Tag: #Discrimination

Communalism and Secularism

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Introduction

Communalism can be explained as having a very strong attachment to one’s community. That is it is the trail of thought according to which people have a very strong sense of emotion and attachment to their religion, caste, race, etc. Basically, the strong sense of belongingness and extremist views people have towards their community can be termed communalism.

Thus communalism is definitely an evil for a diverse country like India where so many people of different communities exist and flourish together. Therefore communalism is both an issue of the core values of our constitution as well as a security issue. This is because the Preamble of our Constitution has included Secularism as a core value. The concept of secularism has been explained further in the article. The concern of security arises due to communal riots. As the name suggests, communal riots are violent disturbances of peace between people belonging to different communities. A communal riot usually takes place between two separate castes or religions. Such disturbances cause threats to the peace and internal security of the country as such displays of violence usually cause huge losses to life and property.

Some Instances of Communal Riots

Partition of India,1947:

The riots during the partition of India are one of the most well-known examples of communal riots. About 14 million people had to abandon their homes when British administrators of Colonial India began dismantling the South-Asian empire. The estimated number of people killed during the partition period ranges from 200 thousand to 2 million.

Anti-Sikh Riots, 1984:

The 1984 Sikh Massacre, also called the Anti-Sikh riots were multiple planned attacks against the Sikhs. These took place post-assassination of former Prime Minister Indira Gandhi. The assassination was done by her Sikh bodyguards in a form of retaliation towards the order to attack Harmandir Sahib complex, Amritsar that had been given to the Indian Army. In these riots, 3,000 Sikhs had been killed in New Delhi, with approximately 17,000 Sikhs being killed in 40 different cities spread across India. Approximately 50,000 people that were belonging to the Sikh community had to move from their hometowns across different cities.

Communalism as a Political Strategy

Now that it is clear what communalism and how communal riots are a dangerous consequence of it, it is clear that communalism is not a practice that should be promoted and instead should be avoided or even rooted out. It is, however, the unfortunate reality of our democracy that many politicians use communal tactics and strategies in order to get vote bank during elections. Some forms of communalism can be highlighted as:

The organization of Parties:

Many political parties make sure that all the party members belong to only a specific community. This may be done in order to send the message that a party shall favor a specific community and may favor it over other communities.

Selection of Election Candidates:

Political parties, in order to get voters on their side in a particular constituency, may choose a candidate of the community which is in majority in that constituency. This is done in order to get the majority of the votes from that constituency.

Voting on Communal Basis:

Most voters would vote for someone who is a part of their own community. Therefore parties may appeal to the voters of a particular community in order to get votes from them. The voters may feel that the party will work for the welfare of their community.

All of these conditions and strategies hinder the progress of democracy in our country and also go against the core values of our constitution.

What is Secularism?

Secularism has been explained as the separation of the State from religion. This means that no particular religion is followed or favored over the other religions in the country.

The Preamble has declared India as a secular country. The word Secular had been added in the constitution by the 42nd amendment of the constitution of India. The word secular was added to symbolize that the country gives equal opportunities to the people of every religion in the country and also that no one shall face discrimination because they belong to a particular religion.

Secularism in the Constitution

It grants equal treatment by the law of the State and also grants equal protection of laws to everyone irrespective of caste, race, sex, etc. in the territory of India

This article prohibits discrimination against anyone on the basis of sex, race, religion, caste, etc.

Article 16 grants equality in matters that relate to public employment. Clause 1 of this article states that there shall be equal opportunities given to everyone in government offices.

The constitution by virtue of this article has granted everyone the freedom to propagate, practice, and profess any religion freely without any interruptions.

The freedom to manage religious affairs has been granted by this article. This means that all religious communities have the right to establish their own institutions for the purposes of religious activities and charity and also manage their own affairs.

This article has made it clear that no one will have to pay any form of taxes or fees for the maintenance and promotion of their religious denomination or religion.

The contents of this article have stated that any educational institution which is run and maintained through state funds shall not provide any religious instruction. This does not however apply to private educational institutions.

This article has provided that any section of citizens that reside in India shall have the right to conserve their culture and language. It has also been provided that no educational institution which is run out of state funds shall deny admissions on the basis of sex, caste, race, religion, etc.

The minorities of the country have been provided with the right to establish educational institutions of their own choice through this article.

  • Article 51-A(e)[x]:

Clause (e) of Article 51-A which provides the fundamental duties of the citizens states that the people of the country shall strive to promote equality and brotherhood among people of the country irrespective of religion, race, caste, sex, etc.

Conclusion:

Although communalism is an evil that still exists in the country and is also used by various politicians to gain votes, the core values of the constitution and the legal framework of the country are constantly striving to make India a secular country.

The author of this article is Om Gupta, a first-year law student pursuing a BBA-LLB from the University School of Law and Legal Studies.

The editor of this article is Shreya Litoria, pursuing B.Com LLB from Banasthali Vidypaith University, Jaipur.

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Article 14 of the Indian Constitution

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Article 14 of the Indian Constitution ensures equality before the law, it states that “the State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth.” 

