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A Brief Historical and Legal Description of Religious Liberty
India is a democratic republic with a parliamentary form of government comprised of 25 states. She joined the United Nations in 1945 and gained independence from Great Britain in 1947.1 The country is 83% Hindu, 11% Muslim, 3% Christian, 1% Animist, and 2% other, including Sikh, Jain, Parsi, and Buddhist.2 Since Hinduism is not an organized religion, it is difficult to count its adherents. For purposes of the census, any Indians who do not consider themselves other than Hindu are counted as Hindu.
The Muslims conquered what is modern-day India in the early eighth century, and Islamic law, Shariah, became the law of the land. There was no distinction between religious and secular jurisdiction. With the arrival of the British and the colonization of India, the free exercise of Islam disappeared; the government officially declared neutrality while it actively attempted to convert Hindus and Muslims to Christianity.3
When India declared independence, Prime Minister Nehru, himself an agnostic, tried to create a secular state. In the words of Professor Mitra, “instead of drawing on the potential political strength of a state religion, . . . [Nehru] exclude[d] religion from even a residual role in public affairs.”4 Although he did not prohibit proselytizing or conversion, he hoped that religion would fade away under secular laws. In 1994, the Supreme Court identified secularism as a “basic feature of the Indian Constitution” and ruled that the President has the right to dismiss any state government that violates the secularist ideal.5 Author Banatwalla describes the inheritance of religious freedom bequeathed to India by Nehru: “the freedom of expression is strictly subjected . . . to considerations regarding maintenance of public order.”6
It is to Nehru that the legacy of the modern secular state which regulates religious activity belongs. In early years, Nehru compromised with Prime Minister Ghandi who rejected a division between religion and morality; however, with Ghandi’s assassination in 1948, Nehru’s policies prevailed.
The rise of religious fundamentalism tests India’s tradition of religious tolerance. Religious tensions surface most often in Hindu-Muslim riots, a phenomenon known as “communalism” whose root problem, many Indians assert, “lies more in the struggle for political power than anything else.”7 While opinions differ over whether Nehru’s policies which marginalized religion in the political sphere lead to current tensions, modern policy, an undeniable Nehru legacy, is highly controversial. Many believe that the basis for religious tolerance in India stems from the Hindu belief that many paths lead to spiritual liberation. One difficulty in understanding the nature of India’s secular state is the problem of defining religion in India. Religion in India is more than simply a belief system that dictates one’s behavior, it is an ethnic and cultural heritage that binds together persons and traditions across generations. Many Indians believe that separating religion from politics is futile in this deeply religious society.8 Constitutional scholar Chaudhari ignores the ethnic and cultural difficulties when he states, “Whatever binds a man to his own conscience and whatever moral and ethical principles regulate the lives of men, that alone can constitute religion as understood in the Constitution.”9 With the rise of religious fundamentalism, such a definition of religion is ineffective. Current political groups often charge that the Hindu Nationalist BJP political party and other militant groups often masquerade behind the guise of religion while fighting only for political power. The task before the Indian government is to protect freedom of religion while at the same time ensuring the security, and thus the liberty, of its citizens.
The reappearance of communalist and fundamentalist forces in the party system such as the Hindu communal Bharatiya Janata Party (BJP), the Sikh communal Akali Dals, and some other regional parties such as the National Conference, AGP, and Dravida Munnetra Kazagham (DMK), is a source of anxiety among those who believe that India succeeded in creating a secular democracy.10 The BJP has increased its following from 3% in the first post-independence election to 15% in 1989, making it the third largest party in the Indian Parliament.11 The BJP argues that a strong sense of Indian national identity “must be culturally rooted in Hinduism and Hindu civilization.”12 India’s national identity is rooted in Hindu culture, the party argues, because Hindus form the majority, and nations are built on the basis of common culture and ideology. Minorities, therefore, must reconcile themselves to Hindu political dominance and the centrality of Hinduism in the national identity.13
One of the major religious-political controversies in India is the issue of Punjab independence, rooted in the Sikh nationalist movement. In 1962, the Punjab independence movement adopted a “secular” strategy to create “Punjab Suba,” a unilingual Punjab. By 1980, however, the movement denied its secular strategy and embraced Sikh militants due to losses at the polls.14 Punjab has been wreaked by ethnic violence that has claimed over 18,000 lives since 1984.15 The central government has attempted to solve the Punjab problem, but has been unable to form a workable solution.16
The Supreme Court does not always succeed in upholding the principle of secularism in India’s predominantly Hindu culture. The Court in 1991 held that “minority institutions can grant only up to 50 percent of their seats to members of their own community.”17 Yet, in March 1994, the Supreme Court upheld the 1993 declaration of “President’s rule” dismissing the BJP government in three states and issuing an opinion that identified secularism as a “basic feature of the Indian Constitution.”18 Many hope that the verdict, in giving the President the “right to dismiss any state government that violates the secularist ideal,” will circumscribe religious fundamentalism and foster a workable political atmosphere.19
Constitutional Provisions and Legislation Relating to Religion
India’s Constitution of 1950 legitimates separation of church and State and grants freedom of religion. Provisions related to freedom of religion are as follows:
Article 15 (1): The State shall not discriminate any citizen on grounds only of religion . . .20Article 19 (1): All citizens shall the right - (a) to freedom of speech and expression . . .
