Dichotomy between judicial understanding and philosophical understanding

of Secularism

Submitted by- Abhinav Bakolia

Submitted to - Mr. Neeraj Kumar

Subject- Jurisprudence II

NATIONAL LAW UNIVERSITY, DELHI

2015

Introduction

India is a classical example of a democratic society. Whenever anybody discusses Indian society,

it is obvious for that person to be amazed by the variety and diversity present here. Religion is an

integral part of any person's belief system. The Black's law dictionary defines secularism as not

sacred, not ecclesiastical, and concerned with the affairs of the world1. It is socially useful

because it constitutes a moral force and an element of sociability. The sociologist Durkheim

defined religion as a "unified system of beliefs and practices relative to sacred things2. Religion

has value both for society and individuals. What is worth noting is that in society it acts as a glue

among the followers of same religion whereas in cases of individual, each individual view it in a

different manner and gives it some different value. At times the difference of opinion between

two individuals or groups is so much that they have to take recourse to courts. This is one of the

juncture at which one of the instrumentalities of state gets a chance to interfere with the religion

of a person. The courts in the democratic setup acts as an anti-majoritarian institute and gives a

good emphasis to rights of individuals. In ancient Hindu society, religion meant dharma which

also meant law. This too is one of the reason which makes this concept even more complex and

we have seen in the cases such as Shah Bano3. The concept that a single person is being

governed by two separate systems creates a point where they clash with each other. When we

look at judicial pronouncements, we find them in contradiction with each other many a times and

they are able to create a minor dissatisfaction between people. At times, the judiciary too has to

play conciliatory role and try to weed out the differences between two separate groups. In the

case of Valsama Paul v. Cochin University, court said "secularism is a bridge between religions

in a multi-religious society"4. In western society, secularism proved useful as it meant that state

and church would be separate. This ensured peaceful co-existence of different faiths and rise of

rationalists and scientific thinking. It also made possible convergence of religion towards a

common commitment. Secularism in present times is built on this original idea but there is a

slight change in it.

1 AIR 1963 SC 6492 Marc Galantar, Hinduism, Secularism, and the Indian Judiciary.,(University of Chicago, Committee on Southern Asian Studies,1971)3 1993 AIR 18044 MANU SC 0072 1962

In the present article, the researcher would like to highlight the differences between the judicial

and philosophical understanding of religion and secularism. It would be done with help of

judicial pronouncements and the views given by thinkers, academicians and philosophers.

Indian Supreme Court and Secularism

In this part, the researcher would throw some light on the judgements of Indian Supreme Courts

and how the judges have expounded the terms religion and secularism. Many thinkers and

academicians have criticized the views of the judges at times and have commented that their

views have not been in accordance with the role of judiciary

The Commissioner Hindu Religious Endowments, Madras v. Sri Laxmindra Thirtha Swamiar of

Shirur Mutt5 is arguably the most authoritative and the earliest decisions outlining a test to

determine the essential aspects of a religious denomination. The court stressed that the essential

core of a religion was to be determined by taking into account those doctrines and practices that

a community subjectively viewed to be essential to their religion.

In Sardar Taheruddin Syedna Saheb v. State of Bombay. Ayyengar,J., explained: "Articles 25

and 26 embody the principle of religious toleration that has been the characteristic feature of

Indian civilisation from the start of history. The instances and periods when this feature was

absent being merely temporary aberrations. Besides, they serve to emphasize the secular nature

of the Indian democracy which the founding fathers considered to be the very basis of the

Constitution6."

In M.R Balaji v. State of Mysore, court said "the noble ideal of a secular welfare state set up by

the Constitution7." In Keshvanand Bharti v. State of Kerela, Supreme Court reiterated that

secularism was a a basic feature of constitution8.

In Ziyaauddin Burhannuddin Bukhari v. Brijmohan Ram Das Mehra9, court defined the concept

of secularism in the realm of philosophy and in utilitarian terms. The court set the role of the

State to be neutral or impartial in extending its benefit to citizens of all castes and creeds and cast

5 1985 SCR (3) 8446 1996 (1) SCR 1287 43 U.S. (2How.) 1278 Ronojoy Sen, Articles of Faith:Religion,Secularism and the Indian Supreme Court.,(Oxford University Press)9 BLACK'S LAW DICTIONARY 11th ed

a duty on the state to ensure through its laws that disabilities are not imposed based on persons

practicing or professing any particular religion.

