SECULARISM

Eminent Jurist Rajeev Dhavan

On Judicial Activism, Secularism and Religious Minorities-II

With the advent of Justice Gajendragadkar's judgements in the Supreme Court, the basis of the earlier interpretation was undermined and a new path was paved for extended state intervention.

While it was right to bring the Swaminarayanas within the law relating to untouchability (much in the same way as Buddhists and Jains are Hindus for those purposes), there is little justification for convincing the Swaminarayans that they really were Hindus when they made it clear that they were not.

Justice Gajendragadkar's decision on religious freedom in the constitution profoundly affected the future. He limited constitutional protection to only "essential practices" in the faith, allowed a near total control over religious institutions and reified the meaning of Hinduism to a point that politically motivated Hindus to claim that Hinduism is virtually synonymous with Indianness.

Justice Gajendragadkar's "assimilative" approach, which virtually makes temples and maths appendages of the State, continued with a constitutionally self-assured over-kill.

Governor Jagmohan's experiments with the management of the temple of Vaishnodevi are laudatory; but they cannot become a universal model in which people’s rights are surrendered to the State even though the improvements made were impressive and necessary at that time. A more imaginative people-oriented model is required.

Justice Gajendragadkar's assimilative brand of secularism has found expression in three Andhra cases decided by Justice Ramaswami in 1995-96 in which the accent is more on state control rather than on religious freedom, The new Justice Ramaswami trilogy of 1995-96 is quite removed from the original Justice Mukerjea trilogy of 1954 with which it claims an affinity. Today's religious endowments are under continuous threat of take over but the state in the name of bad management by the traditional custodians. What was intended as a default power has resulted in extensive state control. This new secularism will pave the way for new forms of state control at the behest of communal forces. Justice Ramaswami's judgements of 1995-96 contain discussions of Hinduism which were not directly relevant to the case.

In the election cases of 1994-95, Justice Varma's Hindutva judgement (as it has come to be called) reified Hinduism (in its new description ad Hindutva) beyond even Justice Gajendragadkar's approach. In its electoral context, Hindutva is clearly an appeal to religion no more, no less. In Justice Verma's version, such an appeal appears to be sanctified as an appeal to our Indianness. The fact that justice Verma drew support from justice Gajendragdkar's Swaminarayan judgement is telling; and helps us to trace the origins of this interpretation.

In the past two decades, the Supreme Court has not hesitated to explain various faiths to the people of that faith. The correct approach was to accept a religious practice but control it in the name of law and order.

There is little point in the Supreme Court telling followers of Aurobindo that they do not possess a distinct faith if they believe they do. The same logic applies to the Supreme Court's refusal to extend constitutional protection to the faith of the followers of Sri Ramakrishna in 1995.

Controlling the social effects of a faith is one thing, making judicial pronouncements on a peoples' faith is another-unless the faith had been invented only for the court case. Our justices are wise, and knowledgeable but they are not theologians or pandits or authoritative exponents of religion.

After the majority judges in the Babri Masjid case went through the exercise of accepting a usurpation of waqf property through the aegis of juristically invented concept of a statutory receiver. Justice Varma's judgement made the judicial finding that praying in a mosque is not an essential practice of the Muslim faith because Muslims can pray anywhere, even in the open! A part from the manner in which this was phrased, the logical outcome of this finding is that the right of Muslims to pray in their mosques is not necessarily constitutionally protected.

Once the pandora's box of judicial interpretation of this king is opened, a great deal may flow out of that box. In one case, Justices Kuldip Singh and Sahai virtually directed the government to enact a uniform civil code. Later. they retreated.

The first is to enlarge constitutional interpretation along the lines proposed by Justice Gajentragadkar in sixties to create high levels of State interventionism. given this license, the State has rushed in where angels may fear to tread. This approach has been further extended in the area of minority educational institutions which are fast becoming appendages of the state even if they do not receive a grant from the latter.

By contrast, the second approach of the Court and State is to show restraint and forbearance and not interfere in religious matters. Ironically, where communal violence, threat and intimidation strike at the roots of constitutional secularism the judiciary has often shown forbearance. Where forbearance should be shown -management and takeover of religious institutions the court seems to have sanctioned and condoned the takeover of these institutions.

Religions cannot be taken over by the State. Nor can the faith be interpreted by the judiciary. What the followers of all these people do expect is that they will not be discriminated against either by the State or in civil society. They also have a right to expect that they will not be threatened, attacked or intimidated by others; or, be subjected to politically motivated doubts about their national loyalty. They have a right to feel that this country belongs to them and not just to persons of the majority faith. If the Indian Constitution or any interpretation of it cannot defend their right to their faith, beliefs and practices, it would have failed to achieve one of the fundamental tenets of Constitution. Freedom of religion, which the judiciary is duty bound to protect, includes freedom from fear and victimization on religious grounds. Such issues require tactful handling, but they cannot be outside the purview of judicial activism.

The Babari Masjid was destroyed four years ago in 1992. Today Hindu prayers take place on the site of that mosque. Surely, this must give us pause.

(Source: The Secular Democracy, May, 1997)

Hashim Kidwai's Criticism of Chandra Shekhar

While speaking in the Lok Sabha special session Chandra Shekhar hit out at the Indian secular parties -JD, the Left parties and the Congress - which prompted political untouchability, that is (isolated) the BJP ... in the name of fighting Hindu communalism. He demanded that secularism should be redefined to combat religious fanaticism. One is shocked at the somersault of Chandra Shekhar. He conveniently forgets that one reason why the BJP has become so strong is due to the policy of secular parties in having BJP as their allies in 1977 Chandra Shekhar's condemnation of secular parties (for isolating) BJP is a way of supporting the BJP. It is indeed a national tragedy that a secular leader like Chandra Shekhar should take such a position.                                                

(Source: The Pioneer, 14 September, 1997)

B.G. Verghese on Secularism

Secularism was poorly conceptualised and promoted. There was a tendency to pander to the orthodoxy. Little effort was made to write secular textbooks and people’s histories of India. Instead, there was continuing periodisation of Hindu and Muslim dynastic rule while ignoring much of what happened beyond the Indo-Gangetic plain.