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Published : May 25, 2015 | Author : adilwani
Category : Constitutional Law | Total Views : 8983 | Rating :

author is a student of law at UOK

Judicial Response to the Concept of Secularism in India

The aim of this paper is to explore the different manners in which Supreme court of India has dealt with religious conflicts. The first part of this paper analyses the premises on which secularism has been based. The second part explores the legal and religious landscape and the third part deals with litigation surrounding religious issue.  The fourth part deals with attitude of Supreme Court and analyses the reasons for the same and the fifth and final part is the conclusion.

It would be prudent to indicate here, that, while extensive reliance has been placed on Supreme Court decisions most of the verdicts referred to are from the Supreme Court, the occasional High Court judgment has been referred to for two reasons. One, it is the joint responsibility of both the High Court and Supreme Court to secure fundamental rights (including the right to freedom of religion) for the people. [1].Two, the strong doctrine of stare decisis in India, along with a unitary judiciary, ensures at least a basic level of consistency between the judgments pronounced by the Supreme Court and High Courts.

I. Theories of Secularism

The concept of secularism is multifaceted as well as flexible. The classical “Western” theories have emphasized on the “Wall of Separation” model of secularism. This model was best summarized by Donald Eugene Smith as encompassing three relationships between the individual and religion (freedom of religion), the state and the individual (citizenship) and the state and religion (separation of church and state).[2]. This is still the case in countries such as France where the policy has always been to say “no” to expression of religious affiliations in public. But this model has come under severe strain following increased migration from former European colonies and intensified globalisation.[3] it has been challenged in India where the understanding of secularism is influenced heavily by local factors.

When it comes to talking about the adaptability of western secularism to India, it has been said that, “religious and secular life are so pervasively entangled [in India] that a posture of official indifference cannot be justified.”[4] Some authors have taken this observation even further and claimed that any secular model is bound to fail - and rightfully so-in a society that is, by its nature, as religious as Indian society. The Indian theory of secularism is one of equal respect to all religions. This means that while the Indian State is secular, it is not irreligious, and maintains a principled distance from all religious groups. Looked at another way, the antonym of “secular” in Indian society is not “religious” but is “communal”.[5] The three strands of religious freedom, celebratory neutrality and reformatory justice are the core elements of Indian secularism. The idea of social reform is deeply entrenched in Indian society, and the separation between state and religion is not enough to secure this end. Removal of inequalities between religious groups implies that the state has broad powers to assist, financially or otherwise, in the celebration of all religious groups, to allow them to stand by not just religious beliefs, but also practices and rituals. It implies reform wherever it is necessary.[6]

However, it has also been suggested that the Indian understanding of secularism is greatly influenced by ideas of Hindu nationalism, which in turn means that the emphasis is on secularism as a means to obtain national unity. This was best reflected in the recognition of secularism as an aspect of the basic structure of the Indian Constitution in a landmark case to justify the imposition of an Emergency in various states so that the unity of the nation as a whole did not suffer.[7] The problem arises when the line between national unity and homogenization of the nation is crossed, leading to an imposition of majority perspectives. This may be one reason why the rights of minorities have taken a backseat in the modern day discourse surrounding secularism.[8]/'

II. The Indian Framework

 In India, secularism has now been pronounced by Supreme court of Indiato be a part of the basic structure of the Constitution and cannot be done away with even by a constitutional amendment.[9] Articles 25 to 28 guarantee individuals as well as groups the right to freedom of religion. However, Article 25 restricts the exercise of this right in the interests of public order, morality and health and all other rights enumerated in Part III of the Constitution.

Therefore, it is constitutional for the legislature to place social welfare and reform over and above religious interests. In fact, Article 17 of the Constitution is a rare example of a penal constitutional provision which criminalizes untouchability ; a practice that can essentially be traced to Hinduism. Article 25, itself specifies that the freedom of religion cannot be used to restrict access to Hindu places of worship to upper castes. This relatively lower position that has been accorded to the freedom of religion in the Constitution is starkly different from the manner in which this has been played out in courts and political arenas in India. Many recent constitutional controversies in India have focused on religious rights.

