LAW, RELIGION AND COLONIALISM

AN ABSOLUTE SEPARATION OF RELIGION AND POLITICS

SUBMITTED BY: ARVIND SRINIVAS I.D. NO: 1555 IV YEAR, B.A., LL.B. (HONS.) DATE OF SUBMISSION: 3RD OCTOBER, 2012

NATIONAL LAW SCHOOL OF INDIA UNIVERSITY, BANGALORE

1. Introduction For centuries now, from the time of the crusades and probably even before that, religion has been a powerful tool in the hands of those who operate in the public sphere. A powerful unifying factor, it brings together different classes of people by giving them a common identity and hence becomes a potent tool in the hands of opportunistic politicians. In order to nullify the misuse of religion, there needs to be a law that specifically prohibits such use.

2. Hypothesis There are provisions of law, which are not violative of the freedom of religion, that deal with the misuse of religion and religious symbols to further a candidate's cause in an election but these provisions have largely been ignored or have been interpreted away by the judiciary and hence there needs to be an amendment to the existing law or an introduction of a new law in order to enforce the intention underlying the current provisions.

4. Scope and Limitations The Aim of this paper is to study the relationship between the fundamental right to freedom provided by the Constitution and any potential ban imposed upon the use of religion in politics. As such the scope of the paper will be to examine the scope of this right, the existing laws in relation to the use of religion in politics and the suggestion of a ban that will be both Constitutional and an improvement on the existing provisions of law.

5. Research Questions The following research questions will be answered in the paper: 1) Why is there a need to impose such a ban? 2) What is the scope of the fundamental right to freedom given in Articles 25 and 26 of the Constitution? 3) What are the existing provisions of law in this regard? 4) What amendment or new legislation can be passed to impose a ban which is constitutional and effective at the same time?

6. The Need for Separation 6.1. Modernisation Theory Eminent social theorists such as Durkheim, Weber, Freud, and Marx agreed that as individuals and

societies become more modern, they would become less religious. Flaws in the predictions of modernization theorists may be due to a faulty theory of modernity, which assumed that the way modernity emerged in Western Europe was prototypical for how it would emerge elsewhere. Instead, it seems that there are multiple modernities as the history and sociology of each society shapes the way modernity emerges. In particular, the sequence in which modern processes develop in a society may influence the form modernity takes.1 6.2. Resurgence of Religion It may be modernization and the spread of democracy that has caused the increased presence of religion in politics. Theorists suggest that increased religiosity may be a response to the disorienting changes that accompany modernization. People may seek stability and comfort in religion as the world around them shifts.2 Other scholars suggest that the resurgence of religion does not indicate a revival of tradition, but rather embodies a dynamic response to the modern world. As secular ideologies such as communism lose legitimacy, new religious movements may be an effective way to mobilize people against the disruption of traditional social forms by modern phenomena such as market forces and authoritarian states.3 The increased presence of religion in politics may also be related to the spread of democratization, which broadens the scope of political participation. As more people have a voice in the political process, or due to the diffusion of democratic norms believe they have a right to such a voice, formerly private religious beliefs may take on political significance (Snyder & Beck, forthcoming 2010). Thus in the new consensus, increased religiosity may be the result of modernization rather than in spite of it. 6.3. Effect of the Resurgence Aspects of some religious beliefs may inherently be in tension with world polity norms, which are characterized by individualism, universalism, rationalization and world citizenship. For example, for some religious citizens, religious ethics based on the value of purity and community may supersede those based on individual rights. Loyalty to ones group and obedience to authority may trump ideals of universalism and equality.4 In addition, belief in a higher power that transcends time and space may be in tension with belief in
1J. Elshtain, Religion and Democracy, Journal of Democracy, Volume 20, Number 2, April 2009 2F. Fukuyama, Identity, Immigration, and Liberal Democracy, Journal of Democracy, Volume17, April 2006, p.10 3Supra note 1. 4Meyer, Boli,Thomas & Ramirez, World society and the nation-state, The American Journal of Sociology, 103(1), 1997, p.144.

