Secularism in India

‘Mazhab nahi sikhata Aapas me bair rakhna Hindi hai hum Vatan hai Hindustan Hamara’[1]

The above lines are quoted from Saare Jahan se Acha, a standard song to promote unity and patriotism in India. This song embodies India and the aspirations of Indians. The lines in consideration here represent an ideal, an ideal that is uniquely interpreted and practised in countries across the world, Secularism. 

These lines mean that no religion approves of conflict among different people, instead, all religions propagate tolerance and mutual respect. And that is the Indian style of Secularism, the coexistence of n number of sects in society. 

(Sects can be formed on the contours of cultural differences as well, however for this paper we shall consider religious sects.) In That spirit, this paper shall expand on the Indian kind of secularism in the provisions of our constitution, it shall also seek to trace some landmark judgements in this field and their impact. Finally, this paper will endeavour to aptly demonstrate where Secularism stands today in India.

What is Secularism?

Men get smarter every day. Wondering, investigating, and gaining knowledge is intrinsic to human beings and by that virtue, we can understand and tackle the causes of the problems mankind faces. But there is only so much men can do. 

They certainly cannot eliminate all problems from this world nor can they understand all phenomena that one may encounter in this world. So, what is man’s response to the unknown? Religion.

Religion begins when a man’s rational understanding and capability is exhausted and for an average human, that capability is limited anyway. As a result, we see that religion plays an important role in mainstream life. But mankind is not homogenous, which means there is more than one religion, and various divisions within one religion too. And the interaction of these differences is not necessarily peaceful and advantageous to everyone. 

This interaction exhibits inter and intra-religious domination which means that certain people get subjugated.

Secularism is a response to this interaction. It is the belief that religion should not be involved in the organisation of society, education etc.

[2] While this definition sounds anti-religious it essentially means that the doctrine of secularism aims to have a secular society, where all religions coexist peacefully and there is no inter or intra-religious discrimination.

[3]Citizens of a country could belong to a variety of religions, and thus it follows that there will naturally be a majority and a minority. 

The state or the sovereign is responsible for the welfare of all citizens regardless of their faith and thus, in concurrence with the above paragraph, it follows that there must be a separation of state and religion, and there must be no state-sponsored religion. 

The premise in the previous paragraph is essential to the discussion on secularism because standalone, the components and definition of Secularism may sound anti-religious. It is to be noted that the doctrine is not against religion but for the welfare of all the people.

Secularism in the Indian Constitution

The period of national emergency in India marked one of the darkest eras of our history. Smt. Indira Gandhi turned the nation into an authoritarian regime overnight. This period was conveniently used to pass the 42^nd Constitutional Amendment which is also known as the Mini Constitution of India owing to its size. 

The text of the 42^nd Amendment aimed at making India a sovereign dominated by its parliament, it stripped the Supreme Court of many of its powers. 

While most of these arbitrary and authoritarian changes brought by the Mini Constitution of India were reversed by the 44^th amendment brought in by the Janta Dal Government, there is one thing that stayed i.e the word secular which was added to the preamble of our constitution.

Now we have established that the word secular entered our constitution in the year 1977[4], however, it is a fact that the ideal of secularism has been present in the constitution since its inception. 

In the Indian constitution, certain provisions champion religious freedom and community autonomy. Parallelly some provisions also provide reasonable restrictions to these freedoms, this delicate balance that is created can be equated to the ideal of secularism.

Secularism in the Indian context has 3 sides to it[5]. The relationship between the individual and religion, the relationship between the state and the religion and finally the relationship between the religion and the state. Each of these relations has a particular character. When these 3 relationships interact, secularism is the result.

The Individual and Religion share a positive relationship, there’s freedom to profess and practice religion. The state is indifferent to the religious denomination of the individual and treats all individuals the same(negative relation) and finally, the state does not identify with, propagate, or support any religion(neutral).[6]

Article 25[7]

Freedom of conscience and free profession, practice, and propagation of religion.

This article is the embodiment of the first relationship, that is between the individual and religion. Under this right, an individual has the freedom to practice any religion subject to reasonable restrictions. 

Reasonable restrictions under this article are public order and morality and also the powers of the government to make laws about any financial, political, or secular activity which may be associated with religious practice. 

All though in its absolute sense secularism is about the separation of church and state, in this case, we can see that the government reserves the right to intervene when necessary. 

This stems from the fact that India is in no way a homogenous country, it has multiple faiths and sects in society. Thus, absolute freedom may hamper the ability of certain sects to exercise their rights.

The understanding is as follows,

Secularism requires equal treatment of all religions, if absolute freedom is provided some activities may be a hazard to public health and there also could be a component of inter-religious domination owing to the presence of a majority. Hence to protect the spirit of secularism the Constitution compromised on one of its principles which is a separation of church and state.

Article 14[8]

The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India Prohibition of discrimination on grounds of religion, race, caste, sex, or place of birth.

Equality before the law. This article defines the relationship between the state and the individual. It is to be noted that the present article not only applies to citizens but it applies to all persons including aliens. 

The state is indifferent to the denomination of an individual, it is blind to the social sects one individual may fit into. The state treats all individuals as equals.

Article 44[9]

This article envisages a Uniform Civil Code for India. Presently civil matters and more specifically family matters are governed by religious laws and regulations. All though this article is a part of Directive Principles of State Policy and hence is not justiciable, it helps us conclude that the constitution makers aimed at having no state religion. 

A uniform civil code would be a neutral code not taken from any of the religions in the nation but propagated as a code for all the people by the state. This is what refers to the neutral relationship between the state and religion which also forms the third aspect of secularism.

