[sacw] SACW #1 | 4 August 02

Harsh Kapoor aiindex@mnet.fr
Sun, 4 Aug 2002 03:21:10 +0100


South Asia Citizens Wire #1 | 4 August 2002

>From South Asia Citizens Web:
http://www.mnet.fr/aiindex

__________________________

#1. India: Secularism in the Constituent Assembly Debates, 1946-1950=20
(Shefali Jha)

__________________________

#1.

Economic and Political Weekly
July 27, 2002
Special Article

Secularism in the Constituent Assembly Debates, 1946-1950

Secularism, it has been argued, failed to stem the spread of=20
communalism in India, because its marginalising and contempt of=20
religion bred a backlash on which communalism thrived. This article=20
contends that this 'contempt for religion' was marginalised in the=20
course of the secularism debates in the Constituent Assembly. The=20
dominant position on secularism that a 'democratic' Constitution find=20
place for religion as a way of life for most Indians triumphed over=20
those who wished for the Assembly to grant only a narrow right to=20
religious freedom, or to make the uniform civil code a fundamental=20
right. These early discussions on religious freedom also highlight a=20
paradox - it is precisely some of the advocates of a broad right to=20
religious freedom who were also the most vociferous opponents of any=20
political rights for religious minorities.

Shefali Jha

I
The Preamble and Conceptions of Secularism

When the preamble to the Constitution was discussed in the=20
Constituent Assembly on October 17, 1949, disagreement and=20
acrimonious debate over the incorporation of the principle of=20
secularism took up most of the Assembly's time. The positions spelt=20
out on secularism on that day show up clearly the lines of difference=20
that had been developing on this issue during the three years of the=20
Constituent Assembly debates. On that day H V Kamath began the=20
discussions by moving an amendment to begin the preamble by the=20
phrase, 'In the name of god'.1 Shibban Lal Saksena and Pandit Govind=20
Malaviya also moved similar amendments later in the day. Responding=20
to Pandit Kunzru's objection that in invoking "the name of god, we=20
are showing a narrow, sectarian spirit",2 Pandit Malaviya argued that=20
it was not anti-secular for the preamble to begin with expressions=20
such as "By the grace of the Supreme Being, lord of the universe,=20
called by different names by different peoples of the world",3 since=20
it was clear that not any particular religion's god was being=20
sanctified. Saksena pointed out that even the Irish constitution took=20
god's name at the beginning of its preamble.4

Whereas the other two withdrew their proposals, Kamath stuck to his=20
guns. Rajendra Prasad tried persuading him that his amendment was=20
against the spirit of religious freedom of the Constitution that was=20
exemplified, for instance, in the choice in the form of the oath - to=20
'swear in the name of god', or to 'solemnly affirm' - that the=20
Constitution gave to ministers taking office. Kamath responded: "Here=20
we are not individuals. Here we are all the people of India. There is=20
much difference between the two."5 Religion was 'the voice of our=20
ancient civilisation' and the preamble, a document of the people of=20
India, by taking god's name only reflected the spirit and will of the=20
Indian people.

Opponents to Kamath's amendment continued to insist that religion was=20
a matter of individual choice and in this matter the collective will=20
should not be imposed. Another interesting objection was raised by=20
Purnima Banerji who said that references to god should not be put=20
into the constitution since that would make the sacred depend on the=20
vagaries of democratic voting. She requested Kamath "not to put us to=20
the embarrassment of having to vote upon god".6

Kamath's amendment was defeated by 68 to 41, but neither did the=20
Assembly accept a suggestion from the other side to include the word=20
'secular' in the preamble. Brajeshwar Prasad from Bihar moved that=20
the first sentence of the preamble begins as follows: "We the people=20
of India, having resolved to constitute India into a secular=20
cooperative commonwealth to establish socialist order and to secure=20
to all its citizens=8A"7 because he said that this word, 'secular' was=20
dear to India's national leaders and its inclusion in the preamble=20
would tone up the morale of minorities as well as prevent disorderly=20
activity. Unfortunately there was no discussion on the inclusion of=20
the term 'secular'; most members ridiculed Brajeshwar Prasad's=20
attempt at making the Constitution a socialist instead of a liberal=20
democratic document and his amendment was negatived for that reason.