Article 14 deals with the principles of equality before the law and equal protection of the law, both of which aim to provide equal status to all the citizens of the country. It is important to understand these two principles in order to understand Article 14. The principle of equality before the law means that everyone would be treated equally under the law and no one would be given any special privileges on the basis of their religion, caste, gender, etc. On the other hand, the principle of equal protection of law aims to provide equal treatment in all circumstances, that is, whether the person is a prime minister or ordinary man, both of them should be treated equally under the ordinary law.

The essence of the Article lies in the doctrine of Rule of Law. Rule of law guarantees the principle of equality before the law, it means that no person is above the law, what so ever his post is, he is bound to the jurisdiction of the courts and law. It also states that no person shall be harassed or discriminated against and shall be treated equally before the law. There are three meanings to rule of law:

  • Absence of supremacy of law

This is means that no absolute power is given to the law. A person can only be punished for not adhering to or violating the law but not in any other circumstances. 

  • Equality before law

Every individual is to be treated equally and protected equally under the law and is bound to the jurisdiction of the ordinary courts.

  • Individual liberty

Even though there is mention of individual liberty in the fundamental rights, like in Article 21 which ensures personal liberty, and Article 19 which rights to freedom, this meaning of personal liberty is not applicable in the Indian context (the third meaning of rule of law given by Dicey is however applied in other countries like the United Kingdom). This is because the source to the right of individuals is the Constitution of Indian and then Constitution is the law of the land. 

But, the concept of equality under rule of law is not absolute, there are few exceptions to the principle of rule of law, 

  • The public officials and an ordinary man are not on the same level having the same power. A police officer for example, has the power to arrest an ordinary man for breach of law, whereas an ordinary man does not have the power to arrest another ordinary man or a police officer for the breach of law. 
  • Rule of law does not mean that every class of individuals would be bound to the same set of rules. There are special rules for people of a certain class. For example, the individuals in the armed forces are bound to the military rules. 

Now that we have understood the main doctrines behind Article 14, we shall now look into the underlying principle of the Article. Equality before law or equal protection under the law does not amount to equal treatment to everyone. Because no two individuals can be equal or the same in all aspects, and so treating them both equally in all aspects would not amount to a fair trial. For example, an adult and a child are two individuals in a society, but can both of them be treated equally in all aspects? In the aspect of crimes committed, is it fair that the child is given the same amount of punishment as to what would be given to any adult? No. That is why the system of punishment is different for both children and adults under the IPC. Hence, it is important to note that ‘equal treatment’ should be justifiable and fair. Therefore, the meaning of equality under the Article does not mean uniform treatment to all, it means to provide the same treatment in aspects where the individuals are similar and different treatment in the aspects where the individuals are different. In order to differentiate between the equals and the unequal’s, the doctrine of reasonable classification is applied. 

Article 14 is applicable when there are two equal individuals treated differently, then the equality before the law comes inapplicable. But, in the case where an equal and an unequal individual is treated differently, the Article is not applicable. Class legislation is that which makes improper discrimination by providing privileges for certain classes. However, Article 14 is forbidden Class legislation and promotes reasonable classification. 

The reasonable classification should be on real and substantial difference, bound to a reasonable relation. Hence, there are tests to reasonable classification, 

  • The classification should be intelligible differentia. That is, it has to be able to distinguish people from a group to those who aren’t part of the group. 
  • There should be a rational relation between the objects.

Now, we will look into the points that hold a valid classification under Article 14. In the case of Ram Krishna Dalmia v. Tendolkar, the court explained the true meaning of Article 14 as follows,

  • If there are some special reasons or circumstances that apply to an individual, which is not applicable other individuals, then that person can be considered as a class.
  • There is always an assumed favour constitutionally on an individual and the burden is on the one who attacks this to show that there has been a transgression of the principles of constitution. 
  • This assumption can be taken away by showing that there is no difference or to a particular class.
  • It has to be assumed the law or the legislature will only do things for the need of the people and no discrimination to take place.
  • To keep the constitutional presumption, the court may consider the common knowledge, the history, the reports on the same, etc.
  • The legislation has the power to identify harms and also put restrictions to those case. 
  • The legislation is presumed to work on good knowledge and a good faith. 
  • The classification can be made on any basis, individual, geographic, etc.
  • The classification made does not have to be logically perfect or equality perfect.
  • Discrimination can be there in substantial and procedural law and the Article applies to both of these. 

In the case of Madhu Limaye v. Supdt. Tihar Jail Delhi, the Indian and European prisoners were not treated equally. The court held this is to be a case of discrimination and applied the principle of Article 14 to provide equal treatment for both the prisoners. In the case of D.S. Nakara v. Union of India, there was a memorandum given by the government, where the pension for retired officials was divided into two classes depending on their retirement date. The court held that this classification was not rational, as the classification of the retirement dates was in the difference of just two days. These cases show how the application of the principle of Article 14 and also on the legislature who analyses the application of the Article. 

Therefore, Article 14 aims to have equal treatment, that is fair and justifiable to all individuals and to remove any kind of discrimination. It gives fair treatment between the equals and unequal. 

References

  • Constitution of India, V.N Shukla
  • Indian Kanoon
  • Jstor
  • Ram Krishna Dalmia v. Tendolkar.
  • Madhu Limaye v. Supdt. Tihar Jail Delhi
  • D.S. Nakara v. Union of India

This article is written by Hiranmayi Rajeev, a 2nd-year law student at Alliance University Bangalore.

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