Varanasi Court’s Order
On 8th April, a civil court in Varanasi allowed the Archeological Survey of India to survey the Gyanvapi Mosque, where it is contented by Hindu groups that a temple used to exist before it was demolished on the orders of Aurangzeb, the Mughal Emperor. According to one of the orders issued by the court, “The prime purpose of Archaeological Survey shall be to find out whether the religious structure standing at present at the disputed site is a superimposition, alteration or addition or three is structural overlapping of any kind, with or over, any other religious structure.” Once the Archaeological Survey of India completes the survey, it will be asked to present a “comprehensive physical survey of the entire site.”
If we suppose in a hypothetical scenario that the survey finds out that a structure does exist below with indications of Hindu Temple Architecture, what will be the response of the court?
In 2019, when the honorable Supreme Court in M Siddiq(D)Th Lrs vs Mahant Suresh Das Ors allocated the entire disputed land to Hindu Parties and five acres of land to Muslim parties, it made an important decision. It held that the status of no other place of worship will be allowed to change. This observation of the court is also in consonance with the Places of Worship Act, 1991, which places a bar on the conversion of places of worship as they were existing on 15th August 1947, with the exception of Ram Janmbhomi. The civil court may ask the Central Government to bring appropriate changes in existing laws to change the structure of the place.
However, any such amendment will have to pass the test of not violating the basic structure of the Constitution, of which Secularism has been held a part of in SR Bommai vs Union of India. Therefore, it becomes essential to look at how the Supreme Court has interpreted the meaning of ‘Secularism’ and what were the thoughts of the members of the Constituent Assembly on ‘Secularism.’
Constituent Assembly on ‘Secularism’
The opinion of the Constituent Assembly on the definition of the word ‘Secularism’ was divided. Shri HV Kamath, representing Central Provinces and Berar, had moved a new sub-clause after clause (1) of Article 19,- “The state shall not establish, endow, or patronize any particular religion. Nothing shall however prevent the State from importing spiritual training or instruction to the citizens of the Union.” Another member of the Constituent Assembly, Shri Loknath Misra representing Odisha, said “Justice demands the ancient faith and culture of the land should be given a fair deal, if not replaced to its legitimate place after a thousand years of suppression.” According to Mr. Misra, Vedic Culture “excludes nothing” and therefore the right inference from his statements in the house suggests to us that he saw ‘Secularism’ as an inherent feature of a common civilization.
Shri Rohini Kumar Chaudhary, representing Guwahati, Assam was of the view “We are framing a Constitution where we speak of religion but there is no mention of God anywhere.” He was more concerned with the metaphysical component of religion. Jawaharlal Nehru, first Prime Minister of India on the floor of the house said “The state is not going to establish, patronize or endow any particular religion to the exclusion of or in preference to others and that no citizen in the State will have any preferential statement.” This assurance from the Prime Minister himself meant that minorities will not be subjected to discrimination by those who are in majority.
Interestingly, Dr. Babasaheb Ambedkar was against the insertion of the words ‘secular’ and ‘socialist’ in the Constitution as he believed that how society must be organized should at best be left to the people of the country. Broadly speaking, most of the members of the Constituent Assembly agreed on India being a secular country, but their interpretation of the word was different from each other.
Supreme Court’s stance on Secularism
In the year 1962, the Supreme Court of India in Sardar Syedna Sahib vs the State of Bombay, held “Article 25 and Article 26 of the Indian Constitution embody the principle of religious toleration, besides they serve to emphasis the secular nature of Indian democracy which founding fathers considered to be a very basis of the Constitution.” In 1974, the Supreme Court held that ‘Secularism’ was a basic structure of the Constitution but did not explain or propounded its thought on what is meant by ‘Secularism.’ However, the decision of the Supreme Court in SR Bommai vs Union of India has helped significantly to understand the concept of ‘Secularism’ in India. As per Justice Sawant and Justice Kuldip Singh(with Justice Pandian concurring), “The state is enjoined to accord equal treatment to all religions and religious sects and denominations.” At the same time, Justice Ramaswamy held “The state is prohibited to patronize any particular religion as the state religion and is enjoined to observe neutrality.”
The construction of any religious site with active or passive support from the state machinery must therefore be treated as violating the basic structure of the constitution considering the judgment in SR Bommai vs Union of India. Another significant judgment was Bal Patil vs Union of India, where the Supreme Court held “The constitutional goal is to develop citizenship in which everyone enjoys full fundamentals freedoms of religion, faith, and worship and no is apprehensive of encroachment of his rights by others in minority or majority.” This observation is significant because it talks about harmonization between religious practices and possible encroachment of the rights of other religions by observing religious practices which may be detrimental to the rights of others. This also draws our attention to another concept called the ‘Essential Religious Practices’ test. There is no strict principle of determining what is an essential religious practice and the court considers the views of the religious community while deciding the validity of the city socio-religious practice. Therefore, the validity of any religious practice is decided on a case-to-case basis.
Hindutva Judgement and Future Prospects
In 2016, when the Supreme Court was examining the scope and width of section 123(3) of representation of people, it clearly stated that it is not going to look into Hindutva Judgement. The judgment has appeared to be problematic since the word ‘Hindutva’ was made synonymous with ‘Hinduism.’ The three-judge bench headed by Justice Verma used the phrase ‘way of life’ to describe ‘Hindutva’ or ‘Hindutva.’ This judgment has motivated right-wing parties such as the BJP to add a legal dimension to the cause of constructing temples which the parties claim have been destroyed by Islamic rulers. In conclusion, it can be said that the task of reclaiming temples is a difficult one because it will involve a significant alteration of the word ‘Secular’ to make it compatible with the demands of right-wing groups. As of now, the possibility of any review of what is meant by ‘Secularism’ seems to be a distant possibility.