Dr. Madhav Godbole
Introduction
At the outset, I must say
how happy I am to have this opportunity to address this august gathering in the
memory of Late B.G. Deshmukh, one of the most illustrious civil servants of
India. I had the privilege of working closely with him in the state and the
centre. It was because of him that, as principal finance secretary, I could
initiate and vigorously implement zero-base budgeting in the state and earned, what some of the detractors believed,
the ignominious, but what I am ever proud of, nick-name of "Mr. No".
I am glad to know that this "glorious" tradition of finance secretary
being the 'punching bag' has continued in Maharashtra to this day! If only all
states had more "Mr. Nos", the state governments would have done yeomen service by enhancing
the rate of growth of the states and ensuring more productive public
expenditures. B.G., as he used to be fondly and reverentially known, was
brutally frank and open in tendering his advice to his colleagues and political executives. He achieved the rare
distinction of occupying the three highest and most coveted positions in the
civil service of chief secretary of a state, cabinet secretary and principal
secretary to prime minister. He personified the best in the "endangered
species" of the civil service.
I am going to speak today
on whether India is a secular nation. I have deliberately framed the question so
as not to restrict it to 'India as a secular state'. For, I believe, it is not
enough if the Indian state is secular, which it is not. It is equally, if not
more, important that we are a secular society, a secular nation. I believe this
question needs to be asked, reflected upon and answered truthfully.[1]
My latest book, Secularism--India At
Cross-Roads, on this subject is being brought out by Rupa & Co., New
Delhi, shortly. It is perhaps the first book totally devoted to
operationalisation of secularism and comprehensively looks at the constitutional,
statutory, policy and administrative issues in the light of the experience of
the working of secularism gained over the last 66 years since the adoption of
the Constitution.
The Backdrop
At the outset it must be stated
that I am a firm believer in the concept of secularism. It is my conviction
that India's survival as a multi-religious, multi-lingual, multi-racial,
multi-cultural society will depend on how successful it is in working its
secularism. Presently, religious minorities constitute about 20 per cent of
India's population, with Muslims accounting for 14.2 per cent. According to
some estimates, in a few years, this percentage is likely to stabilise at a
little over 25, with Muslims accounting for 20 per cent. With extremist and
radical external forces such as Islamic State of Iraq and Syria (ISIS) and
Inter-Services Intelligence (ISI) of
Pakistan, to name just two, bent on disturbing the peace and tranquillity in
the country, it will be fool-hardy to neglect the welfare of minorities. No
society can prosper or be at peace with itself if one-fourths of its population
feels neglected, deprived and unwanted.
There is a great deal of
talk in the country about the appeasement of minorities in general and Muslims
in particular but socio-economic indicators of Muslims brought out by Justice
Sachar Committee bring out convincingly how this so-called "vote-bank"
of some political parties has remained at the margin all these years. It is
shocking to see that Parliament did not have time to discuss the findings of
this report as also the major recommendations of Justice Ranganath Misra
Commission report. Both these high level expert groups were appointed by the
then United Progressive Alliance (UPA) government. Many in this distinguished gathering
are aware of the predecessor-successor complex which is so common in civil
services. Unfortunately, studies of expert committees and commissions too have
been afflicted by this virus. Secularism was expected to bring about the
integration of the diverse elements of Indian society. But, it is a travesty
that the majority community as well as the minorities are dissatisfied with it.
In fact, the concept of secularism has lost all credibility.
It must be stated that
India would not have been either a parliamentary democracy or a secular nation,
to whatever degree it is, without the
firm commitment of Jawaharlal Nehru and Vallabhbhai Patel to these precepts. The
Indian Constitution is one of the most explicitly secular Constitutions in the
world though the founding fathers of the Constitution could not agree on
calling it 'secular' for fears that it would be perceived as anti-religious or
irreligious in the Western sense of the term. It was felt that by calling it
secular, the Constitution would be denuded of the ethical and moral underpinning
of the religious precepts which are so necessary for the governance of the country.
This deficiency was made good during the Emergency in 1976 by the Forty-second Amendment
by the inclusion of the word 'secular' in the Preamble of the Constitution.
It is disconcerting to see
that, in recent times, serious questions are being raised about India's
secularism. It is for the first time since independence that the Hindu
Rashtra ideology is being talked about so openly, defiantly and persistently. It is interesting to note
that Jawaharlal Nehru had made his position clear on Hindu Rashtra way back on 6 September 1951:
It may sound
very nice to some people to hear it said that we will create a Hindu Rashtra etc...Hindus are in a
majority in this country and whatever they wish will be done. But the moment
you talk of Hindu Rashtra you speak
in a language which no other country except one can comprehend and that country
is Pakistan because they are familiar with this concept. They can immediately
justify their creation of an Islamic nation by pointing out to the world that
we are doing something similar. Hindu
Rashtra can only mean one thing and that is to leave the modern way and get
into a narrow, old fashioned way of thinking, and fragment India into pieces. Those who are not Hindus will be reduced in
status. You may say patronisingly that you will look after the Muslims or
Christians or others as in Pakistan they say that they will look after the
Hindus. Do you think any race or individual will accept for long the claim that
they are looked after while we sit above them?[2]
If the Supreme Court had
not categorically declared in S.R. Bommai
v. Union of India ((1994) 3 SCC 1) that secularism is a part of the basic
structure of the Constitution and Parliament has no powers to dilute it in any
way, concerted efforts would have been made by some political parties to amend
the Constitution to dilute its secular tenets. In retrospect, it is fortunate
that the proposal of the Janata government contained in the Forty-fourth
Amendment Bill, 1978, for effecting amendment of the Constitution by holding a
referendum on certain important matters such as its secular or democratic
character, abridging or taking away fundamental rights, prejudicing or impeding
free and fair elections on the basis of adult suffrage, and compromising the
independence of the judiciary, did not find acceptance in the Rajya Sabha.
Otherwise, attempts would even have been made to rally public opinion in favour
of doing away with the secular characteristics of the Constitution and I would
not be surprised if, in the present polarised political atmosphere in the
country, it would have found a majority support. The Supreme Court itself has
expressed
apprehensions in this
regard: "India till now is a secular country…we do
not know for how long it will remain a secular country." (Indian Express, February 10, 2015: 1)
Against this background,
it is necessary to examine what needs to be done to safeguard secularism from
political turmoil and vicissitudes and to ensure that it will continue to be an
important ingredient of the basic structure of the Constitution. In this
context, it will be appropriate to recall what Jefferson, the statesman who
played a great part in the making of the American Constitution, had stated:
"We may consider each generation as a distinct nation, with [a] right, by
the will of the majority, to bind themselves, but none to bind the succeeding
generation, more than the inhabitants of another country." I hope proposals
made hereafter would be looked at in this light.
Secularism-- Constitutional Precepts and Reality
A series of articles in
the Constitution underline the precepts of secularism. These include: article
14--equality before law; article 15--prohibition of discrimination on grounds
of religion, race, caste, sex or place of birth; article 16--equality of
opportunity in matters of public employment which, inter alia, lays down that
no citizen shall, on grounds of religion, race, caste etc. shall be ineligible
for, or discriminated against in respect of employment or office under the
state; article 19--protection of certain rights regarding freedom of speech and
expression, to assemble peaceably and without arms, to form associations or
unions, to move freely throughout the territory of India, to reside and settle
in any part of the territory of India, and to
practice any profession, or to carry on any occupation, trade or business;
article 21--protection of life and personal property; article 25--freedom of
conscience and free profession, practice and propagation of religion; article 26--freedom to manage religious
affairs; article 27-- freedom as to payment of taxes for promotion of any
particular religion; article 28-- freedom as to attendance at religious
instruction or religious worship in certain educational institutions; article
29--protection of interests of minorities; and article 30--right of minorities
to establish and administer educational institutions. Reference must also be
made to the two provisions in the directive principles of state policy which
have considerable significance in sustaining
secularism in the country. These are article 44--uniform civil code for the
citizens, and article 48--organisation of agriculture and animal husbandry
which has been invoked for banning cow slaughter in a number of states. Particular
attention may also be invited to article 51A on fundamental duties which, in clause
(e), lays down the duty to promote harmony and the spirit of common brotherhood
amongst all people of India transcending religious, linguistic and regional or
sectional diversities; and to renounce practices derogatory to the dignity of
women; and clause (f) to value and preserve the rich heritage of our composite
culture.
