The Supreme Court on Monday decided to place before a Constitution bench the question of whether an extract from the Upanishads – the philosophical treatises of Hinduism – could continue as compulsory prayer song in Kendriya Vidyalaya schools.
A bench led by Justice Rohinton Nariman said the question raised in a public interest litigation filed by lawyer Veenayak Shah was of seminal importance and placed it before the Chief Justice to refer to a Constitution bench of at least five judges.
Kendriya Vidyalayas are schools wholly funded by the central government. Therefore, they come under Article 28 (3) of the Constitution, which says:
“No person attending any educational institution recognised by the State or receiving aid out of State funds shall be required to take part in any religious instruction that may be imparted in such institution or to attend any religious worship that may be conducted in such institution or in any premises attached thereto unless such person or, if such person is a minor, his guardian has given his consent thereto Cultural and Educational Rights.”
The prayer to which the petitioner has referred is a popular extract from the Brihadaranyaka Upanishad. It asks the divine to lead the supplicant from untruth to truth, from darkness to light, from the fear of death to immortality. This has been made mandatory for students. Similarly, a compulsory Hindi prayer song has also been challenged.
The petitioner has argued that children of all religions and even those born into families that are atheist and agnostic are forced to sing these prayers. Given the constitutional prohibition on students being required to take religious instruction, can the Kendriya Vidyalayas insist on holding such prayer meetings every day? The petitioner also contended that prayer songs obstruct the development of a scientific temper in students.
In the past, the Supreme Court has made a distinction between religious education and religious instruction. However, the manner in which the Supreme Court did so clearly placed religion on an exalted pedestal as the fountainhead of morality. This over-emphasis on religious education as the vehicle for inculcating morality has its own implications, a proposition that the court now has a chance to review.
Upanishads and religion
When the matter came up before the court on Monday, Solicitor General Tushar Mehta argued that the hymn “Asatoma Sadgamaya” from the Upanishad has no religious connotations. Justice Nariman immediately pointed out that the hymn is a direct extract from the Upanishad. To this, Mehta, representing the Centre, said the Supreme Court emblem carried an extract from the Bhagawad Gita but it is not seen as religious: the phrase “Yato Dharmas Tato Jayaha” – where there is justice, there is victory – is part of the emblem that hangs over the bench in all court halls.
In his attempt to dissuade the court from taking the case forward, Mehta has clearly missed the point. The Supreme Court does not attempt to impart religious education or religious instruction. More importantly, the court is not an educational institution to come under Article 28 (3).
Justice Nariman has clearly captured the inherent contradiction in the prayer songs. It is settled that Article 28 (4) makes it unsustainable for students to be forced to sing a verse from a religious text. The question for the court to answer now is whether a religious hymn, even if it offers instruction on a universal moral, can be considered anything but a religious instruction.
This question is not new. In 2002, the Supreme Court considered aspects of religious instruction and religious education in depth. It ruled that while religious instruction in government-funded schools is unacceptable, religious education is necessary. It is here that the court has entered a problematic territory.
Religious instruction vs religious education
In 2002, the Supreme Court ruled on a petition filed by social activist Aruna Roy against the curriculum framework prepared by the National Council of Educational Research and Training, which allowed for religious education in schools.
In his separate but concurring opinion, Justice DM Dharmadhikari made a distinction between religious education and religious instruction.
The judge said:
“What has been emphasised is that the religious education imparted to children should be one to make them aware of various thoughts and philosophies in religions without indoctrinating them and without curbing their free thinking, right to make choices for conducting their own life and deciding upon their course of action according to their individual inclinations.”
Essentially, the judge delineated the difference between the academic study of religions and the propagation of religious thought in schools. “What is required today is not religious education but education about religions,” he said.
Justice Dharmadhikari, quoting several experts and philosophers, cautioned against using religion in education. The judge said also said that education about religion must be handled with extreme care. All steps must be taken to ensure that personal prejudice or narrow-minded perceptions are not allowed to distort the real purpose of this endeavor and that no rituals, dogmas and superstitions are propagated under the guise of education about religion.
While this was a straightforward analysis, the judgement seemed excessive in its emphasis on the importance of religion. In his opinion, Justice MB Shah credited religion for being the fountainhead of morality.
He said:
“One should never forget that all the values are derived from ultimate reality supreme power or self- consciousness to which man orients himself. Once faith in that reality is lost, then values lose their meaning. To believe that we have the divide spark in each one of us is the most important eternal value to be inculcated by the small children even before starting their school life. It is acknowledged now the world over that ultimate goal of education is realisation of the treasure within.”
His contention that values lose meaning if faith is lost cannot be sustained constitutionally. In fact, it is contrary to the basic notions of secularism: that the Constitution stands apart and away from religion. While the state is expected to treat all religions equally, to hold the position that there are no meaningful values without faith turns those without faith into immoral agents.
In a political context where religion is used to whip up emotions, exalting the position of religion by devaluing moral systems outside it denigrates non-believers and makes them targets.
Given the context of the debate, when a Constitution bench eventually takes up the question of the Upanishadic prayers in Kendriya Vidyalayas, it will not only have a chance to decide on whether the prayers amount compulsory religious instructios but also revisit the declarations it made in 2002.