Secular nature of Indian Constitution and Polity

Whether Indian constitution and polity is secular or not is a tricky question in

todays context. Before going into the details we should look at the basic concepts
of secularism.
Doctrines defines`secularism`as pertaining to this world or to
things not spiritual, not concerned with religion a system of belief which rejects
all forms of religious faith, irreligious act. Encyclopedia Britanica defines
`secularism `as Utilitarian ethic designed for physical, spiritual and moral
improvement of mankind. Which neither affirms nor denies the theistic promise
of religion.1Encyclopedia of social sciences defines it as an attempt to establish an
autonomous sphere of knowledge purged of supernatural presuppositions.2
An academic definition of the concept of secularism in Indian context
has been attempted by Donald Eugene Smith in the following words.
The secular state is not a state which gives individual and corporate
freedom of religion, is not constitutionally connected to a particular religion nor
does it sick either to promote or interfere with religion.3 In simplest of terms
Secularism is a principle that involves two basic propositions. The first is the strict
separation of the state from religious institutions. The second is that people of
different religions and beliefs are equal before the law.
Historical background of secularism
Secularism in India has very different meaning and implications. The word
secularism has never been used in Indian context in the sense in which it has been
used in Western countries i.e. in the sense of atheism or purely this worldly
approach, rejecting the other-worldly beliefs.
_
1. 1.Encyclopedia Britannica, Holyoakes Principles of Secularism (1885).
2. Encyclopededia Britannica (social sciences)

3. D.E.Smith; India as a Secular State, Princeton University Press,2011

India is a country where religion is very central to the life of people. Indias ageold philosophy as expounded in Hindu scriptures called Upanishad is sarva dharma
samabhava, which means equal respect for all religions. The reason behind this
approach is the fact that India has never been a mono-religious country. Even
before the Aryan invasion India was not a mono-religious country.
There existed before Aryan invasion numerous tribal cults from north-western
India to KanyaKumari most of whom happened to be Dravidians. Thus certain
languages in North West of Pakistan even today contain some words of Dravidian
origin. However, with the invasion of Aryans people of Dravidian origin were
driven down south and today we find all Dravidian people in four southern states
Aryans brought new religion based on Vedas and Brahmins dominated intellectual
life of north India. But a section of Brahmins also migrated to south and evolved
new cults marrying Vedic cults with Dravidian ones. Thus it is said that Hindu
Indians worship more than 33 hundred thousand gods and goddesses.
Thus even before advent of Christianity and Islam India was multi-religious in
nature. Christianity and Islam added more religious traditions to existing Indian
traditions. Thus it would be correct to say that India is bewilderingly diverse
country in every respect religion ethnic and cultural. There was also tradition of
tolerance between religions due to state policies of Asoka and Akbar. Asokas
edicts clearly spell out policy of religious tolerance and Akbar used to hold interreligious dialogue among followers of different religions and he also followed the
policy of tolerance and even withdrew the jizya tax (poll tax on Hindus which was
an irritant. Thus both Ashok and Akbar have place of great significance in
religious life of India.
After independence and partition a large body of Muslims were left in India and
hence the leaders like Gandhi and Nehru preferred to keep India secular in the
sense that Indian state will have no religion though people of India will be free
both in individual and corporate sense to follow any religion of their birth or
adoption. Thus India remained politically secular. Jawaharlal Lal Nehru, the first
Prime Minister of India was great champion of secularism and secular politics.
Theoretically speaking the Congress Party was also committed to secularism.
However, the Congress Party consisted of several members and leaders whose
secularism was in doubt. But it was due to Mahatma Gandhi, Nehru, Maulana Abul
Kalam Azad and B.R.Ambedkar that India committed itself to secularism.

Constitutional frame work of Secularism

The Preamble to the Constitution of India signifies that India is a secular state. The
Preamble reflects the way of life adopted by Indian citizens for themselves after
independence. In fact every civilization has also been a mirror of way of life as
well as reflecting movement of human spirit. Religion in each civilization has
indicated about the faith of human beings in absolute values and a way of life to
realize them. The Constitution of India recognizes the freedom to profess, practice
and propagate the religion under Article 25. Part (1) of Article 25 secures to
every freedom of conscience: and the right to (i) profess religion; (ii) practice
religion; and (iii) propagate religion. The term religion has not defined in the
constitution but the meaning given by the Supreme Court of India to the religion
can be referred here, the Supreme Court in Commissioner, H.R.E. Vs. L.T.
Swammiar held:
Religion is a matter of faith with individuals or communities and it is not
necessarily theistic. A religion has its basis in a system of beliefs or doctrines,
which are regarded by those who profess that religion as conducive to their
spiritual well being. A religion may not only lay down a code of ethnical rules for
its followers to accept, it might prescribe rituals and observances, ceremonies and
modes of worship, which are regarded as integral parts of religion and these forms
and observance might extend even to matters of food and dress.4
The freedom of religion guaranteed under Indian constitution is not confined to its
citizens but extends to all persons including aliens. This point was underlined by
the Supreme Court in RatiLal Panchand vs. State of Bombay5 as it is very
important because substantial number of foreign Christian missionaries in India
were engaged at that time in propagating their faith among the adherents of other
religions.
_
4. The