In the year 1994, in S.R Bommai v. Union of India10,the term secularism was discussed in great

length. Court pointed out that the concept of secularism is embedded in our constitutional

philosophy and 44th amendment has made this thing very clear. In some of the later cases such

as Ismael Faruqui v. Union of India11, R.C. Podayal12 and Ram Janambhoomi13 case, a dilution in

the concept of secularism can be noted. Justice Verma made a mistake by quoting extensively

from the scriptures such as Yajur veda, Atharveda and Rig Veda to justify 'Sarava Dharma

Sambhava' i.e., tolerance of all religions. It was controversial because it justified secularism by

using religious scriptures of a majority community acceptance of which by larger population

becomes tough.

The confusion stood confounded with the three cases known as the 'Hindutva Judgments' , the

major and crucial one being Prabhoo's case14 . The opinion of Verma, J. indicates the shift made

by the Court from its stance on secularism advocated in S.R. Bommai. The Court shifted its

earlier position and took a different stand on three major grounds:

1. The Court enunciated that a speech with a secular stance alleging discrimination against any

particular religion and promising the removal of the imbalance cannot be treated as an appeal on

the ground of religion, as its thrust is for promoting secularism.

2. The Court again seemed to have turned away from the Bommai case and the 'constitutional

duty' of the Court to get political parties in line with secularism, advising leaders to be only

"more circumspect and careful in the kind of language they use."

3. The Court equated Hinduism and Hindutva with Indianisation: "The words 'Hinduism' or

'Hindutva' are not necessarily to be understood and construed narrowly, confined only to the

10 MANU SC 0136 195411 1994 2 SCR 64412 Ashish Nandy, "The Politics of Secularism and the Recovery of Religious Tolerance", Rajeev Bhargava(ed.) SECULARISM AND ITS CRITICS.(New York:Oxford University Press,1998)at p.32113 Ronojoy Sen, Legalizing Religion:The Indian Supreme Court and Secularism(East-West Center Washington, 2007)14 283 U.S. 605 (1931)

strict Hindu religious practices, unrelated to the culture and ethos of the people of India,

depicting the way of life of the Indian people.

In the case of Valsamma Paul v. Cochin University15, court again adopted the old stance on

secularism and equated it with tolerance and stressed on an integrated bharat. In Bansilal v. State

of A.P, court again went back to Bommai Case and said that state can regulate personal law

citing threat to the unity and integrity of nation. The judge in another part of the judgement

accepted Hinduism as major religion.

Looking at these judgements it can be concluded that there is no consistency on the stand

adopted by the judiciary and the opinion of the judges appears to be waving on the basis of social

acceptance rather than upholding constitutional values and social justice. It is often viewed that

the Supreme Court gives too much attention to the demands of society and polity and does not

follow the path of prescribed by the constitution and judicial principles.

But we must not forget that the transformation of Indian society is also a role of Indian judiciary.

The practice of constitutional secularism is an unrealised pedagogical project whose goal is the

transformation of Indian society and its politics.Toleration is the core value defended by the

liberal secular State and the Indian State is no exception; however, its institution in the Indian

Constitution compels religious groups to reformulate their traditions as doctrinal truths.

In a recent book on the Indian Supreme Court‘s decisions on religious freedom, Ronojoy Sen has

summarized claims on the essential practices doctrine by saying that "the Court‘s use of the

essential practices doctrine has served as a vehicle for legitimizing a rationalized form of high

Hinduism, and delegitimizing usages of popular Hinduism as superstition. In doing so, the court

has gone beyond the regulation of religion and social reform envisaged by Article 25. This has

resulted in the sanction for an extensive regulatory regime for Hindu religious institutions, and

substantial limits on the independence of religious denominations16."

Views of Thinkers and Philosophers

15 Manvinder Kaur, Challenges to Secularism in India:The Constitutional Ideal, Political Process, and Prospects(Deep and Deep Publications,1999)16 Akeel Bilgrami, Secularism, Identity, and Enchantment(Convergences:Inventories of the Present).,(Harvard University Press, 2014)

T.N Madan, in his article Secularism in its place, has said that secularism has achieved the

opposite of its intentions because it has trivialized the differences and the notion of unity and is

thus impracticable and a "Phantom concept in India". He claims that it is this incorporation that

has caused an erosion of religion since existing differences have been replaced by artificial unity.

This statement highlights that in absence of religion a void is created in the society which the

state is not able to fulfill in the similar manner as done by religion17.

Ashish Nandy says that the ideology of secularism is absurd as it merely provides mere

egalitarian semantics to an alien concept which has been illogically accepted. He is of the view

that toleration should be derived from the faith of the citizens rather than theories of statecraft.

