Tuesday, August 15, 2006

Secular Constitutions: the U.S. and India

Happy Indian Independence day, everyone!

I've recently been involved with some discussions where people have questioned why India needs "secularism," and even just what secularism means in India. Since I have researched the issue of secularism as part of my academic work (my upcoming book is called Literary Secularism), I thought it might be interesting to look at the Indian and American approaches to secularism in comparison as a thought exercise. Instead of focusing on recent issues such as the train bombings in Mumbai last month, or almost-current events like the Gujarat riots of 2002, I wanted to back up a little and take a brief look at the texts of the respective Constitutions themselves. I think this comparative exercise might shed some insight on the value and importance of secularism in both countries.

* * *

Let's start with the First Amendment of the U.S. Constitution, implemented in 1791:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.


Mainly because it refers to so many different things, this has become one of the most hotly debated sentences in the English language. The first phrase guarantees the "free exercise" of religion, and it's coupled with a statement that the U.S. government is forbidden to associate with an "Established" church.

The First Amendment was a brilliant solution to the kinds of sectarian wars that had been so damaging in Europe in the early modern era, and it also addressed the concerns of many religious sects that had fled to America from Europe to escape persecution by their governments. The clause helped to bring the country together at the moment of its founding, and it's worked fairly well for more than two hundred years since. Admittedly, the rule wasn't always applied as strongly as it should have been (many individual states had de facto established churches for many years), and it wasn't really until the 1940s that smaller, more esoteric sects like the Jehovah's Witnesses were guaranteed the right to religious expression that the mainstream had earlier considered an annoyance. (The Jehovah's Witnesses wanted the right to proselytize door-to-door as part of the free exercise of their faith; see Cantwell v. Connecticut.)

But it's also important to note that the U.S. courts made a number of decisions against religious community rights, starting as early as the Civil War era, when the Supreme Court ruled against the Mormons on the matter of Polygamy (see Reynolds vs. United States). At the time the Mormons were extremely unhappy that what they saw as a fundamental aspect of their religious tradition was being declared illegal. But they learned to live with it, and today the community thrives in a modified form.

We can think about this history in light of India, and come to two loose conclusions. Admittedly, the histories of religion and the law in India and the U.S. are different, so there's a limit to how far you can take this. Nevertheless:

1) Allowing the majority religious community to "establish" itself is a bad idea even if some people think that the majority religious tradition is historically a tolerant, inclusive one. Limits ought to be placed on the role of religion in government -- pretty strict ones -- for the benefit of the country as a whole. If the government didn't make an effort to protect the rights of India's many religious minorities at the time of its founding, the country would never have come together to begin with. If it doesn't continue to do so now, it won't stay together.

2) Following the example of the Mormons, minority religious practices that are disrespectful of human rights (especially women's rights) can be banned by the state. That means that the state has the authority to ban polygamy in Islam (still technically legal in India), as well as "Triple Talaq." In the short run, some Indian Muslims would be unhappy about these changes, but in a modern nation-state the government has the authority to decide on fundamental rights for all its citizens. (Of course, given current political circumstances, changing this law is an impossibility -- even the NDA government didn't try it during the years it was in power. Also, many people would argue that the problem in India is that the existing laws aren't enforced adequately -- witness female foeticide, which continues though sex-selecting ultrasounds are banned.)

The Indian Constitution is longer and more complex than America's (there is a decent amount of information at Wikipedia, for those who are unfamiliar with it). The statements concerning secularism are much longer than in the U.S. version, and while they are more specific (the U.S. First Amendment is maddeningly general), their specificity has not made them any less controversial. Moreover, Indian Parliaments have been prone to make many minor and major Revisions and Amendments over the years. In 1976, the language of the Preamble itself was changed -- and the words "socialist" and "secular" were inserted, so that the opening sentence now reads: "WE, THE PEOPLE OF INDIA, having solemnly resolved to constitute India into a SOVEREIGN SOCIALIST SECULAR DEMOCRATIC REPUBLIC and to secure to all its citizens..." Were these insertions really necessary? Some of the changes made over the years detract from the power of the Constitution as a whole.

At any rate, let's look more closely at at least one of the provisions concerning secularism in the Constitution, Article 15:

15. Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth.—(1) The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them.

(2) No citizen shall, on grounds only of religion, race, caste, sex, place of birth or any of them, be subject to any disability, liability, restriction or condition with regard to—

(a) access to shops, public restaurants, hotels and places of public entertainment; or

(b) the use of wells, tanks, bathing ghats, roads and places of public resort maintained wholly or partly out of State funds or dedicated to the use of the general public.

