Bill of Rights in the Constitution of India
G. B. Singh
Many admirers of India often go out of the way to depict India as the "world's largest democracy" and a "secular" state, which through its constitution guarantees fundamental human rights to all Indians - the implication being that such rights are in practice as a matter of routine. Yet, dismaying as it may seem, I have never come across any piece of written information analyzing the Indian Constitution itself, let alone all those enshrined fundamental rights that it guarantees to its citizens. Coupled with aggressive Soviet-style "active measures" channeled by the Indian government, several intellectuals outside of India have fallen prey to the media blitz.
Before analyzing the rights enshrined in the Indian Constitution, a few words on the constitution would be helpful to the readers. The Indian Constitution (promulgated in 1950) is the longest constitution ever written. As of September 1991, the Constitution of India comprised 395 Articles, 10 Schedules, 4 Appendices, and constitutional amendments totaling more than seventy-five in number. Include to this list amendments of previous amendments - often each amendment encompassing multiple smaller amendments within its charter. India's constitution can safely be characterized as the most complicated of all modern political documents available.
Highly placed Indians with some insight into their constitution will often take delight in saying that it is based on sound fundamental principles derived from the constitutions of no less than five great western democracies: Australia, Canada, England, Ireland, and of course, the United States. It all sounds great. Even more impressive is when you hear that the Bill of Rights of the U.S. Constitution has made its way into the Indian Constitution. This is always followed by a note of special thanks to the framers of India's constitution, with particular tribute paid to the likes of Dr. Ambedkar (well known leader of the Untouchables), who chaired the drafting committee that devised the Indian Constitution. Justifiably, a question begs to be asked: Are all things mentioned above true?
To answer that question, one must at least procure the most recent copy of the Indian Constitution, read it, understand it, and then present the facts as they stand. I did exactly that, which is why I am writing this article.
I hope the reader is familiar with the first ten amendments (commonly called "The Bill of Rights") of the U.S. Constitution, which were ratified in 1791. This information is important since these rights were purportedly imported into the Indian Constitution. For the purpose of this article, it will be worth the effort to reproduce the First Amendment of U.S. Constitution, which states:
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.
Part III of the Indian Constitution (Articles 12 through 35) constitute the entire minutia on fundamental rights. Of these 24 articles, Articles 19 and 25 are the only ones that truly correspond to the First Amendment of U.S. Constitution. Allow me to reproduce Article 19 in its entirety:
Protection of certain rights regarding freedom of speech, etc.
(1) All citizens shall have the right -
(a) to freedom of speech and expression;
(b) to assemble peaceably and without arms;
(c) to form associations or unions;
(d) to move freely throughout the territory of India;
(e) to reside and settle in any part of the territory of India; [and]
(g) to practice any profession, or to carry on any occupation, trade or business.
(2) Nothing in sub-clause (a) of the clause (1) shall affect the operation of any existing law, or prevent the State from making any law, in so far as such law imposes reasonable restrictions on the exercise of the right conferred by the said sub-clause in the interests of the sovereignty and integrity of India, the security of State, friendly relations with foreign States, public order, decency or morality, or in relation to contempt of court, defamation or incitement to an offence.
(3) Nothing in sub-clause (b) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, in the interest of the sovereignty and integrity of India or public order, reasonable restrictions on the exercise of the right conferred by the said sub-clause.
(4) Nothing in sub-clause (c) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, in the interest of the sovereignty and integrity of India or public order or morality, reasonable restrictions on the exercise of the right conferred by the said sub-clause.
(5) Nothing in sub-clause (d) and (e) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, reasonable restrictions on the exercise of the right conferred by the said sub-clauses either in the interests of the general public or for the protection of the interests of any Scheduled Tribe.
(6) Nothing in sub-clause (g) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, in the interest of the general public, reasonable restrictions on the exercise of the right conferred by the said sub-clause, and, in particular, nothing in the said sub-clause shall affect the operation of any existing law in so far as it relates to, or prevent the State from making any law relating to -
(i) the professional or technical qualifications necessary for practising any profession or carrying on any occupation, trade or business, or
(ii) the carrying on by the State, or by a corporation owned or controlled by the State, of any trade, business, industry or service, whether to the exclusion, complete or partial, of citizens or otherwise.
Granted much of the above narrative is redundant; nobody doubts the clarity of Clause 1 of Article 19. However, given what is written in Clause 2 and onwards, everything changes. The fundamental rights given in Clause 1 have been for all practical purposes nibbled away one by one, thanks to Clauses 2 to 6. The reader must have noticed that Clause 1f, which had been "to acquire, hold and dispose of property," is missing. The 44th Amendment expunged that portion in 1978. Things get even more complicated when you encounter Articles 352 through 360 of the Indian Constitution, which essentially deliver the emergency provisions. Since numerous geographical areas of India frequently fall under these emergency provisions, the reality of the fundamental rights supposedly guaranteed under Article 19 and others is revealed, as citizens are forced to live under the enacted draconian laws.
