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Sunday, December 4, 2022

Secularism in Bharat and Nepal: a misfit European concept

Nepal’s Constitutional secularism necessitates that the Federal Democratic Republic of Nepal be neither wholly respectful nor disrespectful towards a religion. The equal respect to all religious faiths professed, practiced and propagated on the sovereign soil of Nepal is the hallmark of Nepali secularism.

Secularism—the distancing of state from religion—does not mean the absence of religion or anti-religion. It demands a legitimate political atmosphere in the state where religious privilege should not influence the government and its institutions. To put it simply, secularity intends to limit moral issues to a private and personal subject.

In yet another sense, secularization holds an object to afford all religious minorities, individuals, and smaller sections of society an equal opportunity and right to observe their religion freely, placing none of the religions on a higher pedestal.

Despite this, the concept has different models.  Regardless of its origin, countries are seen applying this notion as per their respective normative structure.

Foreign precedent

The United States of America (US) model of secularity aims to protect religion from being exploited in public institutions. In this context, the first amendment to the US Constitution prevents the Congress from making any law respecting an establishment of religion or prohibiting the free exercise thereof.

Surprisingly, Article 44 (1) of the Australian Constitution provides that the state recognizes the special position of Holy Catholic and Roman Church as the guardian of faith professed by the great majority of citizens. This provision clarifies the state’s intention to put a particular religion on a higher pedestal which clearly goes against the spirit of Article 116 that seeks to promote a secular fabric in the commonwealth of Australia.

In Bharat, the proposed 45th amendment Bill to the Constitution tried to define ‘secular republic’ as a republic in which there is equal respect for all religions. Inserted through the 42nd amendment (1976), the word ‘secular’ remains undefined as the Council of States did not accept the 45th amendment Bill of 1978 which proposed an amendment in Article 366 (definition clause) to provide for the definition of the expression ‘secular’. However, Article 25 guarantees every person freedom of conscience and the right to practice, profess and propagate religion as a matter of fundamental right. This provision mirrors Article 26 of the Nepali charter.

Similarly, Article 1 of the Constitution of France endeavors to defend the public space from religious influence. It imposes an obligation on the Republic to “respect all beliefs.” In application of secular principles, the law of March 15, 2004 prohibits all clothing or other attire displaying religious worship to be worn in schools.

However, in the preamble of Bharat’s Constitution, the expression ‘republic’ as qualified by the expression ‘secular’ means a republic in which there is an equal respect for all religions. The state is under an obligation to respect all religions equally, and treat them non-preferentially. This practice has been developed, ostensibly, in a bid to protect religious pluralism.

Dr S. Radhakrishnan, former President of India, in his book The Recovery of Faith, explains the term ‘secularism’ as: Secularism does not mean anti-religion or irreligion rather it means equal respect for all religions.

All these different aspects of secularism mean that secularity is not a one dimensional concept.

Nepal’s constitutional secularism

Importantly, Nepal has been transformed into to a Republican state from a Constitutional monarchy, a federal democracy from a unitary system, and a secular structure from a Hindu character.

In this light, Article 4 opening with a marginal note on State of Nepal introduces the Himalayan state like this: “Nepal is an independent, indivisible, sovereign, secular, inclusive democratic, socialism oriented federal democratic republican state.”

The highest law of the land clarifies that ‘Secularism’ at this backdrop means the safeguarding of ‘dharma sanskriti’ (roughly translated as religion and culture) that has been in existence for generations (sanatan) as well as the freedom of religion and culture on the sovereign soil of Nepal.

In doing so, the country with the largest Hindu majority will continue to be introduced as a secular state – at domestic as well as international stages – with a special explanation clause under Article 4: “respecting pre-historic traditions and religious and cultural freedoms.”

According to official figures, over 81 per cent of Nepal’s 30 million populations are Hindus, followed by 9 per cent Buddhists, 4.4 per cent Muslims, and 1.4 per cent Christians. The republic is home to a number of ethnic groups that practice their own indigenous religion. For 240 years, Nepal was a Hindu Kingdom, ruled by monarchs of the Shah dynasty. The Kings were revered as incarnation of Bhagwan Vishnu and performed public rituals during big Hindu festivals, like ‘Dashain’, ‘Diwali’, or ‘Maha Shivratri’.

The people’s movement of 2006, a popular uprising for democracy, ousted the institution of King and former Maoist insurgents who had fought a decade long civil war were brought into the political mainstream through a peace agreement. There is a common perception among the Nepalis that the Hindu-majority nation was recognized as a secular state as a part of that deal. Here, the majority of the people believe that the concept of Hindu state was abolished just to win the approval of Christian missionaries.  

In contrast, the amendment procedure enshrined under Article 274 envisages that any resolution for amendment can be laid down before the parliament subject to sovereignty, territorial integrity and independence of Nepal. It means the competent parliament of Nepal in future may by a two-third majority change in part or whole the federal, secular or republican character of the Constitution.

Nevertheless, Nepali secularism has not been without controversy and criticism.

