That India, by its constitutional nature, is a secular state is uncontestable. The original Constitution adopted in 1950 did not explicitly use the word “secular”. But from the debates in the Constituent Assembly in the 1940s, it is evident that the Indian Republic was conceptualised and formed as a secular republic.
This secular nature of the state has been affirmed time and again by the Indian judiciary, which has included this characteristic in the elements that constitute the basic structure of the Constitution. This means Parliament, even with a super majority, cannot do away with it.
Where this idea of secularism was often contested in the Indian context was the political realm. Increasingly, the ruling Bharatiya Janata Party has sought to redefine this aspect of the republic by moving it closer to a Hindu majoritarian worldview. But in the legal realm, there was, to a large extent, unanimity on the secular credentials of the Constitution.
This remains the case even today. But last week, the needle seems to have moved ever so slightly on the articulation of the nature of this Indian secularism. This has serious repercussions for the concepts of equality and plurality, especially at a time when majoritarian politics is on the upswing.
On October 12, the Supreme Court of India delivered a split verdict on a controversial case from Karnataka where Muslim school students were denied the right to wear the hijab in classrooms. Justice Hemant Gupta, who retired from office last week, upheld the executive orders of the state government that enabled the exclusion of the hijab from classrooms. Justice Sudhanshu Dhulia, the other judge on the bench, struck it down. The chief justice will now decide how this case will proceed since no finality has been reached.
There is discordance in Justice Gupta’s opinion between his analysis of the nature of Indian secularism and his eventual decision to uphold the exclusionary rules against hijab.
The nature of Indian secularism
An important element that anchors Justice Gupta’s opinion in the split judgment is the special nature of Indian secularism, compared to the model in the West.
The Indian Constitution was indeed influenced by the American and European models. But the Constitution was not an unmediated legal transplant from the West. The Constituent Assembly spent considerable energy on adapting ideas to serve the purposes of the Indian context.
The Partition experience led to two competing models in the subcontinent. In Pakistan, the preference was for an Islamic state. In India, sectarian considerations were overcome to create a secular rather than Hindu state.
Not only did the founders choose secularism, this secularism was also seen as an enabling feature for the expression of diverse religious identities. It deviates from the Western model in the sense that the effacing of religious expression in the secular sphere was to be resisted.
Instead, the Indian model, as it is also understood by the judiciary, is the equal treatment of religious communities. Under the Indian Constitution, the state cannot prefer one religion over the other. At the individual level, this means those practising a religion have an equal right to express their religious beliefs just like people of other religions do. The state has a role in regulating this expression for considerations such as public order, morality, health and attempts at social reform. It is also limited by the other fundamental rights.
In other words, the state cannot simply ask for the suspension of religious expression outside the limitations, claiming a neutrality of a kind that is a complete severance from the idea of religion, something that is possible in the West in so-called secular spaces. Equality here means equal right to religious expression. It does not mean forcing equal non-expression.
Judgment of contradictions
Justice Hemant Gupta labours to point out this Indian model in his opinion in the judgment. However, the purpose was not to accommodate the hijab in the classrooms, and thereby the religious expression, but to say that the equal gaze of the state can legitimise non-expression of religion in the secular space.
Equality here is seen as ensuring that no student can express their religious identity openly in a classroom, with special exceptions like the Sikh community in wearing the turban or the kirpan. This is couched in a language fit for military regiments, where an unwavering commitment to what the state deems to be discipline is demanded from students.
But a contradiction emerges in Justice Gupta’s elaboration of Indian secularism and his final verdict. The opinion essentially takes Indian secularism closer to the model prevalent in some Western societies, which he has endeavoured to show is not the Indian model. This is the strict separation of the church and the state.
What this entails is that the state in India has the powers to create an insulated space, like that of a classroom, where it can suspend the right of religious expression. The argument goes that if this applies equally to all religions, it does not fall foul of the constitutional principle of equality. The state, after all, is treating everyone equally by allowing no religious expression.
But this is the difference between an enabling and disabling role. A question to be asked is whether the founders, in making India secular, envisaged an enabling role for the state to protect religious diversity and pluralism or a disabling role against religion. From judicial interpretation over the years, it clearly points to the former.
The majoritarian politics that has fueled this controversy means that an important point is lost. Not only does this efface the right of Muslim students to wear the hijab, this in one stroke negates the right of every child going to school to express their religious identity. Of course, this facially neutral rule momentarily targets Muslims. But in the larger context, it increases the state’s hold over all religious communities and over the individual.
A parallel could be drawn to France, where the wearing of hijab in public schools was banned in 2004 citing the state’s responsibility to follow the concept of laïcité, its model of secularism that calls for a unified cultural identity. Attempts have been continuously made to legislatively ban the wearing of the headscarf in all public spaces.
Political and social ramifications
This targeting of Muslim cultural markers has been linked to France’s brutal history of colonialism in Africa, with narratives that parallel some of the arguments currently made in India. In Algeria, the French claimed Muslim women to be oppressed and used this as a ruse to impose severe restrictions on Muslim practises for their liberation.
But there is a more acute problem with allowing the state to create enclaves where religious expressions, and by consequence constitutional rights, are totally suspended. When the ruling dispensation is connected and sympathetic to the cause of the dominant religion, ways will be found to allow the expression of this identity alone while strict secularism is used to batter minority rights. In France, this was visible in exceptions made to exhibiting nativity scenes in public spaces by artificially delinking it from religion and posing it as purely cultural. It was not seen as absurd to extract nativity scenes out of Christianity.
This does not mean that the state should never have a say in matters religious. The Indian Constitution has provided a clear role to the state and by doing so has created a balance and equilibrium between religion and the state. But as Justice Dhulia has eloquently captured in his contrary opinion, the Muslim demand for allowing headscarf in classrooms is a reasonable one, limiting which breaches this equilibrium in the Constitution by affecting a gamut of rights.
It is for a reason that India has its own model of secularism given the extraordinary religious diversity of its society. Justice Gupta’s verdict, while anchoring itself on it, negates this model rather than protecting it.
Sruthisagar Yamunan is a doctoral candidate in comparative constitutional law at the Central European University, Vienna.