Can Secularism Be Constitutional Reality

INDIAN CONSTITUTIONAL LAW REVIEW: EDITION I (JANUARY 2017)
CAN SECULARISM BE A CONSTITUTIONAL REALITY?

Swagat Baruah,
Gujarat National Law University
ABSTRACT
Although the 42nd Constitutional Amendment, by inserting the word 'secular' in the Preamble, has
asserted that India is a secular nation, the relationship between the State and religion has not yet been
defined but only interpreted. A cloud of great confusion still lurks amidst the current debates on
religious intolerance and secularism in India as to how the social milieu might interpret secularism. The
Supreme Court has consistently taken up the task of defining secularism and has tried giving it a wide
ambit of reasoning and interpretation, however, in a fortuitous misfortune, this has also created the great
confusion that exists even today. This observation raises the question, should the Supreme Court and
the Parliament make efforts in defining Indian secularism or even the idea of it? The Constitution has
laid down secularism as a goal towards which all activities of the nation must approach, however silence
on its connotation remains long debated. The Western thought of secularism implies freedom of
religion, no discrimination of citizens on grounds of religion and the separation of the State from
religion. India has, through its fundamental rights, ensured all of the above except the separation of
religion from the State, since India is a nation of great contrasts and its religious scenario has been
consistently volatile, the concept still seems blurred. But many a times, religious laws have superseded
parliamentary laws in India and this has impacted the decisions of the judiciary to a great extent.
Therefore, secularism in India doesn't mean separation of religion from the State, which is one of the
fundamental grounds on which the thought of secularism was based on by Holyoake and Gandhi.
Secularism according to Gandhi, should be more of an eclectical concept rather than an atheistic
concept. This again raises the question before the judiciary and the legislature, if religion in India should
remain a private affair and the State should have no dealing with it or if there should be a reasonable
equation between the two, thereby answering Gandhi's idea of eclectic secularism and Nehru's idea of
religious pluralism. This paper attempts to study the role of the judiciary, and notably the Supreme
Court verdicts on issues regarding secularism. It argues that while the Supreme Court has come out
strong on many cases pertaining to secularism, it has also shied away in many others by giving decisions
that have let the majority opinion prevail over the minority's and privileging the minorities in significant
other cases. This paper will take into account the landmark cases which have shaped the Indian concept
of secularism, the current debate on Hindu fundamentalism, the Uniform Civil Code application in Goa,
the debate on Article 25(2)(b) which clubbed Sikhs, Buddhists and Jains along with Hindus and also
Amartya Sen's concept of political secularism in India.
The Indian Constitution has not created the nation, nor its religion, nor its institutions. They
are already existing and Constitution only plays the role of a protector of these interests. Our
2017 All Rights reserved with Agradoot Web Technologies LLP Page 19
founding fathers, although did seek to adopt state neutrality towards all religions; they didn't
adopt it in 1950. It was only the 42nd Amendment of 1976 that declared secularism to be a
fundamental basic feature of our polity although leaving it undefined.
GANDHIAN & NEHRUVIAN SECULARISM
For the first time by Karachi Resolution of 1931, people were involved in the Indian Freedom
Struggle and laid down their idea of the fundamental rights which would later go on to inspire
the fundamental rights as enshrined in Part III of the Constitution. It clearly states the State's
role in regard to religion; that the State has to protect the rights of all individuals irrespective
of their religion. The original draft was made by Nehru but the Congress found it too radical.
Hence, had to redraft it. Nehru's idea of the Constitution was one which would not only unite
people but also prevent any division as such.47 He did not want Indians to think in terms of
religion and caste and he so expressed an ardent desire while moving the famous Objective
Resolution in the Constituent Assembly.
