The Idea of Secularism and the Supreme Court of India

Pluralism Working Paper no. 5

Justice Aftab Alam

Over the last three decades, many ideas that form the basis of modern democratic societies, such as civil society, citizenship, human rights and freedoms, secularism and tolerance have come under severe scrutiny. These ideas are challenged from sites of practice as well as from academic perspectives. In the field of academics, both the critical currents of thought within the Euro-American world and the body of work that came to be identified as postcolonial studies provide reference points. Within the realm of practice, the taxonomy of ‘civil society’ drastically changed during the last couple of decades. Many new players such as new religious movements, new organisations from within religious communities and women’s movements around the theme of faith in various religions stand as useful examples in this regard.

A growing, complex and influential body of critical writings contends two basic things. Firstly it argues that these concepts in their ‘normative’ constructions, are often either epistemically inadequate or even incorrect, and therefore untenable for rigorous empirical scrutiny in cross-cultural settings. Examples here are Talal Asad’s work on Secularisation in Europe, or the work of William Connolly on Pluralism and democracy, and the postcolonial scholarship on democracy in the non-west. Secondly, it illustrates that numerous social and institutional practices, that emerge both from civil society interventions and the state, tend to stand as ‘deviations’ from the normative, though their intended purpose is to address similar concerns to the rationale for which such norms were created. The ‘inconsistency’ in the interpretations of some of these core concepts in juridical literature, as demonstrated by Justice Alam’s paper, is illustrative of the impossibility of the realisation of the norm in its pure form.

The Promoting Pluralism Knowledge Program (PPKP) initiates critical dialogue on the role of secularism and the secular state in shaping democratic social relations, which is at the heart of the above debate. In the wake of the global phenomenon of religious revivalism, long-standing assumptions about the role of the state in secularising the social fabric have arisen. Different secular dispensations such as the ‘doctrine of the wall of separation’ or ‘equal respect’, ‘equal distance’ or ‘measured distance’ from religions, have come under severe challenge. With no exception, all major religions of the world, Christianity, Islam, Buddhism, Hinduism and Judaism, including its sub-denominations and some new sectarian movements, currently witness growing inclinations towards a more centralised control of their religious orientations. This arguably could lead to fundamentalist tendencies.

A key concern in this regard is the role of the state in maintaining social cohesion, coexistence and peace in increasingly plural societies. Needless to mention that all modern societies are multicultural and are likely to become more complex given the growing movement of people across jurisdictions. Given these developments, what kind of new secular orientations are needed to create and manage social cohesion and peace? What happens if the unquestionable, and hence hegemonic, status that has been given to state-driven secular frameworks becomes too vulnerable and inadequate to address the democratic concerns of multicultural populations? What role can institutions, especially judicial institutions and civil society organisations, play in mediating the contemporary secular challenges to assure newer forms of social cohesion in modern societies?

These and related questions have become central to many countries across the world. In Europe for example we witness debates on freedom of expression and the experience of insult. We also see a vibrant dialogue on the public display of religious symbols in western societies, particularly with reference to Islamic head scarves. In the Middle East there is a focus on minority rights, gender and religious freedom issues. In Asia and Africa we observe a focus on minority rights combined with ethnicity, gender or caste issues, as well as debates within religious communities about ‘liberal’ versus ‘radical’ beliefs.

Given these shifting realities, how can judicial systems respond and intervene? In all the above mentioned societies, the role of the higher courts as mediators of the democratic concerns of various religious communities has become critically important. Since they often enjoy considerable popular legitimacy, these higher courts are challenged to achieve complex balancing acts that help to enhance social cohesion amidst diversity. In this context, the Knowledge Program team decided that a study of the Supreme Court in India could be highly relevant since its long-standing and rich experience can illuminate many of the contemporary concerns on secularism elsewhere. The current paper on “The Idea of Secularism and the Supreme Court of India” by Justice Aftab Alam, a sitting honourable judge of the Supreme Court of India, is critically important for this reason. India has an unbroken record of being a working democracy for over six decades, and a proven record of judicial autonomy with powers of judicial review. In addition, it became known for its ‘judicial activism’ since the beginning of the 1980s.

The Supreme Court of India had to address, among others, issues of secularism from the very beginning of the independent constitution. Justice Alam’s perceptive and insightful paper lucidly presents this long history of judicial engagement regarding questions of secularism as they emerged over time in India. Although the paper primarily draws from the judgements of the Supreme Court of India, it also provides a larger analytical grid when referring to decisions of the Apex Court on minority issues. Justice Alam's observations could be significantly important for other democratic societies and are interesting to compare to emerging experiences elsewhere in the world.

Apart from these macro comparisons, the experience of the courts and court decisions in India could have significance for civil society organisations and their interventions both within India and beyond. Dealing with the issues of legal pluralism, and addressing concerns of balancing minority rights with individual freedoms are most relevant in our current times.

Dr. Caroline Suransky,

Chief editor of the Pluralism Working Paper series for the Promoting Pluralism Knowledge Programme