‘Faith’ as a determining factor of Judicial Interpretation in the wake of the Ayodhya Judgment

The Allahabad High Court’s much awaited and long overdue Judgment on the decades old Ayodhya Dispute has generated a frenzy in the intelligentsia and the legal fraternity (fueled no doubt by the unparalleled media hype that I have seen no other judgment generate ) . The Court’s jury-like tripartite partition to resolve the issue has drawn both praise and flak and has at least succeeded in creating a strong division of opinion amongst its proponents and opponents. While, the critiques are many and they keep pouring in, the strongest objection has been that the Court has been swayed by religion, faith and belief rather than the letter of the law. The major objection is that a decision being influenced by extra-legal majoritarian religious beliefs is a dangerous precedent because it does not find its basis in the logic of the law, and such a rationale has the potential of future misuse.

This is not the first time however that the Courts have had to shoulder the responsibility of deciding a religious dispute, in fact either by choice or by lack one, the Supreme Court has often sought to delineate the boundaries of the sacred and the secular. The Constitution does not define the meaning of Secularism and it has therefore been left to the courts to develop a juridical concept of secularism and define its content. The broad contours the Supreme Court has established for itself while delving into the fundamental right of religious freedom are the social welfare content of state action, and distinguishing essential from non essential religious activity. But religion is so omnipresent in every aspect of Indian Society, that the Courts do end up dealing with and even encroaching the realm of religious freedom. While judicial reasoning has often tried to stay from being influenced by faith or religion alone, defining what is ‘secular’ and what is ‘religious’ is where judicial reasoning has proved to be inconsistent in the least, for the parameters of faith and religious belief have often been employed to interpret or misinterpret the meaning of ‘Secular’

While in some cases the court has come out strongly in favour of secularism, in many others the court’s functional definition of secularism has been susceptible to the interests of the majority impinging on the rights of minority communities. A study of these contrasting approaches throws light on how faith has often played a role in determining judicial decisions, and while there are many such examples, I will only be discussing a few cases here. Interestingly, judicial use of the term secularism predates its inclusion in the Constitution. Judges have freely used the term both judicially and extra judicially prior to 1976 (when it was introduced in the Constitution), while explaining the character and nature of the Indian Constitution. In Keshavanand Bharati (1973 (4) SCC 225), the 13 Judge Constitution Bench, in no uncertain terms declared secularism to be the fundamental law of the land. C J Sikri, enumerated “the secular character of the Constitution” as one of its basic features. Secularism was declared to be an unamendable feature of the Constitution as a part of the basic structure of the Constitution. . In S.R. Bommai ((1994) 3 SCC 1) (here), Justice Sawant stated that “any profession and action that go counter to secularism are a prima facie proof of the conduct in defiance of the provisions of the constitution”.

However, the Supreme Court’s definition of Secularism has in many cases been a very tenuous one, finding its meaning in faith and religion.  In Ismail Faruqui v Union of India (1994, 6 SCC, 360) (here) the court seems to have endorsed a concept of secularism that had its rationale in Hindu scriptures. Justice Verma justified a vision of secularism that had its roots in the Yajur Veda, Atharva Veda and Rig Veda and Akbar’s Din Ilahi.  The court seems to have also accepted the claim that secularism in India exists because of the tolerance of the Hindus who are the majority religion. In Suryakant Venkatrao Mahadhik v Smt Saroj Sandesh Naik, 1996, SCC (i) 384 (here), a statement on the necessity to vote for the Shiv Sena for the protection of ‘Hindutva’, which was made amongst a congregation of Hindu devotees during a Hindu religious festival to garner votes on the basis of Hindu religion, was not declared as a corrupt election practice by the Supreme Court, as Hindutva was understood as a way of life or a state of mind and was held to not to be equated with or seen as something religious. In Manohar Joshi v Nitin Rao Bhau Pate, (1996, 1 SCC 169), the Supreme Court  ruled that the promise to establish the first Hindu state in Maharashtra did not amount to appealing for votes in the name of religion.

Contrast these cases that seem to tilt in the favor of Hindu Majoritarian religion, with ones in which the Court took upon itself to interpret the minority religion: one such example is the ‘cow slaughter’ cases, where the Supreme Court decreed in the State of West Bengal vs Ashutosh Lahiri (here) and earlier, in M H Querseshi v State of Bihar (here) that Muslims of India could not be given the freedom to kill cows as part of their religious practice. The court contended that the killing of cows was not an essential practice of Muslims. By conducting a scriptural search for a statement making cow sacrifice obligatory, the court concluded that it was optional for Muslims to sacrifice a cow or camel for every seven persons and a goat for one person. Another example is the Court’s controversial interpretation of the Quran in Shah Bano’s case, (AIR 1985 SC 943) case, which subsequently had to be undone by the Legislature by passing The Muslim Women (Protection of Rights on Divorce) Act of 1986. Sometimes the majoritarian religious rhetoric is couched in nationalist terms by the Supreme Court. Consider the observations of Justice Kuldeep Singh  in Sarla Mudgal, (1995 SCC (3) 635) (here), while asserting the need of the Uniform Civil Code:

“the personal law of the Hindus, such as relating to marriage, succession and the like have all a sacramental origin, in the same manner as in the case of the Muslims or the Christians. The Hindus alongwith Sikhs, Buddhists and Jains have forsaken their sentiments in the cause of the national unity and integration, some other communities would not, though the Constitution enjoins the establishment of a “common civil Code” for the whole of India”.

Therefore, decisions of the Supreme Court being influenced by religion (usually the majoritarian religion) and faith is not an uncommon thing, the Ayodhya judgment is not the first and will not be the last in this line of reasoning. However a judicial analysis that derives its rationale from religion and faith alone, subverts secularism. Indian Secularism must not come across only as a tolerant aspect of Hinduism that subsumes other faiths within its philosophy.  By their authority to decide what is religious and what is not, the courts acquire the authority to regulate the meaning of religion. This remarkable power in a country like India must not be used to pander to the majoritarian view of secularism, religion, faith or belief. While a detailed reading of the Ayodhya Judgment may reveal that this is not the case, but if it is, then any political peace brokered on this rationale will be fragile at best because it is based on a flawed judicial reasoning that has dangerous consequences.