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The Inclusive Nature and Structure of Indian Secularism: The Ayodhya Dispute

INTRODUCTION

The concept of secularism in Indian Context can be defined as “Religious tolerance and equal
treatment of all religious groups and protection of their life and property and of the places of their
worship are an essential part of secularism enshrined in our Constitution”1.

In Gulam Abbas v. State of UP2 in a writ petition under article 32, the Supreme Court enforced the
customary religious rights of the Shia community on a piece of land. The court held that “State
should not interfere with the established customary rights to perform their religious ceremonies
and functions”

The Judgement of M Siddiq (D) THR LRS v.Mahant Suresh Das And Others, 2019 SCC OnLine SC
1440 is a ‘Legal Disaster’, this particular judgement has not only killed the spirit of secularism but
has also killed the conscious of the Constitution, a judgement which is stated not to be delivered
on the basis of any religious belief, but this a judgement which has been actually delivered on the
basis of religious sentiment and the word secularism cannot be defined on the basis of religious
sentiment. Article 25 to 28 of the Indian Constitution confer certain right rights relating to the
freedom of religion not only on citizens but also on all persons in India; all religions are treated
alike and enjoy equal protection without any favour or discrimination and that’s the very inclusive
nature of the Indian Secularism. The word ‘Religion’ does not have any definition but undoubtedly
the word ‘tolerance’ has to be equated with any definition of the religion. But sadly the Ayodha
Verdict is a verdict which is against all these principles of Secularism which ultimately forms the
structure of Secularism.

1
SR Bommai v. UOI, AIR 1994 SC 1918.
2
AIR 1981 SC 2198.
Secularism: The Backbone to the Religion

“Religious moderation is the product of secular knowledge and scriptural knowledge”- Sam
Harris

India is a pluralistic society and a country of religions. It is inhabited by people of many religions.
The framers of the Constitution thus desired to introduce the concept of secularism, meaning state
neutrality in matters of religion3. They also wanted to confer religious freedom on various religious
groups. Religion has been a very volatile subject in India before and after independence. The
Constitution therefore seeks to ensure state neutrality in this area.

Religious tolerance and equal treatment of all religious groups are essential parts of secularism 4.
Secularism in India does not mean irreligion. It means respect of all faith and religions. The state
does not identify itself with any particular religion5. In S.R. Bommai v. Union of India6 the apex
court held that “The concept of secularism is not merely a passive attitude of religious tolerance.
It is also a positive concept of equal treatment of all religions”.

The concept of secularism was not expressly incorporated in the Constitution at the stage of its
making. However, its operation was visible in the Fundamental Duties and Directive Principles.
The Concept of secularism, though not expressly stated in the Constitution, was, nevertheless,
deeply embedded in the constitutional philosophy7. In 1976, through the 42nd Amendment of the
Constitution, the concept of secularism was made explicit by amending the preamble. By this
amendment, the word “secular” was introduced in the Preamble to the Constitution and, thus, what

3
MP JAIN, INDIAN CONSTITUTIONAL LAW 1103 (6th ed., 2013).
4
Id.
5
N.A. Subramaniam, Freedom of Religion, 3 JILI 323 (1961).
6
AIR 1994 SC 1918.
7
Harry E. Groves, Religious Freedom, 4 JILI 191 (1962).
was hitherto implicit was made explicit. In Court on its Own Motion v. Government of NCT of
Delhi8, the court held that “a secular state does not extend patronage to any particular religion.
The state is neither pro any particular religion nor anti any particular religion. The state maintains
neutrality in matters of religion and provides equal protection to all religions subjects to
regulation of secular parts”.

In M. Ismail Faruqi v. Union of India9, regarding the concept of secularism it was held that “It is
clear from the constitutional scheme that it guarantees equality in the matter of religion to all
individuals and groups irrespective of their faith emphasizing that there is no religion of the state
itself. The Preamble of the constitution read in Particular with Article 25 to 28 emphasizes this
aspect and indicates that it is in this manner the concept of secularism embodied in the
constitutional scheme as a creed adopted by the Indian people has to be understood while
examining the constitutional validity of any legislation on the touchstone of the Constitution. The
concept of secularism is one facet of the right to equality woven as the central golden thread in
the fabric depicting pattern of the scheme in our Constitution”.

“Secularism is the basic feature of our Constitution”. Reference may be made in this connection
to Articles 25-28, 29-30, to articles 14, 15 and 16 as well as to articles 44 and 51A10. These various
constitutional provisions promote the idea of secularism and by implication prohibit the
establishment of a theocratic state. The state is under an obligation to accord equal treatment to all
religions and religious sects and denominations. In Aruna Roy v. Union of India11 the Supreme
Court has ruled that the concept of secularism is not endangered if the basic tenets of all religions
all over the world are studied and learnt. Value-based education will help the nation to fight against
fanaticism; ill-will, violence, dishonesty and corruption. These values can be inculcated if the basic
tenets of all religion are learnt.