He highlights that the application of the concept of secularism in India would not be as

expected18.

M.N Shrinivas has argued that the western connotation of secularism as a separation of the

church from state is a concept that is ethnocentric and is incapable of universalisation. Nandy has

said that secularism in India has exhausted all its possibilities and today it has became harmful

since it is being manipulated by politicians for self interest. M.N Shrinivas opines that there

exists a grave ideological and spiritual crisis and needs a more humanistic and utilitarian concept

as opposed to the ephemeral concept of secularism as laid down in the Constitution. It is their

opinion that secularism today is being utilized for institutional greed, materialism, corruption and

culture of consumption19.

While looking at the Constituent Assembly Debates, we are able to find the concerns of the

members in relation to personal and secular laws. The Chairman B. R Ambedkar was concerned

about the impact Constitution would have on personal and religious affairs of people and how

reforms in the society are to be carried out. He commented that-

"the religious conceptions in this country are so vast that they cover every aspect of life, from

birth to death. There is nothing which is not religion and if personal law is to be saved, I am sure

about it that in social matters we will come to a standstill. ... There is nothing extraordinary in

saying that we ought to strive hereafter to limit the definition of religion in such a manner that 17 MANU SC 0860 199418 Marc Galantar, Hinduism, Secularism, and the Indian Judiciary.,(University of Chicago, Committee on Southern Asian Studies,1971)19 The Constitution Of India

we shall not extend beyond beliefs and such rituals as may be connected with ceremonials which

are essentially religious. It is not necessary that the sort of laws, for instance, laws relating to

tenancy or laws relating to succession, should be governed by religion. ... I personally do not

understand why religion should be given this vast, expansive jurisdiction so as to cover the

whole of life and to prevent the legislature from encroaching upon that field.20

To both Ambedkar and Munshi Indian religions occupied too much public space and could not

be accommodated within the nationalist and secular positions that they were advocating. That is,

they did not view Indian religious traditions as legitimate candidates for religious freedom and

only their reform into what Ambedkar calls their essential elements could make them such

candidates.

Rajeev Bhargava‘s account of the secular State

This is particularly interesting because he claims to have drawn up a theoretical model of the

secular State that is committed to a separation of religion from politics but is stripped of any

particular normative ideal. His essay seeks to defend secularism from three kinds of objections

that Indian scholars have mounted against it. First, that the secular State is Western and Christian

and therefore unsuited to Indian conditions. Second, that the secular State is hostile to religious

persons. Third, that the claims of the secular State to be neutral are overstated and that it in fact

favours the unbeliever or minority communities. Responding to these objections Bhargava

defends secularism and the secular State from its critics.

In Bhargava‘s account, the task of the secular State is the separation of religion from politics.

Assuming the centrality of the separation of religion from politics to the task of building a

secular State, he states various grounds on which this separation could be justified. These include

- (a) separation fosters autonomy, (b) it fosters equality, (c) it prevents the concentration of

power, fosters democracy and prevents religious and political despotism, (d) separation is a

necessity that results from instrumental rationality because religion as a matter of deepest

conviction can never be transformed by coercive methods, (e) finally, that separation is

necessary because it is the only way in which competing ultimate ideals are removed from

20 1996 (1) SCR 128

politics to prevent an inevitable clash of these ideals which in turn will ensure a minimally

decent existence in a given society21.

Gary Jacobsohn‘s book on the secularism in India is a good example of the normative defence of

Indian secularism made through a detailed discussion of Indian Constitutional practice. Like

Bhargava, Jacobsohn‘s work is particularly interesting because he claims he is advancing a

socially and politically located explanation of the secular State and explicitly denies that his

account is a normative defence of the Indian secular State. Jacobsohn begins his inquiry with the

assumption that constitutions vary depending on the contours of the body politic, and therefore

that secular States are also dependent on the actual conditions of a polity. Consequently

Jacobsohn insists that the student of law and religion should be sensitive to the facts on the

ground and the ―manner in which religious life is experienced within any given society and

how this experience affects the achievement of historically determined constitutional end22.

As Jacobsohn suggests, reform is only one aspect of the Indian project of building a nation state.

However, to the extent that he accepted that reform was a part of the nationalist project, it is

presented as a normative project that sought to redress historic injustices of an integrated and

unified socio-sacral order. In other words Jacobsohn's account restates the Indian constitutional

consensus on religion and reform. However, this account is neither able to elaborate how this

scheme of governing religious traditions assumed its current form, nor illuminate what the

constitutional practice of the secular State entails for Indian religious traditions23.

