How the Constitution Can Bring the Religious and the Secular Together

This is the second article in a two-part series on the Sabarimala controversy. Read the first part here.

The pliancy of ‘custom’ and ‘tradition’

We have always approached the constitution as amendable, but not so our various religious groupings and practices. In fact, while there have been many amendments since the constitution came into force, there has hardly been any major change in any of the religions practised in India in the same period. The few that have happened have been more regressive than reformative, and often violently so, for instance in the strong attempts to homogenise the various practices of ‘Hinduism’. This is a sure sign that constitutional provisions in and for the personal laws of the various communities do not have the sanctity or force that the practices and beliefs of the communities themselves do.

It is true that, compared to the more eclectic and narrative-rich ‘Hindu’ traditions, the ‘Christian’ and ‘Muslim’ belief-systems are narratively leaner, and more definitively and institutionally structured. They probably do not easily permit the multiplicity and variety of practices that ‘Hinduism’ does. They may therefore prove somewhat less amenable to alignment with constitutional norms, through creative re-interpretations, re-conceptualisations and reforms proposed here.

However, what they lack in terms of diversity of narratives and scriptural sources, they make up for in terms of histories and legacies of disputation, dissent and reformism that are as strong, if not stronger than corresponding legacies in ‘Hinduism’. This is exemplified, for instance, in the Christian Reformation movement, followed by the Counter-reformation, in Europe; and Islamic theology and jurisprudence, contained in the Shariat, is known to draw from at least four different sources, the Quran, the Haddith, the Sunna as well the collection of more secular forms composed of the Ijma, Qiyas, Ijtihad. If we include here the categorisation of crimes listed in Hudud, Qisas and Ta’azir, there is an even wider field of sources.

Also read: Sabarimala: Can Respect and Reform Go Hand in Hand?

In any given disputation, there would likely be something that these traditions can draw on that is acceptable to them, while still remaining consonant with constitutional provisions. This is especially so for the belief-systems of ‘Christianity’ and ‘Islam’, which – unlike the caste-inequalities still practised in ‘Hinduism’. Perhaps it is time now to reassert the need to uphold the validity, legitimacy and appropriateness of constitutional provisions. It is time now to ensure that our belief-systems accommodate these provisions, rather than the other way around.

By the same token the constitution itself is obliged to explore ways to accommodate a particular religious community’s claims and practices, but without affecting any other community’s or other constitutional provisions. This approach is thus a dialogic one, which requires the legislature and judiciary too, to commit to the same constitutional principles they maintain and adjudicate on. The law cannot be above the law; it must ensure that that change is not just legally valid but also constitutionally appropriate.

Objections by non-believers, and counter-objections

Thus far we have dealt with some possible objections of ‘believers’ to such a programme. They may well have other objections too, and a dialogue on how to engage with, and negotiate those objections through this programme and approach, is both recommended and necessary. That said, there are also other possible objections to such a programme and approach, that may be raised by ‘non-believers’.

For instance, comrades on the Left and other such fellow rationalists may well protest that such a programme and approach encourages superstition and irrationality and perhaps even runs counter to the constitutional injunction to uphold secularism. One possible response to this is to recall the Marxian exhortation (credited to Marxist scholar Fredric Jameson): ‘Always historicise!’ Here, this means to also contextualise in our own historical, socio-economic conditions, steeped in poverty and inequality, and therefore steeped perhaps in faith. It would be psychologically and socially debilitating to remove or belittle that faith without simultaneously addressing those dynamics of multiple inequalities – of caste, class, gender, race, sexuality, opportunity – as well as the diversities of religion, region, language, ethnicity, profession.

As social precarity increases with intensifying and multiplying forms, extents and intensities of inequality, there is a verifiable increase in religious fundamentalism – arguably, an ‘opium-of-the-masses’ effect. But to dismiss it as no more than that is to adopt a rigid, dogmatic approach that is itself a form of irrationality.

A call to disavow faith may lead to a reactive communalisation rather than to the strengthening of secularism.