The reality is however
quite disappointing. The majority community as also the minorities are totally
disillusioned with the working of secularism. Instead of being the cementing
force, secularism has led to alienation of all communities. This is borne out
by series of failures in important areas. These include grievance of Hindus
that rules, regulations and restrictions are being prescribed only for the their
religious institutions; non-implementation of the uniform civil code; passage
of Muslim Women's Divorce Act to appease the radical, orthodox and conservative
Muslim elements, totalling disregarding the liberal and reformist Muslim
view; propagation of religion by Muslims and Christians leading to
large-scale conversions, particularly in the tribal areas and of persons below
the poverty line, and unjustified protection given to minority educational
institutions.
Equally disconcerting
are some other signposts which raise
serious doubts about how secular India is. Most important of these are
non-separation of religion from politics, wanton demolition of the Babri
Masjid, anti-Sikh riots in Delhi and other places in 1984, horrific riots in
Mumbai in December 1992 and January 1993, and unbelievable atrocities in riots
in Godhra and other cities in Gujarat 2002, continued widespread communalism and communal
violence in several parts of the country which led to 8,449 communal incidents
resulting in 7,229 deaths and 47,321 persons injured in a brief span of 1954 to
1985, and banning of cow slaughter leading to curtailment of freedom of persons
about what to eat and restricting their freedom to carry on any profession and
trade.
Due to constraints of time
and space, I shall briefly deal with only a few of these features. What is
striking is the total lack of political will on the part of all political
parties to address these critical issues, thereby raising serious doubts about
their real commitment to secularism, whatever may be the rhetoric indulged in
by them for public consumption.
There are two very strong
views in the country regarding enactment of a uniform civil code. It needs to
be noted that while an impression was created by the speeches of Vallabhbhai
Patel, Nehru and others in the Constituent Assembly that Muslims had agreed to
go along with the provision for uniform civil
code, careful reading of the debates clearly shows that all Muslim
members, without an exception, were stoutly opposed to making a provision for a
uniform civil code even in the directive principles of state policy and had in
fact pressed for deleting it altogether. There has been no change in the stand
of the Muslims since then. It is clear that no political party, including the
BJP, will be able to get such a bill passed in Parliament. In my soon-to-be
released book on secularism I have elaborately brought out the strong
opposition of Hindus which had to be resisted while enacting the Hindu Code and
how there was a persistent cry of Hindu religion being in danger. Even prominent
leaders of the Congress party itself, like Rajendra Prasad, who was the
President of the Constituent Assembly and also the President of India later,
were stoutly opposed to the reforms in Hindu law. We, as a nation, should be
eternally grateful to Jawaharlal Nehru for standing firm and having the relevant enactments passed. It is,
however, unfortunate that Nehru did not show similar courage in initiating enactment
of a uniform civil code. If reforms in Muslim personal law had been pursued,
the social and religious ethos of the country would have undergone significant
changes by now. Having lost the golden opportunity at that time, it will be
impossible to enact a uniform civil code now, irrespective of the exhortations
of the Supreme Court, unless there is a strong reformist and liberal move from
within the Muslim community. Sadly, all political parties are remiss in encouraging
modern, scientific, enlightened, progressive and liberal leadership among the
Muslims.
While enactment of a
uniform civil code will thus have to inevitably wait, separation of religion
from politics is of such urgency that no time should be wasted in bringing this
about. It is interesting to note that the Constituent Assembly (Legislative)
had passed an explicit resolution on the subject as far back as 3 April 1948. In fact, it was perhaps the
first major resolution passed by the Assembly. The resolution moved by
Ananthasayanam Ayyangar read as under:
Whereas it is
essential for the proper functioning of democracy and the growth of national
unity and solidarity that communalism should be eliminated from Indian life,
this Assembly is of opinion that no
communal organisation which by its constitution or by the exercise of
discretionary power vested in any of its officers or organs, admits to or
excludes from its membership persons on grounds of religion, race and caste, or
any of them, should be permitted to engage in any activities other than those
essential for the bona fide religious and cultural needs of the community, and
that all steps, legislative and administrative, necessary to prevent such
activities should be taken.
Nehru had welcomed the
resolution and assured that the
government "wished to do everything in their power to achieve the
objective which lies behind this resolution... The only alternative is civil
conflict. We have seen as a matter of fact how far communalism in politics has
led us; all of us remember the grave dangers through which we have passed and
the terrible consequences we have seen..." The resolution slightly amended
to permit any activities other than those essential for the bona fide
religious, cultural, social and educational needs of the community was passed
by the Constituent Assembly.[3]
But, though Nehru was prime minister for 17 years, he failed to take any action
on the resolution. The only other time when any political party enjoyed 2/3rd
majority in the Lok Sabha, so as to be able to see through such a constitutional
amendment, was when Indira Gandhi and Rajiv Gandhi were in power. But they too
did not find it politically expedient to act on the resolution. It was only
after the demolition of the Babri Masjid, when the secular credentials of the
Congress party were being seriously questioned in India and abroad, that P.V.
Narasimha Rao government brought the Constitution (Eightieth Amendment) Bill and
a bill for amendment of the Representation of People Act before Parliament in
1993 to bring about separation of religion from politics. However, no effort
was made by the government to take other political parties into confidence and
to build a national consensus and create pressure of public opinion on the
subject. The bills were so shoddily piloted in Parliament as to raise serious
doubts whether the government wanted them to be passed at all or whether it was
meant to be just a window-dressing exercise. As
a result, the bills failed to receive adequate support and had to be
withdrawn. Though over two decades have elapsed since then and though the Congress
or UPA led by that party was in power for most of this period, no effort was
made to revive the proposal. This once again brings out the hollowness of the
commitment of so-called secular parties to secularism. With the BJP in power at
the centre since 2014, it will be futile
to expect any action in the near future. But, unless this issue is addressed
seriously, India's secular credentials will continue to be questioned.
Demolition of the Babri
Masjid is a shameful chapter in India's recent history raising serious doubts
about its secularism. I was destined to live through this ignoble chapter at
close quarters as the union home
secretary. All efforts made by the ministry of home affairs to avert the
tragedy by resorting to action under article 355 (Duty of the Union to protect
States against external aggression and internal disturbance) for taking
possession and safeguarding the Babri Masjid by central forces, followed by
imposition of President's Rule in Uttar Pradesh under article 356 (Provisions
in case of failure of constitutional machinery in States) of the Constitution were frustrated due to the
disinclination of the prime minister to act. I have brought out the happenings
of the period at length in a 80-page chapter titled 'The Ayodhya Debacle' in my
memoirs Unfinished Innings published by
Orient Longman way back in 1996.[4]
I have also dealt at length in my article in the Economic and Political Weekly,[5]
with the untenable defence given by P.V.
Narasimha Rao in his book Ayodhya 6
December 1992 published by Penguin/Viking, posthumously, in 2006, in which
Rao has claimed that he was unable to take any action due to the restrictive
provisions of the Constitution and that he was made a scape-goat by Congress
party. This must be the only case of its kind in history in which the prime
minister has alleged of being made a scape-goat!! Otherwise, it is the well
accepted prerogative of prime ministers to find a scape-goat for each of their
lapses!
