Tuesday, May 24, 2011

Accommodative Secularism

Earlier this year, in Prafull Goradia v. Union of India [decided January 28, 2011], the Supreme Court of India considered the constitutional validity of the Haj Committee Act, 2002, and in particular, the air fare subsidy granted by the Indian government to Haj pilgrims. The petitioner contended that his fundamental right under Article 27 of the constitution had been violated. Article 27 ensures that “no person shall be compelled to pay any taxes, the proceeds of which are specifically appropriated in payment of expenses for the promotion or maintenance of any particular religion or religious denomination”. The argument was that the subsidy was being funded by taxpayer money. Broadly, constitutional “secularism” stands for two propositions, (1) free exercise, and (2) non-establishment. Article 27 arguably furthers the latter proposition, i.e., that the state should not be seen as establishing or endorsing any religion, by forcing people to pay religious taxes.

While dismissing the petition, the court [Justices M. Katju and G.S. Misra] found that Article 27 operates even within the context of general taxing statutes, but it only militates against the use of a “substantial part” of the tax paid, toward the promotion or maintenance of any particular religion or religious denomination. A small proportion of taxes paid under a general taxing statute can accordingly be used by the state to fund religious groups. In the court’s calculations, 25% is a substantial amount:

“In our opinion Article 27 would be violated if a substantial part of the entire income tax collected in India, or a substantial part of the entire central excise or the customs duties or sales tax, or a substantial part of any other tax collected in India, were to be utilized for promotion or maintenance of any particular religion or religious denomination. In other words, suppose 25 per cent of the entire income tax collected in India was utilized for promoting or maintaining any particular religion or religious denomination, that, in our opinion, would be violative of Article 27 of the Constitution...A balanced view has to be taken here, and we cannot say that even if one paisa of Government money is spent for a particular religion there will be violation of Article 27.” (emphasis supplied)

Referencing the counter affidavit filed by the central government, the court cited similar instances where the state bears religious expenses, which are constitutional because the expenses are “small…in proportion to the entire tax collected”: expenses incurred for the Kumbh mela, for pilgrimage to Mansarovar, and for providing facilities to pilgrims visiting temples and gurudwaras in Pakistan.

The court’s holding arguably supports the proposition that the idea of secularism under India’s constitution is accommodative. For this reason, cabinet ministers can take their oaths of office in the name of God, and perhaps for this reason that “benevolent” foundation ceremonies can be conducted at High Court buildings.

8 comments:

Dilip Rao said...

The judgment is whimsical and utterly unprincipled, shorn of any interpretive or historical basis. It is one thing for the court to have said that the government funds all religions and therefore not violative of art.27 but quite another to anchor the outcome on amount. It is like saying petty theft/corruption is not a crime but dacoity/huge scams are unlawful, one murder is okay but serial killing would be legally wrong! I suppose those would be "accommodative" positions too but could hardly be considered rational or acceptable.

Abhinav Chandrachud said...

Thanks. I hesitate to defend this judgment, as my goal here is to spot trends, not to support them. But I think your analogy is unfair. There’s clearly a difference between accommodating petty theft or murder and accommodating religion- only one of these is okay. I agree that the court should not have quantified what constitutes a “substantial” part of a general tax –even 1% can be substantial. But to say that a “substantiality” test is “irrational” is perhaps a little unfair too. I can think of many “materiality” thresholds or “substantiality” tests that the law recognizes which are considered rational: in copyright law infringement only occurs upon “substantial” copying, in contract law a fundamental breach only occurs if it goes to the “root” of the contract (not every minor breach justifies rescission), in constitutional law the “clear and present” danger test mandates that anti-state speech is only impermissible if it affects imminent unrest, in competition law acquisition agreements are only anticompetitive if they exceed certain financial thresholds. I also don’t think it’s an answer for the state to claim that it accommodates “all” religions as any justification for accommodating a particular religion, for two reasons: first, it would thereby exclude atheists and agnostics, second I’m virtually certain that it would leave out some “small” religious group or the other. The court could have held that the state should not spend any sum of money for any religious group altogether. But in its quest to accommodate religion, the court perhaps had to introduce some sort of materiality threshold.

V.Venkatesan said...

Abhinav,

You could also refer to the fact that the SC dismissed Solanki's SLP against the Gujarat HC's judgment without giving any reasons:
http://courtnic.nic.in/supremecourt/temp/dc%20728311p.txt

Tarunabh Khaitan said...

thanks for drawing our attention to this remarkable judgment which continues the line of cases that disregard clear constitutional text to further the woolly idea of sarva dharma samabhava. this entire notion of accommodative 'Indian' version of secularism is entirely judge-made, and finds little support in constitutional text. constituent assembly debates, especially Ambedkar's intervention on the question of religion of personal laws, clearly point in the direction of a state that is indifferent to, rather than accommodative of, religion.

Tarunabh Khaitan said...

apologies, my previous comment was mostly a rant. i do not believe that text is determinative, and am certainly not an originalist who believes that framers should continue to decide the scope of constitutional rights. i think text and history are relevant, but not determinative. my main problem with this 'Indian' version of secularism is normative, based on reasons independent of text and history. hope to explore this discomfort in a later post.

Dilip Rao said...

Abhinav,

No doubt there are plenty of such tests but they are usually laid down to harmonize conflicting principles often in light of common law or existing practice and to resolve textual and contextual ambiguities. None of that exists here; moreover, when the text itself lays down perfectly clearly what is and is not permissible, there is little justification for resorting to non-existent threshold tests without citing any noteworthy grounds for the same. The Indian Constitution is not written like the US Constitution and exceptions to a rule are specifically laid down where applicable. If a substantiality test was indeed intended, art.27 could have as easily been written to read "No person shall be compelled to pay any taxes, the proceeds of which are specifically and substantially appropriated...". But it does not and the Court cites no explanation for giving it a meaning it does not carry.

As for your second argument, I am sympathetic to the fact that atheists and agnostics will be excluded but am not convinced that it was not so intended. The text again clearly says "any particular religion or religious denomination" and not merely "any religion or religious denomination" indicating that treating all religions on the same footing is acceptable. The extensive historical record of state patronage to religion spanning many centuries fully supports this proposition and there is little doubt that the practice which was prevalent in British India and the princely states was not meant to be discontinued after independence. Of course, small groups ought to be entitled to the benefit as much as larger ones.

Abhinav Chandrachud said...

Many thanks VV, Tarunabh and Dilip. My attention was also helpfully drawn to this blog post by a reader: http://ukscblog.com/so-help-me-god

Shamnad Basheer said...

Thanks for highlighting this interesting decn, Abhinav:

Am not entirely sure that the reasoning is sound. like Dilip, i am not sure if Article 27 permits a "substantiality" test to be read in...the only issue is whether or not the moneys collected are specifically appropriated to support a religious cause..

that apart, there are obvious difficulties in applying the test through off the cuff numerical values... if 25% is the test (although the court did not strictly state so), no funding of religions by the state would ever fall foul: can you imagine what a legal 10% (of the total tax) would actually amount to?