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- Special issues
Delving into her colourful personal history of moving from Pakistan to India as a refugee at a young age, senior advocate and human rights activist INDIRA JAISING poignantly describes why secularism is such an integral component of the idea of India and warns that the recent spate of state laws outlawing interfaith marriages whittle away at this foundational principle.
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I ALWAYS describe myself as one of "Midnight's Children" – obviously borrowed from Salman Rushdie's book title. But what do I mean by it? One obvious reference is to my age: I was born at a time when India was about to be partitioned and awake to her freedom from colonial rule. But there are other meanings too, which I will explain.
Growing up, the values of the freedom movement got ingrained in us. It was almost in the very air that we breathed. There are other deeper meanings as well, one of which is my identity as a refugee, displaced from Sindh. Ours was a Hindu family that chose to migrate to what was then known as Bombay.
When India was organised into states along linguistic lines, we Sindhis found ourselves without a linguistic state. Yet those were heady days, and the loss of a State did not bother us.
Something about being a refugee gave us a unique status and strength, the will to fight and persevere, to strike out on a path of one's own, with no role models to follow. The loss of our homeland did not bother us; what mattered was our identification with the values of the freedom movement.
Here, I would like to make a similar observation about the late Ram Jethmalani, who, too, was a lawyer and a Sindhi refugee. I had observed that he turned his refugee status to his advantage. We were often on opposite sides of a legal argument, but one thing we shared in common was our displacement from our common village, and a will to make the new India our home.
Love of our country came not from our religious affiliation but from its secular landscape, which allowed us to be the people we were.
Recently, I read an article by Salman Rushdie, reflecting on the fortieth anniversary of his celebrated book. In one of its closing sentences, he indicates that the India of today is not the India he wrote about. He did not elaborate; I wish he had, but I know what he meant. I, too, feel that the India of today is not the India I grew up in; it is on the cusp of becoming non-secular.
When I started out as a lawyer, given my foundational values, I thought that all I had to do to make poverty disappear was work for the social and political rights of the people, and we would create a land of prosperity. Today, I know better. I am spending what is surely the end of a long career in law, defending my own civil and political rights, and the rights of human rights defenders in our country.
All this is attributable to the creeping loss of secularism in this country. I have said it before, and I will say it again: we have mastered the art of defeating law by law and live in a state of lawlessness. All the legislature has to do is define 'state government' to mean 'union government' and 'union government" to mean 'the President' during President's rule. It can, by law, define 'the government' to mean the 'Lieutenant Governor'.
When it comes to secularism, though, there is now not even a need to amend anything. All that needs to be done is the selective prosecution of those who stand by secularism under the law of sedition. Conflate the 'nation' with the 'government', and any dissent or disagreement with State policies make one seditious.
Let us elaborate on the constitutional vision of secularism a little further in order to understand what we mean by 'the Idea of India' being under threat.
Secularism basically denotes a separation of the Church and the State, where the Church stands for organised religion or religious institutions. This is not to say that secularists are atheists, or irreligious; whether they profess and practice any religion is immaterial. What matters to them is the belief that the practice of religion is not to be mixed up with the affairs of the State.
Also read: Constitution, Secularism and Minister.
A secular state must respect the right to freedom of religion more rigorously than any other state, for the very idea of secularism is to allow people to follow their conscience in matters of religion equally. Our own guarantee of Freedom of Religion reflects this very adequately in Article 25 of the Constitution of India.
Ours is not a theocratic State – there is no state religion, though recent policy decisions that privilege Hindus over others, prime among them being the 2019 amendment to the Citizenship Act of 1955, give the impression that we are moving in that direction.
The Citizenship Amendment Act is premised on the understanding that India is a Hindu homeland where Hindu refugees alone are welcome. It is here that we have to remind ourselves that at the height of communal violence that marked the Partition, our Constitution makers did not choose to base citizenship on religion. Then why are we now offering a fast track to citizenship only to non-Muslims, and excluding India's largest religious minority?
