Religious Communities and the State in Modern India

Chapter 4
Religious Communities and the State in Modern India


Tahir Mahmood


Introduction


Asia, the largest continent on the globe, is home to nearly two-thirds of the world’s population. This is the continent that has given to the world almost all its diverse faith traditions – Christianity, Islam, Judaism, Zoroastrianism and the Baha’i faith were born in West Asia; Buddhism, Hinduism, Jainism and Sikhism in South Asia; and the Confucian, Tao and Shinto faiths in East Asia. In the total headcount of Asians in our times, by a cautious estimate Islam, Hinduism and Buddhism have 28 per cent, 24 per cent and 18 per cent shares respectively, while followers of all the other Asian religions, including Judeo-Christian and Sino-Japanese faiths, make up the remaining 30 per cent. Country-wise, as many as 26 of the Asian states are dominated by the Muslims,1 eight of them by the Buddhists,2 two by the followers of Hinduism,3 and the remainder by those professing various other faiths.


There is no uniform pattern of religion–state relations in Asia. In most Muslim-majority countries of Asia Islam, and in some Buddhist-majority countries Buddhism, enjoys the status of either state religion or an otherwise privileged faith tradition. On the other hand there are countries where state and religion have been legally kept apart. Situated amidst these heterogeneous surroundings is the great Indian Republic, the largest democracy in the world, which is by the description and dictates of its Constitution a secular state. India, however, does not subscribe to the Western stereotype of political secularism and has over the centuries developed its own peculiar concept of the secular nature of the state. There has always been a confluence of diverse spiritual springs and a conglomeration of various religious communities in India, to whose convictions and traditions the state cannot remain oblivious. This reality has always found itself well reflected in the nation’s laws and state practice; and this still holds true today.


General Constitutional Setting


Pluralism and Secularism

In recognition of the nation’s religio-cultural diversity the national Constitution of India, which entered into force in 1950, entitles every section of citizens in all regions of the country to preserve their religious and spiritual traditions and to conserve their distinct culture, language and script,4 imposing at the same time on all citizens a fundamental duty ‘to value and preserve the rich heritage of our composite culture’.5 These are the pivotal doctrines on which has been built, bit by bit, the edifice of constitutional provisions relating to religion in general and religious freedom and rights of the various religious communities.


The Constitution does not recognize any of India’s different faith traditions as the state or otherwise privileged religion. It specifically describes and depicts the country as a secular state;6 and yet there is no ‘wall of separation’ in India between the state and religion, and no place for the French doctrine of ‘laïcité’. Neither is religion banished from public life and state functions, nor the state precluded from playing any role in the matters of religion – only, all religions of the country are equal in the eyes of the state and all religious communities enjoy equal state patronage. This is the Indian concept of secularism; and it consistently finds expression in the policies and practice of all three organs of the state – legislature, executive and judiciary.


Individual and Group Rights to Religious Freedom

The Constitution of India ensures religious liberty to all individuals and all communities.7 ‘All persons’ have freedom of conscience and the rights to freely profess, practice and propagate religion,8 and ‘every religious denomination or any section thereof’ has the right to manage its own affairs in matters of religion; establish and maintain institutions for religious and charitable purposes; and own, acquire and administer all kinds of property.9 None of these individual and group rights relating to religion protected by the Constitution are, however, absolute – each can be regulated by the state in the interest of public order, morality and health as well as to accommodate any other provision of the Constitution.10 It is further clarified that the constitutional protection of religious rights shall not preclude the state from making any law ‘regulating or restricting any economic, financial, political or other secular activity which may be associated with religious practice’.11 A balance is thus beautifully struck between people’s instinct to preserve their religious traditions and the state’s liability to introduce necessary socio-economic and political reforms. God and Caesar both thus find their rightful place under the constitutional and legal set-up of the country.


