Dichotomy between judicial understanding and philosophical understanding

of Secularism

Submitted by- Abhinav Bakolia

Submitted to - Mr. Neeraj Kumar
Subject- Jurisprudence II

NATIONAL LAW UNIVERSITY, DELHI

2015

Introduction
India is a classical example of a democratic society. Whenever anybody discusses Indian society,
it is obvious for that person to be amazed by the variety and diversity present here. Religion is an
integral part of any person's belief system. The Black's law dictionary defines secularism as not
sacred, not ecclesiastical, and concerned with the affairs of the world 1. It is socially useful
because it constitutes a moral force and an element of sociability. The sociologist Durkheim
defined religion as a "unified system of beliefs and practices relative to sacred things 2. Religion
has value both for society and individuals. What is worth noting is that in society it acts as a glue
among the followers of same religion whereas in cases of individual, each individual view it in a
different manner and gives it some different value. At times the difference of opinion between
two individuals or groups is so much that they have to take recourse to courts. This is one of the
juncture at which one of the instrumentalities of state gets a chance to interfere with the religion
of a person. The courts in the democratic setup acts as an anti-majoritarian institute and gives a
good emphasis to rights of individuals. In ancient Hindu society, religion meant dharma which
also meant law. This too is one of the reason which makes this concept even more complex and
we have seen in the cases such as Shah Bano3. The concept that a single person is being
governed by two separate systems creates a point where they clash with each other. When we
look at judicial pronouncements, we find them in contradiction with each other many a times and
they are able to create a minor dissatisfaction between people. At times, the judiciary too has to
play conciliatory role and try to weed out the differences between two separate groups. In the
case of Valsama Paul v. Cochin University, court said "secularism is a bridge between religions
in a multi-religious society"4. In western society, secularism proved useful as it meant that state
1 BLACK'S LAW DICTIONARY 11th ed

2 Emile Durkheim, The Elementary Forms of the Religious Life (11th ed.,Courier Corporation,2011)

3 1985 SCR (3) 844

4 1996 (1) SCR 128

and church would be separate. This ensured peaceful co-existence of different faiths and rise of
rationalists and scientific thinking. It also made possible convergence of religion towards a
common commitment. Secularism in present times is built on this original idea but there is a
slight change in it.
In the present article, the researcher would like to highlight the differences between the judicial
and philosophical understanding of religion and secularism. It would be done with help of
judicial pronouncements and the views given by thinkers, academicians and philosophers.
Indian Supreme Court and Secularism
In this part, the researcher would throw some light on the judgements of Indian Supreme Courts
and how the judges have expounded the terms religion and secularism. Many thinkers and
academicians have criticized the views of the judges at times and have commented that their
views have not been in accordance with the role of judiciary
The Commissioner Hindu Religious Endowments, Madras v. Sri Laxmindra Thirtha Swamiar of
Shirur Mutt5 is arguably the most authoritative and the earliest decisions outlining a test to
determine the essential aspects of a religious denomination. The court stressed that the essential
core of a religion was to be determined by taking into account those doctrines and practices that
a community subjectively viewed to be essential to their religion.
In Sardar Taheruddin Syedna Saheb v. State of Bombay. Ayyengar,J., explained: "Articles 25 and
26 embody the principle of religious toleration that has been the characteristic feature of Indian
civilisation from the start of history. The instances and periods when this feature was absent
being merely temporary aberrations. Besides, they serve to emphasize the secular nature of the
Indian democracy which the founding fathers considered to be the very basis of the
Constitution6."

5 MANU SC 0136 1954

6 MANU SC 0072 1962

In M.R Balaji v. State of Mysore, court said "the noble ideal of a secular welfare state set up by
the Constitution7." In Keshvanand Bharti v. State of Kerela, Supreme Court reiterated that
secularism was a a basic feature of constitution8.
In Ziyaauddin Burhannuddin Bukhari v. Brijmohan Ram Das Mehra 9, court defined the concept
of secularism in the realm of philosophy and in utilitarian terms. The court set the role of the
State to be neutral or impartial in extending its benefit to citizens of all castes and creeds and cast
a duty on the state to ensure through its laws that disabilities are not imposed based on persons
practicing or professing any particular religion.
In the year 1994, in S.R Bommai v. Union of India 10,the term secularism was discussed in great
length. Court pointed out that the concept of secularism is embedded in our constitutional
philosophy and 44th amendment has made this thing very clear. In some of the later cases such
as Ismael Faruqui v. Union of India 11, R.C. Podayal12 and Ram Janambhoomi13 case, a dilution in
the concept of secularism can be noted. Justice Verma made a mistake by quoting extensively

