"Bill of Rights" in the Constitution of India
by G. B. Singh (August 2009)
Introduction
Before analyzing the rights enshrined in the Indian Constitution, a few words on the constitution would be helpful to readers. The Indian Constitution (promulgated in 1950) is the longest constitution ever written. As of December 2007, the Constitution of India comprised 395 Articles, 12 Schedules, 2 Appendices, and constitutional amendments totaling no less than ninety-four in number. Include to this list are amendments of previous amendments — often each amendment encompassing multiple smaller amendments within its charter. India’s constitution can safely be characterized as one of the most complicated of all modern political documents available.
Highly placed Indians with some insight into their constitution will often take delight in saying that it is based on sound fundamental principles derived from the constitutions of no less than five great Western democracies: Australia, Canada, England, Ireland, and of course, the United States. It all sounds great. Even more impressive is when we hear that the Bill of Rights of the U.S. Constitution has made its way into the Indian Constitution. This is always followed by a note of special thanks to the framers of India’s constitution, with particular tribute paid to the likes of Dr. B.R. Ambedkar (well known leader of India’s Untouchable community), who chaired the drafting committee that devised the Indian Constitution. Justifiably, a question begs to be asked: Are all things mentioned above true?
To answer that question, one must at least procure the most recent copy of the Indian Constitution, read it, understand it, and then present the facts as they stand. I did exactly that, which is why I am writing this article.
I hope the reader is familiar with the first ten amendments (commonly called “The Bill of Rights”) of the U.S. Constitution, which were ratified in 1791. This information is important since these rights were purportedly imported into the Indian Constitution. For the purpose of this article, it will be worth the effort to reproduce the First Amendment of U.S. Constitution, which states:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
The Substance
Part III of the Indian Constitution (Articles 12 through 35) constitutes the entire minutia on fundamental rights. Of these total of twenty-four articles, Articles 19 and 25 are the only ones that truly correspond to the First Amendment of U.S. Constitution. Allow me to reproduce Article 19 in its entirety:
Protection of certain rights regarding freedom of speech, etc.
(1) All citizens shall have the right:
(a) to freedom of speech and expression;
(2) Nothing in sub-clause (a) of the clause (1) shall affect the operation of any existing law, or prevent the State from making any law, in so far as such law imposes reasonable restrictions on the exercise of the right conferred by the said sub-clause in the interests of the sovereignty and integrity of India, the security of State, friendly relations with foreign States, public order, decency or morality, or in relation to contempt of court, defamation or incitement to an offence.
(3) Nothing in sub-clause (b) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, in the interest of the sovereignty and integrity of India or public order, reasonable restrictions on the exercise of the right conferred by the said sub-clause.
(4) Nothing in sub-clause (c) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, in the interest of the sovereignty and integrity of India or public order or morality, reasonable restrictions on the exercise of the right conferred by the said sub-clause.
(5) Nothing in sub-clause (d) and (e) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, reasonable restrictions on the exercise of the right conferred by the said sub-clauses either in the interests of the general public or for the protection of the interests of any Scheduled Tribe.
(6) Nothing in sub-clause (g) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, in the interest of the general public, reasonable restrictions on the exercise of the right conferred by the said sub-clause, and, in particular, nothing in the said sub-clause shall affect the operation of any existing law in so far as it relates to, or prevent the State from making any law relating to –
(i) the professional or technical qualifications necessary for practising any profession or carrying on any occupation, trade or business, or
Granted much of the above narrative is redundant; nobody doubts the clarity of Clause 1 of Article 19. However, given what is written in Clause 2 and onwards, everything changes. The fundamental rights given in Clause 1 have been for all practical purposes nibbled away one by one, thanks to Clauses 2 to 6. The reader must have noticed that Clause 1f, which had been “to acquire, hold and dispose of property,” is missing. The 44th Amendment expunged that portion in 1978, most likely enacted to usher political India in tune with Communism, former USSR being at the time India’s close ally. Things get even more complicated when you encounter Articles 352 through 360 of the Indian Constitution, which essentially deliver the emergency provisions. Since numerous geographical areas of India frequently have fallen under these emergency provisions, the reality of the fundamental rights supposedly guaranteed under Article 19 and others is revealed, as citizens have been forced to live under the enacted draconian laws.
