By Faizan Mustafa
has not only been an indispensable part of human existence, but it is an also
ineffaceable part of our lives. Indian society is predominantly religious and
as a result, we are not at ease with the idea of secularism and religion
continues to play a dominant role in political discourse.
an individual does with his own “solitariness” is how Alfred North Whitehead
defines religion. For former President S Radhakrishnan, religion was “a code of
ethical rules and that the rituals, observances, ceremonies and modes of
worship are its outer manifestations”. Religions are nothing but the submission
to some higher or supernatural power. Constitutions, like religions, do try to
bring in some order and coherence into an otherwise disorderly world.
Accordingly, even the US, despite its wall of separation between church and
state is rightly termed as a “nation with the soul of [a] church”. Justice
William O Douglas in Zorach v Clauson (1952) admitted that “we are religious
people, whose institutions presuppose a Supreme Being”.
are about “beliefs” — reason and empiricism are alien to religions. Moreover,
religions are exclusionary and discriminatory. The Sabarimala protests against
the Supreme Court judgment, though deplorable, are thus neither novel nor
surprising. Post the Shah Bano decision, we had a similar experience. What is
surprising is the Court’s over-indulgence in purely religious matters in the
name of constitutional morality and its enthusiasm in reforming religions,
particularly discriminatory gender-unjust religious practices. Reforms are a
must, but top-down reforms are always counter-productive and allow fanatics to
hijack the debate.
are indeed regressive, but we can observe the increasing adoption of religious
frameworks by liberal democracies. Modern constitutions too are becoming
similar to religions, resulting in a sort of constitutional theocracy. Abraham
Lincoln in 1838 urged Americans to consciously adherence to the “political
religion of the nation”. Prime Minister Narendra Modi himself said in 2014 that
only the holy book for him is the Constitution of India. From Lalu Prasad to
victims of mob-lynching to perpetrators of sexual harassment, everyone makes a
religiously loaded statement while “swearing” by the Constitution expressing
full “faith” in the judiciary. Is not “faith” another name for religion?
belief is generally blind. Thus, one should not reason with a devotee be he a
devotee of god or a politician. Atal Bihari Vajpayee famously called Indira
Gandhi Durga in 1971. Recently, Maharashtra BJP spokesperson, Avadhut Wagh,
called the PM the 11th incarnation of Lord Vishnu. Rahul Gandhi is visiting
temples to prove that he too is a devout Hindu. Most Indian ministers take
their oath of office “in the name of God” rather than by saying “I solemnly
courts are called “temples of justice” and the Supreme Court’s own seal says
Yato Dharmasto Jayah (where there is Dharma , there is justice). “Dharma” and
“law” were used as synonyms in Hindu religion and our apex court too treats
them as the same.
we say the Constitution — like divine law — is a higher law to which all laws
and human beings are to be subordinated? Are not our Supreme Court judges
trying to bring in a new civil religion in the name of constitutional morality?
Is it not a fact that our judges frequently and at times unnecessarily quote
religious scriptures in deciding purely worldly matters? God has authority over
us and the law too is all about authority.
Constitution is indeed the holy scripture of the modern civil religion. Like
other organised religions, this civil religion has its hymns and its sacred
ceremonies, its prophets and its martyrs. If given full effect, this
constitutional theology and what former Chief Justice Dipak Misra termed a
“constitutional renaissance” can bring about heaven on earth with the true
realisation of justice, liberty, equality and even of fraternity though it is
much less emphasised.
under this civil religion are like priests — they put on robes as well. Like
priests, they alone have the authority to tell us the meaning of the sacred
text. They are even addressed as “My Lords” and criticism/disobedience, like
blasphemy, is punishable as contempt of court. Many a time, these lords indeed
saved our democracy from authoritarianism and just like god, sometimes they too
arbitrarily decide on life and death.
religions be subjected to constitutional morality and rationality? Rationality
and religious beliefs do not go together and the Constitution protects these
beliefs. In the Preamble itself, our Constitution guarantees “liberty of
thought, expression, belief, faith and worship”. Article 26 gives autonomy to
every religious denomination or any section thereof “in matters of religion”,
subject to public order, health and morality.
interpreting these articles, the Supreme Court had said that every religious
practice will not be constitutionally protected. The Court restricted freedom
of religion to “essential practices”. In the process, it ignored the fact that
privileging one practice over another is not right. All practices taken
together constitute a religion. Moreover, in Ismail Farooqi (1994), the Court
further restricted religious freedom by adding new conditions through new
doctrines of “peculiar significance of religious practice” and insisting on
“comparative examination of religious practice under different religions”. Both
the requirements are contrary to earlier judgments of the Court and deserve
reconsideration by a larger bench. In the Sabarimala judgment (2018), Justice D
Y Chandrachud was candid enough to acknowledge the problems with the
author has consistently said that courts should not behave like clergy. It is
not the judiciary’s job to reform religions. The Sabarimala protests and
politicisation of the issue is yet another reminder that we should tread
cautiously while dealing with purely religious matters.
supremacy of the Constitution need not be converted into an idolatry of the
law. Constitutional morality is a laudable goal but we are not yet ready for
it. Despite Constitution’s text, on the ground, neither does freedom of
religion mean “freedom from religion” nor does it include — at least for our
women — “freedom within religion”.
writer is president, Consortium of National Law Universities. Views are