Daily Current Affairs 12.08.2020 (Hindu Succession Act, Secularism)

Daily Current Affairs 12.08.2020 (Hindu Succession Act, Secularism)

1. The future of Indian secularism

It is premature to pronounce the end of constitutional secularism; it has only suffered a setback and can be revived

  • Our public discourse is resounding with triumphalism on the one hand, and lament on the other over the death or defeat of secularism. It seems as if the bhoomi pujan has burnt its bodily remains, and if anyone cares to claim it, the ashes of secularism will be buried near a dargah or immersed in the Saryu. As a child of the republic founded in 1950, one part of me wishes to join the lament. But the other part, nudging me to contemplate this moment, asks: does anything in India ever die? Silenced, yes; forced temporarily to go underground, maybe; transmigrate to another bodily form under a different name, possibly. But death? Gone forever? No!
  • Three years ago, on August 6, 2017, I had written, in this very paper — in the article, “Constitutional or party-political secularism?” — that secularism has paid a heavy price in our country for being at the centre of public and political discourse. It has been persistently misused and abused. Distinguishing it from constitutional political secularism, I called this abused entity, ‘party-political secularism’.

Respect and critique

  • Constitutional secularism is marked by at least two features. First, critical respect for all religions. Unlike some secularisms, ours is not blindly anti-religious but respects religion. Unlike the secularisms of pre-dominantly single religious societies, it respects not one but all religions. However, given the virtual impossibility of distinguishing the religious from the social, as B.R. Ambedkar famously observed, every aspect of religious doctrine or practice cannot be respected. Respect for religion must be accompanied by critique.
  • It follows that our state must respectfully leave religion alone but also intervene whenever religious groups promote communal disharmony and discrimination on grounds of religion (an inter-religious matter) or are unable to protect their own members from the oppressions they perpetuate (an intra-religious issue). Therefore, and this is its second feature, the Indian state abandons strict separation but keeps a principled distance from all religions. For instance, it cannot tolerate untouchability or leave all personal laws as they are. Equally, it may non-preferentially subsidise schools run by religious communities. Thus, it has to constantly decide when to engage or disengage, help or hinder religion depending entirely on which of these enhances our constitutional commitment to freedom, equality and fraternity. This constitutional secularism cannot be sustained by governments alone but requires collective commitment from an impartial judiciary, a scrupulous media, civil society activists, and an alert citizenry.

Advent of opportunism

  • Party-political secularism, born around 40 years ago, is a nefarious doctrine practised by all political parties, including by so-called ‘secular forces’. This secularism has dispelled all values from the core idea and replaced them with opportunism. Opportunistic distance (engagement or disengagement), but mainly opportunistic alliance with religious communities, particularly for the sake of immediate electoral benefit, is its unspoken slogan. Indifferent to freedom and equality-based religious reform, it has removed critical from the term ‘critical respect’ and bizarrely interpreted ‘respect’ to mean cutting deals with aggressive or orthodox sections of religious groups — unlocking the Babri Masjid/Ram temple for puja, and forsaking women’s rights in the Shah Bano case. It has even been complicit in igniting communal violence. This party-political ‘secular’ state, cozying up alternately to the fanatical fringe of the minority and the majority, was readymade for takeover by a majoritarian party. This was accomplished by removing the word ‘all’ and replacing it by ‘majority’: respect only the majority religion; never criticise it, but recklessly demonise others; and ridding the state of the corrupt practice of opportunistic distance not by restoring principled distance but magically abolishing distance altogether. This is untrammelled majoritarianism masquerading as secularism, one that opposes ‘pseudo-secularism’ without examining its own equally unethical practices.
  • Today, Indian constitutional secularism is swallowed up by this party-political secularism, with not a little help from the Opposition, media and judiciary. Yet, I hesitate to pronounce the death of constitutional secularism. Grounded in millennia-old pluralist traditions, it cannot easily be brushed aside. Instead, I prefer the word ‘setback’. Brakes have been suddenly applied to this largely state-driven political project of dealing with inter-religious issues such as communal harmony. It has come to a screeching halt, broken down. Does secularism then have a future?