7 AIR 1963 SC 649

9 AIR 1985 SCC 1788

10 1994 2 SCR 644

11 MANU SC 0860 1994

12 1993 AIR 1804

13 AIR 1995 SC 605

from the scriptures such as Yajur veda, Atharveda and Rig Veda to justify 'Sarava Dharma
Sambhava' i.e., tolerance of all religions. It was controversial because it justified secularism by
using religious scriptures of a majority community acceptance of which by larger population
becomes tough.
The confusion stood confounded with the three cases known as the 'Hindutva Judgments' , the
major and crucial one being Prabhoo's case14 . The opinion of Verma, J. indicates the shift made
by the Court from its stance on secularism advocated in S.R. Bommai. The Court shifted its
earlier position and took a different stand on three major grounds:
1. The Court enunciated that a speech with a secular stance alleging discrimination against any
particular religion and promising the removal of the imbalance cannot be treated as an appeal on
the ground of religion, as its thrust is for promoting secularism.
2. The Court again seemed to have turned away from the Bommai case and the 'constitutional
duty' of the Court to get political parties in line with secularism, advising leaders to be only
"more circumspect and careful in the kind of language they use."
3. The Court equated Hinduism and Hindutva with Indianisation: "The words 'Hinduism' or
'Hindutva' are not necessarily to be understood and construed narrowly, confined only to the
strict Hindu religious practices, unrelated to the culture and ethos of the people of India,
depicting the way of life of the Indian people.
In the case of Valsamma Paul v. Cochin University15, court again adopted the old stance on
secularism and equated it with tolerance and stressed on an integrated bharat. In Bansilal v. State
of A.P, court again went back to Bommai Case and said that state can regulate personal law
citing threat to the unity and integrity of nation. The judge in another part of the judgement
accepted Hinduism as major religion.

14 1996 1 SCC 130

15 1996 (1) SCR 128

Looking at these judgements it can be concluded that there is no consistency on the stand
adopted by the judiciary and the opinion of the judges appears to be waving on the basis of social
acceptance rather than upholding constitutional values and social justice. It is often viewed that
the Supreme Court gives too much attention to the demands of society and polity and does not
follow the path of prescribed by the constitution and judicial principles.
But we must not forget that the transformation of Indian society is also a role of Indian judiciary.
The practice of constitutional secularism is an unrealised pedagogical project whose goal is the
transformation of Indian society and its politics.Toleration is the core value defended by the
liberal secular State and the Indian State is no exception; however, its institution in the Indian
Constitution compels religious groups to reformulate their traditions as doctrinal truths.
In a recent book on the Indian Supreme Courts decisions on religious freedom, Ronojoy Sen has
summarized claims on the essential practices doctrine by saying that "the Courts use of the
essential practices doctrine has served as a vehicle for legitimizing a rationalized form of high
Hinduism, and delegitimizing usages of popular Hinduism as superstition. In doing so, the court
has gone beyond the regulation of religion and social reform envisaged by Article 25. This has
resulted in the sanction for an extensive regulatory regime for Hindu religious institutions, and
substantial limits on the independence of religious denominations16."
Views of Thinkers and Philosophers
T.N Madan, in his article Secularism in its place, has said that secularism has achieved the
opposite of its intentions because it has trivialized the differences and the notion of unity and is
thus impracticable and a "Phantom concept in India". He claims that it is this incorporation that
has caused an erosion of religion since existing differences have been replaced by artificial unity.
This statement highlights that in absence of religion a void is created in the society which the
state is not able to fulfill in the similar manner as done by religion17.
16 Ronojoy Sen, Legalizing Religion:The Indian Supreme Court and Secularism(East-West Center Washington,
2007)