The preamble was discussed in one of the last sessions of the=20
Constituent Assembly which is why the theoretical positions on=20
secularism that we try to extrapolate from the October 17 debate=20
reflect the stands taken during the preceding three years. All the=20
members agreed, of course, on the necessity of establishing a secular=20
state. Most shared an understanding of history in which the "movement=20
for the separation of religion and state was irrevocably a part of=20
the project for the democratisation of the latter".8 How could a=20
democratic state represent a religious majority at the expense of the=20
rights and liberties of a minority? In Europe, "the idea of=20
democratic dissent was posed initially as the idea of religious=20
difference. It gradually became the premise for the liberties of the=20
individual in general, and, in raising the question of equality and=20
equal rights for all, the idea of secularism became the chief motor=20
behind the subsequent idea of political democracy".9 Since=20
independent India was to be a democracy, secularism was a fait=20
accompli: "it is essential for the proper functioning of democracy=20
that communalism should be eliminated from Indian life".10 But the=20
question remained as to the kind of secularism to be established by=20
Indians faced with the problem of "creating a secular state in a=20
religious society".11 Was a state secular only when it stayed=20
strictly away from religion, and could such a secular state survive=20
only if society was slowly secularised as well? Or did a state that=20
equally respected all religions best capture the meaning of=20
secularism in the Indian context?

On this issue we can see three alternative positions in the=20
controversy around the preamble. The first - which we call the=20
no-concern theory of secularism - saw a definite line of separation=20
between religion and the state. Given the principles of freedom of=20
expression and religious liberty, it was upto the individual to=20
decide whether to be a believer or not, or to adhere to this religion=20
or that. Therefore the preamble could not contain any references to=20
god, and neither should the constitution establish links between the=20
state and any religion. This argument of religion being an=20
individual's private affair, was extended during the main sessions of=20
the Constituent Assembly to include the more radical claim that=20
religion must be relegated to the private sphere. Many members=20
declared that the need of the hour was to strengthen the identity of=20
Indians as citizens of the Indian state, as opposed to being members=20
of some community or religious group. Radhakrishnan's speech on the=20
Objectives Resolution on December 13, 1946 asserted that=20
"nationalism, not religion, is the basis of modern life=8Athe days of=20
religious states are over. These are the days of nationalism".12 A=20
month later, G B Pant, speaking to the Advisory Committee of the=20
Constituent Assembly proclaimed that the "individual citizen who is=20
really the backbone of the state,=8Ahas been lost here in that=20
indiscriminate body known as the community. We have even forgotten=20
that the citizen exists as such. There is the unwholesome, and to=20
some extent, degrading habit of thinking always in terms of=20
communities and never in terms of citizens".13 Similar thoughts were=20
expressed later in an exaggerated fashion by Guptanath Singh: "The=20
state is above all gods. It is the god of gods. I would say that a=20
state being the representative of the people, is god himself".14

These positions logically led to a conception of a secular state as=20
one that stays away from religion per se. It distances itself from=20
all religions and in this manner encourages their limitation to a=20
private sphere; it presses for the narrowing of religion to the=20
activity of religious worship and it assiduously replaces respect for=20
religion with building nationalist citizens. India was engaged in=20
creating a modern nation state and in this enterprise, religion, an=20
obscurantist and divisive force, had no place.

Members advocating this kind of secularism included K T Shah, who as=20
late as December 1948, demanded the insertion of an article=20
separating the state from any religious activities. Tajamul Husain=20
not only wanted to define the right to religion as a right to=20
'practise religion privately', but also insisted that religious=20
instruction was to be given only at home by one's parents and not in=20
any educational institutions. He also wanted to include the following=20
clause in the constitution: "No person shall have any visible sign,=20
mark or name, and no person shall wear any dress whereby his religion=20
may be recognised".15 This implied an understanding of secularism in=20
which "religion is a private affair between man and his god. It has=20
no concern with anyone else in the world".16 It is this conception of=20
secularism which led M Masani and K T Shah to state earlier that=20
while they supported an individual's right to religious freedom, they=20
"dissented from the inclusion among fundamental rights of any=20
provision guaranteeing institutions belonging to any religious=20
community".17

Many of these proponents of no-concern secularism were making the=20
argument familiar to all students of early modern political theory. A=20
state wanting to strengthen itself must encourage the philosophy of=20
abstract individualism so as to weaken all associations in society=20
other than itself. It can then replace these associations by itself=20
as the locus of the individual citizen's identity. Secularism on this=20
view meant the gradual weakening of the bonds of religion and their=20
replacement with nationalism. It meant that the state must not=20
recognise religion as a public institution. It was not just a=20
question of religious liberty but of the establishment of the=20
paramountcy of the state. Religion was to be relegated to as narrow a=20
sphere as possible so that the state could emerge as a modern=20
Leviathan.

The second position on secularism, exactly opposite to the first, was=20
that no links between the state and religion should be permitted, not=20
because this would weaken the state, but because it would demean=20
religion. Religion, a system of absolute truth, could not be made=20
subject to the whims of changing majorities by allowing the=20
democratic state to have a say in religious affairs.