"Wherein shall be guaranteed and secured to all the people of India, Justice, social, economic
and political; equality of status, of opportunity, and before the law; freedom of thought,
expression, belief, faith, worship, vocation, association and action, subject to law and public
morality."48
Nehru carried a Jeffersonian attitude when it came to secularism. Although he believed that all
religions must be respected equally, he was inclined towards the 'wall of Jefferson' which
separates religion from the State. He was always of the thought that religion only hampers the
growth of the nation and speaking in the Indian context, he vehemently stood by his views. It
must however be understood that his views were not against the internal content of religion but
its external manifestation. He condemned religion because he felt it covered and regulated
every aspect of an individual's life.49 Religion for him, only paved the way for senseless
communalism. Nehru once wrote, "The belief in a supernatural agency which ordains
everything has to be certain irresponsibility on the social plane, and emotion and sentimentality
have taken the place of reasoned thought and inquiry. Religion, though it has undoubtedly
47
C. A. PERUMAL, Nehru and Secularism, 48 IND. J. OF POL. SCIENCE 299 ,(1987),
http://www.jstor.org/stable/41855312.
48
Constituent Assembly Debates, Vol. I, p.55
49
NEHRU, supra note 1
brought comfort to innumerable human beings and stabilized society by its values, has checked
the tendency to change and progress inherent in human society."50 He was of the opinion that,
"Religion is narrow and intolerance of other opinions and ideas; it is self-centered and egoistic
and it often allows itself to be exploited by the self-seekers and opportunists."51
Gandhi's view however remains disputed, since on one hand he propagated a complete
separation of the State from religion, calling religion a man's 'private affair' and that it should
never intervene anyhow, in the state's functioning, and on the other hand, he emphasized a
close connection between religion and politics since his political work was deeply inspired by
his religious morality and beliefs. He writes in his autobiography, "My devotion to Truth has
drawn me into the field of politics. Those who say that religion has nothing to do with politics
do not know what religion means."52 In April 1924, he asserted: "for me there are no politics
devoid of religion. They sub-serve religion. Politics bereft of religion are a death-trap because
they kill the soul."53
But, for Gandhiji, this close connection between religion and politics existed because, to him,
politics had to be moral, had to be based on morality. Religion to him was the source of morality
- it was, in fact, itself morality in the Indian sense of dharma.54
Gandhi was opposed to any kind of state aid to religious bodies and this majorly marked his
line of separation. He strongly professed for a religion to be a private affair. He said in February
1947, " in reality as many religions as minds. Each mind had a different conception of God
from the other."55
But to what extent both of their views were incorporated into the Constitution is still a thought
on blurry lines. But it can be said with great conviction that the separation of religion from the
State is an impossibility in the Indian scenario, a statement that shall be elucidated in the later
paragraphs.
THE STATE & RELIGION
50
J AWAHARLAL NEHRU, THE DISCOVERY OF INDIA 524 (Penguin India 2008).
51
J AWAHARLAL NEHRU, AN AUTOBIOGRAPHY (Penguin India 2004).
52
M. K. GANDHI, THE STORY OF M Y EXPERIMENTS WITH TRUTH 591 (Dover Publications Inc. 1929).
53
Young India, 3.4.1924, in CW, vol.23, p.349. And again in 1925: "Politics separated from religion stinks,
religion detached from politics is meaningless." Niavajivan, 21.6.1925, in CWV, vol.27, p.204
54
BIPIN CHANDRA, GANDHIJI, SECULARISM AND COMMUNALISM, 32 (SOCIAL SCIENTIST . 2004).
55
D.G. TENDULKAR, note 11, vol.7, p.45. Also MAHATMA GANDHI, HARIJAN vol.83, p.11 (CW, 24.2.1946). Also,
"THOUGH RELIGIONS ARE MANY, RELIGION IS ONE" CW, vol.51, p.349 (statement issued on 5 November 1932)
The word secularism needs to be defined is seen in the irony that India despite claiming to be
a secular state fails to enforce a uniform civil code. Yes, there is certainly the point of India
being greatly diverse, diverse to the extent of making it impossible to unify it, but the way the
legislative bodies and even the court have succumbed to religious laws forfeiting the ideas of
natural justice, is an issue to be scrutinized.
Article 29 and 30 are provided as a protection for the minorities against the cultural hegemony
of the dominant groups. Both these articles provide a great scope for the minorities to co-exist
with the majorities peacefully and amicably and also provides grounds wherein the minorities
can develop and carry forward their distinct culture and language forward, without any
unreasonable interference from anyone.