III. Supreme Court of India

Supreme court of India has been known to be an extremely activist court in most respects. The power of judicial review of legislation is provided for explicitly in the constitution even though it has been observed time and again that this is merely “abundant caution”[10]  because judicial review is inherent to the institution of the Judiciary. There is, hence, no doubt at all that all laws in the country must comply with Part III of the Constitution wherein lie enshrined the fundamental rights of the people, including the right to freedom of religion.

The controversy around religion in India has been marked by a general hesitation on the part of Supreme court of India to intervene in matters of religion. One of the earliest cases in this regard is the case of Narsu Appa Malli .[11] wherein the statutory prohibition on polygamy among the Hindus was questioned as contravening the right to freedom of religion. The Bombay High Court ruled that this was a constitutional measure of reform and upheld the impugned provision as valid.

The Court went on to add that even though this was valid as a reform measure (and hence not violative of the freedom of religion enshrined in Article 25) personal law does not have to comply with Part III of the Constitution at all. Even though “customs” are a part of the laws that are required to comply with the fundamental rights provisions of the Constitution, personal law is distinct from custom and falls beyond the pale of constitutional rights review. As an aside, the Court added that since polygamy had economic, religious and social justifications, it could not be regarded as discrimination “only” on the grounds of sex (as is required by the Indian Constitution) and if reviewed, could not be held to be unconstitutional. This case is important because several judgments from Supreme court of India have used it as a point of reference subsequently.

The Narsu Appa Malli case[12] illustrates two important tendencies that have been reflected in judicial discourse in the following years. The reflex of courts in India, when it comes to discussing matters of religion is to staunchly follow a policy of nonintervention. If for some reason they find it in themselves to intervene, it is mostly to uphold the religious practice, even if it is blatantly in contravention of the fundamental rights. This last point is specifically important from the point of view of the cited judgment.

The Court describes two seemingly contradictory positions - one, that the law is valid on grounds of Article 25 since reform of religious practices has been brought about by it. Two, if the institution of polygamy were to be reviewed, it could not be regarded as discriminatory under the Constitution, casting doubt on the assertion that doing away with it was reform in the first place. Simply put, if the institution is not discriminatory,

why does it need reform?
This inconsistency has little bearing on the judgment because in this case the question of constitutionality of polygamy (as opposed to the constitutionality of the statute prohibiting polygamy) was not raised before the Court and hence must be regarded as obiter. However, the almost obsessive deference and reluctance it brings out it are certainly typical of the attitude that is reflected by Indian Courts when it comes to testing the constitutionality of religious practices. It is also notable that both the arguments, as well as the judgment focus on the ameliorative role of the State when it comes to laws relating to religion.

 In a plethora of cases that followed, the truism that personal laws are not subject to Part III of the Constitution was posited. No rationale was given. Repeatedly, personal laws were given blanket immunity in spite of the explicit constitutional exceptions to the right to freedom of religion.[13] Initially no distinction was made between statutory and non-statutory personal law.

The situation got complicated with cases such as Githa Hariharan v. Reserve Bank of India [14] wherein the constitutionality of Hindu guardianship laws was in question. The case involved a statutory provision wherein the “father and after him, the mother” was declared to be the natural guardian of the Hindu child. Review was carried out, but only lip service was paid to the right to equality. Supreme court of India  held that if this provision was read down, it could be given a constitutional interpretation and hence refused to strike it down. The interpretation given by Supreme court of India was that the father was the default guardian but in case of his absence the mother became the guardian.
Supreme court of India  further claimed that if the phrase “after him” was used to connote death, it would become discriminatory but the understanding given by Supreme court of India was harmonious with the constitutional guarantee of equality. This is absurd considering the father still remains the default guardian and the mother is only given the second preference.

