Dismissing a petition purportedly filed in public interest with costs, a Division Bench of the Gujarat High Court in a recent decision [RAJESH HIMMATLAL SOLANKI v. UNION OF INDIA] has declared that the"offering of the prayer to the earth at the time of foundation laying ceremony cannot be termed as non-secular action if 'manav dharma' is to be understood in its real sense in furtherance to the principles of secularism to be observed by our nation."
The High Court culled out the legal principles relating to the meaning and ambit of 'secularism', as propounded by the Constitution of India and went on to examine the various dimensions of 'dharma' and 'religion' which were not anti-thesis to secular but on the contrary were founding stones to human spirit and tolerance in public life to hold that celebrating the foundation of a new building, which essentially was the reason behind 'bhumi-pujan' could not be said to be anti-secular. "Offering of prayer by any person for betterment of everybody cannot be termed as any activity or any action resulting into non-secular activity"
The Division Bench examined the legal position in the following terms;
1. The question arise in the petition is as to whether offering of prayers at “Foundation Laying Ceremony”, called in popular language as “Bhoomi Pujan” for construction of new building could be said as non-secular activity?
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5. Much emphasis was given by the learned counsel for the petitioner on the aspects of the secular character of our Constitution and the word “Secular” incorporated in the preamble of the Constitution read with the relevant Articles of the Constitution provided for right to freedom of religion were pressed in service. It was submitted that as per the constitutional debates which had taken place before our Constitution came into force, there were various discussions on the said aspect, some of which are referred to in the petition and some were submitted at the time of hearing to contend that the State cannot have any religion. Any action on the part of the State to identify itself with any particular religion could be said to be non-secular activity on the part of the State. It was contended that offering prayers with the help of Pandits who spoke Sanskrit slokas at the Bhoomi Pujan could be termed as identification by the Constitutional dignitaries or the High Court with Hindu religion and such activity would hurt the religions feeling of the citizens who professes other religion and therefore, such action can be said as non-secular and deserves to be declared as unconstitutional. It was submitted that the petitioner has no enmity with any Constitutional dignitaries who offered prayers at the ceremony including the other Honourable Judges who attended and participated at the function, but such function can be said as resulting into creating adverse feeling amongst the other persons who do not believe in Hindu religion. It was also submitted that the High Court being the highest judiciary in the State should guard the constitutional rights given to all citizens and should maintain the secular character of the State. The performance of such ceremony as per Hindu religion would shake the confidence of the people who do not believe in Hindu religion and therefore, the action deserves to be declared as unconstitutional as prayed in the petition. It was also submitted that secularism being one of the basic character of the Constitution, even Parliament cannot amend the Constitution so as to alter the basic structure of the Constitution. Therefore, such would equally apply to the High Court which is the highest judiciary in the State and the constitutional body to guard the rights of the citizen in the State.
6. We need to emphasise that our constitution is supreme and the preamble and the various rights provided for freedom of religion under the Constitution do make it abundantly clear that secularism is the core or basic character of our Constitution and no further discussion would be required on the said aspects. At the same time, we do lay emphasis that any action on the part of the State or its instrumentality resulting into non-secularism has to be held as unconstitutional. But we need to examine the true and correct meaning of the word “secularism”.
SECULARISM :
7. In S.R. Bommai Vs. Union of India reported at (1994) 3 SCC 1, the Apex Court had an occasion to examine the said aspect in great detail. In the said decision, the Apex Court (through K. Ramaswamy, J.) (concurring with the majority) observed that secularism in the Constitution is not anti-God and it is sometimes believed to be a stay in a free Society. The secularism, therefore, represents faiths born out of the exercise of rational faculties. It enables people to see the imperative requirements for human progress in all aspects and cultural and social advancement and indeed for human survival itself. It also not only improves the material conditions of human life, but also liberates the human spirit from bondage of ignorance, superstition, irrationality, injustice, fraud, hypocrisy and oppressive exploitations. In other words, though the whole course of human history discloses an increasing liberation of mankind, accomplished thought, all is covered by the term secularism. It was further observed that secularism operates as a bridge to cross over from tradition to modernity. The Indian State opted this path for universal tolerance due to its historical and cultural background and multi-religious