Judiciary losing its independence maintaining the secular structure of India?

Judiciary losing its independence maintaining the secular structure of India?

The relationship of religion and judiciary is continuously fascinating and elusive. Secularism means a greater rationalism of thought and behaviour. Secularism was concretized in India by giving it legal and constitutional dimensions through the Indian Constitution. In developing nations one is accustomed to the more salient presence of religion in the public sphere, for example- Islamic revolution in Iran, popular Jihad in the Middle East, the militant Sikhs in Punjab or the battle for the birthplace of Lord Ram in Ayodhya. The major question that arises is how can the institutions of the modern state in India take religion on board without losing their essential character?

With the 42nd amendment, the spirit of secularism which was always part and parcel of the constitution was formally inserted into its preamble proclaiming India as an independent sovereign republic. According to Justice Kurian Joseph, “secularism is being tinkered with”. Humanity has always had a longing to be free in addition to being well-governed. As an outcome, a great deal of thought and political inventiveness has gone into the attempt to create a system that will allow governments and its organs to exercise all the power essential to attain the collective ends of the society, without compromising or destroying the liberties of its individual members. In India secularism is interpreted as ‘Sarva Dharm Sambhavam’[1] – the idea that all paths lead to the same destination and the equality of all religions. The three strands of religious freedom, celebratory neutrality and reformatory justice are the core elements[2] of Indian secularism.

Individual freedom of religion is guaranteed as a fundamental right from Article 25 to 28 in the Indian Constitution. However, article 25 restricts the exercise of this right when it comes to the interests of public order, morality and health and all other rights enumerated in Part III of the Constitution. Religions, contain within them multiple cultures such as- national, linguistic and political cultures. This internal myriad being the very lifeblood of religious thought, as it evolves through internal criticism and conflict. 

Democratisation and secularisation have worked at cross-purposes. Increasing participation in the political arena has drawn in new social forces whose demands for greater formal recognition are responsible for making religion the dominant issue in the judiciary and therefore hindering its independence. Judging by the escalating figure of violent deaths and the geographic spread of communal strife like the 1984 Anti-Sikh riots, 1987 Meerut riots, 1992 Babri Masjid demolition, or the 2002 Gujrat riots, they claimed a big loss in terms of men, property, time and energy. India is currently facing its most severe crisis since independence.

The controversy around religion in India has been marked by a general hesitation on the part of the 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[3] wherein the statutory prohibition on polygamy among the Hindus was questioned as contravening the right to freedom of religion. Narasu involved a challenge to the Hindu Marriages Act which sought to render bigamous marriages void as well as criminalize the offence of bigamy. The Act, which did not apply to Muslims, was challenged on the ground that it resulted in discrimination of Hindus vis-à-vis Muslims. It was ruled by the Bombay High Court that this was a constitutional measure of reform and sustained the impugned provision as valid.

The Supreme Court in Shri Krishna Singh v. Mathura Ahir[4] echoed this view wherein they succinctly laid down that Part III does not touch upon personal laws so long as they are not “altered by any usage or custom or is modified or abrogated by statute”[5]. Repeatedly, personal laws have been given a blanket immunity despite the explicit constitutional exceptions to the right to freedom of religion[6]. Supreme Court missed an opportunity to decide on the issue[7] in 2017 when it criminalised triple talaq without addressing the core issue: whether personal law practices should prevail over the fundamental rights of life, dignity and non-discrimination. India’s statesmen routinely hark back to the halcyon days of Jawaharlal Nehru but as of the present day, no Uniform Civil Code has been implemented. Rather, while maintaining the plurilingual system as such, the different personal laws have been reformed to varying degrees via legislation and judicial interpretation.

The modern legal system has transformed the way in which the interests and concerns of the component groups within Indian society are accommodated and find expression. The 1966 case of Sastri Yagnapurushdasji v. Muldas Bhundardas Vaishya[8] The Supreme Court attempted to define the nature and boundaries of Hinduism. In this case we find the interplay of various themes- secularism and Hinduism, traditional groupings and westernized elite, parochial concerns and national aspirations, legal doctrine and religious learning. The Indian constitution and legal system embody a different relation of law to religion. The penal law in India is extraordinarily solicitous of religious sensibilities and undertakes to protect them from offence. The electoral law attempts to abolish religious appeals in campaigning.

When the religious issue gets mentioned at all, it is articulated in a derogatory and polemical manner which only adds further intensifies the problem. In 1993, Justice S.R. Pandian estimated that less than 4% of judges in the higher judiciary were from Dalit and tribal communities, and less than 3% were women. This led former President K.R. Narayanan to recommend that candidates from marginalised communities be considered as Supreme Court judges. Since Independence, only four Dalits have become Supreme Court judges, including one Chief Justice of India[9]. The process of abolishing religious or secular hierarchies cannot become deep-rooted if it is merely judicial or legal. The Indian constitutional stance toward religion is more explicit and more complex. The broad constitutional mandate disposes off the notion that the law might confine itself to ascertaining and respecting a preordained religious sphere as implied by the “separation-of-powers” model of secularism.

If the historical claims are contested with relentlessness, it will simply keep our country caged in old historical debates that have no resolution outside the ideologies of those who pursue those historical claims and if issues of faith are reopened, it will polarise this society once again[10]. A revisionist view of the state in India with regard to the legitimate role of religion should be placed within India’s indigenous state tradition. We need empirical information and we have none. From what little is known about the influence of the decisions of higher courts upon behaviour in other settings, we may summarize that when court decisions are influential it is not through their doctrinal pronouncements but through the rechannelling of major institutional opportunities and controls and by their liberating effect. Those with serious traditional commitments are unlikely in any event, to be persuaded by judicial exegesis. There is also a need for a strategy that is a combination of political transaction with those who are opposed to the goals and periodic reassessment of the traditional values of this system. The doctrine of neutrality cannot exist if judiciary keeps losing its independence while maintaining the secular structure of India.



[2] Adil Wani, Judicial Response to the Concept of Secularism in India, (Mar 15, 2016), http://www.legalservicesindia.com /article/1835/Judicial-Response-to-the-concept-of-Secularism-in-India.html.

[3] The State Of Bombay v. Narasu Appa Malli, AIR 1952 Bom 84 (1952).

[4] AIR 1980 SC 707 (1980).

[5] Anirudh Krishnan, Religious Law v. Fundamental Rights, (Sept 4, 2010), http://www.criticaltwenties.in/lawthejudiciary/ religious-law-v-fundamental-rights.

[6] Maharshi Avdhesh v. Union of India, (1994) 1 S.C.C. 713.

[7] Shayara Bano v. Union of India, (2017) 9 S.C.C. 963.

[8] AIR 1966 SC 1119.

[9] Nissim Mannathukkaren, The Great Indian Abdication, (Oct 12,2018), https://www.thehindu.com/opinion/lead/the-great-indian-abdication/article25195429.ece

[10] Pratap Bhanu Mehta, The Leap and the Faith, (Oct 1, 2010), https://indianexpress.com/article/opinion/columns/the-leap-and-the-faith/

About the Author

Rishika Jain

Rishika Jain

Rishika Jain is currently in her 1st year and pursuing law from Amity University, Rajasthan. She have always been interested in the prevailing injustices in our society of criminal justice & have deep proclivity to criminal law.

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