The Art of Secularism

Author: Antriksh Mishra, 3rd Year student of IIT Law School, IIT Kharagpur.

"India is my country and I am proud to be its citizen"—one thing which no Indian will think twice before speaking. Now let’s change the parameters a little–"Hinduism is my religion and I am proud to be a Hindu." Now that is something people think twice before speaking. It has happened to me and to many others I know. 

In this post I would try to dwell the reasons for such hesitation. Let’s begin with Art. 25 of the Constitution of India, the famous "Freedom of Religion" clause. Firstly the clause allows "all persons" to "practice", "profess" and "propagate" their religion. This would include all individuals whether or not citizens of India.

The words "practice", "profess" and "propagate" cover any and all religious activities, even asking other persons to join your religion (as long as such joining is without force or consideration) is allowed (as mentioned by K. Santhanam during the Constituent Assembly Debates). And this beckons the question, "Why the hesitation?"

One might say that the answer is more of a psychological nature than legal. I would however respectfully disagree. The answer is more related to Indian Polity and Law than to Psychology.

Let’s start from the common understanding of the word secular and try to answers some fundamental questions.

1. Is being secular the anti-thesis of being religious?

The answer to this is a quite emphatic “No”. If being secular were the anti-thesis of being religious, both of these could not have found place in our Constitution. Secularism as referred to in the Preamble and religious freedom as referred to in Art. 25, as propounded by The Keshvananda Bharti Judgement, find their place in the basic structure of the Constitution. (Notwithstanding my objection on the way the Keshvananda Judgement was delivered, and how Justice HR Khanna's opinion was not similar to that of the other three majority judges, It is still the law of the land.)

2. Does being religious mean you must follow all preaching of a faith?

Again the answer would be an emphatic a “NO”. Take for example Galileo or Darwin, both of them asked questions and were subjected to great persecution, but today Christianity has evolved and accepted (to a certain extent) their theories, while they were devoted Christians till their dying breath. Now for the legal stand lets read Art 19 and Art 25 together, I have the right to free speech (which allows me any question on any religion) and Freedom of religion (which gives me freedom to choose religion), so no one has the right to doubt one’s faith in a religion, or stop him from practicing a religion based on questions raised by a follower. Religion (in theory) must welcome and clear doubts.

3. When one calls oneself proud to be of the Hindu faith does he become a zealot?

And again the answer is  a ”NO”. What faith you follow is a personal question, whether you choose to be vocal about it is a personal choice. As long as you don't hurt another faith how can there be a question of being a zealot. And this is where Politics comes into the picture. Hinduism in India seems to have become synonymous of RSS or BJP or the Babri Masjid incident. But frankly it is not. Not withstanding the fact that RSS ( the then Hindu Mahasabha) was the only organization other than the Muslim league to not take part in the Quit India movement and their chief in 2006 claimed that Quit India Movement was a failure.  In all fairness the public services done by RSS, Hinduism and Hindu extremists are two different things,just as Muslims are different from Muslim extremist. One does not equate the practices in Muslim majority State of Turkey to that of Saudi Arabia then why isn't such a differentiation available for the Hindu faith. As per the principle of equity Hindus have the same rights and responsibilities as the other minority classes in India. And by virtue of being the majority, the Constitution does not bestow upon them, a higher degree of responsibilities than the other faiths.

I am proud to say that I am religious, I am proud to say I am a Hindu and I am proud to say that I am a Bhartiya, an Indian, a Hindustani (which is actually derived from Indus, but Hey! propaganda is spread by use of selective dissemination of facts, as recently) and still I am secular. I respect other faiths, I ask questions about other’s and my own faith and I wish to leave my faith to future generations, evolved, than what it was when I had it. In this regard I agree with Mahatma Gandhi's views.

Disclaimer: This blog or any post thereof is not to be considered to be in any way associated with the official stand of IIT kharagpur or RGSOIPL on the issues being discussed in the said post. The opinions on the blog are the authors own and should not be considered as legal advice.

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The Boys Did Really Well !!

It is official now. IIT Law School will step forward to bring more laurels to the school. The team of Rutwik K.Rao, Vighnesh Kamat and researcher Bibhunanda Mishra stormed into finals of the Oxford University India Moot Court Competition on Constitutional Law 2013-14 organised by The Oxford University Society India alumni group. They have bagged 'the Best Memorial award' as well.

Vighnesh Kamat and Rutwik Rao share their experience very candidly with the blog. Here is the interview..

Blog: First and foremost, many many congratulations to you for this tremendous success and we all thank you for bring great pride to RG. 

                                      

Vighnesh: Thank you.                      Rutwik: Thank you very much.

Blog: How do you feel about your success in the Oxford University India Moot Court Competition 2013-14?

    Vighnesh: It is only when you participate in such competitions; you realize the level of talent outside and appreciate the learning experience gained in IIT.      

    
"I am glad to have reached the Finals; we attribute all of this success to our professors."

    Blog:  What were the teams you were up against?

Vighnesh: We were against Christ College, Bangalore and Jindal Law School in the prelims. We went against Christ College, Bangalore in the quarters, and NLSIU, Bangalore in the semis. We were pitted against Faculty of law, Delhi University in the finals.