Like the first, the third position - which we call the equal- respect=20
theory of secularism - also began with the principle of religious=20
liberty, but held that in a society like India where religion was=20
such an important part of most people's lives, this principle=20
entailed not that the state stay away from all religions equally, but=20
that it respect all religions alike. In this view, instead of=20
distancing itself from all religions or tolerating them equivalently=20
as sets of superstitions which could be indulged in as long as they=20
remained a private affair, a secular state based its dealings with=20
religion on an equal respect to all religions. One of the main=20
proponents of this view, K M Munshi, proclaimed that the=20
"non-establishment clause (of the US Constitution) was inappropriate=20
to Indian conditions and we had to evolve a characteristically Indian=20
secularism".18 Munshi said: "We are a people with deeply religious=20
moorings. At the same time, we have a living tradition of religious=20
tolerance - the result of the broad outlook of Hinduism that all=20
religions lead to the same god=8AIn view of this situation, our state=20
could not possibly have a state religion, nor could a rigid line be=20
drawn between the state and the church as in the US".19

Lakshmi Kant Maitra and H V Kamath claimed that the Indian state=20
should not disavow India's "lofty religions and spiritual concepts=20
and ideals".20 The west was in crisis because of the dominance of=20
materialism, and it was looking towards India for a regeneration of=20
spiritual values. The Indian state should not encourage sectarianism,=20
but at the same time it should actively "impart spiritual training or=20
instruction to its citizens"21 by giving some kind of spiritual=20
education to them.

It is this conception of secularism which led certain members to=20
define the right to religion as a right to the practise of religion=20
as opposed to the more narrow right to religious worship. These=20
members accepted that certain limitations must be placed on this=20
right. However, it was all right to have these limitations once the=20
right had been framed properly to capture the significance of=20
religion, instead of being framed in a manner which revealed a=20
disregard for religion.

Since religion was, for most Indians, a way of life and therefore=20
essential to their identity, how could a people's state be founded on=20
a kind of secularism contemptuous of religion. One's identity was not=20
something which was easily changeable, and for these members, to=20
forcibly replace religion as the basis of one's identity with the=20
state was an attack on the autonomy of individuals.

In addition, most important religions contained principles of=20
toleration within themselves since by definition, religious belief=20
had to be voluntary. If the state allowed a public sphere to religion=20
this would not automatically lead to inter-sectarian strife, as all=20
great religions of the world preached forbearance of other faiths. J=20
B Kripalani defined toleration as the acceptance, to some extent, of=20
someone's beliefs as good for him, and argued that it was because the=20
no-concern theory was based on a doctrine of intolerance that it=20
confined religion to the private realm. On the other hand a state=20
which respected all religions was educating its citizens in=20
principles of toleration: "We have to respect each other's faith. We=20
have to respect it as having an element of truth".22

Jaya Prakash Narayan added that it was only when religion was used to=20
serve socio-economic and political interests, that there was communal=20
violence. What needed to be done in the interests of secularism was=20
to incorporate an article in the Constitution prohibiting the use of=20
religious institutions for political purposes or the setting up=20
of political organisations on a religious basis.23 It was not=20
religion per se but its politicisation which engendered violence in=20
the modern state.

The no-concern and equal-respect positions on secularism clashed=20
constantly during the debates in the Constituent Assembly as the=20
question of secularism cropped up in discussions around innumerable=20
articles. The issue of secularism was ubiquitous - it came up even=20
when parliamentary procedure and the linguistic reorganisation of=20
states were being discussed. Instead of detailing the arguments on=20
secularism around some randomly picked articles, we have, following=20
Smith's model that a secular Constitution must have provisions=20
dealing with three specific subjects - religious liberty, citizenship=20
and state neutrality24 - picked up the debate on some articles from=20
each area to show the lines of disagreement amongst Constituent=20
Assembly members. Under religious liberty, we look at the controversy=20
over whether the right to religious freedom should be the right to=20
religious worship or to religious practice, and over whether the=20
state should recognise only linguistic minorities or religious=20
minorities as well. Under citizenship, we review the dispute over the=20
uniform civil code and over political reservation for religious=20
minorities; and finally for state neutrality we consider the debate=20
over whether there should be religious instruction in state aided=20
schools. Looking at the discussions in more detail, we find that it=20
is the ambivalences within the no-concern and equal-respect camps=20
that are more interesting than the stark contrast between the two=20
positions.

II
Religious Practice or Religious Worship

On April 16, 1947, the Sub-Committee on Fundamental Rights of the=20
Constituent Assembly determined the right to the freedom of religion=20
to be a right "to freedom of conscience, to freedom of religious=20
worship and to freedom to profess religion".25Two days later, the=20
Constituent Assembly's Minorities Sub-Committee decided by a majority=20
of 10 to five that the freedom to religion should be rephrased as the=20
"freedom of conscience and the right freely to profess, practice and=20
propagate religion".26 This change in terminology was formally=20
dissented to by Amrit Kaur, Jagjivan Ram, G B Pant, P K Salve and B R=20
Ambedkar.

