India: Supreme Court's Tryst with Secularism and Hindutva (Namit Saxena)

The Economic and Political Weekly, Vol - L No. 18, May 02, 2015

Supreme Court's Tryst with Secularism and Hindutva

Namit Saxena


In February this year, the Supreme Court held that although Muslim personal law permits a man to marry four women, this does not offer protection against service rules that prohibit more than one spouse. This article looks at a number of significant judgments on secularism down the years and traces how they defined a term whose correct interpretation continues to elude us.

Namit Saxena (namitsaxena2007[at]gmail.com) is an Advocate, Supreme Court and former Law Clerk to Justice Kurian Joseph.

Introduction

India is home to eight major religions of the world. A necessary concomitant for peaceful coexistence then in such a diverse state is equality before law for all religions. The first document which spoke about “equal treatment of all religions” was the proclamation by queen Victoria issued in 1858 just after the Sepoy Mutiny. This document in the long run proved to be the sanjeevani booti (herb of immortality) for the British policy of divide and rule. The expression “Hindutva” was first used by V D Savarkar in his essay “Hindutva: Who Is a Hindu?” written in 1923. Interestingly, while notifying the Constitution, the founding fathers did not deliberately declare the country as secular. It was only in 1976 when the then ruling establishment through the 42nd constitutional amendment added the word “Secular” to the Preamble. However a definition of either “secularism” or “religion” was not supplied.

This phenomenon of equal/principled distance from all religions has over the years shuttled across various judge-centric interpretations ranging from tolerance to a way of life to Indianisation to equality. In the absence of a ready-made definition, the burden fell on the Supreme Court to lay down a standard meaning. In February this year, in a landmark judgment, the court reignited the debate and held that the statutory rule prescribing termination of service on contracting a second marriage without dissolving the first did not violate the freedom to practise religion under Article 25. The Court ruled that although Muslim personal law permits a man to marry four women, this does not offer protection against service rules that prohibit more than one spouse.1 Nevertheless, India’s search for the best possible interpretation of secularism continues.

The Supreme Court expressed its views on the secular nature of the Constitution for the first time in Sardar Taheruddin Syedna Saheb vs State of Bombay2 when Justice Ayyangar explained (before the 42nd amendment):

Articles 25 and 26 embody the principle of religious toleration that has been the characteristic feature of Indian civilisation from the start of history…Besides, they serve to emphasise the secular nature of Indian Democracy which the founding fathers considered should be the very basis of the Constitution.

In Keshvananda Bharati,3 Chief Justice Sikri named “secular character” as one of the basic features of the Constitution, also similarly worded and affirmed by Justices Shelat, Grover and Jaganmohan Reddy. However, a contradiction arose between the judiciary-constructed concept of secularism and the earlier views in Ahmedabad St Xaviers College Society vs State of Gujarat4 where Justices Chandrachud and Matthew wrote:

Our Constitution has not erected a rigid wall of separation between church and state. We have grave doubts whether the expression ‘secular state’ as it denotes a definite pattern of church and state relationship can with propriety be applied to India. It is only in a qualified sense that India can be said to be a secular state. There are provisions in the Constitution which make one hesitate to characterise our state as secular....

In short secularism in the context of our Constitution means only “an attitude of live and let live developing into the attitude of live and help live.”

The Hindutva Judgments

In S R Bommai vs Union of India,5 the Court however once again confirmed secularism as part of the Constitution. Seven out of the nine judges reiterated that secularism was one of the basic features of the Constitution. The Court in Ismael Faruqui vs Union of India,6 the R C Podayal case7 and the Ram Janmabhoomi case, however again inclined towards equating secularism with tolerance wherein Justice J S Verma quoted from the vedic scriptures like the Yajur Veda, Atharva Veda and Rig Veda to justify his concept of Sarva Dharma Samabhava.

