June 13, 2021

Indian Secularism

Constitution of India

Introduction

Justice Verma have quoted “Sarwa Dharma Sambhava’ i.e., tolerance of all religions. This reasoning seems to be odd: of justifying secularism by religious scriptures.”

India is well known for in diversity and have world’s largest democracy. It comprises multi-lingual, multi-ethnic, multi-religious and their multitude problems. The demography of India is very unique and evidently difficult to maintain. With such diversity ,it become impossible to promote and protect the interest of every individual  but bow to that Indian constitution have survived for near about 70 years and it is still going strong and becoming better every day. Although term ‘secular’ was added in 1976 but it is not wrong to say that Indian constitution was way more secular even without mentioning the term. To impose and practice principle of secularism in population, who have religion imbibed too deep is not an easy task.

No doubt there have been certain instances which have tarnished the image of Indian secularism; communal riots. But if studied deeper, there was never a conflict because of constitutional provision rather it was in most instances political motivated or in furtherance of their political ambition.

Secular policy promotes tolerance and saw every individual as human being rather religion of that person. Indian secularism is very unique as it doesn’t act as atheist who is against any religious policy rather it creates a level playing field for every religious community to practice, profess and promote its religion. State act as the neutral umpire and favor no one but protect the oppressed while promoting their interest and prohibit the oppressing the dominative tendencies  irrespective of majority or minority.

But nowadays voices are raised to remove this neutrality of state. Being blamed for discrimination and in name of constitutional morality, state is promoting minorities and exploiting the majority which has resulted in severe resentment in mind of people which in turn promote religious hatred and segregation.

Although highly disagreed with the questions being raised on secularism. Ironically secularism is the only reason for the social and religious solidarity present in the Indian society.

Origin

A basic definition, the word secular means “of this world” in Latin and is the opposite of religious. It was originally present in many ancient philosophies of Greeks, roman and Indian scholars who have made reference to rationality above religion but it got concrete form during period of renaissance and enlightenment, which was evolved to maintain the peace between several Christian groups.

Then the term was coined by British writer George Jacob Holyoake to describe his views of promoting a social order separate from religion, without actively dismissing or criticizing religious belief.

Types of secularism

 There are five major kinds of secularism:

Structural Secularism: Most of the important structures of society, its core economic and institutional modes of organization, ought to be independent from religion. The number of social institutions that religions can effectively control or seriously influence ought to diminish.

Ethical Secularism: The ethical principles guiding society ought to be free from religious control or orientation so that the worldly welfare of humanity takes priority. Humanism’s defense of equal and universal human rights is an obvious example. There are three major sub-kinds ranging from conservative, progressive, and pioneering ethics.

Legal Secularism: The foundational political doctrines and constitutional articles ought to separate government from religion. Government must be able act autonomously from all churches and government can impose impartial justice on all citizens regardless of their religious views.

State-Sponsored Secularism: Government ought to use its powers to positively discourage religious belief. There should be many laws authorizing all social institutions from education to media to extensively contradict and deride religion.

Militant Secularism: The combination of the four other secularisms (structural, ethical, legal, and state-sponsored) all carried out to their furthest limits. The ideal goal of militant secularism is the gradual eradication of religious belief in society, so that all people are atheists in practice and apathetic towards religion.[1]

Indian secularism is the mix of all five major types of secularism. It respect very religion and Welfare of its human is ultimate objective.

Freedom of Religion

U.S.A

The First Amendment to the U.S. Constitution says that everyone in the United States has the right to practice his or her own religion, or no religion at all.

This amendment further gets strength from 14th amendment make U.S Constitution secular. It allows any person to practice and profess.

Braunfeld v. Brown (1961): The Supreme Court upheld a Pennsylvania law requiring stores to close on Sundays, even though Orthodox Jews argued the law was unfair to them since their religion required them to close their stores on Saturdays as well.

Lemon v. Kurtzman (1971): This Supreme Court decision struck down a Pennsylvania law allowing the state to reimburse Catholic schools for the salaries of teachers who taught in those schools. This Supreme Court case established the “Lemon Test” for determining when a state or federal law violates the Establishment Clause—that’s the part of the First Amendment that prohibits the government from declaring or financially supporting a state religion.

In 2017, federal district courts struck down the implementation of a series of travel ban orders by President Donald J. Trump, citing that the bans—which discriminate against the citizens of several Muslim-majority nations—would violate the First Amendment’s Establishment Clause.[2]

Europe

European Charter of Fundamental Right provides religious freedom in:

Article 10

Freedom of thought, conscience and religion

1. Everyone has the right to freedom of thought, conscience and religion.

2. The right to conscientious objection is recognized, in accordance with the national laws governing the exercise of this right. The law seems to be very neutral and very secular giving equal opportunity to everyone to profess and practice their own religion.

 China

Freedom of religion is supposedly guaranteed under China’s constitution. Article 36 of the Constitution protects freedom of religious belief and “normal religious activities” as long as they do not “disrupt public order, impair the health of citizens or interfere with the educational system of the state”.

