Introduction: Freedom of Religion as a Human Rights Issue

 

INTRODUCTION

 

Freedom of religion in India is a constitutional privilege guaranteed to the entire citizens of this country. It is applicable to all the religious communities. Freedom of religion is also a Human Rights issue. The universal declaration of human rights emphasizes the importance of freedom of religion especially to the minority communities in the world. Unfortunately communal and fundamental organizations and political outfits utilize the religious sentiments of the people to gain political mileage and challenge the rights for freedom of religion to the religiously minority communities.

This work is undertaken to analyze  (1) the constitutional provisions that guarantee religious freedom to all the citizens of India particularly religious minorities, (2) some of the pertinent issues emerging from the constitutional provisions related to the freedom of religion, (3) how Hindutva communal and fundamental forces are harrowing freedom of religion, (4) how strange nationalisms are invented by the Sang Parivar to divert the importance of freedom of religion, (5) how sang Parivar  is sneaking through all the existing constitutional provisions and privileges in connection with freedom of religion in order to obstruct freedom of religion to the minority communities specially religious minorities by legislating freedom of religion bills and communalizing politics (6) the specific issues related to the religious minorities in India and (7) the possibility of considering freedom of religion as a human rights issue.

 

0.1 Constitution of India and Freedom of Religion

Indian Constitution is the product of the research and deliberations of a body of eminent representatives of the people.[1] It is unique because “there is no provision in the Constitution making any religion the established ‘Church’ as some other Constitutions do.”[2] Although, essentially secular in spirit, “the secular objective of the State has been specifically expressed by inserting the word ‘secular’ in the Preamble by the Constitution (42nd Amendment) Act, 1976.”[3] Since the State is secular, freedom of religion is an inherent right. One of the objectives of the Indian constitution, as enshrined in the preamble, is ‘liberty of thought, expression, belief faith and worship’[4]

The spirit of secularism and freedom of religion are explicit in Indian constitution is clear from the fact that “the basis of citizenship in our country is not religion but residence in the territory known as India.”[5]

Apart from the preamble and the right to citizenship, the Fundamental Rights given in part III of Indian constitution prevent any form of discrimination, particularly on the basis of religion.  Article fifteen prohibits discriminations of various short starting with religious.[6] Article sixteen guarantees equality of opportunity, irrespective of religious affiliation, in matters of public employment.[7] And article nineteen protects certain rights including freedom of speech and expression.[8]

Articles 25-28 are directly related to freedom of religion. Article twenty five confers freedom of conscience and free profession, practice and propagation of religion.[9] Article twenty six guarantees freedom to manage religious affairs.[10] Article twenty seven prohibits payment of taxes for promotion of any particular religion.[11]  And article twenty eight is about freedom as to attend at religious instruction or religious worship in certain educational institutions.[12]

            Articles 32 and 226 make provisions for the enforcement of the Fundamental Rights in Part III of the Indian Constitution[13] at the instance of any person whose fundamental right has been infringed by any action of the State, -executive or legislative-and the remedies for enforcing these rights, namely, the writs of habeas corpus, mandamus, prohibition, quo warranto and certiorari, are also guaranteed by the Constitution.[14]

While the Fundamental Rights in Part III are enforceable in the Courts the Directive principles are not.[15] They supplement fundamental rights in achieving the objective of welfare state.[16] The idea of equality of citizens is implicit in the Directive Principles. 

Next in the order of Constitutional provisions for freedom of religion are the fundamental duties. They point ‘to promote harmony and the spirit of common brotherhood amongst all the people of India transcending religious, linguistic and regional or sectional diversities; to renounce practices derogatory to the dignity of women and to develop scientific temper, humanism and the spirit of inquiry and reform.’[17] Particularly, Article 51-A casts duty on every citizen to promote communal harmony and spirit of brotherhood among all people of the country.[18]

Articles 29-30 are pertaining to cultural and educational rights, specifically to      the minorities. Article twenty nine protects their culture and their admission into state maintained educational institutions.[19] And article thirty confers right of minorities to establish and administer educational institutions.[20] It needs to be remembered that minorities under Art thirty are religious and linguistic.[21]

 

