The illusion of secularism
Nepal was officially declared a secular state on 18 May 2006. Ending the country’s long-time status as a Hindu Kingdom, the announcement by the interim government—formed following the overthrow of then-King Gyanendra’s direct rule by the 2006 People’s Movement—was welcomed by ethnic and religious minorities as a step towards more inclusiveness. From 2010, the Ministry of Law and Justice began reviewing the civil and penal codes in place, which was established under the old Muluki Ain, enforced by Jung Bahadur Rana; in May this year, a proposal was submitted to the parliament. But clauses included in the draft of the amended penal code, as part of these revisions, have already created waves of discontent among religious minorities, who claim that these clauses violate the standards set by the interim constitution.
Secularism indicates a purposeful neutrality of the state in matters of religion. Many Christians, Muslims and Kiratis among others, however, have protested that the proposed penal code—which essentially compiles all the criminal laws of a particular jurisdiction—does not abide by this basic definition. Instead, the code is seen to be largely discriminatory against people of non-Hindu faiths in restricting their rights to religious expression.
The ninth chapter of the code, which relates to religious issues, comprises of four articles, the contents of which are at the centre of the controversy. What these articles maintain is that certain acts—namely, causing damage to religious or holy places; harming or offending religious feeling through any means; undermining any sanaatan (‘observed since time immemorial’) religion through obstruction of its customs; and conversion of another person from his or her existing religion, by offering inducements or without—will be deemed criminal offences.
This means that any individual found ‘guilty’ of violating the first article (157), would be liable for imprisonment for a term of three years and would have to cough up a fine of upto Rs 30,000. Similarly, the penalty for violation of the second (158), third (159) and fourth (160) articles would respectively comprise of imprisonment up to two, one and five years and fines upto Rs 20,000, Rs 10,000 and Rs 50,000.
Leaders of non-Hindu faiths and religious minorities have expressed their concerns regarding the word sanaatan, used prolifically in all four articles. According to Taaj Mohammad Miya, Chairman of the Nepal Muslim Mahasangh, the very concept of protecting any sanaatan religion by stressing that other religious communities maintain a safe non-obstructing distance from it, is the government’s way of preserving the high-standing of Hinduism in the country. “The state should keep out of religious affairs,” he says. “Words like sanaatan that favour and protect Hinduism should not exist in the penal code.”
Pastor of the Bhaktapur Church, Chandra Shrestha, reiterates this thought. He believes that sanaatan and its association with the idea of “ancient” practices, instantly bring to mind Hinduism and Buddhism, as two of the oldest faiths in Nepal, granting them something of an advantage as compared to other, newer religions.
Pastor Shrestha adds that Article 158, which underscores that no one shall perform any act to undermine religious feeling—whether in written or verbal expression, figurative or symbolic form or by any other means—is also very vague and obviously biased. “Speaking or writing about one’s religion is a basic right,” he says. “This article could very well be used to stifle free expression of any religion besides Hinduism by saying that it will ‘undermine’ the feelings of the Hindus.” Pastor Shrestha emphasises that in barring minorities from putting forth their religious beliefs, the code clearly discriminates. “For us, for instance, it is imperative to talk about Christ so that we are able to make a positive impression of his life and struggle among our people,” he says. “The state shouldn’t attempt to suppress our ways.”
Article 160, on the other hand, which deems conversions of religion by offering inducements or without, as criminal offences, is perhaps the most contentious among all four; it is seen as invalidating any positive aspects of the other three provisions. “This clause goes further than the others by making it illegal to act or behave in any way which might encourage someone to change their religion—even without offering inducements,” says Pastor Shrestha. “What the article implies is that anyone wishing to become a Christian out of his/her own will could also be accused of a criminal act.” Both Pastor Shrestha and Miya are thus insistent that it is vital that chapter nine of the draft penal code be amended as soon as possible.
The code is yet to be discussed in the parliament, and members of the review committee established under the Ministry of Law and Justice to examine the code are quick to assure that problems will be ironed out eventually. One of the members, Kamal Salik Ghimire, says that the idea that the state is promoting one particular religion while suppressing other religious minorities is simply unfounded. “The ministry has already passed the code,” he says. “If any further amendments need to be made, it will be up to the parliament itself.”
Nepal, in the transitory position it finds itself in at the moment, has a unique opportunity to develop strong legal frameworks that could comply fully with universally accepted fundamental human rights. The treatment of religion needs to be delicate, so as to avoid exacerbating the ill-feeling already bubbling amid the religious minorities—consequences could otherwise be profound. Committee members need to ensure that before the legislation is passed unto law, clauses not pertaining to international human rights be eliminated. Until then, it only remains to be seen how firm the roots of secularism truly are in this country, if at all.
Posted on: 2011-09-03 08:08
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