In this extremely interesting book, Abhinav Chandrachud explores independent India’s attempt at becoming a secular state. The book is divided into 6 chapters dealing with cow protection, freedom to profess, practice and propagate one’s religion, separate electorate, state interference in religious places (mostly management of temples), uniform civil code and personal laws and the mandated oath for witnesses in the court of law and for holding public offices. The book argues that the colonial secularism was imposed on a defeated people, was an unnatural foreign imposition and with the advent of independence was bound to come apart/modified. Chandrachud quotes extensively from the constituent assembly debates and the subsequent SC/HC judgements on the issues mentioned in his 6 chapters and they make for an extremely insightful and interesting reading.
1. Cow slaughter was permitted during the British period despite the provision of the Indian Penal Code that prohibited the destruction of ‘sacred’ objects of religions. This was because the Allahabad HC in its judgement of 1887 held that cows were living beings and thus not inanimate objects. However, post independence Art 48 was introduced in the constitution which called upon the state to take steps to prohibit cow slaughter. The Congress govts in many states enacted laws prohibiting cow slaughter and the SC in 1958 upheld the ban on cow slaughter based on the principle that cow slaughter was not obligatory in Islam. In its judgement in 2005 it held that all bulls and bullocks were useful because they produce ‘dung’ which is useful in agriculture and biogas production. So, a complete ban on cow slaughter is now permissible in India.
2. The colonial state had encouraged the activities of the Christian missionaries very nervously for they did not want any challenge to their rule. However a law was enacted in 1850 which stated that a person who converted to Christianity would not lose his right to inherit family property. Post independence though the state gave everyone the right to profess, practice or propagate their religion, the author argues that the soft secularism of Indian constitution has been designed to keep Hindus within their fold. States passed statutes which made conversion difficult and the SC in its judgement held that the right to propagate ones religion does not include the right to convert someone to another religion.
3. Separate electorates were introduced in 1909 with a view to keep the Muslims away from the national movement. The book elaborates in detail how on the letter by the Secretary of Aligarh College, Nawab Mehdi Ali Khan (better known as Mohsin ul Mulk) wrote a letter to Mr. W A Archbold if a Muslim delegation could meet the Viceroy in order to speak to him about the rights of the Muslims in India. It had so far been the practice of the British delegation never to meet a delegation of any one community. However, understanding that this was an opportunity to draw the Muslims away from the Congress and that the ‘educated Mohammedan is the most conservative element in Indian society’ the audience was granted and the Viceroy met a Muslim delegation led by Aga Khan. He requested for special privileges for the Muslims and that the Muslim seats in the ‘legislative councils should be commensurate not merely with the political strength of the Muslims, their political importance and the value of contribution they make to the defence of India…(but that) due consideration must also be given to the position that the Muslims occupied in India, a little more than 100 years ago and of which the traditions have not faded from their minds’. The colonial govt in its subsequent reports recognised that separate electorate was harmful for India because it created a ‘divided allegiance’ but colonial self interest drove them to further advance it to other communities. No wonder as soon as India achieved independence, separate electorate was abolished. Initially, there was some debate in the constituent assembly about reserved seats for Muslims but the Muslims representatives themselves, who were elected on ML tickets but chose to stay back in India, opposed the move arguing that the interests of the Muslims would be better served if there was goodwill between the Hindus and Muslims.
4. During the initial years of colonial rule, East India company took over the administration of many Hindu temples in the tradition of rulers they had replaced. However, under pressure from the Christian missionaries who considered both Hinduism and Islam as false and heathen religions, the govt started distancing itself from managing religious institutions. When the Indian legislators came to power they abandoned this form of colonial secularism and began the process of regulating and administering temples. The SC of India has permitted the govt to do so on the premise that administration of temples is a secular function, not essential to Hinduism.
5. While the Britishers had a uniform civil code for their citizens back home, in India, following the precedent of the Roman Empire they continued with a regime of separate ‘personal’ laws for different religious communities. Interestingly, the Britishers did legislate on ‘personal’ laws which dealt with the public sphere, like replacing the Hindu and the Muslim laws of contract, evidence and crimes and replaced them with secular codes. However, it was legislating on personal laws relating to family i.e. Sati abolition, permitting Hindu widows to remarry, raising age of sexual intercourse that created most opposition from the conservatives, and which was done by the govt with great reluctance and hesitation. The author argues that this difference between easy acceptance of changes in law dealing with public sphere and opposition to those dealing with family suggests that it had less to do with religion and more to the fact that it concerned the private. When Indian legislators came to power, they rejected the colonial secularism and actively sought to reform their personal laws. Also Art 44 of the constitution repudiated colonial secularism by abandoning the policy of religious non interference and directed the state to strive towards a uniform civil code. The Hindu code bill nearly governs 85 percent of Indians except Muslims, Christians and the Jews. The SC has continued following the ‘essence of religion’ argument in upholding the constitutional validity of many of these reforms.
6. The colonial state removed God from the public sphere by requiring public officials in British India to swear their oaths without any mention of God in them. The Constituent Assembly rejected this form of secularism by inserting the word ‘God’ into the constitution – public officials now have the option of swearing their oaths either in the name of God or on the basis of solemn affirmation. So the framers of Indian constitution, as brought out also in the constituent assembly debates, did not believe that secularism implied a Godless state.