Dr. KS Chauhan

CASTE is the foundation to evolve a discriminatory system in Indian society. It is based on graded inequality and the system of gradation is designed to discriminate against fellow citizens. As integral to the foundation of the Hindu religion, the temple is used to discriminate and deprive weaker sections of the society.

The Constitution has envisioned a casteless society that requires restructuring of the society. Adequate representation is natural to the process to establish a casteless society.

In this process, the constitutional authorities have a pivotal role in enforcing constitutional objectives. It is essential for them to assure by their conduct that they are committed to constitutional principles. It is also essential for these authorities to remain neutral to caste and religion in society.

The constitutional goal of establishing an egalitarian society is possible only if the discriminatory grounds or reasons are eliminated.

We are living in a dichotomy today, where the Constitution has assured the rights of equality, liberty, fraternity, and justice, but the government is acting against constitutional norms.

The Constitution has guaranteed the right to equality and equal protection in Art. 14. It mandated that the State shall not discriminate against any citizen on grounds of religion, race, caste, sex, place of birth in Art. 15.  It prohibits discrimination and it does not allow any disability, liability, restriction, or conditions for access to public places and other public utilities. But it allows special measures for women, children, socially and educationally backward classes, SCs, and STs.

Article 16 guaranteed the right to equality in public employment and it also provides that the State shall not discriminate against any citizen on grounds of religion, race, caste, sex, descent, place of birth, residence or any of them in Art. 16. But special provisions for the backward classes are provided for in any appointment or posts. Further provisions are made for adequate representation of SCs, and STs in matters of promotion.

To make the right to equality a reality, the Constitution makers abolished untouchability. Its practice in any form is forbidden under Art. 17. Yet untouchability is very much practiced and it is on the rise as the State is effectively not implementing the constitutional philosophy. Art.18 has abolished titles to establish an egalitarian society.

These constitutional provisions are being disregarded by the State.

Article 25 of the Constitution guaranteed freedom of conscience and free profession, practice and propagation of religion, which is “subject to public order, morality, and health and to the other provisions of this Part (III of the Constitution)”. Article 25 merely protects the freedom to practice rituals and ceremonies which are only the integral parts of the religion.

Article 26 of the Constitution guaranteed freedom to manage religious affairs. There is the freedom to establish and maintain institutions for religious purposes. But in a secular country, the State cannot promote any religion. As such, the participation of any constitutional authority in any religious event, is constitutionally impermissible, particularly if the invitation is limited to only a caste.

The minorities also have fundamental rights and it is the duty of the State to equally protect them.

Article 27 of the Constitution guaranteed that no person shall be compelled to pay taxes for promotion of any particular religion. Thus, the State has to be neutral.

Article 28 guaranteed freedom of attendance at religious instruction or religious worship in certain educational institutions.  If a constitutional authority participates in an event of the religion of the majority, the constitutional mandate of protection of the minorities in Article 29 has been defied. The constitutional principles could not be ignored by the State.

Article 30 has guaranteed the right to establish and administer educational institutions of minorities. Freedom of religion is being subject to the other provisions of Part-III of the Constitution. Thus, the participation by the Prime Minister in a religious event of laying the foundation for the construction of ‘Ram Temple’ at ‘Ayodhya’ on August 5 was contrary to the scheme of the Constitution.

India being a secular country, the government cannot participate in any religious activity of any religion. The mere presence of a high functionary in such a religious event can endanger the secular fabric by making the minorities feel threatened by such action. The minority communities, or a person who has litigated upto the highest court, has to support the construction,  shows the extreme fear in the mind of minorities.

The other institutions which are established to oversee the functioning of the government have failed in their duties. A parallel government, which is controlled by the religion, is exemplifying disrespect to the Constitution and its principles as it believes in the principles of inequality originating from Manusmriti. Religious freedom has been guaranteed by the Constitution, which is “subject to public order, morality, and health and to the other provisions”.

The participation of the Prime Minister in the Bhoomi Puja is an example of ignoring the constitutional principles of ‘separation of State from the religion’. It is a serious case of constitutional impropriety, is contrary to the norms of constitutional governance,  and is a question of constitutional morality.

The government has failed by not working in the direction of realising constitutional rights.

Religion is also one of the discriminatory factors that restrict the realisation of fruits of the constitutional principles and rights of the citizens. Unfortunately, all actions prohibited under the Constitution are being promoted or propagated in one form or the other by the ruling classes. The exploited classes are organising themselves as Mulniwasi Bahujan  (Native of the Land) to realise the fruits of constitutionally guaranteed rights.

It is a well-settled constitutional principle that secularism and equality, are integral parts of the basic structure of the Constitution of India. Articles 29 and 30 deal with the cultural and educational rights of minorities. The religious and linguistic minorities have the right to establish an institution in Article 30 of the Constitution. The non-minorities have the right to establish an institution in Articles 19 and 26 of the Constitution. Every religious denomination has the right to establish and maintain institutions for religious and charitable purposes, subject to public order, morality, and health.

The preamble of the United Nations Declaration on the right of persons belonging to National or Ethnic, Religious and Linguistic Minorities says, “The promotion and protection of the rights of persons belonging to national or ethnic, religious and linguistic minorities contribute to the political and social stability of States in which they live.” The Prime Minister participated in a religious ceremony though he is a constitutional authority, who had taken an oath to “bear true faith and allegiance to the Constitution of India as by law established, that I will uphold the sovereignty and integrity of India, …. that I will do right to all manner of people in accordance with the Constitution and the law, without fear or favour, affection or ill will.”

As such, the oath of a constitutional authority has been violated by the propagation of religion. The question is whether the Prime Minister, who is getting elected under the scheme of the Constitution, is bound by the Constitution and its principles, which recognised ‘secularism’ as one of the basic structures. Later on, to make it emphatically clear, the word ‘secular’ has been expressly inserted to the Preamble of the Constitution. In my considered opinion, he is bound and his action is constitutionally impermissible.

The person who has respect for constitutional governance, as perceived by the framers of the Constitution, has to act as per the constitutional mandate to establish constitutional governance.

Moreover, the right to religious freedom is a fundamental right. Can the State join the majority religion? If yes, then what would happen to the religious freedom of the minorities? Would their freedom have any meaning in the sense? The Constituent Assembly has assured them of social dignity, rights freedom, and religious freedom in democratic India. Has the trust reposed by the minorities in the Constitution been betrayed? If yes, then the whole edifice of constitutional governance falls flat on the ground. and the constitutional principles have been betrayed by the constitutional authority. This mandate cannot be violated by the constitutional authority, as he is not free to violate constitutional principles. Hence it is a betrayal of constitutional philosophy.

In just recalling the name of Babasaheb Ambedkar and acting contrary to his principles and constitutional philosophy is a serious case of constitutional impropriety and betrayal by the constitutional functionaries.

The person who has respect for constitutional governance, as perceived by the framers of the Constitution, has to act as per the constitutional mandate to establish constitutional governance. To participate in such an event has surely lead to anarchy and the faith of minorities would naturally diminish. There is thus a limitation on constitutional authorities to participate in the religious function and such actions do not adhere to constitutional philosophy of the Constitution of India.

(Dr. K S Chauhan is a Senior Advocate at the Supreme Court of India. Views are personal)

This article was first published on August 31, 2020 in the Leaflet here.