Between Pluralism And Neutrality - A Comparative Study Of Constitutional Secularism In India And Brazil

Author: LawSphereX

Category: Constitutional & Human Rights

Published: 2026-08-23T18:27:59.327347+00:00

Updated: 2026-08-26T17:11:50.645+00:00

BETWEEN PLURALISM AND NEUTRALITY: A

COMPARATIVE STUDY OF CONSTITUTIONAL

SECULARISM IN INDIA AND BRAZIL

Jordano Paiva Rogério, PhD advanced candidate, University of Lisbon – Faculty of Law, Researcher at the Ludwig-Maximilians-Universität-München

ABSTRACT

This comparative study examines the constitutional frameworks of secularism in India (1950) and Brazil (1988), analyzing how these democracies navigate religious pluralism amid divergent historical traumas. Emerging from colonial partition and authoritarian rule, respectively, both constitutions enshrine secular principles yet adopt distinct approaches: India’s pluralistic model accommodates religious diversity through faithbased personal laws and judicial doctrines like the Essential Practices test, while Brazil’s uniform citizenship rejects differentiated rights, prioritizing formal neutrality. The analysis reveals that India’s constitutional secularism, shaped by post-colonial imperatives, balances religious autonomy with statedriven social reform, yet risks entrenching communal divisions through legal pluralism.

Whereas Brazilian post-authoritarian secularism achieved an uniform civil law and a constitutional system of maintaining formal neutrality as fundamental right. Methodologically combining doctrinal analysis and historical contextualization, the study demonstrates that both models reflect their societies’ unique trajectories. The comparison highlights inherent tensions: how can legal pluralism coexist with equality in deeply religious societies; and whether formal neutrality suffice to counter informal hierarchies. The findings suggest constitutional secularism’s success hinges on contextual adaptability, judicial vigilance, and societal commitment to reconciling universal rights with cultural particularities. Ultimately, India and Brazil exemplify secularism’s dual role as both a shield against past oppression and a contested arena for democratic renewal in pluralistic societies.

Keywords: Constitutionalism, Secular State, Religion, Fundamental Rights.

CHAPTER 1

INTRODUCTION

The constitutional articulation of secularism in pluralistic democracies represents a complex negotiation between state neutrality, religious freedom, and societal diversity. This article undertakes a comparative examination of two distinct constitutional models: India’s 1950 Constitution, forged in the aftermath of colonial rule and sectarian partition, and Brazil’s 1988 Constitution, born from a struggle against military authoritarianism. Both documents formally enshrine secular principles, yet their approaches diverge significantly, shaped by contrasting historical trajectories and social realities. It might be highlighted that India’s constitutional secularism emerged from the trauma of Partition, which divided British India into Hindu-majority India and Muslim-majority Pakistan amid unprecedented violence.

This historical rupture necessitated a constitutional framework capable of managing religious diversity while preventing communal fragmentation. The 1950 Constitution’s architects sought to transcend religious divisions through a pluralistic model that recognizes group rights while mandating state neutrality. The Indian Constitution guarantees religious freedom while permitting state intervention to reform discriminatory practices, creating a unique system where secularism coexists with religion-specific personal laws governing family matters. This approach reflects India’s historical reality as a civilizational mosaic where religion permeates social identity, demanding legal accommodation rather than mere tolerance.

The Brazilian path to secularism followed a different trajectory, evolving from an explicit Catholic state under the 1824 Imperial Constitution to its current formal secularism. The 1988 Constitution, drafted after two decades of military rule marked by censorship and human rights violations, prohibits state establishment of religion and guarantees inviolable religious freedom. Unlike India’s pluralistic accommodation, the Brazilian model emphasizes uniform citizenship, rejecting differentiated legal regimes based on religious affiliation. The comparative analysis aims to reveal fundamental differences in how each constitution operationalizes secularism.

India’s framework acknowledges religious diversity through legal pluralism, allowing Muslim, Christian, and Hindu communities to maintain separate personal laws while empowering the state to reform practices deemed incompatible with constitutional

morality. This is exemplified by the Indian judiciary’s Essential Practices Doctrine, which distinguishes between protected religious rituals and customs subject to state regulation. By contrast, the Brazilian system rejects such pluralism, maintaining uniform civil laws for all citizens regardless of faith. This divergence raises critical questions: Does India’s accommodation of religious pluralism strengthen social cohesion or institutionalize communal divisions? Methodologically, this research employs a legal-interpretative approach, combining doctrinal analysis of constitutional texts and judicial precedents with historical and sociological contextualization.

Primary sources include the Indian and Brazilian constitutions, landmark Supreme Court rulings, and legislative records, analyzed through hermeneutical and phenomenological lenses to assess how abstract principles interact with social realities. The study adopts a comparative framework to identify patterns and divergences in constitutional design, examining how historical contexts of colonial subjugation in India and authoritarian rule in Brazil shaped each nation’s approach to secular governance. The study seeks to answer some central questions: How can Brazil and India be considered constitutionally secular states, and how do their constitutional frameworks address the challenges of governing profoundly religious yet diverse societies? How did the movements of constitutionalism steer the Indian legal system toward a secular state?

How has Brazil’s recent constitutional history led it to a secular state? As two of the largest democracies in the world, do Brazil and India share commonalities in the emergence of their constitutional secular orders? The analysis explores how both constitutional frameworks, while formally secular, interpret state neutrality through divergent sociocultural lenses. India’s model accommodates religious pluralism through legal exceptions, permitting faith-based personal laws while empowering judicial intervention, raising questions about whether such accommodations strengthen pluralism or inadvertently institutionalize communal divisions. Regarding the Brazilian framework, though constitutionally rigid in separating church and state, it might be cleared how this South American Constitution established a secular state inside his own fundamental rights protection system.

These tensions prompt critical reflection on secular constitutionalism’s capacity to balance universal rights with particularistic identities in societies where religion remains a defining social force.

By juxtaposing these models, the article interrogates whether constitutional secularism can adapt to distinct historical legacies without replicating the inequalities it seeks to overcome. India’s approach, shaped by post-colonial pluralism, offers insights into how legal systems might negotiate religious diversity, while Brazil’s trajectory reveals the challenges of disentangling state institutions from deeply ingrained cultural religiosity. The study considers whether secularism functions as a dynamic process of negotiation between constitutional ideals and societal practices, or whether its implementation risks codifying new forms of exclusion.

Through this comparative lens, the analysis seeks to unravel how constitutional frameworks mediate competing claims of religious autonomy and individual equality, leaving open the question of whether secular governance can ever fully reconcile these tensions in pluralistic democracies.

CHAPTER 2

2. THE GLOBAL CONTEXT OF CONSTITUTIONALISM APPLIED TO INDIA AND

BRAZIL

Modern constitutionalism, as it developed in the 19th and 20th centuries, emerged as a response to the need for structured governance under the rule of law. Initially, European states adopted constitutional monarchies, where written constitutions served to distribute and limit governmental power while safeguarding individual rights against state overreach1. The concept 1 For instance, Professor Carsten Anckar of Åbo Akademi University examines this theme, a work about the persistence and political dynamics of monarchies within democratic systems, challenging conventional assumptions about their incompatibility with democracy. He revisits Samuel P. Huntington’s argument that autocratic rulers, particularly absolute monarchs, face a zero-sum choice when transitioning to democracy: either retain full authority or accept complete marginalization as a ceremonial figure.

Huntington’s reasoning hinges on the idea that unelected leaders lack democratic legitimacy, making sustained political influence untenable. Yet, Anckar notes that monarchies endure, around 30 democratic states retain monarchs as heads of state, and authoritarian monarchies exhibit notable stability. This paradox prompts his central inquiry: why do some democratic monarchies grant their monarchs substantive political powers, defying theoretical expectations? Anckar critiques the lack of scholarly attention to power-sharing in democratic monarchies compared to the extensive literature on semi-presidential systems, where presidential and prime ministerial dynamics are welldocumented. He argues that while hereditary rule seems inherently undemocratic, some monarchs in recognized democracies wield influence akin to presidents in semi-presidential regimes.

