Will religion and state remain separate?

The Supreme Court did not opine on the annulment of Hadiya’s marriage ordered by the Kerala high court. Photo: Mint

Two little noticed but important events took place in the US last week.

First, the Supreme Court of the US began hearings in a case filed by a baker from Colorado, Jack Phillips, who had refused in 2012 to make a wedding cake for a same-sex couple citing his religious beliefs.

Second, the Senate passed a tax Bill with a tag provision that rescinds the (Lyndon) Johnson Amendment which has prohibited religious and charitable institutions (501 c(3) organizations in US tax statute) from making tax-deductible political contributions. The Johnson amendment promulgated in 1954 implied a clear separation of church and state.

In different ways, both cases tackle the issue of the separation of religion and state. The case of Masterpiece Cakeshop (Phillips’s bakery) against the State of Colorado Civil Rights Commission pits the right of equality (granted to the same-sex couple under the declaration of US independence and by the 14th Amendment) against the right to freedom of expression (the First Amendment says “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof”).

The revocation of the Johnson amendment effectively means that the evangelical right in the US will now have congressional approval (and tax exemption) for political involvement.

For more than 200 years since the Age of Enlightenment in Europe, the separation of church and state has been a core belief anchoring the development of liberal democracies. In the US, the phrase itself was first used by Thomas Jefferson in the context of building a wall between church and state and its importance to the First Amendment. That core belief was strengthened at various times but most recently during the civil rights movement in the 1950s and 1960s.

In the US and elsewhere, we may be beginning a period where the Westphalian notion of nation-state sovereignty gets stronger but the separation between church (or temple or mosque) and state gets weaker. It is time to speak with one voice in favour of clear and effective separation.

Geographically and metaphorically, the US is quite distant from India. Given a different history and a divergent state of economic and political evolution, societal angst in India is reserved for markedly different things than in the US. And yet, we have already begun to see that the separation of temple and state granted under the Indian Constitution has begun to change. The 42nd amendment to the Indian Constitution enacted in 1976 inserted the word “secular” in the Preamble. The relationship between religion and state has not otherwise been defined anywhere in the Constitution but is implicitly guaranteed throughout. Equality is guaranteed by the fundamental rights in Part III of the Constitution that ensures, among other things, a right to equality, right to freedom of speech and expression, right to religious freedom and an important right to constitutional remedies.

The recent case of Hadiya Jahan nee Akhila Ashokan should have been a slam- dunk case of an adult woman having the constitutionally protected right to religious freedom as an adult. Instead, first the Kerala high court and then the Supreme Court muddied the waters and pronounced a decidedly panchayati and paternalistic verdict by ordering her to continue her studies.

Further complicating the matter, the Supreme Court did not opine on the annulment of Hadiya’s marriage ordered by the Kerala high court. The very institution required to protect Hadiya’s right to constitutional remedies ended up violating it. The only hope is that the Supreme Court sees the error of its ways when it pronounces on the deferred issue of the annulled marriage and rectifies the argument.

This was a case of implementation falling short of the constitutionally guaranteed right to equality. However, in matters of personal law, the Indian code itself is unequal, with the applicable law based on an individual’s religion. Hindus, Sikhs and Christians fall under common law. Muslims are covered under a Sharia- inspired personal law. There are a plethora of Acts that govern marriage, divorce, maintenance and succession, such as the Hindu Marriage Act (1955), the Indian Succession Act (1925), the Special Marriage Act (1954), the Dissolution of Muslim Marriage Act (1939) and so on. Some political observers will argue that the consolidation of all these acts under a Uniform Civil Code being considered now is inspired by the political philosophy of the ruling party. Be that as it may, the Constitution should never have had an embedded inequality based on religion. That inequality was cemented by the shameful reversal of a Supreme Court order in the Shah Bano case in 1985 by the then Rajiv Gandhi government pandering to an orthodoxy of Muslim men.

The prevailing wind around the world is to insert religion into matters of state in the so-called national interest. This is a dangerous streak which will complicate the functioning of liberal democracies and deny the very freedoms that our democracies were designed to protect.

There may be temples and mosques at every street corner, but they must stay separate from state.

P.S: “Religion and Government will both exist in greater purity, the less they are mixed together,” said James Madison. Jesus in the Synoptic Gospel says, “Render unto Caesar the things that are Caesar’s, and unto God the things that are God’s.”

Narayan Ramachandran is chairman, InKlude Labs. Read Narayan’s Mint columns at www.livemint.com/avisiblehand.

Comments are welcome at narayan@livemint.com.