Opinion Us and them

India and Pakistan could scarcely make peace. Verbal tirades had been going on since the beginning; in later years there were two actual wars. As time passed,the two-nation theory fell flat in Pakistan and internal linguistic prejudices led to the division of the country in 1972. Constitution-makers of the newly created state of Bangladesh were naturally influenced by India’s political ideology — the country which had been for them a morale-booster if not a proactive supporter. They built a Constitution based on the Indian pattern of secularism enveloping equality of all religions but imposing no ban on state intervention in religious affairs. Since Bangladesh had walked out of Pakistan on the issue of language — not religion — its religious leaders were not pleased with the absence of any special status for Islam under the Constitution. On the other hand,the new state had inherited Pakistan’s passion for military rule. Soon the country had military rulers who began issuing martial law orders and amending the Constitution. To garner support of religious circles for their actions,they prefixed to the preamble in the Constitution the Islamic invocation ‘Bismillah-ir-Rahman-ir-Rahim’ and added that “Islam is religion of the State but other religions can be peacefully practiced.”

In 1979 the 5th amendment to the Constitution safeguarded all the martial law orders issued by then,including one by which an Italian company’s property in Dhaka had been forcibly acquired. The company filed a writ petition in the High Court which declared the entire 5th amendment ultra vires,but on the government’s appeal the Supreme Court stayed the decision till its own verdict on the case. Recently,the court allowed the new government to withdraw the appeal,rendering the stay on the High Court decision ineffective. It is the impact of this development that the media has projected as ‘revival of secularism.’ But nothing of the sort is going to happen. The insertion of Bismillah and the description of Islam as state religion were not under challenge in the High Court — and the court had clarified in its judgment that “good actions” of the martial law regime need not be upturned. It has now been officially affirmed that the prefatory Bismillah and verbal allegiance to Islam both will remain in the Constitution,asserting that despite these Bangladesh will be a secular country.

I hold no brief for the practice of adopting a state religion anywhere. But if the secular character of the Indian Constitution is not tarnished by its religious concessions — a mandate to the state for the protection of cows (obviously due to the majority community’s reverence for it),including Sikh kirpan-wearing as a fundamental right,and specifying state grants for the upkeep of certain denominational temples in Tamil Nadu and Kerala— Bangladesh’s claim that the Islamic invocation to God and the verbal description of Islam as “religion of State” in its Constitution does not detract from secularism cannot be summarily dismissed.

The real impact of the revival of the Bangladesh High Court’s decision should be that the mixing of religion with politics would no longer be permissible. But will anybody take heed? Certainly,the impact of the Indian Supreme Court’s judgment in the celebrated S.R. Bommai case of 1994 should have been similar. Has anyone ever bothered?

The author is a senior professor of law & former Chair of National Minorities Commission.