Indian Secularism

The term secularism is derived from western terminology which in literal sense signifies separation of state from religion. Meaning thereby state is neither pro religion nor anti religion. India have completely different demographic situation.

As observed by late Smt. Indira Gandhi, “Secularism is neither a religion nor indifference to religion but equal respect for all religions”[3], not mere tolerance but positive respect- without it, there is no future for the nation”.

“Indian secularism” today possesses no single meaning and if try to accommodate in fewer words it will be unjust to its grandeur. According to Dr. Radar Krishnan, no religion should be given preferential status or unique distinction, than no one religion should be accorded special privileges in national life or international relations, for that would be a violation of the basic principles of democracy and contrary to the best interest of religion and Government[4].

‟Religion is a personal matter which should have no place in politics.’’[5]

Many laws in India are inspired by this philosophy which prohibits the use of religion as vote bank politics.

Pundit Lakshmi Kanta Mitra throws some light on meaning of provisions as provided in constitution,

“Secular State, as I understand it, is meant that the State is not going to make any discrimination whatsoever on the ground of religion or community against any person professing any particular form of religious faith. This means in essence that no particular religion in the State will receive any State patronage whatsoever. In other words in the affairs of the State the professing of any particular religion will not be taken into consideration at all. In the exercise of this fundamental right every community inhabiting this State professing any religion will have equal right and equal facilities to do whatever it likes in accordance with its religion provided it does not clash with the conditions laid down here.’’

Constitutional provisions

India is a secular nation and it guarantees religious freedom and right of propagation expressly and there seems no interference by the state in the religious matters unless or until it’s not violating basic human rights or having impact on health and public order.

Equality and non-discrimination

  • Article 14 of constitution provides that state shall not deny any person equality before law and ensures equal protection of law within the territory of India.
  • In article 15 , it have been expressly mentioned which was impliedly held in article 14 , state shall not discriminate against any citizen on grounds of religion , race , caste, sex and place of birth .
  • Article 16 goes further and promote equality of opportunity for all citizens in the matter of employment and opportunities and no citizen on basis of religion shall be discriminated.
  • Although in above article reasonable protections are provided and benefits of reservation is provided but it’s not on basis of religion , it is not a favor or arbitrary rather its intelligible in order to protect and uplift the lower sections of society and fulfill principles of socialism and inadvertently it promote secularism .
  • Traditional and deep rooted concept of untouchability was abolished by article 17 of constitution.
  • Article 23 (2) provides that when state imposes any compulsory service on citizen for public purpose, there shall be no discrimination on basis of religion

Freedom of religion

  • Article 25 provides that all persons are equally entitled to freedom of conscience and the right to freely profess, practice and propagate religion. But this right is restricted in the sense that it should be subject to public order, morality, health and the other provisions of the constitution. State can pass laws providing for social welfare and reform also to regulate or restrict any secular activity that is economic, financial or political etc. even if it may be traditionally linked with religion.
  • Every religious denomination or any section thereof has the right to manage its religious affairs; establish and maintain institutions for religious and charitable purposes; and own acquire and administer properties of all kinds as provided under article 26
  • Article 27 discuss about the freedom as to payment of taxes for promotion of any particular religion by virtue of which no person shall be compelled to pay any taxes.
  • No religious instructions shall be provided in the school wholly maintained by the state funding as provided under article 28.
  • Religious and linguistic minorities are free to establish and administer educational institution of their choice which shall not be discriminated by state on matters of granting aid or compensation as given under article 30.
  • Article 29 provides that every section of the citizen having a distinct language, script or culture of its own have the right to conserve the same.
  • Article 51A (e) provide that it is the fundamental duty of all citizen to promote harmony and the spirit of the common brotherhood amongst all the people of India transcending religious, linguistic regional or sectional diversities

 Community specific constitutional provision

  • Article 48 , provides that state have to take steps to prohibit slaughter of mulch animals , although scientific interpretation can be made out of the provision but given a communal color it’s for the protection of Hindu faith as they considered cow as deity .
  • Explanation 1 of the article 25 allows wearing and carrying of kirpan as essential practice of Sikh religion. This doesn’t meant that state is favoring any religion, rather its providing protection to the religion group to maintain its identity and enabling a person to profess his religion.
  • Article 290 A provides for the grant of specified annual maintenance or allowances to be given from state exchequer for the upkeep of Hindu temples of a certain denomination in two south Indian state  of Kerala and Tamil Nadu 
  • Special provisions of transitory nature is provided for Anglo Indian community Articles 331, 333, 336, 337 

Legislative provisions on religion

Indian secularism is about balance between , any person enjoying his religious identity and having full freedom to profess and propagate as well and protection and limitations been provided by the state .

Anti-conversion laws

Before independence there were anti conversion laws to protect local people from conversion into Christianity but after independence there is no such legislation by center.

