SECULARISM
Eminent Jurist Rajeev Dhavan
On Judicial Activism, Secularism and Religious Minorities-I
The lack of a strong judicial activism in the areas of communal mayhem and spiteful hate speech invokes anxiety. The simple and hopelessly unjustified surmise that the judges themselves are communal is unwarranted. But judgements have to be scrutinised and subjected to the respectful and responsible criticism of ordinary men and women, says the author, a senior Supreme Court advocate
The victims of communal hate have insufficient faith in the judiciary. Secularists, howsoever misguided and untutored in the law, are wary about the judiciary.
The mercilessly massacred Sikhs of Delhi in 1984 have still to receive complete justice.
Sahmat's truthful depiction of the Ramayana legend led to a forfeiture of their posters in Delhi. After years, the is still pending. Malevolent propaganda in the fundamentalist magazine, Saamna, has gone scot free. Even after the government virtually admitted a strong case, the Bombay High Court did not mandate the government to sanction prosecution. The Supreme Court's reticence is not overturning the High Court's decision astounded distinguished jurists rather than elicited acclaim.
An unconditional apology from Bal Thackeray led to Justice Verma of the Supreme Court dropping contempt notices against him even though aspersions were cast by him against the judges.
Kalyan Singh went to prison in contempt for a day; but showed contempt even in his incarcetory compliance. The contempt case against Mr. Narasimha Rao for a similar subversion of court orders had tangled in a procedural objection raised by the judges.
Serious inquiry into excesses by the police in Bombay (as it, then was) led to long-drawn proceedings till justice Jeevan Reddy in the Supreme Court put aspects of the inquiries, which need to be made, back on the rails. In 1996, a magistrate in Delhi acquitted Ms. Rithambara, chastised the prosecution for bringing up the case and pronounced the even if she had exhorted Hindus to shed their blood for Ayodhya, these utterances were not directed at another community and not criminally inflammatory. The official organs of the Shiv Sena and their cohorts spout propaganda with impunity.
There are many other instances of discriminatory and forbearances by legal authorities, as also communal propaganda and the mayhem and social terrorism that such propaganda inspires.
A great nation is in the grip of an extra-constitutionalism that is subversive of the rule of law.
When a committee was ready to launch prosecution in the Delhi riots case, Justice Kripal, then in the Delhi High Court, stopped that initiative on the ground that the government could not abdicate its functions to a committee. But had it? The trauma of non-prosecution and lack of investigation inspires little confidence among secular activists.
The High Court in Sikkim refused to stop a hydel power project on the holiest spot of Sikkimese Buddhism, permitting unscrupulous persons interested in obtaining wealth from power projects to have their sway Communalists have got away with non-prosecutions, small fines and one day imprisonments!
The secularist and minorities are anguished that judicial activism has passed them by.
The judicial intuition that seeks to explain the forbearance of the judges should not be taken lightly even if it is inapplicable in all cases. Both during the hearing in Babri Masjid case and in other cases involving mosques the judiciary has asked for calm so that the judges are not drawn into exacerbating a tense situation further.
Both statesmanship and pragmatic understanding animate this intuition. But the reticence that this intuition inspires can easily into restraint, and the restraint into a near total forbearance. Nelson was surely right to turn his blind eye to the warning to retreat; but, the battle went on. In this case, the battle is for the rule of law and secularism
Deaths and disappearances of various other kinds have rightly attracted the attention of the courts. Communal deaths are surely worse, and, when discharged malevolently, fall within that rarest of race categories which require strong investigative and, if need be, judicial response.
In the President's Rule case, the Supreme Court rightly took the view that secularism was part of the basic structure even if the principles it laid down were wrongly applied to the imposition of President's Rule in Himachal Pradesh. The lack of strong judicial activism in the areas of communal mayhem and spiteful hate speech invokes anxiety.
The ... unjustified surmise that the judges themselves are communal is unwarranted. We need to have faith in the judiciary; and, cannot make irresponsible allegations that judges belonging to a particular community favour their own faiths. But judgements have to be scrutinised; and subjected to the respectful and responsible criticism.,.
Underlying our present discomfiture is the dangerous fact that the real (paradigmatic) basis of India's law and policy towards communal strife is not very different-but, in fact and, in respect of its implementation, worse-than that of the British. The British imposed administrative exploited these differences to their own advantage and treated all issues connected with religious tension, (often inspired by the British state) as "law and order" issues.
