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Article 370:A journey from falsity to reality or vice versa? Part III

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By M J Aslam

Article 370 prima facie permanent feature of the Constitution:

Notwithstanding that this special provision has been emptied of its initial force to maintain and protect Unique Position of J&K within Indian Union, “ it is evident that the Constitution-makers have treated the problem of Kashmir on a special basis and that though the association of Kashmir with India which began with the Instrument of Accession has been steadily and gradually growing closer and closer on a democratic basis, it still presents features not common to any other State included in the Union of India”. (Prem Nath Kaul v. State of Jammu & Kashmir, AIR 1959 SC 749= (1959) SCR Supl. (2) 270, (05 Judges Constitution Bench)The continuance of the exercise of the powers conferred on Parliament and President by the provisions of Article 370(1) has been made conditional by the “final approval by the State Constituent Assembly” itself under clause 2 of Article 370. (Ibid; op cit, speech of N Gopalaswami Ayyenger in the CA of India on 17-10-1949[same words])These observations, in other words, meant that it was only the State Constituent Assembly that had plenary power to give final approval on laws extended by President in “concurrence” with the State Governments under this provision. However, the Supreme Court in its two subsequent rulings emphatically approved exercise of powers by the President under Article 370 even after the Constituent Assembly had ceased to operate and JK Constitution had been enforced in the State. The Supreme Court held that the exercise of powers by the President under the provisions of Article 370 (1) even after enforcement of the State Constitution w e f 26-01-1957 would be valid in law. It further held that “Clause (3) of the Article clearly envisages that the Article will continue to be operative and can cease to be operative only if, on the recommendation of the Constituent Assembly of the State, the President makes a direction to that effect. In fact, no such recommendation was made by the Constituent Assembly of the State, nor was any Order made by the President declaring that the Article shall cease to be operative. On the contrary, it appears that the Constituent Assembly of the State made a recommendation that the Article should be operative with one modification to be incorporated in the Explanation to Clause (1) of the Article”. (Sampat Prakash v. State of J&K, AIR 1970 SC 1118= (1969) 3 SCR 574 (03 judges)InSampat Prakash, the Supreme Court held that it was bound by its earlier authority of 7 judges. (Puranlal Lakhanpal v. President of India, AIR 1961 SC 1519= (1962) 1 SCR 688 (07 judges)

 

Similar view about constitutional validity of Article 370, its permanent place in the Constitution and the valid exercise of powers by the President under it was upheld by the Supreme Court in its later decision. (M M Damnoo v. State of JK , (1972) 1 SCC 536)The Constitutional Bench of seven Judges held that the object behind enacting Article 370 was to recognize the “special position” of the State of JK and to provide for that special position by giving power to the President to apply the provisions of the Constitution to JK with such exceptions and modifications as the President might by order specify. (Puranlal Lakhanpal v. President of India, AIR 1961 SC 1519= (1962) 1 SCR 688 (07 judges) While interpreting the word “modification” used in Article 370, the Constitution Bench held that “when Article 370(1) says that the President may apply the provisions of the Constitution to the State of Jammu and Kashmir with such modifications as he may by order specify, it means that he may vary (i.e., amend) the provisions the Constitution in its application to the State of Jammu and Kashmir. We are, therefore, of opinion that in the context of the Constitution, we must give the widest effect to the meaning of the word “modification” used in Article 370 (1) and in that sense it includes an amendment. There is no reason to limit the word “modifications” as used in Article 370(1) only to such modifications as do not make any “radical transformation.” We are therefore of opinion that the President had the power to make the modification which he did in Article 81 of the Constitution”. (Ibid: this interpretation of the word “modification” puts a seal of approval on the Presidential Order of 1954 whereby, inter alia, Article 35-A was incorporated in the Constitution)

It has to be noted that Article 370 is an original provision of the Constitution, as such it cannot be repugnant to other provisions of the Constitution of India in view of cardinal rule of interpretation of the statutes, that is, “In Civile Est Nisi Tota Lege Perspecta Una Aliqua Particula Ejus Proposita Judicare Vel Respondere’, (Translation: “construction is to be made of all parts (of a statute) together, and not of one part only by itself”) Even if it is presumed to be an exception, there are exceptions to every rule. Under the Constitution, only States & not Union Territories have Legislature, as yet, UT of Pondicherry has a Legislature. This is an exception to the general rule.
On the basis of expediency and political history, there are special provisions contained under the Constitution with respect to other States of India. (See Article 371 (A) to 371 (I) with respect to the Statesmentioned therein) Likewise, Article 370 is also a special provision with respect to JK.

