By Pilid Lao
Today’s Supreme Court decision in Prafull Goradia v. Union of India is ludicrous to say the least. The question was straightforward and simple: whether a government grant funded by taxpayer money violates the proscription of Art. 27 against state fostering religious activity. Article 27 of the Constitution of India states:
No person shall be compelled to pay any taxes, the proceeds of which are specifically appropriated in payment of expenses for the promotion or maintenance of any particular religion or religious denomination.
The Court proclaimed that it would only amount to such a violation if a “substantial part of tax payer money” is used to promote religious activity:
In our opinion Article 27 would be violated if a substantial part of the entire income tax collected in India, or a substantial part of the entire central excise or the customs duties or sales tax, or a substantial part of any other tax collected in India, were to be utilized for promotion or maintenance of 4any particular religion or religious denomination. In other words, suppose 25 per cent of the entire income tax collected in India was utilized for promoting or maintaining any particular religion or religious denomination, that, in our opinion, would be violative of Article 27 of the Constitution.
Going by this brilliant explanation, money spent on religious activities will virtually never be unconstitutional as it can always be explained away as being only a small part of the overall budget, there being numerous other governmental expenditures. Article 27 is thus rendered completely otiose. The court was no doubt bound by Constitution Bench judgments in Commissioner, Hindu Religious Endowments v. Lakshmindra Thirtha Swamiar and Jagannath Ramanuj Das v. State of Orissa where it has been held that government expenditure on administering secular aspects of a religious institution in order to ensure that “endowments attached to the religious institutions are properly administered and their income is duly appropriated for the purposes for which they were founded or exist” fall outside the purview of article 27. The merit of these holdings is debatable but irrespective of that, it ought to be easily recognized that administering property to ensure compliance with the institutional mission is entirely different and separate from providing funds to carry out that mission which is what the airfares for Haj pilgrimage amounts to in this case.
The Court cited the government’s argument that similar assistance is delivered not just for Haj pilgrimage but for others such as to Mansarovar; expenditure is likewise incurred in providing facilities to pilgrims for Kumbh mela, etc. The Central government also stated that it is not averse to the idea of granting support to the pilgrimage conducted by any community. That is hardly an explanation – if these claims are true, they simply go to show the extent of the problem given that the policy clearly promotes a religious activity thereby discriminating against the irreligious, marginally religious and profoundly religious folks who for whatever reason choose not to go on pilgrimage. A policy contrary to the plain text of the Constitution cannot become valid simply because it is widely prevalent amongst both the Central and State governments.
The last explanation of the Court is that “we must not be too rigid in these matters”, “[we] must give some freeplay to the joints of the State machinery”, the Constitution is an organic statute meant to endure for the ages, etc. This is a load of nonsense to put it mildly. Under article 32, the Supreme Court is expected to enforce fundamental rights when aggrieved petitioners allege their infringement by the state. Giving gratuitous advice to not be “too rigid in these matters” and the need to allow freeplay to the joints of the State machinery is unwarranted and shameful. With respect to the cliche about the need for a Constitution to endure for the ages, in a country like ours with a large number of judges and a fairly rapid turnover rate in the judiciary, the Constitution is not going to endure unless a “rigid approach” is taken and clear red lines drawn indicating the extent of citizens’ rights and the obligations enjoined upon the state. Vague prescriptions and “flexible” interpretations with wide scope for subjectivity will create enough confusion and controversy that will quickly manage to take us down a slippery slope diluting the document’s substance even if it continues to be valued in name. Indeed, fundamental rights which are not explicitly protected from the “freeplay of the joints of the state machinery” will not amount to rights at all let alone remain fundamental. The Court’s preoccupation with political controversies and policy questions and its remarkably casual and disinterested approach to vital constitutional questions indicate that that is sadly the predicament we are fast coming to pass.
Finally the Court repeats some homilies about secularism, tolerance et cetera. These sentiments have been talked about ad nauseum in the media; so I will not repeat them here. It is enough to point out that in one stroke the Court has rendered the notion of a secular state a polite fiction. Not only has State support for religious activity been permitted, no limitation has been imposed in terms of equitability. Governments will be perfectly free to promote some religions/sects more than others; so long as some token contribution is made to more than one group, no charge of discrimination will be maintainable. Political appeasement of religious factions may well become the name of the game more than what it is today.
This article is reproduced here at the request of Centre Right India where Pilid Lao is a commentator. It can be read in continuation of our post On Secularism in South Asia.
Tags: Constitution, Haj, India, Judiciary, Pilgrimage, Secularism
TheSouthAsianIdea Weblog 
January 30, 2011 at 10:16 pm |
I would have put a mark of interrogation after the subtitle – A Constitutional Perversion?
The perspective on this issue depends upon one’s starting point – does one start with the actual state of society or with an ideal enshrined in the Constitution that has no relation to the actual state of society?