To analyze this, he refines the traditional binary classification of monarchies (absolute vs. constitutional) by introducing a third category: semiconstitutional monarchies. Drawing on Corbett et al. (2017), he defines these as democracies where monarchs, though constitutionally constrained, retain significant political agency, such as executive or legislative powers, policy influence, or the ability to dissolve legislatures. The classification hinges on a deliberately inclusive threshold; any democratic monarchy where the monarch exercises measurable political power is deemed semiconstitutional, while purely ceremonial ones remain constitutional monarchies. Anckar justifies this approach by emphasizing the qualitative distinction between symbolic and substantive royal authority, while acknowledging the inherent arbitrariness of power-scale demarcations.

He also stresses that monarchs in democracies, lacking electoral legitimacy, cannot realistically rival the powers of elected presidents, necessitating a low threshold for semi-constitutional status. Anckar’s framework underscores the tension between democratic norms and historical

of democracy evolved later, incorporating principles of political legitimacy, representation, and procedural fairness. By the 20th century, the idea of a democratic constitutional state had crystallized, balancing at least some key elements: the source of power, popular sovereignty, the mechanisms of decision-making, due process, and the substantive limits on state action, protection of fundamental rights. The 20th century witnessed intense philosophical debates on the nature of constitutional democracy, particularly concerning the formal and substantive dimensions of the Rechtsstaat and democratic governance. In its minimal form, the rule of law merely requires adherence to legal procedures, a standard that even authoritarian regimes could superficially meet2.

However, a substantive interpretation, akin to the Anglo-American rule of law tradition, demands that legal systems also embody justice, legitimacy, and respect for fundamental rights. Similarly, democracy was no longer viewed merely as majority rule but as a system ensuring governance for all, including marginalized groups, racial, religious, and cultural minorities, as well as economically disadvantaged populations. This expanded vision necessitated not only civil liberties but also socio-economic rights to guarantee material equality and human dignity. By the early 21st century, constitutionalism grappled with reconciling popular sovereignty with the protection of minority rights, striving for a balance between majority rule and pluralistic inclusion.

Both Brazil’s 1988 Constitution and India’s 1950 Constitution emerged within this broader framework, adapting universal principles to their distinct historical and social contexts.

2.1 HISTORICAL FOUNDATIONS OF THE INDIAN CONSTITUTIONALISM AND

THE PLURALITY OF RELIGIONS IN THE CONTEXT

The Indian constitutionalism which gave birth to the first truly Indian constitution was born due to some complex series of events. The struggle for Indian independence was not merely a political movement against British colonial rule but also a deeply complex social and religious institutions, probing why such "anachronisms" persist. His work invites further scrutiny of how monarchs navigate democratic constraints and why societies tolerate their residual powers a neglected area in comparative politics. By systematizing these distinctions, he lays groundwork for analyzing the varied roles of monarchs in modern governance, challenging deterministic assumptions about their inevitable decline to ceremonialism. ANCKAR, Carsten. “Constitutional Monarchies and Semi-Constitutional Monarchies: A Global Historical Study, 1800– 2017. ” Contemporary Politics, 2020. p. 23–40. doi:10. 1080/13569775.

2020. 1824360. 2 For a deeper study, see: Luigi Ferrajoli, Derecho y razón: teoría del garantismo penal. Madrid: Editorial Trotta, S. A. , 2000. p. 856-860.

conflict that ultimately reshaped the geography and identity of the subcontinent. For centuries, India had been a mosaic of diverse cultures, languages, and faiths, among which can be highlighted the coexistence of Hinduism, Islam, Sikhism, Christianity, Buddhism, and Jainism3, often uneasily, under successive empires, from the Mughals to the British Raj. However, by the early 20th century, religious identity became the defining factor in the political discourse of independence, culminating in the violent partition of British India into two nations: a secular but Hindu-majority India and an Islamic Pakistan4. The roots of this division can be traced back to the colonial policies of the British Empire, which had governed India since the East India Company’s consolidation of power after the Battle of Plassey in 1757.

Following the Indian Rebellion of 1857, sparked by both religious grievances (such as the use of animal-fat-greased rifle cartridges, offensive to Hindu and Muslim soldiers) and broader anti-colonial resentment, the British Crown assumed direct control, instituting the British Raj. While the Raj maintained an illusion of unity, it also employed a strategy of divide and rule, exacerbating religious tensions by granting separate electorates to Muslims in 1909, thereby institutionalizing political divisions along communal lines. 3 VERMA, S. B. “Scientific Study of Religion in India. ” Journal for the Scientific Study of Religion. Vol. 17, no.

2 (1978): 173–79. https://doi.org/10.2307/1386161.

4 About this subject, see: BUTALIA, Urvashi. “The Other Side of Silence Voices from the Partition of India”. New Delhi: Penguin Books, 2014. JALAL, Ayesha. “The Sole Spokesman: Jinnah, the Muslim League and the Demand for Pakistan”. Cambridge: Cambridge University Press, 1999. KHAN, Yasmin. “The Great Partition: The Making of India and Pakistan”. New Haven, CT: Yale University, 2017. ZAMINDAR, Vazira Fazila- Yacoobali. “The Long Partition and the Making of Modern South Asia: Refugees, Boundaries, Histories”. Columbia University Press, 2007.

By the 1920s and 1930s, the Indian National Congress (INC), influenced by activists such as Mahatma Gandhi5 and Jawaharlal Nehru6, championed a vision of a unified secular India, where all religions would coexist under a democratic government. However, this vision was increasingly challenged by the All-India Muslim League, led by Muhammad Ali Jinnah, who argued that Muslims - who constituted about a quarter of the population - would be politically marginalized in a Hindu-dominated state. The League’s demand for a separate Muslim 5 Mahatma Gandhi, born Mohandas Karamchand Gandhi in 1869, was a lawyer, political ethicist, and anti-colonial nationalist whose philosophy of nonviolent resistance became the cornerstone of India’s independence movement.

His early experiences in South Africa, where he developed satyagraha (truth-force) as a method of opposing racial injustice, profoundly shaped his approach to political struggle. Upon returning to India in 1915, Gandhi emerged as a unifying force within the Indian National Congress (INC), transforming it from an elite-dominated organization into a mass movement that mobilized peasants, workers, and ordinary citizens against British rule. Gandhi’s leadership redefined the INC’s strategies and objectives. Rejecting earlier moderate petitions for incremental reforms, he introduced large-scale civil disobedience campaigns that relied on non-cooperation, peaceful protests, and economic resistance. His first major success came with the Champaran (1917) and Kheda (1918) agitations, where he employed satyagraha to challenge exploitative colonial policies.

These victories demonstrated the power of organized nonviolent resistance and established Gandhi as a national leader. Under his guidance, the INC adopted nonviolent non-cooperation as its primary strategy. The Non-Cooperation Movement (1920–22) urged Indians to boycott British institutions, including courts, schools, and goods, while promoting self-reliance through khadi (homespun cloth) and indigenous industries. Though Gandhi suspended the movement after the Chauri Chaura violence (1922), his insistence on discipline and moral purity reinforced his philosophy’s integrity. His subsequent campaigns—the Salt March (1930), which defied British salt taxes, and the Quit India Movement (1942)—further weakened colonial authority and solidified the INC’s role as the vanguard of India’s freedom struggle.