Both state and religion are tools to govern social affairs, in ancient times religion was superior to the state but today the state is the sovereign and the final decision-maker. 

However, religion is very deeply embedded in our society and culture and thus it is very important that both state and religion go hand in hand, considering this fact the constitution of India separates the state and the religion (Article 27 forbids the teaching of ay religious practice or literature in government-funded and run educational institutions) and provides autonomy to religious institutions (Article 26 allows religious bodies to manage their affairs). 

While this is the case, the state also reserves the right to interfere in any religious practice if it is harmful to public morality or welfare, these are the reasonable restrictions provided in each of the discussed articles.

Landmark Judgements that involve secularism

Judgements given by the various courts in India that indicate the status of secularism in society and the constitution shall be discussed here.

Keshavanda Bharti Sripadagalvaru Vs State of Kerela (1973)[10]

In essence, the petitioner lost this case. The Supreme Court upheld the validity of the 24^th 25^th and 29^th Amendments, except for the parts which said that the laws enacted to enforce the DPSPs would not be subject to judicial review. 

The court overruled the Golaknath judgement and acknowledged that the constitution places no restrictions on the powers of the parliament to amend the constitution. However, what makes this case special is that a very clever show of jurisprudence is displayed here.

While the court liberated the government and gave it unfettered freedom to amend the constitution it also said the laws in the 9^th schedule are subject to judicial review if they endanger the ‘Basic structure of the constitution’.

Thus, the basic structure doctrine was established which provided us with the extent to which the government could alter the Constitution. The Supreme Court provided a list of areas under this structure too and one of the items of that list was the secular nature of the constitution. The point to note is that this case was in the year 1973 which is before the 42^nd amendment and thus it establishes the fact that secularism is a congenital feature of our constitution.

The idea was to preserve certain provisions of our constitution which are the spirit of the document and essential for the foundation of this republic. Secularism is one of the ideals and hence belongs in the sanctum sanctorum of constitutional values.

Indian Young Lawyers Association Vs State of Kerela (2019)[11]

The relationship between the state and the individual is the aspect of secularism that we need to consider in this case. The lone woman judge on the bench dissented, and the other four judges opined that the provision of the Kerela Hindu Places of Worship (authorisation of entry) rules 1965, which banned the entry of women (ages 10 to 50) into the Sabarimala temple unconstitutional. 

The court held that not allowing women of menstruating age into the temple was violative of Article 15 of the constitution and Article 25 of the constitution of India. The current chief justice DY Chandrachud opined that not allowing women of menstruating age into the temple was a matter of disturbing the virginity of men, and that stigmatizes and stereotypes women.

The takeaway from this judgement is the tendency of the ‘state’ to interfere in religious affairs when public morality is affected. This way the state effectively reduces the influence of religion in everyday public life and hence upholds secularism.

Secularism in India Today

Secularism in India is based on ‘principled distancing’ among the various religious denominations that are present in the country. While there’s unfettered freedom to practice religion there also must be a good amount of tolerance towards and a sporty-ness when dealing with inter-sectoral issues. 

The problem nowadays is that nobody wants to compromise. Fundamentalism is on the rise. The Hindutva ideology which is a political project envisages a Hindu Rashtra, based on the philosophy of Hindu, Hindi, and Hindustan. 

The growing popular opinion today is that the state should champion a particular religion and propagate it, and any efforts to protect the rights of minorities are deemed as anti-national because the nation is somehow equated to one religion only. 

Considering these latest developments, the word secular has become a lot like a cuss word and is also not something people are comfortable discussing openly these days.

However, what needs to be understood is that no religion is truly homogenous too, thus even if we eliminate other religions there will be differences among fellow Hindus themselves. 

Hence this exercise to bring a religious uniformity is futile and it is best to embrace the diversity that we have. Hinduism (which has nothing to do with Hindutva) understands this and is thus very pluralistic,[12] The same can be inferred from the fact that various denominations have existed in India much before the modern idea of secularism came into the picture.

The stalwarts of Hindutva have double standards. While they champion Hinduism, they also treat secularism as a concept alien to our religion. 

The polarisation benefits these politicians at the end of the day and rising fundamentalism can always play the role of a paradigm shift to distract people from real topics. Thus, in today’s day and age polarisation and communalism are on the rise, to bolster the electoral campaigns of our beloved politicians but at the cost of the sacred ideal of Secularism.

Footnotes

[1] Mohammad Iqbal, Sare Jahan se Acha (Tarana E Hindi), Ittehad Journal, 16 August 1904

[2] Oxford Learner’s Dictionary online.

[3] National Council for Educational Research and Training, Political Theory: Textbook for class 11, 2015-16 Edition, Chapter 8: Secularism Pg 111.

[4] The Constitution (42^nd Amendment) Act, 1976, was enforced on 3^rd January 1977.

[5]Tarun Arora, Secularism under the constitutional framework of India-Secular India, www.legalservicesindia.com

[6] D.E Smith, India as a Secular State, Princeton University Press.

[7] The Constitution of India, Indian Kanoon.com

[8] The Constitution of India, Indian Kanoon.com

[9] The Constitution of India, Indian Kanoon.com

[10] Alex Andrews George, Important judgements that transformed India.

[11] Gauraw Kumar, blog. leaders.in.

[12] Tapan Kumar Banerjee, Is secularism in crisis in India today?, The Statesman.

This article has been contributed by Adi Biswas,a student at Manipal Law School, Bangalore.