How religion is affecting the Lawmaking by Judges – A Critical View
Author: Shreya Saxena, Jamanlal Bajaj School of Legal Studies, Banasthali Vidyapith.
The 42nd Amendment of the Constitution of India enacted in 1976 gave our nation the status of a secular state. The Preamble to the Constitution asserted that India is a secular nation and thus the state had no religion of its own and was the promoter of none of the religions but was the protector of all.
There is no provision in the Constitution of India which directs the nation to remain neutral to the religious issues; nor does it specifically ask to cooperate with the religious communities with respect to their faith affairs. However, the thing which contrivances the people of the nation the most is that the mandate is only for non-discrimination between people on grounds of religion. The silence of the Constitution on this issue is taken as an unstated approval for State intervention in the religious affairs of all communities, and all the organs of the State – legislature, executive and judiciary have been accordingly taking active interest in such religious affairs in a way that may be untraceable under such a political set up which is rigidly secular. The legislative and administrative measures of this nature are provided the finance by the State exchequer, and this results in their validity becoming well-established despite the Constitutional ban on collection of taxes meant for promoting particular religions.
However contrary it may be to the practice of secular countries in the West, the Judiciary in India has never temporized or scrupled in discussing, elucidating and clearing up or even adjudicating on purely religious issues including the nature and distinctive characteristics of various religions of India.
The Supreme Court of India in Sastri Yahnapurushdasji v. Muldas B.Vaishya observed that “Acceptance of the Vedas with awe and veneration, acknowledgment of the fact that the means of salvation are dissimilar and diverse and the realization of the precision that the number of gods to be worshipped is not petite but large, that indeed is the distinguishing feature of Hindu religion”.
In some of the pronouncements, the court of law has also adjudged on religious disputes between the Hindus and one or another of the other communities viz. the Islam, Sikh, Buddhism, Jain, etc. legally bracketed with them (as stated above).
In the leading case- Tejraj v. Madhya Bharat, the Hon’ble Court had to pass the verdict on a dispute between the people of Hinduism and Jainism on the issue if a Jain temple could house a Hindu spiritual symbol.
The Ram Janmabhoomi- Babri Masjid Case stands at the top when it comes to the intervention and complexity faced by the judiciary of our country whenever it comes to adjudicating the cases related to the religious affairs of our nation. The apex court of the nation has been going through a long period of hustle and bustle wherein it tried hard to come up to a decision whether there should be a temple for ‘Ram Lalla’ or a ‘Babri- Masjid’. This religious issue has been affecting the decision-making process of the Indian Judiciary since 2009 and still stands as a hindrance towards the same. This has also cast doubt on the secular nature of the Indian Judicial System.
This resulted in the Hindu Groups and also RSS targeting the Indian Judiciary because of the thought pondering in the minds of the people that the Indian Judiciary has been delaying the proceedings of this case on purpose. A number of Hindu saints got an opportunity to vent their anger upon the Supreme Court when it refused an early hearing on the Ayodhya Ram temple-Babri masjid land dispute. Swami Chinmayananda who was the former junior minister in the Atal Bihari Vajpayee government said, “We cannot wait for the court to take a stand on the case of Ram temple…The court does not want to make a decision.”
This state of affairs has thus resulted in the assessment made by the judges. This time, they have resorted to the alternative of mediation so as they can come up to a conclusion for the same. Either way, the judiciary is going to get tainted as the proceedings move ahead.