Beyond tactics, Gandhi reshaped the INC’s organizational structure and ideological framework. He decentralized its operations, empowering provincial committees and rural participation, and infused the party with a moral vision linking political independence with social justice. His advocacy for Hindu-Muslim unity, abolition of untouchability, and economic equity expanded the INC’s appeal across caste and religious lines. However, his idealistic approach sometimes clashed with more pragmatic leaders, such as Subhas Chandra Bose, who favored direct confrontation with the British. Gandhi’s influence extended beyond independence in 1947. Though he never held formal office, his principles guided the INC’s post-colonial governance under Jawaharlal Nehru, emphasizing democracy, secularism, and equitable development.

Gandhi’s assassination in 1948 marked the end of an era, but his legacy endured in the INC’s commitment to pluralism and grassroots empowerment. Today, as the party navigates contemporary challenges, Gandhi’s emphasis on ethical politics and inclusive nationalism remains a touchstone—both a moral compass and a reminder of the movement that forged modern India. According to: MISHRA, Anil Dutta. Indian National Congress. Available at: . Accessed in April 2025. 6 Pandit Jawaharlal Nehru stands as the foundational architect of modern India, serving as its first Prime Minister for seventeen formative years following independence in 1947. His visionary leadership transformed the newly sovereign nation from a colonial subject into a democratic republic with ambitious aspirations on the world stage.

Educated at Harrow and Cambridge, Nehru combined Western intellectual traditions with deep Indian sensibilities to craft a unique developmental path for his nation. As a principal leader of the Indian National Congress during the freedom struggle, Nehru worked closely with Mahatma Gandhi while developing his own distinct approach to nation-building. His famous Tryst with Destiny speech at the moment of independence captured both the solemn responsibility and revolutionary potential of self-rule. Unlike many post-colonial leaders who embraced authoritarianism, Nehru remained committed to democratic principles even when facing immense challenges of poverty, illiteracy and social fragmentation. Nehru's governance established enduring democratic institutions that remain vital today.

He oversaw India's first general elections in 1952, creating systems that enabled mass political participation despite widespread illiteracy. His respect for constitutional processes set crucial precedents, particularly when he pursued amendments rather than undermining judicial independence during policy disputes. This commitment to institutional integrity helped democracy take root in conditions where many believed it impossible. INDIA. Indian National Congress. Available at: . Accessed in April 2025.

homeland gained traction, particularly after the 1940 Lahore Resolution, which formally called for the creation of Pakistan7. The British, weakened by World War II and facing rising nationalist fervor, sought a peaceful transfer of power. Initial proposals, such as the 1946 Cabinet Mission Plan, envisioned a loose federation with autonomous provinces to accommodate religious differences. However, the plan collapsed due to mutual distrust: the Congress feared balkanization, while the League insisted on full sovereignty for Muslim-majority regions. Communal violence erupted on an unprecedented scale, Calcutta’s Great Killing of August 1946 left thousands of dead, foreshadowing the bloodshed that would accompany Partition. With negotiations deadlocked, the last British Viceroy, Lord Mountbatten, hastily implemented the Partition Plan in June 1947.

The Radcliffe Boundary Commission, tasked with drawing the new borders, completed its work in mere weeks, relying on outdated maps and minimal local knowledge. The result was catastrophic: Punjab and Bengal, regions with mixed Hindu, Muslim, and Sikh populations, were brutally divided. Mass migration ensued, as millions fled across borders to join their religious majorities. Trains arrived filled with corpses; villages were razed; women were subjected to horrific violence. Estimates of the death toll range from 200,000 to over a million, with 14 million displaced, one of history’s largest forced migrations.

Historical records present deeply disturbing accounts of this episode, with multiple verified sources documenting systematic atrocities of exceptional brutality: “When we cleared it, we counted 2,400 identifiable bodies and I don’t know how many more heads and arms and legs 7 Muhammad Ali Jinnah, a British-trained lawyer, transformed from an early advocate of Hindu-Muslim unity to the principal architect of Pakistan. Leading the Muslim League from the 1930s, he championed the Two Nation Theory, arguing that India's Muslims needed a separate homeland. His political strategy shifted from demanding minority safeguards to insisting on full partition, particularly after the Muslim League's sweeping victory in the 1946 elections. As negotiations between the British, Congress, and Muslim League faltered, communal violence escalated, making partition inevitable.

On August 14, 1947, Pakistan emerged as an independent state, with Jinnah as its first Governor-General. His vision for Pakistan remains debated whether he sought an Islamic state or a secular democracy with Muslim majority rule. Jinnah's health, long in decline, gave out just a year after independence, leaving Pakistan to navigate its early crises without its founding leader. His legacy endures as the driving force behind the subcontinent's division and the creation of the modern world's first nation-state based on Muslim identity. The partition he achieved came at immense human cost but fulfilled his unwavering demand for Muslim self-determination. See: INDIA. India Cabinet Mission, Correspondence with the Congress Party & Muslim League. 1946. Available at: . Accessed in April 2025. See also: The Muslim League and Mohammed Ali Jinnah. Available at: . Accessed in April 2025.

and everything there were, they’d all been hacked to pieces. Blood was running out of the doors. ”. Captain Edward Walsh describing a massacre of Muslims on a train in the Punjab8. Finally, the birth of India and Pakistan in August of 1947, was thus a pyrrhic victory. India’s secular constitution, adopted in 1950, sought to transcend religious divisions, while Pakistan defined itself as an Islamic republic. Yet the wounds of Partition never fully healed. Kashmir, a Muslim-majority princely state ruled by a Hindu maharaja, became an immediate flashpoint, leading to the first Indo-Pakistani war, in 1947 and 1948, hence setting the stage for decades of conflict. The legacy of this religiously charged division endures. India’s constitutional secularism has been tested by Hindu nationalist movements, while Pakistan’s identity struggles between Islamic orthodoxy and its own diverse heritage.

The subcontinent’s bloody partition remains a cautionary tale, a reminder of how colonial manipulation, political intransigence, and communal passions can fracture even the most ancient and pluralistic societies. The Indian Constitution of 1950, framed in the shadow of this trauma, sought to forge unity from diversity, but its success has always hinged on balancing the promises of secular democracy with the realities of enduring religious divides.

2.2 HISTORICAL FOUNDATION OF THE BRAZILIAN 21ST CENTURY

CONSTITUTIONALISM

The Brazilian constitutional development in the 20st and 21st centuries does not still reflect its colonial legacy and periods of authoritarian rule like India remained to reflect. Unlike India, Brazil’s historical trajectory was marked by the dominance of Catholicism, which remained the official religion until the 1891 Constitution established a secular state. However, if the influence of the Catholic Church persisted in politics and culture, shaping legal norms for a period of time, nowadays it does not stand as strong as used to be under the Portuguese empire rule9. The 1988 Brazilian Constitution emerged as a direct response to one of the darkest periods in the nation’s history: the military dictatorship that ruled from 1964 to 1985. Under authoritarian 8 Available at: . Accessed in April 2025. 9 BONAVIES, Paulo; ANDRADE, Paes de. “História Constitucional do Brasil”.

São Paulo: Editora Paz e Terra S/A, 1991. p. 247-271.

rule, fundamental rights, particularly those related to freedom of expression, political participation, and due process, were systematically violated. The regime, which came to power under the pretext of combating communism and restoring order, quickly devolved into a repressive state apparatus characterized by censorship, political persecution, torture, and enforced disappearances. The Institutional Act n. o. 5 (also known as AI-5), decreed in 196810, marked the apex of repression11, suspending fundamental guarantees, such as habeas corpus actions for political crimes, shutting down the National Congress, thus granting the Executive branch unchecked powers to silence dissent12. For two decades, Brazil lived under a juridical order that subverted constitutionalism, where legal norms were manipulated to legitimize authoritarianism rather than constrain state power.

