Secularism And Right To Freedom Of Religion In India
Author: LawSphereX
Category: Constitutional & Human Rights
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SECULARISM AND RIGHT TO FREEDOM OF RELIGION IN
INDIA
Vidhi Chauhan, BA LLB (Hons), United World School of Law, Karnavati University
ABSTRACT
India is a multi-religious country with rich culture and heritage. Secularism and right to freedom of religion are two fundamental principles enshrined in our constitution. The word Secular was inserted in our constitution through 42nd Constitutional Amendment. This article examines the concept of secularism and right to freedom of religion in the context of India. Many claims and questions the secular nature of India as it lacks the separation of state and religion defined in western concept, while there is another thought that claims India as a secular state and to not view its concept through the lens of west. As India being a developing nation, the context of secularism is different from the west. We have our own version of secularism in order to protect the traditional and cultural values along with leading to the modernization.
This concept is not new to India as there are roots of it in the history. This Article discusses its evolution regarding constitutional assembly debates and the intentions of constitution framers in making India a secular state, constitutional provisions promoting its values, case laws of Judicial Interventions and its stand, current scenario, comparative analysis with western concept and understanding of different democracies regarding secularism. It puts effort to re-examine the challenges, its future and threats like communal riots, illiteracy, poverty, political corruption etc on secularism in India considering the conflicts due to religions in India, political impact and how it can lead to communalism. Keywords: Secularism, Freedom, Religion, Separation, State, Secular, Preamble
Introduction Secularism is a doctrine that the state and religion must be separated and the neutrality towards all religions. As the dark and old age faded to the past and the gradual emergence of the modern era, this gave the perspective to life in present rather than concerning about after life. There was an idea of materialistic world. This way of looking at life turned into the concept of secularism with modifications. The essence of this was to make people learn to live a life with rational and logical considerations rather than solely based on religious beliefs about the afterlife. However, it is not clear what is meant by secularism as there is no precise definition of it. Secularism has its origin from west.
Secularism is a western concept as a notion of nationalism and this term was coined by George Jacob Holyoake1 in 1851 but the secular idea and its features has been there for around centuries. Even though this concept emerged in fifteenth and sixteenth century, the world has not accepted the uniform character of this doctrine. This concept has different connotation and varies widely in different democracies depending on its socio-cultural background. For instance, in United State, the state and the church co-exist in the society and there is no interference in each other’s matters at all. There is a complete ‘wall of separation’. While in India, there is an equal religious tolerance. Indian Secularism has been in debate since the time of Independence. India's history related to its rich culture and plurality of religions has shaped the discussions of secularism.
It is explicitly mentioned in the preamble that India is secular after inserting the word "secular" in the preamble through the 42nd Amendment. It was not a matter of overnight for India to become secular as before an amendment, it could still be inferred from the provisions of constitutions which promotes secularism and neutrality towards religions. Article 15,16,17,25,26,27,28 etc are the ones that prove the secular nature of India. The idea behind Indian secularism is the religious tolerance, also known as "Sarva Dharma Sambhava". According to this principle, all religions are treated with equal respect. However, this principle does not explicitly advocate the separation of state and religion as in the concept of western secularism and this has become one of the reasons to question the secularism of India.
In this paper we will look into the concept of secularism in India and how it is different from Western Concept.
1 Holyoake, G.J., English Secularism: A Confession of Belief 47–48 (Library of Alexandria 1896).
Analysis
1. Concept of ‘Secularism’
There are definitely different formulae to interpret the concept of ‘Secularism’ as it is not completely clear. The word ‘Secular’ is a Christian term which find its original meaning in the Christian context. It was first used in the disputes between church and the state because of which there was a struggle for autonomy and pluralism in the governance and belief systems. Gradually, it became about religious freedom, democracy and tolerance. Secular State Secularism is a concept of separation of state and religion. It gives the freedom of conscience and the freedom from religious influence in the governance. It is not biased for any religion. All religions are equal before its law and should be treated equally. There is a separation of private and public life. There are the 3 main essential features of secularism, a) The state does not have its own religion.
b) It should not treat individuals on the basis of religion. c) It should treat individuals equally irrespective of their religion. There are 2 possible models of secularism. First, there is a complete ‘wall of separation’ between state and religion. In this model, there is no state intervention in religions and viceversa. Second, when there is a society of multi religions, the state should treat everyone equally. The state is equi-distant from all religions and not giving special treatment to any particular religion. This model is known as “non-discriminatory” and is in contrast with the former one as this allows state intervention on the grounds of fairness, social justice and public order in the society. Different democracies such as USA has a secular system where religion is a private matter and the state makes no involvement.