 “The state is still involved in the management of trusts associated with Hindu gods and temples; government funds are spent on Hindu religious festivals; cow slaughter and conversion are still outlawed, many laws are based on Hindu norms and values; Hindu temples are found in government buildings, schools, military camps and courts; public holidays are mostly Hindu festivals; and the President of the Republic has in many instances replaced the former Hindu king at public religious functions. In short, secularism seems to face many challenges,” argues Dr. Chiara Letizia, a research associate at the School of Anthropology & Museum Ethnography, University of Oxford, in her article titled “Shaping Secularism in Nepal” published in 2012 in the journal: The European Bulletin of Himalayan Research (EBHR).

Researchers like Dr Chiara Letizia are in want of a lesson that whatever is true and understandable for Europe may not be the same for Nepal because of its socio-cultural set up.

She, in one way or other, argues that it’s a sane act to go for cow slaughtering in secular Nepal (though 2015 Constitution re-affirms it as a national animal). People like her, who run their academic business through wealthy donors, consider cow merely as an animal with ‘Hindu’ identity, which is no more the identity of the Republic of Nepal. Cow is not only the national animal of Nepal, but a mother-figure for every Nepali. People worship the cow here.

In this light, it bears relevance to buy the words of Dr. BR Ambedkar, the chief architect of Bharat’s Constitution, who was of the opinion that “a secular state does not mean that we shall not take into consideration the religious sentiments of the people. All that a secular state means, the parliament shall not be competent to impose any particular religion upon the rest of the people.”

Also, “secularism does not mean creation of atheist society,” held the Supreme Court of India in Gopala Krishnan Nayar v. State of Kerala (2005).

Merits and demerits aside, is this secular model applicable in our social setting?

It may be noted that secularism is a western concept which originated in Europe when the separation of Church and state had become a major concern. Nepal never had an organized Church, so, “The notion of secularism itself is not understandable in Nepali context,” writes Dr. Nirmala Mani Adhikary, a Journalism faculty at Kathmandu University, in his scholarly article published in Shweta Shardul (Vol. 7, 2010) journal.

However, “It was the Hindu identity of the state that was crucial in bringing Madheshi and ‘Pahadi’ (Hill) communities together, despite fundamental differences of language, caste, ethnicity, color and regional consciousness as well as power sharing. Since the 18 May, 2006 declaration removed that very binding force, identity crisis was unavoidable among various communities of Nepal,” further writes Dr. Adhikary, who has authored more than two dozen scholarly books on communication and philosophy.

Nonetheless, “The triumph of secularism over the Hindu identity of the state in Nepal has brought all communities, groups, and castes at the crossroads, where traditionally accepted identities are simply not working. Not only the Madheshi, but all, even ‘Pahadi’ Brahmans and Kshetris, are affected. However, the effect is even significant in case of the Madhesi. For Madhesi people of Nepal, the religious and national identities were practically same. Now, the bond of togetherness, being Hindu citizens of a Hindu nation, has been wiped out,” maintains Dr. Adhikary, who is well-known in the academic world for propounding the Sadharanikaran Model of Communication (SMC).

Moreover, ‘new’ Nepal’s secularism is based on the erroneous assumption that religion is entirely a personal affair with which state has nothing to do. However, when it comes to pilgrimage, a Hindu can expect no financial help from the government of Nepal. However, there is something called Central Hajj Committee (CHC) established within the premise of Singh Durbar which receives Hajj subsidy from the government and foreign states too. Then how can we say that religion is separated from state affairs?

Position of non-Muslims in Islamic states: Will someone dare to teach them secularism and equality?

The Constitution of Pakistan, 1973 bars a non-Muslim from holding the office of Prime Minister (Article 41-2) and President (Article 91-3). This gives a clear message that minorities are not equal citizens in Pakistan. The constitutional restriction on non-Muslims, that is Hindus and Christians, from holding the top slots raises question over the state’s behavior towards a section of society. Is there any doubt over the patriotism of non-Muslims in Pakistan?

In a similar vein, the Constitution of Afghanistan, 2004 (under Article 62) disallows a non-Muslim to run for the election of President. Moving a step ahead, the Constitution of Maldives, 2008 envisages that only Sunni Muslims are eligible for the offices of President, Minister, judges or any other vital government offices. Likewise, Article 23(4) of Constitution of Bhutan, 2008 prescribes that a person would be disqualified to hold any elective office if s/he is married to a person who is not a citizen of Bhutan.

In Bharat and Nepal, secularism pervades the Constitutional provisions which give full opportunity to all persons to practice, profess, and propagate religion of their choice. The Constitutions not only guarantee a person’s freedom of religion and conscience but also ensure freedom of that person who has no religion.

In Bharat and Nepal, a single citizenship—unlike US concept of dual citizenship—is granted to every citizen irrespective of his religion. Importantly, a citizen is entitled to avail all benefits given by the state without any discrimination in private or public on the ground of religion.

Still, Nepali people were secular in their hearts since the formation of the country, as the majority had no discomfort with the minority or vice-versa. Perhaps this was the biggest guarantee of harmony than any document can provide.

By Jivesh Jha (Commentator of Law in Nepal. Holds LLM in Constitutional Law from Uttaranchal University, Bharat and has experience of teaching Law at Kathmandu University School of Law)

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