faiths. Secularism in the Indian context bears positive and affirmative emphasis. Religions with secular craving for spiritual tolerance have flourished more and survived for longer period in the human history than those who claimed to live in a non-existent world of their own. Positive secularism, therefore, separates the religious faiths personal to man and limited to material, temporal aspects of human life. Morality under positive secularism is a pervasive force in favour of human freedom or secular living. Positive secularism gives birth to biological and social nature of the man as a source of morality. True religion must develop into a dynamic force for integration without which the continued existence of human race itself would become uncertain and unreal. Secularism teaches spirit of tolerance, catholicity of outlook, respect for each other's faith and willingness to abide by rules of self-discipline. The more devoted a person in his religious belief, the greater should be his sense of heart, spirit of tolerance, adherence of secular path. Secularism, therefore, is not antithesis of religious devoutness. Our religious tolerance received reflections in our constitutional creed. It was also observed that Religion in the positive sense, is an active instrument to allow the citizen full development of his person, not merely in the physical and material but in the non-material and non-secular life. Religion is one of belief personal to the individual which binds him to his conscience and the moral and basic principles regulating the life of a man had constituted the religion, as understood in our Constitution. Freedom of conscience allows a person to believe in particular religious tenets of his choice. It was observed that the State does not extend patronage to any particular religion, State is neither pro particular religion nor anti particular religion. It stands aloof, in other words maintains neutrality in matters of religion and provides equal protection to all religions subject to regulation and actively acts on secular part. The concept of "secularism" was not expressly engrafted while making the Constitution, its sweep, operation and visibility are apparent from fundamental rights and directive principles and their related provisions. It was made explicit by amending the preamble of the Constitution (42nd Amendment Act). The concept of secularism of which religious freedom is the foremost appears to visualise not only of the subject of God but also an understanding between man and man. Secularism in the Constitution is not anti-God and it is sometimes believed to be a stay in a free society. Matters which are purely religious are left personal to the individual and the secular part is taken charge by the State on grounds of public interest, order and general welfare.
8. In Ramjanmabhumi Babri Masjid issue, for acquisition, in case of Dr. M.Ismail Faruqui Vs. Union of India reported at AIR (1995) SC 605, it was observed that the concept of secularism embodied in the constitutional scheme as a creed adopted by the Indian people has to be understood. After considering the earlier decision of the Apex Court in the case of S.R. Bommai (supra), it was observed that the provisions of section 7(2) of the Acquisition of Certain Area at Ayodhya Act, 1993, in now way curtains the practice of the right of worship of the Muslim community in the disputed area. Further, any step taken to arrest escalation of communal tension and to achieve communal accord and harmony can, by no stretch of argumentation, be termed non-secular much less anti-secular or against the concept of secularism-a creed of the Indian people embedded in the ethos. It was observed that the constitutional scheme that do guarantee equality in the matter of religion to all individuals and the groups irrespective of their faith emphasising that there is no religion of the State itself. The preamble indicates that it is in this manner, the concept of secularism embodied in the constitutional scheme as a creed adopted by Indian people has to be understood. The concept of secularism is one facet of the right to equality woven as the central golden thread in the fabric depicting the pattern of the scheme in our Constitution.
9. In State of Karnataka Vs. Dr.Pravin Togadia reported at (2004) 4 SCC 684, the Apex Court observed that welfare of the people is the ultimate goal of all laws and State action, and above all the Constitution. They have one common object, that is to promote the well-being and larger interest of society as a whole and not of any individual or particular groups carrying any brand names. It is inconceivable that there can be social well-being without communal harmony, love for each other and hatred for none. The core of religion based upon spiritual values, which the Vedas, Upanishad and Puranas were said to reveal to mankind, seem to be “Love others, serve others, help ever, hurt never” and “Servae Jana Sukhino Bhavantoo”.
10. The true meaning of the word “secular” can be termed as based on principles of “Vasudeva Kutumbakam”. If to be understood in context of religion, it can be said that let the religion allowed to be followed by those who wants to follow.
11. The aforesaid appears to be the true and real meaning of secularism, viz., equal treatment to all religions by the State. Secularism is a broad religio-traditional consensus and can be termed based on the principles of “Vasudeva Kutumbakam” - Live and let other live. Follow the religion by those who want to follow.
