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CONCEPT OF SECULARISM UNDER INDIAN CONSTITUTION
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CONCEPT OF SECULARISM UNDER INDIAN CONSTITUTION
AUTHORED BY - AYUSHI
AGRAWAL
INTRODUCTION
The Constitution stands for a
Secular state of India. The word 'secular' was not present originally in the
Preamble. The concept of secularism was implicit in the Preamble of the Constitution
which declares the resolve of the people to secure to all its citizens
"liberty of thought, belief, faith and worship". The Constitution (42nd Amendment) Act, 1976,
has inserted the word 'Secular' in the Preamble. The object of insertion was to
spell out expressly the high ideas of secularism and the compulsive need to
maintain the integrity of the nation.[1]
The essential basis of the Indian
Constitution is that all citizens are equal, and that the religion of a citizen
is irrelevant in the matter of his enjoyment of Fundamental Rights. The
Constitution ensures equal freedom for all religions and provides that the
religion of the citizen has nothing to do in socio-economic matters. Though the
Indian Constitution is secular and does not interfere with religious freedom,
it does not allow religion to impinge adversely on the secular rights of a
citizen or the power of the state to regulate socio-economic relations.[2]
The Supreme Court has declared
Secularism as the basic feature of the Indian Constitution.[3]
The Court has further declared that secularism is the part of fundamental law
and an unalienable segment of the basic structure of the country's political
system.[4] The
Indian Constitution through its Preamble, fundamental rights & directive
principles has created a Secular State based on the principle of equality and
non-discrimination. With the advancement of Indian Constitutional philosophy of
social and economic democracy, secularism has been held to be ‘Basic Structure’
of the Indian Constitution. Thus, the nature of polity promised in the Preamble
is incapable of alteration even in the exercise of the power to amend the
Constitution under Art. 368.[5]
India is a pluralistic society and
multi-religious country; that is why the framers of the Constitution adopted
the concept of religious neutrality and conferred religious freedom to various
religious groups. The religious tolerance and equal treatment to all religious
groups is in the spirit of our secularism. It sought to achieve the peaceful coexistence
of different religions.
It has explained that secularism is
not to be confused with communal or religious concepts of an individual or a
group of persons. It means that the State should have no religion of its own
and no one could proclaim to make the State have one such or endeavour to
create a theocratic State.[6] Each
person shall get an assurance from the State that he has the protection of law
to freely profess, practice and propagate his religion and freedom of
conscience.
DESCRIPTION
A Secular State has no religion of
its own as recognised religion of State. It treats all religions equally.
Secularism is akin to the vedic concept of 'Dharma Nirapikshata' i.e., the
indifference of the state to the religion. It is not atheism but has the same
faith in all religions and there will be no particular religion of the state.
Also, the political system will not be governed by religion. Citizens of
different faiths may be living in the states. Every citizen can live life
freely according to his or her religion.
According to Donald Eugene Smith, [7]The
secular state is a state which guarantees individual and corporate freedom of
religion, individual as a citizen irrespective of his religion, is not
constitutionally connected to a particular religion not as it seeks either to
promote or interfere with religion.
With the
42nd Amendment Act of the Constitution of India,[8] the
Preamble to the Constitution asserted that India is a 'secular' nation. Various
provisions of the Indian Constitution clearly incorporate the basic principles
of secularism.
Secularism as contemplated by the
constitution of India has the following distinguishing features:
1. The state will not identify itself
with religion nor be controlled by any religion.
2. While the state guarantees to
everyone the right to profess whatever religion one chooses to follow, it will
not accord any preferential treatment to any of them.
3. No discrimination will be shown by
the state against any person on account of his religion or faith.
4. The right of every citizen, subject
to any general condition to enter any offices under the state and religious
tolerance form the heart and soul of secularism as envisaged by the
constitution. It secures the conditions of creating a fraternity of the Indian
people which assures both the dignity of the individual and the unity of the
nation.
Secularism in the Indian context
means an equal status for all religions. According to Dr. Radha Krishanana, no
religion should be given preferential status or unique distinction, then 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.
DISCUSSION
To understand the concept of
secularism in respect of constitutional philosophy first we have to understand
the term 'religion'. The term 'religion' is not defined in the Constitution and
indeed it is a term which is hardly susceptible to any rigid definition.
Supreme Court in Commissioner H.R.E. v.