The discussion makes it clear that Article 370 has become a “permanent feature” of the Constitution of India as the “condition precedent” for its abrogation as envisaged under its clause (3) (Approval of the State’s Constituent Assembly; supra Sampat Prakash & Puranlal Lakhanpal rulings; The Economic Times dated 03-04-2018[ SC says Article 370 not a temporary provision. The Court said that it had already in State Bank of India v. Santosh Gupta decided on 16-12-2016 that “despite the headnote of Article 370, it is not a temporary provision,”; Following the law laid down by larger benches of the Supreme Court in Prem Nath Kaul (05 judges); Puranlal Lakhanpal (07 judges) ; and Sampat Prakash (03 judges, ) Santosh Gupta reiterated that State of JK for historical reasons enjoys a “special position” in the union of India among the States & that Article 370, though was intended to be temporary or transitional, has become a “permanent feature of the Constitution” for the reasons mentioned in Article 370(3) & without making such a recommendation, Article 370 has stayed permanently on the Constitution) was never fulfilled nor could be fulfilled any time hereafter. This is the ratio of the cited rulings of the Supreme Court in respect of Article 370. Ram Jethmalani, a noted Supreme Court lawyer, has recently stated that “Article 370 is a part of the basic structure of the Constitution because we have incorporated it in accordance of the wishes of the then Constituent Assembly of Jammu and Kashmir……[Repealing] it is out of question. “ (The Economic Times dated 08-11-2014; DNA dated 08-11-2014 [BJP is quiet since I explained Article 370 to Narendra Modi: Ram Jethmalani]) It may be noticed here that under the law of India as laid down by the Apex Court in a plethora of its judgments , staring with its landmark 13 Judges’ judgment in famous case of Kesavananda Bharti , AIR 1973 SC 1461=(1973) 4 SCC 225 , Parliament has power to amend the Constitution but what constitutes “basic structure” or “pith & substance” of the Constitution , that cannot be amended or abrogated by any Constitutional Amendment. As stated above, Article 370 is a “basic structure” of the Constitution, it cannot be destroyed by any Constitutional amendment.