(3) Nothing in this article shall prevent the State from making any special provision for women and children.

(4) Nothing in this article or in clause (2) of article 29 shall prevent the State from making any special provision for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes.


This is just the first of several clauses dealing with "religion, race, caste, sex, place of birth" etc. in the Indian Constitution, and it's immediately apparent that the intent and structure of the Indian text is quite different from the American version. In India, the Constitution Assembly felt obliged not just to establish general laws, but to make specific statements regarding actual religious practices and communities. Untouchability was banned (Article 17); discrimination over access to water was banned (above); discrimination in public places such as hotels and restaurants was banned.

From the beginning, then, the Indian government took on the role of reforming religion in the pursuit of social justice and equality. Nehru, Ambedkar, and other progressives understood traditional religious practices and values (from all of India's religious communities) to be the major impediment to the kinds of modernizing, integrating social reforms they wanted, and the Constitution reflects that focus.

They were not bothered by the American idea of the "separation of church and state." In India's case, religion is so constantly present in everyday life, and so powerful in the social order, that the concept doesn't really make sense. The state has to intervene in religious matters, to guarantee, for instance, that all castes of Hindus have the right to enter temples. The Indian Constitution is an activist, reformist constitution. It is also incremental -- some of the changes desired would not have been accepted by most Indians in 1948. (The Hindu Marriage Act, which made major reforms on issues such as dowry, child marriage, and polygamy affecting the Hindu community, was implemented in 1955.)

What couldn't be included under "Fundamental Rights" for practical reasons was relegated to a special section of the Constitution indicating "Directive Principles of State Policy" (Part IV). These are essentially suggestions for future legislators -- it would be great if you could go in this direction, that's really what we'd like to do, but can't. One of the most famous of these directive Articles is Article 44: "44. Uniform civil code for the citizens.—The State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India." Sixty years have passed, and nothing much has happened regarding civil codes. Directive Princples like Article 44 solve the question of the Constitutional Assembly's "intent" that dogs so many legal debates in the U.S., but otherwise they don't seem to matter much.

The activist approach of the Indian Consitution has helped to modernize India in many ways quite quickly. But it also has some unresolved flaws. One is the Civil Code issue I already mentioned. The other issue is caste reservations, which are allowed by the Constitution in Article 15:

(4) Nothing in this article or in clause (2) of article 29 shall prevent the State from making any special provision for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes.


It's worth noting that while the Constitution bans untouchability, it neither formally nor "directively" bans the idea of caste-based social relations. Defenders of reservations in employment and education argue that any society in which an institution like caste exists is going to be an institution where discrimination by caste exists. Opponents argue, first, that the reservations "Schedules" which determine proportional quotas aren't based on current demographic realities (as I understand it, caste is not indicated in the Indian census). Second, the opponents of reservations say that some of the communities included, specifically on the OBC lists, are no more "Backward" than any other, non-Scheduled group. And third, they argue that the continued growth of this system actually reinforces social division by caste; those divisions might, with the modernization of social life in Indian cities, have withered away.

Though the hot debate we saw earlier in the year has died down somewhat this summer, I think that the reservations issue is going to be one of the most divisive ones India has to deal with going forward. I personally opposed the latest expansion of the OBC quotas that were introduced by the UPA government this spring, but separate from that issue is the general issue of what to do with the caste-based reservations system as a whole. And there I don't have an obvious answer, though I do think this might actually be a bigger issue than Hindu-Muslim relations in the long term, as it encompasses nearly every Indian citizen.

[Cross-posted at Sepia Mutiny]

15 comments:

Suvendra Nath Dutta said...

This is another excellent article. Now I am really looking forward to your book. I was disappointed that your book name wasn't a link.

The "reservation" issue is a problematic one. But I was dissappointed to see you didn't draw the connection to US there. One problem with the non-quota affirmative action approach is that it doesn't do anything. If you look at the tenured faculty/postdoc/grad student breakdown of physics, it has held steady in its division across gender and race from 1980's. The last major change happened when the Ivy League's allowed female students in the 70's. You could argue why pick physics. Aside from its the one area I know, its useful to take outlier points in these cases. That is because these points are most sensitive to change. The fact that this has held steady for 30 years means that the rest of the academic world isn't changing. This would argue that the quota system is the only real measure.

Another thing though, reservation in IIT's etc clearly won't affect anything, right? Your chance, as an average student, goes from 1 in a million to 1 in 2 million. In other words, you couldn't get in before, you won't get in now. But an increase in diversity in the frothy layer at the top has a huge impact on the rest of the society. That would seem to argue for reservation. Unfair, yes, but equitable. Sort of like progressive taxation.