What makes the fundamental rights problem even more tendentious is that according to the 40th Amendment, the draconian laws may not be challenged before any court on the ground of violation of fundamental rights. If one or more groups of people have suffered terribly from the repressive hands of the State, the 41st Amendment nails a potential litigant right back to his/her proper place. This amendment has provided that the President, Prime Minister and State Governors are immune from criminal prosecution for life and from civil prosecution during their term of office. What about the Press in India? The exuberant Indian Press exercises its freedom of speech freely, as the apologists reminds us with regularity. But the facts are otherwise. Indian journalists have learned too well how to kowtow to the ruling Indian leaders.
Now, let us take a look at Article 25:
Freedom of conscience and free profession, practice and propagation of religion —
(1) Subject to public order, morality and health and to the other provisions of this Part, all persons are equally entitled to freedom of conscience and the right freely to profess, practice and propagate religion.
(2) Nothing in this article shall affect the operation of any existing law or prevent the State from making any law –
(a) regulating or restricting any economic, political or other secular activity which may be associated with religious practice;
In a historical sense, Article 25 is unique. Even though Hindu hands wrote it following the British departure in 1947, future Hindu hands have spared it thus far from additional amendment. Those responsible for writing Article 25 were no less cunning and deceptive — they knew how to shelter it behind the barrage of words that only a few could understand. I have attempted to unravel the mystery of Article 25 to the best of my abilities.
Teachings such as peaceful co-existence, high morals, high ethical values, and respect for fellow humans are integral to any true religion. Given that, why is religious freedom contingent upon factors of public order, morality, and health with respect to religion in India as in Clause 1? Is there such a religion that violates the norms of decent human morality? If indeed there is any such religion, one would think the framers of the Indian Constitution would have alerted us or perhaps would have “banned” that particular immoral religion. Would Hinduism, Islam or for that matter any other religion fall under that category?
With Hindu leaders in charge of Hindu India, the name of the game is unchecked fundamentalist Hinduism, however undesirable it might be to a reasonable mind. But during British-India, this unchecked Hindu fundamentalism came very close to being curbed as recorded in a superbly written book, Mother India by Katherine Mayo (Greenwood Press Publishers, 1927), which states:
It is true that, to conform to the International Convention for the Suppression of the Circulation of and Traffic in Obscene Publications, signed in Geneva on September 12, 1923, the Indian Legislature duly amended the Indian Penal Code and Code of Criminal Procedure; and that this amendment duly prescribes set penalties for “whoever sells, lets to hire, distributes, publicly exhibits … conveys … or receives profit from any obscene object, book, representation or figure.” But its enactment unqualified, although welcome to the Muhammadans, would have wrought havoc with the religious belongings, the ancient traditions and customs and the priestly prerogatives dear to the Hindu majority. Therefore the Indian Legislature, preponderantly Hindu, saddled the amendment with an exception, which reads:
This section does not extend to any book, pamphlet, writing, drawing or painting kept or used bona fide for religious purposes or any represented sculptured, engraved, painted or otherwise represented on or in any temple, or on any car used for the conveyance of idols, or kept or used for any religious purpose.
To conclude, in India, the freedom to practice religion is conditional. The power to interpret and exercise the conditional requirements is in the hands of Hindu leaders and nobody else. This is radically different from what is in the United States where the practice of religion is free, unconditional right. Conversely, in modern India, the practice of religion is a “politician-sanctioned” unreliable right.
Clause 2a of Article 25 is muddy at best. Considering the constitutional write-up, it seems religion is composed of economic, political, and worship activities. Anything other than worship activity is termed “secular.” Therefore, in accordance with the constitution, the Indian State has the right to interfere with those activities of the church it considers “secular.” The church, structure included, is after all an economic venture. In a socialist country like India: Organized religions (Christianity, Islam, Sikhism, etc.) with large groups of people interacting among themselves and others amounts to nothing less than political activity. Any propagation of religion will require a number of “secular” tasks: financial, organizational, and personnel activities (just to name a few).
