Religious diversity, without a doubt, necessitates the protection of all religions, sects, and religious practices within India. Under our Constitution, it cannot be presumed that the worship of one religion confers superior rights from another religion. It is true that a person’s relationship to what they consider divine is profoundly internal, and it exists within the boundaries of a private sphere into which no other individual is permitted to intrude. This is why the Constitution guarantees all citizens the right to profess, practice, and spread religion. Often, worship provides relief for the human predicament. However, worship should not be bound to a rigid formula, and it is precise because religion is so deeply ingrained in the social fabric of Indian culture that the right to religious freedom has not been rendered absolute. The jurisprudence evolved by the Court has made an attempt to distinguish religion from secular matters. Over four decades ago, the Constitution was amended, and the Preamble included a specific reference of being secular. At its core, this affirmed what the Constitution has always affirmed: the equality of all faiths. Secularism cannot be lost in the passage of time by ignoring everyone’s expression of religious freedom.
By implementing the law, the State has enshrined and operationalized a constitutional commitment to defend the equality of all religions and secularism. The legislation shall establish an irrevocable obligation to uphold the Constitutional commitment to secularism. Thus, the law is a legislative instrument designed to safeguard the secular character of the Indian polity, which is one of the basic structures of the Constitution. Non-regression is a vital characteristic of the fundamental constitutional principles, one of which is secularism. The statutes are a form of governmental action that safeguards non-regression as a fundamental characteristic of our secular principles.
A nine judge Bench decision of the Hon’ble Supreme Court in S R Bommai vs. Union of India (1994) 3 SCC 1, Justice B P Jeevan Reddy held that Secularism is so more than an indifferent attitude toward religion. It is a positive concept of treating all religions equally. This attitude is one of neutrality toward religion or one of benevolent neutrality. This may be a concept developed by Western liberal ideas or, as some assert, an enduring faith held by the Indian people throughout history. That is irrelevant. What is significant is that it is a stated constitutional objective and a fundamental characteristic of the Constitution in Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225. Any action that contradicts this constitutional policy is, in a nutshell, unconstitutional.
Article 25 & 26 VIS-À-VIS SECULARISM
Religious minority rights under Articles 25 and 26 are essentially derived from the Irish Constitution. These rights teach us that every individual has the freedom to freely proclaim and propagate religion which strengthens secularism as a constitutionally committed way of Life. Now, the word proliferate was inserted as a result of a subsequent amendment; it was not included in the original constitution. The final text included the word propagate, which sparked controversy over its meaning.
Did it refer solely to the expression of views or also to the right to convert? This question came up before the Hon’ble Supreme Court in a reference case Rev. Stainislaus vs. State of Madhya Pradesh & Ors, 1977 SCC (1) 677, where it was correctly held that while there is unity in diversity in this country, one may certainly express one’s views on one’s own religion and on the religions of others, there cannot be a right to convert someone under the term propagate. All of these rights are conditional to public order, morality, and health, all of which have been directly derived from the Irish Constitution. Religious minority rights under Articles 25 and 26 have strengthened secularism as a resting place for citizens in our constitution that ensures fraternity i.e. another cardinal value of our Constitution, among citizens that will keep India as a united nation.
SEMANTICS OF SECULARISM IN DIRECTIVE PRINCIPLES
The Catholic religion was given primacy in the Free State of Ireland by Article 44 of the original Irish Constitution. Our directive principles are derived from Article 45 of the Irish Constitution, which was derived from an earlier Spanish Constitution. The Spanish Constitution was also a Catholic document that adopted this terminology from a Papal Bull. A Papal Bull was traditionally the papal order issued by the Vatican. Thus, when we constitutionally discuss weaker parts, the welfare of the public, and the distribution of material resources in the most efficient manner possible to serve the general good, we are not borrowing from Karl Marx; we are borrowing from the Popes of Vatican. Additionally, our Constitution contains provisions prohibiting cow slaughter as a Directive Principle, the prohibition of liquor, and the fact that only Hindu Temples will be opened under Article 25. All these directive principles inserted in Part IV of the Constitution have promoted, evolved and strengthened secularism as an established constitutional norm in India throughout the constitutional history of free India.