Galanter is more critical of the elite desire to modernize the static and traditional aspects of

Hinduism and to create out of the Hindu traditions a more unified reformed and rational religion.

He recognizes that independent India was presented with the unprecedented opportunity to wield

the levers of reform over all the various traditions and strands of Hinduism. However he cautions

against the exercise of such powers on the grounds that the success of the project to unify

Hinduism might impede its ability to tolerate difference and sustain India‘s diverse democracy24.

21 T.N. Madan, Secularism in its place, The Journal of Asian Studies, Vol.46, No.4, pp.747-75922 Constituent Assembly Debates(Lok Sabha Secretariat.,1949)23 Gary J. Jacobsohn, The Wheel Of Law:India's Secularism in Comparative Constitutional Context.,(Princeton University Press,2009)24 1996 1 SCC 130

Galanter thinks that the success of this unification project is likely to be partial and local and

largely fuelled by elite illusions about Indian society. As he puts it

"... the lawyers‘ fallacy that behavior corresponds to legal rules offers powerful reinforcement of

the elite‘s fallacy that the masses are following them – a coincidence of illusions that can lead to

dangerous miscalculation about popular sentiment about the efficacy of legally enacted

reforms"25.

In Galanter‘s account this statement is only a passing observation. However, I think this is an

important insight on the practice of judicially led reform of the Hindu religion.

Pratap Mehta also argues that the interventionist function played by the Supreme Court is a way

of overcoming the ills of tradition without having to debunk it as a whole. In addition Mehta

argues that intervention was part of the process by which Indians in general and Hindus in

particular made their peace with the modern world by trying to reconcile their traditions with

democratic ideals. As he mentions, the State ―became the vehicle for the democratization of

religion. In a sense the democratic State was the vehicle through which the community of

believers acquired interpretative authority over many of the requirements of their religion. He

therefore argues that reform was a process through which the State was given powers to protect

and to regulate religion26.

It is said that radical social differences poses a challenge to liberal secular state. Multiculturalism

changes the framework of a secular state to recognize the rights of various identity groups such

as minorities and migrants. The debate on multiculturalism identifies the problem that even after

the institutions are made to deal with diversities, they only recognize citizen identities within

nation states. Akeel Bilgrami has said that " Classical arguments for secular liberalism have

assumed that there are reasons that all rational people should be bound by, and these reasons

justify basic secular and liberal ideals. But there are no such reasons. The only reasons there are

for secular liberalism are reasons that appeal not to something that all rational people will find

compelling, just in virtue of their rationality, but rather reasons that appeal to substantive value

commitments that some may hold but others may not. If that is right, then the task of achieving

secular ideals in a world in which there are strong religious and cultural identities becomes

25 AIR 1995 SC 60526 Rajeev Bhargava, Secularism and its Critics(Oxford University Press., 7th ed.)

distinctly more demanding. One is now required to look for reasons that will appeal even to

those with these identities"27.

Richard Dawkins has said that Religion is both a source of conflict and a justification for belief

without evidence. Dawkins considers faith- belief that is not based on evidence- as one of the

world's greatest evils. Dangers of abandoning critical thought and rational thinking. Dawkins has

highlighted that how internet can be used to spread religious hatred and conspiracy theories with

scant attention to evidence based reasoning. He has argued that religious education has harmed

children by ...bamboozling parents and indoctrination and dividing children28.

Conclusion

It must be kept in mind that our constitution has guaranteed religious rights to people and at the

same times it is secular in nature. It has given rights to people propagate their religion as well as

it casts a duty on the state of reformation of society and curing it of religious evils. In most

developed countries like France, people have right to profess and practice their religion in their

private sphere but there is a ban on religion as it moves into public sphere. U.S.A too is a

developed society but is still deeply religious and permits religion to flourish in public sphere. In

Supreme Court of United States, public sessions are opened by functionary announcing:"God

save this honourable court"29. Even in case such Vidal v. Girard's Executors, court said that

America is a "Christian country"30 and in US v. Macintosh, it said that the country is "filled with

Christian people"31.

Freedom of religion is a globally recognized fundamental human right and it depends a lot on the

state how much relaxation and recognition it gives to its citizens.