0.2 Secular and Christian Voices

 The Constitution of India does not define the term ‘secular’ but the state of confusion has been set at rest by authoritative pronouncements made by the Supreme Court, in a nine-Judge decision.[22] P. N. Sapru explains the scope of freedom of religion in Indian constitution, as “obviously, our secular State has no religion of its own.  It cannot discriminate between individuals on the basis of religion.  No particular religion is entitled to any special patronage from it.  It is not open to it to make laws which compel the acceptance or abandonment of any creed or belief.”[23] In the words of Eddy Asirvatham, “if India is to be a truly secular and democratic State, the government of the land should extend an even-handed treatment to people of all religions and of no religion.”[24]

State does not interfere in religious matters in a secular state. According to E. C. Bhatty “the essential basis of a modern secular State is the institutional separation of State and religion; it limits itself to the promotion of the secular welfare of the people, leaving religious life as areas of the intimately personal... without regulation by the State so long as it does not express itself against public morality and welfare.”[25]

Unfortunately “the dreams for a secular India soon started to vanish with the growth of a kind of neo-fanaticism as part of Hindu revivalism and cultural nationalism.”[26] As its furtherance “intolerance has manifested itself in the activities of communal political parties which are clearly antagonistic to the entire spirit of the secular State.”[27]

 Minorities, mainly, Christian, always argued that article twenty five of the Indian constitution provides inherently for the conversion of others. The Supreme Court of India has differed and declared ‘it does not include the freedom to convert’.[28] In view of the solemnity of the constitution and due respect to the judgment and keeping with the contextual realities of life, constitutionally the right question is whether people have the right to choose a faith of their choice.[29]

Christians see conversion as a means to liberation. According to V. Devasahayam, “the majority in any religion, apart from Hinduism, are the Dalits for whom the religious avenue was the only path available for social upliftment. They could not try anything else. Hinduism is a hierarchical religion, which lead to their enslavement.  Whenever they were looking for ways to escape from the enslaving Hinduism and whenever there were new religions promising equality they joined in large numbers.”[30]

 Another issue raised by the Christians is that Christian Dalits are denied their privileges on the basis of religion.  James Massey states, “the Christians of the Scheduled Castes origin or Dalit Christians, form almost 75% of the population of Christians in India today, yet they are denied their rights promised under the constitution of India, due to the Constitution (Scheduled Caste) Order 1950, which restricts the rights and privileges guaranteed under the constitution to Dalits professing the Hindu faith.”[31]

 

0.3 Hindutva and Freedom of Religion

RSS propagates Hindutva[32] ideology. Its claim that India is the land of Hindus[33] is based on a philosophy of national culture.[34] Its motto is to devote itself to nation building activities according to liberal Hindu culture without interfering with the practice of any other religion and without appeasement of any religion.[35]

RSS declares, “it does not compete in electioneering politics, nor has it any desire to share power.”[36] Nevertheless the political carrier of Hindutva is BJP. It pledges to repeal Art 370 and Art 30 and replace the Minority Commission by a commission for Human Rights.[37] The other organs of RSS like VHP, Bajrang Dal and many others like Hindu Jagaran Munch and Hindu Munnani are floated for the specific purpose of pursuing a particular agenda of the Hindutva politics.[38]

According to Sangh Parivar “all the sects, the various castes in the Hindu fold, can be defined, but the term ‘Hindu’ cannot be defined because it comprises all.”[39]  They claim, “in a way, we are ‘anadi’, without a beginning.”[40]  Another claim is that “it is clearly written in our Constitution that the term ‘Hindu’ includes Sikhs, Jains and Buddhists which means that the expression ‘Hindu and Sikh’ is opposed to the constitution.”[41] For Sangh Privar the word “Hinduism is only a derivative, a fraction, a part of Hindutva."[42] 

 The Sang Parivar sticks to the elements of caste. For them “pulling of swadharma and transplanting something else in its place will only result in utter chaos and degeneration.”[43] They try to rationalize poverty by saying that God comes in the form of poor to give us an opportunity to serve Him.[44]

Their majority complex, which is behind all the communal disturbances are vivid. They declare, “the cultural traits of the Hindus should be accepted in state actions because the Hindus are in overwhelming majority, and so their cultural traits form the national heritage.”[45] On the basis of it “all such groups who consider themselves distinct from this national ethos and cherish hopes and aspirations in opposition to the national ones and demand separate rights and privileges for themselves are to be called ‘communal’”.[46]