The Ayodhya debacle has
several other firsts to its credit. Prime Minister Rao's assurance of
"rebuilding the mosque'' given immediately after its demolition on 6
December 1992 has remained on paper. Kalyan Singh, who was the chief minister
of U.P. at the time and who had given assurances to the National Integration
Council, the government of India and the Supreme Court to fully safeguard the
Babri Masjid, has been elevated as a Governor by the NDA government. Earlier, the
Supreme Court, before which he was hauled up for contempt of court, gave
punishment of imprisonment till the rising of the court and a token fine of Rs
2,000! The judicial commission of inquiry under the chairmanship of Justice M. Liberhan,
set up within a week of the demolition
of the mosque, created a world record by taking 17 years to complete the
inquiry and effectively found no one guilty! The CBI cases against the perpetrators
of the crime are still languishing though 22 years have elapsed. It is this
callousness and connivance which goes to show how sham is India's commitment to
secularism. On this background to call secularism a part of the basic structure
of the Constitution makes no sense.
Equally disconcerting is
the manner in which perpetrators of crimes in the widespread communal riots
have been casually and leniently handled by the respective state governments.
In spite of appointing dozens of committees and commissions to identify those
responsible in the anti-Sikh riots in Delhi, hardly any action has been taken
against the leaders of the Congress party who are alleged to have instigated
the riots. These riots took place under the benign leadership of the central government
and were therefore all the more shocking. The riots in Mumbai in December 1992
and January 1993 is another can of worms. Justice Srikrishna Commission has
commented on them at great length. But the political parties and persons
responsible have been permitted to go scot-free. The usual adage of the law
taking its own course has been held to ridicule. The Godhra riots were
qualitatively different in that it was the state-sponsored violence against the
minorities. The National Human Rights Commission and the Supreme Court have
done a yeomen service in upholding the rule of law but the main issue of the
urgency of reorganisation of police
administration which has been highlighted by the judicial commissions as also
the citizens' commissions again and again has been over-looked. Even the
directions of the Supreme Court issued as far back as 2006 in a public interest
litigation have remained on paper. What kind of a robust and vigilant democracy
are we if even the orders of the highest court in the country are not to be implemented?
Finally, the question has
to be asked whether banning cow slaughter is in keeping with the concept of
secularism. The Supreme Court upholding the constitutional validity of these
enactments by a majority decision of 6:1 on 26 October 2005 ((2005) 8 SCC 534) has
closed all options, at least for the present. It proves the adage that the
Supreme Court is supreme only because there is no appeal over its decision. As
one of the judges of the Supreme Court had said, "If there were an
appellate court over us, probably a majority of our judgments would be
upset." It would also be worth recalling what Justice Brennan, a judge of
the US Supreme Court, had said, "The Supreme Court [of United States] is
not final because it is infallible; the court is infallible because it is
final."[6]
In a secular state, religion is expected to be
a purely personal and private matter and is not supposed to have anything to do
with the governance of the country. The Supreme Court had observed in the Bommai case that if religion is not
separated from politics, religion of the ruling party tends to become the state
religion. This seems to be coming true. The BJP and its affiliate parties have given
to the prevention of cow slaughter sanctity of Hindu religious precept. But
this is hardly justified. Further, the fundamental right of persons to practise
any profession or to carry on any occupation, trade or business contained in
article 19 (1) (g) of the Constitution has been over-ridden by article 48, one of
the directive principles of state
policy. In the scheme of the Constitution, directive principles are not
supposed to over-ride the fundamental rights. But, it has now become a sacrilege
to even raise such questions. Economic justification for enforcing cow
slaughter is also highly questionable. It is unfortunate that though Nehru was
staunchly opposed to prevention of cow slaughter, he did not oppose the
inclusion of this provision in the Constitution. In fact, the discussion in the
Constituent Assembly shows that a political decision to incorporate this provision
was taken in the Congress Party meeting and it was merely formalised in the
Constituent Assembly by putting forth spacious and unconvincing arguments. This
is yet another instance of the ambivalence of the Constitution on secularism.
Constitution Making-- Inevitably an Exercise in Give and Take
The gigantic, complex and
highly emotive exercise of uniting and integrating this continental sized
country, including, apart from British India, more than 550 princely states, and
comprising multiplicity of religions, languages, cultures, customs, traditions,
political and social divisions was attempted for the first time in the history
of India and credit must be given to the founding fathers of the Constitution for
carrying all these diverse elements with them and unanimously agreeing on such
an epoch-making Constitution. Though the Congress party alone had an
overwhelming presence all over the country, due to Mahatma Gandhi's foresight,
eminent persons representing different view-points were elected to the
Constituent Assembly with the support of the Congress party. One of them was
Dr. B.R. Ambedkar, who was also made the chairman of the drafting committee. Understandably,
the Constitution was a compromise document. This is particularly evident in the
provisions pertaining to secularism.
Nehru and Patel were
particularly keen on doing away with the communal electorates and the reservation
of seats in legislatures on the basis of the strength of religious communities.
Once this objective was achieved with the concurrence of the minorities, the
Congress party was prepared to concede the other demands of minorities as a
compromise. As a result, provisions were made in the Constitution to include
right to propagation of religion as a fundamental right, at the instance of
Muslims and Christians on the ground that propagation was a part of their
religion. The right of minorities to
establish and administer educational institutions was also similarly recognised
as a fundamental right, in spite of reservations expressed by several members
including Jayaprakash Narayan and Rajkumari Amrit Kaur.
Operationalising Secularism
As stated earlier, India's
future is intrinsically tied up with secularism. To make a real success of it,
time has come to seriously examine its working during the last 66 years since
the adoption of the Constitution. There are no political compulsions any
longer. I have made an objective and dispassionate attempt to look at the
relevant issues in the discussion hereinafter. Since the proposals are aimed at
strengthening secularism, they are not adversely affected by the injunction of
the Supreme Court on non-amendability of the provisions pertaining to secularism.
Define the word 'secular'
It is best to start the
exercise with the basics. As stated earlier, the founding fathers of the
Constitution had reservations about the word 'secular'. But, as the Constituent
Assembly debates bring out, there was no doubt in anyone's mind that India was giving
itself a secular Constitution. But, the definition of the word 'secular' was
never debated or agreed upon. Even Nehru seemed ambivalent about the true
meaning of secularism though he was responsible for firmly advocating it:
"It is perhaps not very easy even to find a good word [presumably in
Hindi] for 'secular'. Some people think that it means something opposed to
religion. That obviously is not correct. What it means is that it is a state
which honours all faiths equally and gives them equal opportunities; that, as a
state, it does not allow itself to be attached to one faith or religion, which then becomes the state religion."
[7]
Banning of cow slaughter is clear proof that Hindu religion is being made into
a state religion!
In 1976, when the word
'secular' was included in the Preamble by the Forty-second Amendment, again
this question was evaded and no definition was provided. After the massive
defeat of the Congress party in Lok Sabha elections in 1977, the question arose
of reconsideration of this highly controversial amendment, which effectively had
rewritten the Constitution on a number of crucial points. The Forty-fourth
amendment bill introduced by the Janata government in 1978 contained definition
of the word 'secular' as equal respect for all religions. However, this was
objected to by the Congress party which still had a majority in the Rajya Sabha
(as has been the position in 2014-16) and therefore this clause was dropped.
Again, an effort was made in 1993 to include the same definition in the
Constitution (Eightieth) Amendment bill on separation of religion from politics
but, as stated earlier, this bill itself fell through. As a result, as of now,
there is no definition of this term.
One has to fall back on
the diverse ways in which the word has been described. In governmental parlance,
it is understood as "sarva dharma samabhava"-- treating all religions
equally or equal respect for all religions. The Hindi translations of the word,
namely, "Dharmanirapeksha" or "panthanirapeksa" or "nidharmee"
too have been rightly questioned. Another definition put forth is that
government should be equidistant from all religions. Serious questions have
been raised about the validity of these definitions. For example, Late Justice R.A. Jahagirdar has, in his erudite articles
in The Radical Humanist[8]
emphasised how these definitions are untenable.