17 T.N. Madan, Secularism in its place, The Journal of Asian Studies, Vol.46, No.4, pp.747-759

Ashish Nandy says that the ideology of secularism is absurd as it merely provides mere
egalitarian semantics to an alien concept which has been illogically accepted. He is of the view
that toleration should be derived from the faith of the citizens rather than theories of statecraft.
He highlights that the application of the concept of secularism in India would not be as
expected18.
M.N Shrinivas has argued that the western connotation of secularism as a separation of the
church from state is a concept that is ethnocentric and is incapable of universalisation. Nandy has
said that secularism in India has exhausted all its possibilities and today it has became harmful
since it is being manipulated by politicians for self interest. M.N Shrinivas opines that there
exists a grave ideological and spiritual crisis and needs a more humanistic and utilitarian concept
as opposed to the ephemeral concept of secularism as laid down in the Constitution. It is their
opinion that secularism today is being utilized for institutional greed, materialism, corruption and
culture of consumption19.
While looking at the Constituent Assembly Debates, we are able to find the concerns of the
members in relation to personal and secular laws. The Chairman B. R Ambedkar was concerned
about the impact Constitution would have on personal and religious affairs of people and how
reforms in the society are to be carried out. He commented that"the religious conceptions in this country are so vast that they cover every aspect of life, from
birth to death. There is nothing which is not religion and if personal law is to be saved, I am sure
about it that in social matters we will come to a standstill. ... There is nothing extraordinary in
saying that we ought to strive hereafter to limit the definition of religion in such a manner that
we shall not extend beyond beliefs and such rituals as may be connected with ceremonials which
are essentially religious. It is not necessary that the sort of laws, for instance, laws relating to
tenancy or laws relating to succession, should be governed by religion. ... I personally do not
18 Ashish Nandy, "The Politics of Secularism and the Recovery of Religious Tolerance", Rajeev Bhargava(ed.)
SECULARISM AND ITS CRITICS.(New York:Oxford University Press,1998)at p.321

19 Manvinder Kaur, Challenges to Secularism in India:The Constitutional Ideal, Political Process, and
Prospects(Deep and Deep Publications,1999)

understand why religion should be given this vast, expansive jurisdiction so as to cover the
whole of life and to prevent the legislature from encroaching upon that field.20
To both Ambedkar and Munshi Indian religions occupied too much public space and could not
be accommodated within the nationalist and secular positions that they were advocating. That is,
they did not view Indian religious traditions as legitimate candidates for religious freedom and
only their reform into what Ambedkar calls their essential elements could make them such
candidates.
Rajeev Bhargavas account of the secular State
This is particularly interesting because he claims to have drawn up a theoretical model of the
secular State that is committed to a separation of religion from politics but is stripped of any
particular normative ideal. His essay seeks to defend secularism from three kinds of objections
that Indian scholars have mounted against it. First, that the secular State is Western and Christian
and therefore unsuited to Indian conditions. Second, that the secular State is hostile to religious
persons. Third, that the claims of the secular State to be neutral are overstated and that it in fact
favours the unbeliever or minority communities. Responding to these objections Bhargava
defends secularism and the secular State from its critics.
In Bhargavas account, the task of the secular State is the separation of religion from politics.
Assuming the centrality of the separation of religion from politics to the task of building a
secular State, he states various grounds on which this separation could be justified. These include
- (a) separation fosters autonomy, (b) it fosters equality, (c) it prevents the concentration of
power, fosters democracy and prevents religious and political despotism, (d) separation is a
necessity that results from instrumental rationality because religion as a matter of deepest
conviction can never be transformed by coercive methods, (e) finally, that separation is necessary
because it is the only way in which competing ultimate ideals are removed from politics to
prevent an inevitable clash of these ideals which in turn will ensure a minimally decent existence
in a given society21.
20 Constituent Assembly Debates(Lok Sabha Secretariat.,1949)

21 Rajeev Bhargava, Secularism and its Critics(Oxford University Press., 7th ed.)

Gary Jacobsohns book on the secularism in India is a good example of the normative defence of
Indian secularism made through a detailed discussion of Indian Constitutional practice. Like
Bhargava, Jacobsohns work is particularly interesting because he claims he is advancing a
socially and politically located explanation of the secular State and explicitly denies that his
account is a normative defence of the Indian secular State. Jacobsohn begins his inquiry with the
assumption that constitutions vary depending on the contours of the body politic, and therefore
that secular States are also dependent on the actual conditions of a polity. Consequently
Jacobsohn insists that the student of law and religion should be sensitive to the facts on the
ground and the manner in which religious life is experienced within any given society and
how this experience affects the achievement of historically determined constitutional end22.
As Jacobsohn suggests, reform is only one aspect of the Indian project of building a nation state.
However, to the extent that he accepted that reform was a part of the nationalist project, it is
presented as a normative project that sought to redress historic injustices of an integrated and
unified socio-sacral order. In other words Jacobsohn's account restates the Indian constitutional
consensus on religion and reform. However, this account is neither able to elaborate how this
scheme of governing religious traditions assumed its current form, nor illuminate what the
constitutional practice of the secular State entails for Indian religious traditions23.
Galanter is more critical of the elite desire to modernize the static and traditional aspects of
Hinduism and to create out of the Hindu traditions a more unified reformed and rational religion.
He recognizes that independent India was presented with the unprecedented opportunity to wield
the levers of reform over all the various traditions and strands of Hinduism. However he cautions

