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Secular Constitutions: the U.S.

and India
AMERICAN SECULARISM
The First Amendment of the U.S. Constitution, implemented in 1791:

Congress shall make no law respecting an establishment of religion, or prohibiting the


free exercise thereof; or abridging the freedom of speech, or of the press; or the right of
the people peaceably to assemble, and to petition the government for a redress of
grievances.
Mainly because it refers to so many different things, this has become one of the most
hotly debated sentences in the English language. The first phrase guarantees the "free
exercise" of religion, and it's coupled with a statement that the U.S. government is
forbidden to associate with an "Established" church.
The First Amendment was a brilliant solution to the kinds of sectarian wars that had
been so damaging in Europe in the early modern era, and it also addressed the
concerns of many religious sects that had fled to America from Europe to escape
persecution by their governments. The clause helped to bring the country together at
the moment of its founding, and it's worked fairly well for more than two hundred years
since. Admittedly, the rule wasn't always applied as strongly as it should have been
(many individual states had de facto established churches for many years), and it wasn't
really until the 1940s that smaller, more esoteric sects like the Jehovah's Witnesses
were guaranteed the right to religious expression that the mainstream had earlier
considered an annoyance. (The Jehovah's Witnesses wanted the right to proselytize
door-to-door as part of the free exercise of their faith; see Cantwell v. Connecticut.)
But it's also important to note that the U.S. courts made a number of decisions against
religious community rights, starting as early as the Civil War era, when the Supreme
Court ruled against the Mormons on the matter of Polygamy (see Reynolds vs. United
States). At the time the Mormons were extremely unhappy that what they saw as a
fundamental aspect of their religious tradition was being declared illegal. But they
learned to live with it, and today the community thrives in a modified form.
We can think about this history in light of India, and come to two loose conclusions.
Admittedly, the histories of religion and the law in India and the U.S. are different, so
there's a limit to how far you can take this. Nevertheless:
1) Allowing the majority religious community to "establish" itself is a bad idea even if
some people think that the majority religious tradition is historically a tolerant, inclusive
one. Limits ought to be placed on the role of religion in government -- pretty strict ones

-- for the benefit of the country as a whole. If the government didn't make an effort to
protect the rights of India's many religious minorities at the time of its founding, the
country would never have come together to begin with. If it doesn't continue to do so
now, it won't stay together.
2) Following the example of the Mormons, minority religious practices that are
disrespectful of human rights (especially women's rights) can be banned by the state.
That means that the state has the authority to ban polygamy in Islam (still technically
legal in India), as well as "Triple Talaq." In the short run, some Indian Muslims would be
unhappy about these changes, but in a modern nation-state the government has the
authority to decide on fundamental rights for all its citizens.
INDIAN SECULARISM
The Indian Constitution is longer and more complex than America's
. The statements concerning secularism are much longer than in the U.S. version, and
while they are more specific (the U.S. First Amendment is maddeningly general), their
specificity has not made them any less controversial. Moreover, Indian Parliaments
have been prone to make many minor and major Revisions and Amendments over the
years. In 1976, the language of the Preamble itself was changed -- and the
words "socialist" and "secular" were inserted, so that the opening sentence now
reads: "WE, THE PEOPLE OF INDIA, having solemnly resolved to constitute India into
a SOVEREIGN SOCIALIST SECULAR DEMOCRATIC REPUBLIC and to secure to all
its citizens..." Were these insertions really necessary? Some of the changes made over
the years detract from the power of the Constitution as a whole.
At any rate, let's look more closely at at least one of the provisions concerning
secularism in the Constitution, Article 15:

15. Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth.
(1) The State shall not discriminate against any citizen on grounds only of religion,
race, caste, sex, place of birth or any of them.
(2) No citizen shall, on grounds only of religion, race, caste, sex, place of birth or any of
them, be subject to any disability, liability, restriction or condition with regard to
(a) access to shops, public restaurants, hotels and places of public entertainment; or
(b) the use of wells, tanks, bathing ghats, roads and places of public resort maintained
wholly or partly out of State funds or dedicated to the use of the general public.

(3) Nothing in this article shall prevent the State from making any special provision for
women and children.
(4) Nothing in this article or in clause (2) of article 29 shall prevent the State from
making any special provision for the advancement of any socially and educationally
backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes.
This is just the first of several clauses dealing with "religion, race, caste, sex, place of
birth" etc. in the Indian Constitution, and it's immediately apparent that the intent and
structure of the Indian text is quite different from the American version. In India, the
Constitution Assembly felt obliged not just to establish general laws, but to make
specific statements regarding actual religious practices and communities. Untouchability
was banned (Article 17); discrimination over access to water was banned (above);
discrimination in public places such as hotels and restaurants was banned.
From the beginning, then, the Indian government took on the role of reforming religion in
the pursuit of social justice and equality. Nehru, Ambedkar, and other progressives
understood traditional religious practices and values (from all of India's religious
communities) to be the major impediment to the kinds of modernizing, integrating social
reforms they wanted, and the Constitution reflects that focus.
They were not bothered by the American idea of the "separation of church and
state." In India's case, religion is so constantly present in everyday life, and so powerful
in the social order, that the concept doesn't really make sense. The state has to
intervene in religious matters, to guarantee, for instance, that all castes of Hindus have
the right to enter temples. The Indian Constitution is an activist, reformist constitution. It
is also incremental -- some of the changes desired would not have been accepted by
most Indians in 1948. (The Hindu Marriage Act, which made major reforms on issues
such as dowry, child marriage, and polygamy affecting the Hindu community, was
implemented in 1955.)
What couldn't be included under "Fundamental Rights" for practical reasons was
relegated to a special section of the Constitution indicating "Directive Principles of State
Policy" (Part IV). These are essentially suggestions for future legislators -- it would be
great if you could go in this direction, that's really what we'd like to do, but can't. One of
the most famous of these directive Articles is Article 44: "44. Uniform civil code for the
citizens.The State shall endeavor to secure for the citizens a uniform civil code
throughout the territory of India." Sixty years have passed, and nothing much has
happened regarding civil codes. Directive Principles like Article 44 solve the question of
the Constitutional Assembly's "intent" that dogs so many legal debates in the U.S., but
otherwise they don't seem to matter much.