The point is that Indian society is far from secular and to imagine it to be so or to want to make it so by putting something in the Constitution makes very little sense. The only way the Constitution can conform to the reality is by being forced to make the kinds of accommodations and exceptions that allow it to get around the artificial constraint placed upon it. That is the explanation for the perversions. And the conclusion that should follow is that it is the Constitution that has to adjust, not society.
This is the perspective I have argued in the post South Asia: In Search of Roots. There is nothing new in this disconnect; it was evident from day one as I tried to point out in the post On Secularism in South Asia. It was in 1951 that Pandit Nehru requested Rajendra Prasad not to participate in the Somanath ceremony because India was a secular state and Rajendra Prasad rejected the advice because Indian society expected his participation.
On this point the Indian Constitution has always been out of tune with the ethos of indian society. The solution in the Indian context is not what Pilid Lao suggests (the state not funding any religious activities) but for the state to fund religious and non-religious activities without being biased towards any one form of belief or unbelief. This is more or less what the Supreme Court judgement arrives at after having to go through all the dizzying contortions.
January 31, 2011 at 1:48 am |
Anjum, how can the State know which of its pragmatic compromises are safe and which are feeding the wrong elements in society?
January 31, 2011 at 4:18 am |
Vinod: I don’t think the state can know this directly but the state can put in place mechanisms that establish the legitimacy and credibility of organizations from below. These mechanisms will vary for each society but one can mention some for illustrative purposes only. For example, the stipulations that would make an organization eligible to apply for state funding could be used as the mechanism. Organizations could be required to be registered with an appropriate body, to have a charter or constitution, annual elections, a yearly audit of accounts, etc. These should provide for a reasonable margin of safety. One can add to this the oversight from citizen watchdog groups and recourse to the judicial system for further protection.
January 31, 2011 at 5:43 pm |
There is an excellent essay archived on this blog (The Meaning of Secularism by Charles Taylor) that speaks directly to the article by Pilid Lao. The key argument of the essay is the following:
“In thinking of secularism we have the wrong model, which has a continuing hold on our minds. We think that secularism has to do with the relation of the state and religion, whereas in fact it has to do with the (correct) response of the democratic state to diversity.”
See Entry #71 in The Best From Elsewhere Archive:
February 2, 2011 at 5:23 am |
Religion … is not the business of government or of the secular courts. So the starting point of the law is an essentially agnostic view of religious beliefs and a tolerant indulgence to religious and cultural diversity. A secular judge must be wary of straying across the well-recognised divide between church and state. It is not for a judge to weigh one religion against another. All are entitled to equal respect, whether in times of peace or, as at present, amidst the clash of arms.
February 2, 2011 at 12:55 pm |
The logic you cite is the logic that the independent Indian national-state was built on. However, what many fail to realise is that this logic is an outcome of the European Enlightenment. For it to be sustained in India, it requires either
a) Secular Humanists at the heights of the State
b) Secular Humanists in the society at large
c) Preferably both
In the Indian Subcontinent neither the first nor the second requirement is fulfilled. This necessarily leads to normative confusion because our politics is still conducted within the intellectual-normative framework of Parliamentary democracy but by individuals and a society that do now know its meaning and do not understand its core. Thus, the project of the Westernisation of India’s political forms is gradually being undermined, both from the top and the bottom.
I don’t want to leave anybody with the impression that I am a friend of parliamentary democracy. I am not. However, I am also ill-disposed towards this normative confusion that saps all of our vital energies. Because we conduct our politics in a discourse that nobody understands we cannot progress as a nation or a region. The democracy fetish, which is really a fetish for westernisation plagues Pakistan as well.
The non-West needs to take the best of the Enlightenment (Man at the centre of the Universe, Industrial Modernity) and match it with its own social genius which values a collectivist conception of social life, man as a social animal rather than an isolated individual, a culture of sacrifice and determination – and craft an alternative modernity.
We already see the first signs of this in China today. I wish them well and I am sorry that it not the Subcontinent that is the crucible of this new modernity.
February 2, 2011 at 7:52 pm |
Vijay: In South Asia it is the constitutional tail that is wagging the societal dog and as long we believe that the dog needs to adapt to the tail we will continue to have problems. I agree with you that we needed a mode of governance compatible with our traditions but the moment for that has passed. We can’t do away with parliamentary democracy now; rather we have to adapt it to our traditions. I feel there is something to be learnt from how the Malaysians went about the task and also, to some extent, how the Japanese experimented with the details. Both these experiments were discussed earlier on this blog:
https://thesouthasianidea.wordpress.com/2008/02/22/democracy-in-japan-–-electoral-rules-matter/
The Chinese have a live intellectual tradition in Confucianism which the leadership has used opportunistically. South Asians don’t really have a live tradition now and whatever we might dig up won’t resemble Confucianism. I hope we don’t try and borrow something from China after having made the case that earlier uncritical borrowings are at the bottom of many of our problems.