AMENDMENT OF THE PREAMBLE
It is quite understandable that the framers of the Constitution prudently avoided the term ‘secular’ or ‘secularism’ in the Constitution. It was not used since our founding fathers were aware that we had acquired Directive Principles of State Policy from the Irish Constitution that in turn borrowed it from the Papal Bull of Catholic Christian Theocrats. Our own brilliance was also required to acclimate those Bulls to us, which is why we have provisions for village panchayats, cow slaughter, and so forth. Having discussed all these facts, our constitution since the very beginning was secular in its character, value system, and commitment.
Mrs. Indira Gandhi inserted the word secular considerably later in the 42nd Amendment in the preamble to the Constitution of India and changed “sovereign democratic republic” to a “sovereign, socialist secular democratic republic”. This addition of the word ‘secularism’ was neither a sudden nor an impetuous act, rather it was felt the need of the hour based on the diversity of the country. The term ‘Secular’ means not connected to a religion or religious matters. Religion is considered to be a personal choice to an individual without any differential treatment to any section of the Society in a positive and negative way.
The ‘secularism’ known in the Vedic Era as the concept of ‘Dharma Nirapekshata’ i.e. non-interference of the State to a religion or to religious matters. Dharma cannot be only translated as Religion. Dharma, in Vedas-Upanishads, Dharmasutras and Dharmashastras, and Ramayana and Mahabharata refers to the Power (Shakti) that holds everything together in essence; therefore, the term itself is secular and applies to whole humanity in all dimensions including religion. Thus, religion, the organizational, institutional, the rite-ritual centric activities, and organized-institutionalized belief system – is only a part aspect and an aspect of many manifestations of Dharma.
Translating Dharma as religion is like taking part for the whole. Since Nirapekshata (impartiality) itself is Dharma, the term Dharma-Nirapeksha renders an absurd and ludicrous connotation. That is why, at best, secularism may be translated as Religion- Nirapeksha or Sect- Nirapeksha, but never as Dharma- Nirapeksha as per Vedic Import.
However, in the modern connotation, Dharma Nirapeksha is closely associated with or translated as secularism which is largely accepted and applied because secularism calls for a doctrine where all religions are given equal status, recognition, and support by the State or it can also be defined as a doctrine that promotes separation of State from religion. It is evident that this doctrine was embedded in our culture way before this principle was propagated by liberal democracies or their constitutions.
MEANING OF LACK OF STATE’S RELIGION
Secularism though not a feature of democracy yet, it has become one of the widely accepted consequences in a liberal democratic set-up. People generally view religion as a private affair in which the State shall not interfere. An atheist has an obvious interest in supporting secularism, but secularism by itself does not seek to challenge the tenets of any particular religion or belief, nor does it seek to impose atheism on anyone. Secularism is simply a mode for ensuring equality to all religions including atheists throughout society – in politics, in education, in the law and the lives of citizens.
In S.R Bommai v. Union of India (1994) 3 SCC 1, the Hon’ble Supreme Court cleared the doubt over the word ‘secularism’ in the Constitution and it held that a secular nature of a society does not make it an atheistic society, but secularism makes society more heterogeneous. The law of a secular nation provides equal status to all religions and does not favour or discriminate against anyone.
In Ahmedabad St. Xavier’s College v. State of Gujarat (1974) SCC (1) 717, the Hon’ble Supreme Court held that secularism neither means anti-God nor pro-God. It ensures that nobody shall be discriminated against, based on religion. Secularism, therefore, eliminates the concept of God in matters of the State.
EMERGENCE OF THREE ESTABLISHED PRINCIPLES OF SECULARISM
1. MEASURABLE DISTANCE of religious institutions from State institutions and a public sphere where religion may participate, but not dominate. This brings us to the concept of positive and negative secularism for understanding the different dimensions.
THE CONCEPT OF POSITIVE AND NEGATIVE SECULARISM
The separation of Religion and the State is the foundation of secularism. It ensures religious groups don’t interfere in the affairs of the State, and the state doesn’t interfere in religious affairs. However, this non-interference can be divided into the lines of the State’s extent to recognition of religion and religious activities. Simply stating, in a way, the negative concept of secularism is the Western concept of secularism that connotes a complete separation between the religion (the church) and the state (the politics). The positive concept of secularism is reflected by giving equal respect to all religions or protecting all religions equally.
POSITION IN INDIA AND THE WEST
- Looking at the diverse needs of this multi-religious and multi-ethnic country like ours, the constitutional makers have rightly applied the positive concept to India. This has created a major difference between the political, economic and democratic functioning of the country as compared to the West.
