Secularism is gasping for breath and politics is asphyxiating it – through peddling of soft Hindutva by Congress and hard Hindutva by BJP. Five days after the Supreme Court heard the Babri Masjid matter , a ‘Ram Rajya Rath Yatra’ backed by the Rashtriya Swayamsevak Sangh (RSS) from Ayodhya to Rameshwaram was flagged off to mobilise support for building a grand Ram temple at Ayodhya.

Subsidies to Hindu places of worship continue even as the government scrapped the Haj Policy, justifying it by stating that the decision is part of agenda of ‘empowering minorities without trying to appease them’ and citing Article 27 which states that diversion of tax proceeds towards a particular religion violates secularism. This principle surprisingly did not apply when the Uttar Pradesh government reportedly spent Rs 165 crore on welcoming Bhagwan Ram and Sita in Agra for Diwali.

The strict separation between State and religion was on full display when the Gujarat government, in the State of Gujarat v IRCG at the Supreme Court successfully argued against the rebuilding of shrines (mostly Islamic) destroyed during the 2002 riots, due to state negligence or complicity. But one month after the judgment, the Prime Minister lamented that his appeal to rebuild the Kedarnath Shrine after the 2013 flash floods was stopped by the UPA government. Yogi Adityanath has also vowed to build a 100-metre tall Ram idol on the banks of the Saryu river. So compensating for minority religious shrines crosses the “lakshman rekha” of secularism but spending tax proceeds on statues or grand Diwali celebrations does not.

Implicit attacks on secularism have become more direct and visible now. Yogi Adityanath called secularism the ‘biggest lie played on Indian citizens’ and Union minister Ananth Hegde’s New Year resolution has been to expunge secularism from the Constitution. Even the verbal commitment to secularism has been dropped in political discourse.

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Despite platitudes, secularism is a ‘tolerated’ and not a ‘celebrated’ principle. It is seen as responding to the demands of multicultural/religious polity. It is seen as a stratagem to ‘manage’ diversity, an idea ‘tolerated’ for its instrumental value. Secularism is not seen as intrinsic as equality and liberty, but has been reduced to a prosthetic limb. Hence, a frontal attack on secularism causes discomfort, but not outrage.

Secularism is intrinsic to Indian constitutional identity. Liberal constitutionalism is premised on equality between individuals and different groups, and is the linchpin of the constitution. Secularism is a facet of equality, envisaging equality between groups.

Despite the assault on secularism, there is deafening silence from the Supreme Court, the only bulwark against brute majoritarianism. Judicial articulation on ‘secularism’ in India is too focussed on the means – the strict separation principle, principled intervention by the State, minimal play of religion in the public sphere – forgetting the goal envisaged by Secularism – that of citizenship premised on equality amidst cultural differences. Equal citizenship endows equal rights and rests on the tripod of equality, liberty and secularism.

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The ‘rescue’ act calls for a strong counter-majoritarian push by the court in defense of secularism. The present ‘bystander approach’ with mechanical applications of the idea of secularism is not a case of bad-faith but screams of judicial naiveté – making judicial decisions without realising that the grammar of political secularism has changed.

In the Gujarat Shrine Compensation Case, the Supreme Court held that Gujarat State government need not compensate for shrines destroyed during the communal riots of 2002, as diverting tax proceeds towards rebuilding shrines is against Secularism, achoring its reasoning in the concept of formal secularism – separation of state from religion.

A seven-judge bench in Abhiram Singh v Commachen held that religious appeals during elections is a corrupt practice under the Representation of the People Act, 1951, leading to disqualification. The court, through a narrow majority, held that an electoral appeal that addresses the religion of the voter as well as the candidate amounts to a corrupt practice.

Also read:

Why India needs to desperately rethink how it looks at secularism

When Yogi Adityanath said ‘secularism’ is the ‘biggest lie’ being told to India

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Ironically, despite the articulation of these principles in Abhiram Singh, there has not been a single instance since the judgment where politicians have been booked for invoking religion or, say, characterising minorities as pro-Pakistanis. The current phase of Gujarat election saw new lows as innuendos on Muslims and Pakistan were made by Prime Minister Narendra Modi; the anti-Muslim jibes by BJP MPs are too recurrent and discomforting to go unpunished. These are a direct assault on religious pluralism and calls for reading through these innuendos and applying the high principles of the Abhiram Singh judgment to these politicians.

Although largely evasive, the court did assert itself during the hearings in Abhiram Singh case in 2016 by refusing to revisit the observations of Justice J.S. Verma in the case of Ramesh Yashwant Prabhoo v Kashinath Kunte, where the apex court made Hindutva compatible with Indian secularism by describing it as a “way of life” and not a religion. Notably, this refusal to relook has in one stroke, legitimised invocation of Hindutva appeal using innuendos without court sanction.

As argued by Professor Neera Chandhoke, this evasiveness, non-committal, bystander approach must be shed, and an active push for Substantive Secularism is needed. Politics seems to have abnegated Secularism, and vote bank politics has made the minority vote irrelevant. The call to repeal secularism is not just rhetoric and might become a reality as the next general election looms.

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Just as we conceptualise equality by accounting for ‘historical’ or ‘systemic’ discrimination, Substantive Secularism would entail accounting for ‘systemic discrimination’ against minorities to protect their rights more effectively.

In the present context, a call to substantive secularism would ensue calling out the innuendos, the silence, and the double speak of politics, and applying principles of secularism to concrete situations. It includes applying the compensatory theory of treating minority groups differently if their identity can be an axis of discrimination.

A start can be made by asking the Government to clarify its stand on rebuilding the Kedarnath shrine when it fought tooth and nail against rebuilding shrines destroyed in the 2002 Gujarat riots, to provide its rationale for phasing out the Haj subsidy while continuing subsidies for other religious groups, to explain its stand on expediting citizenship claims of all immigrant groups except Muslims in their Citizenship Amendment Bill, and by making politicians accountable for the innuendos against Muslims, using the principle of Abhiram Singh case.

Unless the court takes an aggressive stand, secularism might be gasping its last breath. The fundamental value of equality is at stake. Secularism is not a cross to be borne, but a jewel that needs the Supreme Court to protect it.

Satya Prasoon and Ashwini Tallur are lawyers working with the Centre for Law and Policy Research, (CLPR ) Bengaluru. They are Associate Editors for the Supreme Court Observer Project, a non-partisan journalistic effort to make the Supreme Court work intelligible to anyone interested in Indian public affairs.