And another request, please don't make me suffer through reading SM. Please keep reading comments here and responding.

v said...

this was an excellent post. you've explored so many wavelengths i'd never even thought of. so awesome! keep writing, amardeep.

Chandra said...

Apparently Indian constitution is a living breathing one – 96th amendment coming up this year!

Amendment in 1976 was during Indira’s Emergency years – apparently she wanted to prove India was a mini-me (USSR). I hope we get rid of the world “Socialist” from the constitution.

BTW, the apparent hindu nationalist BJP had uniform civil code on it’s election manifesto; the rest of the “secular” partners of NDA won’t allow the change – such is Indian secular oxymoronism.

In India, secularism means appeasement - appeasement to ban movies; appeasement to create reservations (at state level; luckily center says it may be unconstitutional, but Andhra Congress I CM has a solution - change the state constitution); appeasement with separate laws; appeasement without any responsibility with no fullstops. With more and more homegrown terrorists, secularism in India is in a sorry state. It’s increasing becoming clear that Europe is going down the same “secular” road as India has and is. US seem to holding up for various reasons – but it’s too soon to tell because there are many multicultural secularists who can pull it down the path (in fact, we can see evidence of it with respect recent Latino immigrants).

With regards to reservation of OBCs, solution is easy (while implementation is hard): provide for all kids (especially economically weak) until 12th grade and let interests (not everyone needs to an engineer or doctor) and competition take hold in universities and beyound. State fails to provide for kids and so the reservations mess. In any case, it is political grab – it doesn’t matter what the solution is. Apparently it’s unfair but equitable – what ever that means (taxing analogy is fallacious).

Mona Mishra said...

very interesting.
The shades of grey in the debate are awesome. Of course, as long as religion or community continues to be the dominant identity, we are going to have to battle 'isms' that separate rather than galvanise.
cheers, m

Amardeep said...

Suvendra,

The fact that this has held steady for 30 years means that the rest of the academic world isn't changing. This would argue that the quota system is the only real measure.

Interesting point, though physics might not be the most representative field! ;-) The black middle class has swelled in the three decades since affirmative action was first implemented. There are also way more black and hispanic lawyers and doctors than there were before. I think most Americans feel affirmative action has worked. Some conservatives are now arguing that "it was a good thing, but we don't need it anymore."

Your chance, as an average student, goes from 1 in a million to 1 in 2 million. In other words, you couldn't get in before, you won't get in now.

Yes, the whole quota/reservations problem would be easier if India had a somewhat broader range of 'top' schools, and more seats available. I recently heard that there are like 5000 seats a year at all the IITs, which is laughable in a country of India's size.

And another request, please don't make me suffer through reading SM. Please keep reading comments here and responding.

Ok -- and sorry if I've been flaky about that recently. Incidentally, the answer to your question about Vikram Seth is, yes, you can read it the way one reads Amitav Ghosh. Seth puts more emphasis on family and characterization, but he put the whole world into "A Suitable Boy."

Suvendra Nath Dutta said...

"The black middle class has swelled in the three decades since affirmative action was first implemented. There are also way more black and hispanic lawyers and doctors than there were before."

This is exactly my point though. The same is true for India. The OBC middle class and even the SC/ST middle class has swelled. But like in the US, this has not reflected in increased representation in positions of power. This is the argument for affirmative action/quota. As you know the chances that a black middle class student gets into college is less than of a asian or white middle class student. As there is no demonstrable innate difference along races in basic scholarship abilities, this must because of some residual discrimination. The affirmative action/quota system simply jumps over the cause and fixes the problem. And frankly the notion that this has to be temporary is nonsense as well. People who argue that should never stuff paper under a wobbly table to hold it steady. I've had one under my kitchen table for years and never saw a need to buy a new table. A fix that works is vastly superior to a theoretical "correct" solution that will never happen.

Polite Indian said...

It's worth noting that while the Constitution bans untouchability, it neither formally nor "directively" bans the idea of caste-based social relations.

I think this is one of the most important aspect that the fathers of the constitution missed. I wish they had banned caste alongwith untouchability. I understand it might have been difficult then but it could have been included in the Directive Principles at least. This is also a mystery because Ambedkar wanted the "Annihilation of the castes" all along but yet didn't think of putting something like this in the constitution.

Very nice post though.

Panini Pothoharvi said...

it neither formally nor "directively" bans the idea of caste-based social relations

I think there is a problem here. Whereas untouchability is a clearly practised social evil in India till today, the dynamics of a caste-driven day-t-day lived function far more deviously. However, provisions against discrimination in the public sphere on the basis of caste clearly and unambiguously find space in the Constitution. In fact, even castist verbal abuse is punishable under the Indian Penal Code.

