Vice President Hamid Ansari’s secularism remarks: Say it again

Despite declarations of constitutional rights, minorities in society do not (because they cannot) find adequate protection in the normal political processes; they need the protection of courts.

In India, when dealing with minority rights, in the 1950s, up to at least the 1970s, our judges were conscious of this. They had conceptualised the highest court’s role (as has the US Supreme Court) to be that of a political party in opposition.

In 1958, the Supreme Court of India had thwarted an attempt by the first communist-controlled government (which had come to power in Kerala in 1957) to take over the management of (private) Christian schools in the state. In an advisory opinion given on a presidential reference under Article 143 of the Constitution, a bench of seven justices of the Supreme Court — Chief Justice S.R. Das presiding — held (six to one) that large parts of the Kerala Education Bill were unconstitutional.

Later, some politicians and state governments complained that after the verdict they found it increasingly difficult to regulate educational standards. They cited the opinion expressed by a former CJI, P.B. Gajendragadkar, that the prior decision of the court on Articles 29 and 30 required reconsideration.

So, in 1974, Chief Justice A.N. Ray directed that a larger bench be constituted to reconsider questions that had been raised in the presidential reference on the Kerala Education Bill. But the only consequence of this reconsideration was that what had been asserted by Chief Justice S.R. Das in his now-classic opinion in the Kerala Education Bill case, got emphatically reaffirmed in a decision of an even larger bench: Of nine justices (in Ahmedabad St Xavier’s College Society vs State of Gujarat). Secular education given in minority-established colleges was now looked upon as protected by the provisions of Article 30 (out of reach of statutory bodies) in the same way as were minority-run schools in the earlier Kerala Education Bill case.

Justice K.K. Mathew (a devout Christian), and one of the ablest judges to have sat on the court, read into Article 30 the right of parents to determine to which educational institution their children should be sent for study: It excluded the power of the state (he said) “to standardise and socialise its children by forcing them to attend public schools only”.

Another member on the bench was Justice H.R. Khanna — who is today remembered for standing up to the insolent might of the executive in his brave dissent in the now-infamous case of ADM Jabalpur (1976), where he alone amongst four other seniormost judges upheld the personal liberty of India’s citizens despite the declaration of the internal Emergency of June 1975. Well, it was Justice Khanna (a devout Hindu) who, back in 1974, gave the true reason why minority interests are so zealously protected by courts. He said: “The safeguarding of the interest of the minorities amongst sections of the population is as important as the protection of the interest amongst individuals of persons who are below the age of majority or are otherwise suffering from some kind of infirmity. The Constitution and the laws made by civilised nations, therefore, generally contain provisions for the protection of those interests. It can, indeed, be said to be an index of the level of civilisation and catholicity of a nation as to how far their minorities feel secure and are not subject to any discrimination or suppression.”

So in the end, what Vice President Ansari has said (in April 2016) has already been said before by our judges. That is correct. But note that it was said by our judges of yesteryear. After one of the major political parties in India, in the early 1990s, characterised the sentiments expressed by judges in the 1950s and 1970s as an “appeasement of the minorities”, minority rights have never been as fervently protected by the Supreme Court as they had been before. This is why what had been said by our judges in the 1950s and 1970s needed to be said (if not by the judges) by the executive vice head of state.

There is another, more pragmatic reason for what was so eloquently said in the convocation address in Jammu: The same reason that was given by then Vice President Bhairon Singh Shekhawat way back in 2005, when, in the Rajya Sabha, he had said, quoting Andre Gide: “Everything that needs to be said has been said already, but as no one listens, we must always begin again.”

Yes, the importance of saying things that have been said before is that hopefully, in critical times, it might be listened to and acted upon. And today, we do live in critical times.