Sharp disagreement on whether to call the right to religion a right=20
to religious practice or a right to religious worship had already=20
become manifest in the proceedings of the Fundamental Rights=20
Sub-Committee. This Committee's draft report of April 3, reflecting=20
the discussion on K M Munshi's and Ambedkar's proposed articles on=20
fundamental rights, set out eight articles defining the right to=20
religion. Article 16 followed Munshi's proposal, instead of=20
Ambedkar's, in giving the right "freely to profess and practice"=20
religion, and in adding the explanation that the right "to profess=20
and practice religion shall not include any economic, financial,=20
political or other secular activities that may be associated with=20
religious worship."27Ambedkar's suggestions were incorporated in=20
another explanation to Article 16 that "No person shall refuse the=20
performance of civil obligation or duties on the ground that his=20
religion so requires," and in Article 19 that "The state shall not=20
recognise any religion as the state religion".

That there were irreconciliable differences in the Constituent=20
Assembly on religious freedom, and that the dispute over religious=20
practice or religious worship was not a trifling disagreement over=20
words was apparent in the inconsistency within Article 16 itself.=20
Members supporting the use of the terms 'the practice of religion'=20
said that to understand religion narrowly as a set of performative=20
rituals in a public but circumscribed place of worship like a church=20
was to misunderstand the significance of religion for a believer. If=20
religion was rightly understood as a way of life then Article 16=20
could not include the proviso that one's civil obligations overrode=20
one's religious duties. K M Panikkar used the example of 'Sanyasa', a=20
fundamental element of religion in many sects, which rules that one's=20
life must be lived in a certain way: "Where religion provides that a=20
Sanyasi shall have no attachments to the world, to ask that he shall=20
perform civil duties is in fact to ask him to give up his=20
religion."28 Many things were part of religion, the least of them=20
being the wearing of kirpans by Sikhs. Since the Constitution could=20
not specify all the essential elements of the different Indian=20
religions, at least it could phrase the right to religion broadly as=20
the right to the practice29 of religion and not narrowly as the the=20
right to religious worship. If the Constituent Assembly was serious=20
about religious freedom then there was no point in granting a freedom=20
to a religion denuded of all content.

Those on the other side of the divide pointed to the dangers of=20
interpreting religion widely. Any such broad reading of religion=20
would include within it the anti-social customs of "pardah, child=20
marriage, polygamy, unequal laws of inheritance, prevention of=20
intercaste marriage,(and) dedication of girls to temples,"30=20
practised in the name of religion. Rajkumari Amrit Kaur further=20
pointed out that if the right to religion was stated in terms of the=20
right to the practice of religion, it "may even contradict or=20
conflict with the provision abolishing the practice of=20
untouchability".31 Alternatively, if the right given were the right=20
to religious worship, the state could better protect all the rights=20
of individuals by preventing through social legislation the=20
exploitation of a lower caste man by an upper caste individual, or of=20
a woman by a man.

This dispute over the terminology of the right to religion led to=20
much flip-flopping in the various reports of the Fundamental Rights=20
Sub-Committee. The April 3 draft used the terms 'practice religion';=20
but because of reservations expressed by some members, the April 16=20
report of the Sub-Committee changed the terminology to 'freedom of=20
religious worship'. However on April 18, the Minorities Sub-Committee=20
suggested that the original phraseology of the April 3 draft be used.=20
After that the Advisory Committee of the Constituent Assembly, which=20
included both the Sub-Committees on Fundamental Rights and Minorities=20
as well as three others, met and submitted an Interim Report on April=20
23 in which the right to religion was a right to "practice religion"=20
and the proviso barring individuals from using religious reasons to=20
exempt themselves from civic duties, as well as the article banning a=20
state religion, were dropped. It seemed as if one side had won an=20
overwhelming victory, even though the right to the practice of=20
religion remained limited by public order, morality, health and the=20
other provisions of the chapter on fundamental rights, as well as by=20
two provisos that the right to religion shall not include any=20
economic, financial, political or other secular activities that may=20
be associated with religious practice, and that it shall not debar=20
the state from enacting laws for the purpose of social welfare and=20
reform.

The battle was joined once again when the Interim Report of the=20
Advisory Committee was presented to the Constituent Assembly on May=20
1, 1947. This time doubts were raised about including the right to=20
propagate in religious freedom; some members wanted it clarified that=20
the conversion of minors would not be allowed. Those who protested=20
that this would mean that parents who had converted had no right to=20
determine the religious upbringing of their children, had their way,=20
and in the draft Constitution of February 1948, the article=20
postulating restrictions on the act of religious conversion was=20
dropped.

