20, Dec 2017 | CJP Team

The SR Bommai vs Union of India, March 1994 judgement heralded for its endorsement of Indian federalism, is also a sharp and biting commentary on inroads of religion into politics and safeguards Indian secularism. Bommai‘s promise of fair federal play, the judgment’s mandate for secularism, and for action against parties and State governments violating the constitutional philosophy that prohibits the mixing up of religion and politics. This judgement is yet to be acted on.

It was in March 1994 that the Supreme Court delivered a nine member verdict, known in popular legalese as S.R. Bommai vs Union of India (Supreme Court Cases (SCC), 1994, Volume 3).

Significant Paragraphs from the Judgement that is a Scathing Verdict on the Dangerous Mix between Religion and Politics

India a Secular State, Not a Theocratic One: SC

The Supreme Court in S. R. Bommai v. Union of India [(1994) 3 SCC 1] (Bommai case) as per Sawant, J.held in Para. 145 that the right to religion is subject to laws governing secular activities such as the law governing politics and that the Indian State is secular state and not a theocratic State in the following words:

“Our Constitution does not prohibit the practice of any religion either privately or publicly. Through the Preamble of the Constitution, the people of this country have solemnly resolved to constitute this country, among others, into a secular republic and to secure to all its citizens”Article 25 of the Constitution guarantees to all persons equally the freedom of conscience and the right freely to profess, practice and propagate religion subject to public order, morality and health and subject to the other Fundamental Rights and the State’s power to make any law regulating or restricting any economic, financial, political or other secular activity which may be associated with religious practice. Article 26 guarantees every religious denomination or any section thereof the right [a] to establish and maintain institutions for religious and charitable purposes, [b] to manage its own affairs in matters of religion, [c] to own and acquire movable and immovable property and [d] to administer such property in accordance with law. Article 29 guarantees every section of the citizens its distinct culture, among others. Article 30 provides that all minorities based on religion shall have the right to establish and administer educational institutions of their choice. It prohibits the State from making any discrimination in granting aid to an educational institution managed by a religious minority. Under Articles 14, 15 and 16, the Constitution prohibits discrimination against any citizen on the ground of his religion and guarantees equal protection of law and equal opportunity of public employment. Article 44 enjoins upon the State to endeavour to secure to its citizens a uniform civil code. Article 51 casts a duty on every citizen of India, among others, [a] to abide by the Constitution and respect its ideals and institutions, [b] to promote harmony and the spirit of common brotherhood, among all the people of India, transcending, among others, religious and sectional diversities, [c] to value and preserve the rich heritage of our composite culture, [d] to develop scientific temper, humanism and the spirit of inquiry and reform; and [e] to safeguard public property and to abjure violence.These provisions by implication prohibit the establishment of a theocratic State and prevent the State either identifying itself with or favouring any particular religion or religious sect or denomination. The State is enjoined to accord equal treatment to all religions and religious sects and denominations.”

The Nine Member Constitutional Bench in Bommai case deliberated at length on the interpretation of Section 123 of the RPA, 1951. These Paragraphs are of relevance. They are being reproduced:

Religion Must Not be Mixed With Politics: SC

S R Bommai (Supra) at Para 149:

“With respect, we are unable to accept this contention. Reading sub-sections (3) and (3A) of Sections 123 together, it is clear that appealing to any religion or seeking votes in the name of any religion is prohibited by the two provisions. To read otherwise is to subvert the intent and purpose of the said provisions. What is more, assuming that the interpretation placed by the learned counsel is correct, it cannot control the content of secularism which is accepted by and is implicit in our Constitution.” (this means that the Corrupt practice is not confined to an appeal to the religion of the candidate but to any religion ) (question can we argue that the word “his” refers to the religion of the voter or can the word “his” refer to “his agent” or his party manisfesto)” 

Political Parties Should Not Invoke Religion During Elections: SC

S R Bommai (Supra) at Para 187:

“Politics in positively secular State is to get over their religion, in other words, in politics a political party should neither invoke religion nor be dependent on it for support or sustenance. Constitution ensures to the individual to protect religion, right to belief of propagate teachings conducive for secular living, later to be controlled by the State for betterment of human life and progress. Positive secularism concerns with such aspects of human life.”

Indian Government Cannot under the Constitution & Law Patronise Any Religion: SC

S R Bommai (Supra) at Para 190:

“Article 25 inhibits the Government to patronise a particular religion as State religion overtly or covertly. Political party is, therefore, positively enjoined to maintain neutrality in religious beliefs and prohibit practices derogatory to the Constitution and the laws. Introduction of religion into politics is not merely a negation of the constitutional mandates but also positive violation of the constitution obligation, duty, responsibility and positive prescription of prohibition specifically enjoyed by the Constitution and the R P Act. A political party that seeks to secure power through a religious policy or caste orientation policy disintegrates the people on grounds of religion and caste. It divides the people and disrupts the social structure on grounds of religion and caste which is obnoxious and anathema to the constitutional culture and basic features. Appeal on grounds of religion offends secular democracy.”

In other words, it should have been clear to anyone that under our Constitution, there shall be no religion in politics just as there shall be no politics in religion.

Separate Religion From Politics: SC

S R Bommai (Supra) at Para 196:

“In a secular democracy, in other words a flagrant breach of constitutional features of secular democracy. It is, therefore, imperative that the religion and caste should not be introduced into politics by any political party, association or an individual and it is imperative to prevent religious and caste pollution of politics”.

A religious talk, may be a dissertation or a discourse or even hoping for a religious State, on the basis of any so-called exercise of fundamental right u/Article 25, in an election meeting which is a political activity, would undoubtedly pollute politics, and can only be construed as an appeal to vote on the basis of religion.

Manifesto of a Political Party Should Uphold Secularism & Constitutional Values: SC

• Referring to S. 123 (3) & (3A) of the Act, the Court in S R Bommai (Supra) at Para 189 said:

“A political party, therefore, should not ignore the fundamental features of the Constitution and the laws. Even its manifesto with all sophistication or felicity of its language, a political party cannot escape constitutional mandate and negates the abiding faith and solemn responsibility and duty undertaken to uphold the Constitution and laws after it was registered under Section 29-A. Equally it / they / should not sabotage the same basic features of the Constitution either influencing the electoral process or working the Constitution or the law. The political party or the political executive securing the governance of the State by securing majority in the legislature through the battle of ballot throughout its tenure by its actions and programmes, it is required to abide by the Constitution and the laws in letter and spirit”.

Political Parties Bound by Secularism: SC

S R Bommai (Supra) at Para 252:

“Political parties, group of persons or individuals who would seek to influence electoral process with a view to come to political power, should abide by the Constitution and the laws including secularism, sovereignty, integrity of the nation. They / he should not mix religion with politics. Religious tolerance and fraternity are basic features and postulates of the Constitution as a scheme for national integration and sectional or religious unity. Programmes or principles evolved by political parties based on religion amounts to recognizing religion as a part of the political governance which the Constitution expressly prohibited. It violates the basic features of the Constitution.”