Wednesday, February 16, 2011

Gujarat High Court's stimulating interpretation of the demands of Indian secularism

On Feb 10, 2011, a division bench of the Gujarat High Court dismissed, with "exemplary costs" of Rs 20,000, a PIL filed by a Dalit activist challenging the performance of Hindu religious functions during a 'foundation laying/bhumi pujan ceremony' on the grounds of the High Court. The full text of the judgment in the case of Rajesh Solanki v. Union of India is available here (hat tip: Law-in-Perspective), and makes for very interesting reading. The judgment is strangely silent on the material facts that led to the petition: for those facts, one has to turn to media reports (such as those available here and here).

As set out in the judgment, the main ground of challenge was as follows:

“ 5. Much emphasis was given by the learned counsel for the petitioner on the aspects of the secular character of our Constitution and the word “Secular” incorporated in the preamble of the Constitution read with the relevant Articles of the Constitution provided for right to freedom of religion were pressed in service. It was submitted that as per the constitutional debates which had taken place before our Constitution came into force, there were various discussions on the said aspect, some of which are referred to in the petition and some were submitted at the time of hearing to contend that the State cannot have any religion. Any action on the part of the State to identify itself with any particular religion could be said to be non-secular activity on the part of the State. It was contended that offering prayers with the help of Pandits who spoke Sanskrit slokas at the Bhoomi Pujan could be termed as identification by the Constitutional dignitaries or the High Court with Hindu religion and such activity would hurt the religions feeling of the citizens who professes other religion and therefore, such action can be said as non-secular and deserves to be declared as unconstitutional. It was submitted that the petitioner has no enmity with any Constitutional dignitaries who offered prayers at the ceremony including the other Honourable Judges who attended and participated at the function, but such function can be said as resulting into creating adverse feeling amongst the other persons who do not believe in Hindu religion. It was also submitted that the High Court being the highest judiciary in the State should guard the constitutional rights given to all citizens and should maintain the secular character of the State. The performance of such ceremony as per Hindu religion would shake the confidence of the people who do not believe in Hindu religion and therefore, the action deserves to be declared as unconstitutional as prayed in the petition. It was also submitted that secularism being one of the basic character of the Constitution, even Parliament cannot amend the Constitution so as to alter the basic structure of the Constitution. Therefore, such would equally apply to the High Court which is the highest judiciary in the State and the constitutional body to guard the rights of the citizen in the State."

The response of the division bench, comprising Justices Jayant Patel and J.C. Upadhyaya, to this line of argument was as follows:

"19. The apprehension voiced of the alleged hurt of any religions feeling or that the impartiality of the highest judiciary of the State would be at stake on account of the foundation laying ceremony performed by offering prayers and the sanskrit slokas spoken at that ceremony, can be termed as a pervert view or ingenuine doubts self created in the mind of the petitioner or the persons whose cause is sought to be exposed by the petitioner in the present petition to a noble intention of praying the earth for the successful construction of a building to be used by all persons directly or indirectly connected therewith, irrespective of their caste, community, or religion, etc. Offering of prayer by any person for betterment of everybody cannot be termed as any activity or any action resulting into non-secular activity. Further, as observed earlier, such action of offering prayer to the earth at the time of foundation laying ceremony cannot be termed as an activity by the High Court which may result into flourishing any particular religion as sought to be canvassed. The real object and purpose is for successful construction of the building and not for flourishment of any religion. If for any noble cause, prayers are offered by any person, such would not result into an action for flourishment of any particular religion, but could be termed as for betterment of all persons who are directly or indirectly to be benefited by the successful construction of the building. If one has to offer prayer for successful construction of the building, naturally, he or she would offer prayer as per his own understanding of prayer. The language used for offering prayer or mode adopted for offering prayer with the help of a group speaking a particular language cannot be termed as siding with a person or a group of person adopting a particular mode for offering prayers. As such, offering of prayer at the incident of Foundation Laying Ceremony for the successful construction of the building to be used by the persons irrespective of their caste, community or religion, etc., could be termed as a part of secular activity and it cannot be termed or branded as choosing a particular religion since the prayers offered for such a noble cause cannot be termed as essential and integral part of a particular religion, but can rather be termed as for the benefit of all who are to make use of the new building directly or indirectly in future. Hence, it cannot be said that the High Court or the Chief Justice of the High Court or the Governor while offering prayer for successful completion of the building has taken any action which can be termed as non-secular and consequently, unconstitutional.”

The ToI report on the case carries the headline: “Secularism is not anti-God”. Students of the Indian judiciary’s body of precedents on religion and the law know that this sentiment is certainly in line with that body of law. However, the question is not whether one has to be “anti-God” to be secular, but whether one religion in particular can be accorded a higher status, thereby violating the principle that all religions in India be treated equally. The High Court’s judgment spectacularly ducks this more important and salient question. It would have been quite a different scenario if the Gujarat High Court had invited religious figures from the major Indian religions to the foundation ceremony to offer common prayers. (This is not to say that that scenario is not without problems, but to emphasise that only one religion was represented).

There is also a disturbing whiff of vindictiveness in the costs awarded to the PIL petitioner, who was, in any view of the matter, raising a basic and significant question. One hopes that he will persist with the case, and take it on appeal to the Supreme Court, which in turn should take the opportunity to clarify the state of the law on this important question which arises in Indian public life with frequency and consistency.

7 comments:

work_in_progress said...

There is a clear undercurrent of majoritarianism in justifying what is clearly a Hindu ceremony.

For instance see this: "If one has to offer prayer for successful construction of the building, naturally, he or she would offer prayer as per his own understanding of prayer." who pray (no pun intended) is the "one" "he or she" and "his" here?

To duck over the crucial issues raised here, the Court has camouflaged the ceremony in general language as a pious spiritual exercise.

Shamnad Basheer said...

Tks for highlighting this important case, Arun,

one might also ask whether the government ought to conduct any prayers or religious ceremonies at all in the first place. after all, these were the premises of a high court... but if we somehow crossed that threshold, then as you rightly point, the prayers of all faiths ought to be conducted as well....

Abhinav Chandrachud said...

Great post. As you rightly point out, inviting major Indian religious figures to perform ceremonies can be problematic too. If the court had conducted the prayers of all major faiths in India at the occasion, then the state would still be seen as having expressed a preference in favor of religion, and against atheism. Additionally, the state would also be seen as expressing a preference in favor of "major religions" as opposed to not so major ones. Both of these problems would go against the tenets of secularism as non-establishment.

Talha Abdul Rahman said...

This is not a new issue, and had in the past been considered by leaders including Pandit Nehru, who unsuccessfully attempted to persuade Rajendra Prasad from participating in the installation ceremonies at Somnath temple. Of course, in that (a) somnath temple, and (b) participation of a constitutional functionary (especially in the backdrop of partition) at a function that was essentially 'hindu'. Nehru did not seem happy about the whole thing.

Saritha said...

Also please make a reference to the much sensitised judgment by Kerala HC that State can promote islamic banking by having a tie up with a company which will run according to Shariah principles. Link : http://legalperspectives.blogspot.com/2011/02/government-action-promoting-islamic.html

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sai said...

Yes, Saritha, I am glad you have referred to the Kerala HC judgment.

Allowing prayers, lighting of lamps or breaking coconuts is old hat.

But the state taking the initiative to start banking along strictly religious lines is going a bit far.