Sabarimala review: Why 9-judge bench should look at all anti-Hindu clauses of articles 25-30

It is interesting that even as a nine-judge bench of the Supreme Court headed by Chief Justice Surya Kant is examining the scope of two fundamental rights under articles 25 and 26, we are witnessing repeated Hindu anger against conversions and the targeting of Hindu religious symbols (two cases in point are Tata Consultancy Services and Lenskart), all of which article 25 directly or indirectly protects.

From a Hindu or Dharmic perspective (the term Dharmic is being used here to include all India-origin religions, including Sikhism, Buddhism and Jainism among others), the question that really needs to be examined is whether articles 25 and 26 unfairly target only Hindu practices. And also whether the freedoms conferred under these two articles, and also articles 27, 28, 29 and 30, deny Hindus equal rights.

This is what article 25 has to say:

“(1) Subject to public order, morality and health and to the other provisions of this part, all persons are equally entitled to freedom of conscience and the right freely to profess, practice and propagate religion.

(2) Nothing in this article shall affect the operation of any existing law or prevent the state from making any law—

(a) regulating or restricting any economic, financial, political or other secular activity which may be associated with religious practice;

(b) providing for social welfare and reform or the throwing open of Hindu religious institutions of a public character to all classes and sections of Hindus.

Explanation I.—The wearing and carrying of kirpans shall be deemed to be included in the profession of the Sikh religion.

Explanation II.—In sub-clause (b) of clause (2), the reference to Hindus shall be construed as including a reference to persons professing the Sikh, Jaina or Buddhist religion, and the reference to Hindu religious institutions shall be construed accordingly.”

If you have not already spotted the problem, you couldn’t care less, or that you think this subtle anti-Hindu tilt is well deserved. After promising that all persons are equally entitled to freedom of conscience in clause (1), clause (2) says that the state can intervene whenever it deems fit in Hindu affairs. And in Explanation I, it intervenes to give Sikhs specific rights to carry a kirpan. The negative intervention is only for Hindus, the positive one for Sikhs.

Article 26 states:

“Subject to public order, morality and health, every religious denomination or any section thereof shall have the right—

(a) to establish and maintain institutions for religious and charitable purposes;

(b) to manage its own affairs in matters of religion;

(c) to own and acquire movable and immovable property; and

(d) to administer such property in accordance with law.”

And yet, nothing less than 1,00,000 temples are under state control in the five southern states, and the judiciary has not bothered to act except in specified cases. If the state has no business administering religion, why does it run religious institutions like public sector companies? Where do Hindus have the right to run their own temples in southern India, when commonsense tells us that state administration of temples is a direct contravention of clauses (a) and (b) of article 26. It is anti-Hindu as the same provisions do not apply to the religious places of Christians, Muslims or even Parsis.

According to a report in the Supreme Court Observer, the nine-judge bench mentioned above is currently holding hearings in the context of the Sabarimala judgment of 2018, where another five-judge bench decided to overturn the temple’s restrictions on entry of women in the reproductive age in the name of social justice. The Sabarimala judgment is being reviewed along with other questions raised by the uneven implementation of articles 25 and 26.

SCO sums up the scope of the nine-bench review into a few major issues (all of which have been taken verbatim by me from the SCO website here):

• What is the scope and extent of judicial review with regard to a religious practice as referred to in Article 25 of the Constitution of India?
• What is the scope and extent of the word ‘morality’ under Articles 25 and 26 of the Constitution of India and whether it is meant to include Constitutional morality?
• What is the scope and ambit of right to freedom of religion under Article 25 of the Constitution of India?
• Whether the rights of a religious denomination under Article 26 of the Constitution of India are subject to other provisions of Part III of the Constitution of India apart from public order, morality and health?
• What is the meaning of expression “Sections of Hindus” occurring in Article 25 (2) (b) of the Constitution of India?
• What is the inter-play between the rights of persons under Article 25 of the Constitution of India and rights of religious denominations under Article 26 of the Constitution of India?”

Unfortunately, the review will not consider the rights of Hindus to prevent conversion, and also the scope of unfair tactics used by the Abrahamic faiths, especially Christianity and Islam, to convert Hindus and people from other non-Abrahamic faiths.

One theme keeps coming up again and again in India, the threat to communal harmony from conversions. This emanates directly from the constitutional guarantees on freedom of religion, which two Abrahamic religions interpret at the right to use various means to convert a person from another religion. This puts those who follow Dharmic traditions, which are partly religious and partly defined by tradition, ritual, practices and different modes of deity worship, at a disadvantage as they have not developed the technology for conversions. If they now have to do the same, they would need to become more Abrahamic in their approach to religion, which would be a serious loss to diversity.

