Written by Mara Malagodi.

India and Nepal are the only two countries in the world where the overwhelming majority of the population are followers of Hinduism. In India, according to the 2011 Census, 79.8 per cent of the total population is Hindu, while in Nepal the 2011 Census records 81.3 per cent. Both countries, however, present also a startling level of socio-cultural diversity in terms of religion, caste, ethnicity, language, region, etc. As a result, the position of Hinduism as the majority religion in the constitutional frameworks of India and Nepal and its relation to competing visions of the nation have been the object of intense political and legal struggle for decades in both countries. However, the electoral success of the Hindu Right at the centre in India in the 2014 general elections together with a disquieting rise in communal violence, and the promulgation of Nepal’s long-awaited but extremely embattled new Constitution in September 2015 have reignited debates about the place of Hinduism in their constitutional systems. The recent waves of Hindu revivalism in India and Nepal call for profound reflections on the intimate relationship between the role of religion in constitutional documents and the treatment of minorities in both jurisdictions. In this respect, the thorny issue of cow protection is a useful prism to analyse legal responses to the surge in ethno-cultural majoritarian demands in both jurisdictions and increasingly violent attempts to erase difference.

Significantly, both the currently in force Constitutions of India (1950) and Nepal (2015) now define the state as ‘secular’. However, their respective constitutional commitments to secularism have emerged from radically different historical and political trajectories.

In India, secularism was a tool for nation building, to bring together the many diverse groups that form Indian society after the success of the anticolonial movement. This strategy reflected the Congress longstanding viewpoint that the people of India were Indians irrespective of their religion – the idea at the core of the Indian national liberation struggle and a key pillar of state building. As a result, the Constitution remained neutral towards the various religions practised in the country, and did not feature any ethno-cultural characterisation of the nation. At the same time, the term ‘secular’ did not appear anywhere in the document. In the 1973 Kesavananda Bharati case, however, Chief Justice Sikri stated in his opinion that secularism is one of the five pillars of the Indian Constitution’s basic structure. Ironically, India’s explicit constitutional commitment to secularism took place only in 1976 during Indira Gandhi’s emergency with the 42nd Amendment of the Constitution, which Granville Austin in 1999 characterised as ‘sacrificing democracy to power’. While the 42nd Amendment was later repealed almost in its entirety, the insertion of the adjective ‘secular’ in the Preamble endured. The Constitution drafters, instead, dealt with the issue of cow protection in Article 48 on animal husbandry, which encourages the preservation of cows, calves and milch and draught cattle. The proviso was placed in the Chapter on the Directive Principles of State Policy, which is not enforceable in a court of law. Significantly, the framers of the Constitution couched the protection of Hinduism’s sacred animal in the modernist language of science, not in religious terms. The legal battle over cow protection then shifted to State Legislatures and the courts, which have historically struggled to reconcile majoritarian religious demands with the protection of minorities, in a legal discourse unable to disentangle pseudo-scientific arguments for improving stockbreeding from essentially communal politics.

Nepal, instead, was never colonised and its creation as the modern state entity we know today resulted from the military campaigns of King Prithvi Narayan Shah in the late 19th century, who vowed to make Nepal into ‘a true Hindustan’. As a result, the processes of state and nation building revolved around the assertion of the authority of the Hindu monarch to legitimise his rule over the conquered territories as the protector of dharmik order (also through the protection of cows). Since the late 1950s with Nepal’s first bout of democratisation, the country’s constitutions reflected this ethno-cultural vision of the Nepali nation as ‘a pure Hindu Kingdom’ based upon the notions of Hinduism, Hindu monarchy, and the Nepali language – a way imagining the Nepali nation that has developed over the centuries in opposition to India. From the 1959 Constitution, through the 1962 Panchayat Constitution, and up until the 1990 democratic Constitution, Hinduism has had a privileged position in the document, while the cow was institutionalised as the national animal, and freedom of religion was limited to religion ‘handed down since ancient times’ and by a constitutional ban on proselytism. While the post-civil war 2007 Interim Constitution marked a radical break with the country’s constitutional past by declaring Nepal a secular state and severing the ties with the Shah monarchy, the restricted right to religion and the cow as the national animal endured. The 2015 Constitution took a step back from 2007: while declaring the state as ‘secular’, the document granted special protection to Hinduism (Sanātana), and preserved the cow as Nepal’s national animal alongside a restricted right to religion.

From a legal perspective, Article 48 in the Indian Constitution and the cow as Nepal’s national animal appear to fulfil a merely ‘symbolic’ function, inserted to appease the Hindu Right, but devoid of any real ‘legal bite’. However, in jurisdictions with entrenched constitutions like India and Nepal every word in the Constitution might come to bear critical importance in later constitutional adjudication. In fact, in both jurisdictions the issue of cow protection had come before their respective Supreme Courts in more than one occasion, leaving the judiciary in the eye of the political storm over the embattled and emotional issue of cow protection. Moreover, both Constitutions ought to be read in conjunction with their wider legal systems. In India, the majority of States feature state-wide legislation criminalising cow slaughter and often beef consumption, even if there is no national ban on cow slaughter. In Nepal, the 1961 Muluki Ain (Country Code), which applies uniformly throughout the country’s territory, criminalises cow slaughter with no exceptions on the grounds of community affiliation.

To conclude, since secularism is now formally recognised and entrenched in the constitutional frameworks of India and Nepal, the political and legal struggles over the place of religion in the legal system is now taking place in both jurisdictions over the meaning of secularism and the extent of the protection that it affords minorities. The efforts to enforce the rules of cow protection by legal and extra-legal coercive means have come to symbolise the increasingly violent efforts to impose a dominant, uniform, majoritarian, and communal ideology on those who do not subscribe to it, either by choice or by birth. This is ultimately an attempt to create a hierarchy of belonging, which is clearly at odds with the tenets of democratic constitutionalism.

Mara Malagodi is a Lecturer in Law at City University, London. This article forms part of an Institute of Asia-Pacific Studies special issue on Hindu nationalism in India. Image credit: CC by SarahTz/Flickr.

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