S Radhakrishnan in his famous Upton Lectures (1926) had for the first time characterised Hinduism as a “way of life” rather than a religion based on dogma. This description was heavily relied upon in the Temple Entry case.8 The apex court once again made an attempt to settle this rampant confusion in the Hindutva judgments.9 It used “Hindu,” “Hinduism” and “Hindutva” interchangeably and went on to say that these terms are not amenable to any precise definition and no narrow construction can be applied to lay down a specific definition. The three major grounds as crafted by Justice Verma were:

(a) A speech with secular stance10 which is alleged to discriminate against other religions and promising to create a state for a particular religion cannot be treated to be a corrupt practice u/s 123(3) as an appeal to vote on grounds of religion as the basis of such stance is promoting secularism.

(b) The constitutional vision and wisdom does not expect to create a duty to get political parties in line with secularism considering the statement was merely an expectation in the form of a ray of hope.

(c) Hindutva and Hinduism were equated—“39. Ordinarily, Hindutva is understood as a way of life or a state of mind and it is not to be equated with, or understood as religious Hindu fundamentalism. …The above opinion indicates that the word ‘Hindutva’ is used and understood as a synonym of ‘Indianisation’, i e, development of uniform culture by obliterating the differences between all the cultures coexisting in the country.”

The Hindutva judgments appropriated the approach and the reasoning of the decision in the Temple Entry case but for an objective entirely different from that case. The Hindutva judgments relied mainly on two cases, Sastri Yagnapurushadji and Ors vs Muldas Bhudarda Vaishya and Ors11 and Commissioner of Wealth Tax, Madras & Ors vs Late R Sridharan by LRs.12 However, neither of the judgments supported the conclusion that Hindutva or Hinduism meant the culture or the way of life of the people of India as a whole. The Hindutva judgments did not draw any logical conclusion from secularism. Instead, they kept the debate open by estimating Hindutva to be synonymous with nationalism/Indianisation/rashtriyata.

In the review petition recorded in the Mohd Islam13 case, for the first time the Court reconciled the Hindutva judgments and the S R Bommai judgment. The petition was dismissed on the grounds that there was no contradiction between the rationales of the two judgments. The Court emphasised the need for a legislative exercise for clarity in this context. An interesting point at this juncture is that the Hindutva judgments were referred in 1996 in Abhiram Singh vs C D Commachen14 to a larger bench of five judges which was not acted upon until 2014. To quote:

13 Thus, without expressing any opinion on these questions, we are of the view that the entire case requires to be heard and decided by a larger bench of five judges since the decision thereon impinges upon the purity of election process and requires to be decided authoritatively.
14 We, therefore, direct the registry to place the case before our learned brother, the chief justice for constituting a larger Bench of five Judges, and, if possible, at an early date so that all the questions arising in the present appeal could be decided authoritatively and expeditiously.

It is a settled law that once a reference has been made to a larger bench by a bench of same number of judges, the judgment is not authoritative and binding till the reference is disposed off.

Definition Again

In Madhu Kishwar vs State of Bihar,15 Chief Justice Punchhi emphasised modernism and the inevitable secularisation of laws. The struggle between a definition of “secularism” in rational and religious terms came up again when Justice Ramaswamy in Bhuri Nath vs State of J&K16 held that non-religious practices and anti-religious practices are antithetical to “secularism.” In a remarkable judgment,17 he laid down the two extremes of this discussion. He pointed out that secularism is a basic feature of the Constitution; however India is a very religious country with the majority population of Hindus divided on numerous aspects. The only way by which unity was possible was through adjuring violence and cultivating tolerance. Subsequently in the Text Book case,18 Justice Shah observed that secularism is neither pro-God nor anti-God and that it treated alike the devout, the agnostic and the atheist. Furthermore, the Court deliberately avoided all questions of religion in the famous Babri Masjid case19 in reference to secularism and the limits of tolerance.