We must understand that secularism and the right to freely practice and propagate religion go hand in hand with each other. With it now in danger here in India, we are heading down the slippery path of becoming a de facto theocracy.
We may not have blasphemy laws in India, but the law of sedition has virtually replaced it in our country. Selective prosecution in the name of 'disrupting communal harmony' disproportionately criminalises minorities and leaves politicians of the Hindutva variety free to spread hatred.
India adopted Gandhian values and envisioned a secular Constitution which respects all religions. Gandhiji, in a speech on November 15, 1947 said:
"I maintain that India belongs both to Hindus and Muslims. You may blame the Muslim League for what has happened and say that the two-nation theory is at the root of all this evil and that it was the Muslim League that sowed the seed of this poison; never-the-less I say that we would be betraying the Hindu religion if we did evil because others had done it."
In speeches and radio broadcasts, Gandhi told his fellow Hindus:
"It is your prime duty to treat Muslims as your brothers, whatever may happen in Pakistan."
State legislation is meant to be secular, and no law can prefer one religion over another. The separation of State and Religion is expressed by the principle that the State must not interfere with religious organisations except to the extent of regulating maladministration, and conversely, these organisations do not interfere in matters of the State. Yet, in the last few years, we have seen a definite privileging of the Hindu religion where instrumentalities of the state lead in collecting money to fund temples and reconstruct them with no accountability at all.
As has been mentioned earlier, the most deadly erosion of secularism that I have seen is in the form of selective prosecution of minorities and non-prosecution of Hindu political leaders who spread hatred.
A prominent example is that of BJP's Kapil Mishra, now a respectable litigant in the Supreme Court of India. Their power is manifested in the fact that a judge of a High Court who dared to question his non-prosecution was transferred to a different High Court. Such selective prosecution does not sit well with our declared secularism.
As part of its commitment to secularism, India maintains separate personal laws, the theory being that until all religious communities together agree to be governed by a common code, their separate religions' laws would continue to govern them in matters of marriage, divorce, succession to property, adoption and child custody.
Where does this leave us in relation to inter-religious marriages? The Special Marriage Act, 1955 enables such marriages without loss of religion of either party. But that is not the only route to the marriage of two people who belong to different faiths. One of the two can, for the purpose of the marriage, convert to the faith of the other and marry under religious law. This is an individual choice which a person must be allowed to make if their right to religious freedom is truly respected.
Understandably so, Article 25 of the Constitution guarantees to the citizens of India, the freedom of conscience and free profession, practice, and propagation of their religion. In this context, a reading of Article 25 and its marginal note, that states "freedom of conscience and the free profession, practice and propagation of religion," would lead to the conclusion that the freedoms of conscience and religion are to be considered interchangeable, in as much as both conscience and religion are something that an individual defines for themselves. This is in keeping with the secular outlook of the framers of the Constitution.
Yet in the last few years, we have seen the enactment of specific laws targeting such marriages. Hadiya, a former Hindu who converted to Islam and married a Muslim, went through prolonged litigation until the Supreme Court finally declared that she was free to convert to another religion and marry the man of her choice, in its judgment in the case of Shafin Jahan v. Ashokan KM, (2018) 16 SCC 368.
The arguments in court were amazingly bigoted – it was argued on behalf of her parents that she was weak of mind, and had been "brainwashed" to marry the man she chose. The judges, in an open, packed court, asked her what she wanted and she said, in an unforgettable moment, "I want my freedom."
The Indian legislature arguably lacks the competence to legislate anti-conversion laws at all. Nothing in the three lists of legislative powers in Seventh Schedule of the Constitution gives them such powers. The only power to restrict the practice of religion comes from Article 25 itself – namely on the limited grounds of public order, morality and health.
The most recent example of restrictions based on health would be those placed on religious places of worship and related gatherings, in light of the COVID-19 pandemic.
Recognising that in India, several social practices that need reform would be linked with religion, the Constitution empowers the State to enact legislation for social reform through Article 25(2)(a), enabling it to make laws relating to economic, financial, and political activities which may be associated with religion.
