Interpretively Moralising Secularism Through the Use of Hindu Theology: A Case Study of Indian Supreme Court Jurisprudence

This paper examines the way in which the Indian Supreme Court has transformed the nature and scope of Indian secularism through an interpretive practice that draws on Hindu theology. As such, this paper argues that the Indian Supreme Court’s reliance on the concept of dharma to interpret the nature and scope of Indian secularism constitutions a process of ‘judicial moralisation’. I define judicial moralisation as an interpretive technique through which judges impart moral meaning into positive law. Building on Dworkinian theory, I will show that judges have used Hindu theology to interpretively reorient Indian secularism from a neutral constitutional principle to one grounded in a specific moral and religious tradition. Drawing on a series of cases, this paper will show that by locating the normative genesis of Indian secularism in the Hindu principle of dharma, the court has recast Hinduism as the moral core of secularism and accordingly, embedded the principle within a religious moral vision which challenges the constitution’s secular character.