Article 25 (1): Subject to public order, morality and health . . . all persons are equally entitled to freedom of conscience and the right freely to profess, practise and propagate religion.
Article 26: Subject to public order, morality and health, every religious denomination . . . shall have the right (a) to establish and maintain institutions for religious and charitable purposes [and] (b) to manage its own affairs in matters of religion.
Article 27: No person shall be compelled to pay any taxes, the proceeds of which are specifically appropriated in payment of expenses for the promotion or maintenance of any particular religion or religious denomination.
Article 28 (1): No religious instruction shall be provided in any educational institution wholly maintained out of State funds.21
Article 30 (1): All minorities, whether based on religion or language, shall have the right to establish and administer educational institutions of their choice. . .
(2): The State shall not, in granting aid to educational institutions, discriminate against any educational institution on the ground that it is under the management of a minority, whether based on religion or language. 22
Article 341 “grants power to the President to specify those castes or tribes in each state who are to be considered backward or “Scheduled Castes” and who qualify for government assistance and job reservations.”23
The Presidential Order of 1950 states that “no person who professes a religion different from Hinduism shall be deemed to be a member of a Scheduled Caste.”24 However, the definition of who belongs to a scheduled caste has expanded to include Sikhs (1956) and Buddhists (1990). Currently, Dalits, members of the backward caste, are denied government benefits only if they convert to Christianity or Islam.25
Some provisions of the Indian Constitution have earned the ire of critics. Author Banatwalla opposes “glaring illustrations of political invasion of the religious domain.”26 Banatwalla and others object to Article 17 which abolishes the practice of untouchability, censoring the religious practices of Hindus.27 Article 25(2) allows the State to make laws opening public Hindu religious institutions to all classes and sections of Hindus, a practice that the Supreme Court has termed “an exception to the general freedom to practise religion.”28 Banatwalla concludes that “[t]he role of the State as a religious reformer is, indeed, incompatible with the concept of a secular state.”29
Although the Indian Constitution protects freedom of religion, some civil libertarians consider it undemocratic because it gives opportunities to the Executive and Legislature to pass laws which deny rights that the Constitution ostensibly bequeaths to the people. For instance, the Preventative Detention Act allows the Executive to arrest people and detain them for undetermined periods of time. The National Security Act of 1980 allows the government to amend laws which guaranteed individual freedoms and liberties. The 59th Amendment to the Constitution, designed in reference to the Punjab crisis, provides that “internal disturbance, along with war and armed rebellion,” is a valid criteria from which to declare a state of emergency.30
Constitutional provisions respecting freedom of religion represent two different intellectual traditions. The first, which protects the freedoms of religious individuals within a secular state, is a Western concept. The second, which prohibits certain religious practices deemed detrimental to State interests, stems from the practical nature of the India situation. Noting the duality, Banatwalla states, “It is strange that contrary to the concept of a secular state which, in Indian context, enjoins minimal intervention in religion, the Supreme Court of India has deemed it fit progressively to widen the area of State intervention.”31
Despite its stated aim of protecting freedom of religion, the Indian Government does not adopt a position of total neutrality. The government has enacted several legislative measures to address Hindu religious practices “like sati, untouchability and temple entry, various practices associated with temple worship as animal sacrifices and devadasi dedication, and temple administration.”32 In response to terrorist activities, the Religions (Preventions of Misuse) Act of 1988 prohibits a religious institution from using its premises “for promotion or propagation of any political activity.” It also prohibits use of such premises for harboring a person accused or convicted of an offense under any law, for storing arms or ammunition, for carrying on any unlawful or subversive act, or acts which promote or attempt to promote disharmony or feelings of enmity, hatred or ill-will between different religious groups.33
