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An estimated 2-minute read

Prafull Goradia V. Union of India - Secular Judgment to Savor

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As an outsider to Law (Engineer in US), I was pleased with yet another fantastic judgment from the Supreme Court of India's Division Bench of Honorable Justices Markandey Katju and Gyan Sudha Misra on Prafull Goradia V. Union of India case today. Here it is in TOI:


The Division Bench dismissed Petitioner's claim of Haj subsidies by the Government as unconstitutional.


It was an interesting asseveration by the Bench that Article 27 can be interpreted in basically two ways: Either the statute states that the taxes are expressly being collected to serve the purposes of a particular religion OR a generic statute that levies taxes for general purposes diverts substantive portions of those taxes to serve the purposes of a particular religion.


In this case, as the Division Bench pointed out, no such violation was made out in order to substantiate the claim of Unconstitutionality. At a time when partisanship rules high in Washington with potential gridlocks in the form of litigious suits, the learned Bench's quote of former US Justice Holmes, "The interpretation of constitutional principles must not be too literal. We must remember that the machinery of the government would not work if it were not allowed a little play in its joints”, was not only thought-provoking, but, very respectful of non-interference into the affairs of the Government.


Having been a long-time resident of the US, Division Bench of Justices Katju and GS Misra's argument that the "Principles of interpreting the Constitution are to some extent different from those of interpreting an ordinary statute", to me, struck very familiar the ideological divide of two main Judicial philosophies right here in Washington DC. While Conservative Justice Antonin Scalia believes in textualism of laws and originalism of Constitution wherein interpretation as per modern Zeitgeist isn't cool, Liberal Justice Stephen Breyer believes just the opposite. Besides, the current Judgment has a liberal citation of foreign Jurisprudence, which echoes more of Justice Stephen Breyer's school of thought. Further, the Division Bench owed some of its leanings on the matter by liberally citing former US Supreme Court Chief Justice John Marshall (1755-1835)


By highlighting the fact that the Petitioner did not quantify the level of proceeds being diverted towards subsidization of Haj, the Division Bench was able to easily pulverize the Petitioner's claims. It even mildly admonished Petitioner by saying his allegations were "vague". For the record, barely a paltry 0.13% of the levied taxes were used for this purpose. As the Calcutta Telegraph reports, "In Parliament last year, foreign minister S.M. Krishna had put the Haj subsidy at Rs 611 crore for 2009-10. The figure is just 0.13 per cent of the Rs 4.65 lakh crore (revised estimates) the Centre collected in taxes in the same year."


The Bench's punctilio was evident when it put bluntly: The object of Article 27 is to maintain secularism, and hence we must construe it from that angle.


As is emblematic of Honorable Justice Markandey Katju to make edifying observations, the parting comments of the Judgment are given wide coverage by the Press today. Here, both the Justices solidly avow their faith in Secularism and how it has made India for what it is by citing the moral dilemma that existed during Partition.


Their implied notion that, for India to subsist and exist as a nation of variegated diversity, secularism is not just an ideological and expedient choice, but essentially a sine qua non


That, I think, has made this a secular judgment to savor.


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Like +0 Object -0 pronoy 29 Jan 11, 22:54
Well done, nicely observed. You being a person from non-legal field could observe the judgement so nicely, it really pleased me. Thanks
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Like +0 Object -0 rexarul 29 Jan 11, 23:04
@pronoy - Thanks for your kind words. Much appreciated.
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Like +0 Object -0 Anonymous guest 29 Jan 11, 23:09
For the Kailash Mansarovar Yatra, the Centre gives a subsidy of Rs 3,250 per pilgrim totalling its expenditure to Rs 32.5 lakh. In contrast, it gives a subsidy of Rs 28,000 towards air fare of each of the one lakh Haj pilgrims entailing a total expense of Rs 280 crores on this count alone.

cant you see the disparity ?
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Like +0 Object -0 rexarul 29 Jan 11, 23:46
Disparity can be viewed from many angles: Disprity in Distance between the two locations AND the disparity in the number of pilgrims to those two locations. And besides, if you read the full judgment, you'll see that the Bench had pointed out that the Government is wiling to support more such programs as per the need for any group within the ambit of law. So, I think the Justices merely wore the legal hat, instead of the MBA hat :-) Cheers.
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Like +0 Object -0 Anonymous guest 30 Jan 11, 07:55
Thank you for your post.

"Textualism" is a new interpretive approach. It is an extension of the "logical positivism" of the early twentieth century philosophers, but it is not an approach, as pointed out by Justice Breyer, either accepted nor advocated by any of the eighteenth century authors of the U.S. Constitution. It would have been a preposterous notion to the founders who were students of Blackstone and adherents of English common law traditions.

"Textualism" has caused great mischief when it has been applied. Its adherents on the Michigan Supreme Court have reversed decades of precedents using the pretext that all the previous justices got it wrong because they did not follow this newly invented approach. Unfortunately, instead of promoting a more objective approach, free from judicial activism, it has yielded the opposite result. The textualists have become very proficient at arbitrarily cherry picking definitions and grammatical approaches to bring about the result they want.
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Like +0 Object -0 Anonymous guest 30 Jan 11, 08:15
The court would have done better by consulting the Islamic law as well which forbids Muslims willing to perform Haj and Umra taking any financial help from others especially a non-Muslim state. Haj subsidy originated apparently after 1965 war.
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Like +0 Object -0 Guest 14 Aug 11, 08:18
I do not dispute that secularism maintenance is the foundation of Article 27. I do not agree with the undercurrent that India is a country of "immigrants much like North America". There are fundamental differences in the demographic compositions of North America and India. Firstly, India has been a continuous civilization for at least 8000 years now. In all this time, India has been a monolithic culture. Secondly, the religious change in the last four hundred years is a result of conversion, not immigration. The muslims living here are Indians that are privy to the 8000 year history of their existence. This cannot be said of the Europeans populating much of North America today.
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Like +0 Object -0 Thomas Wood 31 Mar 13, 01:19
The Judges of High Court and the Supreme Court have to wear the legal and secular hat because they have to look for greener pastures after retirement.One can only make out the quality of their legal hat by the rantings of Justices Markandey Katju for the pardon plea for a super star.
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