The Supreme Court has been
interpreting the word 'secular' in different ways. At one extreme was its interpretation
in the Bommai case when it declared
that there must be a wall between the state and the religion, and a political
party must not be linked to any religion, as otherwise, the religion of such a
party is perceived as a state religion.
Reference must also be
made to the statement of H.R. Gokhale, law minister, during the Emergency. While
piloting the Forty-second Amendment Bill in the Lok Sabha, Gokhale was highly
critical of the concept of 'basic structure' devised by the Supreme Court. He
said: "First of all I do not agree, with much respect to the Supreme
Court, that there is something like the basic features which could not be
amended...What is not defined cannot
exist and it is incapable of defining
it."[9] If the same logic is extended to secularism,
since the word 'secular' has not been defined, does it mean that India is not
secular?
Since secularism has been
declared by the Supreme Court as a part of the basic structure of the
Constitution, governments, both at the centre and in the states, must be made
accountable for implementing it. But, how can the state be held accountable
unless the meaning of the term 'secular' is clear? It is high time a national
debate is started on the subject so as to arrive at a political and societal
consensus and to include the definition in the Constitution.
Define the word 'minority'
I shall now turn to the
word 'minority'. The concept of secularism is based on recognition and protection
of minorities. The two cannot be separated. One would have therefore expected
that the founding fathers of the Constitution would first define the term
minorities. Unfortunately, this was never done. The Constitution merely takes
off from where the British had left it, which was in fact the very epitome of
the British policy of 'divide and rule'. For want of a clear definition, the
Supreme Court has adopted the highly questionable criterion of numerical
strength. As a result, a community will be treated as a minority till its
population exceeds 50 per cent of the total. This will make a mockery of the
concept of minority. In the Indian context, apart from other considerations,
this is highly relevant. Muslims are already 14 per cent of the population.
According to some estimates, their population is expected to stabilise at about
20 per cent in the next few years. Even if this estimate turns out to be an
under-estimate, as some would like to believe, it may stabilise at 25-30 per
cent of the total. Should it be recognised as a
minority? What should be the cut-off? This issue needs to be debated. It
is no doubt an extremely sensitive and divisive issue but, as a mature
democracy, India must debate it rationally and objectively, keeping the
political baggage aside.
Creation of a Commission on Secularism
The
Supreme Court has done a great service to the country by declaring that
secularism is a part of the basic structure of the Constitution. But this
declaration has remained on paper and no
steps have been taken so far to translate it into reality, except for it
becoming a part of political rhetoric in the country. Some of the other
features of basic structure recognised by the Supreme Court, are parliamentary
democracy, independence of judiciary, freedom of press etc. For each one of
these, over the years institutional and legal framework has been established to
make sure that they are carefully nurtured and safeguarded. For example, the
Election Commission of India has been sufficiently empowered to ensure that
there are free and fair elections in the country and electoral malpractices are
put down with a heavy hand. Parliament of India is vigilant about safeguarding
its independence, privileges and supremacy. The judiciary, after its shocking
experience of being undermined during the Emergency in 1975-77, has been
vigilant in guarding its turf. In fact since then, Indian judiciary has emerged
as the world’s most powerful judiciary with even matters pertaining to
appointments of high court and Supreme Court judges coming entirely under the
Supreme Court. This is the only case of its kind in the world. In 2015, the
Supreme Court has declared unconstitutional the law unanimously passed by
Parliament to appoint a National Judicial Commission for the purpose. The
Supreme Court and the Election Commission have emerged as the most
respected institutions in the country,
enjoying highest credibility. This is no mean achievement.
Against
this background it is particularly unfortunate that no steps have been taken by
the government to ensure proper implementation of secularism and to give it
credibility. In fact, secularism has lost all credibility since it has become a
plaything in the hands of political parties, irrespective of which hues and
colours they belong. At the same time it needs to be emphasised that secularism
will decide how India would emerge over the years. In the decade of the 1980s,
we have seen how fringe and extremist elements in the miniscule religious minority of Sikhs, comprising
just about 1.5 percent of India’s total population, held the country to ransom
for nearly a decade and led to shocking alienation of common Sikhs, not just in India but also those residing
abroad.
By
comparison, the Muslim population in India is already a little over 14 percent.
As stated earlier, it is projected to stabilise around 20 percent in the next
few years. Most Muslims in India are highly tolerant and peace-loving, but
there are fringe and extremist elements which cannot be overlooked.
Particularly with the external forces such as ISIS, Al Qaeda and ISI, it would
be in India’s interest to ensure that home grown terrorist forces are not
permitted to emerge. But this is only the negative side of it. It is necessary
that the issue should be addressed in a positive manner so as to bring the
Muslims in the mainstream of society. In this context, the atmosphere in the
country since the beginning of 2015 is
of serious concern.
The
issues pertaining to secularism emerge in diverse sectors of society. These
relate to attempts at rewriting history, communalisation of academic and
research institutions, rewriting of text books, circumscribing artistic freedom
and so on. At present these issues can be agitated primarily before the higher
judiciary as Parliament has mostly become dysfunctional. And whatever is raised
in Parliament inevitably becomes highly politicised and is looked upon on the
basis of party loyalties and strategies.
The
experience of agitating issues pertaining to secularism by way of public
interest litigation (PIL) has also been far from happy. Strictly PIL is
supposed to be a non-adversarial litigation. It is expected that both parties
would look at the issues constructively to find a workable and acceptable
solution to the problem at hand. However, experience has been quite the
contrary. Practically in every case the government has taken an adversarial
position and contested even reasonable proposals put forth by the petitioners.
Secondly, as brought out in my book, ‘The Judiciary and Governance in India’
(2008), the process of admission of a PIL itself is somewhat opaque and the
outcome can hardly ever be predicted.
Thirdly, it takes unduly long time to get the final decision of the court. For
example, in the PIL pertaining to appointment of a Lokpal, due to the resistance
of successive governments, the case was heard by the Supreme Court on 29
occasions and was finally closed on 12 September 2003 as 'none is ready with
the matter to make submissions'. In the case of the PIL pertaining to
non-implementation of the recommendations of the National Police Commission
regarding modalities for appointments etc of police officers, it took over 12
years for the Supreme Court to give a final decision. The same was the position
in PILs pertaining to Haj subsidy, proliferation of Shariat courts as a
parallel judicial system, Ram Janma Bhoomi-Babri Masjid dispute and so on. In this light, taking
recourse to PIL does not appear to be an alternative to setting up of any
independent institution for deciding matters pertaining to secularism.
Clearly, the time has come to create
a new institution, namely, a Commission on Secularism (COS) for ensuring
adherence to the constitutional mandate on secularism. I had propounded this
idea while discussing the lessons of Partition in my book The Holocaust of
Indian Partition--An Inquest (2006). To be effective, such a commission
must be appointed by an amendment of the Constitution and should be presided
over by a former chief justice of India, with five other members drawn from
among former judges of the Supreme Court, chief justices of the high courts, eminent
jurists, and other public figures of highest integrity and reputation. The
term of the members should be five years
or attainment of the age of 72 years, whichever is earlier. The commission
should be covered by the provisions of the Contempt of Court Act.
The selection of the
chairman and members of the COS should be transparently apolitical. The
selection committee may comprise the vice president of India, the prime
minister, the speaker, the chief justice of India, union home minister and the
leaders of opposition in the Lok Sabha and the Rajya Sabha.
Such a commission will be
able to take a holistic view on all matters pertaining to secularism and even
intervene in matters coming up before the high courts and the Supreme Court.
Reference may be made in this context to the very laudable role played by the
National Human Right Commission (NHRC) which had intervened in the cases
pertaining to Godhra pogrom before the Supreme Court and has become an
important moral voice to reckon with. At the time when there are only a few national
leaders of stature left in the country with any moral authority and credibility
who command universal public respect, the commission on secularism will be ideally
suited to fill the vacuum.