The military’s so-called Constitutions of 1967 and 1969 (the latter a heavily amended version 10 According to the preamble of Institutional Act n. o 5 (AI-5), enacted on December 13, 1968: The Constitution of January 24, 1967, and State Constitutions are upheld; The President of the Republic is authorized to: 1- Order federal intervention in states and municipalities without the constitutional restrictions normally required; 2- Suspend the political rights of any citizen for up to 10 years; 3- Revoke federally, state, and municipally elected mandates; And to take other necessary measures. BRAZIL. Ato Institucional n. o 5. Diário Oficial da União - Seção 1 - 13/12/1968, Page 10801. Also in: Coleção de Leis do Brasil - 1968, Page 3 Vol. 7. Also available at: . Accessed in March 2025. 11 Fifty years after the enactment of Institutional Act No.

5 (AI-5) in Brazil, a solemn session was held in the Chamber of Deputies to reflect on the profound consequences of this legal decree. During the session, several lawmakers expressed their views, revisiting the authoritarian measures imposed under AI-5 and their lasting impact on Brazilian democracy. According to the Deputy Mr. Tadeu Alencar: Under no circumstances could we, in this challenging moment of Brazilian life, where we clearly witness the resurgence of forces aligned with that dark period of our nation's history, fail to recognize the utmost importance of remaining vigilant in defending democratic liberties, which were ruthlessly violated following the enactment of AI-5.

Originally pronounced in portuguese: “Nós não poderíamos em hipótese alguma, num momento desafiador da vida brasileira, em que sentimos claramente o assanhamento das forças que se identificam com esse período tenebroso da história brasileira, é de fundamental importância que nós estejamos alertas para o enfrentamento de defesa das franquias democráticas que foram avassaladoramente violadas a partir do AI-5”. Furthermore, According to the Deputy Mr. Ronaldo Lessa: The climate of intolerance and suspicion in 1964 ushered in a protracted period of authoritarian rule. Today, the resurgence of toxic polarization in 2018 demands vigilance, we must apply the lessons of history to forge solidarity, not strife. Originally pronounced in portuguese: “Em 64, o clima de intolerância, a desconfiança nos mergulhou numa noite de trevas que durou mais de duas décadas.

Agora em 2018 vivemos um clima de disputa e intolerância muito tóxicos. Devemos nos lembrar das lições do passado e precisamos evitar cometer os mesmos erros, precisamos construir pontes. ”. BRAZIL. Câmara dos Deputados. Política e Administração Pública. “Sessão solene na Câmara lembra 50 anos do AI-5”. Agência Câmara de Notícias. Available at: . Accessed in April 2025. 12 About a Giant Executive branch, an idea that might be highlighted was well explained by a Brazilian Supreme Court Justice, Minister Alexandre de Moraes, in his analysis of state functions and the Democratic Rule of Law, elucidates that: For government branches to maintain true independence and effectively check each other's power through reciprocal controls, they require specific constitutional guarantees and prerogatives.

These safeguards are both inviolable and indispensable - their absence would create institutional imbalance and government destabilization. When such imbalance disproportionately strengthens the Executive branch, it leads to despotism and dictatorship, culminating in arbitrary rule. This principle echoes Montesquieu's observation about the necessity of immunities and prerogatives for the proper exercise of state functions. MORAES, Alexandre de. Direito Constitucional. São Paulo: Editora Atlas, edition 36. o, 2020. E-book, p. 832.

under the hardline faction) were designed to simulate legality while suppressing democracy. Courts, including the Supreme Federal Court (Supremo Tribunal Federal or STF in the Brazilian portuguese language), were often complicit, deferring to executive authority under a doctrine of military necessity. Reaching the end of the authoritarian regime, a slow and negotiated transition to democracy took place in the mid-1980s, marked by mass protests, social movements demanding direct elections, popular established as the Diretas Já movement13, and the eventual election of a civilian president in 1985, set the stage for a profound constitutional renewal. The 1988 Constitution was not merely a legal text but a political and social pact, a deliberate rupture with the authoritarian past and an assertive reestablishment of democratic governance.

Unlike the close previous constitutions, which often reflected elite compromises or authoritarian impositions, the 1988 charter was drafted through an unusual participatory process. The Constituent Assembly of 1987 and 1988 included not just traditional political actors but also civil society groups, labor unions, and grassroots movements, ensuring that marginalized voices - long silenced under dictatorship - shaped the new order. The result was a document that constitutionalized rights with unprecedented breadth, embedding social, economic, and cultural guarantees alongside civil and political liberties. The 1988 Constitution marked a paradigm shift in Brazilian law: it was no longer a symbolic or merely aspirational text but a supreme normative framework with direct legal force.

Some key transformations defined this new era, statements around the Material Supremacy of the 13 In 1983, shifts in Brazil's political landscape sparked a movement demanding direct presidential elections, gaining momentum with the introduction of a constitutional amendment by Deputy Dante de Oliveira (PMDB- MT). The campaign, known as Diretas Já, grew dramatically in 1984, mobilizing unprecedented public support through massive rallies across the country, attended by artists, political leaders, and millions of citizens. The largest demonstrations gathered approximately one million people in Rio de Janeiro and 1. 7 million in São Paulo. Despite this popular outcry, the amendment was rejected in the National Congress on 25 April 1984, falling 22 votes short of approval.

The Chamber of Deputies voted as follows: 298 in favor, 65 against, and 3 abstentions, halting further consideration by the Federal Senate and effectively ending related legislative proposals (PECs 06, 08, and 20 of 1983). Three months later, the Liberal Front (a PDS dissident group) allied with the PMDB, forming the Democratic Alliance. This coalition nominated Senator José Sarney (former PDS) as vice-presidential candidate alongside Tancredo Neves (PMDB) for the presidency. On 15 January 1985, the Alliance defeated the PDS in the Electoral College, securing 480 of 686 votes. However, Tancredo Neves fell critically ill on the eve of his inauguration and died after 38 days of hospitalization. Consequently, José Sarney assumed the presidency, serving a five-year term until 15 March 1990.

This period marked a pivotal transition in Brazil’s return to democracy, illustrating both the power of grassroots mobilization and the complexities of institutional political negotiations. BRAZIL. Câmara dos Deputados. Sessões e Reuniões. “Diretas Já - 30 anos do Movimento”. Available at: . Accessed in April 2025.

Constitution, beyond formal hierarchy, the Constitution became an objective order of supreme values, where principles like human dignity (established in the article 1o, III) and the social state, in article 3.o, permeate all legal interpretation. This axiological centrality meant that ordinary laws, whether civil, penal, or administrative, had to conform to constitutional morality.

2.3 COMPARATIVE PERSPECTIVES: THE FOUNDING CONTEXTS OF INDIA’S

1950 CONSTITUTION AND BRAZIL’S 1988 CONSTITUTION

Both the Indian Constitution of 1950 and the Brazilian Constitution of 1988 emerged from profoundly struggles, but in distinct historical contexts, yet both sought to construct democratic orders in societies marked by deep fractures, India’s religious divisions and colonial subjugation, Brazil’s authoritarian repression and social inequality. These foundational contexts indelibly shaped the constitutional designs of each state, particularly in the approaches to secularism, pluralism, and the protection of fundamental rights. India’s constitutional moment was defined by its liberation from British rule and the traumatic Partition of 1947, which carved out Pakistan as a Muslim-majority state amid horrific communal violence. The Constituent Assembly faced the dual challenge of forging a unified nation from a mosaic of religions and dismantling oppressive structures like the caste system.

This approach reflected India’s historical reality: a society where religion permeated identity, yet unity demanded accommodation. While the Brazilian 1988 Constitution was a repudiation of military dictatorship, which had suppressed political freedoms and entrenched inequality. The Constituent Assembly, influenced by grassroots movements, prioritized social rights alongside civil liberties. It is easily notable that the historical paths that led to the drafting of India's 1950 Constitution and Brazil's 1988 Constitution were markedly different in their origins, but surprisingly strikingly similar in their outcomes.