The Constitution has not erected a strict wall of separation between the Church and the State.
There are still grave doubts whether the expression 'secular state' if it denotes a definite pattern
of relationship can, with propriety, be applied to India. Only in a qualified sense can India be
said to be secular. There are provisions in our Constitution, which make one hesitant to
characterize our State as secular. Secularism in the context of our Constitution means only an
attitude of live and let live developing into the attitude of live and help live.56
The greatest example of the personal laws overriding the principles of natural justice would be
the Shah Bano case57 where the Supreme Court, in 1985, ruled in favor of Shah Bano, a
divorced Muslim woman who challenged her husband for extended maintenance in
contravention of Muslim Personal Law. The opposition of Muslim groups to the Court ruling
forced the Government of India to override the Supreme Court's decision and enact the Muslim
Women's Protection of Rights on Divorce law, which entrenched Muslim personal law and
placed the responsibility for protecting divorced women after the iddat period on their natal
families and not their husband.58
In India, two women may share a same tragedy but not its consequences. In the landmark case
of Sardar Taheruddin Syedna Saheb v. State of Bombay59, the Supreme Court while deciding
the legitimacy of an act preventing excommunication declared that, "What are exactly matters
of religion are completely outside State interference, subject of course to public order, morality
56
Ahmedabad St. Xavier's College v. State of Gujarat, AIR 1974 SC 1389.
57
Mohd. Ahmed Khan v. Shah Bano Begum & Ors., AIR 1985 SC 945.
58
AMALI PHILLIPS, SHARIA AND SHAH BANO: MULTICULTURALISM AND WOMEN'S RIGHTS, 53
(ANTHROPOLOGICA 275, 2011), http://www.jstor.org/stable/41473879.
59
Sardar Teaheriddin Syedna Shaeb v. State of Bombay, AIR 1962 SC 853.
and health. But activities associated with religious practices may have many ramifications and
varieties - economic, financial, political and other - as recognized by Art. 25(2)(a)."
The freedom of religion is not confined to the religious beliefs only; it extends to religious
practices as well subject to the restrictions with which the Constitution itself has laid down. No
outside authority has the jurisdiction to interfere with the decisions as to what rites and
ceremonies are essential according to the tenets of the religion they hold.60
RELIGIOUS TOLERANCE & UNIFORM CIVIL CODE
Justice Kuldip Singh in the case of Sarla Mudgal, President, Kalyani & Ors. v. Union of
India,61 stated the need for a Uniform Civil Code and that minorities should give up their
commitment towards a two-nation theory and seek unity within the country. Even in the case
of John Vallamattom & Anr v. Union of India,62 Justice Khare expressed regret over the fact
that Article 44 of the Constitution had not been given effect.
However, this observation has been repudiated saying that it promotes uni-culturalism instead
of multi-culturalism which would be fatal for India in the long run given its wide variety and
disparities. At the same time, the Supreme Court contradicted itself when it held the statutory
enactments of personal laws to be outside the purview of Article 13 of the Constitution, thereby
giving it total immunity.
The ban on cow slaughter is an important issue in regard to essentiality and non-essentiality of
religion. Operating under a reified concept of Islam, the Supreme Court decreed in the State of
West Bengal v. Ashutosh Lahiri63 and earlier, in M H Querseshi v. State of Bihar64 that Muslims
of India cannot be given the freedom to kill cows by way of 'Qurbani' as part of Id Ul Adha.
The court contended that the killing of cows could not be regarded as essential practice of
Muslims. After a scriptural search for a statement making cow sacrifice obligatory, the court
found that it was optional for Muslims to sacrifice a cow or camel for every seven persons and
a goat for one person. Apparently, Muslims had an option. Under the shelter of Article 48 of
60
The Commissioner, Hindu Religious Endowments, Madras v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur
Mutt, (1954) SCR 1005.
61
Sarla Mudgal, President, Kalyani & Ors. v. Union of India, AIR 1995 SC 1531.
62
John Vallamantom v. Union of India, AIR 2003 SC 2902.
63
State of West Bengal v. Ashutosh Lahiri, AIR 1995 SC 464.