The COS will be best
equipped to create public awareness on secularism. Its open hearings will
provide an opportunity to all political parties, intellectuals, religious
leaders, non-government organisations, and concerned citizens to argue their
points of view, either in person or through an advocate, in a free and fair
manner. Keeping in view the basic purpose of setting up the COS, it is suggested
that the hearings of the commission should also be televised. It is only through
such a public discourse that the values of secularism enshrined in the
Constitution can be translated in reality.
The commission should have
the responsibility to pronounce judgments on all declarations, actions and
programmes of political parties, public institutions, state and central
governments, electronic and print media, and others, so far as their impact on
secularism is concerned. The commission may take cognisance of such actions suo
moto or on an application from any individual or organisation. The decision
of the commission should be binding on all concerned, unless it is set aside or
modified by the Supreme Court. Thus, inevitably the powers and authority of COS
will have to be much wider than those of National Human Rights Commission,
whose recommendations are not binding on the government. It may be relevant in
this context to recall that the often violent agitations for ban on cow
slaughter subsided, when the matter went before the high courts and later the Supreme Court, irrespective of the
merits of their decisions. Similarly, the highly emotive and explosive issues
pertaining to implementation of secular policies need to be depoliticised by
entrusting them to a constitutional commission on secularism. It may be
recalled that Turkey's ruling Justice and Development Party (AKP) faced a
serious battle for survival in 2007 when the country's constitutional court
reviewed a case to ban the party for its alleged anti-secular activities in
violation of the Turkish Constitution.
The reports of all
commissions and bodies set up by the government are required to be submitted by
them to the government which in turn submits them to Parliament. Often, there
is considerable delay in the process and the government chooses the time
politically most convenient and opportune for the purpose. Looking to the
special position proposed to be accorded to the COS, it is suggested that the
annual or any special reports of the commission may be submitted by the
commission directly to Parliament and the government, and released
simultaneously to the media and the public.
Secularism
is a precious fundamental right of each citizen and the COS would ensure that
it becomes a reality. I am aware that such a step will be resisted by vested
interests, but if pressure of public opinion is built up, its establishment
would make a significant difference to the way India is governed. The question which remains
is whether there will be statesmanship and political will to support this
far-reaching and over-due political reform. A national campaign needs to be
launched to prevail upon all political parties to initiate and support steps
for a constitutional amendment to set up a commission on secularism.
Separation
of Religion from Politics
The serious problem of communalism
and communal violence was brought out earlier. It is interesting to see from
the fortnightly letter of Nehru to chief ministers as far back as September 3,
1954 that the nature or the intensity of the communal problem has not changed
even after passage of 62 years since then, underlining the importance once
again of separation of religion from politics. Nehru had written: “there are
some Muslims in some centres who might be prone to mischief. There are one or two Muslim organizations
that have been carrying on objectionable activities… The Hindu communal
organizations are definitely aggressive and they can play on the religious or
other feelings of the majority community… Agitations like the anti-cow
slaughter one are also used for this purpose. I have no doubt that many people
who participate in this agitation are influenced by political or like motives
and not so much by religious ones. The RSS [Rashtriya Swayam Sevak Sangh] utilises
this for its own purposes.”[10]
Earlier, Jawaharlal Nehru had
reiterated in his fortnightly letter to the chief ministers on February 5,
1948: “There is a strong opinion in the country, with which I sympathise, that
no political-religious organisation or rather no organisation confined to a
particular religious group and aiming at political ends, should be allowed to
function. We have suffered enough from this type of communalism whether it is
Muslim or Hindu or Sikh…I do not want, of course, to suppress any legitimate
political activity. But the combination of political activity with a religious
group is a dangerous one as we know from experience. You will have to give
thought to this matter as to what should be done.”[11]
Unfortunately, these remained only pious wishes and, during his long tenure of
17 years as prime minister, Nehru failed to take any further action.
I firmly believe that unless this
issue is addressed with sufficient political resolve so as to carry through a
suitable constitution amendment, it will be futile to talk about India as a
secular nation. On the basis of the past experience and to meet the concerns
expressed by some political parties during the debate on the Constitution
(Eightieth) Amendment Bill in 1993 regarding the likely misuse of such an enactment,
I would suggest that the amendment bill should be confined only to
deregistration of a political party which has religious links and restraining
such political party from contesting elections at any level in the country. A
political consensus needs to be built up among political parties for the
purpose. If any political parties are not prepared to join in the consensus, a
strong public opinion will have to be
created nationally to isolate them and to go ahead with the constitution
amendment, disregarding their opposition. Some persons may consider this a tall
order but there is no getting away from such a surgical operation, if the nation
is to be saved!
Right to
Propagation of Religion
Apart from giving freedom of
conscience and permitting free profession and practice of religion, article 25
gives freedom of propagation of religion. There was considerable controversy
about giving this right, and that too as a fundamental right. Several members
in the Constituent Assembly had spoken
against giving such a right but their objections were overruled on the spacious
plea that it was necessary to give this right in accordance with the compromise
which was arrived at with the Muslims and the Christians who had argued that
propagation was a duty cast on them by their religion. The recommendations of
the Niyogi Committee on Activities of the Christian Missionaries on the subject
underline how serious has been the problem of conversion, particularly in the
tribal areas.[12]
There are a
number of decisions of the high courts and the Supreme Court according to which
the right to propagation is not a right
to conversion. The activities of Muslims and Christian missionaries in some
parts of the country have led to serious law and order problems. The ghar-wapasi movement undertaken by the Hindu
organisations has also led to communal tensions and agitations in various
places. It is high time this problem is nipped in the bud by amending article
25 to delete the word ‘propagation’ therefrom.
Doing Away with Protection to Minority Educational
Institutions
Articles 25 to 29 of the Constitution
are really the crux of secularism, except for the word ‘propagation’ as
discussed earlier. Article 30 (1) which gives right to minorities to establish
and administer educational institutions is, in one sense, an appendage and need
not have been there at all. But this too was inserted, particularly at the
instance of the Christians and Anglo-Indians who had a number of educational
institutions. There was considerable opposition to this article in the
Constituent Assembly but the Congress party wanted to be generous to the
minorities, disregarding the likely long-term implications of encouraging
separate identities and undermining spread of secular education. There is no
justification to continue this right. If at all, it could be retained for the
linguistic minorities. But considering the rapid spread of English as a medium
of instruction all over the country, including in the rural areas, due to the
forces of globalisation and spread of information technology, it is no longer necessary to give this right even
to linguistic minorities.
Deleting
Provision for Prohibition of Cow Slaughter
Article 48, though a part of the
directive principles, has now been elevated in public discourse to the level of
a fundamental right. The marginal note of this article is innocuously worded as
‘organisation of agriculture and animal husbandry’. However, the sting is
really in the sentence which asks the state to prohibit the slaughter of cows
and calves and other milch and draught cattle. The basic question is whether
such a total ban on slaughter of cows and their progeny is justified on any
grounds at all except that of the religious sentiments of the Hindus. But even
in regard to them, there is no universal demand for a total ban by all Hindus.
Most importantly, such a ban is not in keeping with secularism. Particularly in
the drought-hit areas in a number of states
such as Maharashtra, it is causing large-scale distress to farmers. As I have
stated earlier, Indian Constitution is a mix of several compromises,
particularly in so far as its proclaimed secular ideology is concerned.
Particularly after the BJP
government came to power in the centre in 2014, the demand for banning cow
slaughter has gained strength. Effectively ‘ban the beef’ has become the
national motto and another potent instrument in the hands of extremist elements
to disturb the peace, tranquility and communal harmony in the country.