But despite what is stated above, right-wing organisations are time & again approaching the Supreme Court for quashing Article 370 (Greater Kashmir dated 1-11-2015( SC turns down plea]; Indian Express dated 25-12-2015{ only Parliament can decide on scrapping Article 370]; he Hindu Dated 26-11-2018[SC rejects plea against Article 370] but it agreed to consider one more plea filed against Article 370, see The Economic Times dated18-02-2019)The rightwing organisations of India led by BJP are presently spearheading the campaign against Article 370 & Article 35-A. (The Economic Times of India dated 8-4-2019 [election Manifesto of 2019])The approach of right-wingers on Article 370 is just an appeal to closure. Apparently, the Supreme Court cannot declare Article 370 unconstitutional when its 07-judges bench in Puranlal Lakhanpal ante has upheld it & that ruling is binding on it till date. For such an action, the Supreme Court has to then constitute a larger bench of 08 or more judges to revisit earlier rulings on it. But for aforesaid reasons, it seems unlikely. Then what course is left with the rightwing organisations of India to do away with these provisions. For that they need, 360 odd members in Parliament, required numbers in Raja Sabha & majority in 15-17 State Assemblies of India. Presuming that happens, Article 370 is taken away by such an Amendment by right-wingers, such Amendment will 100% come in challenge before the Apex Court that will then in exercise of its power of judicial review either strike down such Amendment as conflicting basic structure (Article 370) without sending it to a larger bench or it may in its discretion constitute a larger bench of 08 or more judges to deal with the issue afresh in the light of earlier rulings & political history of J&K.
Concluding remarks:
National Conference leadership of 1947 which was fully involved in shaping the then “developments” that had far-reaching consequences for overwhelmingly Muslim populated State of J&K took pride in aligning themselves with liberal, social, progressive & democratic “lofty ideals” of INC leadership (See article “State of siege” dated 1-8-2010 published on Sabrang website)instead of “communal politics” of Muslim leaguers would have never thought of that Article 370 will be stripped of its sanctity & honour (Greater Kashmir dated 3-8-2017 [Rape of Article 370])by the same INC leaders & their political-successors about whom they publically had said: Mantu shudam tu manshudi man jah shudam tu tan shudi man degram tu degree . (Translation: Me & Nehru are two bodies but with one soul , cited in Times of India dated 03-11-2011 [Sheikh Abdullah’s speech at Lal Chowk in May 1949], The Statesman (Calcutta) dated 31-05-1949 also reproduced the said Persian quote , see Josef Korbel, Danger in Kashmir (1954- Reprint 2008, City Book Centre, Srinagar), page 204)Keeping in view radical erosions made with the much avowed State’s special status in the Union of India & the fact that its corpse seems to be awaiting cremation at the pyre of secular-democratic-system, as discussed above, the then leadership of National Conference, if they were alive today, would have been compelled to ask themselves: was it a “fustian bargain” they had struck with India as it seems to have been a “constitutional game” ( P N Bazaz, The History of Struggle , page 176 [”in utter ignorance of Kashmir history & the developments in contemporary world of thought & [geo] politics, he [Sheikh M Abdullah] could not comprehend” the most perilous game of politics at most critical times of Kashmir’s political history was played with him & J&K in which he ‘ at the end found himself entangled…”, Josef Korbel, page 205]played with them by the experts of law of which they don’t seem to have been well aware. Article 370 is just an empty shell left in the hands of the State now. Its fire has been taken off it by tinkering with it multiple times.
End words:
Two points arise here: First, if National Conference leadership had not conceded to the incorporation of Article 370 at the most crucial time of political history of Kashmir, what would have been the repercussions. Obviously, Indian case on Kashmir would have been very weak, for its “UN tangle”. Second, if this Article is abrogated after more than 7 decades of its existence on Constitution, what will be the consequences? If this tunnel is severed, then, the “constitutional link” between JK & India is mostly likely to come under serious questioning & sharp focus at national and international levels keeping in view the UN Resolutions that still stand on UN Charter and many countries till date are advocating for resolution of , what they call, long pending “unfinished agenda of partition”. It will be like stirring hornet’s nest and all “facts and myths” surrounding JK’s Accession with India & subsequent developments that “consolidated India’s control on JK” will come in a serious doubt before the world, all mainstream political parties less by right-wingers, say it: The situation India would never want to take place. This seems to be the priori reasoning.
Concluded.


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Opinion

Not in the Mahatma’s name

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By Apoorvanand

The recent uproar over the glorification of Mahatma Gandhi’s assassin, NathuramGodse, by the BharatiyaJanata Party’s Bhopal candidate Pragya Singh Thakur has forced her party to tick her off. It should be a solace for us that there is at least one non-negotiable in Indian politics, that the political cost of the celebration of the murder of the Mahatma is formidably high! But now we would be told to let the matter rest as she has been chided even by her mentors.

Let us look at the implication of this approach, that Ms. Thakur, sans this statement, should be acceptable to us as a potential representative in Parliament. She continues to be the ‘symbol of Hinduism’, as she claimed Prime Minister NarendraModi had said of her. Our satisfaction over the condemnation of Ms. Thakur makes us forget that she is being audaciously presented as the most fitting answer to secular politics, which holds that a person accused of attacks on Muslims cannot be a people’s representative in India.

 

The idea that a Hindu can never indulge in a terror act is, in fact, another way of saying that terror acts are always committed by non-Hindus. Or, by Pakistan, which for BJP leaders is a proxy for Muslims. Union Home Minister Rajnath Singh, while talking about the Samjhauta Express blast case acquittals, claimed that it was unimaginable to accept that Hindus could be involved in such acts, and that he believed that in all such crimes there was the hand of Pakistan. A crime has been committed, and since the Hindu suspects cannot (being Hindus) do it, it can only be Muslims even if they are not caught — this is the underlying assumption.

