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From Hijab Judgment to Gyanvapi Mosque – How Far Has India Succeeded In Its Secularism Homework

“The fact remains that secularism is inherent in the Indian system, in the Indian ethos and culture. India cannot but be secular.”[i]

The slogan “ayodhya toh bas jhanki hai, Kashi Mathura baqi hai” gained momentum after the Ayodhya judgment. Ayodhya judgment was not conclusion to a long-fought battle, rather it opened the pandora’s box for religious politics in India. The recent changes taken place in India have questioned the notion of secularism in India that is part of basic structure of the Constitution of India. Is India secularist in spirit or just in the letters of the Constitution of India?

To understand the dynamics, it is necessary to define the basic concepts. In India, advocates of secular nationalism decisively won the discussion over how the state should traverse the challenging terrain of India’s religious diversity at the outset of India’s independence in 1947. Epitomized by “the emergence of a peculiarly Indian understanding of secularism which requires the non-establishment of religion but not the separation of religion and state.

However, recent developments taking India make us reconceptualize whether India’s secularism is viable in true senses or not. Recent row of judgments like hijab-judgment and issue of Gyanvapi-mosque are two of the major instances that have made question essence of secularism for which India has opted in the past. Is India’s involvement in religious affairs biased? Are these judgments in line with India secularism or otherwise? Will keeping the memories of religious tensions of the past prove to be fruitful today? To answer these questions, one must delve into various aspects of judicial interpretations, socio-cultural circumstances and politics in India.

Hijab Judgment

A three-judge bench of the Karnataka High Court upheld the ban on hijab in educational institutions of the state.[ii] The order by the Karnataka government banning wearing hijab in state educational institutions was challenged in the High Court. The Court held that wearing hijab is not part of “essential religious practice in Islam.” The exercise of determining what is integral rests upon the courts.

However, this exercise yields ambiguous outcomes and leads the court into spheres beyond its purview. It is very difficult to define what is “essential” to a religious practice and what is not. In one of its judgments,[iii] Kerala High Court held that hijab is “essential religious practice” of Islam but it was not “essential” as held by the Karnataka government.  In 129-page judgment, it has been explained in great detail that why hijab is not an essential practice and therefore, the line of arguments of the petitioners is fallacious. This judgement by the court may prove to be detrimental for education of Muslim girls who are already have limited opportunities in education due to social, cultural, and religious obstacles. The Court outrightly ruled out the possibility that Muslim girls wear hijab by choice and will and not by compulsion. The secularism India has opted does not mean considering viewpoints from one side and not the other as done in the case at hand. Doing so could ignite fire for further such tensions that can easily be solved by discussion and reconciliation.

Gyanvapi Mosque

Not two months after the Hijab judgment passed that yet another issue occupied the centre stage. This time it was related to dispute relating to the Gyanvapi mosque situated in Varanasi, the dispute arised when during a court mandated videography survey, a Shivling was reportedly found on the premises of the mosque. Gyanvapi mosque is among the three religious places on whose origins, petitions have been filed. The two others are Ayodhya’s Babri Masjid and the Shahi Idgah in Mathura. This is despite the fact that the Places of Worship Act (1991) clearly prohibits the alteration of any place of worship into anything other than its religious character as it was on August 15, 1947.

The Gyanvapi mosque was built after the demolition of a temple by Aurangzeb, the sixth Mughal emperor in 1669. This gave rise to new tension among Hindus and Muslims. This has sparked fears of a recurrence of the decades-long battle over the Babri Masjid, a 16th-century mosque in the holy city of Ayodhya that was demolished to the ground by Hindu rioters in 1992.  Albeit, temple had been demolished by Aurangzeb but in nation-building, some of the bitter memories have to be forgotten in order to build a nation.

There were many aspects to this that cannot be reduced to a two-dimensional picture of a mere dispute between Hindus and Muslims. The point that should be considered is how far such claims help in nation- building, how far such claims help in process of reconciliation.

Conclusion

The secularism that India had opted for was adopted with the aim of building a nation in which people from all religious sects live with peace, harmony and reconciliation where the state has to keep “principled distance” from religious affairs but at the same time it does not mean the separation of religion and state. However, the way the viewpoints of minorities are neglected in India and the recent developments prove otherwise, the Hijab issue in Karnataka and Gyanvapi mosque dispute in Varanasi are just two of the episodes.

Nevertheless, if such practices continue to take place, it will open pandora’s box that will signal more upheaval, where people are claiming and fighting over religious identities. If we want to create a nation-state in spirit, citizens, as well as the government, have to understand that it is not possible without taking into consideration the voices of minorities, by forgetting some bitter memories from the past that might create tensions among communities. The way to build India that our ancestors have aspired for future generations is paved with re-conciliation and adoption of various cultures and practices.

[i] Deepa Das Acevedo, Secularism in the Indian Context (2013) https://www.jstor.org/stable/23357741  last seen on 22/05/2022

[ii] Resham v. State of Karnataka and Others, WP NO. 2347/2022

[iii] Fathima Thasneem v State of Kerala, WP(C). No. 35293 of 2018

This article has been written by Divyanshi Shukla, student of B.A. LL.B. (Hons.) at National Law Institute University (Bhopal).

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