Two crucial moves

  • I suggest two crucial moves to kick-start the discourse and practice of secularism. First, a shift of focus from a politically-led project to a socially-driven movement for justice. Second, a shift of emphasis from inter-religious to intra-religious issues. I invoke the name of two great leaders, B.R. Ambedkar and Jawaharlal Nehru, to make my point. B.R. Ambedkar dispassionately observed that when two roughly equal communities view each other as enemies, they get trapped in a majority-minority syndrome, a vicious cycle of spiralling political conflict and social alienation. This was true in the 1930s and the 1940s. Today, feeling extremely vulnerable, Indian Muslims appear to have opted out of this syndrome. When this happens, the syndrome implodes. The result is neither open conflict nor harmony, simply an exiled existence for Muslims in their own homeland.
  • B.R. Ambedkar also claimed that when communities view each other as a menace, they tend to close ranks. This has another debilitating impact: all dissent within the community is muzzled and much needed internal reforms are stalled. If so, the collapse of the syndrome unintentionally throws up an opportunity. As the focus shifts from the other to oneself, it may allow deeper introspection within, multiple dissenting voices to resurface, create conditions to root out intra-religious injustices, and make its members free and equal. After all, the Indian project of secularism has been thwarted as much by party-politics as by religious orthodoxy and dogma.

Europe’s example

  • Here, Europe’s example helps. The fight against the oppression of the church was as much a popular struggle as it was driven by the state. Europe’s secularism provided a principle to fight intra-religious oppressions. Nehru understood this. For him, secularism was not only a project of civic friendship among religious communities but also of opposition to religion-based caste and gender oppressions — an endeavour at the heart of our own socially-driven freedom and equality-oriented reform movements in the 19th century. For the moment, the state-driven political project of secularism and its legal constitutional form appear to have taken a hit. But precisely this ‘setback’ can be turned into an opportunity to revitalise the social project of secularism. Since the Indian state has failed to support victims of oppressions sanctioned by religion, a peaceful and democratic secularism from below provides a vantage point from which to carry out a much-needed internal critique and reform of our own respective religions, to enable their compatibility with constitutional values of equality, liberty and justice. A collective push from young men and women untainted by the politics and ideological straitjacketing of the recent past may help strengthen the social struggle of emancipation from intra-religious injustices. Those who most benefit from upholding these constitutional values, the oppressed minorities, Dalits, women, citizens sick to death with zealotry or crass commercialisation of their faiths must together renew this project.

Inter-community relations

  • I am not suggesting that we must hereby ignore inter-religious issues. But having itself produced disharmony, it is surely beyond the capacity of the current state to restore communal harmony. But distance, freedom from mutual obsession, give communities breathing space. Each can now explore resources within to construct new ways of living together. The issue here is not simple retrieval of older, failed modes of religious toleration. The political project of secularism arose precisely because religious toleration no longer worked. Needed today are new forms of socio-religious reciprocity, crucial for the business of everyday life and novel ways of reducing the political alienation of citizens, a democratic deficit whose ramifications go beyond the ambit of secularism.
  • If a critique of religion is to come at least partly from within, then its idiom must also draw from local religiosities and the multiple languages in which they find expression. A critique purely from outside, one which is not partly immanent. will not work. Nor can popular-democratic struggles be taken over by middle-class vanguardism. However, such struggles too need support from intellectuals. But to be effective, these intellectuals should already have learnt from a wide variety of cultural traditions, both natal and those outside their immediate ambit. Only then will their voice carry weight, and be heard.


Secularism is a doctrine that states religion is kept separate from the social, political, economical and cultural spheres of life. Religion is open to one and all and is given as a personal choice to an individual without any different treatment to the latter.

What is Indian Secularism?

In India, the first face of Secularism is reflected in the Preamble of India where the word ‘Secular’ is read. The Indian Secularism is also reflected in its fundamental rights (Article 25-28) where it guarantees each of its citizens the right to practice any religion.

In the words of P B Gajendragadkar, a former Chief Justice of India, secularism is defined as ‘The State does not owe loyalty to any particular religion as such: it is not irreligious or anti-religious; it gives equal freedom to all religions’.

Secularism & Article 25 of the Indian Constitution

Indian Constitution guarantees to its citizens six fundamental rights, one of which is the right to freedom of religion. Article 25 of the Indian Constitution gives each citizen:

  • Freedom of Conscience
  • Right to Profess any religion
  • Right to Practice any religion
  • Right to Propagate any religion

Note: Article 25 covers not only religious beliefs (doctrines) but also religious practices (rituals). Moreover, these rights are available to all persons—citizens as well as non-citizens. However, there are reasonable restrictions on the fundamental rights of the citizens and central government/state government, in time of need, can interfere with the religious affairs of the citizens.