Supreme Court in Commissioner, H.R.E. Vs. L.T. Swammiar

5. Ratilal vs. State of Bombay, (1954) SCR 1055;

The Constitution thus declares that every person has a fundamental right not only
to hold whatever religious belief commend themselves to his judgment, but also to
express his beliefs in such overt acts, as are prescribed by his religion and
propagate its tenets among others. The exercise of this right is, however subject to
public order, morality and public health. In fact, the framers of the Indian
constitution attempted to establish a delicate balance between essential
interference and impartial interference on the part of the state. They kept in
consideration the possibilities of arising out of circumstances in which the
government may have to impose restraints on the freedoms of individuals in
collective interests. For example we can remember the case of Anand marg 6 where
Supreme Court banned the right to perform tandav dance with lethal weapons in a
6
public procession.
We can discuss `The Freedom of Religion` in three categories;
Freedom to Manage Religious Affairs
Article 26 which flows from article 25 declares a fundamental right on all religious
denominations and sections thereof to establish and maintain institutions for
religious purposes they also can acquire property for that but they had to
administer the property according to the course of law The exercise of this right is,
however subject to public order, morality and public health. Article 25,26 together
seem to define the different spheres of state and religion.
Freedom Not to Pay Taxes for Religious Promotions
Article 27 says that no persons shall be compelled to pay for expenses on
promotion any particular religion. If it is for all religion then there could be no
objection which means equal respect for all religion.
Freedom Not to Attend Religious Instructions
Article 28 forbids the state to declare any religious instruction on its citizens. There
will be freedom for every person not to participate in religious instruction or
worship.
_
6. Commissioner of Police and Others vs. Acharya Jagdishwarananda ... on 8
November, 1990AIR 1984 SC51

Cultural and Educational Rights

State has been entrusted responsibility of protection of interests of minorities
(Art. 29). It also confers minoritys right to establish and administer educational
institutions and provides following four distinctive rights:
a) Right of any section of citizens to conserve its own language, script or culture
[Art. 29 (1)].
b) Right of all religion and linguistic minorities to establish and administer
educational institutions of their choice [Art. 30(1)].
c) Right of an education institution not to be discriminated in matters of State aid
on grounds that it is managed by a religious or linguistic minority [Art. 30 (2)].
d) Right of the citizen not to be denied admission in to any State maintained or
State aided institutions on grounds of religion, caste, race or language [Art. 29 (2)].
The word minority has not been defined in the constitution but it has intent to use
term in wide sense i.e. section of citizens. Minorities shall be protected in
Respect of their language, script and culture. The state shall not make any law that
operates oppressively or prejudicially. In TMA PAI VS State of Karnataka case.7
Supreme Court said:
Every privet educational Intuitions should have the right
set their own fee structure but the institutions should not be used for profit making
or business the state should have regulatory authority to set the fee structure of
every privet educational Intuitions.7
The Supreme Court and Secularism
On a highly politicized issue like secularism it is difficult for the judiciary to play a
conclusive role. However, it is important to examine a few cases and judgments
made by the Supreme Court which highlight the issue of secularism versus
communalism
_
7. TMA PAI VS State of Karnataka(AIR 2003SC 355,(2004)1 SCC 86)

The constitution of India vests the Election Commission of India with the authority
to hold free and lair elections and to take preventive steps to control malpractices.
Section 123(3) of the Representation of the People Art, 1951, declares appeals on
the grounds of religion, race, caste, community, language or the use of religions or
national symbols by the candidates or their election agents or by any other persons
with the consent of the candidates or their election agents as corrupt practice. In the
R.K. Bukhari rs. 13. R. Mehra Case8 (AIR-1975, SC 1788), the returned candidate
and the other contesting candidates were both Muslims. It was argued that one of
the candidates had criticized Mr. Chagla of the Congress party for not living a true
Muslim as he had supported a change in the Muslim Personal I aw and that such
criticism on religious grounds amounted to a corrupt practice under section 123(3).
The Supreme Court upheld the view that propaganda
till grounds of religion, profession and practice is not merely an undignified
personal attack on candidates but also an attempt to get votes by arousing the
religious sentiments of electors. It further upheld the view that the unity and
integrity of the nation and public peace and order cannot be allowed to be
disturbed in the name of religion, for that would violate the secular democratic
character of Constitution.
In the Harcharrnr Singh vs Sajjrrn Singh Case9 (AIR 1985 SC 236), it was alleged
that the returned candidate, his election agent and other persons with his consent
had appealed to the electors in the name of Sikh religion The tried court dismissed
the petition and justice Sabiyasachi Mukherji speaking further court held that mere
distribution of tickets and sponsorship by a religious body like the would not itself
constitute an appeal on the grounds of religion.9
_
8. R.K. Bukhari rs. 13. R. Mehra Case8 (AIR-1975, SC 1788)
9. Harcharrnr Singh vs Sajjrrn Singh Case9 (AIR 1985 SC 236),