However, in M P Gopalakrishnan Nair vs State of Kerala20 the Court again trod the middle path while dealing with the concept of secularism with Justice Sinha holding that secularism under the Constitution did not mean the constitution of an atheist society but merely that allreligions enjoyed equal status without any preference in favour of or discrimination against any one of them.

In Bal Patil vs Union of India,21 while examining the claim of a religious group for minority status, the Court dealt with why minority religious rights had been included in the Constitution and the history of minority rights in India. It observed that Hinduism was the general religion and common faith of India. For the first time the Court deprecated religious minority politics and espoused the concept of secularism in the form of principled distancing from all religions and “equal treatment of all religions.”

In I R Coelho vs State of Tamil Nadu,22 which was preceded by M Nagaraj vs Union of India23 where the court used secularism to balance the equality claims for reservation under Article 15, it expanded the ambit of secularism from being a mere religious concept to a right under Articles 14, 15 and 21.

In Prafull Goradia vs Union of India,24 the Court took a comprehensive view:

17…since India is a country of great diversity, it is absolutely essential if we wish to keep our country united to have tolerance and equal respect for all communities and sects….

However, the interpretation of “secularism” was given a new dimension in Dara Singh vs Republic of India:25

96….Our concept of secularism is that the State will have no religion. The State shall treat all religions and religious groups equally and with equal respect without in any manner interfering with their individual right of religion, faith and worship.

Conclusions

The Court had in 2014 referred its Hindutva judgments26 to a Constitutional bench comprising seven judges. Undoubtedly, Hinduism is an ancient and tolerant faith, but so too are other religions. The question still remains: What does secularism mean for us? Does it mean tolerance or having no religion or having all religions but maintaining an equal distance from each? What exactly is the ambit of this “equal distance”? Do we have a theoretical secularism different from pragmatic secularism? Does the comparison of Hindutva with Indianisation/rashtriyata represent a diversion from the principle of secularism? It is necessary that if the Court intends to release the valuable concept of secularism from the clutches of a particular religion, it has to be connected with all religions maintaining their respective distinct identities and remaining safe from the clutches of political agendas.

This is the biggest challenge that faces the Supreme Court.

Notes

1 Khusheer Ahmed Khan vs State of UP & Ors, delivered on 9 February 2015, viewed on 12 February 2015, http://judis.nic.in/supremecourt/imgs1.aspx?filename=42361

2 AIR 1962 SC 853.

3 (1973) 4 SCC 225.

4 (1974) 1 SCC 717.

5 (1994) 3 SCC 1.

6 (1994) 6 SCC 360.

7 (1994) Supp 1 SCC 324.

8 AIR 1966 SC 1119.

9Ramesh Yashwant Prabhoo (Dr) vs Prabhakar K Kunte, (1996) 1 SCC 130; Manohar Joshi vs Nitin Bhau Rao Patil, (1996) 1 SCC 169; Ramchandra K Kapse vs Haribansh R Singh, (1996) 1 SCC 206.

10 The First Hindu State will be Established in Maharashtra.

11 Supra n 14.

12 (1976) 4 SCC 489.

13 (1996) 2 SCC 749.

14 (1996) 3 SCC 665, at page 671.

15 (1996) 5 SCC 125 Para 33.

16 (1997) 2 SCC 745 Para 15.

17 Sri Adi Visheshwara of Kashi Vishwanath Temple vs State of UP.

18 (2002) 7 SCC 368.

19 (2003) 4 SCC 1.

20 (2005) 11 SCC, 45, Para 20.

21 (2005) 6 SCC 690.

22 (2007) 2 SCC 1.

23 (2006) 8 SCC 212.

24 (2011) 2 SCC 568 p 574.

25 (2011) 2 SCC 490, at page 531.

26Ramesh Yashwant Prabhoo (Dr) vs Prabhakar K Kunte, (1996) 1 SCC 130; Manohar Joshi vs Nitin Bhau Rao Patil, (1996) 1 SCC 169; Ramchandra K Kapse vs Haribansh R Singh, (1996) 1 SCC 206.