Laws banning the practice of Sati, for instance, could surely be made in the interest of morality even though the practice itself was linked to religious beliefs.
The term 'public order' in Article 25 must be read with morality and health. When so read, they must mean the public policy of the Constitution of India as expressed in its Preamble, and its chapters on the Directive Principles of State Policy and Fundamental Rights. Even if public order is to be read in its ordinary sense, one can think of examples of religious activity which could be restricted on the ground that the practice of such religion would lead to public disorder. One could, for example, prevent a procession with arms – as was sought to be done in the Anand Margi case (Acharya Jagdishwaranand Avadhuta and Ors. V. Commissioner of Police, Calcutta and Another, (1983) 4 SCC 522) – in the name of public order.
The question, however, is: can the State prevent a person from adopting another religion on the ground of 'public order'? The obvious answer would be no, for that would defeat the very right to religion itself. The right to propagate logically includes the right to convert.
Indeed, the word 'convert' is misplaced in the context of the choice of religion for the purpose of marriage. An individual actively 'adopts' another religion when choosing to marry a person from a different religion under that religion's personal law. This, too, is a freedom that is guaranteed to us all. This is the logic of preserving personal laws, and so long as they exist, there can be no bar on adopting another religion for the purpose of marriage.
I believe that the Supreme Court's erred in its judgment in the case of Rev. Stanislaus v. State of Madhya Pradesh, AIR 1977 SC 908, by wrongly holding that the right to propagate religion does not include the right to convert. While the words 'to convert' may refer to the person performing the ceremony, the more appropriate question would be: does a person have a right to adopt another religion? The answer can only be a clear and categorical yes. The only circumstance when adoption of a religion would be unconstitutional is when a person adopts a religion for the sole purpose of getting rid of an inconvenient wife or marrying multiple wives. It has been so held by the Supreme Court in Smt. Sarla Mudgal and Others. v. Union of India, AIR 1995 SC 1531.
Analysing the anti-conversion laws in this context, it is important to highlight the specific aspects of the Acts that are a violation of the secular foundations of this nation.
Ironically named as 'Freedom of Religion' Acts, the prima facie goal of such Acts seems to be the prevention of forceful conversions.
However, particular clauses across such legislations seem to betray the values of secularism and fail to recognise an individual's right to relinquish their religion and adopt another faith.
All states define conversion as 'renouncing one's religion and adopting another;' the purpose of these Acts is to prevent such conversion through force, through inducement (as mentioned in the Odisha Freedom of Religion Act, 1967) or allurement (as mentioned in the Madhya Pradesh Freedom of Religion Ordinance, 2020), or by fraudulent means. Both words don't have any legal definition, and some states (Himachal Pradesh, Uttarakhand, Uttar Pradesh) attempt to define them as:
"Offer of any temptation in the form of any gift or gratification or material benefit, either in cash or kind or employment, free education in reputed school run by any religious body, easy money, better lifestyle, divine pleasure or otherwise."
This definition targets in an unlawful manner, the Christian community who run "reputed schools and provide free education to their beneficiaries."
There can be nothing wrong in a conversion that results in the person adopting the religion from getting the benefits that the other co- religionists avail of. While the definitions of inducement, allurement and fraud are similar across the board in all the Acts, the definition of "force" in Odisha, among other states, is extended to include the "threat of divine displeasure or social excommunication."
Given that the ostensible purpose of these Acts is the protection of an individual's right to religious freedom, it is strange that it criminalises what some people consider to be an essential part of their religion, namely "divine displeasure" and "social excommunication." The targeting of "divine displeasure" as unlawful is a direct criminalisation of the beliefs of a religious community, and amounts to a denial of the right to practice that religion.
These laws are liable to be challenged on the ground that they violate the guarantee of Article 25.
Additionally, the Acts in Arunachal Pradesh and Jharkhand seem to be targeted at tribal communities, preventing them from adopting the religion of their choice. This defeats the purpose of Article 25, which is to protect the right of citizens to adopt a religion of their choice.