When the draft Constitution's articles on religion were discussed in=20
the Constituent Assembly in December 1948, K T Shah raised the demand=20
again that an article be included expressly forbidding any link=20
between the state and religion. Such an article would begin as: "The=20
state in India being secular shall have no concern with any religion,=20
creed or profession of faith".32 Tajamul Hussain wanted to replace=20
the terms 'practice and propagate religion' with 'practice religion=20
privately'. We see then that the exact phrasing of the main article=20
on religious freedom remained contentious till the very last.

III
Linguistic or Religious Minorities

The differences over secularism were also clearly apparent in the=20
controversy over whether a secular state permits the recognition of=20
religious minorities along with linguistic minorities. On the one=20
hand, Jaya Prakash Narayan held that the "secularisation of general=20
education... necessary for the growth of a national outlook and=20
unity"33 required that the cultural and educational rights guaranteed=20
in the Constitution should be confined only to linguistic minorities.=20
On the same lines, Damodar Swarup Seth suggested that "the only=20
minorities to be recognised should be those based on language:=20
recognition of minorities based on religion or community was not in=20
keeping with the secular character of the state. If such minorities=20
were granted the right to establish and administer educational=20
institutions of their own, it would not only block the way to=20
national unity but would also promote communalism and an=20
anti-national outlook." 34 It was with similar reservations in mind=20
that G B Pant had earlier, in an April 1947 meeting of the Minorities=20
Sub-Committee, suggested that the cultural and educational rights of=20
minorities be included among the non-justiciable directive=20
principles. Rajkumari Amrit Kaur had similarly proposed that=20
religious minorities not be allowed to set up separate educational=20
institutions, nor state aid be provided to these institutions.

As these articles were framed in the Minorities Sub-Committee,=20
however, they reflected the point of view of the other side. The=20
draft rights defined minorities in terms of religion and language and=20
gave them the right to establish and administer educational=20
institutions. The Constituent Assembly also passed these articles in=20
the same form: "all minorities, whether based on religion or language=20
had the right to establish and administer educational institutions"=20
(Article 30, Constitution of India) which were entitled to state aid=20
just as any other educational bodies.

IV
Uniform Civil Code

The first article that we take up with reference to citizenship in a=20
secular state is that on the uniform civil code. Both Munshi's and=20
Ambedkar's draft articles of March 1947 on justiciable rights=20
contained clauses referring indirectly to a uniform civil code.=20
Munshi's proposal stated that: "No civil or criminal court shall, in=20
adjudicating any matter or executing any order recognise any custom=20
or usage imposing any civil disability on any person on the ground of=20
his caste, status, religion, race or language".35 Ambedkar wrote that=20
the subjects of the Indian state shall have the right "to claim full=20
and equal benefit of all laws and proceedings for the security of=20
persons and property as is enjoyed by other subjects regardless of=20
any usage or custom based on religion and be subject to like=20
punishment, pains and penalties and to none other".36

By March 30, however, the Fundamental Rights Sub-Committee had=20
decided to make the uniform civil code a directive principle of state=20
policy. In her letter of March 31, Rajkumari Amrit Kaur emphasised=20
the importance of the uniform civil code and called it "very vital to=20
social progress".37 In a much more strongly worded note of April 14,=20
Amrit Kaur, along with Hansa Mehta and M R Masani, wrote that "(o)ne=20
of the factors that has kept India back from advancing to nationhood=20
has been the existence of personal laws based on religion which keep=20
the nation divided into watertight compartments in many aspects of=20
life",38 and demanded that the provision regarding the uniform civil=20
code be transferred from the chapter on directive principles to that=20
on fundamental rights.

This position was opposed by other members of the Constituent=20
Assembly, such as Mohamed Ismail Saheb, supported by B Pocker Sahib,=20
who wanted to include a right to one's personal law in the=20
fundamental right to religion. Failing that, they insisted that at=20
least the directive principle enjoining the state to provide a=20
uniform civil code, should contain the following proviso: "Provided=20
any group, section or community of people shall not be obliged to=20
give up its own personal law in case it has such a law".39 This must=20
be done if the right to religious practice was to have any reality=20
because the "right to follow personal law is part of the way of life=20
of those people who are following such laws; it is part of their=20
religion and part of their culture".40 Mahboob Ali Baig Bahadur said,=20
"People seem to think that under a secular state, there must be a=20
common law observed by its citizens in all matters including matters=20
of their daily life, their language, their culture, their personal=20
laws. This is not the correct way to look at the secular state. In a=20
secular state, citizens belonging to different communities must have=20
the freedom to practise their own religion, observe their own life=20
and their personal laws should be applied to them".41 These members=20
were opposed to the setting up of a uniform civil code.