Following the Babri Mosque incident in December 1992, Prime Minister Rao introduced two bills into Parliament that called for the separation of religion and politics — a Constitution Amendment Bill “which aims at disqualifying candidates who promote feelings of enmity, hatred, or ill-will between different classes of citizens on grounds of religion, race, caste, community, or language,” and an amendment to the Representation of People Act of 1951 which would “debar political parties if the association or body bears a religious name containing an appeal on the groups of religion.”34 The BJP said that the purpose of the legislation was to keep the Babri Mosque from being a voting issue and argued that the bills circumscribed the freedom of religion guaranteed by the Constitution.35 Both bills failed, due to inadequate drafting and support. In June 1994, India’s Human Resource Development Minister urged Parliament to pass legislation to prohibit the BJP from participating in the political process because of their unconstitutional mixing of religion and politics.36
Recent Reported Cases of Religious Intolerance
India’s major human rights clashes involve antagonism between various religious groups. As the United States State Department Country Report on India states:
India is a secular state in which all faiths enjoy freedom of worship. Government policy does not favor any religious group. Nevertheless, tensions over religious differences pose challenges to the secular foundation of the Indian State.37BABRI MOSQUE INCIDENT. One of the largest controversies in recent years between Hindus and Muslims is the Babri Mosque Incident. The destruction of the 16th Century Mosque by Hindu militants on December 6, 1992, exemplifies the difficulties which the Indian government faces in pursuing a policy of religious freedom. With this level of destruction and hostility, the government cannot remain neutral, and must support either the Hindu or Muslim religion in its response to the incident. Hindus destroyed the mosque because they claimed that it was built on the remains of a Hindu temple, and it is the birthplace of the Hindu God Ram. “Murder, looting and arson” began soon after in Bombay’s ghettos and spread to its financial district. The government first sent in the police, then paramilitary forces, and later the army to quell the disturbance. Although opposed to the government’s insufficient response, groups differed over how the government should act. The Indian Human Rights Tribunal stated that the riots were “an organized crime, perpetrated by communalists in connivance with the police,” making the government responsible for the violence.38 The Economist states that “Politicians and the police are seen as venal and incompetent; the courts deliver little or no justice.”39 After the Babri Mosque incident, Prime Minister Rao spoke first of rebuilding the mosque.40 He then banned communal organizations, and ended Hindu BJP governments in four states.41 However, when Hindu mobs placed idols of Ram in a temporary temple built over the rubble, Rao did not remove either the idols or Hindu worshippers.42
Hindu-Muslim tensions have increased, particularly in Kasmir, as a result of the mosque incident. The United Nations reported that, in February 1993, 50 Hindu temples were damaged, and two were 90% destroyed by Muslim fundamentalists.43 Early in 1994, the United Christian Council “urged the government to strengthen security around places of religious worship.”44 The Indian government sent security forces to protect the well-known Immaculate Conception Cathedral from attempts by Hindu fundamentalists to “reclaim” the land on which they believe the temple of the god Shiva used to stand.45
RESTRICTIONS ON FOREIGN RELIGIOUS AID. Perhaps because of the difficult religious situation in India, the government is wary of allowing any religious organization a great deal of freedom. The government allows Indian religious organizations to communicate with coreligionists abroad, but it regulates financial contributions received from overseas and prohibits use of such contributions to finance publishing.46 Furthermore, the government allows foreign missionaries to renew their visas but, since the mid-1960’s, has not allowed new missionaries to enter the country.47 In January 1993, there were 1,923 registered Christian missionaries in India.48 An increase in Christian conversions in the northeastern part of the country has prompted some Indian officials to forbid foreign missionaries to travel there.49
EDUCATION. A controversy over education rages in India. As Link magazine explains, “The biggest threat facing education in contemporary India is the capacity of political parties and the State to manipulate and dictate what students are to be taught.”50 In the states of Uttar Pradesh and Madhya Pradesh, the Hindu nationalist BJP has changed school syllabi to assert that the Aryans were the original inhabitants of India, not the invaders of it. Such emotionally charged debates stem from differences between religious groups.51
ENDNOTES
1 Edward H. Lawson, ed., Encyclopedia of Human Rights (New York: Taylor & Francis, Inc., 1991): 867.2 ibid.
3 Adapted from G.M. Banatwalla, Religion and Politics in India (Bombay: G.M. Banatwalla Publishing 1992): 25-66.
4 Subrata Kumar Mitra, “Desecularising the State: Religion and Politics in India after Independence.” Comparative Studies in Society and History vol. 33, no. 4 (October 1991): 756.
