So, this is the argument that is presented on behalf of the petitioners who are challenging the legislation, the Andhra Pradesh legislation with respect to its constitutionality. It says ‘The main thrust of the arguments of the learned council for the petitioners is that Articles 25 and 26 guarantee freedom to manage religious affairs and right to freely profess practice and propagate the religion to all citizens alike. Hindus constitute majority population. Hindu religion is the major religion in the country, equally Muslim, Christian and Parsi citizens are entitled to the same constitution rights under Articles 25 and 26 without touching the administration and governance of charitable or religious institutions or endowments founded or maintained by Muslims, Christians or Parsi’s making law, regulating the administration of Hindu religious institutions and above endowments offends articles 14 and 15 which deal with equality’ , this is the argument that was made.
It is also contended that when a denomination which is a part of the major religion is protected by article 26. The major religions themselves as genus are equally entitled to protection under article 26 which is to say, if Vaishnavites are entitled to protection under a certain provision of the constitution, Hindus as a whole are equally entitled to same protection because Vaishnavites form part of Hindus. Institutions belonging to them cannot therefore be regulated under the law offending their right to religious practice. This is the argument that was, in essence, made.
Let’s see what the Supreme Court says, and this will remind you of certain arguments that have been made with respect to other aspects of the Constitution. The first question is whether it is necessary that the legislature should make law uniformly applicable to all religious or charitable or public institutions and endowments established or maintained by people professing all religions, now here comes the secular narrative. In a pluralist society like India in which people have faith in their respective religions, beliefs or tenets propounded by different religions or their offshoots, the founding fathers while making the constitution were confronted with problems to unify and integrate people of India, professing different faiths, different caste, so on and so forth. The directive principles of the constitution themselves visualise diversity and attempted to foster uniformity among people of different faith. A uniform law though is highly desirable, enactment there off in one go perhaps may be counterproductive to unity and integrity of the nation.
In a democracy governed by rule of law, gradual progressive change in order should be brought about, you see some sentiments are more important than others. Making law or amendment to a law is a slow process and the legislature attempts to remedy where the need is felt most acute, so, the judiciary feels that remedy is most imperative when it comes to Hindu institutions, you see , that is the logic, that is how we interpret pluralism, that is how we interpret Secularism, that’s how we enforce constitutional mandates and values in this country.
The point that we have to understand is this, this question which was addressed in 1966 continues to be relevant in 2016 and the one question that we are entitled to ask, is that are you saying that in the last 50 years other societies and other communities have not become amenable to application of similar legislations. It’s been 50 years. This was in 1966, we are in 2016. Understood that in 1966 after 19 years of independence you are saying that I think Hindu institutions need most interventions, are you saying post 50 years of the judgement that the situation still says it’s only Hindus who need this.