DHARMA AND RELIGION – SEPARATE:
11. The Apex Court in the case of A.S.Narayana Deekshitulu Vs. State of A.P. & others reported at (1996) 9 SCC 548, observed that the word “Dharma” denotes upholding, supporting, nourishing, which upholds, nourishes or supports the stability of the society, the maintenance of social order and the general well-being and progress of humankind. Whatever conduces to the fulfillment of these objects is Dharma. It is "Sarva Dharma Samabhav”. It is further observed that the religion as used in Articles 25 and 26 of the Constitution must be construed in its etymological sense. Essentially, religion is what a person regards as cosmos, is maker or his creator which, he believes, regulates the existence of insentient beings and the forces of the universe. Religion is not necessarily theistic and in fact there are well-known religions in India itself like Budhism and Jainism which do not believe in the existence of God. In India, Muslims believe in Allah and have faith in Islam; Christians in Christ and Christianity; Parsis in Zoroastrianism; Sikhs in Gurugranth Sahib and teachings of Gurunanak Devji, its founder, which is a facet of Hinduism like Brahamos, Aryasamaj etc. It was observed that every religion must believe in a conscience and ethical and moral precepts. Therefore, whatever binds a man to his own conscience and whatever moral or ethical principle regulate the lives of men believing in that theistic, conscience or religious belief that alone can constitute religion as understood in the Constitution which forsters feeling of brotherhood, amenity, fraternity and equality of all persons which find their foothold in secular aspect of the Constitution. Secular activities and aspects do not constitute religion which brings under its own cloak every human activity. There is nothing which a man can do, whether in the way of wearing clothes or food or drink, which in not considered a religious activity. Every mundane or human activity was not intended to be protected by the Constitution under the guise of religion. It was observed that all secular activities which may be associated with religion but which do not relate or constitute an essential part of it may be amenable to State regulations but what constitutes the essential part of religion may be ascertained primarily from the doctrines of that religion itself according to its tenets, historical background and change in evolved process, etc. The concept of essentially is not itself a determination factor. It is one of the circumstances to be considered in adjudging whether the particular matters of religion or religious practices or belief are an integral part of the religion. It must be decided whether the practices or matters are considered integral by the community itself. Though not conclusive, this is also one of the facets to be noticed. The practice in question is religious in character and whether it could be regarded as an integral and essential part of the religion and if the Court finds upon evidence adduced before it that it is an integral or essential part of the religion, Article 25 accords protection to it. Though the performance of certain duties is part of religion and the person performing the duties is also part of the religion or religious faith or matters of religion, it is required to be carefully examined and considered to decide whether it is a matter of religion or a secular management by the State.
12. In the very decision, the Apex Court (through Hansaria, J.) (supplementing), observed that the very often the words 'religion' and 'dharma' are used to signify one and the same concept or notion. To put it differently, they are used interchangeably. Dharma is said to be “Sanatana”, i.e., one which has eternal values; one which is neither time-bound nor space-bound. It is because of this that Rigveda has referred to the existence “Sanatan Dharmani”. This concept of 'dharma', therefore, has been with us for time immemorial. Dharma is for stability of the society, maintenance of social order and well being and progress of humankind. Whatever conduces to the fulfillment of these objects is Dharma.
13. In deciding the question as to whether a given religion practice is an integral part of the religion or not, the test always would be whether it is regarded as such by the community following the religion or not. This formula may in some cases present difficulties in operation. Take the case of a practice in relation to food or dress. If in a given proceeding, one section of the community claims that while performing certain rites while dress is an integral part of the religion itself, whereas another section contends that the yellow dress and not the white dress is the essential part of the religion, how is the Court going to decide this question. Similar disputes may arise in regard to food. In cases where conflicting evidence is produced in respect of rival contentions as to competing religious practices, the Court may not be able to resolve the dispute by a blind application of the formula that the community decides which practice is an integral part of its religion, because the community may speak with more than one voice and the formula would, therefore break down. This question will always have to be decided by the Court and in doing so, the Court may have to enquire whether the practice in question is religions in character and if it is, whether it can be regarded as an integral or essential part of the religion, and the finding of the Court on such an issue will always depend upon the evidence adduced before it as to the conscience of the community and tenents of its religion. Otherwise, purely secular practices which are not an essential or integral part of the religion are apt to be clothed with a religions form and may make a claim being treated as religious practices within the meaning of fundamental rights of freedom of religionas provided by the Constitution. It is true that the decision of the question as to whether a certain practice is religions practice or not, as well as the question as to whether the affair in question is an affair in the matter of religion or not, may present difficulties because sometimes practices, religious and secular, are inextricably mixed up. This is more particularly so in regard to Hindu religion because as is well known, under the provisions of ancient Smritis, all human actions from birth to death and most of the individual actions from day to day are regarded as religions in character. As an illustration, if an obviously secular matter is claimed to be matter of religion, or if an obviously secular practice is alleged to be religious practice, the Court would be justified in rejecting the claim. For example, a disposition towards making a gift for charitable or religious purpose may be a pious act of a person but the same cannot be said to be an integral part of any religion. It is not the case that the religion of Christianity commands gift for charitable or religious purpose compulsory or the same is regarded as such by the community following Christianity. Disposition of property for religious and charitable purpose is recommended in all the religions but the same cannot be said to be an integral part of it. If a person professing Christian religion does not show any inclination of disposition towards charitable or religious purpose, he does not cease to be a Christian. Even certain practices adopted by the person professing a particular religion may not have anything to do with the religion itself.
