Manudeep Kaur
ABSTRACT
This article is an attempt to decipher and understand how the states (especially with religious diversity) envision secular character in their territories by analyzing and comparing their constitutional, legal and socio-cultural framework. The author has chosen India and Malaysia as two different prototypes since one is a secular and the other non-secular but mostly hybrid, and yet they share some common grounds in the socio-cultural setup as both were politically ruled by British before independence. This article shall analyze how these countries tackle religious diversity, what secularism means to them from the context of the constitution and the socio-cultural set up especially in the times of globalization and human cross border mobility for immigration.
CONCEPTUALIZING VARYING IDEALS OF SECULARISM
The dynamics amidst the concepts i.e. Religion and the State have been ever-changing and transforming even in the late modernity period. From theocracy and the divine laws to sovereignty and secular (or civil) laws, the political form of a state to an extent has been largely shaped by religion and its values. Given that, the Universal Declaration of Human Rights and other allied treaties have also had a huge influence on the constitutional framework and the religious front in every form of a state and its territory but that does not imply that the idea of secularism has been universalized.[1] Further, in times of global integration and immigration of people from the global north to the global south or vice versa, the states have felt the need to redefine ‘secularism’ to envelope the aspects of ‘multiculturalism’ and ‘religious plurality’ in their territories. [2] However, the term secularism has often been viewed from a strict stance of classic western philosophy of ‘separation of church and state’.[3] Yet in the contemporary world, this norm has been further built on to include various aspects of secularism based on and favouring the state’s existing social, political, and religious values and structures.[4]
Broadly, the varying models or ideals of secularism as expressly envisioned by the states in their constitutional and legal structure include either a neutral, uniform and universalistic approach[5]; principled (and reasonable) distance approach[6]; state-endorsed religion approach[7]; non-secular or the state established religion cum radical approach[8], etc. However, in times of global modernity, it is a commonly visible characteristic, that no matter which approach or model a state pursues or adopts (such as a liberal stance of inclusiveness), equality and tolerance towards religious minorities is very much visible in almost every state. This can be seen through their constitutional structure of rights and freedoms to its citizens[9] further endorsing the idea of secularity and multiculturalism which can be further identified through the respective constitutions of India and Malaysia. Although it should be noted that India endorses neutral and secular character and on the other hand Malaysia establishes and endorses Islam as a state religion.[10]
It is a common misconception that the idea of modernity and secularism in a state only reflects an understanding that aims to end religious hegemony and to eliminate the concept of religion from the common and daily practices of the citizen’s public life.[11]Another common misconception is that secularism only means to recognize and accommodate different religious faiths, communities and negates the antagonistic people, atheists.[12] This stands untrue particularly in the current scenario and approach of certain states. However, one of the biggest challenges for the states in such circumstances that becomes important to address is their conduct (either favouring or interfering in specific communities’ beliefs and practices) raising legitimate scepticism on its secular nature and the doctrine of separation (of state and religion).
Hence, in situations like these, the doctrines of ‘principled distance’ and ‘flexible interference’ may come to rescue a state to uphold its laws and values and to harmonize and bring peace in the society. In the larger interests of its citizens, they can address these concerns[14] by either of the three possible courses:
- Contesting the legality of those practices in the court of law or bringing an enactment to that effect putting a qualified restriction over those practices and customs; or
- Distancing itself by adopting the doctrines of neutrality, non-preferentiality and strict separation[15]; or
- Simply acknowledging and legalizing it by either making an exception to the uniform laws of the state or by giving a legal shape in the form of personal laws, catering to the special needs and requirements of the minority community in question, thereby resorting to the states’ liberalized approach and values of tolerance.[16]
Alternatively, a state can also resolve such challenges by resorting to an inclusiveness approach and politically providing its religious minorities with a right of equal representation and a voice to contribute towards the framing of policies and law-making. This can be done especially where their rights and liberties are in question and adopting the policies which tend to favour the overlapping interests (‘Overlapping Consensus’) of all religious groups and resorting to the approach of ‘lexicographical ordering’ if necessary, thereby harmonizing, and bringing peace in the society.[17]
INDIA’S POSITION TOWARDS SECULARISM AND MALAYSIA’S APPROACH OF SEPARATION AND MULTICULTURALISM
India as a country represents a huge religious and ethnic diversity, and according to many authors, it represents a unique and distinctive model of secularism which is built upon the stereotypical western notion of ‘separation of state and the church’. The Constitution of India recognizes secularism within its basic structure doctrine, which means that it is an unamenable part of the constitution (as laid down in the Kesavananda Bharti case), although it was expressly added later on in the constitution by way of an amendment (42nd Amendment). The Constitution of India endorses a somewhat western idea of secularism and modernism which works towards social progress and sentiments adopting a universalized approach to religious plurality, neutrality, liberty, equality, and inclusiveness (Article 14, 15, 16, 25, 26, 27, 28, 29, 30, 44, 325).[19] However, it is distinctive in its form firstly, where it ascribes religious autonomy to its recognized multi-religious community through constitutional liberties (Article 25, 26, 27, 28), also by way of personal status laws and constitutionally granted freedoms for the minorities (Article 29, 30) to take independent decisions and practice them freely. On the other hand, the state also reserves its right to intervene since this freedom to profess, practice and propagate religion and consciousness is qualified in nature (since the protection is granted only to the essential practices of the religion) i.e. it is granted with certain exceptions where the larger public interest, public order and the welfare of its citizens necessitate such intervention.[20] This idea has also been very much ingrained in the various provisions of the constitution such as Article 17, 25(2), 26, 30.[21]
The jurisprudence established by various decisions of the Supreme Court also clearly endorse such aspect of Secularism embedded in the Indian Constitution as held in the cases like Shah Bano, Sarla Moudgil, Bijoe Emmanuel, etc.[22] Although there has also been a significant rise in the radical Hindu ideology of secularism favouring the oppressive views of the majority religion which is further recently reflected in its decisions of the Ayodhya judgement and the Sabrimala verdict, etc. But do these aspects of Indian model depart from the inherent tenets of secularism? This question is very much debated.
