The nine judge bench decision of the Supreme Court of India in S.R. Bommai v. Union of India raised some interesting questions relating to secularism and its interplay with article 356 of the constitution. The two important supplementary questions before the apex court in this regard were:
1. Whether Secularism is the basic structure of the constitution?
2. Whether under our Constitution no party or organization can simultaneously be a political and a religious party?
Here are some of the excerpts from the majority decision (Justices Sawant, Kuldip Singh, Jeevan Reddy, Agrawal and Pandian):
One thing which prominently emerges from the above discussion on secularism under our Constitution is that whatever the attitude of the State towards the religions, religious sects and denominations, religion cannot be mixed with any secular activity of the State. In fact, the encroachment of religion into secular activities is strictly prohibited. This is evident from the provisions of the Constitution to which we have made reference above. The State's tolerance of religion or religions does not make it either a religious or a theocratic State. When the State allows citizens to practise and profess their religions, it does not either explicitly or implicitly
allow them to introduce religion into non-religious and secular activities of the State. The freedom and tolerance of religion is only to the extent of permitting pursuit of spiritual life which is different from the secular life. (para. 148)
In view of the content of secularism adopted by our Constitution as discussed above, the question that poses itself for our consideration in these matters is whether the three Governments when they had to their credit the acts discussed above, could be trusted to carry on the governance of the State in accordance with the provisions of the Constitution and the President's satisfaction based on the said acts could be challenged in law. To recapitulate, the acts were (i) the BJP manifesto on the basis of which the elections were contested and pursuant to which elections the 3 Ministries came to power stated as follows : "BJP firmly believes that construction of Sri Ram Mandir at Janmasthan is a symbol of the vindication of our cultural heritage and national self-respect. For BJP it is purely a national issue and it (sic) not allow any vested interest to give it a
sectarian and communal colour. Hence party is committed to build Sri Ram Mandir at Janmasthan by relocating superimposed Babri structure with due respect." (para. 150)
Given the above position, it is clear that if any party or Organisation seeks to fight the elections on the basis of a plank which has the proximate effect of eroding the secular philosophy of the Constitution it would certainly be guilty of following an unconstitutional course of action. Political parties are formed and exist to capture or share State power. That is their aim. They may be associations of individuals but one cannot ignore the functional relevance. An association of individuals may be devoted to propagation of religion; it would be a religious body. Another may be devoted to promotion of culture; it would be a cultural Organisation. They are not aimed at acquiring State power, whereas a political party does. That is one of its main objectives. This is what we mean by saying "functional relevance". One cannot conceive of a democratic form of Government without the political parties. They are part of the political system and constitutional scheme. Nay, they are integral to the governance of a democratic society. If the Constitution requires the State to be secular in thought and action, the same requirement attaches to political parties as well. The Constitution does not recognise, it does not permit, mixing religion and State power. Both must be kept apart. That is the constitutional injunction. None can say otherwise so long as this Constitution governs this country. Introducing religion into politics is to introduce an impermissible element into body politic and an imbalance in our constitutional system. If a political party espousing a particular religion comes to power, that religion tends to become, in practice, the official religion. (para. 310)
All other religions come to acquire a secondary status, at any rate, a less favourable position. This would be plainly antithetical to Articles 14 to 16, 25 and the entire constitutional scheme adumbrated hereinabove. Under our Constitution, no party or Organisation can simultaneously be a political and a religious party. It has to be either (para. 310)
Though Soli Sorabjee’s is in agreement that these findings of the apex court form the ratio of the case, he criticizes the same on a number of grounds in his article available here. Some of the excerpts from the article are as follows:
According to Justices Jeevan Reddy and Agrawal "if the President was satisfied that the faith of these BJP governments in the concept of secularism was suspect in view of the acts and conduct of the party controlling these governments ... we are not able to say that there was no relevant material upon which he could be so satisfied". The situation following the destruction of the Babri mosque was "full of many imponderables, nuances, implications and intricacies. There were too many ifs and buts which are not susceptible of judicial scrutiny".
Thus both on the ground of sufficiency of evidence and its relevance the majority upheld on the facts the dismissal of the three State governments.
It is not the conclusion reached by their Lordships which raises serious questions but their observations having far reaching effect made in the course of the judgment. According to Justices Jeevan Reddy and Agrawal "if a political party espousing a particular religion comes to power, that religion tends to become, in practice, the official religion. All other religions come to acquire a secondary status, at any rate, a less favourable position". They further held that "under our Constitution, no party or organisation can simultaneously be a political and a religious party. It has to be either."
There is no dissent or qualification or reservation by any of the other judges on this part. Accordingly the legal position enumerated by Justices Jeevan Reddy and Agrawal can be regarded as the law laid down by the apex Court. It is impossible to describe them as obiter dicta.
It is submitted that these propositions are over-broadly stated. It assumes that every religious party is necessarily and intrinsically anti-secular for which there is no warrant. Again there is no basis for the supposition that "if a political party espousing a particular religion comes to power, that religion tends to become, in practice, the official religion". A religious party may have a humanistic creed and its activities may not be at all calculated to subvert or sabotage secularism. It all depends upon the constitution, organisation and, above all, the actual functioning of a party. It must be remembered that the right of association is a guaranteed fundamental right under Article 19(1)(c) which can be restricted reasonably only on the grounds mentioned in Article 19(4).
I will post some related literature on these issues subsequently. I invite readers to comment on these issues too.