While India emerged from centuries of colonial rule under the British Empire followed by the traumatic partition along religious lines, Brazil was recovering from two decades of military dictatorship characterized by systemic human rights violations and suppression of civil liberties. These distinct historical struggles - one against foreign domination and communal violence, the other against domestic authoritarianism and state oppression - ultimately converged in their constitutional solutions. Both nations responded to their respective periods of rights deprivation by crafting constitutions that placed

fundamental rights at their very core, establishing robust legal frameworks to protect freedoms that had been systematically denied under previous regimes. India's constitutional makers, working in the shadow of colonial exploitation and the bloody partition, sought to create a document that would not only guarantee individual freedoms but also actively dismantle historical systems of oppression like the caste system. The extensive fundamental rights chapter was designed as a bulwark against any future erosion of liberties, incorporating not just classic civil and political rights but also innovative provisions against untouchability and for the protection of minority cultures.

Similarly, Brazil's constitutionmakers, emerging from a period where basic political rights had been suspended and state torture was routine, crafted what would become known as the Citizen's Constitution (Constituição Cidadã, in Brazilian portuguese), with an expansive bill of rights that included not only traditional liberties but also groundbreaking social and economic rights. What makes this parallel particularly remarkable is how both constitutions represented such dramatic breaks from their immediate past. The Indian document rejected the arbitrary power of colonial administration by establishing judicial review and due process protections, while the Brazilian charter repudiated the military regime's censorship and repression through comprehensive free speech guarantees and strict limits on state power.

Both constitutions established independent judiciaries with strong powers of constitutional review, ensuring that rights protections would not be merely theoretical. The Indian Supreme Court and Brazil's Supreme Federal Court were both empowered as guardians of constitutional rights, developing robust jurisprudence to protect fundamental freedoms. The depth of rights protection in both documents reflects their shared origin as responses to periods of rights suppression. India's constitution included elaborate minority protections and affirmative action provisions as direct responses to colonial divide-and-rule policies and partition violence. Brazil's constitution established detailed due process guarantees and mechanisms against state abuse precisely because of recent memories of military repression.

In both cases, the constitutional framers didn't just seek to establish rights in the abstract, but to create specific safeguards against the particular forms of rights violations their populations had recently endured. This convergence toward rights-centric constitutionalism from different historical starting points suggests a broader constitutional truth: societies emerging from extended periods of

rights deprivation often respond by creating particularly strong and detailed constitutional protections. The traumatic experiences of colonial rule in India and military dictatorship in Brazil led their constitution-makers to approach fundamental rights not as mere legal formalities, but as essential safeguards against backsliding into oppression. The resulting documents, though products of very different historical circumstances, share a profound commitment to making constitutional rights effective barriers against the recurrence of past abuses. Therefore, the 1950 and 1988 Constitutions exemplify how constitutional secularism and rights frameworks are contingent on historical trauma.

India’s pluralist model emerged from the imperative to hold a multi-religious society together; Brazil’s neutralist approach sought to purge authoritarian legacies while confronting latent Christian dominance. Both systems grapple with majoritarian pressures, whether Hindu nationalism or evangelical and Christianism lobbies, demonstrating that constitutional promises are perpetually tested by societal realities.

CHAPTER 3

CONTEMPORARY CHALLENGES: SECULARISM UNDER STRAIN IN INDIA AND

BRAZIL

3.1 THE INDIAN MODEL OF SECULARISM AND THE RIGHT TO RELIGIOUS

FREEDOM

The Indian Constitution of 1950, emerging from the ashes of colonial subjugation and the cataclysmic violence of Partition, established a visionary framework for governing one of the world’s most religiously diverse societies. Its architects confronted the formidable task of forging unity from profound fragmentation, caste hierarchies that had structured social relations for millennia, linguistic divisions spanning hundreds of dialects, and a mosaic of faiths encompassing Hinduism, Islam, Sikhism, Christianity, Buddhism, and indigenous traditions. At the heart of their response lay an unprecedented codification of rights in the Indian constitutionalism, Part III of the Constitution, which enshrined fundamental guarantees of equality, liberty, and dignity as inviolable protections against both state overreach and societal oppression.

Central to this framework was Article 14’s guarantee of equality before the law and equal protection under it. Embedded within this principle was the recognition that historical systems of discrimination, particularly caste-based oppression, required not just prohibition but active dismantling. Articles 15 and 17 operationalized this vision, explicitly banning discrimination on grounds of religion, race, caste, sex, or place of birth, and abolishing the practice of untouchability. These provisions reflected the Constitution’s transformative ambition: to reconstitute Indian society through legal means, replacing hierarchical traditions with a civic identity rooted in equal citizenship. Crucial to this project was the constitutionalizing of a religious freedom.

Articles 25 to 28 delineated a carefully calibrated secular compact: individuals were granted the freedom of conscience, to profess, practice, and propagate religion, as stated in article 25, while the state was empowered to regulate secular activities associated with religious practices and to intervene in matters of social reform, as article 25, item 2. 14 Simultaneously, the state was prohibited from levying taxes for religious purposes, according to article 27, or from mandating religious instruction in state-funded institutions, article 28. This architecture sought to balance pluralism with unity, preserving the autonomy of religious communities while preventing faith from becoming a tool of political division. The framers’ insistence on embedding religious freedom within the equality framework was deliberate and consequential.

By situating these rights within Part III’s justiciable guarantees, they ensured that claims of religious discrimination or state favoritism could be adjudicated by an independent judiciary. This design acknowledged the lessons of Partition, that religious identity, when politicized, could fracture the nation, while rejecting the colonial strategy of exploiting communal differences. The Constitution’s secularism, therefore, was not mere 14 “25. Freedom of conscience and free profession, practice and propagation of religion. —(1) Subject to public order, morality and health and to the other provisions of this Part, all persons are equally entitled to freedom of conscience and the right freely to profess, practice and propagate religion.

(2) Nothing in this article shall affect the operation of any existing law or prevent the State from making any law—(a) regulating or restricting any economic, financial, political or other secular activity which may be associated with religious practice; (b) providing for social welfare and reform or the throwing open of Hindu religious institutions of a public character to all classes and sections of Hindus. Explanation I. —The wearing and carrying of kirpans shall be deemed to be included in the profession of the Sikh religion. Explanation II. —In sub-clause (b) of clause (2), the reference to Hindus shall be construed as including a reference to persons professing the Sikh, Jaina or Buddhist religion, and the reference to Hindu religious institutions shall be construed accordingly. ” INDIA. The Constitution of India. As on 1st May. 2024.

Government of India Ministry of Law and Justice Legislative Department, Official Languages Wing, 2024.

neutrality but an affirmative commitment to managing diversity through law, ensuring that no community could claim hegemony while none would face marginalization. However, the Indian constitutional framework for religious freedom established a nuanced demarcation between spheres of state authority and religious autonomy. Article 25, item 2, a, explicitly acknowledges the state’s prerogative to regulate activities of a secular nature that may be tangentially linked to religious institutions, while simultaneously insulating core religious practices from governmental interference. This distinction reflects the Constitution’s dual objectives: preserving the integrity of faith traditions while enabling progressive social reforms.

Complementing this provision, Article 26 grants religious denominations broad autonomy to manage their internal affairs, including the establishment of institutions, administration of property, and observance of rituals. While Article 26 grants religious denominations broad autonomy to self-regulate matters of doctrine, property, and ritual observance, this autonomy intersects with a parallel legal system: the coexistence of state-enforced religious personal laws governing family matters such as marriage, divorce, inheritance, and adoption. This dual structure, where civil law coexists with faith-based jurisprudence, reflects India’s historical negotiation with colonial legacies and its commitment to managing religious diversity through legal pluralism.

