Secular question

Two recent pronouncements by the higher judiciary create doubts whether the unique character of Indian secularism is being challenged.

A UNIQUE feature of Indian secularism, as interpreted by the country's judiciary, is its emphasis on the essential practices doctrine. The doctrine, which seeks to cleanse religion of superstition and irrationalities, is based on the premise that the state must protect only the essential and integral part of religion. The state protects the essential practices of a religion by following the principle of non-interference and by keeping a principled distance from it. The doctrine requires the state to desist from favouring the essential practices of one religion in order to maintain its neutrality.

The doctrine, as developed by Justice P.B. Gajendragadkar, Chief Justice of India from 1964 to 1966, appears to find limited support and understanding within the higher judiciary today, as was revealed by two recent pronouncements a judgment delivered by the Gujarat High Court on February 10 holding bhoomi puja (foundation-laying), a Hindu religious ceremony, as a secular activity, and an obiter dictum passed by a Supreme Court Bench against the Centre's failure to enact a Uniform Civil Code (UCC).

In the first case, the Gujarat High Court Bench comprising Justices Jayant Patel and J.C. Upadhyaya dismissed the public interest litigation (PIL) plea of a Dalit activist, Rajesh Solanki, who challenged the performance of a bhoomi puja ceremony within the High Court premises in Ahmedabad on May 1, 2010, to mark the beginning of the construction of a new High Court campus. According to a report in the media, the Chief Justice of the High Court, the Governor of the State, and Judges of the Supreme Court and the High Court were present at the function. Solanki sought to have the ceremony declared unconstitutional. He argued that a public place should maintain its secular credentials in a secular country. The bhoomi puja ceremony, which was followed by a prayer and the chanting of Sanskrit slokas by Hindu priests, would make the judiciary lose its secular credentials in the public eye, he contended. Shockingly, the High Court not only dismissed his plea but imposed a penalty of Rs.20,000 on him, doubting his bona fides.

After surveying various judgments delivered by the Supreme Court on secularism, the High Court stressed that Indian secularism was based on the principles of Vasudhaiva kutumbakam or Sarva jana sukhino bhavantu.

The court interpreted this as Live and let others live, and letting the religion be followed by those who want to follow.

Interestingly, to decide the question whether the bhoomi puja ceremony is secular or not, the High Court relied on the essential practices doctrine but decided against adopting a tried and tested formula associated with it. In deciding the question as to whether a given religious practice is an integral part of the religion or not, the test always would be whether or not it is regarded as such by the community following the religion. However, the court found no merit in this test: in its view, the community concerned may speak with more than one voice and the question will always have to be decided by the court.

The High Court used a circuitous argument to justify the religious ceremony. Thus, in its view, the foundation-laying ceremony is an important event in the construction of a building. For laying the foundation, it is necessary to excavate the earth to some extent.

According to the court, bhoomi puja essentially involves a prayer to the earth to pardon or to graciously bear the burden or the damage, if any, to make the construction of the said structure successful, which is to be used for the betterment of the institution of the High Court, and for the betterment of all persons connected thereby directly or indirectly, irrespective of their caste or religion or community. Therefore, it said, such offering of prayer to the earth at the time of the foundation-laying ceremony could not be termed a non-secular action if manav dharma is to be understood in its real sense in furtherance of the principles of secularism observed by our nation.

The High Court also justified the recitation of Sanskrit slokas by Brahmin priests during the ceremony, saying they were in furtherance of the prayer offered to the earth. The court went on: If the ultimate aim for successful construction of the building is holy and with the larger interest of those persons who are to be directly or indirectly benefited by the successful construction of the building, irrespective of their caste or community or religion, it would fall within the principles of Vasudhaiva kutumbakam', meaning welfare to all and hurt to none. Such in no manner can be termed as non-secular activity. Twisting logic, the court said prayers to the earth could not be termed an essential or integral part of a particular religion in this case, Hinduism.

Inconsistencies

The court's convoluted justification of a religious ceremony as a secular activity rakes up curious inconsistencies. Even if the bhoomi puja ceremony is indeed a secular activity as interpreted by the court, is it not violative of Article 51A (h) of the Constitution, which requires every citizen to develop scientific temper, humanism and the spirit of inquiry and reform? By no stretch of the imagination can a prayer to the earth to pardon or graciously bear the burden or damage to be caused by the construction activity be termed scientific or rational. To many, it would seem as an unjustified encouragement of a superstitious activity, even if it is secular. The court, however, did not address this inconsistency in the judgment.

According to the High Court, Solanki filed this petition with extraneous considerations, and there was no bona fide public interest as he tried to espouse the cause of the organisation behind him, or other persons. But the High Court judgment is silent on what these extraneous considerations were, and why it thought there was no bona fide public interest in his petition even though he tried to express it eloquently in his petition.

Uniform Civil Code

On February 8, Justices Dalveer Bhandari and A.K. Ganguly of the Supreme Court were hearing petitions filed by the National Commission for Women's Delhi chapter, which sought the formulation of a uniform marriageable age because different stipulations in different statutes had created confusion.

The Bench observed that the government's attempts to reform personal laws did not go beyond Hindus, who, it said, had been more tolerant of such initiatives. The Hindu community has been tolerant to these statutory interventions. But there appears a lack of secular commitment as it has not happened for other religions.

In the last two decades, the Supreme Court had repeatedly passed obiter on the importance of enacting a Uniform Civil Code as mandated by the Constitution under Article 44, which says, The State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India.

The Supreme Court was critical of the government's failure to enact a UCC in 1985 (Shah Bano judgment), in 1995 (Sarla Mudgal case), and in 2003 (John Vallamattom case), because it hoped a UCC would help forge national integration. As the Constitution granted separate rights to minority religious communities to enable them to live with dignity, the state did not consider the adoption of a UCC absolutely essential for national integration.

During the hearing before the Supreme Court, Additional Solicitor General Indira Jaising explained the differences in age limits provided in statutes, saying that these were meant to achieve diverse social objectives. Hence there could not be a uniform (marriageable) age. Though the government feels that girls above 16 years should be said to have attained the age of consent to sexual relation and hence could marry, the formal age of marriage would stay at 18 years, argued the ASG.

The Supreme Court's obsession with the enactment of a UCC as an instrument to promote secularism raised the question whether it understood the implications of the social transformation currently taking place in the country. At the ground level, over the last decade, says Rohit De, a lawyer and a doctoral candidate with the Department of History at Princeton University, United States, legislative reforms in Hindu and Christian law and the increasing juridification of Muslim law have created a great degree of uniformity between different personal laws. Secondly, he says, there has been greater democratisation inside communities and a concerted attempt to reform family law from within.

The UCC debate, according to him, is becoming slowly irrelevant given the internal reform and harmonisation of community-specific family laws. We are close to having a harmonious Hindu and Christian law, for instance, in most important respects, he says. The realisation that family laws in books do not accurately represent gender relations or empowerment in practice has led to a shift in focus to economic questions rather than cultural ones, he notes.

The most relevant example is the Protection of Women from Domestic Violence Act, 2005, which shifts the focus from religious identity to common experiences shared by women in the family. In other words, the Indian state has sought to achieve the objectives of Article 44 through other means, without actually enacting a UCC, which, in a sense, could indirectly harm the essential practices doctrine of secularism by interfering with the personal laws of religions.