In Britain, there is an established model of church which is controlled by the state and other religions are tolerated and are given the freedom to govern
their own affairs without state intervention. In Indonesia and Netherlands, there is a jurisdictional system where the freedom of religion is given to its citizens but the state intervenes to some extent. In Japan, it reflects the western secularism where there is a clear separation between state and religion. Thus, there is no one such definition of secularism and it is different in different democracies of the world. We will not understand its concept in Indian context.
2. Indian Perspective of Secularism
The credit of secularism is mostly given to the western countries, but it is also important to note that from the time immemorial our country has preached and practised this concept. For example, Ashoka who transformed himself into the Buddhism never imposed his beliefs on his subjects to convert into a new religion, but he encouraged the perspective of religious tolerance, freedom of religion and the peaceful coexistence of different faiths in the kingdom. He took care of the welfare of the people irrespective of their faith and beliefs. Considering the modern context of Indian Secularism, it is a unity in diversity with India having the glorious diversities in religions, culture and their traditions. Indian secularism does not mean an opposition to religion or say irreligion but it is about equal respect towards all religions. India does not have any official state religion.
The concept of secularism in India is according to a multi-religious, multi-cultural and ancient traditions of a country. Since ancient time, India has followed and maintained the “religious tolerance” and equal respect to all religions. “Sarva Dharma Sambhava” is an appropriate concept of Indian Secularism but it is also to be noted that the word ‘secular’ is mentioned in our constitution explicitly but it is nowhere defined and explained which is why whether India is truly secular or not is still a debatable topic as the bitter experience of the Partition on the basis of religious animosity is still not forgotten. In the case of St. Xavier’s College v. State of Gujarat, the court explained the secular character of the state, “There is no mysticism in the secular character of the State.
Secularism is neither anti-God nor pro-God, it treats alike the devout, the antagonistic and the atheist. It eliminates God from the matters of the State and ensures that no one shall be
discriminated against on the ground of religion. ”2 It is different from western secularism as there is not a complete separation of state and religion in India. Separation does not mean the exclusion; the principled distance is the metaphor of separation. India follows the idea of “Principled Distance”, where there is no one-sided exclusion and both the state and religion can influence and interfere with each other if it is in consistence with the provisions of the constitutions. India follows the positive concept of secularism as there is an interference of a state which is subject to different factors because India is a developing nation and there is a constant need of social reforms from time to time.
The Constituent Assembly Debate To understand whether or not there was an intention of the constitution makers to incorporate the word secular explicitly in the preamble, it is important to look into the constituent assembly debates over it. When the preamble was discussed in the constituent assembly, there was a debate over incorporating the word secular to it. However, the clear ambiguity is seen in the debates about this term to be applied in Indian context. There were several questions and issues raised regarding its nature and application in India. During the debate, on 15th November, 1948, K T Shah one of the members of the assembly raised a demand to add the word to the preamble by saying, Sir, I beg to move: “That in clause (1) of article 1, after the words ‘shall be a’ the words ‘Secular, Federal, Socialist’ be inserted.
” and the amended article or clause will read as follows: “India shall be a Secular, Federal, Socialist Union of States. ”3 However, both Nehru and Ambedkar were opposed in adding the word explicitly but believed in Secularism. They both knew that secularism in its truest meaning and as being understood at its place of origin was not possible to be applied in Indian context.
2 St. Xavier’s College v. State of Gujarat, (1974) 1 SCC 717.
3 Constituent Assembly Debate Volume VII Part I, 15 November 1948.
B R Ambedkar argued,
“What should be the policy of the State, how the Society should be organised in its social and economic sides are matters which must be decided by the people themselves according to time and circumstances. It cannot be laid down in the Constitution itself, because that is destroying democracy altogether. ”4 By saying this, he made his stance clear to follow the spirit of secularism but avoiding the inclusion of the word to the preamble and thus the motion by K T Shah was rejected. There was an intention to further the secularism and although not inserting the word formally in the document, the assembly adopted the Articles 25, 26, 27, 28 and many others which emphasized the secularism in the constitutional philosophy.
