The Journey from S.R. Bommai vs. Union of India to Javed vs. State of UP

Today, religion is part and parcel of all political activity in India, be it visiting temples or conducting public poojas to garner political capital. SEEMA SINDHU writes about the jurisprudential journey that began by separating religion from the State, only to come full circle to reintegrate it, not only into politics and everyday life, but also into judicial pronouncements.


AT the time this article was written, #abbajaan was trending on Twitter, with Twitter users posting pictures with their fathers, in light of Uttar Pradesh Chief Minister Adityanath’s invocation of the term in public speeches in a blatant attempt to polarize voters on religious lines in the run up to the state assembly elections.

Last week, Indian National Congress leader Rahul Gandhi visited the Vaishno Devi shrine in Jammu, setting the tone for a political discourse on the Congress party’s journey to atonement for its historic minority appeasement. Simultaneously, the Delhi Chief Minister Arvind Kejriwal couched prime space in the media for holding a public pooja on the occasion of Ganesh Chaturthi.

A week ago, farmers who held a mahapanchayat in Muzaffarnagar against the contentious farm laws exhorted Allahu Akbar (“God is most great”) and Har Har Mahadev (“Everyone is Lord Shiva”) in unison from the platform.

Secularism and communalism, both conceived from religion, comprise the banal theme of every political debate and cause in the country today.

Almost every discourse in the country revolves around these two converse terms now. But what is secularism? Since we talk of it in relation to the government, we shall delve into secularism as espoused in the Constitution, the sacrosanct document governing the State.

Secularism, in letter, was only added to the Preamble to the Constitution in 1976 by the 42nd Constitutional Amendment. The term is referred to only twice in the Constitution: in the Preamble, and in Article 25(2)(a). However, the term is not defined at either place.

Origin of the philosophy in India

Interestingly, the philosophical underpinning of the term ‘secularism’ was first articulated in 1994 in a Supreme Court judgment involving none other than the Bharatiya Janta Party (BJP), which is now accused of employing tactics of divide et impera. (There is no question, however, that the Congress also used similar methods in its heydays.)

After the demolition of the Babri Masjid in 1992, in validating the proclamation of President’s Rule in three states that were ruled by the BJP at the time: Madhya Pradesh, Rajasthan and Himachal Pradesh, the Supreme Court discussed secularism at length in its SR Bommai judgement. It found that two of the three states had chief ministers who had Rashtriya Swayamsewak Sangh backgrounds, and that the state governments had indulged in unsecular activities by sending, facilitating and felicitating kar sevaks (those who offer their services to a “dharmic cause”) to aid in the demolition. The apex court further noted that the actions of the state governments were contrary to duties assigned to them under the Constitution.

Also read: Secularism and democracy requires the power of truth, not any religion, to survive

This case is not just the landmark authority on President’s Rule under Article 356 of the Constitution, but also on the definition of secularism.

The Court explained secularism as the separation of State from religion, stating:

While Article 25 of the Constitution guarantees to all its people freedom of religion, Articles 14, 15 and 16 enjoin upon the State to treat all its people equally irrespective of their religion, caste, faith or belief. While the citizens of this country are free to profess, practice and propagate such religion, faith or belief as they choose, so far as the State is concerned, i.e., from the point of view of the State, the religion, faith or belief of a person is immaterial. To it, all are equal and all are entitled to be treated equally. How is this equal treatment possible, if the State were to prefer or promote a particular religion, race or caste, which necessarily means a less favourable treatment of all other religions, races and castes. How are the Constitutional promises of social justice, liberty of belief, faith or worship and equality of status and of opportunity to be attained unless the State eschews the religion, faith or belief of a person from its consideration altogether while dealing with him, his rights, his duties and his entitlements? Secularism is thus more than a passive attitude of religious tolerance. It is a positive concept of equal treatment of all religions.

Today, unfortunately, religion and the State have merged and become two faces of the same coin.

In fact, the Court was audacious in its judgment, stating that religion is a personal commitment that cannot be allowed  to abrogate the constitutional equality conferred on citizens.

It further stated that the State must exercise its role of active secularism in accordance with the Directive Principle laid down in Article 44 in the following words:

Any step inconsistent with this constitutional policy is, in plain words, unconstitutional. This does not mean that the State has no say whatsoever in matters of religion. Laws can be made regulating the secular affairs of Temples, Mosques and other places of worship; and maths. The power of the Parliament to reform and rationalise the personal laws is unquestioned. The command of Article 44 is yet to be realised.

Despite this overt sanction, the Uniform Civil Code, envisaged under Article 44, remains a far off dream.

Coming full circle in the secular journey

While the judgment set in motion a journey of separation of Church and State, where do we stand today? Religion has attained increased prominence, playing an active role in politics. This integration has not been the result of efforts by the populace; it is a deliberate product of executive action.

The Jharkhand legislative assembly is currently engaged in turmoil over the assignment of a dedicated room for namaz, with a Bihar MLA retaliating by demanding a room to chant the Hanuman Chaalisa. Even the most secular pillar of democracy, the judiciary, has not been spared.

In an ethically contemptuous order, a judge of the Allahabad High Court recently stated in a bail order in the case of Javed vs. State of UP that the protection of cows must be brought under the Fundamental Rights of Hindus.

Also read: Public spending on religious expenditure violates Constitutional principle of secularism

It appears the nine-judge Bench in SR Bommai, which included a Muslim-origin Judge, had foreseen this permeation of religion into politics and governance. It, therefore, said, “In the matters of state, religion has no place. No political party can simultaneously be a religious party. Politics and religion can’t be mixed.”

Religion today has become a tool used by the State to gain, retain and regain power. The politically-religious parties have, collectively, caused the death of secularism in India in order to attain narrow vested interests.

(Seema Sindhu is a journalist turned lawyer currently practising at the Supreme Court. The views expressed are personal.)

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