What makes the fundamental rights problem even more tedious is that according to the 40th Amendment, the draconian laws may not be challenged before any court on the ground of violation of fundamental rights. If one or more groups of people have suffered terribly from the repressive hands of the State, the 41st Amendment nails you right back in your proper place. This amendment has provided that the President, Prime Minister and State Governors are immune from criminal prosecution for life and from civil prosecution during their term of office. What about the Press in India? The exuberant Indian Press exercises its freedom of speech freely, as the apologists will always remind you. But the facts are otherwise. Indian journalists have learned too well how to kowtow to the ruling Indian leaders.
Now, let us take a look at Article 25:
Freedom of conscience and free profession, practice and propagation of religion -
(1) Subject to public order, morality and health and to the other provisions of this Part, all persons are equally entitled to freedom of conscience and the right freely to profess, practice and propagate religion.
(2) Nothing in this article shall affect the operation of any existing law or prevent the State from making any law -
(a) regulating or restricting any economic, political or other secular activity which may be associated with religious practice;
(b) providing for social welfare and reform or the throwing open of Hindu religious institutions of a public character to all classes and sections of Hindus. Explanation I - The wearing and carrying of kirpans shall be deemed to be included in the profession of the Sikh religion. Explanation II - In sub-Clause (b) of clause (2), the reference to Hindus shall be construed as including a reference to persons professing the Sikh, Jaina or Buddhist religion, and the reference to Hindu religious institutions shall be construed accordingly.
In a historical sense, Article 25 is unique. Even though Hindu hands wrote it in 1950, future Hindu hands have spared it thus far from additional amendment. Those responsible for writing Article 25 were cunning and deceptive - they knew how to shelter it behind the barrage of words only a few could understand. I have attempted to unravel the mystery of Article 25 to the best of my abilities.
Teachings such as peaceful co-existence, high morals, high ethical values, and respect for fellow humans are integral to any true religion. Given that, why is religious freedom contingent upon factors of public order, morality, and health with respect to religion in India as in Clause 1? Is there such a religion that violates the norms of decent human morality? If there is any such religion, one would think the framers of the Indian Constitution would have alerted us or perhaps would have "banned" that particular religion.
With Hindu leaders in charge of a Hindu India, the name of the game is unchecked fundamentalist Hinduism, however undesirable it might be to a reasonable mind. But during British India, this unchecked Hindu fundamentalism came very close to being curbed as recorded in a superbly written book, Mother India by Katherine Mayo (Greenwood Press Publishers, 1927), which states:
It is true that, to conform to the International Convention for the Suppression of the Circulation of and Traffic in Obscene Publications, signed in Geneva on September 12, 1923, the Indian Legislature duly amended the Indian Penal Code and Code of Criminal Procedure; and that this amendment duly prescribes set penalties for "whoever sells, lets to hire, distributes, publicly exhibits ... conveys ... or receives profit from any obscene object, book, representation or figure." But its enactment unqualified, although welcome to the Muhammadans, would have wrought havoc with the religious belongings, the ancient traditions and customs and the priestly prerogatives dear to the Hindu majority. Therefore the Indian Legislature, preponderantly Hindu, saddled the amendment with an exception, which reads:
This section does not extend to any book, pamphlet, writing, drawing or painting kept or used bona fide for religious purposes or any represented sculptured, engraved, painted or otherwise represented on or in any temple, or on any car used for the conveyance of idols, or kept or used for any religious purpose.
To conclude, in India, the freedom to practice religion is conditional. The power to interpret and exercise the conditional requirements is in the hands of Hindu leaders and nobody else. This is radically different from what is in the United States where the practice of religion is free, unconditional right. Conversely, in India of today, the practice of religion is a "politician-sanctioned" unreliable right.
Clause 2a of Article 25 is muddy at best. Considering the constitutional write-up, it seems religion is composed of economic, political, and worship activities. Anything other than worship activity is termed "secular." Therefore, in accordance with the constitution, the Indian State has the right to interfere with those activities of the church it considers "secular." The church, structure included, is after all an economic adventure. In a socialist country like India, organized religions (Christianity, Islam, Sikhism, etc.) with large groups of people interacting among themselves and others amounts to nothing less than political activity. Any propagation of religion will require a number of "secular" tasks: financial, organizational, and personnel activities (just to name a few).
The Indian State can constitutionally restrict any one or all of these "secular" endeavors, thereby effectively hampering genuine propagation of any religion it desires. This has already happened, as illustrated in another fine book - Soft State: A Newspaperman's Chronicle of India by Bernard D. Nossiter (Harper & Row Publishers, 1970). I suppose one way to be safeguarded from state incursion is for an individual to worship in the open air (which will insure no economic activity) or alone within the confines of a house (which will insure no political activity). How one worships individually in these conditions may be beyond the Indian State's intrusive nature. Let's hope.
Now, consider Clause 2b. What does freedom of religion have to do with social welfare and reform? This sub-clause contains a statement with strange wordings that need some scrutiny. First, are Hindu religious institutions of a public character? This term is ambiguous and could mean literally anything or absolutely nothing. My gut feeling is that it pertains to Hindu schools, the temples, and ashrams. Second, is a reference to the “classes” of Hindus. This is an inappropriate western terminology in reference to the Hindu society. Nonetheless, if the term has to be used, the majority of the Hindu population falls into the low class while the minority are in the middle and upper classes. Third, are the “sections” of Hindus. At the lowest common denominator, the bulk of Hindu sections comprise the Vaishnava, Saiva, and Sakti.