5 “India.” News Network International (April 12, 1994): 5.
6 Banatwalla, 93.
7 Jaytilak Guha Roy, “Politics, Religion and Violence in India.” The Indian Journal of Political Science vol. 52, no. 4 (October-December 1991): 445.
8 “India.” News Network International (February 23, 1994): 2.
9 Ratilal v. State of Bombay 1953 Bom 242, in D.S. Arora, 269.
10 Mahendra Prasad Singh, “The Dilemma of the New Indian Party System: To Govern or Not to Govern?” Asian Survey vol. XXXII, no. 4 (April 1992): 305.
11 Gail Omvedt, “Hinduism, Social Inequality, and the State,” in Douglas Allen, ed., Religion and Political Conflict in South Asia: India, Pakistan, and Sri Lanka (Westport, CT: Greenwood Press, 1992), 18.
12 See S. Khan, “Towards a Marxist Understanding of Secularism.” Economic and Political Weekly (March 7, 1987): 406.
13 Singh, 321.
14 Hamish Telford, “The Political Economy of Punjab: Creating Space for Sikh Militancy.” Asian Survey vol. XXXII, no. 11 (November 1992): 969.
15 ibid.
16 Gurhapal Singh, “The Punjab Elections Of 1992: Breakdown or Breakthrough?” Asian Survey vol. XXXII, no. 11 (November 1992): 988.
17 Ajay Ghosh, “Church Leaders Push for More Educational Rights.” News Network International (July 26, 1994): 22.
18 Ghosh, “Indian Supreme Court Upholds Secularism: Mixing of Religion and Politics Condemned.” News Network International (April 12, 1994): 36.
19 ibid.
20 Banatwalla, 68.
21 D.S. Arora, ed., A.S. Chaudhari’s Constitutional Rights and Limitations, 2d. ed. (India: The Law Book Company (P) Ltd., 1990): 263-264.
22 Banatwalla, 67-68.
23 Ghosh, “Christian ‘Outcastes’ Protest Social Discrimination.” News Network International (August 17, 1994): 51. The caste stystem is one aspect of Hindu religion, enforcing cultural norms of discrimination against Dalits, literally “the depressed.”
24 ibid, 52.
25 ibid.
26 Banatwalla, 68.
27 ibid, 95.
28 1958 S.C.R. 89, in Banatwalla, 69.
29 Banatwalla, 95.
30 Kuldeep Mathur, “The State and the Use of Coercive Power in India.” Asian Survey vol. XXXII, no. 4 (April 1992): 342-3.
31 Banatwalla, 96.
32 ibid, 95.
33 ibid, 123.
34 “Legislation Introduced to Bar Religion From Politics.” (FBIS-NES-93-145, 30 July 1993): 55.
35 ibid.
36 Ghosh, “Official Calls for Laws to Bar Hindu Party from Elections.” News Network International (June 14, 1994): 48.
37 U.S. Department of State, Country Reports on Human Rights Practices for 1993 (Washington, D.C.: U.S. Government Printing Office, 1994): 1347.
38 U.S. Department of State (1993): 1348.
39 “The Fire of India’s Religions.” The Economist (January 16, 1993): 33.
40 ibid.
41 ibid.
42 ibid.
43 10 November 1993 “Letter from the Special Rapporteur to the Indian Government,” in United Nations: Economic and Social Council, Implementation of the Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief, E/CN.4/1994/79 (20 January 1994): 71.
44 “India.” News Network International: Special Edition (April 12, 1994): 5.
45 ibid.
46 U.S. Department of State (1993): 1348.
47 U.S. Department of State (1994): 1228.
48 ibid.
49 U.S. Department of State (1993): 1348.
50 Yoginder Sikand, “BJP and the Threat to Indian Education.” Link Vol. 35, No. 18 (December 13, 1992): 18.
51 ibid.
Source: Handbook on Religious Liberty Around the World, Pedro C. Moreno, Editor. Charlottesville, VA: The Rutherford Institute. This report is reprinted here by special arrangement with the Rutherford Institute and may not be reproduced or mirrored on another webside without written permission of the Rutherford Institute.
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