The Indian State can constitutionally restrict any one or all of these “secular” endeavors, thereby effectively hampering genuine propagation of any religion it desires. This has already happened, as illustrated in another fine book – Soft State: A Newspaperman’s Chronicle of India by Bernard D. Nossiter (Harper & Row Publishers, 1970). I suppose one way to be safeguarded from State incursion is for an individual to worship in the open air (which will insure no economic activity) or alone within the confines of a house (which will insure no political activity). How anyone worships individually in these conditions may be beyond the Indian State’s intrusive nature! That’s my hope!
Now, consider Clause 2b. What does freedom of religion have to do with social welfare and reform? This sub-clause contains a statement with strange wordings that need some scrutiny. First, are Hindu religious institutions of a public character? This term is ambiguous and could mean literally anything or absolutely nothing. My gut feeling is that it pertains to Hindu schools, the temples, and ashrams. Second, is a reference to the “classes” of Hindus? This is an inappropriate western terminology in reference to the Hindu society. Nonetheless, if the term has to be used, the majority of the Hindu population falls into the low class while the minority belongs to the middle and upper classes. Third, what are the “sections” of Hindus? At the lowest common denominator, the bulk of Hindu sections comprise the Vaishnava, Saiva, and Sakti.
The State can regulate the opening of Hindu temples, schools, and/or ashrams to all high, middle or low Hindu classes irrespective of whether one is Vaishnava, Saiva, Saktia, or what have you. This interpretation may be off the mark if I am reading incorrectly because of the use of terms that are vague. Unfortunately, the framers of the constitution missed the crux of the problem.
The Hindu society is governed by caste (or varna), and not just necessarily by the classes and sections. And certainly the caste is not the same thing as class and section. If you feel that the framers of the constitution were themselves not sure of what they wrote or its underlying meaning, they perhaps hoped that the reader would be reassured in the offering of Explanation I and II. If one examines Hindu scriptures, for example the Bhagavad-Gita, it is not uncommon to see that a transition from one topic to another is often disconcertingly abrupt. This is clearly the case here also.
Explanation I and II are not even remotely connected with Clause 2b. The fact is that Explanation I and Explanation II urgently call for explanations of their own. Explanation I acknowledges the existence of the Sikh religion. Since the issue is the individual religious rights (in Sikhism), the proper word ought to be “kirpan,” not “kirpans.” Moreover, Explanation II is notoriously flawed. Its intent is obvious: the individual members of Sikh, Jain, and Buddhist religions will be referred to as Hindus, and thus retroactively Sikhism, Jainism, and Buddhism are to be considered merely sects of Hinduism. Therefore, the State can interfere with their religious institutions as it sees fit, under the guise of procuring “social reforms.” Since the constitution refuses to delve further, one might ask: Is there a definition or an explanation of what constitute Hinduism? And who really is a Hindu? Answering these questions has been anything but easy and clear in part because both these terms–Hindu and Hinduism—are absent entirely from their varied scriptures and had been sponsored by their colonial masters, both Islamic and British respectively. Scholars over the years have tried their best but failed to address these terms adequately. Of lately the Supreme Court of India has pitched in. For example in 1965, the Court observed that the term “Hindu” referred to “the orthodox Hindu religion which recognizes castes and contains injunctions bases on caste distinctions.” By 1966, the Court stepped in further. Rather than defining the issue, it issued broad guidelines–to be precise three different “standpoints”– which require an art and gift of application to the circumstances. They are worth reading:
First Standpoint: “We find it difficult, if not impossible, to define Hindu religion or even adequately describe it. Unlike other religions in the world, the Hindu religion does not claim any one prophet; it does not worship any one God; it does not subscribe to any one dogma; it does not believe in any one philosophic concept; it does not follow any one set of religious rites or performances; in fact, it does not appear to satisfy the narrow traditional [for traditional, read Western] features of any religion or creed. It may broadly be described as a way of life and nothing more.”
This “guideline” confusing as it can be fails to ascertain whether one is a Hindu or not. To clarify further, the Court introduced the second guideline.
Second Standpoint: Beneath the diversity of Hindu philosophy, the Court found, “lie certain broad concepts which are treated as basic.”
