Anand Mathur's note on Justice Aftab Alam's presentations on International Forum's on Minority Matters and the Supreme Court of India. View - Paper 1 / Paper 2
1. Justice Aftab Alam presented a lecture at 'The Gandhi Foundation' in 2009 and contributed an almost similar paper in the series 'PLURALISM WORKING PAPER' in 2010.
2. In the above presentations he says that the Indian judiciary is stifling cultural diversity by increasingly overturning the Constitutional protection granted to minorities. He cites contradictions in judgments that he thinks affect minority rights. He comes out pro-conversion and pro-minority propaganda, sounds mostly anti-Hindu (uses "mono-culturalism" as the word to define SC's secular leanings) but sounds pro-reform in the Islamic community (extent unclear) although he does seem to believe that Islam's political role may not be negated.
3. He explains that "the Indian Constitution, unlike the First Amendment of the United States Constitution does not have any provision proscribing (prohibiting) the making of any law respecting an establishment of religion. It recognizes religion as a source of law. With a view to protect minority rights, it confers affirmative social and cultural rights on religious groups...The Court is called upon, in a variety of ways, to oversee and regulate the principled distance that the State ought to keep from religious establishments and the nature of State intervention permissible in religious affairs."
4. He states that various SC judgments have established Secularism of the State as an "unamendable" part of the Constitution.
5. His criticism covers 3 areas:
a) concerning community based rights or minority rights and how in recent years the Court has tended to give priority to individual rights and freedoms over community based rights;
b) how the Court has perceived secularism and how in some of its later decisions it has tended to take a mono-culturist rather than a pluralist view of secularism and
c) How the Court has tried to regulate the State's intervention in religious affairs and in the process has itself assumed a highly interventionist role. (He criticizes the SC judgment in Harry Stainislaus case where the Court held that the right to propagate one's religion, protected by the constitution, did not include the right to convert others to one's own religion.)
6. One of his main concerns is the curtailment of educational rights that minority institutions enjoyed. However, he made these Presentations before the current RTE Bill was passed. With RTE it seems that again Majority Community run schools in backward areas will come under tremendous pressure and may have to close down due to requirements on Qualifications of teachers etc. The RTE Bill seems to have a strong pro-minority agenda and may need to be challenged appropriately.
7. He cites 4 cases in education area where Minority rights were compromised in past decade by SC viz. Delhi's St. Stephens college forcing it to admit 50% non-Christian students; In Pai "¦. "it was for the first time the question of minority rights was not considered independently"¦"¦..Pai blurred the line between a minority institution and a non-minority private institution."; Islamic Academy in order to clear the doubts and anomalies arising from the Pai decision; and two years thereafter another seven-judge Bench of the Supreme Court assembled to hear the case of Inamdar to clear the confusion arising from Pai and Islamic Academy.
8. He states that at the end of the exercise Article 30 all but lost its independent identity. "The position that emerges from the 3 decisions may be summarized thus:
a) The right to set up educational institutions and impart any kind of education at any level is available to every Indian citizen under Article 19 (1) (g) of the Constitution as the right "to carry on any occupation, trade or business" (Justice Unni Krishnan overruled! He said education was a noble undertaking.)
b) Article 30 does not give to the religious minorities any additional or separate right. The religious minority has no special right that the majority does not have under the Constitution. Articles 29 and 30 do not confer any rights but afford certain protections to the minorities. The two Articles can be better understood as a protection and/or a privilege of the minority rather than an abstract right. (View of Venkatarama J. in minority of 1:6 in Re. Kerala Education Bill resurrected!)
c) The right under Article 30 is not absolute. It is subject to Article 29(2) and other laws. It can be restricted in public interest and national interest. (Sidhraj Bhai expressly overruled!). The decision in Inamdar also laid down guidelines relating to the manner of admission and composition of students that render the minority status of an institution quite precarious. It also needs to be pointed out that the three decisions indeed brought about a basic shift in the Court's position in regard to the right of the religious minority to establish educational institutions but the greater and equally significant shift was towards privatisation of education.
9. He says, "To sum up, for about forty or forty five years the Supreme Court held that though the Constitution did not permit community specific political rights, it recognized community specific social rights. But in the last fifteen years the court seems to have come to the view that under the Constitution there cannot be any community specific rights either political or social..."
10. He criticize SC's 1994 "Bommai decision" on Secularism calling it "mono-culturist" wherein it had stated "if the Constitution requires the State to be secular in thought and action, the same requirement attaches to political parties as well" because, "political parties are formed and exist to capture or share State power." He never explains why he is critical! But it seems that he is pro-Islamisation albeit with certain reforms.
11. He also cites 1998's SC rulings in the "HINDUTVA DECISIONS" upholding the election of one Manohar Joshi from Maharashtra. In his election speeches Manohar Joshi, had said that "The first Hindu State will be established in Maharashtra". The court, observed that "a mere statement that the first Hindu State will be established in Maharashtra is by itself not an appeal for votes on the ground of his religion but the expression, at best, of such a hope." The Court went much further and using the words "Hindu", "Hinduism" and "Hindutva" interchangeably observed that those terms were not amenable to any precise definition and no meaning in the abstract would confine the term "Hindutva" to the narrow limits of religion alone. .."
12. He says that the Hindutva decisions came under severe criticism for mixing up "Hindutva" with Hinduism and thereby stating that nothing in it is at all contradictory to secularism! He also explains "But at the same time those decisions were greatly applauded by the supporters of free speech and democratic liberalism."
13. He states, "The Hindutva decisions seem to have inspired the Court to take the mono-culturist view of secularism"¦"¦.etc." He criticizes SC quashing a 2002 PIL against NCERT for including religion, Sanskrit, Vedic Mathematics, Vedic Astrology etc. in the courses of study for the schools was contrary to secular principles. Further, "In Aruna Roy the Court held that though the curriculum mentioned the subject as Vedic Astrology its contents were actually in the nature of Vedic Astronomy and hence, its inclusion in the school course was not unjustified. Two years later it upheld the teaching of Vedic Astrology (Jyotir Vigyan) "¦..in different universities.
14. He then discusses SC's intervention in religious affairs where he seems to support a reformist side of Islam. He criticizes the SC upholding the ex-communication of a Dawoodi Bohra as correct and also supports the Shah Bano case although is very critical of the SC's approach to the problem.
15. He accepts, "An over-emphasis on community specific rights does not seem to do any good to anyone, not even to the minority groups. It is argued that it only serves to strengthen the walls separating the minority from the majority and acts as a barrier for the members of the minority community to join the national main stream education and the avenues that open up from there."
16. He again reiterates, "Far more important, it is contended that the Court in its earlier reading of the minority rights treated the minorities as monolithic blocs and thereby gave the elite within the minority groups complete control over those rights"¦. It is pointed out that social surveys show that an over protection of the community specific rights was of very little, if hardly any, use to the weaker sections within the minority groups. But on the other hand a complete denial of community based rights evokes within the minority groups the fear of being subsumed by the majority and that is a source of social tension on a greater scale"¦."
17. On secularism he claims, "As to the nature of Indian secularism"¦"¦. In India secularism cannot be seen or used as a means for doing away with all the differences of creed and caste and region and language and for developing a more homogenized society laying undue stress on "Indianness". A position where the idea of secularism is applied to make all the religious and linguistic minority groups and the tribals and the Dalits within the Hindu fold to lose not only their identities but also their national aspirations would, to my mind, negate not only what the Constitution of India stands for but also what Gandhi stood for."
Justice Aftab Alam is a sitting Judge of the Supreme Court of India
