Father, State and unholy ghosts

That a large part of the USA is suffused with Christian fundamentalism, is no longer an idea that is such a hard sell anymore. In any case for decades the politicos of the US have called the large swath of land between mid-west to mid-east a ‘Bible belt’ is common knowledge. The battle between those in favour of foetal abortion – in short-hand, the ‘pro-choice’- and those against has been long-drawn with the US Supreme Court occasionally weighing in.

The dilemma of a secular state that the US claims to be is the issue that arises out of its first Constitutional amendment, which assures the citizens the ‘freedom of religion’ clubbed with ‘freedom of expression.’

The dichotomy arises out of this duality in the character of the State. On the one hand, the State calls itself secular, on the other it takes sides with sections of the citizenry in terms of their religious practices, supposedly for helping them practice their religion. This duality is at the basis of the ‘Hobby Lobby’ judgment of the US Supreme Court that has much militated the politics and society of that country.

In the ‘Hobby Lobby’ case, the US Supreme Court has ruled in a 5-4 judgment that the corporation’s promoters religion is the religion of the corporation. Thus, its freedom of choice needs to be ensured even if it lies in the grey area of the Affordable Healthcare Act – the Obama administration’s signature legislation empowering all American citizens access to affordable  healthcare.

The issue at hand was whether ‘Hobby Lobby,’ in fulfilling its obligation for providing healthcare insurance policies to its employees should exclude or include medical contraception to them. ‘Hobby Lobby’ owners had refused to do the same as it conflicted with their own religious beliefs – thus the corporation’s.

Clearly, this judgment of the US Supreme Court has pushed individual religiosity into the area of State policy where it could be manipulated by the politicians to communalise the American society. Considering that the Roe Vs Wade debate – where the Supreme Court had allowed abortion under certain condition defined by the genesis of life in a foetus - always arises in times of general and state elections in the US fostering deep cleavages within the society, one can safely categorise it as a manifestation of religious fundamentalism and not necessarily a medico-legal case.

In India, the situation is similar in character but more vicious in its manifestation because it becomes a case of violent discontent amongst communities. The religious freedom fundamental right was assured to the Indian citizen’s in 1950 when the Constitution was promulgated. In 1976, when the 42nd Amendment of the Constitution was passed by Parliament at the behest of then prime minister, Indira Gandhi, the ‘secular’ character of the polity was enshrined by adding it to the Preamble.

Hence, a dichotomous contradiction was created by which the same State that was made to be ‘secular’ was however made to choose sides in terms of upholding one or the other’s religious freedom. This structural weakness of the Indian State is exemplified in cases like the Shah Bano of the Supreme Court or the Ayodhya case of the Allahabad High Court.

In the latter case, the Allahabad High Court bench of three judges ruled that Hindu icon ‘Ram Lalla’ was not a mythical, fictional character, but actually a living, breathing being. Hence, it exhorted the State and the citizens to believe that ‘Ram Lalla’ was actually born where the Babari Masjid was built. Now obviously, historically this cannot be proven because Ram belonged to the imagination of the scribes over centuries, who had sought to perfect his character as an unimpeachable human.

In the same vein, when the Supreme Court adjudged a Muslim divorcee woman, Shah Bano, should be paid an alimony, the government of the day, a Congress Party government chose to legislate that Shah Bano was not to be paid a maintenance by her estranged husband under duress for fear of alienating the Muslim community. These kinds of anomalies in the State’s functions actually exacerbates the problems of inter-community, inter-faith relations and make it a subject of manipulation by the politicians who build careers out of divisiveness.

While it may be time that the Indian State and the citizen’s alike need to take a fresh look at the Constitutionality of these elements like religion. It can be stated that in the Keshavananda Bharati case the Supreme Court had ruled that the ‘Basic Character’ of the Constituion cannot be changed. But it needs to be defined whether the ‘Basic Character’ extends beyond the Preamble, which talks of Secularism, to fundamental rights that cover the issue of religious freedom where in any case, it is a bounden duty of the State to play favourites.

The author is a senior journalist