Thus, they did not feel to mention it explicitly and their reasoning behind it can be understood with the words of Ian Copland when he wrote in his book ‘A History of State and Religion in India’ saying that, “since ‘Enlightenment Secularism’, with its core principle of separation, founded on the Protestant conception of religion as essentially a private concern with which states had no legitimate business, was never going to work in a country where rulers and religious publics had been interacting from time immemorial, it was better not to use the term at all, than to use it fraudulently,”5 Thus, through the debate and discussions over this word, it can be understood that while the word ‘secular’ might not be intended to be added by the constitutional framers, the constitution of India still reflects the essence and spirit of Secularism.
However, in order to follow the secularism in its original and truest form, the state must be disallowed from making any kind of interventions such as reservations, personal laws etc. The 42nd Amendment Act, 1976 The 42nd Amendment inserted the words ‘socialist’ and ‘secular’ to the original text of Preamble that declared India as ‘sovereign, democratic and republic’. In the landmark judgment of Kesavananda Bharati v. State of Kerala6, 1973, the court articulated the doctrine of basic structure where the parliament cannot change the basic structure of the constitution. However, Indira Gandhi’s government during the time of national
4 Constituent Assembly Debate Volume VII Part I, 15 November 1948.
5 Copland, I. et al., A history of state and religion in India. London: Routledge (2014).
6 Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225.
emergency came up with the 42nd Amendment which invalidated the ruling of the mentioned case. It gave the power to the parliament to amend any part of the constitution without the judicial review. The political system was moved towards parliamentary sovereignty. According to an American historian of the Indian Constitution, Granville Austin in his seminal text published during the time when the nation celebrated 50th Independence Anniversary, “The important Constitutional development of the Emergency, other than its very imposition, was the enactment of the Forty Second Amendment. Coming in November 1976, the amendment demonstrates the progression of the Prime Minister and her government from having near-absolute power without a coherent programme – other than the protection of her prime ministry to power expressed through fundamental constitutional change.
” There is a controversy going on over the years now. There is a debate to remove these 2 words and the PIL is filed by former Rajya Sabha MP Dr. Subramanian Swamy and various other people seeking for the removal of those words from the Preamble arguing that the framers of the constitution never intended to include these words and it was also argued that the insertion was beyond the amending powers in Article 368 given to the parliament as it also violated the doctrine of basic structure enunciated in the Kesavananda Bharati case. The Recent Supreme Court Ruling The Supreme Court in the petition filed by Balram Singh and various others regarding the inclusion of 'Secular' and 'Socialist' in the Preamble, upheld the inclusion and dismissed such petitions.
Arguments by Petitioners • The petitioners argued that the terms ‘secular’ and ‘socialist’ were not part of the Preamble when the Constitution was adopted in 1949. Adding these terms later through the 42nd Amendment (1976) altered the original intent of the framers and introduced retrospective changes. • They contended that the Constituent Assembly had specifically chosen not to include ‘secular’ and ‘socialist’ in the Preamble, indicating that these concepts were deliberately
excluded. • The insertion of these terms distorted the basic structure of the Constitution, which according to them was rooted in the original Preamble and could not be fundamentally altered. • The petitioners argued that Parliament exceeded its amending powers under Article 368, asserting that the Preamble, being a reflection of the Constitution’s essence, should not have been altered. Court’s Assessment The Division Bench of CJI Sanjiv Khanna and Justice Sanjay Kumar dismissed the petition. The court acknowledged the fact that constituent assembly did not initially agree to include the words ‘socialist’ and ‘secular’ in the preamble However, the court stated that the Constitution is a living document which gives power to the parliament to amend it according to article 368.
And the word secular was considered imprecise as many jurists and scholars had interpreted it as opposed to religion. If this argument of retrospectivity is accepted as being valid, then it is going to extend its implications to all the amendments that are going to be made to any section or part of the Constitution. Yet it is important that the authority of Parliament remains unquestionable and not at all vulnerable to any sort of challenge or dispute relating to its power to bring about amendments under Article 368. “The fact that the Constitution was adopted, enacted, and given to themselves by the people of India on the 26th day of November 1949, does not make any difference. The date of adoption will not curtail or restrict the power under Article 368 of the Constitution”.