Anonymous said...

And another request, please don't make me suffer through reading SM. Please keep reading comments here and responding.

Yes, please don't make him suffer through that terribly informative, entertaining, community-building site. How cruel of you!

Archana said...

I am particularly interested in the womens' rights aspects you bring up, especially with regard to the notion of an Indian Uniform Civil Code, which has been the subject of much debate - whether religious law should govern family law matters (like the polygamy example you raise) as well as inheritance (I wrote an article about gender discrimination enshrined in the Hindu Succession Act, for example). Why does the Constitution actively try for equality on some issues (untouchability) and not on others (esp. re: women)?

Great post - and very relevant to everything going on in the world today - whether India, the US, or the Middle East...

realitycheck said...

>>A fix that works is vastly superior to a theoretical "correct" solution that will never happen. >>

I wish you were right. How do you know that what we have is a "fix that works" ? We dont even have basic facts about who the OBCs are and on what social basis can they be classified as one.

Unlike African Americans, OBCs are not a easily identifiable group who lend themselves to selection for positive discrimination policies.

An individual cannot be an OBC. A person can only be a member of a caste that has been classified as OBC.

If they key measure of success is diversity, then you must have data to prove that all OBC component castes are drawing roughly equal benefits from the system. Almost all commissions prove that to be false.

Read my blog for more.

Shamik said...

1.You might be interested in this excellent article by sociologist Dipankar Gupta has questioned the 'backwardness' of backward classes and the motives involved in quota making.
http://www.hindustantimes.com/news/181_1779508,00120001.htm

2.There seems to be a problem with the accepted interpretation of the word 'secular' in the Indian constitution.
The accepted interpretation tends more towards "respect for all religions"(Sarva dharma sambhava) rather than the much desired "indifference or neutrality to religion"(Dharma nirpeksha). In doing so it makes a metaphysical pronouncement that is contradictory to a rationalist position which presupposes 'either one religion is true or none of them is true. All cannot be true at the same time.' according to Bertrand Russell in his Preface to "Why I am not a Christian". In effect, the metaphysical pronouncement made by the accepted definition of 'secular' in the constitution is value pluralistic, has a Hindu foundation(Meera Nanda as you know has a well presented case in Prophets facing backwards) and I doubt if it can encourage skepticism because it does not encourage people to see the possibility of any of them being false. Indeed, if 'secular' would have meant "indifferent" that would have implied that the Constitution does not make any pronouncement on the truth value of any religion and thus people are encouraged to debate and be skeptical.


I would qualify my remarks. Not that the Constitution does not allow skepticism, but it is somewhat contradictory to healthy debate as to the values which sanction social discrimination.

3. The nature of the Indian democracy is such that appeasement seems inevitable given the need for votes, the absence of reason and the presence of identity based politics and epistemology and mass ignorance. I am not sure what can be done about it except a utopian rejection of religion and accptance of humanism where reason and critical thinking are foundations.

It's amazing that the Congress has been left as the only option as a secular government whose legacy is of Nehru and Indira dabbling in astrology to make national decisions(is Rushdie right?).

Anonymous said...

Indian ocean songs sound strangely very very very similar to the "baul" gaans (krishna bhakti -- i think) that you hear on the trains going in the eastern-northern strip of india ... and the baul singers sound better!!!!

Anonymous said...

Dear Amardeep,

I discovered your blog recently, and have been enjoying your posts. I have a couple of questions and maybe you can answer it.

You say that in the US, people have won the right to wear the veil. Was that involving burqa or hijab? If all those cases have been only regarding hijab, what's your opinion on US courts allowing burqa if someone brings such a case?

Thanks!
-Amit

Anonymous said...

What defined the secular in the American constitution has a different conotation and meaning to the Indian one. The American framers of their's were highly educated enough to have a good dose of sceptism about allowing religion to constrain the state in political affairs. With their security firmly anchored in the moral world as defined by Christian practices, they were willing to follow the example of the anceint Roman and Greek powers for their's to rise to greatness. The brevity and efficiency of the American constitution is a reflection of this. The Indian anxiety was that left to themselves India's religions far from working to advance the country would constrain its rise and development. Everything was spelled out in great detail and this makes the Indian constitution unwieldy. No sanctity attaches to the constitution of any country more than that of their authors. For that reason, any Indian looking to the future would have to make the leap by redefining society and politics for any new constitution to be meaningless. Indian politics and the constitution cannot be fixed by the usual means. We have seen with France for example that it is not beyond the bounds of a single men to usher in a new republic and a age for his country and people.