Pilgrimage as Secular Activity: A Constitutional Perversion

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.

Back to Main Page

After the Long March – What Now Comrades?

By Anjum Altaf

Let us begin when everything was as it was supposed to be.

Before you came,
Things were as they should be:
The sky was the dead-end of sight,
The road was just a road, wine merely wine.

It was November 2006. The sun was in the sky, everything was alright with the world, the Enlightened Moderate, everyone’s favorite, was firmly ensconced on the throne, the Chief Justice was still the Chief Justice, and the lawyers were beyond the dead-end of sight.

This is what we recommended, based on our analysis of the situation, in a paper presented in Islamabad:

So what is to be done beyond the struggle for civilian rule? In the absence of a political coalition to support the demand for improvements in human rights, civil society groups at the present juncture in Pakistan should look for mechanisms to strengthen the instruments of social control over governments, to weaken the latter’s control over critical areas of resource allocation, and to increase the accountability of its actions….

A critical area is the rule of law where the arbitrary power of the state or of one individual over another needs to be curtailed. Mechanisms need to be found to shelter the judiciary from the predatory powers of the executive and to try to ensure easier and more equitable access to and enforcement of justice. Civil society should devote efforts to wrest a lot more input in the design and staffing of the institutions of government providing justice and enforcing the law and a lot more control over the promotion of officials within these institutions. Once again, we learn from Tocqueville that this is not likely to be an easy struggle: “Unable to do without judges, it [the government] likes at least to choose the judges itself and always to keep them under its hand; that is to say, it puts an appearance of justice, rather than justice itself, between the government and the private person.” Do we need Tocqueville to remind us of this reality in Pakistan? Nevertheless, the efforts need to be made as part of a multi-dimensional strategy to exert pressure on the state.

Fast forward to November 2007: All hell had broken loose, the Enlightened Moderate had shown his true colors, the Chief Justice had been sacked, and the lawyers had appeared on the horizon. All the talk was about a new dawn with the restoration of true democracy.

Now everything is like my heart,
A color at the edge of blood: 

And the sky, the road, the glass of wine?
The sky is a shirt wet with tears,
The road a vein about to break.
And the glass of wine a mirror in which
The sky, the road, the world keep changing.

This is what The South Asian Idea had to say on the day the Emergency was declared:

So, going back to “free and fair” elections, back to “true democracy,” as promised by a dictator, ruling under an emergency, to a bunch of democrats ready to cut a deal, is not going to do much good. It will be very old wine in very old bottles. Well-wishers of Pakistan, at home and abroad, need to grasp the one promising development in an otherwise sorry history. They have to agree on a one-point agenda—the Supreme Court has to be restored; the independence of the judiciary has to be guaranteed. This is the only leverage we have at the moment, the one issue on which a broad coalition can unite. This is where the fight for “true democracy” begins. Whosoever is next anointed by God would need to be put to this test of sincerity. Otherwise, the moment and the opening would be lost. Those who are fighting would need to go on fighting.

Forward again to March 2009: The Long March is over, the Chief Justice has been reinstated, the Supreme Court has been restored.

What now? Is this the Revolution?

We don’t think so. As we said: This is where the fight for “true democracy” begins.

There is still no political coalition at the grassroots pushing for systemic change. This is still a movement led by civil society that needs to act on behalf of citizens to wrest control from the state to enlarge the space for democratic action.

Old habits die hard. Civil society has to ensure that the next person anointed by God to govern this country does not wrest back this hard-won advantage, does not shrink this space that has opened up. The independence of the judiciary would have to be guarded and guaranteed so that it can stand up to the other organs of the state and begin to act on behalf of the citizens of the country.

And there could be some new complications on the horizon.

We wish the Peoples Party had succeeded because it had representation in every province of the country and could have furnished the glue for national unity. But that was too much to hope for – as we had mentioned “this is a society at a stage of development where political parties are personal affinity groups.” If the Peoples Party had been a political party we would have seen it exerting control over its leader and not the other way around.

Now, although an important victory has been won, there is the danger of provincial polarization much as we saw when the Awami League emerged dominant in one province and had no support elsewhere in the country.

How will the political parties (that are not really political parties) deal with this complication? How will civil society force the politicians to maneuver through these rapids with care?

Civil society has been here before – Ayub Khan was toppled by the students and Bhutto fell at the hands of the traders. But then civil society folded, gave back its gains, and succumbed to the charms of the status quo. Professor Ralph Russell noted this many years ago: “For a century now all sections of the modern sophisticated elite have continued the traditions of their medieval forbears (in regarding it as the whole duty of the unsophisticated masses to do as the elite tells them) and the traditions of Sir Sayyid Ahmad Khan (of looking for essential support – even if, in some cases, only moral support – to more powerful forces based outside their own country, be it the British, the Americans, the Russians or the Chinese).

And even more ominously, as a friend from Ahmedabad put it: Who will protect us from civil society? 

As we have said: The fight has just begun. Some parts of the picture have brightened, others are threatened with darkness. Even civil society has to prove itself. It is still a long way to go.

Don’t leave now that you’re here –
Stay. So the world may become itself again:
So the sky may be the sky,
the road a road,
and the glass of wine not a mirror, just a glass of wine.

[Excerpts are from the poem by Faiz (rang hai dil ka merey) translated by Agha Shahid Ali (Before you Came). The quote from Ralph Russell is from his essay Strands of Muslim Identity in South Asia.]

Back to Main Page