An intermediate postion was that the establishment of the uniform=20
civil code must be done slowly, with the consent of all communities.=20
Similar to this position was that of K M Munshi's - who now,=20
surprisingly, wanted to narrow the definition of religious practice.=20
He pointed out that the personal law of Hindus was discriminatory=20
against women and contravened an Indian citizen's right to equality.=20
Therefore, "religion must be restricted to spheres which legitimately=20
appertain to religion, and the rest of life must be regulated,=20
unified and modified in such a manner that we may evolve, as early as=20
possible, a strong and consolidated nation."42 Ambedkar can also be=20
put in this group since he supported the inclusion of the uniform=20
civil code in the directive principles but said that the code would=20
only apply to those who wanted it to apply to them.

V
Political Safeguards for Minorities

Simultaneously with discussing the kind of religious rights permitted=20
by secularism, the Constituent Assembly's members also debated the=20
political rights of minorities in a secular state. The Minorities=20
Sub-Committee based itself on its members' responses to a short=20
questionnaire on safeguards for minorities prepared by K M Munshi,=20
and on Ambedkar's suggested safeguards for the scheduled castes.=20
Munshi's questionnaire consisted of six queries on the nature and=20
scope of political, economic, religious, educational and cultural=20
safeguards for a minority at the centre and the provinces in the new=20
constitution, on the machinery to ensure these safeguards, and on=20
whether these safeguards would be temporary or permanent.43=20
Ambedkar's draft contained a section on 'provisions for the=20
protection of minorities' demanding that the representatives of the=20
different minorities in the cabinet be elected by members of each=20
minority community in the legislature, as well as the establishment=20
of a superintendent of minority affairs. Although only the scheduled=20
castes were specifically named as a minority by Ambedkar, he did=20
assume the inclusion of other minorities when he wrote that the share=20
of the scheduled castes in the reserved seats in the legislatures or=20
the services would not be at the cost of the share of the other=20
minorities. In his draft provisions, Ambedkar stated that social=20
discrimination constituted the real test for determining whether a=20
social group is or is not a minority.44 Thus both the scheduled=20
castes and certain religious groups were minorities in India, "since=20
the administration in India is completely in the hands of the Hindus,=20
and under Swaraj the legislature and executive will also be in the=20
hands of the Hindus".45 According to Ambedkar, Indian nationalism had=20
developed a doctrine called "the divine right of the majority to rule=20
the minorities according to the wishes of the majority. Any claim for=20
the sharing of power by the minority is called communalism while the=20
monopolising of the whole power by the majority is called=20
nationalism".46 In this context it was essential for equal=20
citizenship that political safeguards for minorities be enshrined in=20
the Constitution.

The Minorities Sub-Committee following Ambedkar's draft articles=20
began with proposals to establish, for religious minorities and for=20
scheduled castes and tribes, separate electorates, and reservation in=20
legislative bodies, ministries, and the civil, military and judicial=20
services of the government as well as a Minorities Commission. When=20
discussions took place in the Sub-Committee in July 1947, by which=20
time the question of partition had been decided, and the Muslim=20
League members had also joined the Constituent Assembly, the demand=20
for separate electorates and for reservation in the ministries and=20
the government services was given up. On August 8, the Advisory=20
Committee submitted its report on minorities stating that separate=20
electorates were to be abolished because they "sharpened communal=20
differences to a dangerous extent and have proved one of the main=20
stumbling blocks to the development of a healthy national life".47 So=20
that the minorities did not feel threatened, the Muslims and=20
scheduled castes were granted reservation in the legislatures, in=20
proportion to their population, for 10 years. There was also some=20
kind of reservation for Anglo-Indians, and the question was left open=20
for Parsees, Sikhs and tribals. There was also to be a special=20
minority officer at the centre and each of the provinces.

When this report was considered in the Constituent Assembly on August=20
27, 1947, many of the members against separate electorates blamed=20
British institutional arrangements for the communal discord in India:=20
for instance, P S Deshmukh said that "the demon of the interests of=20
minorities and their protection was a creation of British policy".48=20
Members still supporting the provision of separate electorates argued=20
that without them, the best representative of a minority community=20
would not be elected. However, separate electorates were not=20
reinserted into the Constitution. Nor was an amendment moved by S=20
Nagappa, and supported by Ambedkar, that a scheduled caste candidate=20
could only be declared elected to a scheduled caste reserved seat on=20
securing at least 35 per cent of votes polled by scheduled castes to=20
that seat, passed.49

In the February 1948 Draft Constitution, Articles 292 and 294=20
reserved seats in parliament and state legislatures for Muslims,=20
scheduled castes, Scheduled Tribes and Indian Christians for 10=20
years. In February 1948, a special subcommittee of Patel, Nehru,=20
Prasad, Munshi and Ambedkar was formed on minority problems affecting=20
East Punjab and West Bengal. This Committee rejected the demand of=20
the Shiromani Akali Dal for a separate electorate on the grounds that=20
although "it is not always easy to define communalism, there could be=20
little doubt that separate electorates are both a cause and an=20
aggravated manifestation of this spirit".50 The committee's report=20
was quite critical of the demands of the Akali Dal and rejected every=20
one of them since they "disrupted the whole conception of the secular=20
state which is to be the basis of our new Constitution".51

