Substantive equality needed for ‘Sabka saath, Sabka Vikas’

The outgoing Vice President Hamid Ansari in his convocation address at the Bangalore Law University dwelt on ‘secularism in practice’. Following is the concluding part of the edited excerpts from the address in which he also made the following points:

• In a just society, the liberties of equal citizenship are taken as settled
• Democracy ‘has to be judged not just by the institutions that formally exist but by the extent to which different voices from diverse sections of the people can actually be heard
• Credible critics have opined that the December 11, 1995 judgment of the Supreme Court Bench ‘are highly derogatory of the principle of secular democracy’ and that a larger Bench should reconsider them ‘and undo the great harm caused by them’
• the relationship between identity and inequality lies at the heart of secularism and democracy in India

Edited excerpts from the address:

Our founding fathers took cognisance of an existential reality. Ours is a plural society and a culture imbued with considerable doses of syncretism. Our population of 1.3 billion comprises of over 4,635 communities, 78 percent of whom are not only linguistic and cultural but social categories. Religious minorities constitute 19.4 percent of the total. The human diversities are both hierarchical and spatial.

Secularism as a concept and as a political instrumentality has been debated extensively. A definitive pronouncement pertaining to it for purposes of statecraft in India was made by the Supreme Court in the Bommai case and bears reiteration:

“The State strikes a balance to ensure an atmosphere of full faith and confidence among its people to realise full growth of personality and to make him a rational being on secular lines, to improve individual excellence, regional growth, progress and national integrity… Religious tolerance and fraternity are basic features and postulates of the Constitution as a scheme for national integration and sectional or religious unity.”

“Programmes or principles evolved by political parties based on religion amount to recognizing religion as a part of the political governance which the Constitution expressly prohibits. It violates the basic features of the Constitution. Positive secularism negates such a policy and any action in furtherance thereof would be violative of the basic features of the Constitution. “

Despite its clarity, various attempts, judicial and political, have been made to dilute its import and to read new meaning into it. Credible critics have opined that the December 11, 1995 judgment of the Supreme Court Bench ‘are highly derogatory of the principle of secular democracy’ and that a larger Bench should reconsider them ‘and undo the great harm caused by them’.

This remains to be done; ‘instead, a regression of consciousness (has) set in’ and ‘the slide is now sought to be accelerated and is threatening to wipe out even the gains of the national movement summed up in sarvadharma sambhav.’

It has been observed, with much justice, that ‘the relationship between identity and inequality lies at the heart of secularism and democracy in India.’

The challenge today then is to reiterate and rejuvenate secularism’s basic principles: equality, freedom of religion and tolerance, and to emphasise that equality has to be substantive, that freedom of religion be re-infused with its collectivist dimensions, and that toleration should be reflective of the realities of Indian society and lead to acceptance.

“…Experience shows that secularism has become a site for political and legal contestation. The difficulty lies in delineating, for purposes of public policy and practice, the line that separates them from religion. For this, religion per se, and each individual religion figuring in the discourse, has to be defined in terms of its stated tenets.

The ‘way of life’ argument, used in philosophical texts and some judicial pronouncements, does not help the process of identifying common principles of equity in a multi-religious society in which religious majority is not synonymous with totality of the citizen body.

Since a wall of separation is not possible under Indian conditions, the challenge is to develop and implement a formula for equidistance and minimum involvement. For this purpose, principles of faith need to be segregated from contours of culture since a conflation of the two obfuscates the boundaries of both and creates space to equivocalness. Furthermore, such an argument could be availed of by other faiths in the land since all claim a cultural sphere and a historical justification for it.

In life as in law, terminological inexactitude has its implications. In electoral terms, ‘majority’ is numerical majority as reflected in a particular exercise (e.g. election), does not have permanence and is generally time-specific; the same holds for ‘minority’.

Both find reflection in value judgments. In socio-political terminology (e.g. demographic data) ‘majority’ and ‘minority’ are terms indicative of settled situations. These too bring forth value judgments. The question then is whether in regard to ‘citizenship’ under our Constitution with its explicit injunctions on rights and duties, any value judgments should emerge from expressions like ‘majority’ and ‘minority’ and the associated adjectives like ‘majoritarian’ and ‘majorityism’ and ‘minoritarian’ and ‘minorityism’? Record shows that these have divisive implications and detract from the Preamble’s quest for ‘Fraternity’.

Within the same ambit, but distinct from it, is the constitutional principle of equality of status and opportunity, amplified through Articles 14, 15, and 16. This equality has to be substantive rather than merely formal and has to be given shape through requisite measures of affirmative action needed in each case so that the journey on the path to development has a common starting point. This would be an effective way of giving shape to Prime Minister Narendra Modi’s policy of Sab Ka Saath Sab Ka Vikas.

It is here that the role of the judicial arm of the state comes into play and, as an acknowledged authority on the Constitution put it, ‘unless the Court strives in every possible way to assure that the Constitution, the law, applies fairly to all citizens, the Court cannot be said to have fulfilled its custodial responsibility.’

(The first part of Hamid Ansari’s address can be accessed through the link: Women’s reservation bill lapsed in 2014, not revived yet: Hamid Ansari).