In a similar tone in Kintar Singh vs Muktior Singh10 (AIR 1965 SC 141), the Chief
Justice Gajendra Gadkar speaking for the unit observed: "so long as, law does not
prohibit the information of such parties and in fact recognizes them for the purpose
of election and parliamentary life, it would be necessary to remember that an
appeal made by such candidates of such parties (or votes may, if successful, lead to
their election and in an indirect way may conceivably be influenced by
consideration of religion, race, caste, community or language. This infirmity
cannot, perhaps, be avoided so long as parties are allowed to function and are
recognised, through their composition trap be predominantly based on membership
of particular communities or religion.10
Thus, the courts have failed to strike a balance between the requirements of
secularism in the country and the right of a candidate of political party having
religious affiliation to exploit his affiliation for winning the election. This
separation is essential for the unity and integrity of the nation since election
propaganda whether based on linguistic or communal rivalry can be quite
poisonous and disturbs the whole democratic polity. However, courts come into the
picture only when a particular Act is alleged to have been committed. There is an
inherent limitation which prevents the courts from going beyond the judicial
circumference and therefore the courts cannot be the appropriate forum for
preventing the use of such practices.
The challenges of secularism
We see after forty years of independence Nehru's concept of secularism has begun
to be subjected to considerable critical appraisal both intellectually and politically
The Hindu fundamentalist groups are saying that congress is following the policy
of minority appeasement. It also describes the Congress and other secular parties of
indulging in pseudo-secularism.
_
10. Kintar Singh vs Muktior Singh10 (AIR 1965 SC 141)

Since independence several major communal riots have taken pace in India. The
first such riot took place in Jabalpur in Central India and a major riot took place in
Gujarat in Western India in 2002 in which more than 2000 Muslims were killed
and several women were raped. At first U.S.A accused the then chief minister of
Gujarat MR.Narendra Modi of involving along with the entire governmental
machinery in the carnage and on this basis the US Government denied him visa in
early 2005 but later Supreme court gave him the clean chit and he went on to
become the prime minister of India with a historical mandate in The Lok sabha
elections of 2014. Mr. Lal Krishna Advani who was then the President of BJP
spearheaded the campaign against Babri Mosque and the mosque was demolished
right in his presence. He later became Home Minister in the National Democratic
Alliance (NDA) ministry. He is known as hardliner Hindu. But we must admit that
MR. Advani has taken a back sit in BJP today. After the historical mandate in The
Lok sabha elections of 2014 MR. Modi took the control of BJP and replaced the
HINDUTVA policy with a policy of Development for all.
Conclusion
Thus in case of India one can say by and large it is secular in as much as it is
religiously plural and tolerant but there are politically divisive forces quite active
to create communal pressure and widen the gap between religious community thus
bringing Indian secularism under threat. Secularism has to play a decisive role at
present stage of Indian democracy. It is so because today when the Indian
democracy seems to face the challenge of narrow divisive trends and tendencies, a
rational and scientific approach which is the basis of secularism has become a
matter of utmost importance. Communal disturbances which have distinguished
the public life in the recent past, as well the birth and growth of narrow and
divisive trends and obscurantist theories are mainly the result of ignorance can be
fought not by legislation alone, nor by a negative fiat alone, but by education, and
in the process of educating the traditional Indian mind, secularism and all that it
stands for the political leaders have to play a major role.

Full References:
1.Our Constitution An Introduction to Indias Constitution and Constitutional
Law 2013 Edition Page -63,141,142,143
2. Secularism in India-By Asghar Ali Engineer The Milli Gazette Online, 23
June 2006
3. Secularism In India -- A Brief Study - By Kamaluddin Khan
4. Secularism under the Constitutional Framework of India- Tarun Arora Baba Farid Law College
5.Swaran Rajagopalan`Secularism in India`in Wiliam safron ed.The Democratic
Repulic and the Problem Of Religion,London,2001