It is amazing that political parties, who in their word and deed, be it in election or selection, think of caste and religion—so communal in their outlook—certify themselves as ‘secular’ and brand others, particularly the BJP, as communal. The reason is that such divisive politics gives them electoral dividends. In this distorted state of discourse, I place before the nation certain constitutional principles of what secularism means.
Without doubt, secularism and equality are the two pillars of our Constitution, incorporated in Articles 14, 15 and 44. Art. 14 declares that the state shall give equal protection of law to all persons. The general mandate of Art. 14 is made more specific by Art. 15 which reads “(l) The State shall not discriminate against any citizen on grounds of religion, race, caste, sex, place of birth or any of them.” Art. 44 directs the state to enact Uniform Civil Code (UCC) to constitute the foundation of secularism. Mahatma Gandhi, in his book My Picture of Free India, wrote that in an India well governed by the Constitution, there is no scope for classifying citizens as minority as all of us are the children of the same Mother India. This view is manifest in Art. 44.
The Supreme Court, sitting as a Constitutional bench in the Shah Bano case, declared that so long as Art. 44 is not implemented, the Constitution would remain a dead letter. It said so because the Muslim Personal Law flagrantly discriminates against women on the basis of sex because it enables a Muslim male to marry four wives and divorce at will. Yet, those who oppose enacting UCC brand themselves as secular and those who cite the constitutional mandate as communal. Despite the mandate of Art. 15, those who enact laws for separate universities for Muslims claim to be secular and those who oppose it are branded as communal. The Congress, in its manifesto, promises a separate budget for Muslims in matters relating to education, scholarships and banking—in direct contempt of Articles 14 and 15. A party like BJP that cites constitutional provisions for equality is dubbed communal. A Congressman, who on the day he was sworn in as Union minister for minorities, declared that there would be five universities for Muslims, is celebrated as secular. Being constitutionally impermissible, this idea was rejected by the Thorat Committee.
Secularism in Bharat, in the sense of equal treatment for all, was part of Rajadharma, our ancient constitutional law. Just two verses would establish this. “Just as the mother earth gives equal support to all living beings, a king (State) should give support to all without any discrimination.” (Manu Smriti X–311). “The king (State) should afford protection to compacts of associations of believers of Veda (Naigamas) as also of disbelievers in Veda (Pashandis) and of others in the same manner in which he is under an obligation to protect his fort and territory.” (Narada Smriti vide Dharmakosha P-870). In this land, where the Vedas were ever regarded as supreme, the ancient constitution mandated kings to respect and protect disbelievers in the Vedas. But, now, those who stand by the idea of dharma are berated as communal. Agonised at the BJP being branded anti-secular, Bharat Ratna C Subramanyam, a Congressman, condemned it as practising political untouchability and fundamentalism. (C.S. Speaks P. 334-335).
Just as Rule of Law and arbitrariness are regarded sworn enemies, Rajadharma and theocracy were sworn enemies. Just as darkness can’t exist where light exists, fundamentalism can’t exist where dharma exists. That is why our Constitution confers the fundamental right to practice any religion under Article 25. In essence, dharma is the soul of Indian nationalism. Vote-bank politics is communal secularism. Secular nationalism should prevail over it.
Jois is former Chief Justice of Punjab and Haryana High Court