“Over time, India has developed its own interpretation of secularism, wherein the State neither supports any religion nor penalizes the profession and practice of any faith”. 7
7 Dr. Balram Singh and Ors. Vs. Union of India and Anr., (2024) INSC 893.
Thus, the petitions were dismissed by the court as there were no legitimate cause. Constitutional Character of Secular Nation While framing the Indian constitution, the word ‘secular’ was not explicitly mentioned but the core values of secularism was still enshrined in our constitution. It is not that India was not secular at the time of the adoption of constitution but it was through the 42nd Amendment in 1976, the word ‘secular’ was incorporated explicitly in our Preamble. This emphasis a fact that constitutionally, India is a secular country. There are certain important provisions in the constitutions which shows the secular character of India, they are as follows: • Article 14 gives the right to equality. • Article 15 and 16 prohibits the discrimination on different grounds and religion is one of them. • Article 17 prohibits the ‘untouchability’.
• Article 19, 20 and 21 gives various different components of freedom irrespective of their religion. • Article 25 to 28 gives freedom of religion to practice, profess and propagate. • Article 44 imposes obligation on the state to form Uniform Civil Code for all the citizens equally. In S. R. Bommai v Union of India8, it was held by the Supreme Court that Secularism is a basic feature of the Indian Constitution. In the famous Shirur Mutt case, the court came up with the doctrine of ‘essential religious practices’ according to which the legality is dependent on the essential religious beliefs and not just following the law. Justice Mukherjea explains that, “... what constitutes the essential part of a religion is primarily to be ascertained with reference to the doctrines of that religion
8 S.R. Bommai v Union of India, (1994) AIR 1918.
itself. ”9 This judgment faced criticism but later developed as a precedent which was used further in case like beef ban case. D. E. Smith’s Definition “A secular state is one that guarantees individual and corporate freedom of religion; deals with individuals as citizens irrespective of their religion; is not institutionally connected to a particular religion; nor seeks either to promote or interfere with religion. ”10 According to him, there are 3 sets of relations, a) religion and the individual (freedom of religion); b) the state and the individual (citizenship); c) the state and religion (separation of state and religion). We will understand these relations with relevant to Indian Constitution. a) Religion and the Individual (Freedom of Religion) In this relationship between religion and an individual, the third factor which is the ‘state’ is excluded.
Freedom of religion gives freedom to an individual to embrace one religion of his choice and follow its teachings, participate in its worships, propagate its doctrines, holding office in its organizations and other activities. There is no interference from the state. The state cannot force anyone to follow any particular religion and cannot dictate the religious beliefs. It also cannot force him to pay taxes in support of a religion. However, there are certain areas where this freedom is limited and the state can legally regulate and interfere in the religious matters in the interest of public health, safety or morals. 9 Commissioner of Hindu Religious Endowments, Madras v. Sri Lakshmindra Thirtha Swamiar, Shirur, (1954) AIR 282.
10 Smith, D.E. India as a secular state (1981).
In India, freedom of religion is given under Article 2511 and exercise of which is subject to whatever mentioned in 25(1). Citizens have the right to freely profess, practise, and propagate any religion of their choice. Hence in India, a state can interfere in certain areas of religion and the right conferred to an individual is not absolute. For example, Practices like sati, or devadasi dedication which led to temple prostitution may be found in Hindu religion but the state has an authority and the constitutional power to ban it. The prohibition of human sacrifices is valid even though it has its basis in any religion. Hence subject to Art. 25(1).
12 Collective Freedom of Religion Collective freedom of religion in spelled out in Article 2613, which is to establish and maintain the religious institutions for charitable purposes, managing its own affairs on the matters of movable and immovable property and administering it in accordance with the law. Article 3014 which gives all the minorities to establish and administer educational institution of their choice irrespective of their religion or language and the state shall not discriminate in granting aid to those educational institutions. b) The state and the Individual (Citizenship) In this relationship between the state and an individual, the exclusion of the other factor ‘religion’ is necessary. There is an idea of nationalism where an individual is not identified as a citizen with respect to its religion but with the identity of the nation.