L.T. Swammiar[9] held
that religion is a matter of faith with individuals or communities and it is
not necessarily theistic. A religion has its basis in a system of beliefs or
doctrines which are regarded by those who profess that religion as conducive to
their spiritual well being.
India has no preferred or state
religion, as such; all religions are treated alike and enjoy equal
constitutional protection without any favour or discrimination.
Meaning and Concept of Secularism
Secularism has not been clearly
defined in any document. However, it is a system of doctrine and practice that
disregards or rejects any form of religious faith and worship. The basic
principle of a secular state is that there should not be any interference by
religion in the affairs of the State and vice versa, i.e., the State also
should not interfere in the affairs of religion. The concept of secularism is
not merely a passive attitude of religious tolerance; it is also a positive concept
of equal treatment of all religions.[10]
There are two main concepts of
secularism, (a) Western concept & (b) Indian concept. The Western concept
is the concept of 'erecting a wall of separation between Religion and State'.
It means there ought to be a separation between religious institutions from the
institutions of States.
As far as the Indian scenario of
secularism is concerned, the Constituent Assembly declared that secularism as
adopted in the Indian Constitution was not an anti-religious concept; instead,
it prevented discrimination against the citizens based on religion. After the
Constituent Assembly debate, mainly two views of secularism emerged- one is
Gandhi's view, & the other is Nehru's view. Gandhi's opinion was based on 'Sarva Dharma Sambhav' i.e., equality for
all religions. According to him, religion cannot be separated from public life.
Nehru followed the principle 'Dharma
Nirpeksha'. According to him, relationships are a private matter and should
not guide public life.
India adopted the following ideas of
secularism which was closer to the views of both Gandhi and Nehru;
1. The State shall permit freedom of
practicing any religion.
2. The State shall not associate with
any religion.
3. State shall own all faiths of
equality.
Indian Constitution and Secularism
It is mentioned in the Preamble of
the Indian Constitution, "We the
people of India…”. The key feature of secularism is found in this sentence.
No particular religion has a place in the sentence. However, in 1976, the
amendment to the Constitution included the term secular. This does not mean that India was not a secular state
before 1976. Although the term secularism was not mentioned, India was a
secular state under the Constitution. This is evident from the different
provisions of the Constitution and the decisions of the Court. In St. Xavier's College v. State of Gujarat,[11] The
Supreme Court held that secularism neither means anti-God nor pro-God. It
ensures that nobody shall be discriminated against on grounds of religion.
Secularism, therefore, eliminates the concept of God in matters of the state.
The principle of secularism is
incorporated in the promotion of democracy by maintaining national unity and
integrity. Further provisions are found in the Constitution for the formation
of secular societies. Secular attitude or attitude of impartiality towards all
religion is secured by the Constitution under several provisions. Art.14[12] grants
equality before the law and equal protection of the laws to all. Art.15[13]
enlarges the concept of secularism to the widest possible extent by prohibiting
discrimination on ground of religion, race, caste, gender, place of birth.
Art.16[14]
lays down that there shall be equal opportunity for all citizens relating to
employment in the office of State and no citizen shall be discriminated on
ground of religion, race, caste, sex, descent, place of birth, residence.
Articles 25 to 28 of the Indian Constitution confer certain rights relating to
freedom of religion not only on citizens but also on all persons in India.
These constitutional provisions guarantee religious freedom not only to
individuals but also to religious groups. It seeks to protect religion and
religious practices from state interference. Art.25[15]
a reservoir of religious and secularism in India, makes explicit provision,
when and how religious freedom is available. It guarantees every person the
right to freely profess, practice and propagate his religion. According to
Art.30[16] all
the minorities are given the right to establish educational institutions of
their choice according to the criteria of religion and language. Art.44[17]
aims at administering people with the same set of secular civil laws
irrespective of their religion.
Above mentioned provision of the
Constitution does not allow any religion to interfere with the rule of the
people even when people of different religions live in India. From time to
time, the Supreme Court has interpreted & stated that secularism is the
fundamental part of Indian society and cannot be changed in any manner. In Indira Nehru Gandhi v. Raj Narain,[18] The
Supreme Court has held that secularism means that the State shall have no
religion of its own and all persons of the country shall be equally entitled to
the freedom of conscience and have the right freely to profess, practice and
propagate any religion.
