Bangladesh Hindus shout slogans during a protest rally to demand that the interim government withdraw all cases against their leaders and protect them from attacks and harassment in Dhaka, Bangladesh, on November 2.
| Photo Credit: AP
The desecration of Hindu temples in Bangladesh and the arrest of Hindu monk Chinmoy Krishna Das on sedition charges is not only a violation of Bangladesh’s constitutional promises but also a negation of international human rights law. Human rights are not the internal matters of any country and thus, India is fully justified in expressing its concerns about the violation of minority rights in Bangladesh. However, the Bangladesh Foreign Ministry’s reply has been disappointing, indicative of how a country which violates minority rights usually responds.
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Some 20 million Hindus, Christians, Buddhists and Ahmadiyyas who constitute the minorities in Bangladesh cannot be left at the mercy of the interim government that has not shown any sign of taking concrete steps against the Islamist majoritarian mob except a visit to Dhakeshwari temple by Muhammad Yunus who heads the current political dispensation. The kind of religious freedom the Bangladesh constitution guarantees to its religious minorities must be revisited by the interim government.
Four fundamental principles
Pakistan was created through the divisive and erroneous two nation theory of Veer Savarkar and Muhammad Jinnah. No nation is to be created in the name of religion. Proving the theory wrong within 25 years, Pakistan itself got partitioned with the creation of a new country — Bangladesh. This new country was created not in the name of religion but on the basis of the secular and liberal ‘Bangla’ nationalism. The constitution was adopted by the Constituent Assembly on November4, 1972. The constitution also mentioned that this date corresponds to the 18th Day of Kartick, 1379 B.S.
The preamble of the Bangladesh constitution mentions nationalism, democracy, socialism and secularism as its fundamental principles. Unlike India, their commitment to socialism has been explicitly mentioned and the preamble says that the fundamental aim of the state is to realise through democratic process a socialist society free from exploitation — a society in which rule of law, fundamental human rights and freedoms, and equality and justice will be provided to all citizens.
Islam as state religion
Though the original Bangladesh constitution was secular, the military dictator Ziaur Rahman in 1977 removed ‘secularism’ from it, and in 1988, General Ershad got Article 2A inserted in the constitution which laid down Islam as the state religion. This new Article says that the state religion of the Republic is Islam and that other religions may be practiced in peace and harmony. This kind of provision is there both in Sri Lanka as well as Bhutan. But the High Court and the Supreme Court struck down the amendment in 2005 and 2010 respectively. The court said that even though Islam is the state religion, the constitution remains secular. In a 186-page judgment, the court observed that the “preamble and the relevant provision of the constitution in respect of secularism, nationalism and socialism as existed on August 15, 1975 [Mujeebur Rahman was assassinated on this day] will revive.” It observed that “omitting secularism, one of the state policy from the constitution, destroyed one of the basis of our struggle for freedom and also changed the basic character of the Republic as enshrined in the preamble as well as Article 8(1) of the constitution.”
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On June 30, 2011, the constitution was again amended through the 15th amendment and the term ‘secular’ was reinserted. The amendment removed the expression ‘absolute faith and trust in Allah’ from the preamble but retained above the preamble expression ‘in the name of Allah, the beneficent, the merciful’ that was added in 1997. To accommodate other religions, it also mentions ‘in the name of Creator, the merciful.’ Thus Allah was changed to Creator. The court also invalidated the 5th amendment that permitted political parties based on religion.
Rejection of religious discrimination
Article 2A stated that the religion of the Republic would be Islam but that the state shall ensure equal status and equal rights to Hindus, Buddhists, Christians and other religions. Here there seems to be a contradiction — Islam is the state religion yet other religions have also been given ‘equal status’ and ‘equal rights’. In the classical secular formulation, this is not right. However, it seems that this declaration of Islam as state religion in Bangladesh was similar to the status of the king in the United Kingdom as the ‘defender of faith’ and ‘Supreme Governor of the Church of England.’ King Charles on May 6, 2023 took the oath to ‘uphold the laws of God and the true profession of the Gospel, maintain the Protestant reformed religion established by law and reserve the settlement of the Church of England.’
Article 8(1) of the Bangladesh constitution mentions secularism along with nationalism, democracy and socialism as the fundamental principles of state policy. Article 12 was revived by the 15th amendment and it explains what will be the essential ingredients of secularism in Bangladesh and how secularism will be achieved. It says that the principles of secularism shall be realised by the elimination of communalism in all forms; where the state shall not grant political status in favour of any religion; where abuse of religion for political purposes and any discrimination against or persecution of persons practising a particular religion is prohibited. With such a clear cut and progressive provision, whatever happening today is contrary to the constitutional mandate and Bangladeshi courts must immediately intervene just like in 2005 and 2010.
Article 38 that deals with the fundamental right to form associations prohibits the formation of unions or associations for the purposes of destroying the religious, social and communal harmony among the citizens or if such associations are formed for the purposes of creating discrimination among the citizens on the grounds of religion, race, caste, place of birth or language etc. or if objects of such associations are contrary to constitution.
Additionally, Article 23A imposes a duty on the state to protect and develop the unique local culture and tradition of the tribes, minor races, ethnic sects and communities of Bangladesh. Unlike Pakistan’s constitution, there is no Muslim qualification to the office of President or other constitutional offices.
Absolute freedom of religion
Bangladesh’s constitution in an independent article (Article 39) guarantees freedom of thought and conscience. India does not have freedom of thought as a fundamental right but freedom of conscience has been included as part of the freedom of religion in Article 25. Article 41 of Bangladesh’s constitution guarantees freedom of religion. It says that every citizen ‘subject to public order and morality’ has the right to profess, practise or propagate any religion. Like our Article 26, Article 41(b) gives the right to every religious community or denomination to establish, maintain and manage its religious institutions. Similarly just like our Article 28, Article 41(c) of Bangladesh’s constitution lays down that no person attending any educational institution shall be required to receive religious instruction or take part in or to attend any religious ceremony or worship, if that instruction, ceremony or worship relates to a religion other than his own. The difference between the two provisions is while we do not permit any religious instruction in any institution that is maintained out of state funds or is recognised by the government, Bangladesh permits religious instruction but only of one’s own religion.
Article 28(1) is a replica of our Article 15 and prohibits the state from discriminating against any citizen on grounds of religion, race, caste ,sex or place of birth. It also states that no citizen shall on grounds of religion, race, caste, sex or place of birth be subjected to any disability, liability, restriction or condition with regard to access to any place of public entertainment or resort or admission to any educational institution. Our Article 15 does not mention educational institutions and gives the right to access only to places maintained wholly or partly out of state funds or dedicated to the use of the general public. Thus, Bangladesh’s constitution completely prohibits any discrimination on the grounds of religion.
The interim Bangladesh government is thus duty bound to honour these sacred constitutional promises to retain people’s trust in it.
Faizan Mustafa is a constitutional law expert and Vice-Chancellor of Chanakya National Law University, Patna.
Published – December 02, 2024 08:30 am IST