This case can at least be understood as including written personal law within the ambit of law subject to judicial review but in different cases, without even discussing the cases that accord a special status to personal law vis-à-vis constitutional review, Supreme court of India has gone on to test the validity of non-statutory religious law also. The position of Supreme court of India has thus been exceedingly ambivalent.[15] The case of Saumya Ann Thomas v. State of Kerala[16]  is one of the most recent cases to have pointed out this dichotomy. The Kerala High Court held that in the light of SUPREME COURT OF INDIA observations all statutes must be subject to judicial scrutiny based on Part III while non-statutory personal law, as per precedent, need not. In the same case, even though it was obiter, the legality of carving out a personal law exception in a secular State was questioned and it was suggested that this position be reviewed by larger bench strengths than have so far dealt with the issue. This ambivalence moves towards bias when it comes to cases which have both religious and secular elements, and where Supreme court of India has more flexibility. Take, for instance, the case of Dr. Ramesh Yeshwant Prabhoo v. Shri Prabhakar Kashinath Kunte & Others,[17] wherein the election of a candidate was impugned on grounds of having appealed to voters on religious grounds of Hindutva. In a stunning observation, Supreme court of India held that Hindutva was a way of life, rather than a religion and an appeal based on Hindutva did not thus qualify as an appeal based on religion. In doing so Supreme court of India universalized the experience of a majority and swept under its general umbrella, the experience of even minorities living in the same geographical regions.[18]
Ultimately, the election was struck down for all the hateful speeches that were spewed as a part of the campaign but Supreme court of India failed to realize that by giving the narrow definition to the word “religion” that they did, they were going up a slippery slope. Any religion, by its nature is a way of life, and by attributing this fundamental characteristic of religion solely to Hinduism, Supreme court of India created an artificial inequality among equals. At the other end of the spectrum you do have Supreme court of India going out of its way to keep in check fundamentalism among the Hindus. The case of S.R. Bommai[19]comes to mind where the state governments were suspended by the President and a state of “Emergency” was declared in these states. The reason for this was the communalism being fanned by these regimes. Supreme court of India was emphatic that secularism is part of the basic structure of the Constitution, and if a government cannot function in accordance with this principle then it cannot be carried out as per the Constitution. The proclamation of Emergency was upheld.[20]But mostly, we have Supreme court of India being accused of a Hindu bias.[21] The upholding of bans on cow slaughter22 has been regarded as evidence of such a bias. This is because the cow is regarded as sacred by the Hindus. Although the complete prohibition of cow slaughter has been justified on secular grounds, Supreme court of India has been known to pronounce that the sacrificing of cows is not an essential part of Islam, a custom that used to be carried out on the festival of Bakr-Eid by most Muslims in India. Again, evidently, Supreme court of India has tried to project giving precedence to a secular prohibition that favors an agrarian society rather than a Hindu belief but the subtext suggests otherwise. In fact, this comes across even more clearly in the way judgments upholding these prohibitions are perceived by the right-wing Hindu audience.23 It must also be kept in mind that even the inclusion of the directive principle of state policy regarding the prohibition of cow slaughter was at least in part religious.24
The root of this problem is perhaps the dangerous power Supreme court of India has bestowed upon itself to decide what is, or is not “essential” to a religion.25 So we have instances where even excommunication has been allowed for a Muslim cult as an essential practice26(never mind that this defeats in most part, the constitutional mandate against other forms of excommunication such as untouchability), but when pitted against the sacred Hindu cow, the religious practices of Indian Muslims are relegated as “non-essential “Most recently, Supreme court of India was in the line of fire for dismissing petitions challenging the introduction of Vedic astrology in state-funded schools since this form of astrology has its roots in the Vedas, which are Hindu scriptures.27 Supreme court of India upheld the constitutionality of this measure holding that just because a discipline traced its roots to a specific religion did not make it a “religious” course per se. While this decision seems to have at least some secular basis, more controversial is the Aruna Roy case28 which came up before Supreme court of India in 2002. This challenged the revision of history textbooks in government high schools as presenting a biased, Hindu view of history .For instance, Hindutva philosophy separates Hindu philosophy (including  all religions that originated indigenously) from the “other” religions such as Islam and Christianity that have their roots in foreign countries. The bedrock of Hindutva philosophy is the belief that the Aryans, who gave rise to Hinduism, are sons of the soil of the Indian subcontinent and thus have a more legitimate claim to it.29 If they too are immigrants from parts of Europe (as scholarship has often suggested) then Hindutva loses its meaning since then Hinduism is as alien to the land of India as the Abrahamic religions are. In true keeping with this philosophy, the new textbooks focus on the link between the Aryans and the Harappan culture, sweeping aside other theories of the origin of the race, seriously suppressing the spirit of inquiry. A much more serious, allied issue is the constant portrayal of Muslim rulers as vicious, violent and intolerant, which reflects a broader communal agenda.30.