- Article 27 expressly states that if the government imposes taxes, those taxes cannot be used to fund any particular religious paradigm. The wall in the Indian setting is similar to the wall in the famous novel Midsummer Night’s Dream, when Pyramus and Thisbe communicate through little gaps and cracks. Now, the holes and cracks may be found in Article 28 wherein, it was stated that even if an institution is aided, it is still permissible to have and conduct not only religious services, but also religious classes with the approval of the child’s parent.
- In India, the citizens are given a fundamental right to religion, however, this right is subject to public order, morality and health. There is no one religion that dominates Indian society as a citizen is free to practice, profess and propagate any religion.
- Whereas in the West, the State and religion are separated and both don’t interfere in affairs of each other. States don’t aid religious institutions or religious activities. For example: the United States maintains a perfect separation of religion and state.
2. FREEDOM to practice one’s faith or belief without harming others, or to change it or not have one, according to one’s own conscience. This principle further highlights a very unique position of Indian secularism.
SECULARISM PROTECTS BOTH BELIEVERS AND NON-BELIEVERS
Secularism seeks to ensure and protect freedom of religious belief and practice for all citizens. However, even an atheist can enjoy the benefits given to atheists like any other religious individual. This idea of Secularism does not curtail democratic freedoms with religious freedoms, but in fact, the State comes to protect the citizenry even if, the citizens might be religiously or morally wrong within the contours of constitutional morality. An interesting example is the recognition of live-in-relationships in Domestic Violence Act by the legislature after judiciary recognized live-in-relationships in its verdicts.
Secularism seeks to defend the absolute freedom of religious and other beliefs, and protect the right to manifest religious belief insofar as it does not impinge on the rights and freedoms of others. Secularism ensures that the right of individuals to freedom of religion is always balanced by the right to not profess any religion.
3. ZERO DISCRIMINATION is important, so that, our religious belief doesn’t put any of us to an advantage compared to those who doesn’t have a religious belief or have a different belief. The fundamental rights enshrined under the constitution are not based on the affiliation of man to God, but declared by the Constitution for all the citizens of India.
FUNDAMENTAL RIGHTS EMBOLDENING SECULARISM
|Articles of Indian Constitutions
|Provision for secularism
Article 14 and Article 15
|The former grants equality before the law and equal protection of the laws to all, while, the later enlarges the concept of secularism to the widest possible extent by prohibiting discrimination on grounds of religion, race, caste, sex or place of birth.
|Article 16 (1)
|Equal opportunity to all citizens in matters of public employment and reiterates, no discrimination on the basis of religion, race, caste, sex, descent, place of birth and residence.
|‘Freedom of Conscience’, that is, all persons have equal right to freely profess, practise and propagate religion.
|Every religious group/ individual has the right to establish and maintain religious and charitable institutions and to manage its own affairs in matters of religion.
|The state shall not compel any citizen to pay any taxes for the promotion or maintenance of any particular religion or religious institution.
|Allows educational institutions maintained by different religious groups to impart religious instructions.
|Article 29 and Article 30
|Provides for the cultural and educational rights to the minorities.
|Obliges all the citizens to promote harmony and the spirit of common brotherhood and to value and preserve the rich heritage of our composite culture.
SECULARISM – A PART OF BASIC STRUCTURE
In His Holiness Kesavananda Bharati vs. State of Kerala, (1973) 4 SCC 225, the majority decision of the Hon’ble Supreme Court held that secularism is a part of the basic structure of the Constitution and it cannot be destroyed by the Parliament while amending the constitution under Article 368, Constitution of India. The constitutional courts of India have time and again upheld secularism as part of basic structure of the constitution which can neither be altered, amended, removed nor annulled by any legislative framework by the Parliament.
The High Court of Madhya Pradesh, in Stainislaus Rev v. State of MP, (1977 AIR 908), held that freedom of ‘profession’ means one’s right to state in public the creed he belongs to, and freedom of ‘practice’ means one’s right to worship in private or public and the right to propagate one’s religion gives one the right to convey his/her religious beliefs to another individual, but not to convert another person to one’s religion.