Excerpts from some of these Acts read as follows:
"'Indigenous faith' means such religions, beliefs, and practices including rites, rituals, festivals. Observances, performances, abstinence, customs have been found sanctioned, approved, performed by the indigenous communities of Arunachal Pradesh from the time these communities have been known and includes Buddhism as prevalent among the Monpas, Membas, Sherdukpens, Khambas, Khamptis and Singphos, Vaishnavism as practiced by Noctes, Akas and Nature worships, including worships of Donyi-Polo, as prevalent among other indigenous communities of Arunachal Pradesh."
"'Indigenous faith' means such religions, beliefs and practices including rites, rituals, festivals. Observance, performances, abstinence, customs as having been found sanctioned, approved, performed by the Scheduled Tribe communities of Jharkhand from the time these communities have been known."
These laws are targeted at preventing tribals from adopting another religion, and hence contain a definition of what "indigenous faith" is. It is worth recalling, though, that the Hindu Marriage and Succession laws all define 'Hindus' to include Scheduled Tribes and Castes.
It is also significant to note that there are parts of the Himachal Pradesh Freedom of Religion Act, 2019 that attempt to define religion. This is something that the Constitution itself does not do. Section 2(i) of the Act reads:
"Religion means an organised system of faith, belief, worship or lifestyle, as prevailing in India or any part of it, and defined under any law or custom for the time being in force."
Apart from flying in the face of the Constitution's secular ideals, this definition fails to account for faiths that may not be organized. It also introduces the concept of 'lifestyle' as a religion for the first time. This is a definitive giveaway that alludes to the debates on 'hindutva' being a way of life, and perhaps a telling sign of the times to come.
Perhaps the most significant aspect of the Freedom of Religion Acts are the clauses that lays down conversion by marriage or for the purpose of marriage as among the grounds for unlawful conversion.
Believing in the institution of marriage is a deeply personal choice, as is the decision to convert to the religion of one's partner. Those who wish to marry under personal laws must undergo religious conversion prior to the marriage ceremony or its registration. However, by outlawing "conversion from one religion to another religion by….marriage," the State is seeking to prevent all conversion by marriage. This implies that anybody who converts for the purpose of marrying a person of another religion would be committing a crime. The Himachal Pradesh Freedom of Religion Act expressly refers to "marriage for the sole purpose of conversion," directly questioning the bona fides of the marriage.
In an affidavit filed before the Allahabad High Court, the state of Uttar Pradesh has stated that conversion to satisfy the requirements of personal laws is forced conversion, implying that no inter-faith marriages can take place under personal laws in the state. By adding such clauses that specifically deal with interfaith marriages, the law effectively restricts the couple's choice to the Special Marriage Act, 1954.
Is this not an infringement of one's right to choose their religion as well as their right to marry a person of their choice, in the manner of their choosing, especially in a country with a plural legal system?
While the women's movement in India has always held that the threat of a Uniform Civil Code would victimise minority communities and force them to abandon their personal laws, we did not anticipate that this agenda could be achieved in another way – by disabling the right of a person from adopting another personal law, thus compelling all religious communities to remain within their own fold.
Far from imposing a Common Civil Code, the State is now creating watertight personal laws, where there is no possibility of moving from one religious system to another, not even for the purpose of marrying a loved one. Hindutva has found yet another way of propagating itself, by confining communities within their own religious fold, and not permitting them to intermarry.
End note
I conclude, as I began with, my with my refugee status of origin. Those of us who believe in the founding values of this nation are now considered anti-national. Human Rights defenders are the new minorities of India. Sometimes when I hear Hindutva groups saying "Go back to Pakistan", I begin to wonder if they are perhaps referring to people like me? Are we human rights defenders, the new refugees of India?
The secular Constitution is endangered by the ruling party and its vigilante groups; it is up to the legal community and an informed citizenry to defend that precious Constitution.
(Indira Jaising is a senior Supreme Court lawyer and the founder of The Leaflet. The views are personal.)