The SCI upheld these revisions, distinguishing a study of religion from the kind of “religious instruction” that is prohibited by the Constitution. Justice Shah, who delivered the majority opinion for Supreme court of Indiastates, while talking about religion, “Although it is not the only source of essential values, it certainly is a major source of value generation.”31

Rajeev Dhavan rightly asks, “which religion and what values?” Ambedkar, one of the most prominent of the framers of the Constitution of India was adamant that the State cannot be expected to teach all religions. Indeed, “the State is not a super theologician for synthesising all faiths”.32The judgment talks about convergence of religions on one hand, and ignores the polarization between Hindutva and other religions as reflected in the textbooks. Historical theories of religions such as Jainism and Buddhism coming up as a retaliation to (and not a continuation of) Hinduism have not even been gone into. Ironically, despite all the rhetoric on convergence of values, the judgment ultimately vindicates the move of the State as an attempt to salvage the soul of the Indian student from the “negative aspects of Western culture.”33

The field of affirmative action through reservation also presents an interesting case study. The Constitution itself provides for reservation, but entirely in keeping with the orthodox Hindu approach, Supreme court of India has allowed for caste as a relevant factor for the determination of backward classes who can get the benefit of reservation. This has been perceived by many to be anti-secular,34 more so because Scheduled Castes in India have already been given the status of beneficiaries of affirmative action. But more than the factoring in of castes while deciding on the beneficiaries of reservation, it has been the tenor of the judgments of Supreme court of India that has proven to be most disturbing with the Judiciary insisting, time and again, that the objective is not to ultimately eradicate the caste system but to eliminate discrimination based on the caste system35 This aim may seem prima facie laudable, but in the context of Indian society it is either hypocritical or naïve. In modern times, there is a concerted effort to ensure that the caste system ceases to have any relation with occupations. At the same time class mobility remains well-nigh impossible. Stripped from its connection with occupations, the only relevance of the caste system remains the hierarchy it imposes. To say that retention of the caste system is permissible is more or less accepting that the hierarchy that goes with it is permissible. Caste blindness may not be the solution, but the tenor of SUPREME COURT OF INDIA observations seems to lean in favor of preserving an orthodox, Hindu institution that no rule of law society should even think of justifying. Reservations along the lines of caste were never meant to be a permanent measure, and the almost fatalistic attitude of Supreme court of India certainly fails to do justice to the intended impermanence of the measure.

IV Attitude of Supreme Court of India Towards Secularism

In conclusion, the attitude of Supreme court of India has been inconsistent when it comes to testing laws based in religion against the other rights provided under Part III of the Constitution, even though the Constitution expressly empowers the Court to do so. On the rare occasion that these laws are reviewed, they are almost inevitably found to be constitutional. In fact, as long as the case involves a religious angle, the SUPREME COURT OF INDIA’s judgments tend towards acceptance of the stance of the dominant religious group in India. A number of pretexts have been deployed by Supreme court of India in rationalizing this tendency. These range from artificially carving out Hinduism as a way of life, rather than a religion, to empowering itself through dangerously flexible devices such as the “essential practices” doctrine to rule whichever way it deems fit. In a series of cases (such as the cow slaughter cases) the Court has tried to camouflage its Hindu tendencies with secular facades, but the subtext is strong, and often overwhelming. As has been discussed earlier, most cases involve pitting religion against the public good- perhaps something, which is to be expected- given the ameliorative conception of secularism in India. But, more often than not, the verdict seems to serverve the interests of a particular group, rather than mitigation of social evils.