Having enacted the Indian Penal Code in 1860, further provisions were added in the form of sedition (1870), promoting enmity between classes (1898) and religious faiths (1927). Some of these provisions were straightened after the Rangeela Rasul case from Lahore in 1925. Since their object was to maintain law and order in society, the British were reasonably indiscriminate as regards publications from all groups.
In independent India, the sedition provisions were softened by Supreme Court interpretation in 1962, but the rest of the provisions remained as strong as ever except those permitting forfeiture of printed materials, which (have been) disciplined so that politically motivated outcries would not terrorise free speech into silence.
While post-independence Indian courts took the view that these British provisions against communal have speech should continue, they had little reason to suspect that these anti-communal provisions would be discriminatingly applied and abused. If Muslims sought to protect an Idgah or mosque, they were opposed by various methods and law suits. By contrast and this is the latest trend-certain political followers to attack minorities, especially Muslims. All too often the forces of State stood idly by.
In the main, the seemingly neutral provisions of the law have been used against minorities-especially the Muslims. The dreaded Terrorist and Disruptive Activities Act (TADA) is one example of this.
The failure to prosecute self-evident self-confessed, malicious propaganda directed against the Muslims is yet another example of the mischief-prone British model being distorted by our governments in favour of Manufacturers of communal venom.
What makes such perversions of mal-discretion seem ever more astounding is the fact that these old imperial provisions have to be enforced under the dispensation of our constitution which guarantees free speech, freedom of religion, anti-arbitrariness and equality. Free speech has never meant the right to threaten, terrorise and intimidate. Provocative speech may offend. Mere offensiveness is not illegal or unconstitutional. But the continuance of propaganda machines preaching hate and provoking violence against minorities is simply unacceptable. Failing to stop this kind of propaganda not only subverts the constitution but also civilized principled of togetherness in civil society.
The reason for this differential and, indeed, differential, treatment of communal forces is because the latter are social terrorists who have taken over and threaten the state and authorities who have become either collaborators of been pressurised into a pusillanimous and cowardly inability to be fair. When fear rules, the rule of law sinks; when such fear is accompanied by communal hate, the entire constitutional enterprise is put in jeopardy.
A constitutional problem of considerable significance lies in the failure of Indian jurisprudence to fully explain the meaning of secularism in the Indian Constitution.
The Constitution struck the right balance. Since everyone knew that the constitution created a dispensation in which the right to religious beliefs and practices would be extensively protected and people and institutions (including minority educational institutions) would not be discriminated against because of their faith, the meaning of secularism was well understood and did not have to be explicated.
The lack of specificity caused academics, with misplaced constitutional spectacles. to take the view that Indian secularism was not really secular because it did not compare favourably with its Americans (doctrine of) separation of church and state! Party for electoral reasons and party for genuine reasons of constitutional ideology, the Preamble of the Indian Constitution was amended in 1976 to include the words "secularism" and "secularism".
Unfortunately, the good, healthy, common-sense view of religious tolerance and independence which the early Supreme Court had taken in the fifties was soon washed away to create problems that persist till today.
In the early fifties, especially in Justice B.K. Mukherjea's trilogy of judgements in 1954, a nice balance was struck so that religious institutions would breathe from their own religious inspiration rather than become appendages of the state. When the Attorney General in the Srirur math case (1954) tried to push the court into allowing the state to take over all supposedly non-essential religious practices, the Court firmly refused to endorse such excessive state empowerment.
The general approach was that the State would only ensure financial and constitutional accountability on the part of religious institutions and generally desist from taking them over.
This delicate balance can also be seen in Justice S.R. Das's judgement in the Kerala Education Bill, 1959, in respect of minority ... schools and colleges. It is a tribute to Justice Mukerjea's approach and Justice Das's interpretation of the Constitution that even vexed issues like cow slaughter were dealt with in a manner which elicited consensus all round.
But this balanced approach was short lived.
(To be Concluded)
Shahabuddin's Letter to Chandra Shekhar On Parliamentary Recess for Namaz-i-Juma, 19 September, 1997
I am indeed shocked and surprised at the objection to the traditional adjournment of the Houses for Friday prayer, which you voiced in your speech during the Special Session. Even more surprisingly you linked it with a possible demand by the VHP for adjournment for Archana on Tuesdays and to the meaning of secularism!
