Introduction

The Supreme Court of India (SCI) in a bench comprising the new chief justice of India (CJI) has recently upheld the Samuel Kamalesan judgment of the Delhi High Court (DHC), where a lieutenant in the 3rd cavalry regiment of the Indian Army comprising three squadrons of Sikh, Jat, and Rajput, had challenged his dismissal from the Indian Army. This case has almost gone unnoticed in media, but it raises a very important question of human rights versus military ethos.

Samuel Kamalesan challenged his dismissal from the Indian Army mainly on the ground that the respect to the religion of others doesn’t extend to adopting the religion of others. On the other hand, Indian Army called not attending the religious parade of the regiment in the ‘Sarv Dharm Sthal’ inspite of directions and counseling from superiors as a misconduct calling for the summary dismissal from service without any court martial proceedings.

Disputed Facts

There were disputed facts with respect to the status of the religious place and the extent of absence of Samuel Kamalesan from the religious activities of the regiment. Samuel Kamalesan claimed that there was no ‘Sarv Dharm Sthal’ or a secular worship place in the regiment. He claimed there was only a mandir (a Hindu temple) and a gurudwara (a Sikh temple). He further claimed that there was no church in the premises. Further, he claimed that the term used was also “Mandir Gurudwara Parade”. He claimed he took part in all religious activities except presence in the innermost part/sanctorum of the temple when puja/havan/aarti (religious rituals) were taking place therein. This he did in order to respect his own religious conscience as a christian as well as those of his troop members who were mostly Hindus or Sikhs. On the other hand, the Indian Army claimed he was lying and didn’t take part in any religious activity. Further, the Indian Army claimed there was a church as well in the premises, and the place was indeed a secular worship spot.

Indian Secularism

A clarification about the Indian concept of secularism is pertinent here. The Indian Constitution doesn’t define secularism as atheism, which is the universally understood meaning of secularism. It defines it more as pluralism, where the state is a participant in religious activities, promoting and accepting religious diversity thereof. Further, there is constitutional guarantee to every person in India to practice his religion as a fundamental right. This concept of secularism is unique to India. It is in this context Indian Army made its claims for inclusion of Samuel Kamalesan in religious activities of the troop as a secular soldier of the Indian Army. And it is in the same context as well that Samuel Kamalesan made his claim for exclusion from the core religious activities of the other religions as an essential christian practice of following monotheism.

Court Deliberations

The SCI summarily dismissed the special leave petition without a reasoned order albeit upholding the reasoned order passed by the Delhi High Court (DHC) in the matter. Thus the DHC judgment is the articulation of the court’s mind. DHC held the directions/commands of the superiors as lawful. It further held that the summary dismissal was expedient and practicable as not doing so would have created unnecessary controversy in a matter touching upon religious sentiments. Further, it held that it was not a matter of religious freedom of Samuel Kamalesan at all. It was rather a case of the contempt of the lawful command of a superior. It found military ethos getting compromised in a situation where religious activities of the troop are not participated in “FULLY” (emphasis supplied).

Though the DHC didn’t decide the disputed facts in so many words, but the use of the word “fully” in para 72 of the judgment makes it abundantly clear that even if the disputed facts are deemed decided in favor of Samuel Kamalesan, the decision would be same. Though the DHC dedicated many paragraphs to explaining the power of the parliament to limit the fundamental rights of the members of the armed forces, but I find it completely irrelevant when the parliament has indeed not made any law requiring the member of the armed forces to adopt the core religious activities of other religions as a member of the armed forces, and the DHC also clearly stated in para 67 of its judgment that “the question is not of religious freedom at all”.

The Core Issue

So, the core issue arising in the case was whether the adoption of another religion is part of the necessary military ethos of the Indian Army, which can be enforced by the command of a superior, and therefore any such command would obviously be lawful. The SCI and the DHC have obviously held it to be so, but I fail to digest it because the DHC didn’t even deliberate this issue. Vide para 70 of the judgment, it opined that it is only for the military leadership to decide what are essential military ethos, and the court can’t second guess the same. The court didn’t find anything manifestly arbitrary and therefore didn’t intervene by applying civilian standards to military ethos.

The Problem

The problem in the judgment lies at many levels, but even intuitively, it is repulsive to think that a secular force should command adoption of core religious practices of another religion to maintain military ethos. The only reasoning in support of such an adoption is that Indian Army is divided into various regiments, which have their war cries based on religion like ‘Bole So Nihal, Sat Sri Akaal’ for sikhs and ‘Bol Bajrang Bali Ki Jai’ and ‘Raja Ram Chandra Ki Jai’ for rajputs. If military has to be treated as a sacrosanct entity, out of bound for civilians, anything including this judgment can suffice, but the question is, is it really so sancrosanct that it can’t be questioned at all. I think, by not questioning the Indian Army on such a crucial issue, Indian Judiciary has put its own sanctity at stake, which is definitely problematic.

The Real Issue

The real issue is that Indian Army is not a secular force. I have tweeted so in the past also. If the Indian Army were a secular force, there would have been at least one regiment whose war cry would have been ‘Allahu Akbar’. To be fair to Indian Army, there is indeed no regiment in Indian Army which has majority muslim population. J&K Light Infantry, I think, has the highest muslim population of 50%, and its war cry is ‘Bharat Mata Ki Jai’. But that is the problem. If you are defining secularism in such a manner that it celebrates diversity, then you should have adopted ‘Allahu Akbar’ for J&K Light Infantry. The issue is that the Indian Army adopted the practices of the Britishers, who deliberately polarized the British Indian Army on religious and ethnic lines. But, it could not have allowed ‘Allahu Akbar’ as a war cry of any of its regiments because it is the war cry of the Pakistan Army.

Conclusion

Till now, such an issue never arose in Indian Army either because no officer objected to such a practice or because such things were kept under wraps by tolerating such aberrations from officers. Now, the environment in India is different. The military has got influenced by both the Hinduntva nationalists and the secularists. The polarization in the civil society has reached the military. The military might have tried suppressing the boil by denying a fair trial through a court martial court, which was obviously due in the spectrum of such disputed facts. The courts may have also upheld the suppression by ignoring the dispute completely by terming the apparent case of religious rights as a matter of military ethos. But the fact remains this fault line has appeared wide and clear.

This time Indian Army might have succeeded in obfuscating the issue through the complying judiciary, but the next time a different judge may conclude that there can be no different standards for application of human rights in military, and military ethos, if any, are also subject to the common standards applicable to human rights.