“Bill of Rights” in the Constitution of India
Updated
By: G. B. Singh
Introduction
any admirers of India often go
out of the way to depict India as the "world's largest
a "secular" state, which through its constitution guar
human rights to all Indians -- the implication being t
in practice as a matter of routine. Yet, dismaying as
never come across any piece of written information a
Constitution itself, let alone all those enshrined fund
guarantees to its citizens. Coupled with aggressive S
measures" channeled by the Indian government, sev
outside India have fallen prey to the media hype. In
members of US Department of State who upon my in
years ago hadn’t even seen what the Constitution of
alone read it! Our academia-based “India Watchers”
specialists have also dismally failed to undertake this
independently the contents of the Indian constitution
noticed is this: they just parrot out what they pick fr
obviously without checking the facts.
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 the 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;
(b) to assemble peaceably and
without arms;
(c) to form associations or unions;
(d) to move freely throughout the territory of India;
(e) to reside and settle in any part of the territory of India; [and]
(f) deleted
(g) to practice any profession, or to carry on any occupation, trade or
business.
(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
(ii) the carrying on by the State, or by a corporation owned or
controlled by the State, of any trade, business, industry or service,
whether to the exclusion, complete or partial, of citizens or otherwise.
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;
(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.
Explanation I - The wearing and carrying of kirpans shall
be deemed to be included in the profession of the Sikh
religion.
Explanation II - In sub-Clause (b) of clause (2), the reference
to Hindus shall be construed as including a reference to persons
professing the Sikh, Jaina or Buddhist religion, and the reference to
Hindu religious institutions shall be construed accordingly.
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 at best.
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. At this juncture I am reminded of how abrupt the
change is in the narrative of Article 25. Hardly a surprise here however,
but it triggers any thinking person well-read into Hinduism to chart the
similarities that one encounters after careful reading of the Hindu scriptures.
For example in the Bhagavad-Gita, it is not uncommon to see that a
transition from one topic to another is often disconcertingly abrupt. I am
afraid this is clearly the case here at this juncture in Article 25.
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 acknowledge the existence of the Sikh religion.
However, since the issue is the individual religious rights (in Sikhism), the
proper word ought to be "kirpan," and 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
inseparable 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 ….”
Rather than adequately resolving the given problem of “Hindu”
and “Hinduism,” the Court’s interjection actually complicated the matter and
therefore it needed a quick rescue. In searching for the “working formula,”
they found in the person of B.G. Tilak (1856-1920), a fiery politically-
drenched fundamentalist Hindu, who apparently had once prescribed: “the
acceptance of the Vedas with reverence, recognition, of the fact that the
means or ways of salvation are diverse; realization of the truth that the
number of gods to be worshipped is large.” In the end, thanks to the Court,
when all is said and done, it boils down to this: “Hindu” and “Hinduism”
are false terms bounded by the foundational hierarchy-arranged caste,
aided by the doctrines of karma and reincarnation as its supporting outer
boundaries. Inside this rather large hierarchical triangular entity, the
framework is supported by myriad hosts of pillars that tighten and cement
the construction from inside out: These include worshipping an army of
gods and goddesses, incredible loads of superstitions and rituals, yoga,
ayurveda, corruption, immoralities, inflicting human-rights abuses, self-
inflicted psychology guaranteeing brain washing, totalitarian mode of life,
real-politics, and war. The list actually is a long one. It’s not too difficult
to imagine that separating oneself from Hindu conditioning is next to
impossible. If you think you have been let down by India’s Supreme Court
to resolving this matter, then you may be even heading further for a shock:
Hindu politicians and their followers continue to be willfully negligent in their
refusals to add any needed clarity.
Only recently in 2011, there has surfaced a further insight into Hinduism-
-this time the Punjab and Haryana High Court pronounced its verdict on a
case filed by two Sikh petitioners against the misuse of the word “Hindu”
applying on the very personal identity of Sikh people portrayed within the
charter of four named Hindu Code Bills, later enacted as laws: (1) Hindu
Succession Act, 1956; (2) Hindu Marriage Act, 1955; (3) Hindu Adoption
and Maintenance Act, 1956; and (4) Hindu Minority and Guardianship Act.
1956. While denying the petitioners their case, the Court defined Hinduism
as: “Hinduism, as we have been made to understand by scholars and sages
at different times and different ages is not a strait jacket religion; it is a way
of life. It is a ‘Dharma’. Hindus are not one people but many. Therein lies the
beauty of India.” One can see how insufficient and pathetic this definition of
Hinduism is apart from being irrational and illogical.
Like the Sikhs, the Jain community too has been vocal in their denunciation
of Article 25. Recently it has come to my attention that apparently the Jains
sought an understanding from the then Prime Minister JawaharLal Nehru.
In response, Nehru’s Principal Private Secretary, A.V. Pai, (writing for his
boss) penned the followings words for the benefit of Jains, dated January 31,
1950:
“This Article [25] merely makes a definition. This definition by
enforcing a specific constitutional arrangement circumscribes that
rule. Likewise you will note that this mentions not only Jains but
also Buddhists and Sikhs. It is clear that Buddhists are not Hindus
and therefore there need to be no apprehension that the Jains are
designated as Hindus. There is no doubt that the Jains are a different
religious community and this accepted position is in no way affected by
the constitution.”
Again and hardly a surprise here to see how illogical and evasive the above
clarification is! Why the educated Hindus placed high in political positions
speak from both sides of their mouths? Why can’t they simply amend the
controversial Article 25 to reflect the religious rights truly? Why would they
continue to exercise deceptive means to declare non-Hindus as Hindus, and
yet never define for us as to what Hinduism is in the first place?
In August 2005, continuing with the ongoing issue of personal religious
identities affecting the Jains per se, the India Supreme Court refused to
grant any relief to religious minority communities (in this case Sikhs and
Jains) from being bracketed under the label of Hindu.
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 intrude into every religion equally and if need
be, somehow proclaim all religions are one and inseparable 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. A number of 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
right to bear arms (Amendment II); 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.
P.S.: The above article is an updated version from two articles originally
published in:
1. August 2009 issue of New English Review, an online magazine.
2. March 11, 2112 issue of Eurasia Review under the web address:
http://www.eurasiareview.com/11032012-bill-of-rights-in-the-constitution-
of-india-analysis/
G. B. Singh is the author of Gandhi: Behind the Mask of Divinity
(Prometheus 2004) and Gandhi Under Cross Examination (Sovereign Star
2009).
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