human agency and the viability or desirability of rational, technical progress. Faith in absolute truth may also be contradictory to adherence to the process of democracy, which often privileges fair procedures over consequentialist truth claims. For example, the belief that a particular behavior is sinful in absolute terms may make it difficult to accept a law allowing it, even if the majority in a democracy judges it desirable to do so.5 Similarly, the liberal democratic commitment to protection of minorities may be challenged if the minorities are believed to be in violation of religious principles that supersede the value of pluralism. Therefore some religious political movements may not share world culture principles of individualism, universalism, and in particular, rationalization and disenchantment. For example, the Indian Hindu nationalist party BJP has been accused of being hostile to Muslims. 6 Most famously, transnational Islamic movements may question the legitimacy of the secular nation-state and call for a government based on Islamic law. Most importantly religion has an effect on political judgment. The consideration changes from who is the best person to represent the needs of the people to who belongs to my religion. Religion and representation can go together. However there are two arguments against such representation. The milder argument, especially in the Indian context, is that a political force exists which is capable of moving millions of people, yet it is within a democratic political system that does not contain the institutional means to articulate and aggregate demands concerning religious policy, nor does it even provide an adequate political vocabulary to engage in dialogue. When the religious issue gets mentioned at all, it is articulated in a pejorative and polemical manner which only adds further intensity to the problem. The second more hardline argument is that true secularism can only be achieved when religion is not seen anywhere in the public sphere. In other words secularism is achieved when the separation goes much deeper than just that between church and state. 6.4. The Indian Scenario India is virtually alone among the postcolonial states in Asia to have adopted religious neutrality as a key feature of its constitution and the cornerstone of the strategy for nation-building. During four successful decades following independence, the policy appeared to have paid off, securing for India both stability and democracy, whereas neighbouring countries in which religion formed part of the establishment of the state fared less well. India's achievements on this count have been noted with admiration.7
5Id 6A.Engineer, BJP and muslim factor. Economic and Political Weekly, 35(45), 2000, p. 3922. 7S.K. Mitra , Desecularising the State: Religion and Politics in India after Independence, Comparative Studies in

For Nehru, the religious policy of the state was essentially a means to move towards the larger objectives of nation-building and economic development. At India's independence Nehru was the quintessential modemiser. For society as a whole, his role model was the renaissance man: an inquisitive, rational, and cultured person who balanced materialism and aesthetic sensibilities; a believer in scientific progress who humanised the harsh angularities of the scientific method with the gentle coating of a countervailing mystical-romantic faith in historical evolution and continuity. Typically, Nehru construed religion in terms of its social consequences. This understanding then got translated into social policies for equal rights, a uniform civil code, positive discrimination, spread of education, and removal of superstition. The constitution of India bears ample evidence of Nehru's thinking on religious and moral matters. Individual freedom of religion is guaranteed as a fundamental right in Article 25(1) of the Constitution8. The use and understanding of religion in India today is completely different. Religion is no longer a means to social change. Instead it has become the foundation for opportunistic identity politics. Political parties such as the BJP and the Shiv Sena have used religion to attain power with little regard to the damage that such fundamentalism will cause to the democracy itself. Religion can, thus, no longer be ignored or be glossed over as a serious issue. There are laws in India currently that have the potential to put a stop to this. The next section will examine these laws.

7. The Right to Religion 7.1. What is Religion? The Constitution uses but does not define the expressions religion and religious denomination and therefore the courts have found it necessary to explain the meaning and connotation of these words. The Supreme Court has observed that: In the background of the provisions of the Constitution and the light shed by judicial precedent we may say that religion is a matter of faith. It is a matter of belief and doctrine. It concerns the conscience, i.e., the spirit of man. It must be capable of expression in word and deed, such as worship or ritual9 7.2. Right to Religious Freedom Article 25, Constitution of India provides the right to freedom of religion:
Society and History, Vol. 33, No. 4 (Oct., 1991), p. 755 8 Id 9 SP Mittal v Union of India, AIR 1983 SC 1

