Public Interest Litigation, Religion and the Question of Secularity in Contemporary India

Tuesday, 17 July 2018
Distributed Paper
Anindita CHAKRABARTI, Indian Institute of Technology, India
This paper traces the concept of secularity in the Indian context through judicial intervention in religious practices by focusing on a unique jurisdiction of the Indian appellate judiciary known as Public Interest Litigation (PIL). I will take two contrasting PIL cases in recent times where religious practices and institutions have been subjected to judicial scrutiny by invoking PILs. The first case analyses a PIL for banning the Islamic or sharia courts in India. The second case involves a suo moto PIL brought by the Supreme Court of India on the issue of triple talaq (instant divorce) and polygamy permitted under Muslim Personal Law. The question at stake was whether such practices violated the dignity and fundamental rights of Muslim women. The Muslim Personal Law has been at the cynosure of an embattled debate along the lines of gender rights and national integration, premised on the demands for a Uniform Civil Code (UCC) for the nation. Exploring the trajectory of the two PIL cases, the paper shows how the concept of secularity in India is embedded in the perception of the state as the bulwark of social as well as religious reform. Unlike in the western context, here the concept of secularity primarily works through the guiding principle of multiculturalism. Consequently, the judiciary often performs a balancing act between different religious groups, often upholding group rights as opposed to individual rights. It has been also noted how the category of religion has been produced through constitutional law and judicial practices where secularism has been an issue of active judicial intervention in religious affairs. This paper shows how in the current public discourse, the concept of secularity works as ‘subjection of religion to the rule of law’, deftly manoeuvred and articulated through PIL jurisdiction.