  Blog: Which team in the competition was most fierce in their arguments? 
      How did you tackle them? How were the Judges during their interventions?

 Rutwik: Of all the rounds and teams we faced, I think the team from Christ College Bangalore in our quarter finals was the best. A good opponent brings out the best in you, they say. They brought out the best in our team too. That I think was also my personal best so far. The judge in that round really appreciated both team’s arguments and he would smile in acknowledgement, every time we came up with a creative argument. Arguing in the quarter final round tested us to the limit and we stood the test. Great fun!!

We came across OP Jindal Law School in our prelims, one of their speakers spoke really well, and later after the round I could not resist asking her about her “performance”. She told me she memorized everything. Kamat and I were pretty surprised and kinda impressed by her ability to remember so much.

"We operate very differently, Kamat and I. We are more spontaneous. We are extempore speakers. We think on our feet and this helped us when the judge posed all sorts of questions." 

 Since we hadn’t memorized anything, there was nothing to forget! 

    Blog:  According to you, what was the most challenging part of the Competition?

Vighnesh: The whole schedule was very hectic such that we had the qualifying rounds till the afternoon and then the quarter rounds at 7 pm. It was not the rounds but the wait which drained us throughout the day. 

"Maintaining tenacity under such circumstances was the most challenging part."

Blog:  How was your final Round Competition against University of Delhi? What strategy did you adopt while approaching the finals?

Rutwik: The Moot problem was beautifully drafted, I must say. There was ample scope for some brilliant arguments from both the sides and it was based on the Judicial Appointment Panel, which also happens to be the burning issue in the nation with the introduction of the Judicial Appointment Commission Bill, 2013.

"The only strategy we had in mind, which I think served us well was to stick to the facts, the law point and make submissions backed by relevant authority."

We were the appellants in the final round. The problem involved Art.124 (2) and its interpretation, and the amendment thereto, along with the introduction of Article 124A to the Constitution by way of an amendment under Art. 368.

The issues were whether the SC had the power to invalidate the amendment to the Constitution which complies with Art. 368, since the Union of India appealed the order by the SC which struck down the amendment as being unconstitutional by invoking the Basic Structure Doctrine.

On a preliminary reading, the respondent’s side appears to be stronger since there is judicial precedent in favor of the Collegium system and prima facie the amendment appears to be hit by basic structure doctrine laid down in Keshvananda Bharti case.  

While making the arguments on behalf of the Union of India (Appellant), we took a practical approach and as tempting as it was, we decided not to challenge the basic structure doctrine. Given the judicial precedence in its favor and challenging it would prove to be a futile exercise.

This was strategic since the respondents side assumed that we would challenge Kesavananda Bharti case which we did not. Instead we admitted to the Basic Structure Doctrine and set out to establish that the said amendment did not violate the basic structure and since it was in compliance with Art 368, it could not be invalidated.   

"So yeah, we thought out of the box and worked our way within the doctrine."

This approach helped us come up with some really brilliant arguments and we turned our handicap into our strength.

    Blog: Any major takeaways of the prelims that helped you in the advanced                   rounds of the competition?

Vighnesh: We learnt from the questions which were being asked to us as well as the rebuttals in the prelims and we incorporated those answers in our arguments in the subsequent rounds, so that such questions don't arise and are answered beforehand. In this way the opponents are also thwarted because their contentions have already been answered by us.

    Blog: What advice will you give to the other mooters?

Rutwik: My advice based on my limited exposure to Mooting would be to focus more on the facts, the law point and logic. Base your arguments on the same and back them up with authority. I believe reliance should be placed on judgments more than articles and critics opinions. Critic’s opinions are just that, “opinions”. They are not authorities which are binding or even persuasive. A lot of teams we came across in the Oxford Constitution Moot placed reliance on news articles, books and biographies and statements of retired judges etc. None of which is of much consequence in the court of law.

Also, one must understand the importance of thinking on your feet when it comes to mooting. Be open minded, good arguments will come. Take rebuttals seriously, it’s your last chance to leave an impression on the judge’s mind and improve upon any mistakes you may have made earlier.

Petitioners/Appellants must stick to facts and law points and the Respondents/Defendants must counter the arguments put forth by the Petitioners/Appellants.  

"After all, it’s an argument and not a presentation. Your focus must not be on finishing your speech in front of the judge. Instead your goal must be to satisfy any and all questions the judge might have for you."

Pick your team well. When you work with likeminded people, you’re half way through.

Remain calm. You’ll see things clearer. Specially the speakers.

"Finally, when it comes to mooting, there is no single strategy which works, you’ve got to evolve your own strategy; that will come with practice."

       Blog: And finally, describe your entire moot court competition experience in       one sentence.

Rutwik: It’s a thrilling experience, I highly recommend mooting for everyone, you’ll get a glimpse into what it feels like to be a lawyer. Researching, strategizing and finally arguing, the entire process gives you a high, its addictive I think.

Vighnesh: “The boys did really well.” (Both Laughs!!)

     Blog: Thank you very much for talking with the IIT Law Blog. Your experience will be helpful for us all. We wish you best of luck and great success ahead.

Rutwik: Thank you!!

Vighnesh: Thanks!

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