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 freely to profess, practice and propagate religion. (2) Nothing in this Article shall affect the operation of any existing law or 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; (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 to be included in the profession of the Sikh Religion Explanation II In sub clause (b) of clause 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. Interpreting the constitutional provisions relating to freedom of religion the Supreme Court has observed that the right to religion guaranteed under Articles 25 & 26 is not an absolute or unfettered right; they are subject to reform on social welfare by appropriate legislation by the state. The Court therefore while interpreting Article 25 and 26 strikes a careful balance between matters which are essential and integral part and those which are not and the need for the State to regulate or control in the interests of the community10 7.3. Nature of the Right There have been numerous other rulings explaining the scope and connotation of the religious liberty provisions in the Constitution. The SC has held that Articles 25-30 embody the principles of religious tolerance that has been the characteristic feature of Indian civilization from the start of history. They serve to emphasize the secular nature of Indian democracy which the founding fathers considered should be the very basis of the Constitution 11 Freedom of conscience has been held to connote a person's right to entertain beliefs and doctrines concerning matters which are regarded by him to be conducive to his spiritual well being.12 7.4. Religious Practice and Propagation 10AS Narayana Deeshitalyu v State of Andhra Pradesh, (1996) 9 SCC 548. 11Sardar Suedna Taiiir Saifiiddin v State of Bombay, AIR 1962 SC 853.
12Ratilal Panachand Gandhi v State of Bombay, AIR 1954 SC 388

To profess a religion means the right to declare freely and openly one's faith 13. Religious practices or performances of acts in pursuance of religious beliefs are as much a part of religion as faith or belief in particular doctrines.14 The expression matters of religion in Article 26 has been interpreted to extend to acts done in pursuance of religion and covers rituals, observances, ceremonies and modes of worship.15 What constitutes an integral or essential part of a religion or religious practice is to be decided by the courts with reference to the doctrine of a particular religion and includes practices regarded by the community as parts of its religion16. The right to profess, practice and propagate religion does not extend to the right of worship at any or every place of worship so that any hindrance to worship at a particular place per se will infringe religious freedom.17 Under Article 25 to propagate religion means to propagate or disseminate his ideas for the edification of others and for the purpose of this right it is immaterial whether propagation takes place in a church or monastery or in a temple or parlour meeting. 18 The most relevant interpretation of the court for us would be that a common burden which is imposed on all does not violate the right of a religious denomination.19

8. Statutory Provisions Prohibiting Use of Religion Any statutory provision which prohibit the use of religion will be constitutional under Article 25 (2) of the Constitution. 8.1. Disqualification for Election Under the election law of India contained in the Representation of the People Act 1951 20 a person guilty of the following offences relating to religion may be disqualified for a period of six years: (a)Representation of the People Act 1951, Section 125 (using religion for electoral gain); (b)Indian Penal Code, Sections 153-A and 505 (offences against religion); (c)Religious Institutions (Prevention of Misuse) Act 1988 (misusing shrines for unlawful activities); (d) Places of Worship (Special Provisions) Act 1991 (distorting nature of particular of shrines). 8.2. Invalidation of Winning Candidate's Election
13Punjab Rao v DP Meshram, AIR 1965 SC 1179 14Ratilal Panachand Gandhi v State of Bombay, AIR 1954 SC 388. 15Jagannath Ramanuj Das v State of Orissa, AIR 1954 SC 400; Dargah Committee v Husain AH, AIR 1961 SC 1402 16Seshammal v State of Tamil Nadu, AIR 1972 SC 1586 17Ismail Paruqi v Union of India, (1994)6 SCC 360. 18Commissioner, Hindu Religious Endowments, Madras v Lakshmindra Thirtha Swamiar of Sri Shirur Mutt, AIR 1954 SC 282. 19Govt. of Tamil Nadu v Ahobila, AIR 1987 SC 245. 20Section 8