If my reading of this sub-clause is correct, then it is safe to say that the state can regulate the opening of Hindu temples, schools, and/or ashrams to all high, middle or low Hindu classes irrespective of whether one is Vaishnava, Saiva, Saktia, or what have you. This interpretation may be off the mark if I am reading incorrectly because of the use of terms that are vague. Unfortunately, the framers of the constitution missed the crux of the problem.
The Hindu society is governed by caste (or varna), and not by the classes and sections. And certainly the caste is not the same thing as class and section. If you feel that the framers of the constitution were themselves not sure of what they wrote or its underlying meaning, they perhaps hoped that the reader would be reassured in the offering of Explanations I and II. If one examines Hindu scriptures, for example the Bhagavata Gita, it is not uncommon to see that a transition from one topic to another is often disconcertingly abrupt. This is clearly the case here also.
Explanations I and II are not even remotely connected with Clause 2b. The fact is that both Explanations I and II urgently call for explanation of their own. Explanation I acknowledges the existence of the Sikh religion. Since the issue is the individual religious rights (in Sikhism), the proper word ought to be "kirpan," not "kirpans." Moreover, Explanation II is notoriously flawed. Its intent is obvious: the individual members of Sikh, Jain, and Buddhist religions will be referred to as Hindus, and Sikhism, Jainism, and Buddhism are to be considered merely sects of Hinduism. Therefore, the state can interfere with their religious institutions as it sees fit, under the guise of procuring "social reforms."
The word "secularism" is often invoked diligently by the caste Hindus when describing the Indian State in a spirit of nationalistic Hinduism, with an underlying implication of the Hindu expansionist quest to absorb other religions. The western definition of "secularism" is when the state and public policies take precedence over religious considerations. In other words, in the West, there is a separation of church and state. But most Indians, including their leaders, have their own self-serving definition. They define secularism as "equal treatment of all religions by the state." Is that a desirable goal? If it is then how can anyone achieve such a goal?
In the Indian context, I suppose the easiest way for the state to treat all religions "equally" would be to "get into" every religion equally and if need be, somehow proclaim all religions one and a part of Hinduism - therefore making everyone in India a Hindu. This is precisely what is happening in India. Since everyone is a Hindu, the leadership expects a response in kind. It usually shows in an intellectually flawed population who has stamped itself with a bogus notion echoed in the buzzword called sameness. This is an expression erroneously viewed as synonymous with equality.
Under this framed scenario, the very thought of discrimination or even persecution of one religion by another need not arise since we are all the same, that is, Hindus. Obviously, this kind of an argument carries a heavy price tag. When told that India's sacred constitution exudes an egalitarian system, years of Hindu conditioning have transfixed the populace to acquiesce to any communiqué coming down from the top. Few will ever fathom that India's egalitarianism is not the same sort we know in a western sense, but is of an entirely different substance. It is rooted in the infamous caste system, or in a more precise language, the Hindu Apartheid. While the caste system is alive, thriving, and functional, India’s Hindu leaders boast of an Indian democracy, ignoring its pervasive underlying segregation and inequality. This sounds magnificently absurd. Many Indian leaders on one hand enjoy the fruits of being born into an elite caste (while the majority of the population rots at the lowest levels of caste), while on the other hand mindlessly they sing the gospel of equality.
The caste being a substructure of Hindu society, the talk of "equality," "democracy," and "secularism" reverberates only to mislead the masses. Not surprisingly, this kind of tactical maneuvering to deceive is clearly evident in the Indian Constitution and conspicuous in the state's public policy and internal propaganda. While Sikhs, Jains, and Buddhists have already been "secularized" constitutionally, Christians and Muslims are now also in the process of being "secularized" through state-orchestrated propaganda. Many Indian leaders now call Indian Christians and Muslims "Christi Hindus" and "Mohammadiya Hindus," respectively.
Other amendments of the Bill of Rights in the U.S. Constitution guarantee the American people numerous other fundamental rights. These include protection against government officials who might invade their homes and seize property without legal permission (Amendment IV); protection against being "a witness against himself" in any criminal case or being "deprived of life, liberty, or property, without due process of law" (Amendment V); the right of a person accused of a crime "to a speedy and public trial by an impartial jury" (Amendment VI); and protection against "cruel and unusual punishments" (Amendment VIII). Can the Constitution of India match word-for-word the U.S. Bill of Rights?
And, if it cannot can its intentions at least match those of the U.S. Bill of Rights? If reading Articles 19 and 25 has left you with a cause for concern, then the remaining portions of Part III of the Indian Constitution should not come as a surprise. After due consideration, it remains unclear if the Indian Constitution guarantees fundamental rights as is generally claimed, despite the endless rhetoric from India’s leaders and its intelligentsia.
Taken from: Sikh Spectrum, Quarterly, Issue No.28, May 2007
Source: Sikh Information Center