Those broad concepts are: (a) Acceptance of the Vedas as the highest authority in religious and philosophic matters. (b) The great world rhythms. (c) Rebirth and pre-existence. Having pinpointed the “unity” of the creed here, then the Court proceeded to address the final guideline.
Third Standpoint: Addressing the often asked insidious philosophic question as to what is the “ultimate goal of humanity,” the Court answered, “It is release and freedom from the unceasing cycle of births and rebirths….”
Religious literature would call this goal as: SALVATION. But salvation as understood is something pointing to an individual person and not necessarily addressing the collective sense of humanity. Perhaps after recognizing that the Court potentially might open a can of worms, it left the burgeoning issue unanswered by agreeing “there is a great divergence of views ….”
The word “secularism” is often invoked diligently by the caste Hindus when describing the Indian State in a spirit of nationalistic Hinduism, with an underlying implication of the Hindu expansionist quest to absorb other religions. The western definition of “secularism” is when the State and public policies take precedence over religious considerations. In other words, in the West, there is a separation of church and state. But most Indians, including their leaders, have their own self-serving bizarre definitions. One often cited goes like this: “equal treatment of all the religions by the State.” Is that a desirable goal? If it is then how can any State achieve such a goal?
In the Indian context, I suppose the easiest way for the State to treat all religions “equally” would be to “get into” every religion equally and if need be, somehow proclaim all religions are one and a part of Hinduism — therefore making everyone in India a Hindu. This is precisely what is happening in India. Since everyone is a Hindu, the leadership expects a response in kind. It usually shows in an intellectually flawed population which has stamped itself with a bogus notion echoed in the buzzword called sameness. This is an expression erroneously viewed as synonymous with equality.
Under this framed scenario, the very thought of discrimination or even persecution of one religion by another need not arise since we are all the same, that is, Hindus. Obviously, this kind of an argument carries a heavy price tag. When told that India’s sacred constitution exudes an egalitarian system, years of Hindu conditioning have transfixed the populace to acquiesce to any communiqué coming down from the top. Few will ever fathom that India’s egalitarianism is not the same sort we know in a Western sense, but is of an entirely different substance. It is rooted in the infamous caste system, or in a more precise language, the Hindu Apartheid. While the caste system is alive, thriving, and functional, India’s Hindu leaders boast of an Indian democracy, ignoring its pervasive underlying segregation and inequality. This sounds magnificently absurd. Many Indian leaders on one hand enjoy the fruits of being born into an elite caste (while the majority of the population rots at the lowest levels of caste), while on the other hand mindlessly they sing the gospel of equality.
The caste being a substructure of Hindu society, the talk of “equality,” “democracy,” and “secularism” reverberates only to mislead the masses. Not surprisingly, this kind of tactical maneuvering to deceive is clearly evident in the Indian Constitution and conspicuous in the State’s public policy and internal propaganda. While Sikhs, Jains, and Buddhists have already been “secularized” constitutionally, Christians and Muslims are now also in the process of being “secularized” through state-orchestrated propaganda. Many Indian leaders now call Indian Christians and Muslims as “Christi Hindus” and “Mohammadiya Hindus,” respectively. In addition, some provincial state governments inside India have already enacted anti-conversion laws while others are contemplating ensuring the Hindu population doesn’t slide away into something else.
Conclusion
Other amendments of the Bill of Rights in the U.S. Constitution guarantee the American people numerous other fundamental rights. These include protection against government officials who might invade their homes and seize property without legal permission (Amendment IV); protection against being “a witness against himself” in any criminal case or being “deprived of life, liberty, or property, without due process of law” (Amendment V); the right of a person accused of a crime “to a speedy and public trial by an impartial jury” (Amendment VI); and protection against “cruel and unusual punishments” (Amendment VIII). Can the Constitution of India match word-for-word the U.S. Bill of Rights? And, if it cannot, can its intentions at least match those of the U.S. Bill of Rights? If reading Articles 19 and 25 has left anyone with a cause for concern, then the remaining portions of Part III of the Indian Constitution should not come as a surprise. After due consideration, it remains unclear if the Indian Constitution guarantees fundamental rights as is generally claimed, despite the endless rhetoric from India’s leaders, its intelligentsia, and its apologists.
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