(This is Part II of a two-part piece on secularism. Here is Part I)
It was the December of 2015. As the LLM Class Representative of Harvard Law School, I was part of a group where we were deliberating over Christmas celebrations for the LLM class, and ways to bring together everyone in a creative, fun way. The conversation amongst the group of organisers came down to this – “Can we have a Christmas tree at the venue for the party?’”
The members of the administrative staff told us that it may not be a good idea to include the tree, as it may portray the school as endorsing one religion. While we were encouraged to celebrate all religious festivals, the school was wary of giving any of these festivities an overt religious colour. This was my first brush with ‘secularism’ in the United States of America.
Damage to India’s Secular Fabric
Fast forward to April 2018, and I found myself grappling with the ‘secularism’ question once again, albeit, in the Indian context. The Supreme Court was then in the midst of hearing the controversial Babri Masjid-Ram Janmabhoomi (Ayodhya) case. I found myself learning and explaining the legal intricacies of the case on different occasions. For example, here, here, here and here.
From the Karachi Resolution in 1931, to the judgment of the Supreme Court in the Babri Masjid-Ayodhya Temple case, India’s tryst with ‘secularism’ continues to be under debate.
While PM Modi’s strategic political moves, since his occupying of the Prime Minister’s Office, such as the abrogation of Article 370, the introduction of the discriminatory Citizenship Amendment Act, and the push for ‘Ram Mandir’ – are unmissable in the extent of damage they do to India’s secular fabric, the lack of a coherent pattern in the Supreme Court judgments during the same time make the story of India’s secularism equally twisted.
When we look at the spate of judgments by the Indian Supreme Court in the last two years, some of the most important ones, on issues of ‘secularism’, or those which touch upon religion, albeit directly or indirectly, would one say, that this religious impartiality, of not favouring any one religion, has really been upheld by the Apex Court in this spirit?
From the lens of a non-law person, without going into the technicalities of the arguments advanced before the Supreme Court, and the lengthy rationale given by the judges for their judgments, can one miss a certain broad ‘pattern’ emerging from its series of judgments? Can one miss the connecting of the dots that seems compelling?
Constitutional Jurisprudence On Question Of Secularism
Babri-Ayodhya, Sabrimala Review Petition, Kashmir – 370 and 4G Internet Orders and then the U-turn in Jagannath Yatra case – where is the juggernaut of secularism headed in India?
If one analyses the broad pattern emerging from these latest cases, even the best of Constitutional scholars in India will be found wanting for an explanation that is consistent to be labelled as ‘Constitutional Jurisprudence On the Question of Secularism by India’. Perhaps no other nine words in the dictionary can be more self-contradictory than these.
While in the Jagannath case, the constitutionally available exception of ‘health’ as a ground to trump the ‘Right to Practice Religion’ under Article 25 was not invoked by the Supreme Court, the exception of ‘sovereignty and security of India’ seems to be of predominant concern when deciding on disallowing 4G internet in Kashmir under Article 19 of the Constitution, even when the importance of internet is specially highlighted during the times of COVID-19.
While ‘balancing’ different competing rights in the Babri-Ayodhya case, the Supreme Court found a ‘solution’ that no one had asked for, the same Supreme Court did not consider ‘balancing’ to be a concern when allowing women to enter the Sabrimala temple, against cultural norms.
While in the Jagannath case, the Supreme Court merely stated that the exception created in allowing Jagannath Yatra during COVID-19, will not apply to other similar cultural practices, without delving into further details –– it admitted the Review Petitions in the Sabrimala case, now looking into various culturally discriminatory practices against women, without limiting itself to the main question in the Original Petition (women’s entry into Sabrimala temple).
The Constitution Is Dedicated To ‘We, The People’ –– Not ‘We, The Lawyers’
What explains these complete differences in approach in various recent Supreme court judgments, beyond the simplistic argument – the facts of each case are different. To the latter, there is no denial, but shouldn’t subjectivity of interpretation, inherent in all these judgments, come with limitations? Shouldn’t legal principles, said to be the cornerstone of any society based on rule of law, imply, that there is a certain predictability and uniformity in the approach taken when two seemingly competing constitutional values clash?
The lawyers can potentially argue what explains these differences in each case, but for the common person, watching these developments, there is a certain erosion of faith and a feeling of distance from one’s own legal system in the wake of this unpredictability.
After all, the Indian Constitution is dedicated to ‘we the people’ and not to ‘we the lawyers’, therefore requiring that the test of success of the functioning of our legal system be measured from the lens of the common person.
To end with a sobering reminder, with the words of Dr Radhakrishnan, the first Vice President of India, who in his book Recovery of Faith explained secularism in India:
“When India is said to be a Secular State, it does not mean that we reject the reality of an unseen spirit or the relevance of religion to life or that we exalt irreligion. It does not mean that secularism itself becomes a positive religion or that the State assumes divine prerogatives... We hold that not one religion should be given preferential status... This view of religious impartiality, or comprehension and forbearance, has a prophetic role to play within the National and International life.”
(Avani Bansal is an advocate, practising in the Supreme Court, and Secretary, All India Professionals’ Congress (Delhi). Write to her at firstname.lastname@example.org. She tweets @bansalavani. This is an opinion piece, and the views expressed are the author’s own. The Quint neither endorses nor is responsible for them.)