The Representation of the People Act 1951 also prohibits use of religion and religious symbols with a view to promoting an aspirant's candidacy for a public election or for adversely affecting the election of another such candidate. The Act empowers the High Courts to declare the election of a winning candidate to be void if he commits, inter alia, a corrupt practice.21 Indulgence in any of the following acts either for the furtherance of a candidate's election or for prejudicially affecting another candidate's election will be corrupt practice under the Act22: (a)An appeal to vote, or refrain from voting, for any person on the ground of his religion, race, caste, community or language (b)Use of or appeal to religious symbols, unless specifically allotted under the Act (c)Promoting or attempting to promote enmity or hatred between different classes of citizens on grounds of religion, race, caste, community, or language (d)Propagating the practice or commission of sati or its glorification as defined in the Commission of Sati (Prevention) Act 1987 Notably, indulgence in any of these acts will be regarded a corrupt practice, if It is indulged in23: (i) By the candidate himself; (ii) by his agent; or (iii) By any other person with his or his agent's consent 8.3. Judicial Interpretation Various symbols used in elections and statements made in election speeches on different occasions have been examined by the courts to determine if they were within the meaning of corrupt practice as defined by Section 122 of the 1951 Act. 8.4. The Use of Religious Symbols Symbols have a powerful effect on people. Combined with the context that they are displayed they can multiply the effect of the speech exponentially. They can also form a rallying point for disruptive forces. As such their use should be strictly regulated. The Courts have held that projecting the duly allotted star symbol as Dhruv did not amount to corrupt practice 24. Depicting the allotted symbol of a rooster as a sacred bird chirping that if she was not served sons of man will suffer eternal miseries was held to be symbolic of a religious appeal. 25 Ridiculously enough, the
21Section 100 22Section 122(3) 23Section 122(3), (3A), (3B). 24Ramanbhai v Dabhi, AIR 1965 SC 669 25Shubh Nath v Ram Narain, AIR 1960 SC 148

symbol of Om used in an election was held to have high spiritual efficacy but was of no religious significance.26 8.5. Use of Religious Terms Like religious symbols , certain religious terms and all the connotations that they carry are powerful influences that are often used to gain votes. The Courts have again been lenient in interpreting the use of these terms. The terms Hindu and Hindutva have more than a mere religious connotation and did not, therefore, by themselves fall within the scope of corrupt practice as envisaged by the election law of 1951; and promising to establish a Hindu state in this sense could be at best a pious hope.27 An appeal by the NRI Sikhs to vote for the Panth was not a corrupt practice, since the word seemed to be referring to a particular party, though etymologically it could mean the Sikh religion28. 8.6. Other Religious Claims A statement by a Muslim candidate that his mother was a Hindu was held not to be an appeal to religion29. A claim by a Muslim candidate that he was better than his adversary as he was opposed to any interference with the Shariat law while his adversary belonged to a party which supported changes in that law was deemed a corrupt practice30. The allegation by a Muslim candidate that a Hindu-dominated party was anti-Muslim and a Muslim party was anti-religion was held not to amount to an appeal in the name of religion.31 8.7. Judicial Thinking The observations made by the courts in some cases throw light on their general thinking about the meaning and scope of appeal to religion as a corrupt practice under the election law. In one of these cases a Supreme Court judge observed that it would not be an appeal to religion if a candidate is put by saying vote for him because he is a good Sikh or he is a good Christian or he is a good Muslim, but it would be an appeal to religion if it is publicized that not to vote for him would be against the Sikh religion or against Christian religion or against Hindu religion, or to vote for another candidate would be against a particular religion. It is the total effect of an appeal that has to be borne in mind in deciding whether there was an appeal to religion as such or not. The differentiation is ridiculous. Either way the candidate is asking for a vote based on religion. This is what needs to be prevented32.
26Jagdeo Sidhanti v Pratap Singh, AIR 1965 SC 183. 27Manohar Joshi v Nitin Bhaurao Patil (1996) 1 SCC 169; Ramesh Yeshwant Prabhoo v Sim Prabhakar Kuntc AIR (1996) 1 SCC 130; Bal Thackray v. PK Kunte (1996) 1 SCC 130 28Kultar Singh v Mukhtiar Singh AIR 1965 SC 141 29Abdul Hussain v Shamsul Huda AIR 1975 SC 1612 30ZB Bukhari v Brij Mohan Mehra AIR 1975 SC 1788 31Ebrahim Sulaiman Bait v MC Mohammad AIR 1980 SC 354. 32Shubh Nath v Ram Narain AIR 1960 SC 148