CRYSTALLIZING SECULARISM– CONSTITUTIONAL VALUE
Upon the challenge before the courts, the customs and usages that are in violation of the Fundamental Rights can be declared unconstitutional by the Constitutional Courts. Similarly, the reasonable restrictions hedged in within the Fundamental rights are the constitutional methods to maintain checks and balances to strengthen the idea of Secularism.
Despite innumerable safeguards, we can have ideological differences and these differences emerge from various reasons like lack of understanding of Constitutional Law or ‘opportunistic politics’ in the otherwise organized and established concept of constitutional secularism. The best way out is that citizens realise their status, privilege and believe in the institution of Judiciary that is meant to stand for justice within the realm of our ‘holy book’- the constitution. The Constitution of India is the Holy Book for Indians as held by the Hon’ble Supreme Court of India in Kantaru Rajeevaru versus Indian Young Lawyers Association thr. its General Secretary and Ors, Review Petition (Civil) no. 3358/2018:
“…Let every person remember that the “holy book” is the Constitution of India, and it is with this book in hand that the citizens of India march together as a nation, so that they may move forward in all spheres of human endeavour to achieve the great goals set out by this “Magna Carta” or Great Charter of India”.
Secularism under the Indian constitution has two aspects: first, since ours is not blindly anti-religious, rather, it respects all religions coupled with criticism within the realm of constitutionality. Interpreting the intentions, second, it brings out that the state must respectfully leave religion on its own, but also, intervene whenever groups promote communal disharmony and discrimination on grounds of religion or are unable to protect their own members from the oppressions they perpetuate. There is no watertight compartment separation, but a measurable distance of State and religion.
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CONNECTION OF SABRIMALA JUDGMENT WITH SECULARISM
The Hon’ble Supreme Court in Indian Young Lawyers Association v. State of Kerala, (2017) 10 SCC 689, held that preventing the women in their menstruating years from entering the Sabarimala temple as per the religious custom, violates women’s constitutionally protected fundamental rights to equality.
One of the majority opinion of delivered by Justice D.Y. Chandrachud is quite forward-looking and it categorically pointed out that liberty in questions of belief, faith, and worship must result in a compassionate and humane society in which all persons have equal standing. The Constitution of India aimed to break the shackles of social hierarchies. It aspired to bring in an era defined by a devotion to liberty, equality, and justice by doing so. The liberal values of the Constitution guarantee each individual equal citizenship. This acknowledges that the Constitution exists not merely to dismantle established systems of discrimination and prejudice, but also to empower people who have historically been denied equal citizenship. Equal involvement of women in all spheres of national life serves to validate that foundation.
The dissent of Justice Indu Malhotra has brought yet another point of deliberation that up to what extent the established religious practices can be challenged based on equality.
It is important to understand that Liberties, Freedoms, and Fundamental Rights shall coexist with the constitutional commitment of Secularism and other values of the Constitution. Similarly, right to religion, other fundamental rights, and Secularism shall also coexist. Now, the review petition along with similar petitions are pending before the 9 Judges Constitution Bench in the Supreme Court and it would be interesting to observe the outcome of the final judgments.
India, as a nation, has achieved some progress in the direction of the glorified vision of the framers of the Constitution, but still, a lot is yet to be achieved and the right way is founded in within the framework of our constitution. The anti-exclusion principle requires that the external standard of constitutional anti-discrimination be used in circumstances when religion or its practices violate inalienable constitutional freedoms and liberties.
The State and the Court must respect the integrity of religious group life (and thus regard the internal perspective of religious adherents as determinative of the form and content of religious practises), except where the practises in question result in an individual’s exclusion from economic, social, or cultural life, impairing their dignity or obstructing their access to basic rights and liberties.
In a modern liberal and robust democracy, it is not for the Supreme Court to decide what the essential religious practices in a religion are. Nor the Governments can decide this question through the legislative process. It is perhaps for the clergy or religious scholars to dwell upon religion and its practices.
The Supreme Court must test the religious practices on the constitutional principles of justice, liberty, equality, fraternity & other constitutional commitments. If the religious practices violate any freedom, liberty, or inalienable rights guaranteed by the Constitution, the Supreme Court should strike down the religious practices.
This approach will also yield desired results to the cherished value of Secularism, because after all, the aim of Secularism is to respect the neutrality and to co-exist with the constitutional principles of justice, liberty, equality, fraternity & other constitutional commitments.
Dr. Rohit Samhotra,
Supreme Court of India.