Jawaharlal Nehru had stoutly opposed the demand for banning cow slaughter
during his term and had even staked his prime ministership thereon. Thereafter
the stand of the Congress party has changed completely and now it seems to be
as much in favour of the total ban as the BJP and the Shiv Sena. It is time to
consider seriously whether India can sustain its claim as a secular nation by
resorting to such populist measures. I am firmly of the view that all
well-meaning people in the country should come forward to strongly oppose the
present moves on the subject.
Two Basic Electoral Reforms
Making Voting Compulsory
Secularism in India has remained at the margin mainly because
people have not looked at it as their fundamental right. In fact, it is
considered an important ingredient of vote-bank politics. Unless all eligible voters
participate in the elections, the accountability of the political parties
cannot be established fully. The government of Gujarat had taken the initiative
in the matter by enacting a law for making voting compulsory for elections to
village panchayats. The Governor had reserved the bill for approval of the
President. In many instances in the past, the central government has looked at
a number of proposals received from the state governments in a partisan manner.
This bill was one of them and was kept pending by UPA government for a long
time. A Private Members’ Bill had also been introduced in Parliament during the
UPA regime to make voting compulsory but it was not supported by the
government.
Voting
has been made compulsory at least in 30 democracies round the world. They
include, among others, Argentina, Australia, Austria, Belgium, Bolivia, Brazil,
Costa Rica, Cyprus, Fiji, Greece, Luxembourg, Peru, Singapore, Switzerland and
Uruguay. Compulsory voting was introduced in Australia in 1924 when the voter
turnout was just about 58 percent in the elections in 1922. Now Australia
consistently boasts of a voter turnout of over 90 percent. Compulsory voting in
Belgium dates back to 1893. Currently voter turnout in Belgium is over 90
percent.[13]
As
can be seen, the results achieved are quite striking. The objections raised to
making voting compulsory are hardly convincing. For example, it is argued that
a person cannot be forced to vote if he does not want to. The law can provide
that a person would have the option to go to the polling station and mark his
preference on the ballot paper in a separate box showing his disinclination to
vote. Another objection which has been raised is that it would be
administratively impossible to deal with hundreds and thousands of cases where
people default and do not vote. Even this objection is not sustainable as such
cases can even be dealt with by post by conveying to the person that he would
have to pay the prescribed fine for contravention of the law for compulsory
voting. Even announcing on a notice board, in the case of village panchayats,
and in newspapers, in other cases, names of persons who have not voted, could
serve the purpose of shaming the persons.
Particularly in a case like India where the day of voting is declared a public
holiday, there is no justification to
not vote. In the final analysis question
is whether absentee democracy is what we are aiming at. If all minorities,
for example, make it a point to go and vote, their political leverage will
increase by leaps and bounds and their voice cannot be ignored by the political
parties any longer. When the voting age was reduced by Rajiv Gandhi government
from 21 years to 18 years, doubts were raised about its advisability but we
have seen what difference it has made to the political life in the country.
Similarly now voting needs to be made compulsory for the elections to the local
bodies, state legislatures and Parliament.
Making 50 %+1 Vote Necessary to Win
The
first-past-the-post system adopted in India since the British times, though
simple to administer, suffers from some important deficiencies. It is seen that
in most cases the winning candidate gets negligible votes, at times just 20 to
30 percent of the total, which is a mockery of representative democracy. In the
elections to UP Assembly held in 2007, 96.53 percent of the winners polled less
than 50 percent of the votes cast. The corresponding figures were 89.71 percent
in Bihar (2005), 88.89 percent in Bihar (2006), 81.63 percent in Tamil Nadu
(2006), 93.84 percent in Jharkhand (2005) and so on. In the Lok Sabha elections
in 2004 the corresponding percentage was 59.85.[14]
The
National Commission to Review the Working of the Constitution (NCRWC) has also
invited attention to this matter and has stated:
The
multiplicity of political parties combined with our Westminster based
first-past-the-post system results in a majority of legislators and
parliamentarians getting elected on a minority vote. In other words, they
usually win by obtaining less than 50 percent of the votes cast, i.e. with more
votes cast against them than in their favour.
There are states where 85 percent to 90 percent of the legislators have
won on a minority vote. At the national level, the proportion of MPs who have
won on a minority vote is over 67 percent at an average for the last three Lok
Sabha elections. In extreme cases, some candidates have won even on the basis
of 13 percent of the votes polled.
But
more importantly in this system often the winning candidate confines his
propaganda to his own caste, creed, language or religious group. Particularly in a country like India which is
a multi-religious, multi-racial, multi-linguistic and multi-ethnic society a
system must be devised which would make it as representative of this diverse
community as possible. This can be done only by laying down that a winning
candidate must get minimum 50 percent plus 1 vote. To be able to achieve this a
candidate would necessarily have to appeal to a broad spectrum of his
constituency. This will be specially important for minorities since they are
often neglected and overlooked in the present election campaigns.
At
times it is argued that this will prolong the election process and would be
administratively impossible to implement. However this is clearly not based on
any in-depth understanding of the issues. With the adoption of the electronic
voting system it should not be difficult to hold a second round of voting among
the two top candidates who had received the maximum votes. The Election
Commission has also favoured this suggestion and has said that it sees no
difficulty in its implementation. The NCRWC had also recognised “the beneficial
potential of this system for a more representative democracy”. The commission
has recommended that the government and the Election Commission of India should
examine this issue in all its aspects, consult various political parties and
other interests that might consider themselves affected by this change and
evaluate the acceptability and benefits of this system. The Commission recommended a careful and full
examination of this issue.[15]
If
secularism is to be strengthened in the country, I strongly believe that this
electoral reform is absolutely necessary and needs to be implemented as soon as
possible. [16]
Centre- State Relations and Bogey of Federalism
During
the last few years a number of critical issues facing the country have got
bogged down due to the fears expressed by the states about the federalism
getting adversely affected. This cry for ‘federalism in danger’ is as dangerous
as the cry of ‘religion in danger’. This has affected policies in various areas
such as enacting a model law for Lokayuktas, enactment of a central legislation
for the Central Bureau of Investigation, reorganisation of the railway police
protection force, setting up of a federal police agency and so on. When the Constitution was
prepared, the problems of law and order, terrorism, naxalism, organised crime,
and crime with international ramifications were not serious enough and
therefore the subjects ‘public order’ and ‘police’ were put in the State List.
Ideally, both these should have been put in the Concurrent List, as is the case
in a number of Western democracies. As a result states have been objecting to
the role of central government in these matters. But this has not prevented the
states from relying on the deployment of central para-military forces, when the
occasion demanded. But restricting the role of the central government has led
to cases such as Ayodhya debacle, Godhra riots and major communal riots in a
number of states. Time has therefore come to take a serious view on amendment
of the Constitution. Needless to say, federalism will be relevant only if the
country survives!
These
issues are particularly relevant if communal violence and communal riots are to
be dealt with effectively. The experience
so far shows that unless the central government is enabled to take an active
role in the matter, merely making available to states central para-military
forces and intelligence inputs from central agencies will not be adequate.
Restructuring Police Departments
Experience
has shown that weaknesses and inadequacies of police have been largely
responsible for starting or escalating communal violence. The root cause of
this is the politicisation and communalisation of police in various states.
Several judicial commissions of inquiry appointed on major communal riots have
strongly brought out this point.
Reference
must be made in this context to the decision of the Supreme Court in the public
interest litigation on non-implementation of the recommendations of the
national police commission. The final decision of the court came only in
September 2006, nearly 12 years after the filing of the PILs. Though
inordinately delayed, the Supreme Court laid down guidelines for reorganisation
of the police departments in the states and the centre. Though nearly a decade
has elapsed since the decision of the Supreme Court, most major state
governments have not implemented the court orders. For example, the data
collected by the Bureau of Police Research and Development (BPR&D) for the
year 2013 shows that almost 80 per cent of Superintendents of Police (SPs) in
districts across the country got transferred within two years of their tenure
in a district. More than 50 per cent got transferred in less than a year.