In another case a Bombay High Court judge observed that the sentence garva se kaho Hindu hain (say with pride we are Hindu) by itself would be innocent. The judge further stated that it is a sentence the sentiments of which are highly laudable and shared by all right-minded citizens of India. He went on to say that there can be no doubt that the race and religion of Hindus has within it great virtues and one of the greatest is its tolerance, love and acceptance of all other races and religions. However, he said, even a sentence as innocent and laudable as above can be converted into a corrupt practice. If such a sentence is made at an election time with the intention of furthering the prospect of election of a candidate or prejudicially affecting the prospect of another on the ground of religion, caste and/or community, it would become n corrupt practice. This would necessarily depend on the context in which it is made, the context of the speech itself and to a certain extent the manner in which it is said and emphasized. This is a better judgment to give out, although it could have done without the normative approval and apolegetic tone that it was delivered in33. An interesting and meaningful observation was made in another election cane by Justice VR Krishna Iyer: Religion is a terrible Satan in its decadent status when people plunge into spiritual illiteracy, miss the divine essence of the lessons of the sages, prophets and seers and kiss the holy nonsense of my religion right or wrong and my religionists alone to me belong. In this vulgar barbarous degeneracy humanism dies and values of tolerance and compassion perish. In the perverse reversal of higher meanings the man on earth becomes the blind ammunition of divine rivals in the skies. Be that as it may, religions cannot be wished away or wiped out but surely must be humanized and weaned from cannibalistic habits. Comity of denominations, not a zoo of savage faiths, must be the governing code of religious pluralism in the human world . Even here the judiciary has stopped short of condemning religion in politics. Its accepted as bad but bad and inevitable.34

9. Amendments Needed 9.1. Proposed Changes The question that is front of us now is what more needs to be done to make the statutory provisions above more effective. To determine the way forward we need to determine the problems that exist currently. First and foremost there is too much leeway for the judiciary to interpret away a violation of the Act. The problem with religion influencing choices extends to the judiciary as well. The 33Damodar Tatyaba v Vamanroa Mahadik AIR 1991 Bom 373 34Abdul Hussain v S. Huda, AIR 1975 SC 1612.

perfect example of this influence is the interpreting of om to be a non religious symbol. How can this symbol be anything but religious? A host of secular connotations can be attached to the symbol but the first thing that comes to a persons mind on seeing the symbol is the Hindu religious connotation. This leeway that the judiciary has can be taken away by defining the offence more elaborately and strictly. Irrespective of the secular connotations that a symbol or term has it should not be allowed to be used. This would effectively be a ban on the use of religion The second problem is the stipulation that the offence can be committed only by the candidate, his agent or any other person with their consent. There is an obvious loophole here in that the candidate can easily get away with the offence by simply claiming that the person who was using religion to solicit votes, did not have his consent. By changing the language to take out the consent requirement and by using the words any related person two objectives are achieved. Firstly the candidate is prevented from escaping liability by claiming that he did not consent to the act. Secondly the burden is imposed on the candidate to ensure that him and his supporters do not commit an offence under the Act. 9.2. Need for a support system Although it is imperative that the legislation itself is amended to give it more teeth, a support structure needs to be set up in order to make the legislation relevant. The problem is not merely political. The resurgence of religion as a force is a reaction to modernisation. The problem, thus, is rooted deeply in other societal problems. The reaction is to turn to religion and faith and the result is that these people get taken advantage of by parties and politicians. Educating people about the choices they make will be the first step towards setting up the support system. Although there is less and less ignorance and illiteracy, education will stop politicians from taking advantage of the section of the population who know no better. Partnerships could be formed with NGOs to spread political awareness. The second step is to make sure that the politicians themselves are made aware of the consequences of their actions. If they are successfully sensitized to the fact that religion should be left out of politics, then the job becomes much easier. To facilitate all of this, the Election Commission could be given the power to carry out these functions or a completely new body could be created under the aegis of the Election Commission.