In contrast, the approach and programme outlined here recognises that in such a context of multiple forms of intense and extensive social precarity, the turn to faith, while distinct, can nevertheless take a corresponding number of forms, some, if not all of which may resist any attempts to derogate or devalue (their) religion. A call to disavow faith may well – and often has, in the past – lead to a reactive communalisation rather than to the strengthening of secularism.

The approach advocated here recognises that the increasing hostility to secularism that we are witnessing today is due to the perception that it is founded on the principle of tolerance rather than of mutual respect and empathy. ‘Tolerance’, as feminist scholar Karen Gabriel has pointed out, ‘implies a latent potential to become intolerant at any moment. That is, it connotes a norm to which there are exceptions that must be tolerated (but also need not be tolerated)….’ She goes on to note that ‘This profoundly patronizing attitude and disposition on the part of its practitioners, registers the unequal power relation in which the minority is entirely dependent on the majority’s will to tolerance, rather than on any systemic guarantees. […] This tolerance is voluntary rather than mandatory (if it is mandatory, one is no longer tolerating, one is being restrained from becoming intolerant). Finally, it can be selectively applied, precisely because it is voluntary’.

In a context in which the beneficence of the community is more easily believed in and relied upon than the benefice of the secular state, the journey from a communal self-identification to a genuinely secular one is quite long. It requires transformations in the socio-economic contexts of these communities of believers as much as in their conceptions and understandings. The approach proposed here seeks to facilitate the taking of this journey to minimise the tendency to pose these two as unrelated at the very least, and when related, as antithetical positions.

This approach may prove to work even in cases where the conflict is not between a particular religion – or even religion in general – and the constitution, but rather between two religious communities, on religious or religion-related issues. In such cases, this approach would focus on the resources within each religion that would facilitate mutuality, and not just rely on say, similarities or shared experiences, for a meaningful conversation. It thus holds out the possibility of moving the discourse of secularism from tolerance to mutual respect.

Objections to the constitution itself

Another objection that may be anticipated from these same quarters is that the primacy accorded to the constitution in this approach is, at the least, naive because it appears to treat that document as holy, infallible. The constitution is, in fact, none of these. Rather (they would maintain), it is understood to be deeply disingenuous, and it is actually designed to protect the interests of dominant minorities, at the expense and suffering of the vast subjugated majorities. The more radical tendencies in these quarters have therefore even dedicated their lives to the overturning of this constitution, on these very grounds.

As such, the approach outlined here, that proposes to align the values and practices of religious communities with those propounded, protected and maintained by this ‘objectionable’ constitution, would be understandably objected to as a retrograde tendency. It may even be accused of making a religion itself, out of belief in the constitution.

It must be clarified that the approach outlined here does not in fact take the constitution as either infallible or as the final word on equality, secularism and justice. There will no doubt be societies in the future that will have another constitution altogether, and that will possibly look back on this constitution as being rather retrograde.

Also read: Textual Evidence from Early India Tells Us the Ancients Weren’t as Tolerant as We Think

Be that as it may, what the current approach seeks to take into account, is the fact that a range of positions, from the fundamentalist-religious, to the constitutional-secular, to the fundamentalist-secular, coexist in contemporary contexts. In this, to insist on pushing a purist secular line as the only valid one is not only tactically and strategically barren, it is tantamount to a near-religious, dogmatically rigid, final-word position itself. Hence its characterisation as ‘fundamentalist-secular’.

In contrast, the approach proposed here seeks to draw the fundamentalist-religious positions towards greater concordance with the constitutional-secular. Such a consolidation of existing positions is, arguably, a necessary historical step towards the emergence of new contexts for new constitutional ideals to emerge. Then the current divide between the religious and the secular may cease to exist altogether.

That is an ideal worth working towards. And if a more creative, compassionate engagement with religion stemming from mutual respect and understanding, commitment to uphold the constitution and efforts to bring religious beliefs and practices in line with those of the constitution facilitate the realisation of that ideal, that is what is required. It is in this spirit that the Sabarimala issue should be approached. The same applies to the Babri-Masjid-Ram-Mandir issue and any such religious issue to have a meaningful conversation, born out of mutual respect, as well as respect for the constitution.

P.K. Vijayan is an assistant professor at Hindu College, Delhi University.