Can a new invention which has no scriptural sanction be compared with a traditional facility for worship mandated by the scriptures?
Secondly, the Muslim MP's have never demanded breaks for congregational prayers at mid-day (Zohar) or in the afternoon (Asar) on other working days because these can be performed individually, while the Friday prayer must be performed in a congregation.
Thirdly, the Muslim MP's have never asked for a longer break than the usual lunch hour but only that the House keep to its normal schedule so that they can perform Juma Namaz whose timing falls within the lunch hour. Some members of the Muslim community do adopt a fundamentalist approach in some matters, which leads to conflict between religion and state but you have chosen to illustrate your views by reference to a religious practice which forms an essential core of Islam.
Fourthly, years after the establishment of a Secular State we are still asking for the meaning of secularism in the Indian context. I am quite clear that the motive of those who seek such questions is nothing less than the substitution of the Secular State by a Hindu State. Otherwise, the meaning scope stands fully adumbrated in the Resolutions of the Congress before Independence and the statements of national leaders since then.
Secularisation or Hinduisation
One of the most remarkable features of the current political situation in India is the close alignment between those secularists of this country who are out to "secularise" the Indian Muslims and those Hindu rashtravadis who are after "Indianising" them. Whatever might be the differences between these two groups, they invariably become a single solid block vis-a-vis the Muslim of this country, whom both of them insist on calling separatists, communalists and obscurantists.
That is why, the Muslim secularists are played up as much, if not more, by the Hindu rashtravadi press as by the so-called National press of our country. The Hindu rashtravadis never allow any differences between them and the secularists to come in the way of the latter's efforts through them They give full publicity to all efforts aimed at "secularising" the Indian Muslims, notwithstanding the fact that these efforts have the official patronage of the ruling Congress, the inveterate enemy of the Hindu rashtravadi. It is obvious that, as far as the rashtravadis are concerned, there is hardly any difference for them between 'secularisation' and Indianisation.
(Source: Radiance Viewsweekly, 23 July, 1972)
Gandhiji's Letter to Mountbatten, 27 June, 1947
If I understood you correctly, you said that Qaid-e-Azam Jinnah and the League members were equally in the right with the Congress members and that possibly Qaid-e-Azam Jinnah was more so. I suggested that this is not humanly possible. One must be wholly right in the comparative sense. You have to make your choice at this very critical stage in the history of this country. If you think that Qaid-e-Azam Jinnah is, on the whole, more correct and more reasonable than the Congress, you should choose the League as your advisers and in all matters be frankly and openly guided by them.
You threw out a hint that Qaid-e-Azam might not be able to let you quit even by 15th August especially if the Congress members did not adopt a helpful attitude. I pointed the initial mistake of the British being party to splitting India into two. It is not possible to undo the mistake. But I hold that it is quite possible and necessary not to put a premium upon the mistake
You stated me again by telling me that if the partition had not been made during British occupation, the Hindus being the major party would have never allowed partition and held
the Muslims by force under subjection. I told you that this was a grave mistake. The question of numbers was wholly untenable in this connection. I cited the classic example of less than one hundred thousand British soldiers holding India under utter subjection. You saw no analogy between the two instances. I suggested the difference was only one of degree.
I place the following for your consideration:
(a) The Congress has solemnly declared that it would not hold by force any Province within the Union.
(b) It is physically impossible for millions of caste-ridden Hindus to hold well-knit though fewer millions of Muslims under subjection by force.
(c) It must not be forgotten that Muslim dynasties have progressively subjugated India by exactly the same means as the English conquerors later did.
(d) Already there has been a movement to win over to the Muslim side the so-called scheduled classes and the so-called aboriginal races.
(e) The caste Hindus who are the bugbear are, it can be shown conclusively, a hopeless minority. Of these the armed Rajputs are not yet nationalists as a class. The Brahmins and the Banias are still untrained in the use of arms. Their supremacy where it exists is purely moral. The Sudras count, I am sorry, more as scheduled class than anything else. That such Hindu society by reason of its mere superiority in numbers can crush millions of Muslims is an astounding myth.
I have not shown this to any of my friends.
Mountbatten's Reply, 28 June, 1997
I am glad that you have not shown your letter to others, since I should be very sorry that views should be attributed to me which I did not, in fact, express.
(Source: The Collected Works of Mahatma Gandhi)