64
M H Quereshi v. State of Bihar, AIR 1958 SC 731.
the Constitution, which sought to promote animal husbandry, the court banned cow slaughter
- an unacknowledged recognition of Hindu belief in the sanctity of the cow.65
The decision of what is religious and what is not up to the religious denominations to decide
but the court determines it. This can be dangerous in the long run since it may encourage the
legislature to take drastic measures against a particular religion as and when it feels like. The
court in an attempt to modernize religions has only exposed it to risks of majoritarianism.
Lord Macaulay during the debates in 1833 in the House of Commons remarked, "We do not
mean that all the people of India should live under the same law: far from it. Our principle is
simply this-uniformity where you can have it-diversity where you must have it-but in all cases
certainty."66
Partha Chatterjee writes, " There is the very real possibility today of a Hindu right locating itself
firmly within the domain of the modernising state and using all the ideological resources of
that state to lead the charge against people who do not conform to its version of the 'national
culture'. From the position the Hindu right cannot only deflect accusations of being anti-secular
but even use the arguments for interventionist secularisation to promote intolerance and
violence against minorities. The question then is: Is the defence of secularism an appropriate
ground for meeting the challenge of the Hindu right? Or should the response be a defence of
the duty of the democratic state to ensure policies of religious toleration?"67
Uniform Civil Code doesn't mean equal application of laws for everyone just like equality
before law doesn't mean equality for everyone in all circumstances. It means equal treatment
among equals. A minor application of the Uniform Civil Code can be seen in Article 25 of the
Constitution which includes Sikhs, Jains and Buddhists along with Hindus. Bhajan Singh,
founding director of US based Organisation for Minorities of India(OFMI), writes that, "Article
25 does two things. Firstly, it permits the State to regulate religion and religious institutions for
'public order' and secondly, it forces the followers of the Sikh, Jain and Buddhist religions to
65
Sanghamitra Padhy, Secularism and Justice: A Review of Indian Supreme Court Judgments, 39 ECONOMIC &
POLITICAL WEEKLY 5027, 2004, http://www.jstor.org/stable/4415807.
66
ANTHONY COPLEY, RELIGIONS IN CONFLICT : IDEOLOGY, CULTURAL CONFLICT & CONVERSION IN
LATE COLONIAL INDIA (Oxford University Press 1997).
67
Partha Chatterjee, Secularism and Toleration, 29 ECONOMIC AND POLITICAL WEEKLY 28, (1994).
identify as Hindus even though these three separate faiths are completely distinct. The
foundational threat to religious liberty in independent India is Article 25."68
Goa's Uniform Civil Code application shows us how Uniform Civil Code must be broadly
interpreted. It provides a stark reminder that uniformity is not per se a rights-loaded word. It
can also mean uniformity in discrimination in that you can have discriminatory provisions
applicable across all religions uniformly. It calls attention to the fact that imposition of
uniformity amongst unequals can create inequality, and that the existence of plural systems,
both formal and non-formal, is actually ideal for the diverse constituents who need to strategize
with the limited knowledge and within the limited power they have. Above all, it reveals that
nationalist agendas can shape the trajectory of UCC to the detriment of human rights.69
SUPREME COURT ON SECULARISM
The Supreme Court while interpreting the definition of the word 'religion'70 has not restricted
its interpretation to a person's relationship with a supreme being, since religions like Buddhism
and Jainism do not believe in a 'supreme being' at all.
The Supreme Court has agreed that our Constitution makers had always intended to make the
country a secular democracy, giving the State a neutral status in regard to religious affairs.71
Although giving secularism the status of fundamental law of the land, the Court has always
called for a neutral status rather than a separation of State from religion, existence of a classless,
cohesive and unified society.72
68
Organization for Minorities of India, Obama affirms Indian Constitution's Article 25 over objections of South
Asian Americans, SIKH SIYASAT NEWS (Sept. 18, 2016, 00:03AM), http://sikhsiyasat.net/2015/01/28/obama-
affirms-indian-constitutions-article-25-over-objections-of-south-asian-americans/.