2. India’s population data and a tale of two projections

The country’s demographic future will see peaking and then declining numbers driven by a sharp fertility reduction

  • A new study, published in the highly regarded journal, The Lancet, and prepared by the Seattle-based Institute for Health Metrics and Evaluation (IHME), has shaken up the world of population policy. It argues that while India is destined to be the largest country in the world, its population will peak by mid-century. And as the 21st century closes, its ultimate population will be far smaller than anyone could have anticipated, about 1.09 billion instead of approximately 1.35 billion today. It could even be as low as 724 million.
  • Readers who follow COVID-19 projections will remember that in March 2020, the IHME projected U.S. deaths from COVID-19 to be around 81,000 by August. Deaths in the U.S. today are more than twice that number. The underlying assumptions for the initial model were not borne out. The IHME population projections are also subject to underlying assumptions that deserve careful scrutiny. They predict that by the year 2100, on average, Indian women will have 1.29 children. Since each woman must have two children to replace herself and her husband, this will result in a sharp population decline. Contrast this predicted fertility rate of 1.29 for India with the projected cohort fertility of 1.53 for the United States and 1.78 for France in the same model. It is difficult to believe that Indian parents could be less committed to childbearing than American or French parents.
  • Until 2050, the IHME projections are almost identical to widely-used United Nations projections. The UN projects that India’s population will be 1.64 billion by 2050, the IHME projects 1.61 billion by 2048. It is only in the second half of the century that the two projections diverge with the UN predicting a population of 1.45 billion by 2100, and the IHME, 1.09 billion.
  • Part of this divergence may come from IHME model’s excessive reliance on data regarding current contraceptive use in the National Family Health Survey (NFHS) and potential for increasing contraceptive use. Research at the National Council of Applied Economic Research (NCAER) National Data Innovation Centre by Santanu Pramanik and colleagues shows that contraceptive use in the NFHS is poorly estimated, and as a result, unmet need for contraception may be lower than that estimated by the IHME model, generating implausibly low fertility projections for 2100.

Fertility decline

  • Regardless of whether we subscribe to the UN’s projections, or the IHME projections, India’s demographic future contains a peaking and subsequently declining population driven by a sharp reduction in fertility. In the 1950s, India’s Total fertility rate (TFR) was nearly six children per woman; today it is 2.2. Ironically, the massive push for family planning coupled with forced sterilisation during the Emergency barely led to a 17% decline in TFR from 5.9 in 1960 to 4.9 in 1980. However, between 1992 and 2015, it had fallen by 35% from 3.4 to 2.2.
  • What happened to accelerate fertility decline to a level where 18 States and Union Territories have a TFR below 2, the replacement level? One might attribute it to the success of the family planning programme but family planning has long lost its primacy in the Indian policy discourse. Between 1975 and 1994, family planning workers had targets they were expected to meet regarding sterilisations, condom distribution and intrauterine device (IUD) insertion. Often these targets led to explicit or implicit coercion. Following the Cairo conference on Population and Development in 1994, these targets were abandoned.
  • If carrots have been dropped, the stick of policies designed to punish people with large families has been largely ineffective. Punitive policies include denial of maternity leave for third and subsequent births, limiting benefits of maternity schemes and ineligibility to contest in local body elections for individuals with large families. However, as Nirmala Buch, former Chief Secretary of Madhya Pradesh, wrote, these policies were mostly ignored in practice.

Aspirational revolution

  • If public policies to encourage the small family norm or to provide contraception have been lackadaisical, what led couples to abandon the ideal of large families? It seems highly probable that the socioeconomic transformation of India since the 1990s has played an important role. Over this period, agriculture became an increasingly smaller part of the Indian economy, school and college enrolment grew sharply and individuals lucky enough to find a job in government, multinationals or software services companies reaped tremendous financial benefits. Not surprisingly, parents began to rethink their family-building strategies. Where farmers used to see more workers when they saw their children, the new aspirational parents see enrolment in coaching classes as a ticket to success.
  • The literature on fertility decline in western countries attributes the decline in fertility to retreat from the family; Indian parents seem to demonstrate increased rather than decreased commitment to family by reducing the number of children and investing more in each child. My research with demographer Alaka Basu at Cornell University compares families of different size at the same income level and finds that small and large families do not differ in their leisure activities, women’s participation in the workforce or how many material goods they purchase. However, smaller families invest more money in their children by sending them to private schools and coaching classes. It is not aspirations for self but that for children that seems to drive fertility decline.