The SUPREME COURT OF INDIA rulings regarding the constitutionality of religious practices or laws have been confused, and are incredibly inconsistent for a country that is so committed to the doctrine of stare decisis. Cases with religious undertones present an even bleaker picture with the Hindu perspective seeming to guide most decisions of the SUPREME COURT OF INDIA. In India, the Judiciary’s self-imposed restraint might also be sourced to its constant battles with the Executive and those who have dared to dissent have had heavy costs to pay. The dark period of the Emergency has surely done a lot to shake the faith of a Judiciary that dares to express dissent with the Executive. Even as recently as late 2010, an SUPREME COURT OF INDIA order saying that food in government storehouses should be distributed before it is allowed to rot was met with Prime Minister Manmohan Singh’s scathing remarks on how the Judiciary should not meddle with policy making.36 It is no wonder that the Judiciary chooses time and again to believe that it does not have the power to review personal laws. The weight of precedent and innovative interpretations of the definition of “law” provide the perfect platform to execute this plan. In part this may be because of the personal bias and orthodoxy of some judges that gets reflected in judgments - Justice Markanday Katju, has been known to refer to the growing of beards by young Muslim men as “Talibanisation”37 and Justice Krishna Iyer, has been known to suggest that judges must remain insulated “like a Hindu widow.”38 But, there seems to be a systemic bias that cannot be explained by individual instances.
Perhaps the realist explanation is the best one. Majority of the population is Hindu, as has consistently been majority of the bench. It is natural for these judges to view everything through a Hindu lens, not because they are corrupt or anti-secular, but simply because they are Hindu. A Hindu mindset might find it hard to understand the insistence of a Muslim student to grow a beard and might find it much easier to dismiss his claim as “Talibanisation” than someone who actually does grow a beard as part of his own religion, or knows what it’s like to not have people understand the relevance of their religious traditions because they are unfamiliar to the majority. it is almost expected that the pervasive Hindu ideology is embraced more easily by Supreme court of Indiaunless expressly forbidden by the Constitutional text.

This is dangerous ground for a State that insists vehemently that it is secular. India has gone to great lengths to ensure a non-partisan, impartial Judiciary. The jury system has been abolished on the assumption that a trained judicial mind will be more impartial than the layperson. But, a bias seems to be reflected consistently. Whether this is conscious or subconscious remains anybody’s guess although the likelihood is that it is a little bit of both. The differing historical roots of both nations are another key difference. In India, initially, the British relied on the advice of “native law officers” such as pundits (in case of Hindus) and kazis (in case of Muslims) while dealing with personal law matters.39 Eventually, suspicious of the natives, in an effort to rationalize the law, the post of native law officers was abolished altogether and the British judges themselves referred to religious texts and scriptures in order to adjudicate upon matters of personal law. Obviously, their understanding of these personal laws was not only imperfect, but also tempered heavily with their common law leanings. In much the same way, Indian courts have taken upon themselves the onus of referring to ancient texts to decide for themselves what does and does not qualify as the “essential” part of a religion. This unfettered power is a dangerous thing, since it is the sole discretion of the judge that can declare an age old practice (for instance, the slaughtering of cows by Muslims on Bakr-Eid) to be non-essential overnight.

Most importantly, this is expositive of the approach adopted by the Supreme Court The Supreme Court in India reverts to religion to justify its stance, even when it is ruling against the assertion of some community. To take the aforementioned example forward, Supreme court of India referred extensively to the Holy Koran and other Muslim texts before concluding that cow slaughter was not the only way of celebrating Bakr-Eid even if it was an option in Islam. This made it non-essential. The trend in India is to de-secularise.