The concept of secularism is not static; it is elastic in connotation. In this area, flexibility is most
desirable as there cannot be any fixed views on this concept for all time to come. The courts decide
from to time to the contours of the concept of secularism and enforce it in practice.

8
(2012) 192 DLT 209.
9
AIR 1995 SC 605.
10
4 DD BASU, COMMENTARY ON THE CONSTITUTION OF INDIA 883 (9th ed. 2009).
11
(2002) 6 SCC 408.
The Ayodhya Verdict: Indentation on Secularism

India is a country of rich diversity there is no doubt in the fact India has always been a tolerant
nation when it comes to the religion matter. But a question which arises here is that is there any
difference between religious belief and religious sentiments? The courts can pass any verdict on
religious belief but whether they can pass any verdict based on religious sentiments.

The Judgement of M Siddiq (D) THR LRS v.Mahant Suresh Das And Others12 is a legal disaster, it
was held that “Irrespective of the status of mosque under the Muslim Law applicable in the Islamic
Countries, the status of a mosque under the Mahomedan Law applicable in Secular India is the
same and equal to that of any other place of worship of any religion; and it does not enjoy any
greater immunity from acquisition in exercise of the sovereign or prerogative power of the State,
than that of the places of worship of the other religions”.

The Supreme Court in Sri Lakshmana Yatendrulu v. State of Andra Pradesh13 held that “Religion
is a matter of one’s belief and faith, and that is not concrete in nature, it is mandatory to draw a
line between Religious belief and religious sentiments”.

After delivering the verdict the apex court held that the land grant is an ‘act of restitution’ for a
wrong, the words here are ‘for a wrong’, there is no doubt in that vandalizing the mosque was in
itself the murder of secularism, but what matters now is that how this act has compensated the
loss. The court agreed that mosque was not build not a vacant land, but what structure was there
on that land, while evaluating the evidences the Supreme Court held that “Archaeological reports
have overwhelmingly pointed out that the underneath structure was of Hindu origin and belonged
to ancient era i.e. prior to Islamic advent in India. Despite some flaws in the report of the

12
2019 SCC OnLine SC 1440.
13
(1996) 8 SCC 705.
Archaeological Survey of India (ASI), it was possible to isolate relevant factors to draw an
inference that it was a Hindu structure rather than a Muslim Structure, but it was not possible to
say that it was necessarily Lord Ram’s temple”14 .

The whole verdict is based upon the preponderance of probability, various accounts of foreign
travelers were taken into account for e.g. Fuhrer and Beveridge, nowhere in their writings the
demolition of any temple in Ayodhya has been stated, court also laid emphasis upon the biography
‘Baburnama’ and “Ain-e-Akbari’ but nowhere it is mentioned that an ancient temple was
destroyed and a mosque was constructed.

Regarding the construction of the temple during the Vikram era is also a question of dispute Justice
Sudhir Agarwal in his judgement held that “When the original was already lost and there was
nothing to verify the text of restored inscription with the original, neither the restored one can be
relied upon nor is it understandable as to how he could have any occasion to compare the restored
one with the alleged…… original”. There is mention of buildings in Babur-Nama at different
places including temple of Gwalior, mosque at Delhi, Agra, Delhi and other several places but it
is true that neither there is mention of demolition of any religious place by Babar in Awadh area
nor there is anything to show that he either entered Ayodhya or had occasion to issue any direction
for construction of a building and in particular a Mosque at Ayodhya”.

To which the apex court raised their objections, the apex court relied on the work of Niccolao
Manucci titled “Indian Texts Series-Storia Do Mogor or Mogul Inida 1653-1708”. Manucci
identifies “the chief temples destroyed by Aurangzeb, among them being15:

(1) Maisa (Mayapur)


(2) Matura (Mathura)
(3) Caxis and (Kashi)
(4) Hajudia (Ajudhya)

Besides the work of Manucci, there is the “Ain-e-Akbari” 16 written by Abul Fazal Allami. The
text refers to “two considerable tombs of six and seven yards in length” near the city. The text

14
Supra 10.
15
MANNUCCI & WILLIAM IRVINE, STORIA DO MOGOR 1653-1708 587 (Murray trans. 1907).
16
Supra 10.
identified several sacred places of pilgrimage. It specifically speaks of Ayodhya and talks about
an ancient temple built on the outskirts of the city. The point to ponder here is that the question
regarding the existence of a temple took place in the year 1856 after a communal riot took place
between Hindu’s and Muslims. The Holy Quran does not permit the construction of a mosque on
the site of temple after demolishing the temple so here another question which arises how a Mosque
could be constructed then. And this question does forms a part of an essential practice of the
Muslim religion. This verdict is against the secular nature of our country, this Judgement is based
upon the Religious belief of the majority community and that destroys the secular nature of this
country, in S.R. Bommai v. Union of India17 it was held that “How are the constitutional promises
of social justice, liberty of belief, faith or worship and equality of status and of opportunity to be
attained unless the State eschews the religion, faith or belief of a person from its consideration
altogether while dealing with him, his rights, his duties and his entitlements? Secularism is thus
more than a passive attitude of religious tolerance and this the inclusive nature of the Secularism,
and it is the duty of the court to see that the rights of the citizens are not hampered in any manner
and any step inconsistent with this constitutional policy is, in plain words unconstitutional”.

