Title: If it is really
so 'basic', why fear to define secularism
Author: Arvind Lavakare
Publication: Rediff
on Net
Date: March 2000
Having had to lump the
government's firmness in going ahead with a Constitutional review, most
sections of our press have been gloating in the belief that 'the basic
structure' of our Constitution is beyond the pale of any amendment as would
aid and abet the BJP's notorious 'hidden agenda.'
While the BJP itself
has never given any inkling whatsoever that it wants the review for its
own cause, the 'secular' press of ours has imagined it so out of its neurotic
allergy for the Sangh Parivar. And its latest rush to the safety of 'the
basic structure' cocoon represents yet another instance of the palpable
ignorance and anti-BJP attitude that have characterised our leading journalists,
who go on merrily without any sense of the accountability which the fourth
estate as a whole demands from everybody else.
Let us examine this 'basic
structure' belief at some length.
Its origin lies in the
Kesavananda Bharati vs Kerala case decided by a full
Constitutional bench
of judges on April 24, 1973. By a wafer-thin majority of 7-6, the Supreme
Court held that the power to amend our Constitution under Article 368 cannot
be exercised in such a manner as to destroy or emasculate the fundamental
features of the Constitution.
Some of the features
regarded by the court as fundamental and thus non-amendable were i Supremacy
of the Constitution ii Republican and democratic form of government iii
Secular character of the Constitution iv Separation of powers between legislature,
executive and judiciary, and v Federal character of the Constitution.
Expectedly, the Kesavananda
judgment has had a roller-coaster ride. Several jurists have not concurred
with it. For instance, Fali Nariman, that legal giant, has said, 'in asserting
the basic structure theory the Supreme Court has asserted political power
in the guise of judicial interpretation. By propounding it, the guardians
of the Constitution have in one bond become the guardians over the Constitution.
Constitution adjudicators have assumed the role of Constitutional governors.'
This alarming accusation
was but a colourful expression of the opinion of the first Chief Justice
of India, Justice Kania, who believed the courts should restrain their
authority to declare void any legislative enactment. And Sonia Gandhi's
Congressmen, who were shouting hoarse over the Constitutional review exercise,
would do well to remember that Indira Gandhi's law minister, himself a
lawyer, had vociferously argued in Parliament in 1976 that there was no
basic feature of the Constitution which Parliament could not amend.
To sum up, there may
be case enough for challenging the theory of the basic structure before
the Supreme Court and getting it reversed. That is, in fact, the view of
Subhash C Kashyap, an acknowledged expert, who, remember, is one of the
members of the newly formed Constitutional review committee. Remember too
that the Supreme Court does not regard itself bound by its own previous
decisions and feels free to overrule them if thought necessary. Isn't it
only recently that the Supreme Court gave two contradictory pronouncements
in quick succession on the abuse of power by Congressman Satish Sharma
when he was petroleum minister?
Even more germane to
debate is the definition of each of the features regarded as basic or fundamental
to our Constitution. Thus, there's the feature called "democracy". No court,
till now has defined it to mean only "parliamentary democracy". After all,
the USA is a democracy too, but with a presidential form.
Hence, it is just naïve
for our edit writers to believe that the newly formed review committee
is constrained to limit itself to reforms under the parliamentary system.
That the review is almost certain to ignore endorsement of the presidential
form of government is one thing but its consideration would be fully in
conformity with its terms of reference. Congressman Narayanan may kindly
note.
What about 'secularism'?
Considered as another 'basic feature' of our Constitution, the word has
not been defined in the Constitution or in any statute. Justice H R Khanna,
who was on the side of that wafer-thin majority in the Kesavananda judgment
of 1973, did give the contours of that word in his individual pronouncement
in the case. He wrote that the 'secular character of the State' meant 'the
State shall not discriminate against any citizen on the ground of religion
only.' This was a good enough connotation of the concept though the word
'religion' itself is, significantly, also not defined in our Constitution.
It was in 1977, during
the Emergency of the period of the Congress raj that a new definition of
'secularism' was talked about. It was supposed to mean 'equal respect to
all religions' -- Sarva Dharma Samabhava. That is why the Janata Party
government under Morarji Desai included that definition in its omnibus
Constitutional Amendment Bill of 1978. In that Bill, the term 'Secular
republic' was defined to mean a 'republic in which there is equal respect
for all religions.' This too was a good enough connotation of the 'secular'
concept.