A case in point is the Babri Masjid case 40, which was essentially a property dispute between Hindu and Muslim religious bodies, the former claiming that the property in question is the birthplace of Lord Rama, the latter claiming that it is a mosque. The infant Lord Rama was joined as a party in this “property” dispute, and one third of the property was actually awarded to this Hindu deity! 41 Most agreed that this was a workable compromise42, but lacking any sound legal basis. While some commentators feel that there is no real need to unpack “legal niceties”,43 some eyebrows have certainly been raised at the deliberate introduction and consideration of the religious element in a dispute that should not have been viewed with a religious lens at all.44In India, this opposition is headed by the minorities who feel that the enforcement of any uniform code will be driven only by the experience of the majority religion, and the SUPREME COURT OF INDIA’s rulings in the past have not done much to invoke any faith in a truly secular judicial attitude. For the same reason, intense “Hindu” groups have been known to support the cause of a uniform civil code.45
1.CONSTITUTION OF INDIA, Articles 32 and 226.
2.Ronojoy Sen, Legalising Religion:The Indian Supreme Court and Secularism, available at http://www.eastwestcenter .org/sites/default/files/private/PS030.pdf
3.Rajeev Bhargava, States, Religious Diversity and the Crisis of Secularism, available at http://www.opendemocracy.net/ rajeev-bhargava/states-religious-diversity-and-crisis-of-secularism-0 (last visited APRIL. 22, 2015).
4.Ronojoy Sen, Legalising Religion:The Indian Supreme Court and Secularism, available at http://www.eastwestcenter .org/sites/default/files/private/PS030.pdf [hereinafter Ronojoy Sen].
5.Thomas Pantham, Indian Secularism and Its Critics: Some Reflections,The Review ofPolitics, Vol. 59, No. 3, NonWestern Political Thought, pp. 523-54, at p. 525 (1997).
6.Rajeev Bhargava, States, Religious Diversity and the Crisis of Secularism, available at http://www.opendemocracy.net/ rajeev-bhargava/states-religious-diversity-and-crisis-of-secularism-0 (last visited APRIL. 22, 2015).
7.Annette Grossbongardt, Unholy Conflict in the Holy Land, Jul. 3, 2007, available at http:// www.spiegel.deinternational/0,1518,469996,00.html
8.Ronojoy Sen, Legalising Religion:The Indian Supreme Court and Secularism, available at http://www.eastwestcenter .org/sites/default/files/private/PS030.pdf
9.S. R. Bommai v.Union of India, AIR 1994 SC 1918 (1994) [hereinafter Bommai].
10.AK Gopalan v. State of Madras, 1950 SCR 88 (1950).
11.The State Of Bombay v. Narasu Appa Malli, AIR 1952 Bom 84 (1952).
12.The State Of Bombay v. Narasu Appa Malli, AIR 1952 Bom 84 (1952).
13.Krishna Singh v. Mathura Ahir, AIR 1980 SC 707 (1980); Maharshi Avdhesh v. Union of India, 1994 Supp (1) SCC 713 (1994); Ahmedabad Women Action Group & Ors. v. Union of India, 1997 3 SCC 573 (1997
14.Githa Hariharan v. Reserve Bank of India, 1999 2 SCC 228 (1999).
15.Mihir Desai, Flipflop on Personal Laws (2005), available at http://www.indiatogether.org/combatlaw/vol3/ issue4/flipflop.htm
16.Saumya Ann Thomas v. State of Kerala, (2010) 1 KLT 869 (2010).
17.Dr. Ramesh Yeshwant Prabhoo v. Shri Prabhakar Kashinath Kunte & Others, 1996 SCC (1) 130 (1996).
18.V.M. Tarkunde, Supreme Court Judgement: A Blow to Secular Democracy, Jan. 19, 1996, available at  http:/www.pucl.org/ from-archives/Religion-communalism/sc-judgement.htm
19.(1994) 3 SCC 1
20.This ruling has remained contentious because of its invocation of the basic structure doctrine. This doctrine was incorporated in Indian constitutional law as a standard of review for constitutional amendments. The SUPREME COURT OF INDIA, for the first time used it as a justification for executive action. It seems that Supreme court of Indiahad resolved to make a bold statement about checking the “saffronisation” of Indian politics, i.e., the percolation of Hindu fundamentalists and their vote-bank politics into Indian polity, and would have achieved this end one way or another. The same result could have been achieved by simply referring to the freedom of religion and the failure of the state governments to guarantee it, but the manner in which Supreme court of Indiawent about reasoning in its judgment reflects resolve to elevate the freedom of religion beyond what it was meant to be treated as by the framers, in a bid to keep check on radical Hindu groups.
21.The Guardian, Indian Court Accused of Hindu Bias, Sept. 13, 2002, available at http://www.guardian.co.uk world/2002/sep/13/1
