Plea for Sanskrit prayers at Kendriya Vidyalayas begs for honest judicial, political test of Indian secularism

Is it against the Constitution for the Kendriya Vidyalayas, institutes which are funded and managed by the government, to insist on students beginning their day with a Hindu prayer?

Among the many burning questions concerning the relation between the Constitution and the religious practices of the followers, this one seems fairly innocuous. Men are being killed across North India for being Muslims (even though it is being dressed up as “cow protection” or “crime prevention”). Women are fighting for their right to enter a temple which, by law and the judgment of the Supreme Court, they are entitled to. The government of the day insists that it has the power to determine which refugees of which countries it can grant citizenship to based solely on their faith — which says nothing about the debates over personal laws, triple talaq, and many, many more issues that have dominated discussions across the country.

When seen in this context, it is tempting to trivialise the writ petition filed by advocate Veenayak Shah asking the Supreme Court direct the Union Government to stop the practice of prayer in Kendriya Vidyalayas. After all, where’s the immediate harm here? It is not as if religious education is being offered to students in lieu of regular education. No one is required to renounce their previous religious affiliation in order to be part of this. And it is debatable, as Solicitor General Tushar Mehta sought to contend in court , whether simply because certain universal values happen to be mediated through Hindu religious texts, it would automatically become “religious instruction”.

A bench of Justice Rohinton Nariman and Justice Navin Sinha did not fully agree with Mehta, and have referred the matter to a Constitution bench holding that a substantial question for the interpretation of Article 28(1) of the Constitution has been raised by the petitioner. Clause (1) of Article 28, one thinks, is fairly clear :

“No religion instruction shall be provided in any educational institution wholly maintained out of State funds”.

Instruction on religion is prohibited in state run schools such as the KVs but the bare wording of this clause was somewhat contentious in the Constituent Assembly. On one hand were those such as Mohammad Ismail Khan and Shibban Lal Saxena who were quite disconcerted by the strict prohibition in the draft article and suggested weaker bans. On the other were Prof KT Shah and Sardar Bhopinder Singh who felt that the proposed draft article did not go far enough and ought to cover even more institutions than it intended to. After much debate, where Dr Ambedkar stuck to his guns about the content and shape of the article, contending that questions of interpretation as to its true scope should be left to courts, the article as we see it, was adopted.

If there was any doubt as to what exactly was prohibited, just as Dr Ambedkar wished, the Supreme Court in Aruna Roy versus Union of India clarified that such a prohibition would extend to “teaching of customs, ways of worship, practices or rituals”. This was a case where the National Education Policy 2002 issued by the Atal Bihari Vajpayee-led NDA government was challenged in the Supreme Court as being unconstitutional and upheld by the court. Given how categorically the Supreme Court has clarified the scope of Article 28 (1) one would think that the matter should rest there (notwithstanding some bizzare justifications offered in the judgement as to why learning about religions is good for students).

But does it?

While the Constituent Assembly and the Supreme Court spent much of their time on discussing syllabi, what the Supreme Court now faces is an out-of-syllabus question (pun-intended). Is the morning assembly routine part of the “education” that a school imparts? Would the content of the morning assembly routine fall within the scope of “instruction”? Is being compelled to recite a prayer part of one’s “education”?

No doubt, as Justice DM Dharmadhikari points out in Aruna Roy, secularism generally under the Indian Constitution is not the negation of religion in India but it also means that the Indian state cannot be seen to be favouring one religion over the other. If one were to take the line of reasoning taken by the US Supreme Court in Engel versus Vitale , any prayer in school would amount to this. Even making it optional would not meet the rigorous constitutional test in such a case.

There are of course reasons not to adopt the US Supreme Court’s approach on the matter in the context of India — for one, the “Establishment Clause” in the US Constitution is quite different from the various articles dealing with secularism under the Indian constitution. For another, the Indian state runs temples, regulates wakfs, mediates disputes between warring factions of churches on principles of canon law, and recognises the rights of religious communities to be governed by their religious dictates on personal laws - all things unthinkable in the United States.

What this case possibly calls for is an honest judicial and political examination of what is the nature of the Indian secularism. For one end of the political spectrum, it is a hateful word preventing, as they see it, the natural order of things: Hindu supremacy. For the other, it is a word that harks back to a certain Nehruvian aloofness from religion and embrace of atheism. At a time when the forces of Hindu supremacy are clearly on the ascendant, the constitutional position of secularism needs to be clearly and forcefully articulated. This is not just a matter of semantics or linguistic explanation - it is an articulation of what kind of India we want to live in.

Even if the framers of the Constitution did not put the word “secular” into the document, they knew what kind of society and state they wanted India to be. The question that Veenayak Shah is asking through his petition, really is this: “Do we?” The answer may be mediated through constitutional law and principles, but perhaps Justices Nariman and Saran were acutely aware of this, and rightly referred it to a Constitution Bench.