is tolerant/ intolerant’, which did not do anything for demanding accountability of ministers, and everything to polarise further. In this din, areas where we should have been raising questions got ignored. For example in November, the Punjab Cabinet approved an amendment that would allow those guilty of ‘sacrilege’ to be given life imprisonment[vi]. Section 295A of the Indian Penal Code (IPC) already provides for a punishment of three years or fine or both in case of “[vii]

Then there was the Government of Maharashtra which faced criticism twice this year-first for the ban on the slaughter of bulls and bullocks in Maharashtra (cow slaughter having been banned earlier), and second, the proposed meat ban during the days that Jains observe Paryushan. Both times,  they were accused of impinging on individual liberties and the right to livelihood, in order to appease a section of their vote-bank. More generally, the issue raised the question of whether religious sentiment and religious rights should be honoured above other fundamental rights-a subject matter for the judiciary for the coming years.

The Indian Judiciary and Secularism: No gain, (maybe) some loss

Article 21 of the Constitution states than an individual cannot be deprived of his right to life and liberty except through procedure established by law. Through the years, the judiciary has taken a broad view of this and included within the right to life, the right to livelihood, the right to live with human dignity, the right to shelter, the right to decent environment including pollution free water and air, among others. A petition to the Supreme Court invoked this last right, asking for a ban on the bursting of firecrackers during Diwali[viii]. The important question is whether burning crackers is an essential practice under Hinduism (and hence protected under Article 25). There are also attached questions of individual liberty, though there may be reason to curb individual liberties if they cause substantial negative externalities to others, and the right to livelihood of those working in the fireworks industry. Either way, the Supreme Court did not take a decision on it this year, with the next hearing scheduled for 2016.

The other case where the conflict between the right to life and religious practices remained unresolved was on the Jain practice of Santhara in which Jains renounce food and water towards the end of their lives. The adherents of Jainism do not consider this to be suicide, but an act of ‘purification’ that is practised only when the process of natural death has already started.  However, in Nikhil Soni v Union of India, the Rajasthan High Court (HC) directed the state to abolish the practice, reasoning that it violated Sections 306 and 309 of the IPC (suicide and abetment to suicide respectively) as the right to life did not include within it the right to die. Moreover, it argued that the Santhara is not an essential practice under Jainism, and thus need not be protected by Article 25. The decision was criticised on both grounds-that Santhara is in fact an essential religious practice, and secondly that while the Supreme Court did not recognise the right to die, it did recognise the right to die with dignity[ix]. The Supreme Court later stayed this decision, and will take the final call on this in the years to come.

An issue where we did get a decision from the Supreme Court this year was on whether the principles in the Agamashastras could be used to appoint archakas (priests) to temples. Agamas are scriptures that detail the manner in which worship is to be conducted in temples following Vaishnavism, Shaivism and Shaktism.  In 2002, the Supreme Court had affirmed that priestly appointments were a secular activity [thus open to state intervention under Article 25] and upheld the right of non-Brahmins to be appointed as priests. Accordingly the Tamil Nadu government issued an order allowing all individuals (irrespective of caste) to be appointed as priests in Agama temples, also opening institutes to impart training for this purposes[x]. The present case revolved around the challenge to this government order. The Supreme Court this time invoked Article 16 (5) which says that equality of opportunity in public employment does not render any law illegal that provides for only a member of a particular denomination to hold an office associated with the affairs of that religion or denomination[xi]. For example, in the appointment to a temple of the Vaikhanasa sect, it was membership of the prospective priest to that sect, that mattered, not caste per se. Hence, the court ruled that temples could appoint archakas in accordance with the Agama scriptures as long as the principles contained therein were not in violation of the Constitution. Whether the principles contained in a particular Agama were unconstitutional or not, the judgment said, could only be determined on a case to case basis[xii].

The problem with this reasoning is that while it recognises that denomination matters-such that not all Brahmins can become archakas in the temple of a specific sect, it does not answer whether only some castes can become archakas. For example, as the Hindu points out, the priests in a Vaikhasana or Pancharatra temple have to descend from a particular gothra. This may disqualify Dalits from priesthood completely, since categorised as ‘outcastes’ in the past, they may not have the status of being descendants of a rishi at all[xiii].

Wish-list for the New Year

2016 will probably see some clarity on some of the issues above. Here is hoping that the judiciary strikes the right balance between guarding religious rights while also upholding individual liberties, and the rights to equality and life. Let’s also hope that 2016 sees all governments, the Centre and the states, prefer liberalism to populism. And lastly, let’s hope that as citizens (and otherwise) we can begin to start having more civil debates and informed discussions on secularism and religion in India.

[iii] Admittedly, the media reported that the police team collected a sample of the meat consumed by the family the previous night, unnecessary if the purpose was to find out who was involved in the lynching.