The personal law system originated under British colonial rule, which institutionalized separate legal regimes for Hindus, Muslims, Christians, and Parsis as part of a divide and rule strategy. By codifying and ossifying religious traditions into statutory law, as stated in the Hindu Marriage Act of 1955; and in the Muslim Personal Law Application Act from 1937, the colonial state sought to administer justice through communal categories rather than universal principles15. Post-independence India retained this system, despite its incongruity with the 15 About this subject, an interesting study about these religious legal systems and its impacts in the gender aspects in India, was held by Herklotz.

She stated that India's family law system is characterized by legal pluralism, commonly known as the personal law system, wherein different religious communities, Hindus, Muslims, Christians, Jews, and Parsis, are governed by their respective laws. These laws, whether codified or uncodified, regulate matters such as marriage, divorce, maintenance, adoption, and inheritance. While pre-colonial customs varied significantly by region, caste, and social affiliation, British colonial rule contributed to the rigidification of these distinct legal systems. The British largely refrained from interfering with personal laws to mitigate opposition to colonial rule, though they did modify certain religious practices deemed unjust or barbaric, particularly when supported by local elites or reformers. Additionally, British judges influenced the legal framework through judicial interpretation.

For instance, Muslim personal law underwent significant reform in the 1930s with the enactment of the Muslim Personal Law (Shariat) Application Act (1937) and the Dissolution of Muslim Marriages Act (1939). The former standardized Muslim personal matters under Sharia, while the latter granted Muslim women judicial divorce rights. Unlike Hindu law, which traditionally viewed marriage as an indissoluble sacrament, Muslim law considered it a dissoluble contract, historically offering women

Constitution’s egalitarian aspirations, as a pragmatic concession to religious minorities wary of majoritarian imposition. Hence, article 26’s guarantee of religious self-governance enables communities to preserve distinct family law systems. For instance, Muslim Personal Law permits polygyny and unilateral divorce, practices criticized as gender-discriminatory but defended as integral to Islamic identity. While Hindu Personal Law, reformed through legislation in the 1950s, abolished polygamy and introduced divorce provisions, reflecting state-driven social modernization. However, this autonomy exists in tension with constitutional guarantees of equality and gender justice, what might be a contrast to the statements of articles 14 and 15, for example.

Thus, the judiciary has frequently mediated this conflict through the Essential Practices Doctrine, determining whether specific personal law provisions constitute essential religious practices deserving protection. The judiciary’s role in mediating these tensions became pivotal through the development of the Essential Practices Doctrine. This jurisprudential tool, first articulated in the case Commissioner, Hindu Religious Endowments v. Sri Lakshmindra Thirtha Swamiar, in 195416, comparatively greater rights in divorce and inheritance. Before independence, Muslim law was perceived as progressive, contrasting with Brahmanical Hindu law and Christian matrimonial law, which were more restrictive toward women. This historical context is often overlooked in contemporary debates that label Muslim personal law as backward and discriminatory. According to: HERKLOTZ, TANJA.

Südasien-Chronik - South Asia Chronicle 5/2015, S. 369-398. Südasien-Seminar der Humboldt-Universität zu Berlin. ISBN: 978-3-86004-316- 5. Available at: . Accessed in April 2025. 16 The case in question represents one of the earliest instances where the Supreme Court of India adjudicated on matters pertaining to religion following the enactment of the Constitution of 1950. The dispute centered on the constitutional validity of several provisions of the Madras Hindu Religious and Charitable Endowments Act, 1951 (Madras Act XIX of 1951), specifically Sections 21, 30(2), 31, 55, 56, 63 to 69, and 76. The Court examined whether these provisions were ultra vires the Constitution, particularly Articles 19(1)(f), 25, and 26.

The Court held that Sections 21, 30(2), 31, 55, 56, and 63 to 69 of the Act were indeed ultra vires the Constitution, as they violated the fundamental rights guaranteed under Articles 19(1)(f), 25, and 26. These provisions were found to infringe upon the right to property, the freedom of religion, and the right of religious denominations to manage their own affairs. Regarding Section 76(1), the Court ruled it void on the grounds that the annual contribution mandated under this provision constituted a tax rather than a fee. Since the imposition of taxes fell outside the legislative competence of the Madras State Legislature, the provision was deemed invalid.

However, the Court clarified that this imposition did not violate Article 27 of the Constitution, as the contribution was not intended to promote or preserve the Hindu religion but rather to ensure the proper administration of religious trusts and institutions. The Court provided an expansive interpretation of the term property under Article 19(1)(f), stating that it should encompass all recognized forms of proprietary rights. It further affirmed that a Mahant (a religious office-holder) holds a composite right blending both office and property, thereby entitling them to constitutional protection under Article 19(1)(f). Additionally, the judgment elucidated the distinction between a tax and a fee.

A tax was defined as a compulsory levy for public purposes, not tied to any specific service, whereas a fee was characterized as a payment for a particular benefit or service rendered by the government. The Court emphasized

empowered courts to determine which aspects of religious practice constitute essential elements of faith meriting constitutional protection, and which may be subject to state regulation or reform. The doctrine impassioned arguments during the Constituent Assembly Debates, where was emphasized the necessity of state intervention to dismantle oppressive social hierarchies masquerading as religious mandates17. By distinguishing between immutable theological tenets and mutable cultural practices, the doctrine sought to reconcile religious pluralism with constitutional commitments to equality and dignity. This framework has enabled landmark reforms, such as the prohibition of discriminatory temple entry practices against Dalits and the validation of legislation banning regressive customs like triple talaq.

However, its application remains contentious, particularly when courts are called upon to define the essence of faith traditions, a task critics argue risks judicial overreach into theological domains. The doctrine’s subjective nature has led to inconsistent outcomes, with courts occasionally privileging majoritarian interpretations of Hinduism while scrutinizing minority practices more rigorously, as stated before in this article. These tensions underscore the delicate equilibrium India’s secular model seeks to maintain: empowering the state to act as an agent of social transformation while restraining it from eroding the pluralist foundations of religious freedom.

3.2 THE ESSENTIAL PRACTICES DOCTRINE AND THE CRISIS OF SECULAR

ADJUDICATION IN CONTEMPORARY INDIA

The Essential Practices Doctrine (EPD), a jurisprudential framework developed by Indian courts to demarcate the boundaries of constitutional religious protections, has emerged as one of the most complex and contested aspects of India's secular democracy. This doctrine, which attempts to distinguish between core religious practices deserving constitutional protection and that while fees are ideally based on the cost of services provided, they are often assessed arbitrarily. The ruling also discussed the scope of Articles 25 and 26, reaffirming the protections granted to religious freedoms and the autonomy of religious denominations. The terms Mathadhipati (head of a religious institution) and "religion" were also clarified within the constitutional framework.

In summary, the Supreme Court struck down several provisions of the Madras Act for infringing upon fundamental rights, delineated the nature of property rights under the Constitution, and clarified the legal distinctions between taxes and fees. The judgment reinforced the constitutional safeguards for religious institutions while ensuring legislative competence was respected. INDIA. Supreme Court of India. The Commissioner, Hindu Religious Endowments, Madras vs. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt.

SCR

Citation: [1954] S.C.R.

1005. Available at: . Accessed in March 2025. 17 INDIA. Constituent Assembly Debates Official Report. Appendix D. Interim report of the excluded and partially excluded areas (other than assam) sub-committee of the advisory committee (Constituent Assembly of India), p. 144.

peripheral customs subject to state regulation, reflects the fundamental tension at the heart of Indian secularism: how to balance religious autonomy with constitutional guarantees of equality and individual dignity. What began as a well-intentioned judicial tool to enable social reform has gradually evolved into a source of significant constitutional controversy, raising profound questions about the proper role of the state in matters of faith. The origins of this doctrine can be traced to the Constituent Assembly debates, as mentioned above, which envisioned a transformative constitutional order capable of reconciling India's religious diversity with the dismantling of oppressive social structures.