Indian Supreme in its earlier judgements has invaded too much in the realm of religion by

deciding what is essential and what is not. It has been observed that at times they have done it for

the good causes such as allowing a particular group entry to the temple, appointment of priest to

temple and in similar instances has eradicated many vices from religion which the religion has

27 28 AIR 1985 SCC 178829 Emile Durkheim, The Elementary Forms of the Religious Life (11th ed.,Courier Corporation,2011)30 Richard Dawkins, The God Delusion,.(Houghton Mifflin Harcourt,1st ed.,2006)31 Faizan Mustafa, The Unfreedom Of Religion, The Indian Express(May5,2015)

tried to preserve as in the name of custom and tradition. These decisions could be said to be in

consonance with the Constitution as it also mentions that state should develop scientific temper,

humanism and spirit of enquiry and reform.

In Art.51A(e), it says that "to promote harmony and 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.32"

We have seen in the case of Shah Bano how state failed to take a strong stance to alleviate

women of their misery only because of political considerations and the judiciary stepped in to

help the affected party.It makes it clear to us that why a strong and independent judiciary is

necessary to take strong steps without fear or favor, affection and ill-will.

The same thing cannot be said for some of the Hindutva judgements where biases of the judges

are reflected in some minor shades.

The judiciary has a disadvantage that it has to deal with the issues only in hand has to be very

careful while pronouncing judgements that it does not cross its boundaries and irk the

government. or any other party. The court is not competent to decide about policy matters as

does not fall within its ambit but the policies can always be tested against the basic principles

enshrined in the constitution. it is difficult for judiciary to discuss such issues in detail and has to

limit itself to the particular instances. though when we look at a series of cases we are able to see

the contribution it has made in improving the plight of hundreds of people. The approach of the

judiciary often has to be pragmatic too as it is the final resort people have to resolve disputes.

It must be kept in mind that the aim of the constitution as mentioned in Art.51A(h) is " to

develop scientific temper, humanism, and the spirit of enquiry and reform."

It is often said that in multicultural democratic society, will of the majority gets imposed upon

the minority community against its wishes. The Indian experience is has been good but there

have been some major incidents such as the riots during partition, Babri Masjid demolition, 1992

Mumbai Bomb blasts and Muzaffarnagar riots which has shown how people have been divided

on religious lines. These incidents tell us radicalization of any religion is bad and how it affects

32 Gary J. Jacobsohn, The wheel Of Law:India's Secularism in Comparative Constitutional Context.,(Priceton University Press,2009)

people across different social stratas. It must be remembered that it is not completely possible to

have a society free from conflicts. The Ayodhya Verdict delivered by Allahabad High Court

showed that how end conflicts on such sensitive issues, judges at times have to infuse more

pragmatism to the solutions they provide. The further appeal from that decision shows that in

matters of faith, reason has no place. Religion is based on a person's faith and reason cannot

change it. Whereas prejudices are rarely overcome by arguments as they are never founded in

reason, they cannot be countered by logic.

Ashis Nandy has made a remarkable point in his writing by saying that until we bring religion in

public sphere and start a debate on it, there is a very weak chance that we may be able to reform

it and accept it truly. The logic employed here by Nandy here is very appealing to the rational

and intellectual beings of the society but it remains a major question that how many people are

actually willing to interfere with religion which is often treated as a 'holy cow'. The ideas and

views of thinkers are accessible only to minor part of the Indian society whereas the judiciary has

to deal with the contemporary and living problems of the society. The variations and difference

we are able to find in the views of thinkers and judiciary on the topics of religion and secularism

is there because the function of both is very different and the ramifications they will cause are

very different in amplitude.

It is not possible to deny the social function religion plays. In the life of religious people, it acts

as Conscience which has a very important role to play. When such a person is holding a political

office, it becomes even more necessary to have a check on its actions. But at the same time it

cannot be denied that religion has caused the most number of wars and killings than any other

issue. A religious zealot is someone nobody would like to see in a position of power. The

western meaning of secularism is not able to encapsulate the experience we had in India. It is

more like a liberal, social democracy which has tried for not complete severance of ties between

religion and state. The thinkers and philosophers with their views have tried to reform the society

but their views are not in the reach of common masses. Supreme Court on the other hand has

followed the constitutional mandate and has tried to eradicate the evils present in society and

religion. Humans are part of a democratic society as well as their religious communities.

Democracy guarantees religious rights to people whereas most of the religions do not cause

problems to democracy. They surely poses challenges to democratic institutions. Presently, the

way by which state and its instrumentalities are able to reconcile differences between two sects

of democratic society is called secularism. In democratic society, we can say that secularism is

the politics of accommodation to normalize the situation and reduce strife.