How India’s Laws Made It A ‘Hindu-Secular’ State

The Constitution doesn’t contain an establishment clause. Instead, Hinduism often seems to be endorsed by the state.

In 2011, the Gujarat High Court decided a case which reveals interesting insights into the nature of the secular state in India. In May 2010, the Gujarat High Court held a Hindu ritual, a bhoomi pujan, at a ceremony for laying the foundation stone of its new building.

Rajesh Solanki filed a public interest case and argued that the use of Hindu pandits to chant Sanskrit slokas at the event suggested that the State had identified itself with Hinduism, which conflicted with the idea of secularism embedded in our Constitution.

While dismissing the Rajesh Himmatlal Solanki versus Union of India case, the court held that “[s]ecularism… is not [the] antithesis of religious devoutness”, and that since the prayer ceremony was “noble” and meant to benefit everyone who used the court’s building regardless of their religion, it was secular.

The court’s judgment is one example of how secularism in India has oddly been considered to be consistent with state endorsement of Hinduism.

Solanki challenged the foundation stone ceremony primarily on the grounds that the high court, as part of the state, should not identify itself with any religion, in this case Hinduism.

His lawyer argued that by doing so, the court had created an “adverse feeling” among those who were not Hindus and had “shake[n] [their] confidence” in the secular character of the state.

Speaking for the court, Justice Jayant Patel emphatically rejected these arguments. He began with the innocuous premise that a celebration for laying the foundation stone of a new building was a secular activity.

However, he went further and held that offering a Hindu prayer to the earth at that ceremony would be secular too since it was moved by a “noble desire to achieve [the] successful construction of [the] new building”.

As the “ultimate aim” in offering the prayer was “holy” and since the new building would be used by Hindus and non-Hindus alike, it was held that the ceremony did not violate constitutional secularism.

Going further still, the court called Solanki’s argument, that other religious groups would feel hurt by the foundation ceremony, a “pervert view” of the matter. Oddly, the court also found that offering prayers at a foundation stone ceremony was not an “essential and integral part of a particular religion”.

The court then imposed costs on the petitioner because it found that the petition had been filed at the instance of an organisation which was not impleaded in the case.

Benign Intent, Implicit Endorsement

The court’s reasoning is problematic. Justice Patel found that a Hindu prayer at the foundation ceremony was secular because it was meant for the greater good – the prayer was offered to ensure the successful construction of a public building that would be used by Hindus and non-Hindus.

However, what about those who did not believe in the power of those prayers?

To them, the prayers might have seemed less like a benevolent step taken in their interest and more like state endorsement of Hinduism.

Though the intent behind the prayers might have been harmless, the high court lost sight of the fact that in offering only Hindu prayers, it had publicly identified itself with Hinduism to the exclusion of other religions.

After all, equally well-meaning prayers could have been offered by Christian, Muslim, Sikh, Jain or Buddhist priests – all of which are major religions in India. Even so, this would still have offended atheists, who are also entitled to their belief system under our Constitution.

No State Religion, But...

In the US, the first amendment to the Constitution contains the famous “establishment clause”, which says that there can be no official state religion.

There, in the case of Lemon versus Kurtzman (1971), the Supreme Court laid down a three-pronged test – popularly referred to as the ‘Lemon Test’ – and held that an activity is secular when:

• It pursues a secular purpose;
• Its effect does not advance or inhibit religion; and
• It does not foster an excessive government entanglement with religion.

However, despite the establishment clause, in Marsh versus Chambers (1983), the US Supreme Court upheld the Nebraska state legislature’s practice of starting each day with a prayer conducted by a Presbyterian minister paid by the government.

Chief Justice Burger held that such practices were “deeply embedded in the history and tradition” of the US, that even in American courtrooms, proceedings commence with the announcement, “God save the United States and this Honorable Court.”

However, in another case, McCreary County versus ACLU (2005), the US Supreme Court held that a public display of the ten commandments in a courthouse violated the establishment clause.

India’s Constitution does not contain an establishment clause. Instead, Hinduism often seems to be endorsed by the state.

Laws That Favour Hindus

Article 48 of the Constitution calls upon the state to prevent the slaughter of cows. Though this provision was ostensibly enacted because of the usefulness of the cow to India’s agrarian economy, the Supreme Court upheld a ban on cow slaughter enacted in some states by taking into account the fact that “Hindus in general hold the cow in great reverence and the idea of the slaughter of cows for food is repugnant to their notions” [Mohd. Hanif Quareshi versus State of Bihar (1958)].

Despite the fact that our Constitution confers a right to “propagate” religion, statutes enacted in several states, which make it difficult for preachers to proselytise and convert Hindus to religions like Christianity, have been upheld on the grounds that propagating religion does not include conversion.

Under an order enacted by the President in 1950, Scheduled Caste Hindus who convert to Christianity are not entitled to contest elections from reserved constituencies.

Enacted in 1955-56, the Hindu Code contains provisions which disincentivise Hindu conversion to other religions.

• For instance, a Hindu’s conversion to another religion furnishes a ground for divorce.
• Children born after a Hindu converts to another religion cannot inherit the property of their Hindu family members unless they convert to Hinduism.

Of course, secularism itself is a term which has no fixed meaning. It could be argued that despite all of the above, India is still secular, especially when it is compared to countries like Pakistan where blasphemy attracts the death penalty and public officials are required to satisfy religious tests for assuming office. Under Pakistan’s Constitution, the President has to solemnly swear that he is a Muslim.

However, in upholding a Hindu religious ceremony performed at an official event, the Gujarat High Court’s judgment contributes to the tacit state endorsement of Hinduism in India’s secular state.

(This story was originally published on BloombergQuint)

The author is an advocate at the Bombay High Court.

The views expressed here are those of the author’s and do not necessarily represent the views of The Quint or its editorial team.