The underlying premise held that certain harmful traditions, particularly those rooted in caste and gender discrimination, constituted social distortions rather than genuine religious expressions, thereby justifying legislative intervention. However, the application of this doctrine has proven far more complicated in practice than in theory. Indian courts have found themselves thrust into the uncomfortable position of theological arbiters, required to determine what constitutes the essential aspects of various faith traditions. This judicial function creates an inherent paradox, secular courts must make determinations about religious orthodoxy, often without adequate theological expertise or consistent methodological frameworks.

The resulting jurisprudence has been marked by significant inconsistency, with courts sometimes deferring to religious authorities' interpretations of essential practices, while in other cases imposing their own rationalistic readings of religious texts and traditions18. 18 About how the Indian courts have been facing these aspects, concerning to the Hinduism religion, a research that might be cited was held by Ronojoy Sen. The text examines how the Indian judiciary, particularly the Supreme Court, has interpreted and reshaped Hinduism through the "essential practices" doctrine, distinguishing between what is deemed authentic religion and what is classified as superstition or non-essential practice.

This approach reflects an attempt to align Hinduism with modernist and rationalist principles, often marginalizing popular traditions in favor of an institutionalized and purified vision of the religion. The essential practices of Hinduism, as defined by the court, primarily include rituals, ceremonies, and modes of worship considered foundational to Hindu spirituality, as derived from sacred texts such as the Vedas, Upanishads, and Agamas. The judiciary tends to favor a "high" Hinduism associated with reformist figures like Vivekananda and Radhakrishnan, emphasizing universalist and ethical spirituality, while dismissing localized and devotional expressions as "superstitious" or "irrational. " However, this distinction between essential and non-essential practices is contentious, as the court assumes a quasi-theological role in determining what constitutes "true religion.

" This has led to extensive state intervention in temple administration and religious institutions, often undermining the autonomy of Hindu communities. Moreover, the emphasis on a rationalist and text-based interpretation of Hinduism overlooks the diversity of practices and beliefs that characterize Hindu tradition in its lived, popular forms. In summary, by applying the essential practices doctrine, the Indian Supreme Court has promoted a version of Hinduism that prioritizes uniformity, social reform, and rationality—often at odds with the religion's inherent pluralism. This judicial approach has profound implications for religious freedom and the relationship between state and religion in India, raising critical questions about the extent to which courts should intervene in matters of faith and

Defining religion itself is an inherently complex and contentious task, as even legal scholars and judges have acknowledged the near-impossibility of establishing a precise and universally applicable definition19. A workable legal definition must strike a delicate balance, being neither too narrow, which risks excluding marginalized or less-recognized faiths from constitutional protections, nor too broad, which could invite misuse or trivialization of religious privileges. The challenge lies in distinguishing between core religious beliefs and peripheral practices while avoiding subjective biases that may favor dominant traditions over minority or unconventional spiritual expressions. This difficulty is further compounded by the dynamic and evolving nature of religious practices, which often resist rigid categorization within legal frameworks designed for static interpretations20.

As a result, judicial attempts to define religion and by extension, its essential aspects frequently reflect ideological or reformist agendas rather than neutral, objective criteria. This ambiguity has led to a series of controversial judgments that have alternately expanded and contracted the sphere of religious autonomy. It reveals a fundamental tension between two competing constitutional imperatives: the protection of religious freedom for India's diverse communities, and the guarantee of equal citizenship rights for all individuals regardless of faith. The Essential Practices Doctrine now stands at a critical juncture, with its continued application raising serious concerns about judicial overreach and the potential erosion of religious pluralism.

As India's political landscape becomes increasingly shaped by majoritarian impulses, the doctrine risks being weaponized to target minority practices while leaving majority traditions undisturbed. The resulting perception of unequal treatment under the law threatens to undermine the very secular principles the doctrine was meant to uphold. This growing crisis of legitimacy suggests that India may need to reconsider whether judicial determinations of religious essentiality remain the most appropriate mechanism for reconciling religious freedom with other fundamental rights in an increasingly polarized society. tradition. According to: RONOJOY, Sen. “The Indian Supreme Court and the Quest for a ‘Rational’ Hinduism. ” South Asian History and Culture, 2009. 1 (1): 86–104. doi:10. 1080/19472490903387258. 19 NEO, Jaclyn L.

“Definitional imbroglios: A critique of the definition of religion and essential practice tests in religious freedom adjudication”. International Journal of Constitutional Law. Volume 16, Issue 2, April 2018, Pages 574–595, https://doi. org/10. 1093/icon/moy055. 20 SAJÓ, András; UITZ, Renáta. Freedom of Religion. The Oxford Handbook of Comparative Constitutional Law. p. 909 to 915.

3.3 THE BRAZILIAN MODEL OF A SECULAR STATE

The Brazilian constitutional approach to secularism has undergone significant transformation since the country's independence. For instance, the 1824 Imperial Constitution, while innovative for its time in guaranteeing freedom of belief, explicitly maintained Catholicism as the official state religion. Article 5 of this charter permitted other religions only to conduct private worship in designated spaces, prohibiting any outward manifestations resembling temples. This arrangement reflected the close relationship between the Brazilian state and the Catholic Church during the imperial period. The establishment of the Republic in 1889 brought a radical change with the 1891 Constitution, which in Article 72, §3 introduced full freedom of worship for all religions.

This provision allowed religious groups to practice their faith publicly, associate freely, and acquire property, subject only to common law regulations. All subsequent Brazilian constitutions maintained this principle of religious freedom, progressively strengthening the secular character of the state. The current 1988 Constitution represents the most comprehensive expression of the Brazilian secular model. It establishes two fundamental principles: the prohibition on state establishment of religion, stated in article 19, item I, and the guarantee of inviolable religious freedom, guaranteed in article 5, item VI. This framework protects not only the freedom to believe and worship but also encompasses the right to non-belief, ensuring equal protection for atheists and agnostics. The Brazilian Supreme Federal Court has played a crucial role in interpreting these provisions.

In its jurisprudence, the Court has affirmed that religious expressions cannot be censored by the judiciary, even when potentially controversial21. This position reflects the constitutional commitment to protecting religious pluralism while maintaining state neutrality. 21 The First Panel of Brazil’s Federal Supreme Court (STF), by majority decision, granted an Ordinary Appeal in Habeas Corpus to dismiss a criminal case against Monsignor Jonas Abib of the Catholic Church, who was accused of inciting religious discrimination. The case, originally filed in the Court of Justice of Bahia (TJ/BA), stemmed from allegations that Abib’s book, "Sim, Sim, Não, Não – Reflexões de cura e libertação," contained discriminatory statements against Spiritism and Afro-Brazilian religions such as Umbanda and Candomblé, violating Article 20, §§ 2o and 3o, of Law 7. 716/1989.

The rapporteur, Justice Edson Fachin, acknowledged that while the book’s language could be seen as hostile, it did not meet the legal criteria for criminal incitement to religious discrimination. He emphasized that freedom of religion encompasses not only belief but also proselytism, even if it involves criticism of other faiths. Fachin argued that the judicial system should not suppress religious expression unless it directly incites violence or oppression, distinguishing between morally objectionable speech and criminally punishable conduct. The defense, led by attorney Belisário dos Santos Jr. , contended that

Building upon Brazil's constitutional secular model, the Constitution of 1988 establishes important provisions regarding the tension between individual conscience and collective obligations. The Constitution carefully balances the inviolability of religious freedom and philosophical convictions with the necessary requirements of civic life in a democratic society. Article 5, item VIII, guarantees that no one shall be deprived of rights due to religious belief or philosophical or political conviction. The only aspect in which the Brazilian legal system might grant an exception to citizens regarding religion is also contained in this same article, endorsing that this protection cannot be used as justification for failing to comply with legal obligations applicable to all citizens, unless the individual also refuses to fulfill an alternative duty established by law.