While on the other hand, Malaysia is an Asian country which although has a small territorial extent, however, like India it represents a quite diverse and rich ethnic, cultural, and religious modality. Malaysia being the abode to 60% Muslims of its total population endorses Islam as its state religion (Article 3). Nonetheless, Malaysia was also a British colony and most of its laws also reflect a western idea of liberalism, equality, and multiculturalism (Article 8) akin to the example of India. Consequently, although it endorses Islam as its state religion and identity, yet the constitution of Malaysia is in consonance with the values of peace and harmony and guarantees every person freedom to practice, profess and propagate his religion (Article 11.1) with the autonomy to manage its religious affairs (Article 11.3) subject to certain restrictions (Article 11.4).[23]
As far as the legal and judicial structure of Malaysia is concerned, it represents duality in the form that separates the sharia courts and the civil courts (Article 121(1A)), whereby sharia courts (being subordinate to the civil courts in the hierarchy) address very limited matters particularly related to the practice of Islam.[24] The civil courts generally have broad jurisdiction over most of the legal matters even though the parties may be Muslims (Che Omar bin Che Soh v. Public Prosecutor). Moreover, the Federal Court of Malaysia also reserves the right to review the decisions of the sharia courts.[25] Hence, common law has precedence over any other laws in Malaysia.[26] Thus the political structure of Malaysia (Federation of territories) still protects and ensures its secular form even after being a constitutional Monarchy, whereby, the King of Malaysia (essentially a member of the royal Islamic family) appoints the prime minister (Article 43) and other official and judicial members.
Alternatively, India being a quasi-federal and democratic state, ensures absolute neutrality and equality in its administrative and legal set-up. Another aspect which is very particular and much debated is the duality in the constitutional context concerning the idea of secularism since at one point it reflects the idea of granting religious autonomy to its diverse communities by way of personal laws. However, it also endorses the idea and directs the state to work towards enacting uniformity in civil laws as highlighted in the Article 44 of the Indian constitution (although some work has been done by the state towards achieving this extent yet in a very limited manner).[27] According to few authors, these very peculiarities form the part of the distinctiveness of secularism in India which must be viewed from the lens of its historical, political, and cultural setup.[28]
CONCLUSION
Hence, the overall political, legal, and judicial structure of Malaysia represents a dichotomy and a liberal approach of separation of state and religion functions. They do that while accommodating the values of religious plurality, liberalism and multiculturalism in its constitution, hence promoting the idea of tolerance and harmony which makes it more hybrid and distinct than the states with strong established Islamic hegemony.[29] Therefore, if the constitutional vision of India and Malaysia concerning religion and state are viewed together, then both represent two very distinct ideals of contemporary nature whilst supporting a similar set of universalized values and ideas of secularism.
Keywords: Secularism, Constitutional Law, Comparative Public Law, Malaysian Constitution, and Indian Constitution.
[1] Rajeev Bhargava, ‘The Distinctiveness of Indian Secularism’ <https://iow.eui.eu/wp-content/uploads/sites/18/2014/05/Bhargava-04-Bhargava.pdf> accessed 25 May 2020.
[2] Akeel Bilgrami, Secularism, Identity, and Enchantment (Harvard University Press 2014) <https://www.hup.harvard.edu/catalog.php?isbn=9780674052048> accessed 25 May 2020.
[3] Ibid.
[4] Bhargava (n 1).
[5] Bilgrami (n 2).
[6] Bhargava (n 1).
[7] Ran Hirschl, ‘Comparative Constitutional Law and Religion in Asia’ [2014] Comparative Constitutional Law in Asia <https://www.elgaronline.com/view/edcoll/9781781002698/9781781002698.00020.xml> accessed 25 May 2020.
[8] Ibid.
[9] Bilgrami (n 2).
[10] Hirschl (n 7).
[11] Bhargava (n 1).
[12] Bilgrami (n 2).
[13] Bhargava (n 1).
[14] Ibid.
[15] Bilgrami (n 2).
[16] Ibid.
[17] Ibid.
[18] Hirschl (n 7).
[19] Ibid; Bhargava (n 1).
[20] Bhargava (n 1); Hirschl (n 7).
[21] Bhargava (n 1).
[22] Hirschl (n 7).
[23] Ibid.
[24] Ibid.
[25] Ibid.
[26] Ibid.
[27] Bhargava (n 1); Hirschl (n 7).
[28] Bhargava (n 1).
[29] Hirschl (n 7); Kow Gah Chie, ‘Law Expert: Malaysia Neither Secular nor Islamic State’ (Malaysiakini, 25 January 2019) <https://www.malaysiakini.com/news/461745> accessed 25 May 2020.
Manudeep Kaur has completed LLM from O.P. Jindal Global University, Sonipat. She is currently working as TRIP Fellow and Academic Tutor at Jindal Global Law School, OP Jindal Global University.
Image Credits: https://www.kjreports.com/
Constitutional Law Society 
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