All religious communities and each of their members individually and collectively enjoy the constitutional ban on collection of taxes by the state for the promotion of any chosen religion,12 and on religious instruction in educational institutions wholly maintained out of state funds, while institutions aided or recognized by the state cannot compel any student to attend religious instruction or worship conducted under their aegis.13 These constitutional bans are absolute and cannot be relaxed by the state for any purpose.


Religious Communities and the Law


The Constitution of India does not list the religious communities in the country; nor is there in place any system for the formal registration of religious communities under any law. The Census Reports of India issued after every 10 years do contain checklists of all religious groups and provide statistical information on their population in various parts of the country.


Demography and Statistics

In the demographic structure of India as a whole, followers of the Hindu religion have an overwhelming 80 per cent share, and among the 35 constituents of the Union of India as many as 29 are dominated by the Hindu community.14


Muslims with their more than 14 per cent population and 150 million headcount are the second largest community of India. They constitute an overwhelming majority in the state of Jammu and Kashmir and in the Union Territory of Lakshadweep, one-third of the local population in Assam, about one-quarter each in Kerala and West Bengal, and nearly one-fifth in the most populous state of Uttar Pradesh.


The 23 million Christians of India have a 2.2 per cent share in the national population. They are, however, the dominant majority in three north-eastern states – Meghalaya, Mizoram and Nagaland – and their population is much higher than the national average in Andamans, Goa, Kerala and Manipur.


The Sikhs are a dominant majority in the state of Punjab but are a minority everywhere else and their share of the national population is less than 2 per cent, while the Buddhists and the Jains have lesser populations and do not constitute a majority anywhere in the country. Besides, there are still smaller Jewish and Baha’i groups living in various parts of the country.


A Union Government Notification issued under the National Commission for Minorities Act 1992 lists Muslims, Christians, Sikhs, Buddhists and Parsi Zoroastrians the ‘minorities’ for the purposes of that Act.15 Local counterparts of this law in some of the states also recognize Jains as a minority.16


Community-Specific Constitutional Provisions

As regards the majority Hindu community, the Constitution contains a number of special provisions – the age-long concept of ‘untouchability’ of lower castes by the higher ones stands abolished and its practice is forbidden,17 caste-based discrimination is prohibited,18 the holy cow is to be protected by the state,19 and management of certain sectarian Hindu temples in south India is to be regularly subsidized from the state exchequer.20


Three religious minorities of India – Buddhists, Jains and Sikhs – are bracketed by the Constitution with the majority Hindu community for the purposes of the power it gives to the state to remove by law caste-based customary restrictions on entry into temples.21 This has led to the incorrect perception in certain circles that the Constitution treats these four communities as variations of the same religion; and demands have been made, by the Sikhs in particular, that the constitutional provision be amended to clarify the position.


The custom of wearing the kirpan (a ceremonial sword) in religious and public places prevalent among the Sikhs is recognized by the Constitution as one of their fundamental rights.22 Certain Sikh and Buddhist castes are included along with the Hindus in the category of ‘Scheduled Castes’ for whose adequate representation in governance and educational and economic advancement the Constitution makes special provisions addressed to the state.23 Initially the Scheduled Caste category was confined to the Hindu community but was opened up by later amendments to the Sikhs and Buddhists in 1956 and 1990 respectively.24 Though the caste system very much prevails also among the Muslims and the Christians of India, they have not succeeded in demanding inclusion of their lower castes in the privileged class of Scheduled Castes.


The national Constitution neither mentions the Muslims by name nor makes any specific provision for them. The community is, of course, entitled to all the rights and benefits available for all the religious minorities equally under the Constitution and the law.


The Constitution makes no special provision for the Christians either, but it does protect religious customs and practices of the predominantly Christian Mizo and Naga tribes,25 and accords special protection to certain political rights of the tiny Anglo-Indian community.26


Educational Rights of Minorities

Each religious minority in the country has, under the Constitution, a fundamental right to establish and administer educational institutions of its choice, and the state is precluded from discriminating in any way against such institutions in giving financial aid.27 Admission cannot, however, be denied in any such institution to any student on the basis of religion.28