According to the data, UP has been the worst offender in terms of transferring
officers before their two year tenure is complete. Even officers senior to SPs
have not been spared. As per the data, in 2013, 114 range DIGs faced transfers
within a year of their tenure. As many as 48 were transferred within two years.
(IE, November 29, 2015: 7) For some
strange reason, the Supreme Court has been reluctant to haul up the defaulting
states for contempt of court.
Another
matter of serious concern is the politicisation and communalisation of police. In
this connection special mention must be made of the statements of L. K. Advani
who had spearheaded the Babri Masjid agitation. He has written in his
autobiography, ‘My Country My Life’:
I
recall vividly an experience en route from Ayodhya to Lucknow [on December 6,
1992 after demolition of the Babri Masjid]. In spite of strict security all
along the 135 –kilometre journey, I could see people engaged in celebrations
everywhere. Within half an hour of our departure from Ayodhya, our car was
stopped by the police. On seeing that the car carried Pramod Mahajan and
me, a senior officer of the UP
government walked up to us [and] said, ‘Advaniji, kuch bacha to nahin na? Bilkul saaf kar diya na?’ (I hope nothing
of the structure is surviving and that it has been totally raised to the
ground.) I am recounting this incident only to highlight the general mood of
the populace, including employees and officials of the state government, after
the tragic development in Ayodhya—that of jubilation.[17]
The
National Police Commission in its eighth and concluding report submitted in May
1981 had made one significant recommendation. An officer who has functioned as
the DGP /IGP, after his retirement from service, shall not be eligible for any
employment under the government of India or under the state government or in
any public undertaking in which GOI or the state government have a financial
interest.[18]
This is equally relevant for the senior Indian Administrative Service officers.
This very critical recommendation ought to have been acted upon expeditiously.
There have been any number of instances where senior police [and IAS] officers
who had obliged the political party in power during the communal riots have
been handsomely rewarded. One can cite dozens
of instances to support this. I would suggest that even now it is not too late
to accept this recommendation. I would like to suggest only one amplification
thereof, namely, such officers will not also be given political party tickets
to contest elections during a cooling-off period of three years.
If
a sense of confidence is to be created amongst the minorities that they will be
treated fairly, justly and their life and property will be safeguarded, all
efforts will have to be made to deal with the communal bias in the police. The
precepts of secularism, safeguarding the interests of the minorities and
importance of human rights are some of the subjects which need to be included
in the syllabus of police training institutions. In the refresher courses
organised for field police officers and constabulary, actual case studies of
communal riots, findings of official inquiries or judicial commissions of
inquiries must be placed before them for discussion. Knowledgeable
representatives of minority communities could be invited for interaction with
the police personnel in the training sessions. Unfortunately this important
aspect has been totally lost sight of.
It
is also necessary to give sufficient representation to minorities in the police
services. In this context, the example of the Rapid Action Force of the central
government which is often deployed during communal riots is noteworthy.
Conscious efforts have been made by the central government to give
representation to minorities in this force. This example needs to be replicated
in the states.
The
indication of how the winds are blowing since the coming to power of the BJP government
at the centre in 2014 is the recent instruction issued by the home ministry to
the National Crime Records Bureau (NCRB) not to publish the data on Muslims in
police. The publication of such data first began 16 years ago. It is for the
first time that such a ban has been imposed. (Indian Express, November 30, 2015: 1) Such efforts are
counter-productive for the success of secularism. It is interesting to see that
the NCRB report for 2013 showed that there were 1.08 lakh Muslim police who
accounted for 6.27 percent of the total strength of 17.31 lakh police in the
country, as compared to their percentage of 7.55 in 2007. Public pressure must
be brought on the government to revise this decision to ensure that data on
Muslims in police will be published each year.
Rule of Law and Reality
Even
if police departments are restructured as above and other changes suggested
herein are effected, unless rule of law is established in the country, nothing
substantial can be achieved. This is particularly true in dealing with an
important and sensitive subject like secularism.
Reference
must be made to the important provisions of sections 153-A and 153-B of Indian
Penal Code (IPC) which have largely remained on paper. The ‘majesty of law’ about which a
common citizen hears time and again is supposed to have laid down that
‘howsoever high you may be, the law is above you’. This is certainly not true
so far as the high and mighty in public life are concerned.
Full
powers need to be given to the senior police officers to directly prosecute
persons infringing these provisions, without the necessity of obtaining the
approval of the state government. Experience has shown that the state
governments look at this question entirely from a political point of view and
withhold the approval for prosecution or even reject the proposal altogether.
It is seen that cases filed under these sections are often withdrawn later at
the behest of the government for political ends. If secularism is to be translated into
reality, communalism will have to be put down with a firm hand. And this would
be possible only by ensuring that the above provisions of IPC are made
effective. The National Commission to Review the Working of the Constitution
has also said that “effective implementation of laws is lacking. This deserves
the highest degree of attention.” (p. 87)
Towards this end, as recommended by the second
administrative reforms commission (SARC), the provision contained in section
196 CrPC requiring prior sanction of union or state government or the district
magistrate for initiating prosecution for offences under sections 153A, 153B,
295A[19]
and 505[20]of
IPC, be deleted. It has also rightly suggested that the punishment for communal
offences be enhanced, and special courts should be set up for speedy disposal
of the cases. I fully agree with the recommendation of SARC that a separate law
to deal with communal violence is not required. The UPA government’s proposal
in this regard had led to bitter confrontation between the states and the
centre and also the political parties which were in opposition then.
Strengthening of the provisions of the IPC and CrPC will be adequate to deal
with the situation.
Last
69 years since Independence have seen not only repeated incidents of communal
violence, as brought out above, but regrettably some of these riots had
literally turned into massacres. To recall,
a few of these were: Jabalpur
riot in 1961, Ahmedabad riot in 1969, anti-Sikh riots in Delhi in 1984, Mumbai
riots in 1992-93 and Godhra riots in 2002. Against this background it is
necessary to make a special provision to deal with genocides such as these. The
law should provide to make such offences cognisable and non-bailable and much stricter punishment
extending up to life imprisonment. Fear
of law must be inculcated unambiguously, and anti-social elements which
generally take advantage of these situations and the government functionaries
who either connive at them or even support them must also be dealt with
severely.
Unusual
times call for unusual solutions. Experience has shown that hardly any
worthwhile action has been taken so far against government functionaries who
were handling these situations and had failed miserably. Time has come to
examine whether the provisions of the law of torts should be extended to all
those remiss in handling the genocides. Class-action suits need to be initiated
in such cases as it would be impossible for the individual victims to file
cases against the concerned powerful politicians and police functionaries. It
is only by applying the provisions of the law of torts that they would become
seriously aware of their responsibilities.
Another
legislation which has wholly remained on paper is the Religious Institutions
(Prevention of Misuse) Act, 1988. Rajiv Gandhi government must be given credit
for enacting this legislation but it has remained only as a show-piece. It was
seen during the Punjab agitation that there was a large scale misuse of
Gurudwaras by the terrorists for preaching their ideology. In Jammu and Kashmir
the separatists have been using Friday Namaz gatherings to launch their
ideological offensive against the central government and its organisations.
Hardly any action has been taken in these cases. Same is true of the Places of
Worship (Special Provisions) Act, 1991 which too has not been acted upon.
It
is equally frustrating to see that communal speeches made by candidates have
not been adequately dealt with under the provisions of the Representation of
People Act, 1951. In this context, the observation of the Supreme Court in one
of the cases is significant. The Court had said: so long as communal political
parties are not banned from
participating in political life of the country, there is very little
that the courts can do to restrain. Reference must also be made to the
recommendation of the National Commission to Review the Working of the Constitution
in this regard. The commission has
recommended: “Any election campaigning on the basis of caste or religion and
any attempt to spread caste and communal hatred during elections should be
punishable with mandatory imprisonment. If such acts are done at
the instance of the candidate or his election agents, these would be punishable with disqualification.”
