Justice Khare, seize the moment

In the 13 judge decision of the Constitutional Bench in Kesavananda Bharati’s case in 1973, the Supreme Court found the secular character of the Constitution a part of its basic structure.

Then in 1976, in Bukhari’s case, the apex court laid down for the first time the proposition that a secular state is neutral or impartial.

In 1980 in Baburao’s case when the editor of a magazine castigated Muslims as ‘‘a basically violent race’’, the Supreme Court held him liable to be prosecuted for creating enmity between religious groups.

In 1986 in Emmanuel’s case when children who were Jehova witnesses were expelled from a school in Kerala for refusing to sing the national anthem, the Supreme Court held that their expulsion violated Article 25 — freedom of conscience and freedom to profess, practice and propagate religion.

Then a 9 judge constitutional bench decision in S.R. Bommai’s case in 1994 held ‘‘the State stands aloof from religion. Matters which are purely religious are left personal to the individual and the secular part is taken charge of by the State. There can be no democracy if anti-secular forces are allowed to work dividing followers of different religious faiths…’’

This was also the year of the Ayodhya decision. The minority judgement of justices Ahmadi and Bharucha observes: ‘‘… asked to obtain instructions and tell the court that the mosque would be rebuilt if the question posed by the Reference was answered in the negative the learned Solicitor General made the statement … leaves us in no doubt that even in the circumstances that this Court opines that no Hindu temple or Hindu religious structures existed on the disputed site before the disputed structure was built thereon, there is no certainty that a mosque will be rebuilt’’.

However, the same year, when faced with clear contempt by Kalyan Singh, who allowed the demolition of the the Babri masjid despite his undertaking to the court, the Supreme Court imposed a farcical punishment. ‘‘It is unhappy that a leader of a political party and Chief Minister has to be convicted of an offence of contempt of court. But it has to be done to uphold the majesty of law. We convict him of the offence of contempt of court. Since the contempt raises larger issues which affect the very foundation of the secular fabric of our nation, we also sentence him to a token imprisonment of one day. We also sentence him to pay a fine of Rs 2000’’.

1996 was another tumultuous year. The Bombay High Court found ‘‘Hindutva’’ the main plank of the communal parties and held campaigning on that basis a corrupt practice. The apex court regrettably reversed the decision in Manohar Joshi’s case saying ‘‘however despicable be such a statement (that the first Hindu State will be established in Maharashtra) it cannot be said to amount to an appeal for votes on the ground of religion’’. Chief Justice Verma wrote ‘‘Hindutva does not invariably mean Hindu religion’’.

A progressive trend was noticed in Bal Thackeray’s case. ‘‘We are fighting this election for the protection of Hinduism. Therefore, we do not care for the votes of the Muslims. This country belongs to Hindus and will remain so.’’ Supreme Court held that the statement amounted to corrupt practice.

When the observations of the Supreme Court in Manohar Joshi’s case were brought to the attention of the 3 judge bench in Abhiram Singh’s case, the court directed that the earlier decision be reviewed by a larger bench of 5 judges. This important constitutional case is now languishing since 1996. Particularly in view of the forthcoming elections it is important for the court to decide whether it is permissible for recognised political parties to campaign on the basis of a communal agenda.

Chief Justice Khare must take up Abhiram Singh’s case and clear the confusion surrounding the definition of secularism. The time to act is now.