Sangh Parivar’s inconvenience with freedom of religion is clearer in their proposal for positive secularism. They say, “Gandhiji’s Ram Rajya is based on that concept of toleration and universality which form the bed-rock of positive secularism that BJP advocates. In this positive secularism there is no appeasement of minorities.”[47] They oppose the real spirit of secularism and freedom of religion and desire for a kind of subjugation and dominance. For them “Nehruvian nationalism was based on minority appeasement to the exclusion of the majority community whereas positive secularism of the BJP envisages welfare of the minorities on the good will of the majority community, the Hindus, in much the same way as the minority welfare has functioned under the majority christian(sic) rule in christian(sic)countries or under the majority muslim(sic) rule in Islamic countries.”[48]

They are for a restricted form of freedom of religion to the minorities. In their view “the Muslims, Christians, and Jews etc., have perfect upāsanā swātantrya, freedom of worship so long as they do not seek to destroy or undermine the faith and symbolism of the national society.”[49] Further “they could bear witness to their faith in life and speech but they should not indulge in any unfair and unspiritual modes of conversion”[50] The outlook Parivar offers has room for all minorities on condition of their whole-hearted submission to the supreme value of the nation in their lives.[51]

            Parivar’s attempt of re-conversion is clothed with nationalism. They argue, “it is our duty to call these our forlorn brothers, suffering under religious slavery for centuries, back to their ancestral home.”[52] Further “this is a call for all those brothers to take their original place in our national life.”[53] Again “this is only a call and request to them to understand things properly and come back and identify themselves with their ancestral Hindu way of life in dress, customs, performing marriage ceremonies and funeral rites and such other things.”[54]

            The Sangh Parivar considers reservations given to the minorities as a political conspiracy. It is said “separatist consciousness breeding jealousy and conflict is being fostered in sections of our people by naming them Harijans, Scheduled Castes, Scheduled Tribes and so on and by parading the gift of special concessions to them in a bid to make them all their slaves with the lure of money.”[55]

             

0.4 Freedom of Religion and Religious Minorities

Like the term ‘secular’ the word minority is also not defined in the constitution but it acknowledges two types of minorities namely religious and linguistic. The issues related to minorities particularly religious minority is very complex.  In a pluralist nation like India, listing a group as minority has its merits. Nevertheless the government of India has enormous responsibility in bringing about equality to all the citizens. Although there are varied forms of definition of the word minority the concern of religious freedom for the religious minorities is envisaged all through.

All the constitutional rights are for the entire citizens of India, but often it is misinterpreted to mean that the minorities are entitled to many extra privileges to the extent of challenging the security of the nation.

Another serious concern is when a person converts to Christianity he or she loses his or her government privileges. In a secular state considering the religious affiliation for government privilege need reconsideration. Another matter that bothers the minority is that the Hindutva forces always attempt to interrupt the good intentions of the government plans to improve the status of the minorities. For the sake of power the Hindu communal and fundamental forces have taken many courses to weaken other religious communities.  The religious minority community is also often accused of disrespecting Hindu religion, culture, nation, religious heroes, etc.

            The Hindu communal ideology creates hatred against the Muslim community on false accusations. Similarly the Christian activities are severely charged with many allegations. Often the Sang Parivar prescribes behavioral norms to the Christian community in India. The privileges the Christian institutions are entitled to along with other religious minorities is seen as unwarranted.

The Parivar are unable to accept the development of other religions. To tamper the development of other religious communities they confuse religion with nationalism. Although Hinduism has done all that was possible to assimilate and absorb Buddhism still the communal forces are viciously accusing it as traitor. 

The Indian constitution is committed to protect the interests of the religious minorities unlike the unhealthy determinations of the Sang Parivar. It is also crucial that all attempts to curb the minority religions needs to be challenged. In the context of freedom of religion, the tension between the preference for individual and collective freedom needs special attention.  Denial of freedom of religion amounts to denial of basic human rights. It can also obstruct all other freedoms.

 

0. 5 Freedom of Religion and Human Rights

            A cursory understanding of human rights helps recognize better the essentiality of religious freedom. According to C.P. Barthwal, “the expression ‘human rights’ denotes that the individual as a human being enjoys certain basic rights, which are necessary for the all round development of human personality and, in the absence of which, no individual would be able to lead a happy, moral, civilized and human life.”[56] Freedom of religion is one such basic right.