14. The aforesaid shows that the word 'dharma' is not in contradistinction to the secularism if it is understood in its real sense, that is, “Sarve Bhavantu Sukhino”. Merely because in certain religious practices, there is no identification of certain offering to the supreme power or almighty would not result into adharma or anti-dharma.
15. In the same manner, in our opinion, we can say that dharma in real sense of mankind embraces to all religion be it, Hindu, Muslim, Christian, Parsi, etc. If the basic human character for the interest of the mankind irrespective of its caste or community or religion are shown as the practices in any religion, such cannot be termed so as to claim exclusive part of a particular religion, but can be said as a secular activity also identified by the religion on the broad principles of “Vasudeva Kutumbakam” or “Sarve Jana Sukhino Bhavantu” being welfare to everybody, hurt to none. It is in this light and background, we need to examine the incident of Foundation Laying Ceremony and the prayers offered at the said incident of Foundation Laying Ceremony.
ACTION OF FOUNDATION LAYING CEREMONY:
16. If the incident of ceremony of laying of foundation for construction of any building is considered in its materialistic sense, it results into starting of construction by laying out foundation. The foundation, if considered in its materialistic sense, it does hold the importance since the building is to stand on such foundation. If such important event is celebrated by the State or the High Court, by no stretch of imagination it can be said that such action of celebration is non-secular in any manner.
17. If such incident is further considered, one needs to excavate the earth to some extent for laying down any foundation. If the earth even if treated in its materialistic sense, the existence of the earth and well being of the earth touches to all mankind on the earth. At the time of excavation of such earth or at the time when a building is to be constructed by adding physical burden, offering of the prayer to the earth to pardon or to graciously bear the burden or the damage, if any, to make the construction successful, which is to be used for betterment of the institution of the High Court, such an action can be termed as for the betterment of all persons connected thereby directly or indirectly, irrespective of their caste or religion or community. Therefore, such offering of the prayer to the earth at the time of foundation laying ceremony cannot be termed as non-secular action if “manav dharma” is to be understood in its real sense in furtherance to the principles of secularism to be observed by our nation.
18. At the time when the prayers are to be offered to the earth by the dignitaries who had laid down the foundation for the building, simultaneously if sanskrit slokas are spoken by brahmins, it can be said as in furtherance to the prayer offered to the earth. Such slokas could also be termed as supplementing prayers offered by the person/s laying foundation for a noble desire to achieve successful construction of new building. If the ultimate aim for successful construction of the building is holy and with the larger interest of those persons who are to be directly or indirectly benefited by successful construction of the building, irrespective of their caste or community or religion, it would fall within the principles of “Vasudeva Kutumbakam”, welfare to all and hurt to none. Such in no manner can be termed as non-secular activity.
19. The apprehension voiced of the alleged hurt of any religions feeling or that the impartiality of the highest judiciary of the State would be at stake on account of the foundation laying ceremony performed by offering prayers and the sanskrit slokas spoken at that ceremony, can be termed as a pervert view or ingenuine doubts self created in the mind of the petitioner or the persons whose cause is sought to be exposed by the petitioner in the present petition to a noble intention of praying the earth for the successful construction of a building to be used by all persons directly or indirectly connected therewith, irrespective of their caste, community, or religion, etc. Offering of prayer by any person for betterment of everybody cannot be termed as any activity or any action resulting into non-secular activity. Further, as observed earlier, such action of offering prayer to the earth at the time of foundation laying ceremony cannot be termed as an activity by the High Court which may result into flourishing any particular religion as sought to be canvassed. The real object and purpose is for successful construction of the building and not for flourishment of any religion. If for any noble cause, prayers are offered by any person, such would not result into an action for flourishment of any particular religion, but could be termed as for betterment of all persons who are directly or indirectly to be benefited by the successful construction of the building. If one has to offer prayer for successful construction of the building, naturally, he or she would offer prayer as per his own understanding of prayer. The language used for offering prayer or mode adopted for offering prayer with the help of a group speaking a particular language cannot be termed as siding with a person or a group of person adopting a particular mode for offering prayers. As such, offering of prayer at the incident of Foundation Laying Ceremony for the successful construction of the building to be used by the persons irrespective of their caste, community or religion, etc., could be termed as a part of secular activity and it cannot be termed or branded as choosing a particular religion since the prayers offered for such a noble cause cannot be termed as essential and integral part of a particular religion, but can rather be termed as for the benefit of all who are to make use of the new building directly or indirectly in future. Hence, it cannot be said that the High Court or the Chief Justice of the High Court or the Governor while offering prayer for successful completion of the building has taken any action which can be termed as non-secular and consequently, unconstitutional.
20. We find that when the principles of secularism are considered to test the action, it can be said that the same is by maintaining the spirit of the secularism as envisaged by our Constitution.
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