Perhaps in no other general election in the past have issues like ‘uniform civil code’, ‘politics of appeasement’, ‘secularism’, ‘illegal infiltration’, ‘NRC’ etc. been so much a part of the campaign of political parties as it had happened this time. Whereas the right-wing political parties had stepped up their pitch to prove that because of the policies of appeasement pursued in the past by the Congress and other left-of-Center liberal parties, the proportion of the Hindu population declined from 84.1 per cent in the 1951 Census to 79.8 per cent in 2011, others alleged that so long as fertility rates of women were declining fast amongst all communities, this kind of narration was aimed at dividing society to gain electoral dividends.
In Western nations, secularism is perceived as a doctrine where religion and religious considerations are not reflected in the policies of the state. If we go by this idea of segregation of state and religion, can a secular state allow its citizens to follow the life practices as per their own religious scriptures? Perhaps the founding fathers of the Indian constitution thought that the two were contradictory. However, at the same time they felt that Indian society at the time of independence was not prepared enough to appreciate such a stricter doctrine of secularism. In consequence it was stated in the Directive Principles of the Indian Constitution that the “state shall endeavor to secure for citizens a uniform civil code throughout the territory of India”. But no time limit for such an endeavor was indicated.
The framers of modern India perceived India as a nation where laws relating to the personal life of citizens viz. marriage, divorce, inheritance of property etc. should all be governed by a set of rules independent of religious affiliation of the citizens. Uniform civil code is, therefore, an integral part of a secular state if we go by the principle of segregation of state and religion. The softer approach to secularism talks of providing equal status, recognition and support from the State to all religions. This doctrine allows different sets of rules to prevail in relation to personal life for people of different religions, depending on the respective religious scriptures. Since independence, India went by this idea of secularism and never took the idea of uniform civil code seriously. The idea of this article is not to compare the merits and demerits of two doctrines but to introspect on different shades of secularism.
Let’s first look at our neighboring countries in South Asia. Can a State be secular if it patronizes any particular religion? The Constitution of Bangladesh by an amendment in 1988 declared Islam as the State-religion, though secularism is mentioned in the preamble as a fundamental principle. Family laws there have separate provisions for different religious groups. Though the Constitution says that “the state shall ensure equal status and equal right in the practice of the Hindu, Buddhist, Christian and other religions”, the secular credentials of Bangladesh were seriously jeopardised after adoption of a State Religion. Even in the Islamic Republic of Pakistan, the Hindu Marriage Act was implemented in 2017 to register marriages solemnised by Hindu rituals where husband and wife are both Hindus. Such rights relating to marriage or inheritance of property, granted to minority communities do not necessarily establish the doctrine that the citizens from all religions “are given equal status, recognition and support from the State”. If the State identifies one particular religion as a state-religion, that vitiates the eco-system essential to extend equal status, recognition and support to all.
What is there in the statute is important but more meaningful is the ecosystem which reflects the mind-set of those who run the state. The Supreme Court (1975) observed two conditions for secularism: “the State shall have no religion of its own” and “the people of the country shall be equally entitled to their conscience and have the right freely to profess, practice and propagate any religion”. However, there are exceptions even in Europe. In Denmark and Greece where politics, education, science and social affairs are independent of religious dogmas and institutions, they have ‘state-church’. The antithesis of a secular state is a ‘theocratic state’ where the legal system is based on religious law. In certain theocratic states, the Head of State cannot be from any religion other than their own. In today’s world, it is difficult to find a purely theocratic state. However, in Afghanistan, Iran, Qatar and Saudi Arabia, Sharia laws are retained for personal matters and in the absence of personal law, judges decide based on their own interpretations of Sharia law.
In most of these countries, religious minorities, in general, do not have the right to practice their religion openly. Contrarily, there are Muslim majority states viz. Indonesia or Turkey where freedom of religion for individuals is recognized. Indonesia recognizes six official religions. In Malaysia, Islam is the state religion and non-Malay citizens can practice any religion of their choice, but one must be a Muslim to be considered as Malay. Syria has a dual legal system where civil and criminal cases are heard in secular courts and in parallel there are also Sharia courts to handle personal matters. Though Syria’s constitution claims to be a secular one, the President has to be a follower of Islam. On the other extreme there are Communist countries where atheism is practiced by the State and people are discouraged from practicing religion. China and Vietnam are classic examples. Secularism is, therefore, not a binary concept.
There is a spectrum and the state has to evolve through a process towards the doctrine of separation between the state policies and religion, depending on the preparedness of the society. After the setbacks to the BJP-led NDA in the recently held Lok Sabha election, the present government with a razor-thin majority in all probability will not pursue contentious issues like Uniform Civil Code. However, the debate in civil society on UCC is likely to continue. We need to judge the issue of implementation of the uniform civil code in secular India from an unbiased assessment of readiness of the society.
(The writer, a former civil servant, is now an independent commentator on socio-economic issues and public policies.)