(p. 87) Unfortunately, no action has been taken by the government on this
recommendation.
Adoption of Inquisitorial System
The experience of investigation of
crimes in communal riots has raised serious questions, whether it be anti-Sikh
riots in Delhi or riots in Mumbai or Godhra or any other major communal riots
in the country. There is a widely prevalent view that such cases are not
investigated vigorously or objectively and the police often act under political
pressure or in a communal manner favouring one community or the other. It would
be recalled that in some cases even a plea was made to the high courts and
Supreme Court that a special investigation team (SIT) may be appointed by the
court and the investigation may also be carried out under the supervision of
the court. Such petitions were agreed to by the Supreme Court in Godhra cases
but obviously this cannot be done in every case considering the workload of the
high courts and Supreme Court. It is therefore time to consider whether in
cases involving serious communal riots, the French model of ‘police judiciare’
should be adopted.
Justice Malimath committee on reforms
of criminal justice system has noted that:
The
inquisitorial system is certainly efficient in the sense that the investigation
is supervised by the judicial magistrate which results in a high rate of
conviction.
The committee on balance felt that a fair trial and, in particular, fairness to
the accused, are better protected in the adversarial system. However, the
committee felt that some of the good features of the inquisitorial system can
be adopted to strengthen the adversarial system and to make it more effective.
This includes the duty of the court to search for truth, to assign a pro-active
role to the judges, to give directions to the investigating officers and
prosecution agencies in the matter of investigation and leading evidence with
the object of seeking the truth and focusing on justice to victims.[21]
B. K. Nehru, former civil servant,
diplomat and Governor, in his book
‘Thoughts On Our Present Discontents’ has invited attention to the fact that:
In a country where telling lies in a
court of law is not regarded as immoral, and where the police is unfortunately
not always above manufacturing evidence and extorting confession, a system of
this kind [inquisitorial] would, … be definitely more suitable to our needs
than our present procedures. As a result of a thorough magisterial investigation
already made, the onus to prove his innocence lies heavily on the accused. This
will shock our lawyers who have inherited Anglo-Saxon prejudices along with
their system, but there is reason to believe that there are fewer miscarriages
of justice under the continental system and much greater enforcement of the law
than is prevalent in India today.[22]
The Law Commission in its seventy
seventh report submitted in 1978, had recommended that “Although we have
adopted the accusatorial system the trial judge should not play an altogether
passive role, but must take greater interest and elicit such information as may
be helpful in finding the truth”.[23]
In spite of these valid arguments
there are many legal luminaries who are strongly opposed to any change-over
from the existing system. I had in my book ‘The Judiciary and Governance in
India’ (2008) examined these facets in the light of experience in a number of
cases. I had stated: “This touching faith
in the present state of Indian criminal justice system is difficult to
understand. Even a cursory look at the data regarding the conviction rate
should be instructive in this regard. In 1968 the conviction rate was 70
percent. In 1999 it came down to below 40 percent and in 2003 it was 35
percent. In 2006 it was estimated to be below 30 percent. According to the then
chief justice of Bombay High Court Justice M. B. Shah, the conviction rate was
just 5 per cent.” I had suggested that a trial should be given to the
inquisitorial system on a pilot basis in selected districts. (Godbole 2008:
440-4) This has assumed new urgency in the context of increasing threats to
secularism. In all major cases with a bearing on secularism in recent years, it
has come to light that the police investigations and convictions leave much to
be desired. This has created a great sense of insecurity among the victims of
these riots who mostly belonged to minorities. I therefore believe that the
time has come to take a decision that at least in cases of serious communal
riots, to begin with, inquisitorial system should be adopted. This one single
step will go a long way in reassuring the minorities that the government is
serious about making a reality of secularism.
To Sum Up
The above analysis shows that a great
deal remains to be done if secularism is to become a way of life in India. This
will be possible only if there is a real political, social and intellectual
commitment to it and, the state and central governments, the political parties,
the civil society and the media strive for it. I am thankful to the Maharashtra
Regional Branch of the Indian Institute of Public Administration headed by Shri
Swadheen Kshatriya for giving me this valuable opportunity to share my thoughts
with you.
(Dr. Godbole is former
union home secretary and secretary justice.)
[2] Gopal S.
and Iyengar Uma, ed., The Essential
Writings of Jawaharlal Nehru, vol. I, Oxford University Press, New Delhi,
2003, p. 186.
[3] Government
of India, Ministry of Information and Broadcasting, Independence and After--A Collection of the More Important Speeches of Jawaharlal Nehru from September
1946 to May 1949, New Delhi, 1949, pp. 47-51.
[4] Madhav
Godbole, Unfinished
Innings--Recollections and Reflections of a Civil Servant, Orient Longman,
New Delhi, 1996.
[5] Madhav
Godbole, 'Ayodhya and India's Mahabharat: Constitutional Issues and
Proprieties', Economic and Political
Weekly, 27 May 2006.
[8] Jahagirdar
R.A., 'Secularism Revisited', The Radical
Humanist, February 2015 (p. 24) and March 2015 (pp. 35-6).
[9] Kashyap
Subhash C., History of the Parliament of
India, vol. 4, Shipra Publications, Delhi, 1997, p. 91.
[10] Gopal S.
and Iyengar Uma, ed., The essential
Writings of Jawaharlal Nehru, vol. I, Oxford University Press, New Delhi,
2003, pp. 190-1.
[11] Parthasarathy
G., ed., Jawaharlal Nehru--Letters to
Chief Ministers 1947-1964, Jawaharlal Nehru Memorial Fund, New Delhi, 1985,
p.60.
[12] Niyogi
Committee Report on Christian Missionary Activities, 1956, http://en. wikipedia.org/wiki.
[13] Godbole
Madhav, Good Governance Never on India's
Radar, Rupa & Co., New Delhi, 2014, pp. 174-5, 248-9.
[14] Gopalaswami
N., Political Parties and Elections: Some Issues, Journal of Constitutional and Parliamentary Studies, vol. 41, Nos.
3-4, New Delhi, July-December 2007, p. 196.
[15] Government
of India, Review of the Working of the
Constitution, Report of the National Commission to Review the Working of the
Constitution, vol. II, Book 1, New Delhi, 2002, pp. 91-2.
[16] According to the Nepal’s Ambassador to India, Deep Kumar Upadyay,
Nepal’s newly promulgated Constitution is the most progressive in South Asia
with its provisions of 33 per cent reservation for women. It also has both
first-past-the-post system as well as proportional representation. This
combination of the two ensures that minorities’ representation is taken care
of. (Indian Express, September 24,
2015: 1)
[18] Government
of India, Ministry of Home Affairs, Eighth
and Concluding Report of the National Police Commission, New Delhi, 1981,
p. 52.
[19] (deliberate
and malicious acts, intended to outrage religious feelings of any class by
insulting its religion or religious beliefs).
[20] (statements conducing to
public mischief) sub-sections (1)(c) (with intent to incite, or which is likely
to incite, any class or community of persons to commit any offence against any
other class or community), (2) (statements creating or promoting enmity, hatred
or ill-will between classes) and (3) (offences under sub-section (2) committed
in place of worship, etc.)
[21] Government
of India, Ministry of Home Affairs, Report
of the Committee on Reforms of Criminal Justice System (Justice V.S. Malimath
Committee), vol. I, New Delhi, 2003, pp. 265-6.
[23] Government
of India, Ministry of Law and Justice, Law
Commission of India, Seventy-seventh Report on Delays and Arrears in Trial
Courts, New Delhi, 1978, p. 157.
Late B.G. Deshmukh Memorial Lecture 2016 by Dr. Madhav Godbole on 4 April 2016 at Mantralaya in Mumbai.
No comments:
Post a Comment