"I realise that some of my criticisms may be mistaken; but to refuse to criticize judgements for fear of being mistaken is to abandon criticism altogether... If any of my criticisms are found to be correct, the cause is served; and if any are found to be incorrect the very process of finding out my mistakes must lead to the discovery of the right reasons, or better reasons than I have been able to give, and the cause is served just as well."

-Mr. HM Seervai, Preface to the 1st ed., Constitutional Law of India.

Saturday, February 19, 2011

Bhoomi Pooja is a secular activity when done by the HC judges in official capacity

The HC of Gujarat has delivered a judgment on 10/2/11 on the secular character of the Bhoomi Pooja participated by the HC judges of Gujarat. The court found the act of Bhoomi Pooja as an acceptable proposition within secularism and found that offering prayers with the aid of brahmin priests chanting Sanskrit slokas well within the secular tenet of the constitution.

The discourse on secularism in India seems to point towards the Indian brand of secularism which is a fluid concept- vague as much as it could get. Secularism has been a point of debate in Indian judiciary specifically and bastions are cases like S.R Bommai, Ramesh Yaswant Probhoo, to cite a few.

In the present case, by setting another standard of secularism, the court have said that the Bhoomi Pooja is essentially for the betterment of the institution of the HC and therefore for the betterment of everyone directly or indirectly connected irrespective of their caste or religion.

“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.

After discussing this, the court enquired whether the person who has filed the PIL has locus as per the recent guidelines given in Uttranchal v. Balvantsinh and found him to be lacking locus.

“26. In our view, in view of the aforesaid consideration, it appears that the petition has been filed with extraneous considerations which are not disclosed by the petitioner since he has tried to expose the cause of the organization behind him or the other persons. Such would lead to serious doubt about the credentials of the petitioner. Further, the correctness of the statement made at para 3 is falsified by the above referred subsequent paragraphs and the annexures produced with the petition. Therefore, it can be said that the petition is either filed with some extraneous consideration or there is no genuineness or bonafide public interest as sought to be canvassed. The petition can be termed as by a busy body for extraneous consideration.”

Therefore the court rejected the petition and slated exemplary cost.

Issues to muse

1. If the court had to find that person had no locus and therefore the petition was to be dismissed why the verbose on secularism? Were they driven by the need of self justification!
2. Secularism unequivocally prohibits preference by state of one religion over the other. When the HC conducts Bhoomi Pooja with brahmin priests what else other than preferring one religion over the other was done, however the court may try to justify it as part of dharma and not part of religion. Court’s rationale if nothing is poor and unsubstantiated.
3. One could appreciate Bhoomi Pooja as a matter of culture and in India, like elsewhere, culture and religion are mostly interlinked. Even when culture is the driving force, its association with a particular religion should make the state wary in adopting it in public sphere of a secular nation.
4. The exemplary cost that has been levelled shows the courts tolerance in bad light, ‘here you go if you dare to raise fingers against us’ sorts.

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