In Kesavananda Bharti v. State of Kerala,[19]
the Constitutional bench of Hon. Supreme Court reiterated that secularism was a
part of the basic structure of the Constitution. This view was crystallized in
the landmark case of S.R. Bommai v. UOI.[20] In
Bommai[21], a
nine-Judge bench of the Supreme Court referred to the concept of secularism in
the Indian context as a positive concept of equal treatment of all religions
and not mainly a passive attitude of religious tolerance.
The State will not interfere in
religious affairs, State cannot regulate religious activity. However, a secular
activity that is associated with religious matters may be regulated by the
State.[22] An
activity will be treated as religious if it is regarded as an essential and
integral part of the religion and will be secular if it is not considered a
necessary part of religion. In Shayra
Bano v. UOI[23] the
Supreme Court declared the practice of Triple Talaq or Talaq-e-biddat, illegal,
holding that it is not protected under Art.25 of the Constitution as it is not
an essential religious practice.
Although a secular state does not
interfere in religious matters, it does not mean that the State has no say in
all matters of religion. The State cannot interfere in essential religious
practices but it can interfere in secular practices associated with religion.
The State can make a law to regulate secular affairs of religious places. The
Supreme Court in Ismael Faruqui v. UOI[24]
followed this view and held that any property belonging to a religious
community could be acquired by the State under the eminent domain. Again in the
case of Aruna Roy v. UOI[25] the
Court observed that the essence of secularism is non-discrimination of the
people by the State on the basis of religious differences.
In the case of Abhiram Singh v. C D Commachen[26],
there was a question before the Court whether secularism means complete
separation of religion from politics? The Court held that secularism does not
say that the State should stay aloof from religion; instead, should give equal
treatment to every religion. Religion and caste are vital aspects of our
society, and it is not possible to separate them completely from politics. The
Court held that secularism is the basic structure of the Constitution and
therefore cannot be amended. Secularism is derived from the cultural principle
of tolerance and ensures the equality of all religions. The Court also said
that there is an essential connection between secularism and democracy and if
we need that democracy should work properly and the marginalized group can avail
the benefit, then there must be a secular state.
The Relevance of Secularism in India
Secularism has no alternative option
in a multicultural nation like India; therefore, the Indian Constitution
adopted it. Secularism as an ideology tries to keep the nation united on
non-religious fronts. People of different languages and religions live in the
Indian Union. They needed secularism to keep them together. Therefore with the
right to freedom it was necessary to accept secularism. The State, remaining free
from religious obligations, can take a tolerant attitude towards every religion
and can pursue the ideal of achieving the well being of the people irrespective
of caste, creed, religion.
The concept of secularism evolved in
India as equal treatment of all religions. It enables people of different
religions to live in civility with respect for all faiths. It is a part of
democracy, which grants equal rights. Secularism is not merely desirable but
essential for the healthy existence of a plural society like India. Otherwise
people will be subjected to oppression and denial of the right to freedom of
belief.
The Challenges before Secularism in
India
The Constitution has established a
secular state, but it has failed to set up a secular society. Increasing
interference of religion in politics is a major challenge facing the secular
state. Communal politics have put Indian secularism in danger. The growing
communalism has greatly hampered the growth of secularism in India. The
political parties tend to use religion and caste factors for the promotion of
the political interest & thus greatly undermined the secular values.
Some of the important factors which
have impeded growth of normal secularism in India as follows:
1.
Problem of Uniform Civil Code - till now no progress has been made
in the evolution of a UCC and its adoption appears to be more problematic than
it was at the time the Constitution was framed. Community compelled the
Government to enact legislation closer to its Personal law and, therefore,
religiously more acceptable.
2.
Politics and Religion - The Supreme Court had observed in the Bommai case, that if religion is
not separated from politics, the religion of the ruling party tends to become
the state religion.
3.
Cultural Symbols and Secularism - many public rituals and ceremonies
like bhumi pujan, breaking of coconuts on inaugural occasions, performing of
'aarti' and applying 'tilak' are perceived by Hindus as cultural or
nationalistic expressions, but to non-Hindu these are manifestation of Hindu
culture. Such rituals are performed even on state functions and therefore,
create unnecessary misgivings about the neutrality of the State.
4.
Serious doubts about how secular
India is - demolition
of Babri Masjid, banning of cow slaughter leading to curtailment of freedom of
people to what to eat and restricting their freedom to carry on any profession
and trade.