69
Albertina Almeida, Goas Civil Code Shows That Uniformity Does Not Always Mean Equality, THE WIRE
(Sept. 16, 2016, 11:33 AM), http://thewire.in/57211/goas-uniform-civil-code-is-not-the-greatest-model-to-
follow/
70
Commissioner Hindu Religious Endowments, Madra v. Dirur Math, (1954) 26 SCJ, 1954 348.
71
Ziyauddin Burhanuddin Bukhari v. Briujmohan Ram Das Mehra, AIR 1975 SC 1788.
72
Keshavanand Bharati v. State of Kerala, AIR 1973 SC 1461; Indira Sawhney v. Union of India & Ors.,
AIR 2000 SC 498.
Secularism was held to be the basic structure of the Constitution in the case of S.R. Bommai v.
Union of India.73 It held that in matters of state, religion has no place, and that the application
of secularism would extent to political parties as well since they were part of the state. But it's
verdict was more on the lines of defining the relationship between religion and politics, and
that the both must never be mixed.
In A.S.Narayan Deekshitulu v. State of Andhra Pradesh,74 it was held that religion in the
Constitution was a personal matter for those who have faith and belief in it. Religion, therefore,
had its basis in a system of beliefs and doctrines regarded by the practitioners of the religion to
be conducive to their spiritual well-being.75
The Supreme Court however, while defining Hindutva as a way of life or state of mind and not
equal to Hindu fundamentalism76 gave way to much faulty judgments later when it held that
promise to establish a Hindu state doesn't amount to appealing for votes in the name of
religion.77 It is ultravires of the Constitution as no Hindu state can ever claim to be neutral.
Justice Verma in the case of Ismail Faruqui v. Union of India78 implied that, while invoking
the Vedas and Akbar's Din Ilahi that secularism exists in India only because of the tolerance of
the Hindus who are the majority religion, a perception which is inconsistent with the minority
interests.79 The very fact that the analysis was based on religious scriptures subverts secularism.
Amartya Sen has always been a strong critic of the Babri Masjid case and demands that there
be a basic symmetry of treatment of religions on the part of the state. He has always been a
proponent of Akbar's secularism80 who sought to fuse ideas, professed equality between Islam
and other religions of India, forbade forced conversions to Islam, abolished religion-based
discriminatory jizya taxes, and encouraged building of Hindu temples.81 Jakob De Roover
refutes Sen's political secularism by giving the example of a predominantly Muslim state as
that which allows freedom of religion to the minorities, but also proclaims that all women must
wear burqa and the hypothesis of an Indian state which forbids the consumption of meat to all
73
S.R. Bommai v. Union of India, AIR 1990 Kar. 5.
74
A S Narayan Deekshitulu v. State of Andhra Pradesh, AIR 1996 SC 1765.
75
Supra note19
76
Ramesh Yashwant Prabhu v. Prabhakar K Khuntes, (1996) 1 SCC 130.
77
Manohar Joshi v. Nitin Bhaurao Patil & Anr., AIR 1996 SC 796.
78
Ismail Faruqui v. Union of India, AIR 1995 SC 605.
79
Ismail Faruqui v. Union of India (1994) 6 SCC 39.
80
THE HINDU, Amartya Sen for Akbar's Secularism, http://www.thehindu.com/todays-paper/tp-national/tp-
newdelhi/amartya-sen-for-akbars-secularism/article2722541.ece (last visited Sept. 18, 2016).