In language of the past

  • Ironically, even in the face of this sharp fertility decline among all segments of Indian society, the public discourse is still rooted in the language of the 1970s and on supposedly high fertility rate, particularly in some areas such as Uttar Pradesh and Bihar or among some groups such as women with low levels of education or Muslims. This periodically results in politicians proposing remedies that would force these ostensibly ignorant or uncaring parents to have fewer children.
  • Demographic data suggest that the aspirational revolution is already under way. What we need to hasten the fertility decline is to ensure that the health and family welfare system is up to this challenge and provides contraception and sexual and reproductive health services that allow individuals to have only as many children as they want.

3. Daughters have equal right to inherit property, says SC

Bench says the amended Act will have a retrospective effect

  • The Supreme Court on Tuesday held that daughters have an equal birthright with sons to inherit joint Hindu family property.
  • The court decided that the amended Hindu Succession Act, which gives daughters equal rights to ancestral property, will have a retrospective effect.
  • “A daughter always remains a loving daughter. A son is a son until he gets a wife. A daughter is a daughter throughout her life,” Justice Arun Mishra, heading a three-judge Bench, authored the judgment.
  • The judgment agreed with lead arguments made by senior advocate Bishwajit Bhattacharya that the substituted Section 6 of the Hindu Succession Act, 1956 confers the status of ‘coparcener’ to a daughter born before or after the amendment in the same manner as a son. Coparcener is a person who has a birthright to parental property.

Overrules 2015 decision

  • Since the right to coparcenary of a daughter is by birth, it is not necessary that the father should be alive as on September 9, 2005. The court has thus overruled an earlier 2015 decision.
  • The court, in its 121-page judgment, said the statutory fiction of partition created by proviso to Section 6 of the Hindu Succession Act, 1956 as originally enacted did not bring about the actual partition or disruption of coparcenary.
  • It also clarified that an unregistered oral partition, without any contemporaneous public document, cannot be accepted as the statutory recognised mode of partition.
  • “However, in exceptional cases where plea of oral partition is supported by public documents and partition is finally evinced in the same manner as if it had been affected by a decree of a court, it may be accepted,” the Bench held.

The Hindu Succession Act, 1956

This act lays down a comprehensive and uniform system for succession and inheritance into one act. Through this act, Hindu women’s limited estate is also abolished. Thus, any property which is possessed by Hindu women is considered as her absolute property.

Also, she is given the full power to deal with it. She can also dispose of it by any which she likes. Parts of this act was also amended in the year by the Hindu succession act of 2005.

Application of the Act

As per religion, this act is applicable to the following

  • A person who is a Hindu by religion in any of its developments or forms including a Vira Shaiva, a follower of Prarthana, Brahmo, or Arya Samaj.
  • The person who is Sikh, Buddhist by religion.
  • To any person who is not a Christian, Muslim, Jew, or Parsi by religion. This is done only when it is proved that the person would not have been governed by any custom or Hindu law.

Explanation regarding who shall be considered as Buddhists, Jains, Hindus, or Sikhs by religion.

  • Any child who is legitimate or illegitimate and both of his/her parents are Buddhists, Sikhs, or Hindus by religion.
  • Any person who is converted or reconverted to Buddhist, Hindu, or Sikh by religion.
  • The child who is legitimate or illegitimate and of his/her parents are Buddhists, Hindus, Sikh, or Jain by religion. Also, who is brought up as a member of the community, tribe, family, or group, to which the parents belong?
  • A person should be treated as a Hindu although he might not be a Hindu, but, nevertheless, the person to whom this act applies because of the provisions contained in the section.

In the case of Males

The property of a Hindu male without a will or dying intestate would be given to the heirs who belong to class I. If the heirs are not categorized in class 1, then the property will be given to heirs belonging to class II.

Furthermore, if there are no heirs in class II also, the property will be given to the deceased’s relatives or agnates through the male lineage. Additionally, if there are no relatives or agnates through the male’s lineage, the property that is passed to the relatives or cognates through the female lineage.

In the case of Female

Under the Hindu succession act, 1956, it is clearly stated that females are granted the ownership of the property either after or before the signing of the act. Thus, this abolishes the ‘limited owner’ status. Also, it was not until 2005 act, that the daughters were given equal property or receipt as that of the sons.

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