After the declaration of UN Human Rights in 1948 “again on November 25,1981, the UN proclaimed a specific declaration on the elimination of all forms of intolerance and discrimination based on religion and belief which virtually warned the human race that no kind of discrimination / exploitation by any state, institution and group of persons on the ground of religion or other beliefs of a particular ethnicity would be tolerated.”[57] And again “after a decade, the Un on December 18, 1992, adopted a declaration for the promotion of safeguarding the identity for cultural, ethnic and linguistic and religious minorities.”[58]

Considering the crucial role of freedom of religion it is confirmed that the principles of human rights are means and ends to the preservation and protection of minority rights.  It is also recognized that religious rights is a means to realize other rights of the minority groups.[59] In the context of “the blatant denial of religious liberties by the Hindutva forces who talk about the ‘unity’ and ‘security’ of the nation tending to justify its violent behaviour against the minorities. Any critique of human rights violations especially against the minorities should be based on praxis.”[60]

 

0.6 Some Important Considerations

This study attempts to make an appeal from the perspective of the real existence of many religions and their role in shaping and sustaining life[61] that the secular spirit of the Indian constitution should be preserved at all cost for the good of the country and for the citizens. Terming it as Pseudo secularism and attempting to replace with positive secularism of Sang Parivar is destructive to the Indian multi-plural society.

The attempt to review the constitution with a religious agenda is against the health of the nation. Hence there is a need to reiterate that ‘liberty of thought, expression, belief, faith and worship’ guaranteed in the constitution should be respected and upheld.

The attempt to name the citizenship of non-Hindus as secondary is against the constitution of India. Similarly asking non-Hindus to leave the country is against the multi-plural character of Indian society and against the citizenship guaranteed in the constitution. First and foremost all citizens of this country are Indian citizens and religion is secondary.

As the fundamental rights of the Indian constitution prohibit any kind of discrimination, including discrimination based on religion, the attempt to divide people on the basis of religion and specify opportunities on the basis of religious adherence violate the intent of the constitution and create disharmony in the society.

The constitution envisages equality (Directive Principles) and harmony (Fundamental duties) among the citizens. Hence all efforts to polarize people and offer unequal benefits on the basis of religion are contrary to the spirit of the constitution and they affect sustainable life.

The fear psychosis of the majority, that the minorities will outnumber them and create separate countries within India is unfound and highly motivated. This is aimed at curbing the rights and privileges of the minorities. In the highly communalized atmosphere minorities require adequate safeguards.  At the same time minorities should respect the constitution and function accordingly without infringing fundamental rights and human rights. Minority institutions should function within the ambit of Indian constitution.

 The nationalisms-cultural, religious, linguistic, caste, majority and Hindu are fabricated to impoverish freedom of religion to the minorities. Similarly, the call that “Rama and Krishna may be appreciated by non-Hindus as secular examples while the Hindus will see them as full spiritual exemplars (avatars).”[62]  

Under no pretext, caste elements should be rationalized and poverty justified. Rather all efforts should be taken to promote fullness of life. Swami Dharma Theertha writes “the revival of Caste-Raj in any form is the greatest menace of the present crisis which all liberty-loving people, Hindus, Sikhs, Muslims and Christians, should unite in combating.”[63]

Most of the arguments of the proponents of Hindutva, particularly Golwalkar are flimsy and often conjectures and are based on myths. Their double stands in asking others to respect Hindu religion and culture but refusing to respect other faiths are unreasonable. It is like a defeated psyche over acting beyond proportions to the level of betraying the tendency to dominate others.

The legislation of freedom of religion bills in a few states of India on the grounds that conversions are carried out by force and fraud is unproved. In the same line, more agonizing aspect of the Sang Parivar is the politicization of religion. Capitalizing on communal politics is an erroneous way of gaining political mileage in a country, which houses many living religious traditions.

Minorities, particularly Christian, should go any length to defend our nation with true patriotism, if things warrant. No one can encourage, in any way, those who live in the territory of India and enjoy the benefits of India and at the same time wants to listen to the leaders of neighboring countries. Forces that purposely incite unrest and perpetuate divisive agendas in the country, specifically in border areas, at the persuasion of foreign money and allurements have to be fought with. The Hidutva forces need to look for the sources of internal disturbances somewhere else may be across the borders, and not to target minorities and their activities in India.