Some of them are as follows   

• Orissa freedom of religion act 1967

• Madhya Pradesh freedom of religion act 1968

• Arunachal Pradesh freedom of indigenous faith 1978

• Gujarat freedom of religion act 2003

• Chhattisgarh freedom of religion act 2003

• Rajasthan freedom of religion act 2005

• Himachal Pradesh freedom of religion 2006

Communal offences

• Indian penal code:

Section 153-A AND 153-B provide penalty for promoting enmity between different groups on grounds of religion , race , place of birth and doing of act prejudicial to maintenance of harmony.

Provision was struck down in 1951 by Punjab high court as it was violates article 19 (1)a but after first amendment act when reasonable restrictions were provided in the article 19 (2) then its constitutional validity was upheld . Kedar Nath Singh v State of Bihar [6]

Section 295 prohibits injuring or defiling a place of worship with an intention to insult the religion of any class of persons

Section 295A provide any deliberate and malicious act intended to outrage religious feelings of any class of persons by insulting their religion or religious beliefs is penalized

Section 296 provide prohibition for disturbing a religious assembly lawfully engaged in the performance of religious worship or ceremonies

Judicial Attitude

Indian judiciary is the one of the reason that secular principles and idealism which was in the mind of constitutional framers remain intact and constitutional governance is a living reality. Supreme court have made sure that every religion related legislation shall not create obstruction for any other religious practices and more over it shall be abiding by the constitution. Here are some cases which illustrates the previous lines:

  1.  Krishna Singh v. Mathura Ahir [7]

 The Supreme Court of India denied interfering in the religious custom denying the lower caste Hindus to take sanyas. The profession of religion should be a very personal choice. Any established religion cannot compel to have a faith in particular religion. No doubt propagation of religion is also fundamental right of citizens; Profession religion should be by choice of individual.

  •  Church of God (Full Gospell) in India v. K.K.R Majestic Colony, Welfare Association[8]

The church of God claimed it as fundamental right of church to practice of religion. They are exercising fundamental right. The apex court of India held that Church of God cannot claim it as matter of fundamental right because freedom of religion is subject to the rights of others and health of the citizens. There is no compromise on the issue of health of citizens. If any activity of religion which will or likely to be hamper the health condition of citizen of India can be regulated by the state.

  • Kesavananda Bharati v. State of Kerala[9]

 The Supreme Court reiterated that secularism was a part of the basic structure of the Constitution. Enumerating the basic features of the Constitution , “secular character of the Constitution”.

  •  St. Xaviers College Society v. State of Gujarat[10]

“The Constitution has not erected a rigid wall of separation between the Church and the State. It is only in a qualified sense that India can be said to be a secular State. There are provisions in the Constitution which make one hesitate to characterize our State as secular. The judgment also went on to lay down a modern Indian concept of secularism.

  •  S.R. Bommai v. Union of India[11]

 The Court in no uncertain terms declared that secularism is part of the basic structure, but the complication arose in formulating a definition. It is based on the “principles of accommodation and tolerance”.

  •   Shayara Bano Vs Union of India & Ors[12]

Constitution Bench of the Supreme Court held that the practice of instant Triple Talaq (talaq-e-bidat) is unconstitutional and violative of Articles 14 and 15. Justices Nariman and Lalit held that instant Triple Talaq is unconstitutional and violative of Article 14 (Right to Equality), Justice Joseph struck down the practice on the ground that it goes against Shariat and the basic tenets of the Quran.

So far it is very much clear that judiciary play key role in maintaining the balance between state’s interference and religious over reach and exploitation.

Conclusion

It can be culminated that wherever it was tried to separate a man faith it resulted in the conflicts and bloodshed. To respect each other’s faith and live together as a nation , a tolerant policy is required not just in constitution but in effect too , judiciary play a key role in this aspect . In India, it is not in denial that judiciary play a crucial role in upholding the secularity and keep the power of the state to be in check, preventing it to bend towards majority for political ambitions. Even after lot have been done it is still considered to be half done but it is not wrong to say , snatching away secularism will threat the unity and integrity of nation.

For Notes On Other Subjects, Click Here.

For Case Briefs And Analysis, Click Here.


[1] Retrieved from https://centerforinquiry.org/blog/secularity_and_secularism_explained/

[2] Available at https://www.history.com/topics/united-states-constitution/freedom-of-religion

[3] Available at https://www.outlookindia.com/website/story/indira-gandhi-fought-for-secularism-opposed-those-dividing-india-over-religion-s/304551

[4] Ibid 4

[5]  Available at https://www.mapsofindia.com/personalities/gandhi/secularism.html

[6] AIR 1962 SC 995

[7] AIR 1980 SC707

[8] AIR 2000 SC 2773

[9] AIR 1973

[10] AIR 1974 SCR 173

[11] AIR 1994

[12] AIR 2016

Author Details: Adv. Meghna Joshi and Vimal Mahajan.

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