5.
Failure of the Government in
evolving a just economic order - the failure of the government to evolve a just economic
order and eliminate poverty also gave a serious setback to secularism. The
common masses suffering from deprivation and poverty could not develop any
faith in the quality and consequently did not attach much importance to the
secular values.
CONCLUSION AND RECOMMENDATIONS
India is known as a secular nation
across the world. Secularism per se means a mode of governance in which the
State remains neutral in religious matters and is not supposed to tilt in favor
of a particular religion. The Western concept of secularism connotes a complete
separation between the religion (the church) and the state (the politics). This
negative concept of secularism is inapplicable in the Indian situation where
the society is multi religious. Hence, the Constitution of India embodies the
positive concept of secularism, i.e., giving equal respect to all religions or
protecting all religions equally. There is no one religion that dominates
Indian society as a citizen is free to practice, profess and propagate any
religion. However, this right is subject to public order, morality and health.
However, there are instances when it
is necessary to intervene and implement beneficial reforms for the betterment
of the society. Following are some recommendations:
1. In a pluralistic society, the best
approach to nurture secularism is to expand religious freedom rather than
strictly practicing state neutrality.
2. It is incumbent to ensure
value-education that makes the younger generation understand and appreciate not
only its own religious traditions but also those of the other religions in the
country.
3. There is also a need to identify a
common framework or a shared set of values which allows the diverse groups to
live together.
4. Since secularism has been declared
as a part of the basic structure of the Constitution, the Government must be
made accountable for implementing it.
LIST OF REFERENCES
Books Referred:
J.N. Pandey,
CONSTITUTIONAL LAW OF INDIA, (Central Law Agency, Allahabad).
M.P. Jain, INDIAN
CONSTITUTIONAL LAW, (2014).
Websites Referred:
Secularism in India Judicial and Constitutional Perspective
Indian Aspects of Secularism and Indian Constitution https://www.researchgate.net/publication/340115677_Indian_Aspects_of_Secularism_and_Indian_Constitution
Secularism and Constitution of India http://www.legalservicesindia.com/article/1964/Secularism-and-Constitution-of-India.html
LIST OF ABBREVIATIONS
|
S.No.
|
Abbreviations
|
Full Form
|
|
1.
|
AIR
|
All India Reporter
|
|
2.
|
&
|
And
|
|
3.
|
UOI
|
Union of India
|
|
4.
|
SC
|
Supreme Court
|
|
5.
|
SCC
|
Supreme Court Cases
|
|
6.
|
UCC
|
Uniform Civil Code
|
|
7.
|
Art.
|
Article
|
|
8.
|
Hon.
|
Honorable
|
|
9.
|
i.e.,
|
That is
|
|
10.
|
v.
|
Versus
|
|
11.
|
Consti.
|
Constitution
|
|
12.
|
cl., cls.
|
Clause, clauses
|
[2] Id
[3] Kesavananda Bharti v. State of
Kerala, AIR 1973 SC 1461; S.R. Bommai v. Union of India, AIR 1994 SC 1918;(1994)
3 SCC 1.
[6] M.P. Jain, INDIAN CONSTITUTIONAL
LAW, (2014) at p.16
[7]Donald Eugene Smith, INDIA AS A
SECULAR STATE, (Princeton University Press, New Jersey)
[9] Commissioner H.R.E. v. L.T. Swammiar, AIR 1954 SC 282 at
p.290
[10] M.P. Jain, INDIAN CONSTITUTIONAL
LAW (2014) at p.1245
[11] St. Xavier's College v. State of
Gujarat, AIR 1974 SC 1389 at 1414
[12] India Constitution art.14
[17] India Constitution Art 44
[18] Indira Nehru Gandhi v. Raj Narain,
AIR 1975 SC 2299
[20] S.R. Bommai, supra note 1, at 7
[23] Shayra Bano v. UOI, AIR 2017 SC
4609
[25]Aruna Roy v. UOI, AIR 2002 SC 3176
Article Information
CONCEPT OF SECULARISM UNDER INDIAN CONSTITUTION
Authors: AYUSHI AGRAWAL
- Journal IJLRA
- ISSN 2582-6433
- Published 2024/09/18
- Issue 7
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International Journal for Legal Research and Analysis
- Abbreviation IJLRA
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