It is this theory which is being thrown at us by the BJP by presenting Ms. Thakur as its choice for the electorate of Bhopal. It has another sinister aspect. She was selected knowing well that she could not be a choice for Muslims. Her selection is therefore a message to Muslims that by not voting for her, they disregard the sentiments of Hindus, thus showing intolerance towards the majority.

By supporting her, the ‘symbol of Hinduism’, they have a chance to endear themselves to the Hindus. If they don’t, they would always be a suspect.

This argument is not new. Many pundits, while accepting that Mr.Modi was a divisive figure, urged Indians to choose him as he was the best bet for the economic development of India. So, can Muslims be so sectarian as to think only about themselves while the greater national interest is at stake?

The swift and determined move by the BJP to reject her statement on Godse is a clever ploy to make this issue irrelevant while judging her. It is as if we are asked to judge Godse, setting aside the act of murder of Gandhi by him. There are ‘respectable’ people who feel that Godse spoilt his case by murdering the Mahatma. They regret this folly as they believe that there was strong merit in his ideological stance. According to them, he rightly opposed the Muslim appeasement of Gandhi, his anger at the dangerous friendliness of Gandhi towards Pakistan is correct, and his impatience with the unwise and impractical pacifism of Gandhi is to be understood if we want to make India strong.

We are asked to understand that there was a reason Godse was forced to kill Gandhi. We are asked to not treat him as a simple criminal. He was driven by high ideas. To make him a man of ideas, he is constantly humanised. We have seen over the years people talking about his childhood, his education, his editorship. Gandhi must have done something really horrible to provoke a thoughtful human being to turn into an assassin. If anything, they imply, he was a just assassin!

So, we are asked to move away from the trivia, that is the act of the murder, to the substantive, the issues raised by Nathuram in his ‘brave defence’ in the court, which had moved people to tears even then.

The RashtriyaSwayamsevakSangh (RSS), unlike the Islamic State and the Maoists, understands it well that an individual and identifiable act of violence makes it abhorrent and repulsive for the masses, whereas anonymous acts of violence are always more palatable. It was therefore important for Savarkar to distance himself from his disciple, Godse, to remain respectable. For the RSS it was necessary to disown Godse to be able to keep working on the majoritarian ideas he shared with or had learnt from Savarkar and the RSS. No known RSS hand soils his hands with blood; yet it is the politics of the RSS, not at all different from Godse’s, which makes blood flow.

Gandhi had said again and again that it would be better for him to die if India were to become inhospitable to Muslims. He was talking to those who were objecting to the recitation from the Koran at his prayer meetings. Death he could accept but not the narrowing of his heart! Neither bowing to threats or force! In the same invocation, he said, if you ask me to recite the Gita at gun point, I would refuse to obey you.

Gandhi told his audience, your heart is also large. Don’t constrict it. It is this challenge which needs to be accepted. It requires immense bravery of intelligence and humanity to be able to hear Gandhi. This intelligence would tell us that the distancing from the murder of the Mahatma by the co-travellers of Godse is in fact a strategy to enlarge the space for majoritarian ideas and draw more and more Hindus towards them, thus making Gandhi irrelevant while keeping his facade decorated.

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Why I want Pragya Thakur to win

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By Saba Naqvi

Regardless of whether NarendraModi remains Prime Minister or not I want terror accused Pragya Thakur to win from Bhopal. The esteemed leadership of India’s pre-eminent political party chose a terror accused as a candidate and they must endure her tenure as MP.

Pragya may be a poisonous vendor of hate and violence but she is not a hypocrite. Ever since she spoke her mind on describing NathuramGodse, the individual who shot MK Gandhi to death, as a patriot, the BJP national leadership has claimed to be disturbed. The Prime Minister spoke up after her statement, saying, he would never forgive her for what she had said and the party stated that it had initiated disciplinary action against her.

 

But by the time the party took this position, many members of the BJP had come up with twisted arguments somehow justifying Pragya’s validation of the assassin of a figure many revere as a Mahatma or Great Soul. Party members exposed their own problematic ideological heritage that included non-participation in the freedom movement led by Gandhi. Some of them could not help but reveal their own natural impulse to drop the veneer of falsehood and come clean on how they do indeed believe that Godse was a patriot despite having killed Gandhi.