81
"Mughal Empire." Gale Encyclopedia of World History: Governments. Vol. 1. Detroit, (Gale, 2008)
citizens. De Roover then arrives at the extraordinary conclusion that "both states are still
politically secular according to Sen's principle, since they treat the members of different
religious communities in a symmetric manner". De Roover goes on to say that the nations in
question could argue that since their policies are not really related to religion, they cannot be
charged with violating Sen's principle of equal treatment of all religions.82 De Roover too
stresses on the semantic confusion surrounding secularism and the need for a proper
definition.83
In the famous NCERT case, the Supreme Court declared that all faiths are equal, that every
religion is the same but only differ when it comes to its practices. The problem with this
judgment is that it seeks to create uniformity based on oneness rather than trying to create a
space for the diversity. It doesn't respect the autonomy of the self but rather tries to bring forth
oneness without addressing the Herculean task of a comfortable assimilation of everyone in a
nation.84
A proper definition of secularism that the Court can rely upon was given by Bipan Chandra,
whose secularism was four-pronged:
"Secularism meant first, separation of religion from political, economic, social and cultural
aspects of life, religion being treated as a purely personal matter; second, dissociation of the
state from religion; third, full freedom to all religions and tolerance of all religions: and four,
equal opportunities for followers of all religions, and no discrimination and partiality on
grounds of religion."85
The court's power of interpreting the Constitution has given it considerable authority. In the
absence of any rigid positivist demarcation of the spheres of the secured and secular, the Court
has remarkable autonomy. Religion and secularism in India are given categories. The court
decides and more so in its activist phase, what is secular and what is not, what is religious and
what is not; thereby regulating their meaning and thus the personal realm. The judgments defy
the logic of the positivist determination of outcomes. Judicial deliberations on issues of
secularism rather reveal that context takes centre-stage in decision-making. Judicial
82
Nalini Rajan, Secularism Revisited, 38 ECONOMIC AND POLITICAL W EEKLY 246,(2003),
http://www.jstor.org/stable/4413104.
83
Jakob De Roover, The Vacuity of Secularism: On the Indian Debate and Its Western Origins, 37, ECONOMIC
AND POLITICAL WEEKLY 4047, (2002), http://www.jstor.org/stable/4412667.
84
Pratap Bhanu Mehta, Living with Difference, THE HINDU (Sept. l8, 2016, 01:00 AM),
http://www.thehindu.com/2002/09/14/stories/2002091404791100.htm.
85
Supra note 35
pronouncements on secular issues have thus been marked by contradictions. While in cases it
has promoted majority interests, eroding the rights of minority groups, in others, it has
privileged minority groups.86
CONCLUSION
India as Mark Twain once wrote, is "the cradle of the human race, the birthplace of human
speech, the mother of history, the grandmother of legend, and the great grandmother of
tradition. Our most valuable and most instructive materials in the history of man are treasured
up in India only." India is so structurally divided that it'd be fit for someone to say that it is a
nation of various continents, a widely multi-cultural and multi-linguistic nation. India has seen
all kinds of religious empires, a feature unique to its history. It has also seen the birth of
religions like Jainism, Buddhism and Sikhism. It's multi-cultural nature coupled with its
economic problems makes it impossible for people of different religious denominations to live
in a cordial harmony.
Secularism as we see, in the context of India, can never mean the alienation of religion from
the State like the Western concept. It cannot also mean indifference to religions and religious
institutions given India's volatile religious scenario. However, the Constitution can ascribe to
a concept of secularism where all religions are given equal status and freedom to make their
own laws but also with a reasonable scope for state interference. Personal laws should not be
allowed to override the fundamental rights or the ideas of natural justice. It is here where the
global perceptions and scenarios must be taken into account, the global perception of women
rights and human rights and at the same time taking the religious justification of the same. The
"Doctrine of Essential Practices" if used effectively can greatly help define the concept of
Indian secularism and if misused, then it'll lead to a majority hegemony.
There are a lot many caveats that come along with a definition of secularism but leaving it
undefined only paves the way for more religious conflicts in the future. A constitutional
definition of secularism if defined broadly and with scope for further interpretation would help
the courts to decide cases concerning religion. The path to glory as of now, seems full of thorns
but must eventually be treaded upon for the sake of the nation and this can only be achieved if
we strive for an eclectic definition of secularism, one which derives ideas from both national
86
Supra note 19
and international ideas and not a definition which might restrict, stagnate or hamper the growth
of the nation.

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INDIAN CONSTITUTIONAL LAW REVIEW: EDITION I (JANUARY 2017)

CAN SECULARISM BE A CONSTITUTIONAL REALITY?

GANDHIAN & NEHRUVIAN SECULARISM

THE STATE & RELIGION

RELIGIOUS TOLERANCE & UNIFORM CIVIL CODE

SUPREME COURT ON SECULARISM

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