17
(1994) 3 SCC 1.
Cultural Vacuum & Political Exploitation

Secularism has never looked so anemic, so abject and as apologetic as it does today, post the
Ayodhya verdict. There is no one else to blame for this state of affairs except the custodians of
secularism. Not just because of their hypocrisy, but also because of their hubris. Secular
intellectuals and politicians have failed or rather refused to translate this constitutional ideal for
ordinary citizens. What made this sea change possible18? Ideals like secularism do not live on just
because they are inscribed into the Constitution. It takes continuous conversation with the public
to keep reinventing these ideals in a new language for every generation. The secular elite halted
this conversation decades ago19.

The Sangh Parivar, on the other hand, kept at it, despite its stigmatization and marginalization in
post-Independence India. It spoke to ordinary citizens in their language, their idiom and their
cultural sensibility. The secularists were cut off from these. Worse, they did not even deign to
make connect with popular culture. Secularism became an elite doctrine even as Hindutva (and its
equivalents among minorities) became a popular belief20. Eventually, democracy ensured that
popular beliefs triumphed. Indifference to religion and traditions ensured that secularism lost touch
with popular beliefs and lost this battle of ideas. During our freedom struggle, most of our national
leaders were deeply religious and at the same time uncompromisingly secular. Jawaharlal Nehru
was something of an exception21. Most other leaders were deeply immersed in one religion,
sometimes more than one religion. A number of nationalist leaders wrote commentaries on Gita.
Leaders like Maulana Azad were revered as scholars of Islam. Vinoba Bhave was an authority on

18
Arpan Banerjee, Reviving The Essential Practices Debate, 1 HNLU SBJ 55 (2016).
19
Id.
20
Sumeet Malik and Vikramjit Bannerjee, Changing Perceptions of Secularism, 7 SCC J-3 (1998).
21
Supra 16 at 14.
several religions. Yet, they were wedded to the idea of India where no one religion dominated over
others22.

Compare that to our public life today. How many deeply-religious-yet-firmly-secular politicians
do we find today? Forget politicians, how many educated Indians do we find today who are
conversant with religious texts and practices? This cultural vacuum creates a condition in which
anyone can claim to be a guardian of religious heritage. This condition is ripe for political
exploitation. This is particularly true of Hinduism. While secular politics has been generally
indifferent to all religions, it has been especially dismissive of Hinduism. On the one hand, modern,
colonized minds felt deeply awkward about a non-Abrahamic religion like Hinduism.

On the other hand, a strand of modern egalitarian thought, especially the one opposed to caste-
based injustice, was particularly angry at Hindu social order. Both these combined to create an
impression in the modern, secular circles that Hinduism was the most regressive religion on earth.
It was kosher in our intellectual circles to mount crude and ill-informed attacks on Hindu religion.
This provided an opportunity for orchestrating a political backlash23. If all this was not enough,
the deracinated elite failed to communicate in Indian languages and thus sealed this disconnect
with the people. Here again, the contrast with the freedom struggle is instructive. Almost all our
great nationalist leaders read English, but wrote and spoke mainly in their own languages 24. The
post-Independence secular elite is monolingual, limited to English. This cultural chasm between
the rulers and the ruled allows a caricature of the “Khan Market Gang”.

These are harsh conclusions, perhaps very hurtful to those who are struggling to save the idea of a
secular India in these difficult times needs a new kind of cultural politics, which is willing to
engage in a sustained conversation with ordinary people in their language, their moral idiom, and
their cultural sensibilities. There are no short cuts.

22
Iqbal Ali Khan and Swati Dubey, Challenges to Secular Ethos in India, 23 ALJ 1 (2015-16).
23
V. Vijay Kumar, Constitution and Secularism- A Rejoinder, 6 Stud Adv. 93 (1994).
24
Id.
CONCLUSION.

The Researchers would like to conclude that this verdict has been a peremptory verdict not based
on the secular nature of this country which is against the basic structure of the Constitution of
India. Constitution of India is the creation of a constituent act and is an extraordinary legislation
derived direct from the people and acting in their sovereign capacity for setting up the structure of
the Government25. The concept of secularism is not static; it is elastic in connotation. In this area,
flexibility is most desirable as there cannot be any fixed views on this concept for all time to come

The exact definition of Religion cannot be drafted because it is the matter of one’s belief and it is
not only the duty of the State to protect this “belief” but it is also the duty of the citizens to protect
this belief and this can be done through value based education.

Value-based education will help the nation to fight against fanaticism; ill-will, violence, dishonesty
and corruption. These values can be inculcated if the basic tenets of all religion are learnt.

25
V. Dhanapalan, Basic Structure of the Indian Constitution- An Analysis, 8 SCC J-1 (2014).