10. Conclusion The paper set out to examine whether the sparation of religion from politics is desirable and if desirable then whether such a separation is possible through legislation. The first section of the

paper looked into the need for a separation of religion and politics. It was seen that when religious consideration came into place other more rational considerations were displaced while making political choices. Apart from this it was seen that rligion sometimes is inherently against certain tents of a liberal democracy. As religion emphasises on the collective and on blind faith whereas liberal democracies protect the individual and fair procedure. Specifically in the Indian context four decades of keeping religion out of the system had leant stability to the country, unlike its neighbours who went all out for religion. However the image of religion has changed from the Nehruvian image wherein it was a means to social change to the BJP? Shiv Sena kind of image wherein it is held accountable for every major upheaval in the country. The use of religion in this manner has to be curtailed. The Constitution grants the right to freedom of religion in Article 25. The scope of the right was examined and it was found that the State had the authority to pass any law to regulate anything related to politics and religion as per Article 25 (2). Thus any law regulating the presence of religion in politics would be contitutional. Sections 8, 100 and 122 of the Representation of Peoples Act already regulate religion in politics. According to s. 122 it is an offence to solicit a persons vote based on his religion. However the judiciary has constantly interpreted in favour of the candidate and let the use of religious terms and symbols pass unpunished. In order to change the trend of impunity two changes were changed in the provisions of the Representation of Peoples Act. Firstly a complete ban on the use of any term or symbol having religious connotations irrespective of the secular connotations should be imposed. This will take away the leeway currently enjoyed by the judiciary and eliminate the influence of religion on the juddiciary itself. The second change proposed was to punish the candidate for an offence committed by any related persons and not just with his consent. Ths will ensure that the candidate will take all requisite steps to prevent the use of religion. In conclusion it can be said that true secularism can be achieved only ewhen the separation goes much deeper than just a superficial church and state separation. A polity should be based on the power of ideas and not on the power of blind faith and the legislature must do its utmost to ensure that this happens.

Bibliography Articles 1. F. Fukuyama, Identity, Immigration, and Liberal Democracy, Journal of Democracy, Volume17, April 2006. 2. J. Elshtain, Religion and Democracy, Journal of Democracy, Volume 20, Number 2, April 2009 3. Meyer, Boli, Thomas & Ramirez, World society and the nation-state, The American Journal of Sociology, 103(1), 1997. 4. S.K. Mitra, Desecularising the State: Religion and Politics in India after Independence, Comparative Studies in Society and History, Vol. 33, No. 4 (Oct., 1991), p. 755 Cases 1. Abdul Hussain v S. Huda, AIR 1975 SC 1612. 2. AS Narayana Deeshitalyu v State of Andhra Pradesh, (1996) 9 SCC 548. 3. Bal Thackray v. PK Kunte, (1996) 1 SCC 130. 4. Commissioner, Hindu Religious Endowments, Madras v Lakshmindra Thirtha Swamiar of Sri Shirur Mutt, AIR 1954 SC 282. 5. Damodar Tatyaba v Vamanroa Mahadik, AIR 1991 Bom 373. 6. Dargah Committee v Husain AH, AIR 1961 SC 1402. 7. Govt. of Tamil Nadu v Ahobila, AIR 1987 SC 245. 8. Ismail Paruqi v Union of India, (1994)6 SCC 360. 9. Jagannath Ramanuj Das v State of Orissa, AIR 1954 SC 400. 10. Jagdeo Sidhanti v Pratap Singh, AIR 1965 SC 183. 11. Manohar Joshi v Nitin Bhaurao Patil, (1996) 1 SCC 169. 12. Punjab Rao v DP Meshram, AIR 1965 SC 1179. 13. Ramanbhai v Dabhi, AIR 1965 SC 669. 14. Ramesh Yeshwant Prabhoo v Sim Prabhakar Kunte, AIR (1996) 1 SCC 130. 15. Ratilal Panachand Gandhi v State of Bombay, AIR 1954 SC 388. 16. Ratilal Panachand Gandhi v State of Bombay, AIR 1954 SC 388. 17. Sardar Suedna Taiiir Saifiiddin v State of Bombay, AIR 1962 SC 853. 18. Seshammal v State of Tamil Nadu, AIR 1972 SC 1586. 19. Shubh Nath v Ram Narain, AIR 1960 SC 148. 20. SP Mittal v Union of India, AIR 1983 SC 1.