22 Gary J. Jacobsohn, The Wheel Of Law:India's Secularism in Comparative Constitutional Context.,(Princeton

University Press,2009)

23 Gary J. Jacobsohn, The wheel Of Law:India's Secularism in Comparative Constitutional Context.,(Priceton

University Press,2009)

against the exercise of such powers on the grounds that the success of the project to unify
Hinduism might impede its ability to tolerate difference and sustain Indias diverse democracy24.
Galanter thinks that the success of this unification project is likely to be partial and local and
largely fuelled by elite illusions about Indian society. As he puts it
"... the lawyers fallacy that behavior corresponds to legal rules offers powerful reinforcement of
the elites fallacy that the masses are following them a coincidence of illusions that can lead to
dangerous miscalculation about popular sentiment about the efficacy of legally enacted
reforms"25.
In Galanters account this statement is only a passing observation. However, I think this is an
important insight on the practice of judicially led reform of the Hindu religion.
Pratap Mehta also argues that the interventionist function played by the Supreme Court is a way
of overcoming the ills of tradition without having to debunk it as a whole. In addition Mehta
argues that intervention was part of the process by which Indians in general and Hindus in
particular made their peace with the modern world by trying to reconcile their traditions with
democratic ideals. As he mentions, the State became the vehicle for the democratization of
religion. In a sense the democratic State was the vehicle through which the community of
believers acquired interpretative authority over many of the requirements of their religion. He
therefore argues that reform was a process through which the State was given powers to protect
and to regulate religion26.
It is said that radical social differences poses a challenge to liberal secular state. Multiculturalism
changes the framework of a secular state to recognize the rights of various identity groups such
24 Marc Galantar, Hinduism, Secularism, and the Indian Judiciary.,(University of Chicago, Committee on Southern
Asian Studies,1971)

25 Marc Galantar, Hinduism, Secularism, and the Indian Judiciary.,(University of Chicago, Committee on Southern
Asian Studies,1971)

26 Ronojoy Sen, Articles of Faith:Religion,Secularism and the Indian Supreme Court.,(Oxford University Press)

as minorities and migrants. The debate on multiculturalism identifies the problem that even after
the institutions are made to deal with diversities, they only recognize citizen identities within
nation states. Akeel Bilgrami has said that " Classical arguments for secular liberalism have
assumed that there are reasons that all rational people should be bound by, and these reasons
justify basic secular and liberal ideals. But there are no such reasons. The only reasons there are
for secular liberalism are reasons that appeal not to something that all rational people will find
compelling, just in virtue of their rationality, but rather reasons that appeal to substantive value
commitments that some may hold but others may not. If that is right, then the task of achieving
secular ideals in a world in which there are strong religious and cultural identities becomes
distinctly more demanding. One is now required to look for reasons that will appeal even to
those with these identities"27.
Richard Dawkins has said that Religion is both a source of conflict and a justification for belief
without evidence. Dawkins considers faith- belief that is not based on evidence- as one of the
world's greatest evils. Dangers of abandoning critical thought and rational thinking. Dawkins has
highlighted that how internet can be used to spread religious hatred and conspiracy theories with
scant attention to evidence based reasoning. He has argued that religious education has harmed
children by ...bamboozling parents and indoctrination and dividing children28.
Conclusion
It must be kept in mind that our constitution has guaranteed religious rights to people and at the
same times it is secular in nature. It has given rights to people propagate their religion as well as
it casts a duty on the state of reformation of society and curing it of religious evils. In most
developed countries like France, people have right to profess and practice their religion in their
private sphere but there is a ban on religion as it moves into public sphere. U.S.A too is a
developed society but is still deeply religious and permits religion to flourish in public sphere. In
27 Akeel Bilgrami, Secularism, Identity, and Enchantment(Convergences:Inventories of the Present).,(Harvard
University Press, 2014)

