UPSC Preparation: Right to religion and State’s role

Introduction

All the countries in the world are more or less multicultural societies with heterogeneous identities. As we witness the spread of democracy what becomes necessary for the survival and success of democracy in these multicultural, multi religious, and multilingual societies is the presence of the secular State. Although the definition of secularism in the West means separation of state and Religion while in India secularism means every religion is treated equally. Yet the basic fact remains true for both the definitions that State should be neutral and should not favor one religion over the other. Now the question is how far a secular State should interfere?

 Secularism in The West

France practices an active form of secularism called Laïcité, which not only prohibits public exercise of religion but also actively separates public institutions from religious symbols, expressions etc. The idea of secularism in France is embedded in the republican ideology of liberty, Equality and Fraternity. Banning of head scarfs and other religious symbols is therefore a way of upholding these ideas. However incidents like killing of journalists of ‘Charlie Hebdo’  and refusal of many students to observe silence in the schools raises an important question that whether this view of secularism has been able to promote the idea of equality, liberty and fraternity or has marginalized the minority community.

Secularism in India

Indian Constitution gives Right to Religion as a fundamental right (under Article 25,26,27 and 28  )but reserves the right to regulate the religion for the purpose of maintaining public order , law  and morality. It not only provides freedom to practice one’s own religion but also prohibits public institutions like schools in imparting any religious instructions. Thus it is a mixture of both world’s understanding of secularism. There are Hindu laws ,Muslim personal laws but these are subject to law , public order and health. Time and again State as well as Judiciary has intervened to bring social reforms ,eradicate evil practices .For example , in 1998 High Court upheld the Haryana legislature’s order of disqualifying persons having more than two children on the basis of health for women and social reform and ruled that it does not interfere with the right to profess, practice or propagate the religion of one’s choice.

Other recent examples are ban of slaughter of animals in Hindu Temples By Himachal Pradesh High Court. Ban on cultural festival called “jallikattu” of South India. Prohibiting wearing of Burqa during medical examination etc. However the recent judgment of Rajasthan High Court over Jain practice of “Santhara” in the In Nikhil Soni vs Union of India , has raised the question of encroachment of fundamental right and the hidden question of minority rights. In the above case the petitioner argued that the practice of   ‘Santhara ‘  or ‘Sallekhna’( in which followers of Jainism ,in order to attain ‘Moksha’ vows to fast until death once he/she realizes that the purpose of his /her life has been served ) goes against the Fundamental right to life as well as section 306 and 309 of Indian penal code which makes abatement to suicide and attempt to suicide a punishable offence.

According to the petitioner, this practice has become a way to get rid of the elderly people as many  time these are forced upon them equating it to the practice of ’Sati’. Therefore it is the duty of the state to protect them.

The High Court took the stand that since  the respondent failed to show that ‘Santhara’ is  an essential part of Jain’s religion therefore the State should take care to prevent its practice.

But if we examine the philosophy of Jainism, then ‘Nonviolence’ emerges as it’s fundamental tenet. And Santhara revolves around this basic philosophy of non-violence in which the practitioner decides to give up food and water gradually in order to do least harm to surrounding ecosystem. This  extreme  act of non-violence leads to the salvation. What makes this issue more complicated is that Jains have been given minority status prior to General Elections and now this is seen as attack on minority rights.

Though Constitutionally India is a secular state but religion and politics are very closely linked in india. We can see political leaders preaching religion and religious leaders appealing to masses on political issues. Ban on beef in Maharashtra can be an issue of animal rights but it has been linked to Hindu  religion that the majority of Indians follow. Political identities and religious identity often overlap in such situation. There are number of pressure groups, interests groups based on religion for example –Vishwa Hindu Parishad , Bajrangdal etc. which are affiliated or associated to political parties.

The Census 2011 data on Population by Religious Communities released recently and the hue and cry over increase in population of Muslim Community and the dip in Hindu Population below 80% shows this overlapping character. While the earlier government desisted from releasing such data , this time it coincide with assembly elections in three states (Bihar, West Bengal and Assam ) , with considerable Muslim population.

Conclusion

Preamble of India establishes the ideals which the State needed to pursue i.e to secure it’s people liberty of thought , expression ,belief , faith and worship. With the 42^nd Amendment Act word “Secular” was added in the Preamble making it the core ideal of the state. Here secularism in Indian context means both neutrality (Dharm nirapeksh ) and equality of religion (sarvdharm  sambhav ). Having long tradition association of religion with politics (religious symbols ,festivals were invoked by national leaders during freedom struggle) a strict separation is not possible. Also Indian society needs state intervention to bring social reforms and protect it’s diversity. There is need to balance the rights of individuals and groups and the State’s right to interfere keeping in mind the religion – polity relationship and the consequences for the democratic political system.