Do you know what happened
to that definition in that Bill? The Lok Sabha passed it by the required
majority but the Rajya Sabha did not. Why not? Because the Congress had
the numbers there and voted it down. It was proved beyond doubt then that
the Congress did not want a pinpointed definition of 'secular' and 'secularism.'
It wanted the words to be left in the flexible, grey area; it wanted the
words to be elastic in exploitation with its vote banks in the masjids
and mohallas, in chapels and churches.
The fraudulent 'secular'
press has acquiesced, nay colluded, in this conspiracy all along. It has
never on its own asked the government of the day to define 'secularism'
and readers' letters to the editor asking for such a definition to be made
public have been simply dumped in the bin.
It is this invidious
imprecision of the Congress and the conniving press which has enabled the
blatant appeasement of the minorities in a wide spectrum. It is that mischievous
purpose over the years which has now resulted in so upsetting the psyche
of the majority that it has started resorting to rabid acts contrary to
its culture of ages and aeons. Not for anything has the BJP been pleading
all along for 'justice to all, appeasement of none.'
In post-independent India
this appeasement was first seen at its most blatant in 1954 when Jawaharlal
Nehru introduced the Hindu Code Bill in Parliament instead of a uniform
civil code, and thereby chose to hurt the Hindus, including the President
of India, rather than the Muslims. In a judgment, Justice Kuldip Singh
of the Supreme Court records that Nehru defended his decision by saying
"I do not think that at the present moment the time is ripe in India for
me to try to push it through."
Nehru's cold feet vis
a vis the minorities became progressively colder in his daughter's time
and ultimately froze when Rajiv Gandhi enacted a whole new law expressly
to subvert the Shah Bano verdict of the Supreme Court. In recent years,
Maulana Mulayam Singh & Co have taken the malicious game even further.
Perhaps the most consistent
discrimination against the majority community has been in the area of administration
of educational institutions resulting from various judicial interpretations
of Article 30(1) which gives the minorities the right to establish and
administer educational institutions of their choice. Some of the most perverse
decisions have been handed out on this privilege. Examples are:
# When the board of management
of a Jesuit school appointed a junior teacher, a Jesuit, as the school's
headmaster in preference to the senior-most teacher, who was not a Jesuit,
the high court ruled that the director of education's rule requiring the
senior-most teacher to be promoted to the headmaster's post cannot be binding
on minority schools.
# The Supreme Court ruled
that the provision of a Gujarat University Act requiring the formation
of a selection committee with a representative of the vice-chancellor for
selecting a principal was not applicable to minority colleges.
# A provision requiring
the governing body of a private affiliated college to take disciplinary
action against teachers on the recommendation of the university services
commission and subject to the approval of the university has been held
to be violative of Article 30(1).
# The Punjab and Haryana
high court has ruled that students have no right to be admitted to aided
and recognised minority educational institutions on merit alone.
The above instances and
several others of the kind have happened because there is Constitutional
definition of the word 'secular' or 'secularism.' If one had in fact existed
on the lines of Sarva Dharma Samabhava, all such decisions could have been
challenged as being non-secular and therefore violative of the Constitution.
Instead, all judicial
decisions of the above kind have constrained Dr M P Jain, a known constitutional
writer, to comment in his book that 'The position as it has developed is
that, in effect, institutions of general education established and administered
by religious or linguistic minorities enjoy a much more privileged position
than those run by the majority in the matter of regulation by the government
or the university. While strict supervision can be imposed on majority
institutions, the same cannot be as regards minority institutions. It stands
to reason whether such result was envisaged by the framers of the Constitution.'
(Indian Constitutional Law, 1994, Wadhwa & Co. Publishers, Pages 659)
Ah, so what indeed was
envisaged by founding fathers? In 1954, Dr Ambedkar, speaking in Parliament,
was convinced that our Constitution was not secular insofar as it permitted
different treatment to different communities. Yet, 19 years later, the
Supreme Court declare d 'secular character' as one of its basic features
without that word even appearing in that document. Indira Gandhi baptized
the Constitution as 'secular' only in 1976 with her draconian 42nd Amendment.
However, nobody but the BJP has had the courage to define that word to
mean 'justice for all, appeasement of none.'
Now, however, it has
come to light that someone else too did that word simply but succinctly.
He did that in an interview to PTI on October 31,1994. He said, 'Secularism
cannot mean anti-majority.' The name of that man? Former Chief Justice
of India and ex-chairman of the National Human Rights Commission, M N Venkatachaliah,
the chairman of the latest Constitution review committee.
Much obliged, your honour,
much obliged.