22.State of Gujarat v. Mirzapur Moti Kureshi Kassab Jamat & Ors.,(2005) 8 SCC 534(2005).
23.New Kerala News Service, Cow Slaughter Banned by Kolkata High Court, Nov. 12, 2010, available at http:// www.newkerala.com/news/world/fullnews-82846.html.
24.Take, for example, the speech of Seth Govind Das during the debate surrounding the issue: “The protection of cow is a question of long standing in this country. Great importance has been attached to this question from the time of Lord Krishna. I belong to a family which worships Lord Krishna as Ishtadev. I consider myself a religious-mindedperson, and have no respect for those people of the present day society whose attitude towards religion and religious-minded people is one of contempt.”: Constituent Assembly Debates, Volume VII, (Debate dated 24th November, 1948).
25.Hanif Quereshi v. State of Bihar, 1959 SCR 629 (1959).
26.Sardar Syedna Taher Saifuddin Saheb v. State of Bombay, 1962 SCR Supl. (2) 496 (1962).
27.P.M. Bhargava & Ors. v. University Grants Commission, AIR 2004 SC 3478 (2004
28.Aruna Roy & Ors. v. Union of India, (2002) 7 SCC 368
29.Best brought out by the stance adopted by the right-wing party, Shiv Sena, in their conversation about the rights of Hindus in Mahrashtra: Adnan Gill, Who’s Who of the Hindutva Army, Nov. 12, 2008, available at http:// www.defence.pk/forums/indian-defence/17427-whose-who-hindutva-army.html.
30.Other theories are dismissed as representing a “biased colonial view” and a “myth.” Similarly, in keeping with modern Hindu beliefs, all references to beef eating in the Vedic period have been removed: Atishi Marlena, The Politics of Hindutva and the NCERT Textbooks (2004), available at http://www.revolutionary democracy.org/rdv10n2/ncert.htm
32.Rajeev Dhavan, The Textbook Case, Oct. 4, 2002, available at http://www.hinduonnet.com/thehindu/200210/ 04/stories/2002100401011000.htm.
33.Aruna Roy & Ors. v. Union of India, (2002) 7 SCC 368
34.Ran Hirschl, Constitutional Courts vs. Religious Fundamentalism: Three Middle Eastern Tales, 82 Tex. L. Rev. 1819, 1820-34 (2004)
35.For instance, Ashok Kumar Thakur v. Union of India, (2008) 6 SCC 1 (2008), opinion of Balakrishnan, J. at ¶187 where the learned Judge refused to uphold that reservation based on caste is time-bound. Earlier on in the judgment, he reiterates, “There is no gainsaying the fact that there are numerous castes in this country which are socially and educationally backward. To ignore their existence is to ignore the facts of life.” Further the argument that “The Constitution never prohibits the practice of caste and casteism…It was argued what the Constitution aims at is achievement of equality between the castes and not elimination of castes.” was neither accepted nor rejected by the Chief Justice.
36.Nirmal Sandhu, The Grain Drain (2010), available at http://www.tribuneindia.com/2010/20100913/ nation.htm#11
37.Express India News Service, SC Judge Apologises For ‘Taliban’ Remark On Muslims, July 6, 2009, available at http:/ /www.expressindia.com/latest-news/SC-judge-apologises-for-Taliban-remarks-on-Muslims/485727/2/.
38.Judicial Selection Coalition, Bar To Judgeship, Feb. 19, 2011, available at http://www.judicialselection coalition.org/bar-to-judgeship.htm
39.See for instance, History of the Uttar Kannada Court, available at http://kar.distcourts.kar.nic.in/aboutCourt kar.
40.Refer to the Ram Janm Bhoomi-Babri Masjid Ayodhya Bench ruling (2010), available at http://www.allahabad highcourt.in/ayodhyabench4.html
41.NDTV, Ayodhya Verdict: Allahabad High Court Says Divide Land In Three Ways, Oct. 1, 2010, available at http:// www.ndtv.com/article/india/ayodhya-verdict-allahabad-high-court-says-divide-land-in-3-ways-56063; Nivedita Menon, The Second Demolition: Ayodhya Judgement, September 30, 2010, Oct. 2, 2010, available at http:// kafila.org/2010/10/02/the-second-demolition-ayodhya-judgement-september-30-2010/.
42.The Hindu, Intriguing Compromise Could Work, Oct. 1, 2010, http://www.thehindu.com/opinion/editorial/ article804948.ece
43.Pratap Bhanu Mehta, The Leap and the Faith (Oct. 1, 2010), available at http://www.indianexpress.com/news/ the-leap-and-the-faith/690939/0.
44.Rajeev Dhavan, A Clumsy Verdict of Doubtful Legality, Oct. 4, 2010, available at http://epaper.mailtoday.in/ 4102010/epaperpdf/4102010-md-hr-12.pdf.
45.Mukul Kasavan, The Ram Mandir Campaign Threatens the Republican Principle, Sept. 23, 2010, available at http:// www.telegraphindia.com/1100923/jsp/opinion/story_12967458.jsp

The author can be reached at: wani.adil@legalserviceindia.com

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