Today’s Supreme Court decision in Prafull Goradia v. Union of India is ludicrous to say the least. The question was straight forward and simple: whether a government grant towards Haj pilgrimage funded by tax payer money violates the proscription of Art.27 against state fostering religious activity. Article 27 of the Constitution of India states:

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.

The Court proclaimed that it would only amount to such a violation if a “substantial part of tax payer money” is used to promote religious activity:

In our opinion Article 27 would be violated if a substantial part of the entire income tax collected in India, or a substantial part of the entire central excise or the customs duties or sales tax, or a substantial part of any other tax collected in India, were to be utilized for promotion or maintenance of 4any particular religion or religious denomination. In other words, suppose 25 per cent of the entire income tax collected in India was utilized for promoting or maintaining any particular religion or religious denomination, that, in our opinion, would be violative of Article 27 of the Constitution.

Going by this brilliant explanation, money spent on religious activities will virtually never be unconstitutional as it can always be explained away as being only a small part of the overall budget, there being numerous other governmental expenditures. Article 27 is thus rendered completely otiose. The court was no doubt bound by Constitution Bench judgments in Commissioner, Hindu Religious Endowments v. Lakshmindra Thirtha Swamiar and Jagannath Ramanuj Das v. State of Orissa where it has been held that government expenditure on administering secular aspects of a religious institution in order to ensure that “endowments attached to the religious institutions are properly administered and their income is duly appropriated for the purposes for which they were founded or exist” fall outside the purview of article 27. The merit of these holdings is debatable but irrespective of that, it ought to be easily recognized that administering property to ensure compliance with the institutional mission is entirely different and separate from providing funds to carry out that mission which is what the air fares for Haj pilgrimage amounts to in this case.

The Court cited the government’s argument that similar assistance is delivered not just for Haj pilgrimage but for others such as to Mansarovar; expenditure is likewise incurred in providing facilities to pilgrims for Kumbh mela, etc. The Central government also stated that it is not averse to the idea of granting support to the pilgrimage conducted by any community. That is hardly an explanation – if these claims are true, they simply go to show the extent of the problem given that the policy clearly promotes a religious activity thereby discriminating against the irreligious, marginally religious and profoundly religious folks who for whatever reason choose not to go on pilgrimage. A policy contrary to the plain text of the Constitution cannot become valid simply because it is widely prevelant amongst both the Central and State governments.

The last explanation of the Court is that “we must not be too rigid in these matters”, “[we] must give some freeplay to the joints of the State machinery”, the Constitution is an organic statute meant to endure for the ages, etc. This is a load of nonsense to put it mildly. Under article 32, the Supreme Court is expected to enforce fundamental rights when aggrieved petitioners allege their infringement by the state. Giving gratuitous advice to not be “too rigid in these matters” and the need to allow freeplay to the joints of the State machinery is unwarranted and shameful. With respect to the cliche about the need for a Constitution to endure for the ages, in a country like ours with a large number of judges and a fairly rapid turnover rate in the judiciary, the Constitution is not going to endure unless a “rigid approach” is taken and clear red lines drawn indicating the extent of citizens’ rights and the obligations enjoined upon the state. Vague prescriptions and “flexible” interpretations with wide scope for subjectivity will create enough confusion and controversy that will quickly manage to take us down a slippery slope diluting the document’s substance even if it continues to be valued in name. Indeed, fundamental rights which are not explicitly protected from the “freeplay of the joints of the state machinery” will not amount to rights at all let alone remain fundamental. The Court’s preoccupation with political controversies and policy questions and its remarkably casual and disinterested approach to vital constitutional questions indicate that that is sadly the predicament we are fast coming to pass.

Finally the Court repeats some homilies about secularism, tolerance et cetera. These sentiments have been talked about ad nauseum in the media; so I will not repeat them here. It is enough to point out that in one stroke the Court has rendered the notion of a secular state a polite fiction. Not only has State support for religious activity been permitted, no limitation has been imposed in terms of equitability. Governments will be perfectly free to promote some religions/sects more than others; so long as some token contribution is made to more than one group, no charge of discrimination will be maintainable. Political appeasement of religious factions may well become the name of the game more than what it is today.

Editor’s Note: This piece is cross-posted on The South Asian Idea Weblog.

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