A LOOMING QUESTION ON THE INDIAN SUPREME COURT: IS IT TRULY SECULAR?

  • Ruchir Joshi

The issue of faith in law is a ‘highly debated’ one in the Indian Constitutional Law. The author in this article argues that how the judgements of the court have come out to favour and legitimise Hindu Nationalism, which in reality has delivered a gift for the political parties advocating the ideology of Hindutva at the expense of the minority religions which are at a disadvantage. In the light of the electoral system of India, the purpose of this article is to analyse the influence that the Supreme Court’s rulings have had on the discourse of secularism and nationalism.

Before we embark on a more in-depth approach to analyze the Court’s approach, it is important for us to understand that one of the principal concerns of the contemporary political science is the relationship of religion to the politics and state. So, whenever we talk about the court’s decisions on the matters related to religion, we should not only look to uncover the judicial discourse on religion but also think of situating it within the larger philosophical and political context of Indian secularism.  

DEFINING RELIGION: THE SUPREME COURT AND HINDUISM

The court’s proclivity for defining religion, especially Hinduism, can be seen flowing partly from Article 25 and 26[i] of the Indian Constitution which deal with the right to freedom of religion. It can certainly be said that, the court while defining Hinduism was entering into a contested terrain as ‘Hinduism’ was a recently coined term in the early 19th century, and there were various groups that were trying to define it. During the 19th century, European scholars started contributing profoundly to the modern construction of Hinduism, by defining it based upon the Western understandings of their traditions. In response to which a large group of Hindu Reformers described there thought, known as neo-Hinduism, in order to counter the west by an invoking of Hindu tradition.

It is important to note that a broad distinction can be made between the two discourses put forward by them, the inclusivist and the exclusivist. What I intend to demonstrate, is that the court relied on many of the dominant assumptions of the reformists and the neo-hindus and thus wrongly conflated the two ideas of Hinduism and Hindutva without taking into consideration the antecedents of Hindutva which have a special meaning and is rooted in the social and political philosophy of Savarkar and Golwalkar. 

CONFLATION OF HINDUISM AND HINDUTVA: UNDOING SECULARISM

In the 1990s, defining the role of religion and of religious identities in public life was increasingly left to the courts. This interface of religion and courts can be understood through a series of judgments where the rulings of the court, came out to be a threat to secularism and consequently a threat to democracy itself.

In the famous SR Bommai[ii] case the Court attempted to recover India’s constitutional commitment to ‘secularism’ which was compromised with the rise of Hindu nationalism by ruling that secularism is part of the basic structure of the constitution and cannot be amended, ensuring that no religion will be at risk in a secular India and every religion will be treated equally. But it is paradoxical to see that the same court allowed the term Hindutva to expand beyond religion altogether, by giving it a wider interpretation and holding it synonymous to ‘Indianness’, in the series of three judgements popularly known as the Hindutva cases.

The logical flaw in the ruling of the court in the case of  Prabhoo v. Kunte[iii] was that, though the court in the famous Yagnapurushdasji[iv] case, while describing Hinduism as a ‘way of life’, adopted the inclusivist model of Hinduism, the same court in contrary to its early ruling by also declaring Hindutva as a ‘way of life’ also legitimised the exclusivist discourse, thus conflating both the discourses, while ignoring the sacred soil and birth or race aspects of Hindutva, as defined by Savarkar and Golwarkar.

The court while equating Hindutva with Hinduism not only collapsed the inclusivist and exclusivist model but also gave a highly political dimension to the judicial discourse on Hinduism, which is evident from the fact that BJP released a ‘Vision Document’ prior to the general elections in 2004, justifying Hindutva as an inclusivist idea, in the light of the court’s ruling. So, the real win for the political parties advocating the Hindutva ideology was not merely the legitimacy being given to it but rather that it was deemed as a ‘secular’ ideology synonymous with the Indian Culture.

HOW THE JUDGEMENTS HAVE TURNED OUT TO FAVOUR HINDU NATIONALISM MORE?

This argument can be explained in the light of the judgement of the court in the case of Abhiram Singh v. C.D. Commachen[v], in which the court while giving a broader interpretation of Section 123(3)[vi] of the Representation of People’s Act, 1951 said that it is a corrupt practice for a candidate to make an appeal “to vote or refrain from voting for any person on the ground of his religion, race, caste, community or language”. The court ruled that in this phrase the word ‘his’ includes both the candidate and the voter, thus making it impossible for the candidates to present themselves as serving the interests of the minorities.

This broad interpretation given by the court of this statute is unequal as it was disadvantageous only to the minority religions. So, during the election campaigns, the Hindu candidates could invoke their creed to win votes, by the virtue of the Hindutva ruling which made Hindutva ideology secular whereas the Muslim candidates could not.

The court while delivering this judgement did not deem it necessary to first revisit the Hindutva ruling, thus persisted on a restrictive ‘secularism’ allowing appeals to majority religion but not to the minority religions. So, in reality, this judgement was a gift for the political parties advocating the ideology of Hindutva at the expense of the minority religions which are at a disadvantage.

The author is a 2nd-year student at National Law University, Nagpur.


[i] Article 25 and 26 of the Indian Constitution deals with Right to Freedom of Religion.

[ii] S.R. Bommai v. Union of India, AIR 1994 SC 1918.

[iii] Ramesh Yeshvant Prabhoo v. Prabhakar Kashinath Kunte, AIR 1996 SC 1113.

[iv] Sastri Yagnapurushadji v. Muldas Brudardas Vaishya, AIR 1966 SC 1119.

[v] Abhiram Singh v. C.D. Commachen, Civil Appeal No. 37 of 1992.

[vi] Section 123 of RPA, 1951 deals with corrupt practice.

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