This constitutional arrangement reflects the sophisticated equilibrium between individual liberties and social responsibilities that characterizes Brazil's secular state model. The framers recognized freedom of conscience as the cornerstone of all other intellectual freedoms, particularly in the political sphere where the exercise of partisan activities must not lead to restrictions of fundamental rights. However, Article 15, item IV, establishes a clear consequence for those who invoke conscientious objections: the refusal to comply with either the original obligation or its lawful alternative results in the loss of political rights. The Brazilian system goes beyond the traditional understanding of conscientious objection limited to military service.

The constitutional protection extends to various civic duties that might conflict with sincere religious, philosophical or political beliefs. This includes electoral obligations such as mandatory voter registration for citizens over 18 and compulsory voting for those between 18 and 70 years old, as established in Article 14 of the Constitution. For these cases, the Electoral Code provides specific alternative compliance mechanisms, including justification for absence or payment of monetary fines. the book was intended for doctrinal persuasion rather than hate speech, targeting Catholics who also practiced other religions. They argued that isolated excerpts should not be interpreted as incitement to discrimination, stressing the importance of evaluating the work in its entirety.

Following the ruling, the defense hailed it as a landmark decision on religious freedom, setting a precedent for future cases. The sole dissenting opinion came from Justice Luiz Fux, who believed the case warranted further judicial examination. Justices Rosa Weber, Marco Aurélio, and Luís Roberto Barroso sided with Fachin, upholding the dismissal of the charges. The decision reaffirmed constitutional protections for religious expression while acknowledging the ethical responsibility to promote interfaith respect. BRAZIL. STF (Supreme Federal Court of Brazil). 1st Panel. RHC 134,682/BA. Reporting Justice: Edson Fachin. Decided on: Nov 2016. Available at: . Accessed in March 2025.

Similarly, the constitutional framework contemplates conscientious objection in other areas of civic life, such as jury duty. This comprehensive approach demonstrates how Brazil's secular model attempts to accommodate diverse belief systems while maintaining the effective functioning of democratic institutions. The requirement to fulfill alternative forms of compliance represents a pragmatic solution that acknowledges both individual conscience and collective responsibilities. The Brazilian approach to conscientious objection thus complements and reinforces its model of secular governance.

By recognizing the legitimacy of diverse belief systems while establishing clear boundaries for their exercise in relation to civic duties, the constitutional framework maintains both the state's neutrality in religious matters and its authority to require essential participation from all citizens in the democratic process. This careful balance continues to evolve through judicial interpretation and legislative refinement, reflecting the dynamic nature of constitutional secularism in contemporary Brazil. However, Brazilian ́s secular model differs significantly from the Indian approach. Unlike India's system of religious personal laws, Brazilian law maintains a uniform civil code that applies equally to all citizens regardless of religious affiliation.

The Brazilian state does not recognize different legal regimes based on religious identity, opting instead for a system where all religious groups stand equally before a common legal framework.

CHAPTER 4

CONCLUSION

The comparative analysis of India’s 1950 Constitution and Brazil’s 1988 Constitution reveals two distinct yet equally compelling models of secular governance, each shaped by the historical traumas that forged them. While both frameworks formally enshrine state neutrality toward religion, their approaches diverge in ways that reflect their unique sociopolitical contexts, offering critical insights into the possibilities and limitations of constitutional secularism in pluralistic democracies. India’s constitutional secularism emerged from the ashes of Partition, a cataclysmic event that redefined the subcontinent along religious lines. After the violence of 1947, it necessitated a constitutional order capable of transcending communal divisions while accommodating India’s

civilizational pluralism. The framers sought to balance religious autonomy with social reform, recognizing religion as a legitimate axis of legal pluralism while empowering the state to intervene against practices incompatible with equality. This delicate equilibrium is enshrined in the Indian Constitution, which guarantee religious freedom while authorizing state regulation of secular activities linked to religion. The retention of religion-specific personal laws, like governing marriage, inheritance, and divorce for Hindus, Muslims, Christians, and Parsis, reflects a pragmatic compromise with India’s multicultural past. The Brazilian path to secularism diverged markedly from the Indian, but was born in some sense to a similar context.

The 1988 Constitution emerged not from communal violence but from a struggle against military authoritarianism, which had suppressed civil liberties and entrenched social inequalities. Unlike India’s negotiated independence, the Brazilian secularism represented a rupture with its colonial and authoritarian past, particularly the Catholic hegemony that had dominated in the Portuguese rule period, until a century and a half before. The constitutional prohibition on state establishment of religion and the guarantee of inviolable religious freedom sought to dismantle centuries of informal Catholic privilege. However, Brazil’s secular model prioritized uniform citizenship over differentiated rights, rejecting India’s pluralistic accommodation of religious laws in favor of a singular civil code applicable to all citizens, regardless of faith.

India’s constitutional framework acknowledges religion as a fundamental facet of identity, permitting faith-based personal laws while mandating state intervention to align religious practices with constitutional morality. This approach is exemplified by the judiciary’s Essential Practices Doctrine, which distinguishes between protected religious rituals and customs subject to regulation. Landmark reforms, such as the abolition of untouchability, demonstrate the state’s role as an agent of social transformation. Yet this model faces persistent challenges, the coexistence of personal laws risks institutionalizing communal divisions. The judiciary’s subjective application of the Essential Practices Doctrine has led to accusations of majoritarian bias, particularly when scrutinizing minority practices, while deferring to Hindu or Muslim traditions.

Rising Hindu nationalism further tests the Constitution’s pluralist foundations, as laws like the Citizenship Amendment Act (2019) privilege non-Muslim migrants, undermining the secular promise of equal

citizenship. The Brazilian Constitution of 1988 repudiated authoritarian legacies by enshrining secularism as a cornerstone of democratic governance. Unlike India, Brazil’s framework rejects legal pluralism, insisting on uniform citizenship irrespective of religious affiliation. The constitutional text explicitly protects atheists and agnostics, and the Supreme Federal Court (STF) has reinforced this commitment through rulings that limit religious influence in public institutions, such as banning proselytism in schools, as stated in this article. Thus, while India and Brazil adopted secularism in response to distinct historical traumas, their constitutional journeys share striking parallels. Both frameworks emerged as correctives to systemic rights violations, colonial divide-and-rule policies in India, authoritarian repression in Brazil.

Both constitutions enshrined fundamental rights as bulwarks against backsliding, with India’s Part III (Fundamental Rights) and Brazil’s Article 5 serving as moral compasses for democratic governance. Nevertheless, their approaches to secularism still diverge fundamentally. Legal pluralism against uniform Citizenship, India accommodates religious diversity through differentiated legal regimes, whereas Brazil achieved and insists on uniform civil law. In a judicial role, Indian courts actively mediate religious-state relations through doctrines like Essential Practices, while Brazilian courts focus on maintaining formal neutrality, as seen in rulings against religious symbols in public spaces. Ultimately, the comparative analysis underscores that constitutional secularism is not an endpoint but a continuous project of democratic renewal.

Its success depends on vigilant citizenship, robust institutions, and the courage to confront both discrimination and subtle cultural privilege. As rising majoritarianism tests these frameworks globally, the Indian and Brazilian experiences offer cautionary tales and hopeful precedents for pluralistic democracies navigating the fraught intersection of faith and state.