The Hidutvas claim for re-conversion and their opposition to people converting from one religion to another require serious consideration. It is unconstitutional to impose any form of conversion. At the same time unrestricted freedom of religion to choose religion of one’s own choice is the spirit of constitution. In the light of Dalits’ consideration of religious avenue as the only path available for social upliftment[64] an analysis of the role of nonreligious elements in obstructing freedom of religion can help developing constructive perspective.

Although the Indian constitution is secular in nature and it guarantees freedom of religion, the wider and universal significance of freedom of religion can be appreciated when it is considered as a fundamental Human Rights issue.            

As religion influences the daily life of people the issue of freedom of religion can be pursued from the perspective of peoples’ struggle for a sustainable life in a multi-plural context, like India. In the words of Swami Dharma Theertha “the only way to unite the different communities of India into a united nation is to hold up before them a glorious social ideal worthy of their highest dedication and willing sacrifice.”[65] He further writes, “the meaning and content of political independence has to be supplied in the form of social liberty, equality of opportunities, economic justice, freedom of faith and other rights, equities and values of daily life which will make national unity a proud asset of every individual and will create in him the consciousness of a common destiny.”[66]

            Finally, this research is not an exclusive study on the Indian constitution. Neither is it a historical study of Hindutva Movements. Nor is it a special study of Human Rights issues. Nor is it an extensive investigation of Freedom of Religion Bills. It is limited to analyze the constitutional provisions of freedom of religion, to analyze the threat posed by Hindutva Movements to the secular credentials of the state and to the rights of minorities, particularly Christian, and finally to analyze the prospects of considering freedom of religion as a basic Human Rights issue in the context of, communalism, politicizing religion and Freedom of Religion Bills in India.

           

 



[1] Durga Das Basu, Introduction to the Constitution of India, 19th ed. Reprint (Nagpur: Wadhwa and

 Company, Law Publishers, 2003), 3.

[2] Ibid. , 27.

[3] Ibid.

[4] Ibid. , 21.

[5] P.N. Sapru, “Religious Freedom and Civil Liberties,” in Religious Freedom, edited by J.R. Chandran, and

M. M. Thomas, (Bangalore: The Committee for Literature on Social Concerns, 1956),8.

[6] P.M. Bakshi, The Constitution of India with Selective Comments (New Delhi: Universal Law

Publishing CO. PVT. LTD., 1998), 22-23.

[7] Ibid. , 24-25.

[8] Ibid. , 28-29.

[9] Ibid. , 47.

[10] Ibid. , 49.

[11] Ibid. , 50.

[12] Ibid.

[13] C.P. Barthwal, “Human Rights and India,” in Perspectives on Human Rights, edited by M. B. Dube

 and Neeta Bora (New Delhi: Anamika Publishers & Distributors (P) LTD., 2000), 78.

[14] Durga Das Basu, Introduction to the Constitution of India, 38.

[15] Ibid.

[16] P.M. Bakshi, The Constitution of India with Selective Comments, 69.

[17] Ibid. , 76.

[18] C.P. Barthwal, “Human Rights and India,” in Perspectives on Human Rights, 78.

[19] P.M. Bakshi, The Constitution of India with Selective Comments,51.

[20] Ibid. , 52.

[21] Pannalal Dhar, India and Her Domestic Problems: Religion State and Secularism

(Calcutta: Punthi- Pustak, 1993), 157.

[22] Durga Das Basu, Introduction to the Constitution of India, 116-117.

[23] P.N. Sapru, “Religious Freedom and Civil Liberties,” in Religious Freedom,  6.          

[24] Eddy Asirvatham, “ Religions and the Unity of India,” in Religious Freedom, edited by J.R. Chandran,

            and M. M. Thomas, (Bangalore: The Committee for Literature on Social Concerns, 1956),22.    

[25] E. C. Bhatty,  “Religious Minorities and the Secular State,” in Religious Freedom, edited by J. R.

Chandran,  and M. M. Thomas, (Bangalore: The Committee for Literature on Social Concerns, 1956), 74.

[26] M.P. Raju, Religious Conversion: Legal Implications(Delhi: Media House,1999) 34.

