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Articles Of Faith

Supreme Court’s places of worship ruling betrays a selective reading of constitutional provisions

Written by Tahir Mahmood | Updated: September 13, 2017 12:05 am
Supreme Court, 1955 Hindu Marriage Act, Supreme Court on divorce, marriage laws, indian express news There is nothing in the language of Article 27 suggesting that the prohibition applies only if the amount spent is “substantial”. Who will determine, and by what criteria, whether an amount is substantial or trivial? Will the decisive voice in the matter be of the government of the day? (Representative Image)

The Supreme Court judgment in State of Gujarat v Islamic Relief Committee was explained by Satish Jha in ‘Behind SC verdict on places of worship, Article on taxpayers’ money and religion’ (IE, September 3). The reference was to Article 27 of the Constitution of India, discussed in the judgment at length. There is, however, more to the judgment than meets the eye. I have no bone to pick with the operative part of the judgment but am concerned with the court’s rather far-fetched interpretation of Article 27 and the omission of any reference to another highly relevant provision of the Constitution.

Under appeal before the apex court was the Gujarat High Court’s directive to the state government to repair religious places damaged during the communal frenzy in 2002 and recovering its costs from those guilty of the devastation. The state government came in appeal to the SC and filed before it a scheme for awarding a small compensatory contribution to the trustees of each of the damaged properties. The scheme was based on the report of a local committee which it had set up to examine the matter. The respondents in the appeal called it a “travesty of justice” but the SC approved the scheme with an observation that a “substantial part of taxpayers’ money cannot be granted for repairing religious structures”.

Placed in Part III of the Constitution relating to fundamental rights under the “Right to Freedom of Religion”, Article 27 proclaims: “No person shall be compelled to pay any taxes the proceeds of which are specifically appropriated in payment of expenses for the promotion or maintenance of any particular religion or religious denomination.” Its location in the Constitution and words are clear enough to understand that it is a part of individuals’ religious liberty and restrains the state from collecting any special tax for promoting or maintaining a particular religion.

I fail to understand how getting a damaged religious place repaired and realising its cost from those who had damaged it can be seen as “promotion or maintenance” of religion. And if it does, then the quantum of expenditure involved — be it substantial or meagre — must be irrelevant.

There is nothing in the language of Article 27 suggesting that the prohibition applies only if the amount spent is “substantial”. Who will determine, and by what criteria, whether an amount is substantial or trivial? Will the decisive voice in the matter be of the government of the day?

Another provision in the Constitution seems to be lending its weight to the SC’s conditional reading of Article 27. This is Article 290A, which says: “A sum of forty-six lakhs and fifty thousand rupees shall be charged on, and paid out of, the Consolidated Fund of the State of Kerala every year to the Travancore Devaswom Fund; and a sum of thirteen lakhs and fifty thousand rupees shall be charged on, and paid out of, the Consolidated Fund of the State of Tamil Nadu every year to the Devaswom Fund established in that State for the maintenance of Hindu temples and shrines in the territories transferred to that State on the 1st day of November, 1956, from the State of Travancore-Cochin.”

This was a religious obligation independent India had inherited from the two erstwhile princely states referred to in the Article as a precondition for their joining the Indian Union. The provision clearly clashes with the general principle of Article 27 but perhaps the payable amount, aggregating to Rs 6 million, does not qualify as a “substantial part of tax-payers’ money.”

Be it Article 290A or Article 48 — which mandates that the state protect the cow and its progeny — these provisions of the Constitution determine the nature and parameters of secularism in our country which is not absolute but restricted. This constitutional philosophy of a qualified secularism has to be accepted by us.

Our courts must, however, apply it uniformly. Deciding some cases on the basis of our concept of qualified secularism but invoking the ideal of absolute secularism in some others amounts to a judicial selectivity that does not stand to reason.

The writer is a senior law professor and an ex-member of the Law Commission of India.

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More From Tahir Mahmood
  1. M
    mark
    Sep 14, 2017 at 1:03 am
    The author is off-marks and possibly of not-that-good faith (and, on top of that, he is a law professor). The main role of a judge is precisely to say how the law applies in a specific case. There is nothing like a sort of "uniformity", since, who can enforce such uniformity? Professors? I don't know much about Indian judicial system, but it largely follows anglo-saxon traditions and we are typically here in the realm of case law. Laws are rarely perfect, but they belong to the realm of Parliament, but the judge has to do with them. And, next the author should now explain why and how some Hazz pilgrims get (if I understand well) in some places in India some state funds in order to help them. It it does exist, this is certainly a highly secular tradition.
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    1. B
      Bharat
      Sep 13, 2017 at 11:22 pm
      I politely disagree. Muslims with their increasing arrogance should be firmly reminded that they belong to Pakistan.
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      1. J
        JAK
        Sep 14, 2017 at 12:10 am
        Which weed were you smoking for the past seventy years?
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        1. Shiva
          Sep 14, 2017 at 5:01 pm
          BJP IT Cell goon spotted. Come 2019 RSS, BJP Hindutva goons will be taught a tough lesson.
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        2. Abhay Sandwar
          Sep 13, 2017 at 10:12 pm
          Court does not appear wrong since it does not relate to maintenance of any religion rather a compensation by those who made wrongs to the property of faith . Not a regular feature or its continuance .
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          1. Seshubabu Kilambi
            Sep 13, 2017 at 9:12 pm
            The cons utinal right to religious faith shuld bebrespected by givig equal importance
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            1. P
              Pmp
              Sep 13, 2017 at 7:31 pm
              Idea of Secularism is stretched to ludicrous,especially by a supposed legal luminary.any layman will differentiate between the covenants of agreement between the parties devolving / accepting power (article 290A) the voluntary rules framed by the cons ution.article(27 48).It has become a fashion to question every impartial ,sane court ruling not palatable to the minority.
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