The Godse remark in just two days exposed the ideological underbelly of the ruling party that does indeed have members who believe that Gandhi was a villain who loved Muslims and Pakistan. That’s why Godse, by his own account in a famous trial, shot him. A must-read for those who wish to engage with this debate is the book titled “The Men Who Killed Gandhi” by ManoharMalgonkar.

Seventy-one years after that crime on January 30, 1948, we have come to the point where a candidate contesting in an election for Parliament embraces the Godse world view. What’s more, a member of Modi’s council of ministers, AnantkumarHegde, endorsed her position. The MP from Karnataka had earlier kicked up a storm when he had said that “we are here to change the Constitution”. Yes, the same Constitution he took an oath to protect.

Hegde’s also received a show-cause notice to explain his position and on May 17 BJP president Amit Shah said the party’s disciplinary committee would submit a report on the matter in 10 days, after the election verdict, that is. There was more: the BJP media cell chief in Madhya Pradesh, the state from where Pragya is contesting, was brazen enough to say that Gandhi was the father of the nation of Pakistan. The BJP suspended him.

So how do we read the ideological contortions ever since Pragya uttered the “Godse is a patriot” words? One could say that the BJP is trying to occupy the space of both extreme and moderate in a national ideological pendulum that has shifted right-wards. It’s not a bad ploy—the ideological family plays to the more core beliefs, that are to be revealed step by step, and just in case some voters find them unpalatable, there are the “reasonable” elements as well.

And, voila! Modi becomes a moderate who is being stern with the fringe! That is a useful projection at a time when there is the possibility of needing some allies post-23 May. The BJP has made this ideological journey before, of being all things to all men. Earlier, former Prime Minister AtalBihari Vajpayee was offered up as the moderate to LK Advani, the architect of the Ram temple movement, who brought the BJP to national prominence. Today Modi today is the moderate who is speaking up against the hardliners, who are called “fringe” by those who believe it’s all part of a great national purpose.

It’s not. The “fringe” has been mainstream for some years now. Much before Pragya was presented to the nation as a candidate for parliament, the BJP leadership chose an unabashed Muslim-hating monk of a religious order to be the chief minister of India’s most populous state. All these debates about ‘moderate’ and ‘hardliner’ are a farce designed to make the BJP constituency feel better about themselves. It’s part of the good cop/ bad cop tactic.

To conclude, therefore, I want a terror accused to win, just so that we can, as a nation, get a reality check on where we have landed up. And just in case someone wants to ask me about whether I am afraid, here is my reply: I am so certain about the courage of my convictions, that there is no fear, although I do feel some shame for those who have tied themselves into knots over something about which there should have been no ambiguity. Bring on Pragya and let’s see what happens next.

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The ‘unpeople’ of India

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By Abdul Khaliq

Muslims now have to live with the bleak truth that the most powerful political party and its ideological parent, with tentacles spread across the country, are pathologically hostile to Muslims.

I fear for our future as a secular, multicultural country that once celebrated a richness of culture and tradition. Till not long ago we affirmed our common humanity even as we celebrated our differences. Our nation represented diversity, kindness, compassion and a revulsion of extremist views. But, over time, our collective souls have been deadened by violence, deepening communal and caste divides and the most perverse thinking. The cosmopolitan spirit has been throttled by hyper nationalism, populism and a deep distrust of the liberal values of tolerance and inclusion. A creeping majoritarianism is spreading across the land.

 

In this overheated, protracted election season, Muslims are up against it, caught between a rock and a hard place. Theirs is an Orwellian world where they are the “unpeople”— a term coined by George Orwell in his scary masterpiece 1984, to define those whose names and existence had been erased because they had incurred “Big Brother’s” ire. Muslims now have to live with the bleak truth that the most powerful political party and its ideological parent, with tentacles spread across the country, are pathologically hostile to Muslims. What makes their plight infinitely worse, is the fact that even the major allegedly secular party has consigned Muslims to social invisibility. Can one trust a party that is afraid to even allude to the Muslims’ problems, let alone address them?