When this report was considered in the Advisory Committee in December=20
1948, a suggestion was made that reservations in legislative bodies=20
should also be given up. By May 11, 1949, Muslims and Indian=20
Christians lost their reserved seats. The understanding was that the=20
non-Muslim League Muslims were under instructions of Maulana Azad not=20
to press for reservation. Nehru responded to a speech by Begum Rasul=20
against reservation by saying, "I think that doing away with this=20
reservation business is not only a good thing in itself, good for all=20
concerned, more especially for the minorities, but psychologically=20
too it is a very good move for the nation and the world. It shows=20
that we are really sincere about this business of having a secular=20
democracy".52

In his report on this May 11 meeting, Patel wrote: "Although the=20
abolition of separate electorates had removed much of the poison from=20
the body politic, the reservation of seats for religious communities,=20
it was felt, did lead to a certain degree of separatism and was to=20
that extent contrary to the conception of a secular democratic=20
state".53 In moving this report in the Constituent Assembly on May=20
25, 1949, he exhorted everyone "to forget that there is anything like=20
majority or minority in this country and that in India there is only=20
one community".54

VI
Religious Instruction in Educational Institutions

For our next subject of state neutrality, we go back to the right to=20
religion, and examine what happened to the issue of religious=20
instruction. The Advisory Committee in its interim report of April=20
23, 1947 had stated that religious instruction must be voluntarily=20
received in schools maintained or getting aid out of public funds.=20
When this clause was discussed in the Constituent Assembly on August=20
30, 1947, it was sought to be amended by Renuka Ray to read as=20
follows: "No denominational religious instruction shall be provided=20
in schools maintained by the state".55 Radhakrishnan explained the=20
reasoning behind such an amendment: "We are a multi-religious state=20
and therefore we have to be impartial and give uniform treatment to=20
the different religions; but if institutions maintained by the state,=20
that is, administered, controlled and financed by the state are=20
permitted to impart religious instruction of a denominational kind,=20
we are violating the first principle of our Constitution."56 Here we=20
see at its clearest, one understanding of secularism: impartiality to=20
all religions means that the state must stay away from all religions.=20
When this article was discussed again in the Constituent Assembly in=20
December 1948, K T Shah went further and demanded that religious=20
instruction should be banned not only in educational institutions=20
wholly maintained out of state funds, but also in those which were=20
aided or partly maintained by the state. He said that he did not want=20
education to become a menagerie of faiths.57 Tajamul Husain said the=20
religious instruction should only be given at home by one's parents.

Diametrically opposite was the argument of Mohamed Ismail who=20
believed that "the stability of society as well as of the state could=20
be secured through a moral background which religion alone could=20
provide, and it was in the interest of the state itself to give=20
children a grounding in religion".58 Thus there ought to be no bar on=20
religious instruction in educational institutions, not even in those=20
run exclusively by the state, as long as no one was compelled to=20
accept such instruction. If religious instruction was imparted in=20
this manner by the state, it would in no way contravene the=20
neutrality or the secular nature of the state.

H V Kamath also supported the imparting of spiritual instruction to=20
the citizens by the state. The "deeper import of religion - the=20
eternal values of the spirit...could be imparted by the state without=20
violating the principle of secularism".59 Further he pointed to the=20
contradiction between this article on religious instruction and the=20
subsequent one on the cultural and educational rights of minorities.=20
If on the one hand, the Constitution stated that minorities were=20
entitled to state aid and recognition to their freely run educational=20
institutions, then how could it also ban religious instruction in=20
state aided institutions. The only solution was to say that no pupil=20
could be forced to attend religious instruction in state aided=20
schools.

Conclusion

Ever since the Romantics, we have learnt that contradictions are not=20
a problem; they capture better the complexity of any thing. But=20
surely a Constitution - a legal document - has to obey canons of=20
consistency? Both the no-concern and equal-respect positions on=20
secularism, when constructed strictly logically by Rajkumari Amrit=20
Kaur and B Pocker Sahib, had few takers in the Constituent Assembly.=20
Most members felt that - neither a position demanding a right only to=20
religious worship, the recognition by the state of no minority,=20
whether religious, linguistic or sexual, the establishment of a=20
uniform civil code, no political safeguards for any minority and no=20
religious instruction in any state schools, - nor its mirror=20
opposite, claiming a right to the practice of religion, state=20
recognition for religious as well as linguistic minorities, personal=20
laws to be included in fundamental rights, political safeguards for=20
all religious minorities, and religious instruction in state schools,=20
captured the requirements of secularism in the context of India's=20
social diversity. The first position suffered from a 'statist'=20
conception of nationalism, "giving an inescapably 'statist'=20
orientation to the very conception of any political unity across=20
religious communities and other social divisions".60 It wished to=20
establish a direct link between the citizens and the state, by=20
weakening all other loyalties and commitments of individuals. Apart=20
from neglecting the importance of cultural and religious=20
considerations to one's identity, this conception of secularism=20
reflected a naive belief in the benign nature of the modern=20
democratic state. The second position was weakened by its failure to=20
provide any avenues for dissent within different religious=20
communities.

