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.
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