When the PM evoked the 1984 mass slaughter of Sikhs and quoted Rajiv Gandhi’s infamous justification about the inevitable effect of the falling of a big tree, why did the Congress president not hit back by recalling the 2002 Gujarat riots and Modi’s Newtonian observation justifying the killing of hundreds of Muslims as a reaction to an action? He refrained, not for any ethical reason, but simply for fear of being seen as empathetic to Muslims and their problems and of equating the two tragedies. Caught between the flagrant hostility of the right-wing and the fraudulent concern of the secular front, Muslims are India’s outcasts.

In today’s India, where all issues across the political spectrum are seen through the lens of identity politics, Muslims are vilified for their custom, dress and tradition. They are physically attacked for the food they eat, discriminated against in employment, housing, and even civic amenities, and, they are routinely victimised by law-enforcement authorities simply for being Muslim. Social media is awash with the most hateful, stereotypical portrayal of Muslims as terrorist sympathisers, baby producing factories and worse. Although India has been the home of Islam and its adherents for much more than a millennium, Muslims today are constantly pilloried about their loyalty to the nation.

All assessments about Muslims are universalised, in black and white and deeply problematic. In a conversation with two CRPF sub-inspectors who have recently returned from Kashmir (I did not reveal that I was Muslim), I was told that “these Muslims are a nuisance as even their women throw stones at us.” Please note that the stone-throwing by the disgruntled Kashmiris is perceived as a common trait of Muslims — all 190 million of them. Their other complaints were that Muslims support Pakistan and insist on eating only halal meat. When I asked how the civil unrest in Kashmir could be resolved, I got an answer that stunned me: “Make sure that the police force in Kashmir is recruited only from the Shia community and they will teach these Sunnis a lesson!” How well have the British taught us the art of “divide and rule” and of polarising communities! The conversation filled me with anguish at the gratuitous distrust and hatred for Muslims. The animosity runs deep and is expressed by ordinary citizens in a matter-of-fact tone that is unnerving.

I recall clearly the sense of cautious optimism among Muslims when NarendraModi assumed power in 2014. His swearing-in was a strikingly symbolic moment, epitomised by the presence of the Pakistani PM that signalled hope of rapprochement with Pakistan (Indian Muslims know through experience that their well-being is linked to this crucial relationship). The PM represented a more decisive polity that promised an equitable social order expressed most eloquently in the Socratic slogan, “Sabkasaathsabkavikas”. This slogan encapsulated this nation’s foremost mission of fostering social solidarity based on the principle that every human being matters. Minorities felt reassured by the PM’s emphatic assertion in 2015 that “my government will not allow any religious group, belonging to the majority or minority, to incite hatred against others, overtly or covertly.” He repeatedly made appeals to preserve our core values of diversity, tolerance and plurality, calling on Hindus and Muslims to work together to fight poverty instead of fighting one another. His stunning embrace of Nawaz Sharif on Christmas Day 2015 filled everyone with hope.

On the ground, however, India began witnessing a deepening cultural mutation as vigilante squads terrorised and lynched Muslims in the name of protecting the cow, launched “gharwapsi” campaigns that have all but ended the freedom to choose one’s faith and used “love jihad” to stifle any kind of solidarity between the two communities. Minorities began to believe that the present dispensation’s aim is to convert India into the Hindu Rashtra of Hindutva where Muslims and Christians would live as second-class citizens. The current election rhetoric has only exacerbated those fears. The BJP LokSabha candidate for Barabanki boasted that “NarendraModi has made attempts to break the morale of Muslims. Vote for Modi if you want to destroy the breed of Muslims.”

We are on the cusp of having a new government at the Centre. Opinion polls and the most reliable — the bookies — predict victory for the NDA, but with a reduced majority. Ironically, the return of Modi as PM is the best hope for peace within the country and the neighbourhood. Imran Khan was right when he said that only Modi could help resolve Kashmir. He is the only leader with the power to rein in the lunatics whose purpose in life is to polarise communities and engage in eternal war with Pakistan. In any case, the new government’s first task would be to combat the overpowering atmosphere of distrust and hate bedevilling society which constitutes the foremost threat to the nation, more so than terrorism. The creation of a truly secular society free of prejudice and discrimination must be the prime mission.

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