How conceptual vagueness in Indian law allows for political manipulation and polarisation

One way of defining secularism is that in a secular state, religion does not form the fundamental basis of law. India’s constitutional scheme makes this clear by giving the people constitutive power.

The fundamental rights laid out on the Constitution make no reference to religion as a grounding principle. Rather, as stated in Article 25, the fundamental right to religion is itself subject to morality, health and public order. This right, as well as the other fundamental rights, are justiciable by a court system that is itself not grounded in religion.

However, since Independence, the wording of some legislations relating to particular religions and particular customs give the impression – and sometimes the effect – of religion as being among the grounds of law.

Colonial policy

Secularism in Independent India is nothing like the colonial policy of religious neutrality. The colonial state was not grounded in popular sovereignty. Because no fundamental rights or democratic principles existed, individuals accessed civil laws largely in the state-defined medium of religious and customary laws.

Many discriminative principles of religious and customary traditions in the form of “personal laws” that relate to marriage, divorce, maintenance, inheritance and succession, particularly on the register of gender, have survived from the colonial order, as scholars such as Archana Parashar and Flavia Agnes have shown.

For example, it is an irony that the Select Committee of the Hindu Code Bill in 1949, headed by BR Ambedkar had suggested giving Hindu daughters a share equal to that of the son in matters of succession, but this was subsequently diluted and only fully realised only last year in a Supreme Court decision clarifying a 2005 law. State legislatures in southern India had already moved in this direction. This is but one crucial instance where it has taken several decades for a principle that should have flown naturally from the Constitution in 1950 to be realised.

The coming of Independence – constituted by popular sovereignty and secured by justiciable fundamental rights – should have required a review of all laws on the touchstone of the Constitution, as stated in Article 13. Article 26 recognised religious denominations and their rights to manage their own religious matters. No particular community, religious or otherwise, except the “people of India”, form the basis of law.

Despite this, the terminological and conceptual vagueness in the law allows for political manipulation and polarisation. This can be illustrated by considering the categories of “religion” and “Hinduism”.

Seeming contradictions

Firstly, the term Hindu refers at once to a religious community as well as a community that includes other religions, as is the case in the Hindu Succession Act. No explanation is given for why the religions of Sikhism and Buddhism were included in Hinduism, but Islam and Christianity are seen as distinct religions.

Secondly, Hinduism is at times not defined as a religion at all, but expansively as a “way of life” of the “Indian people”, always tolerant of diversity. But in a seeming contradiction to this broad view, Hinduism (which here would include Buddhism and Sikhism) is defined by caste discrimination because only a Hindu can claim the benefits of scheduled caste-based reservation in educational institutions and government jobs, as scholars Marc Galanter and Padmanabh Samarendra, among others, have discussed.

Despite sociological and historical evidence that Muslims and Christians can also be victims of caste discrimination, followers of these religions cannot avail of the benefits of caste-based reservation. Besides, if Hinduism is indeed defined expansively in a “national” or Indian sense – as the ideologues of Hindutva seem to insist – why are members of Christianity and Islam denied such reservations? And if Hinduism is defined in terms of its tolerance, how it is also defined in terms of caste discrimination?

Freedom of religion

Thirdly, several state laws and judgments have made religious conversion very difficult because they criminalise the use of “allurement” and “inducement” in the context of conversion, terms that are very difficult to define and hence open to abuse by the executive.

These laws and judgments appear to be in contravention of the very Preamble of our Constitution which promises to secure “liberty of thought, expression, belief, faith and worship”, from which flows Article 25 (the right to profess practice and propagate one’s religion) as well as Article 19 (freedom of speech and expression).

The lack of clarity regarding the legal definition of both “religion” and “Hinduism” is stark. The Constitution does not define religion and the Supreme Court too seems to have refrained from giving it a strict legal definition.

But since the Supreme Court understands Hinduism to be a “way of life” of the “Indian people’’, the very idea of a religious conversion into or from Hinduism would seem inapplicable, particularly when attended with harsh laws. It is perhaps a matter to be taken up separately that the Supreme Court’s own understanding of Hinduism is contestable and at variance with BR Ambedkar and much extant scholarship, or the question as to why courts have not limited themselves to their mandate of judging the legality or constitutionality of actions, rather than overreaching and defining religions.

But if Hinduism were taken to be a religion, Article 19 as well as Article 25 should protect anyone who is adopting any religion, even if under “allurement” (“any gift or gratification in either cash or kind”) or “inducement”. After all, the meaning of these terms is unclear and therefore they are unfit to form the basis of punitive laws.

Vague terms

The vagueness of such terms is compounded by the lack of a clear definition of “religion”. In such a context, even apart from Constitutional guarantees, anti-conversion laws (now in the name of “love jihad” ) and judicial pronouncements do not appear reasonable, fair or just.

Notwithstanding the consistent violation of Constitutional principles, legally speaking, religion cannot even be used to canvas for votes. Therefore, religions should not have any inherent legal legibility. The burdens of our colonial pasts should be shaken off entirely by a jurisprudence and activism oriented by and negotiating democratic principles and fundamental rights as envisioned by the Constitution, which broke fundamentally from the previous order.

Vaguely worded colonial statutes like 295A relating to hurt sentiments were possible in an unfree order where no freedom of thought was allowed or encouraged.

But with neither “religion” nor “sentiment” being clearly defined, not even the basic requirement of law is maintained where there ought to be no uncertainty about what precisely is being transgressed. While insisting on such statutes in the present, one wonders whether ministers who use phrases like “love jihad” in the arguing for laws to prevent inter-faith marriages could be accused of hurting religious sentiments.

If a Hindu theological term were similarly compounded with an extraneous word so as to insinuate violent motivation, would that be tolerated in our society today?

Polarising discourse

The strategic vacillation between Hinduism as “national” and Hinduism as a religion defined by its distinction from Islam and Christianity gives scope to colour these other religions as, by their very nature, constituting a betrayal of so-called indigenous culture and identity.

Legislative and jurisprudential developments are complicit in the possibility of such polarising discourse, which could express itself in routine and extra-ordinary violence.

Yet the response today to the intermeshing of religion and law is not a Uniform Civil Code in any simple sense because over the past decades, legislation and jurisprudence in certain ways have moved away from the initial Constitutional principles.

In the face of such terminological and conceptual vagueness, attempting to retain religion or custom in the secular domain of civil law by artificially tailoring it to Constitutional norms does little justice to either. The full ramifications of the constitutional and jurisprudential commitments to secularism need to be more amply discussed and scrupulously practiced.

Rahul Govind teaches at the University of Delhi and writes here as a citizen.