Indian Constitution: Crossing The Borders of Religion, Caste, Language and Culture
Keywords:
Crossing the boarders, multiculturalism, cross-cutting social diversity, civil society, inclusionAbstract
India, a highly diverse society, is an endangered pluralist polity. India is now challenged by forces that threaten its fragile political consensus. This paper is divided into different sections. The first section offers an overview of India’s diversity, state forms and nationalisms in broad brushstrokes. The second focuses on a particular change experience: constitution-making in India (1946–49). Shifting to the present, the third section discusses sources of inclusion and exclusion in the Indian polity. Focusing on reservations, discrimination against Muslims, Hindu nationalism and violence, it outlines key dimensions of exclusion in India today. The final section summarizes key lessons from the Indian experience with pluralism which takes the country beyond borders of religion, caste, language and culture. In the case of the Indian Constitution, the problem was not with its approach as with the normative resources fashioned, which remained deficient for the accommodation of religious diversity, and cultural diversities. It may be noted that the provisions of the Indian Constitution regarding the right to religious liberty cover all the freedoms relating to religion set forth in the Universal Declaration of Human Rights,1 which was adopted by the General Assembly of the United Nations at the Palais de Chaillot, Paris, on December 10, 1948.
References
This document is published as Appendix III to Human Rights: A Sympympo- slump repaired by UNESCO. (Allan Wingate, London, 1949), 134-167.
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As such, the distinction between the rights of immigrant groups and national minorities is arguably less relevant. Will Kymlicka (1995), Multicultural Citizenship: A Liberal Theory of Minority Rights (Oxford: Clarendon Press), 40.
Muslim presence in India dates back to the eighth century in Kerala and Sindh, expanding after the establishment of the Sultanate in north India. Christian presence in India is also long-standing, dating back to the followers of St. Thomas (called Syrian Christians) in the first century CE. Satish Saberwal (2006), “On the Making of Muslims in India Historically,” Sociological Bulletin 55: 237–66.
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While such long-standing antecedents favoured multicultural provisions, there were also factors that went against their adoption. India’s bloody partition along religious lines that unfolded during constitution-making was regarded by the Congress as the outcome of colonial policies such as separate electorates for Muslims. The Congress was numerically dominant in the Constituent Assembly, and after Partition its majority rose to 82%. Partition had weakened minorities in strategic and organizational terms, as well as numerically, and also hardened the public mood against minority demands. The Congress no longer needed to conciliate minority parties in order to avert Partition. It also faced stronger pressures from its Hindu nationalist members opposed to concessions to minorities. In addition, several obstacles that face the adoption of multicultural policies in other post-colonial contexts could be observed in the Indian case as well. These included the association of minority protections with colonial divide and rule, and the view that minorities were a potential “fifth column”—a threat to the security of the state on account of loyalty to a rival neighbouring state.
Several factors enabled the retention of group-differentiated rights, albeit within an altered framework. The Congress party had made public commitments to the protection of minorities through fundamental rights, as well as reservations for Untouchables. It also had a long-standing commitment to non-majoritarian decision-making. The presence in key power positions of political actors with a staunch commitment to the rights of minorities and historically disadvantaged groups, such as Prime Minister Jawaharlal Nehru and the chair of the Drafting Committee Dr. B.R. Ambedkar, prevented the withdrawal of group rights in the face of Partition and anti-minority sentiment.
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Although the freedom of religion guaranteed by Article 25 is wide in scope, it is far from being absolute. It is subject to public order, morality and health, and to the other provisions of Part III of the Constitution- Article 25 (1). This freedom also shall not affect the operation of any existing law, or prevent the State from making any law (a) regulating or restricting any economic, financial, political or other secular activity which may be associated with religious practice; and (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. Restrictions on freedom of religion in the interest of public order, morality and health are generally - accepted grounds for State intervention. For example, the Statement on Human Rights and Religious Freedom” to which a reference has already been made, while asserting that the right to religious freedom is inalienable, admits that it is not an unconditional right. “ If the adherents to any form of religion,” says the Statement, “so exercise their right of religious freedom as to disturb public order, or endanger public secular outrage the basic moral conceptions which are essential to both, they do so at their own risk, and the State to which they belong, or in which they are resident, is entitled to invoke the sanctions of law against them.,, It stands to reason that the State, whose primary function is to preserve public order and security, must have the power to suppress activities, which, though ostensibly religious, tend to jeopardize the security and tranquillity of the State.
The decision of the Constituent Assembly to keep out God from the Constitution will doubtless please the atheists, who regard the existence of God as a metaphysical myth. But this is by no means the opinion of the bulk of the Indian people. In fact, one of the essential features of Indian culture is its deep concern with the super- natural, and the whole of the Indian cultural tradition is embedded in the belief in and the worship of the Supreme Being in diverse ways. The ancient Greeks regarded the constitution of any country as the expression of the soul of that particular nation. How can our Constitution be a genuine expression of the soul of the Indian nation when there is not even a mention of the fons et origo of the genius of India?
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Thus, states with substantial tribal populations have been carved out of linguistic states, e.g., Chhattisgarh and Jharkhand in 2000.
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The cultural rights of minorities were thus interpreted largely as negative liberties. The duties required of the state were limited to forbearance from interference. On the general point, see Henry Shue (1980), Basic Rights: Subsistence, Affluence and US Foreign Policy (Princeton, NJ: Princeton University Press) Kymlicka (1995), 45.
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Around 40 celebrated writers from across the country returned their national literary awards in 2015. In the first quarter of 2016, hundreds of academics in India and abroad petitioned, marched and undertook teach-ins against police action on campuses at Jawaharlal Nehru University, Delhi, and the University of Hyderabad, Hyderabad. Amrita Basu (2016), “More Than Meets the Eye: Sub Rosa Violence in Hindu Nationalist India,” Institute for Religion, Culture and Public Life (IRCPL) Conference on Democracy and Religious Pluralism, Columbia University, New York, 12–13 February.
By contrast, Hindu nationalist accounts of Indian national identity established a firmer hold in society, particularly since the 1980s. Here, the Indian nation was seen as fundamentally Hindu, violated for centuries by Islamic and Christian invaders. Perhaps the most serious defect of the new Indian nation state was “the failure to create a liberal-pluralistic public rhetorical and imaginative culture whose ideas could have worked at the grassroots level to oppose those of the Hindu right.” The long shadow of the country’s partition along religious lines in 1947 continues to limit political imagination with regard to the accommodation of religious diversity.
This document is published as Appendix III to Human Rights: A Sympympo- slump repaired by UNESCO. (Allan Wingate, London, 1949), 134-167.
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