Past court verdicts that have upheld the laws of various state governments to prevent the use of inducements and fraud to convert Hindus, but these have not done much to reduce conflict on this contentious issue.  The recent cases involving Tata Consultancy Services in Nashik, where some women and even some men have alleged that they were being pressured to adopt Islam or Muslim practices, often by the use of verbally intimidatory tactics and sexual abuse, should worry us all. There are cases in Nagpur involving a non-governmental organisation, and another case in Amravati is still developing. All three cases are in Maharashtra, and represent only the tip of the iceberg. In Lenskart, the company responded to allegations that it was targeting only Hindu religious markers (like women sporting bindis), while specifically supporting the right of Muslim women to wear the hijab, by withdrawing these norms. But social media is abuzz with claims that several people have lost jobs because of the previously enforced dress code. It is upto the Lenskart board to investigate not just whether these allegations are true, but why those who frame the rules thought Hindu practices are dispensable. Does this also flow from the privileged position given to minorities in terms of protection of their rights in articles 25-30?

That many conversion cases do not end in convictions does not mean that the problems are imagined. Often it is difficult to prove coercion and intimidation, since this needs others to confirm what is alleged. More often, vulnerable people simply choose to leave a company or keep silent because they feel they will be targeted more by the converting groups. In the TCS case, there is strong evidence that complaints by the victim were repeatedly ignored by those who were supposed to treat the matter seriously. It’s not very different from women who complain of sexual harassment in large companies even if there is no religious angle involved. They feel their careers will suffer if they protest too much, and their superiors try to hush up the matter or merely shift the victim or the accused to another department without any legal consequences.

Given this reality, it may be time to review both the constitutional and legal safeguards for Hindus, who generally are unprepared for the tactics used by two Abrahamic proselytisers.

The key article that needs changing is article 25. Article 25(1) says that “Subject to public order, morality and health and to the other provisions of this part, all persons are equally entitled to freedom of conscience and the right freely to profess, practice and propagate religion.”

The word that Abrahamics emphasise is “propagate” and this word is detrimental to the interests of non-converting religions like Hinduism. It must be removed from article 25, and the freedom could be restricted to the right to profess or practice alone.

The major judicial pronouncement on this matter came as far back as in 1977, in Rev Stainislaus Vs State of Madhya Pradesh and Others, where two anti-conversion bills passed by the Madhya Pradesh and Odisha legislatures were challenged by a Christian in the Supreme Court. The verdict, pronounced by a five-judge bench headed by Chief Justice AN Ray, upheld article 25 but confused the issue by saying that the word propagate does not mean the right to convert. Why make this distinction when the two Abrahamic religions understand the word “propagate” to ensure conversion.

The bench held that “the word propagate has been used in the article as meaning to transmit or spread from person to person or from place to place. The article does not grant (the) right to convert other person (sic) to one’s own religion but to transmit or spread one’s religion by an exposition of its tenets.”

 

While, technically, this should satisfy all those opposed to conversion, it does not quite meet the needs of every day clarity. The word propagate needs to be omitted and freedom of religion should only mean the right to practice one’s religion. Even the word profess may be problematic if it can include the right to extol one’s own religion and rubbish those of others.

 

It is worth noting that most, if not all, Muslim countries do not allow non-Muslims to spread their faith, while in Christian countries the institutional strengths of the church make it tough to lure Christians away from their faith. In India, the reverse is the case, with Hindus having no societal or institutional defences against aggressive proselytisation and predatory faiths.

 

Those who want communal harmony cannot at the same time believe that the Abrahamic faiths have the right to convert. In which country will changing religious demographics not cause social tensions? Consider the levels of Hinduphobia in Donald Trump’s USA, where Hindu temples draw unusual ire from born-again Christians. It is one thing to allow the marginal individual to change his faith, but mass conversions should not be kosher in India. If you really want to maintain public order, morality and health, active conversion strategies and intimidatory behaviours towards Indic faiths should be discouraged, if not outlawed altogether.

 

India is the only country that can protect Hindu, Sikh, Buddhist and Jain traditions, when there are scores of countries that can protect Islam and Christianity. It is India’s duty to protect Indic faiths. It is time to eliminate the right to propagate the two proselytising Abrahamic faiths, unless their targets are each other and not Hindus.

 

It is also time for our lawmakers, the judiciary and liberals to stop being tone-deaf and insensitive to Hindu fears and vulnerabilities. You cannot build communal harmony by allowing predatory faiths to undermine the civilisation that nurtured the idea that all paths can lead to God.

 

Corporates like TCS should not be left in any doubt that allowing religious intimidation and other tactics in the workplace is not acceptable in the name of diversity. Every country makes laws to protect its own heritage and culture, and Hindu culture is definitely worth protecting. Trying to reduce Hinduism to casteism is counter-productive, both for Hindus and the cause of social justice. Social justice will be meaningless without social harmony.