Much more important were two intermediate positions in the=20
Constituent Assembly, one of which sought, for instance, to combine=20
the right to religious worship and to a uniform civil code with=20
political reservation for minorities. This position lost, and the one=20
which is reflected in the actual articles of the Constitution,=20
defined the right to religion broadly as the right to religious=20
practice, but refused to grant political safeguards to religious=20
minorities.

Today, we are inclined to favour a conception of a secular state as=20
an equal respecter of all religions. Can the Constituent Assembly=20
debates throw any light on whether this conception requires not only=20
that religion be defined broadly by the state, but also that=20
minorities must be granted political safeguards. Is this the only way=20
that the state can prevent itself from becoming a Hindu state or will=20
this added provision worsen the situation for Indian democracy?

Notes

[A version of this paper was presented on September 8, 2001, at 'The=20
Philosophy of the Indian Constitution' seminar held at Goa. I would=20
like to thank Rajiv Bhargava, Gurpreet Mahajan, Pratap Mehta,=20
Mushirul Hassan, Rochana Bajpai and others at that conference.]

1 Constituent Assembly Debates - Vol X, p 439, hereafter cited as CAD-X.
2 CAD-X, p 441.
3 CAD-X, p 446.
4 Another example that could have been cited is the printing of the=20
words, 'In God we trust' on every American dollar bill.
5 CAD-X, p 438.
6 Ibid.
7 CAD-X, p 447.
8 Aijaz Ahmad, Lineages of the Present, Tulika, New Delhi, 1996, p 313.
9 Ahmad, p 318.
10 B Shiva Rao, The Framing of India's Constitution: Select Documents=20
- Vol IV, Government of India Press, Nasik, 1968, p 593, hereafter=20
cited as SD-IV.
11 Jawaharlal Nehru, cited in T N Madan, Modern Myths, Locked Minds,=20
OUP, Delhi, 1997, p 245.
12 SD-II, p 16.
13 SD-II, pp 62-63.
14 CAD-VII, p 865.
15 CAD-VII, p 819.
16 Ibid
17 SD-II, p 123.
18 K M Munshi, Indian Constitutional Documents, Vol I, Bharatiya=20
Vidya Bhavan, 1967, p 309.
19 Ibid.
20 CAD-VII, p 831
21 CAD-VII, p 873.
22 CAD-X, p 453.
23 This was proposed by Jaya Prakash Narayan. See B Shiva Rao, The=20
Framing of India's Constitution - A Study, Government of India Press,=20
Nasik, 1968, p 266, hereafter cited as Study.
24 See D E Smith, India as a Secular State, Princeton University=20
Press, New Jersey, 1963, pp 3-8 and 135-38. For Smith "the conception=20
of a secular state involves three distinct but interrelated sets of=20
relationships concerning the state, religion and the individual -=20
[between] religion and the individual (freedom of religion), the=20
state and the individual (citizenship), and the state and religion=20
(separation of state and religion)" p 4.
25 SD-II, p 173.
26 SD-II, p 208.
27 SD-II, p 140.
28 SD-II, p 187.
29 Processions and marriages were the two activities that were=20
specified by most members as part of the practice of any religion.
30 SD-II, p 146.
31 Ibid.
32 CAD-VII, p 816.
33 Study, p 276.
34 Study, p 277.
35 SD-II, p 79.
36 SD-II, p 89.
37 SD-II, p 147.
38 SD-II, p 162.
39 CAD-VII, p 540
40 Ibid.
41 CAD-VII, p 544.
42 CAD-VII, p 548.
43 SD-IV, p 391.
44 SD-II, p 109.
45 SD-II, p 103.
46 SD-II, p 113.
47 SD-II, p 412.
48 CAD-V, p 201.
49 CAD-V, p 260.
50 SD-IV, p 593.
51 Ibid.
52 K M Munshi, p 209.
53 SD-IV, p 600.
54 SD-IV, p 606.
55 Study, p 263.
56 Ibid.
57 CAD-VII, p 869.
58 Study, p 269.
59 CAD-VII, pp 873-74.
60 Amartya Sen in K Basu and S Subrahmanyam (eds), Unravelling the=20
Nation, Penguin, New Delhi, 1996, p 26.

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