Sunday, December 28, 2008

Baird, Robert D. “Traditional Values, Governmental Values, and Religious Conflict in Contemporary India,”

Baird, Robert D. “Traditional Values, Governmental Values, and Religious Conflict in Contemporary India,” Brigham Young University Law Review, 1998/2 (1998): 337-357.

[but the way the article printed, there are only 11 pages for the body of the article, and the pages are numbered 1-11, and I will use that numbering for these notes]

SUMMARY: 1- “The Constitution of India embodies a number of values, which, while promoting the principles of human rights, opposed traditional beliefs and values…The prevalence of these traditional beliefs has in many cases interfered with the full scale implementation of the values articulated in the Constitution.”; the article looks at the events that concern these issues in the area of religious liberty, looking at (2) “axiomatic Indian values which are at odds with the Constitutional notions of equality and religious liberty”, “the Indian courts’ attempts to harmonized these conflicting values”, and discusses the possibility of a Hindu secular state, concluding that “the Constitution will continue to promote religious freedom”

-the Constitution, passed in 1949, says it secures for all people “justice”, “liberty” (of, inter alia, “belief, faith, and worship”), “equality” and “fraternity” (including “dignity of the individual”)

2-Justice: in the Constitution, it “is to be realized in the present life. However, Manusmrti, an ancient law book held in high regard by traditional Indians, portrays justice in light of the doctrines of Karma and rebirth…Before the nineteenth century, Indians universally accepted these Karmic effects as axiomatic. Not until [then]…did Indians begin offering philosophical defenses for the doctrine of reincarnation or rebirth.”, plus, the idea that karma can be passed to others is contrary to idea that justice is contained within individuals

-idea that all people are equal in Constitution is inimical to traditional values of caste and women are seen as lower than men; with this is the (3) traditional idea that some activities render some pure or impure

3-idea of nonviolence (ahimsa) is somewhat widespread, though not fully axiomatic; it was especially made popular by Gandhi; as well as vegetarianism

4-Baird then lists Articles 25 and 26 (the ones that deal with religion) which say that religion can’t interfere with the “public order, morality and health” (25(1), 26), and the government has a right to regulate or restrict “any economic, financial, political or other secular activity which may be associated with religious practice” (25(2)(a)) and “provide for social welfare and reform or the throwing open of Hindu [or any related] religious institutions of a public character to all classes and sections of Hindus [or any related group]” (25(2)(b)); religious groups can have institutions for “religious and charitable purposes” (26(a)), “manage its own affairs in matters of religion” (26(b)), “own and acquire movable and immovable property” (26(c)), and “administer such property in accordance with the law” (26(d))—and if you can’t have use of the idea of pollution through caste impurity, this conflicts with “the right freely to profess, practice and propagate religion” (25(1)), though the Constitution implicitly acknowledges this conflict with its limitations by making its provisions

-a 1958 lawsuit (Sri Venkataramana Devaru V. State of Mysore) said that the Madras Temple Entry Authorization Act (1947) violated Article (26(b)), the Supreme Court found that “religion” included beliefs and practices, (5) it noted that Article 17 abolished “untouchability”, and that Articles 26(b) and 25(2)(b) conflicted, though each was of equal authority, so they tried to harmonize both, saying the temple should be open to all but allowing some religious services to be exclusive—Baird analyzes: “traditional faith was constricted and had to be reformulated” because of this

5-hindus and Muslims have traditionally felt family law to be part of religion and not secular and at time of independence, practices were very diverse, but in the Constitution, which tried to ensure that the state didn’t “discriminate on the basis of religion,” made Article 44 that calls for a uniform civil code; (6) both Muslims and Hindus have resisted its implementation

-between 1955 and 1956 a series of bills were passed on family law: Hindu Marriage Bill, Hindu Succession Bill, Hindu Minority and Guardianship Bill, and Hindu Adoption and Maintenance Bill—provided conformity for “Hindu” law and modernized it, based on rationality, social needs, and even opinion (eg it included allowing divorce and limited marriage to monogamy)

-the BJP said it was unfairly imposed on Hindus only and not on Muslims

-Muslim views on the issue came to foreground when Shah Bano case was made public in 1985: in 1978 a Muslim divorced his wife. Muslim law required him to pay her the marriage settlement her family had originally paid (Rs. 3000); but she (Shah Bano) refused it and sued him “for maintenance under the Criminal Procedure Code” (Article 125 of the Code said a divorcing husband had to pay a monthly fee to his ex-wife if she had no means of support) and they required him to pay a monthly fee (Rs 180/month); and the Supreme Court upheld the decision, with the Chief Justice disparaging Islamic law and its status of women, and he said Court’s decision was keeping with the Shariat—many Muslim clergy said it was wrong for a secular group to interpret Islamic law; then the Chief Justice said the uniform civil code should include Muslims; it caused huge Muslim agitation; (7) Muslims then pressured the government to pass the “Muslim Women’s (Protection of Rights on Divorce) Bill” in 1986, exempting Muslim women from Article 125—Bill was opposed by women’s groups and militant Muslims

7-B/c of religious sentiment against hurting animals, the Constitution included Article 48 to prohibit cow slaughter, but many Muslims were the local butchers plus they usually sacrificed cows on Bakr Id Day—so they took legal action saying it impinged on their religious rights in 1959, but the Supreme Court said the Qur’an merely mandated “prayers and sacrifice” and so other animals could be, and should be used

8-and punishments for the slaughter of cows was excessive—eg in 1956, six men were each given an 18-month sentence for slaughtering 1 cow.

-the question of propagation/proselytizing and whether the Constitution should have an Article protecting or prohibiting it was debated in the Constitutional Assembly; those who wanted to prohibit it felt (9) like it might weaken one culture or religion and fraud was used in the process; but it ended up being protected and later attempts to limit it failed except in 3 states.

9-Orissa’s 1967 Act said there was danger in it because it tended to use “force, fraud and material inducements” which gave rise to civil disorder; Madhaya Pradesh (1968) and Arucachal Pradesh (1978) passed similar laws for similar reasons; In 1977, the Supreme Court upheld the Acts of Orissa and Madhaya Pradesh, it also distinguished between right to propagate and right to convert, with the former being allowed and the latter not seen as a fundamental right; but people continued to violate it have been jailed

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