28 Richard Dawkins, The God Delusion,.(Houghton Mifflin Harcourt,1st ed.,2006)

Supreme Court of United States, public sessions are opened by functionary announcing:"God
save this honourable court"29. Even in case such Vidal v. Girard's Executors, court said that
America is a "Christian country"30 and in US v. Macintosh, it said that the country is "filled with
Christian people"31.
Freedom of religion is a globally recognized fundamental human right and it depends a lot on the
state how much relaxation and recognition it gives to its citizens.
Indian Supreme in its earlier judgements has invaded too much in the realm of religion by
deciding what is essential and what is not. It has been observed that at times they have done it for
the good causes such as allowing a particular group entry to the temple, appointment of priest to
temple and in similar instances has eradicated many vices from religion which the religion has
tried to preserve as in the name of custom and tradition. These decisions could be said to be in
consonance with the Constitution as it also mentions that state should develop scientific temper,
humanism and spirit of enquiry and reform.
In Art.51A(e), it says that "to promote harmony and spirit of common brotherhood amongst all
the people of India transcending religious, linguistic and regional or sectional diversities; to
renounce practices derogatory to the dignity of women.32"
We have seen in the case of Shah Bano how state failed to take a strong stance to alleviate
women of their misery only because of political considerations and the judiciary stepped in to
help the affected party.It makes it clear to us that why a strong and independent judiciary is
necessary to take strong steps without fear or favor, affection and ill-will.
29 Faizan Mustafa, The Unfreedom Of Religion, The Indian Express(May5,2015)

30 43 U.S. (2How.) 127

31 283 U.S. 605 (1931)

32 The Constitution Of India

The same thing cannot be said for some of the Hindutva judgements where biases of the judges
are reflected in some minor shades.
The judiciary has a disadvantage that it has to deal with the issues only in hand has to be very
careful while pronouncing judgements that it does not cross its boundaries and irk the
government. or any other party. The court is not competent to decide about policy matters as
does not fall within its ambit but the policies can always be tested against the basic principles
enshrined in the constitution. it is difficult for judiciary to discuss such issues in detail and has to
limit itself to the particular instances. though when we look at a series of cases we are able to see
the contribution it has made in improving the plight of hundreds of people. The approach of the
judiciary often has to be pragmatic too as it is the final resort people have to resolve disputes.
It must be kept in mind that the aim of the constitution as mentioned in Art.51A(h) is " to
develop scientific temper, humanism, and the spirit of enquiry and reform."
It is often said that in multicultural democratic society, will of the majority gets imposed upon
the minority community against its wishes. The Indian experience is has been good but there
have been some major incidents such as the riots during partition, Babri Masjid demolition, 1992
Mumbai Bomb blasts and Muzaffarnagar riots which has shown how people have been divided
on religious lines. These incidents tell us radicalization of any religion is bad and how it affects
people across different social stratas. It must be remembered that it is not completely possible to
have a society free from conflicts. The Ayodhya Verdict delivered by Allahabad High Court
showed that how end conflicts on such sensitive issues, judges at times have to infuse more
pragmatism to the solutions they provide. The further appeal from that decision shows that in
matters of faith, reason has no place. Religion is based on a person's faith and reason cannot
change it. Whereas prejudices are rarely overcome by arguments as they are never founded in
reason, they cannot be countered by logic.
Ashis Nandy has made a remarkable point in his writing by saying that until we bring religion in
public sphere and start a debate on it, there is a very weak chance that we may be able to reform
it and accept it truly. The logic employed here by Nandy here is very appealing to the rational
and intellectual beings of the society but it remains a major question that how many people are

actually willing to interfere with religion which is often treated as a 'holy cow'. The ideas and
views of thinkers are accessible only to minor part of the Indian society whereas the judiciary has
to deal with the contemporary and living problems of the society. The variations and difference
we are able to find in the views of thinkers and judiciary on the topics of religion and secularism
is there because the function of both is very different and the ramifications they will cause are
very different in amplitude.
It is not possible to deny the social function religion plays. In the life of religious people, it acts
as Conscience which has a very important role to play. When such a person is holding a political
office, it becomes even more necessary to have a check on its actions. But at the same time it
cannot be denied that religion has caused the most number of wars and killings than any other
issue. A religious zealot is someone nobody would like to see in a position of power. The western
meaning of secularism is not able to encapsulate the experience we had in India. It is more like a
liberal, social democracy which has tried for not complete severance of ties between religion and
state. The thinkers and philosophers with their views have tried to reform the society but their
views are not in the reach of common masses. Supreme Court on the other hand has followed the
constitutional mandate and has tried to eradicate the evils present in society and religion.
Humans are part of a democratic society as well as their religious communities. Democracy
guarantees religious rights to people whereas most of the religions do not cause problems to
democracy. They surely poses challenges to democratic institutions. Presently, the way by which
state and its instrumentalities are able to reconcile differences between two sects of democratic
society is called secularism. In democratic society, we can say that secularism is the politics of
accommodation to normalize the situation and reduce strife.