By Arshad Mohsin
Last week was a head-spinning spectacle of SC’s bullying, arrogance and immorality to the point where the Brahmin Chief Justice brazenly demolished all religious beliefs and human values and pushed every civilized Indian to the point where they either capitulate or face aggression. As if legalizing unnatural sex (homosexuality) by declaring Section 377 of the Indian Penal Code unconstitutional and constitutionalizing adultery by striking down Section 497 of the Indian Penal Code (IPC) was not enough that the not so honorable SC went on another onslaught targeting Islam.
For the supreme court of India its seems Muslims are lost cause and the govt. must move on with its Hindutva agenda. The SC, it is argued, possesses neither the competence nor the legitimacy to decide what constitutes an “essential practice”; it is not, after all, “the Supreme Court of Hindutva” These criticisms are powerful ones, but in this article, I want to ask a different question. The Constitution does not mention the term “essential religious practice”: it grants protection to the right to practice, profess and propagate one’s religion, not just to engage in the “essential practices” of religion. So where does this concept of “essential / integral part / practice of a religion” comes from?
Essential practices in Islam are those that are enjoined upon in the holy Quran and are accepted by the faithful as a matter of duty and a method of achieving their spiritual upliftment and the fact that such a practice was recently challenged by a dung-headed politician Subramanian Swamy cannot make it any less essential a matter of religion”.
The dissenting Justice S Abdul Nazeer aptly highlights the lack of uniformity, much less clarity, in the mind of the court itself as to what it considers to be an essential religious practice. Does it suit the Supreme Court of India to use such a half-baked, whimsical doctrine as the basis for deciding precious fundamental rights issues of 200 million Indian Muslim citizens?
Can you my dear Supreme Court dare to question whether
1.For Brahmins Janeu daharan is essential/ integral part of Hinduism or not?
2.Idol worshiping is essential/ integral to Hinduism or not ?
3.Demolition of Babri Masjid was essential for the Supreme Court to entertain the case of Ayodhya Temple construction or not ?
4.Public Nudity is essential/integral to Jainism or not ?
5.Filmi songs & loud music is essential/ integral to Hindu Idol immersion or not?
6.The post of secretary/President is essential/integral to a Masjid or not ?
There are thousands of legitimate questions that your lordship can’t answer. The wording of Article 25 responds to your concern. Unlike Article 19, where the main Article lists out the fundamental freedoms (Article 19(1)), followed by the scope of reasonable restrictions (Articles 19(2) – 19(6)), Article 25 starts off with limitations: “Subject to public order, morality and health, and to the other provisions of this Part, all persons are equally entitled to freedom of conscience and the right freely to profess, practice and propagate religion.”
Yes , the Constitution did use the phrase “essentially religious” in the sense that Ambedkar had used it. But the Supreme Court in Modi government is bent on making a key shift in the phrase itself: the word “essential” has gone from qualifying the nature of the practice (i.e., whether it is religious or secular), to qualifying its importance (within the religion) – i.e., from whether something is essentially religious to whether it is essential to the religion. It is a tactical grammatical shift, but with significant consequences, because it allows the Court to define questions that are internal to religion in a judicial enquiry, and thereby define the nature of the religion itself.
The very questions raised by the Supreme Court are violative of the constitution of India and against the fundamental rights of its citizens. The fact that a right as important and sensitive as the fundamental right to freedom of religion is being treated by the Apex Court with such an insouciant attitude, is both disappointing and dangerous, and is nothing but a precursor to the tyrannical rule of injustice that the ruling dispensation of BJP wants to impose in the name of Hindutva.
The most disturbing thing however is that despite a massive public uproar by the Muslim community all across the country Modi administration and its subservient judiciary cares a damn.
If India has turned from an inclusive democracy into an autocracy where even the most essential elements of faith are subject to the whim and fancy of some ignorant fools then we are on the verge of a catastrophe. Because Islam however small or powerless it may appear, is still too big for the Hindutva brigade, however economically overwhelming or militarily dominant, to overpower.
(The author is a Kuwait based Indian writer, he can be contacted at Email : firstname.lastname@example.org.)