The secular state does not view an individual as a member of any particular religious group. Individual’s religious beliefs do not interfere the rights and duties of a citizen. • Non-discrimination on the grounds of religion (Article 1515). • Equality of Opportunity in Public Employment and religion is one of the grounds for
11 INDIA CONST. art. 25.
12 INDIA CONST. art. 25, cl. 1.
13 INDIA CONST. art. 26.
14 INDIA CONST. art. 30.
15 INDIA CONST. art. 15.
non-discrimination (Article 1616). • No discrimination in Educational Institution, a citizen cannot be denied an admission into any educational institution which is maintained or aided by the state on the grounds of religion, race, caste and language. (Article 2917). • Non-discrimination in Political Functions (Adult Suffrage – Article 32618), No Communal Electorates (Article 32519). c) The State and Religion (Separation of State and Religion) The integrity of the above two relations can be preserved with this relation. This is a conception of separation, of two mutually non-interfering institutions where each operates in its own sphere. It is clear that this relation does not exist in India as there are areas where the state interferes in the religious matters.
For example, financial administration to religious institutions, modifications in the religious personal laws, reformation of social evils prevailing in any religion that is the practice of excommunication from religious communities. The major reason why there is no such separation in India is that there is no such kind of ecclesiastical organization to regulate the state. However, there are other aspects of this relation which can be supported by Indian constitution. • In Indian constitution, there is no such provision which declares any state religion. • The religious instructions cannot be given in state school which is spelled out in Article 2820. • The citizen cannot be compelled to pay tax for the support, promotion or maintenance of any religion or religious denomination. This is enshrined in Article 2721.
Thus, India has first and second relation but lacks the third relation of strict separation of state
16 INDIA CONST. art. 16.
17 INDIA CONST. art. 29.
18 INDIA CONST. art. 326.
19 INDIA CONST. art. 325.
20 INDIA CONST. art. 28.
21 INDIA CONST. art. 27.
and religion as it is not possible for the rich culture and multi-religious country like India.
3. Indian v. Western Secularism
If considering the concept of Secularism in West, India is not a secular state because of these following differences and has its own concept of Secularism to justify it as a secular state. • Wall of Separation Western – There is a complete ‘wall of separation’ between the state and religion. India – There is a state intervention and interaction with the religion within the legal parameters. There is a connotation of religious tolerance. • Financial Aid Western – The state does not give the financial support to the religious educational institutions. India – The state chose the positive engagement and gives the financial aid to the religious educational institutions. • Intervention in Religious Practices Western – The state does not intervene the religious practices until and unless it violates the secular laws. Religion is a private sphere and is separated for public.
India – The state intervenes the religious practises to eradicate the social evils and promote social justice like sati, child marriage, dowry etc. Religion has some presence in public sphere as the state intervenes for trusts and funds. • Policies Western – Policies are not formed based on religious beliefs. India – Some policies related to religious endowments are influenced by religious principles.
Display of Religion Western – There is no open display of religion in public sphere except religious places. India – There is a manifestation of all religious expressions equally and is supported by the state.
4. Challenges and Future Threats To Indian Secularism
Indian Secularism faces many tough challenges which can weaken its ideal and core principles. • Communalism is one such challenge shaking the foundation of the secularism as there are some groups that uses religion for their political gains. Communal tensions and violence based on religions is a threat to Indian secularism. • The casteism which promotes social divisions makes it difficult to achieve the principle of equality enshrined in the secularism. Political parties often represent specific caste which increases caste-based tensions. Thus, this politicization of caste threatens to societal divisions as the parties may continue to exploit on the basis of religions and promoting caste divisions for electoral gains. • Traditional beliefs and some customs become hinderance towards a rational and secular society.
Addressing these challenges, it requires inclusive policies, reforms in education, efforts to promote social cohesion by bringing different religions and caste together. One of the solutions can be is by bringing the Uniform Civil Code across the country but it still comes with many hinderances and challenges. It is thus important to protect the secularism for keeping India united and safeguarding India’s pluralistic democracy and maintaining religious tolerance in this diverse society. Conclusion In conclusion, the concept of secularism in India is complexed and is deeply rooted in its diverse cultural history and the constitutional framework. However, the term “secular” may not be included in the original preamble but the principles and the values of secularism can be seen
the constitutional provisions. India’s version of secularism is rooted in the principle of religious tolerance and equal respect of all religious. The strict separation of state and religion is not followed by India as seen in West. This unique version has led to many complexities in this diverse society as it continues to navigate the challenges such as communalism, socio-political aspects and casteism.
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