[27] E. C. Bhatty,  “Religious Minorities and the Secular State,” in Religious Freedom,  77.

[28] Ebe Sunder Raj, National Debate on Conversion (Chennai: Bharat Jyoti, 2001) 4.

[29] Ibid.

[30]V.Devasahayam, “Theological Reflections on Charting a New Course for Churches in Dalit

Struggles,” National Council of Churches Review cxxiv/4 (April, 2004): 39.

[31] James Massey, “Why the Fundamental Rights of Dalit Christians should be restored?,” NCC Review cxxv/3 (April, 2005): 10.

[32] Vinayak Damodar Savarkar, Hindutva: Who is a Hindu?, 6th ed. (New Delhi: Bharti Sahitya Sadan,

1989), 81.

[33] Ibid. , 82.

[34] M.A. Venkata Rao, “Introduction”, in M.S. Golwalkar, Bunch of Thoughts, 3rd ed., Reprint

(Bangalore: Sahitya Sindhu Prakashan, 2000), xiv.

[35] Pannalal Dhar, India and Her Domestic Problems: Religion State and Secularism, 110.

[36] M.S. Golwalkar, Bunch of Thoughts, 3rd ed., Reprint (Bangalore: Sahitya Sindhu

Prakashan, 2000),  172.

[37] Pannalal Dhar, India and Her Domestic Problems: Religion State and Secularism, 97.

[38] Ram Puniyani, Fascism of the Sangh Parivar (Delhi: Media House, 2000), 9.

[39] M.S. Golwalkar, Bunch of Thoughts, 54.

[40]Ibid.

[41]Ibid. , 106.

[42] Vinayak Damodar Savarkar, Hindutva: Who is a Hindu?, 3.

[43] M.S. Golwalkar, Bunch of Thoughts, 65.

[44]Ibid. , 37.

[45] Pannalal Dhar, India and Her Domestic Problems: Religion State and Secularism, 104.

[46] M.S. Golwalkar, Bunch of Thoughts, 164.

[47] Pannalal Dhar, India and Her Domestic Problems: Religion State and Secularism, 56. 

[48] Ibid. , 120.

[49] M.A. Venkata Rao, “Introduction”, in M.S. Golwalkar, Bunch of Thoughts, xv.

[50]Ibid.

[51] M.A. Venkata Rao, “Introduction”, in M.S. Golwalkar, Bunch of Thoughts, xiv.

[52] M.S. Golwalkar, Bunch of Thoughts,128.

[53] Ibid.

[54] Ibid. ,  129.

[55] Ibid. , 110.

[56] C.P. Barthwal, “Human Rights and India,” in Perspectives on Human Rights, 78.

[57] N.S. Gehlot, “The Human Rights Movement in India: Problems and Prospects ,” in Perspectives on

Human Rights, edited by M. B. Dube and Neeta Bora (New Delhi: Anamika Publishers & Distributors (P) LTD., 2000), 63.

[58] Ibid.

[59] I. John Mohan Razu and D. Samuel Jesupatham, “Religious Rights as Part of Human Rights when

 the Lives of the Minorities are at Stake,” in Struggle for Human Rights: Towards a New Humanity, edited by I. John Mohan Razu ( Nagpur: National Council of Churches in India, 2001),160. 

[60] Ibid. , 163.

[61] See S. Robertson, “Life Sustaining Pluralistic Perspective,” Asia Journal of Theology 18/2 (October,

2004): 374-397; S. Robertson, “Periyar E.V. Ramasami’s Critique of Priestly Hinduism and its

Implications for Social Reforms,” Religion and Society 49/2&3 (June& September, 2004): 10-29; S. Robertson, “Hindu Spirituality,” Religion and Society 50/2 (June, 2005): 1-23.

[62] M.A. Venkata Rao, “Introduction”, in M.S. Golwalkar, Bunch of Thoughts,  xv.

[63] Swami Dharma Theertha, History of Hindu Imperialism, 5th ed. (Madras: Dalit Educational Literature

Centre, 1992),276.

[64]V.Devasahayam, “Theological Reflections on Charting a New Course for Churches in Dalit

Struggles,” National Council of Churches Review, 39.

[65] Swami Dharma Theertha, History of Hindu Imperialism, 205.

[66] Ibid. , 206.

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