The Kashmir Valley, in the Indian State of Jammu and Kashmir, is overwhelmingly Muslim. However, it is also home to the Kashmiri Pandits, Brahmin Hindus; and I was alerted by a report in the Hindustan Times to an interesting case involving their interests.

Sanjay Tickoo, President of Kashmiri Pandit Sangharsh Samiti (the Kashmiri Pandit Struggle Committee), petitioned the High Court of Jammu and Kashmir against what he described as “uncouth attempts” being made by some Pandits ‒ some of them non-Kashmiri ‒ to change the status of Hindu religious buildings by creating third party interests and turning them into commercial units. He argued that the character of the secular Constitution required the state and its authorities to protect the religious sites.

In Sanjay Tickoo & Ors v State & Ors [2013] OWP 610/2007 Jammu & Kashmir HCt  Hussain Attar J agreed that, in accordance with the Constitutions of India and of Jammu and Kashmir, the authorities had powers to protect religious places, including places of cultural heritage, and directed the State Government to take all necessary measures to protect the religious shrines of the Kashmiri Pandits.

He observed that any person who might be affected in the process should be given an opportunity for a hearing and that thereafter the appropriate orders would be passed. He also directed the Chief Election Commissioner to invoke the provisions of the law against persons who sought recourse to religious nationalism and posed a threat to the Constitution and to prevent such people from seeking election to the Lok Sabha or to the state legislature:

“CEC is further directed to consider for issuance of executive instructions for disqualifying of such persons from contesting elections to Parliament and State legislatures and barring such organizations or individuals”.

What attracted my attention, however, was not the administrative detail but the much broader statement about the general place of religion under the Constitution of India. At para 15 the judge pointed out that

“The preamble of the Constitution of India was substituted by Constitution (42nd amendment) Act 1976. In terms of section (2) of the  Act of 1976, [the] expression ‘Sovereign Democratic Republic’ was substituted by the expression ‘Sovereign,  Socialist, Secular, Democratic Republic'”.

Moreover:

“The very scheme of the constitutional provisions would show that ‘We the people’ constituted India as a country, which guarantees  equality before law and equal protection of laws and prohibit discrimination on the grounds of religion, race, caste, sex or place of birth…” [para 16].

Therefore:

“In our constitutional scheme, a citizen of India is only an ‘INDIAN’. No person can claim himself to be a ‘Hindu nationalist, Muslim nationalist, Sikh nationalist, Buddhist nationalist or Christian nationalist. The constitutional provisions … in loud, clear and unambiguous terms, forbid using of such expressions. A person who persists with use of such expressions and, in fact, believes in such a thought has to be dealt with and proceeded against in accordance with the mandate contained in the Constitution and other laws of the land. As already stated, India belongs to ‘Indians’, who constitute one nation. Constitution of India does not recognize ‘Hindu nationalism, Muslim nationalism, Sikh nationalism, Buddhist nationalism or Christian nationalism’. These expressions denote that there is a ‘Hindu nation, Muslim nation, Sikh nation, Buddhist nation or Christian nation’. These expressions or thoughts are antithesis and abhorrent to the Constitution of India … In our constitutional philosophy, there is only one ‘ism’ that is ‘Indianism’. All other ‘isms’ are sworn enemies of ‘Indianism’” [para 19: emphases in original].

In short: “India is not a Hindu, Muslim, Sikh, Buddhist or Christian India. It is ‘India‘, … born from the bosom of unrelenting struggle of millions of people” [para 20] and “The State has no religion” [para 26].

Comment

India is not the United Kingdom ‒ and the UK itself is not exactly a secular state in the usual sense of that term anyway. But though India has an immensely-detailed written Constitution it is for the most part a common law system with a strong family resemblance to other Anglo-American jurisdictions. And as I read the media reports of Tickoo before searching for the judgment itself I could hear in my head (though not verbatim) echoes of the words of Laws LJ in McFarlane v Relate Avon Ltd [2010] EWCA Civ 880):

“The promulgation of law for the protection of a position held purely on religious grounds cannot … be justified. It is irrational, as preferring the subjective over the objective. But it is also divisive, capricious and arbitrary … The law of a theocracy is dictated without option to the people, not made by their judges and governments. The individual conscience is free to accept such dictated law; but the State, if its people are to be free, has the burdensome duty of thinking for itself” [para 22: my emphasis].

Hussain Attar J would no doubt concur wholeheartedly.