Steps to a Secular India

The summer of 2017 was a historic one for India’s judicial system, marked by two high-profile rulings: the ban of triple talaq and the sentencing of Guru Ram Rahim Singh.  While both decisions were met with a storm of dissent by religious subgroups, they ultimately mark a new identity of progress for India’s judicial system; however, this progress is likely to painful given India’s complex relationship with secularism.

Triple talaq is a controversial Islamic divorce practice by which a husband can instantaneously divorce his wife by saying “talaq,” the Arabic word for “divorce,” three times.  In India, Muslim men have divorced their wives by issuing the so-called “triple talaq” not only in person, but through letters and phone calls, and even through text messages, Skype, and WhatsApp in a number of cases, many of which have made their way through the judicial system. Though not explicitly outlined in the Quran, the practice has existed for decades, but was banned in several Muslim majority countries such as Pakistan, Bangladesh, and Indonesia as early as 1961. The Indian resistance to banning triple talaq is rooted in the Muslim community’s fear that the banning of a specific religious practice would set precedence for the undermining of their minority rights—part of the reason why the ruling was delivered with a hesitant 3-2 majority.  While two of the judges ruling against triple talaq saw it as “manifestly arbitrary” to “break down [a] marriage whimsically and capriciously” through the practice, another voted to strike it down since the talaq was not an explicit part of Islam. The dissenting opinion claimed that a Constitutional Court has no right to interfere with personal law, suggesting that the issue instead be legislated by Parliament. While the decision attracted a storm of dissent from religious subgroups, the abolishment of this outdated and rather uncommon practice represents a much greater step forward for the empowerment of Muslim women than it does any step backward for the rights of Muslims as a whole.

The rape conviction of the influential Guru Gurmeet Ram Rahim Singh marks another major step forward for India’s judicial system. The flamboyant, polarizing, self-proclaimed “godman” was the chief of the Dera Sacha Sauda, a spiritual sect which allegedly has over 60 million followers worldwide. With nicknames such as “Rockstar Baba” and the “Guru of Bling,” the man styles himself as larger-than-life, and has garnered a group of devout followers whose reactions to his conviction caused at least 40 deaths and 200 injuries. The guru’s 20-year sentence represents a surprising decision for those familiar with the Indian justice system, which has a reputation for letting influential figures, especially those who, like Ram Rahim, have lent support to both political parties, dodge high-profile charges. The impressive gall shown by the judiciary in this conviction demonstrates its newfound willingness to prioritize the pursuit of justice over the approval of its political allies and assets.  The recent rape sentencing is the first major conviction of a host of allegations of abuse of power against Ram Rahim, including ongoing investigations of murder, rape, and the mass castration of 400 of his followers to make them “closer to God.”

From a merely practical standpoint, neither decision has sweeping effects.  After all, triple talaq is a rather uncommon practice and the conviction of Ram Rahim involves only one prominent figure.  However, these rulings play a crucial symbolic role; for a long time, the Indian court system has hesitated to rule decisively on religious matters.  Furthermore, India’s religious diversity has only made it difficult for the Indian government to balance the interests of every group.

Historically, India has been a hub of religious diversity.  Despite already being the birthplace of four major world religions—Hinduism, Buddhism, Sikhism, and Jainism—and the home of the second-largest Muslim population in the world, India has always been a proponent of religious freedom.  For example, since the failed Tibetan Uprising in 1959, the Dalai Lama has found refuge in India. A small Jewish population has lived in the South Indian city of Cochin (now Kochi) since at least 1170 CE, and three states now have a Christian majority. Despite not being their historical birthplace, India also has the largest Zoroastrian and Baha’i populations in the world. An integral part of India’s identity is its acceptance of a multi-faith populace.

In India, secularism has a rather different meaning—it is a complex relationship between the government and religious groups in which government takes legislative steps to specifically ensure that each group may practice the faith they choose.

To manage this unique diversity, the drafters of India’s constitution included a variety of concessions to various religious groups, trying to toe the line between serving the majority and protecting the minority, guaranteeing that “all persons are equally entitled to freedom of conscience and the right freely to profess, practice and propagate religion.” However, these concessions very quickly became complex. For example, Muslims and Hindus (who, mystifyingly, include Sikhs, Jains, and Buddhists in the Constitution) operate under different sets of social laws. In marriage, for example, Muslims operate under Islamic Personal Law, Hindus use the Hindu Marriage Act of 1955, and those belonging to no specific faith or groups not explicitly mentioned in the Constitution have the Special Marriage Act of 1954.

This tradition of religious conciliation is evidence of a key difference between India’s concept of secularism and secularism as it is perceived in Western countries like the United States. For many Americans, secularism is the separation of church and state; it dictates that though the state has no religion, each person has the freedom to hold the faith of his or her choosing. In India, secularism has a rather different meaning—it is a complex relationship between the government and religious groups in which government takes legislative steps to specifically ensure that each group may practice the faith they choose. India’s pseudo-secularism manifests itself in a hodgepodge of specific religious exemptions and concessions that leave the government in the uncomfortable situation of having to “pick sides.” This effect was most notable in Hindu-Muslim conflict in Jammu and Kashmir, the 1984 anti-Sikh riots, and the violence surrounding the destruction of the Babri Masjid in 1992. Although all complex issues in their own right, each has its roots in the government’s implicit or explicit support for or opposition towards a specific religious group, in turn causing a mass reaction, often in the form of religiously motivated riots or violence. Secularism is a controversial, often inflammatory topic in India, but since the adoption of India’s 42nd Amendment in 1976, which among other changes, introduced the word “secular” into the preamble of India’s Constitution, it has a constitutional mandate.

The ambiguity involved in dealing with each religious group creates a great deal of variability in how governments may choose to interpret laws. Legislatures and judiciaries at different levels of the government understand and evaluate laws differently, even within the same party. Over time, the Indian government has often shifted between a favorable stance towards the protection of minority rights and one of prioritizing the interests of the majority. Both Congress and BJP governments (the two primary parties in India) have instituted certain policies which empowered minorities and others which undermined them, leaving many in a position of confusion and agitation.

One solution which has been proposed multiple times throughout history is the introduction of a uniform civil code, which would establish a singular set of laws for all Indians, regardless of religion.  Currently being proposed by many both inside and outside of the government, the uniform civil code would be difficult to write while maintaining a balance of widespread applicability and minority protection. Although a code would greatly simplify India’s legal process, it is a political near-impossibility; considering the outrage around banning a practice as obviously misogynistic as triple talaq, the idea of forming an altogether new set of laws would likely trigger explosive protest. While partisanship and special interests would impede the progress of a uniform civil code through the legislative processes of Parliament to becoming a constitutional amendment, the activism and protest of those fearing underrepresentation would likely make such a policy highly polarized and provocative.  Although a uniform civil code would likely be beneficial in the long term, it faces too many short-term obstacles to garner a substantial mandate.

India’s uphill trudge towards its goal of secularism is likely to continue, slowly and painfully, so long as the state exists.  The triple talaq ban and the conviction of Ram Rahim represent major forward steps in this climb, but more impactful and controversial decisions are likely looming in the near future. Whether India’s courts will continue to value securing constitutional justice in the face of nuanced religious decisions is unclear. While India’s judicial system is undergoing these growing pains, it is important for foreign powers to reserve their judgment since India faces an internationally unique challenge posed by both the curses and the blessings of religious diversity.