ALIGARH MUSLIM UNIVERSITY

MALAPPURAM CENTRE

KERALA
PROJECT REPORT ON COMPARATIVE STUDY OF SECULARISM AND FREEDOM
OF RELEGION IN INDIA AND AMERICA

SUBMITTED BY. AFZAL

FACULTY NO.18BALLB24

ENROLLMENT NUMBER.GJ3799

SUBMITTED TO. Mr.FAISAL KP SIR

SUBMITED ON 23 MARCH 2019

Table of content
1.Introduction

1.1 Background of secularism

1.2 Definition of secularism

2.Secularism and freedom of relegion in india

2.1 Secularism and indian constitution

2.2 Freedom of relegion in india

3.Secularism and freedom of relegion in america

3.1 The concept of secularism in america

3.2 Freedom of relegion in united states

4.conclusion

5.references
 1.INTRODUCTION
1.1BACKGROUND OF SECULARISM?

The word secular is derived from the Latin word saeculum which means century or age.The term
secularism was coined in 1851 by George Jacob Holyoake, a socialist. In the background of
19thcenturyliberalism, the term secularism was a by-product of the Renaissance and the
Enlightenment. While Renaissance asserted the dignity of the person, Enlightenment highlighted the
autonomy of reason and science. Before proposing the term secularism,Holyoake had considered the
terms ‘netheism’ (meaning neither theism nor an atheism) and ‘limitationism’ (probably hinting at
limiting the religious influence). His first aim in proposing secularism was not to negate religion but
to counter the irrationalism and supernaturalism of Christian theology. Holyoake’s second aim in
proposing secularism was to affirm the worth and dignity of a person and the autonomy of secular
life.

1.2.DEFINITION OF SECULARISM

Out of the commonly accepted three definitions of secularism one is people-centric, another is state-
centric and yet another is India-specific.

Firstly, the first people-centric definition emphasises the idea of separating religion from politics,
economy, education, social life and culture. The purpose of this separation is not to stamp religion out
from life but tocontain it to the private lives of individuals. A secular state is not supposed to
discourage the practice of religion but neither can it base its policies on religion. The ultimate goal is
to make religion a personal affair.

Secondly,The state-centric definition of secularism emphasises the need to keep the state neutral to all
religions. Religious people would like to see the state to show equal regard to all faiths but others may
demand the same respect for atheism. The demand normally is that the state must treat all its citizens
equally. This means that the state must neither favour nor discriminate against citizens on grounds of
their religion.The containment of religion in life and the separation of state from religion are
universally accepted definitions of secularism, even though these ideas had a distinctly European
origin.The containment of religion in life and the separation of state from religion are universally
accepted definitions of secularism, even though these ideas had a distinctly European origin.

Thirdly,India-specificdefinition of secularism underlines the importance of the unity of all people

against colonialism and communalism. A secular state and society were a part of the social vision of
the Indian national movement. Hence,despite the horrendous violence in 1947 and the making of
Pakistan ostensibly on religious lines, secularism remained the abiding principle and opposition to
communalism was the chosen policy in Independent India.i

2.SECULARISM AND FREEDOM OF RELEGION IN INDIA

2.1SECULARISM AND INDIAN CONSTIUTION

The Sanskrit phrase ‘Sarva Dharma Sambhava’ is the most appropriate Indian vision of secular state
and society. But it should not be forgotten that the word ‘Secular’ has not been defined orexplained
under the constitution either in 1950 or in 1976 when it was made part of the Preamble.The
constitution lays down the national goals of India, i.e. democracy, socialism,secularism and national
integration. On the other hand, India’s challenge, as described byits first prime minister,
JawaharlalNehru, has been to build “a secular state in a religiouscountry.” Indeed, the Indian
constitution, which came into force in 1950, affirms “the right to freely profess, practice and
propagate religion.” On the other hand, the Constitution made no mention of the word “secular” until
1976 during Indira Gandhi’s brief Emergency rule as the Prime Minister. India’s founding fathers
were deliberately ambiguous on religious rights – both giving the Muslim minority their own Islamic-
based civil code but also promising the overwhelming Hindu majority that the government would
work towards a uniform civil code.

It was only on December 18, 1976 the word “SECULAR” was added in the preamble of our
Constitution. The 42nd amendment Act reads – “In the Preamble to the Constitution,(a) for the words
“SOVEREIGN DEMOCRATIC REPUBLIC” the words “SOVERIGN SOCIALIST SECULAR
DEMOCRATIC REPUBLIC” shall be substituted”.So the word secular entered our Constitution only
almost 25 years after it had come into effect. So we have decided that we will create India as a secular
state. The only other place where the word secular appears in our Constitution is in Article 25 (2) (a)
while discussing the “Right to freedom of religion”.

It was incorporated in to the preamble of the constitution by the 42nd Amendment Act of 1976.

Secularism as a modern political and constitutional principle involves two basic propositions.The
first is that people belonging to different faiths and sects are equal before thelaw, the constitution and
the government policy.The second requirement is that there can be no mixing up of religion and
politics.

Article 14 of the constitution provides for equality before law for all people. Article 15,inter alia, lays
down that the state shall not discriminate any citizen on the ground of religion.

Article 16 provides for equality of opportunity in matters of employment under the state,irrespective
of religion.

Article 25 provides for freedom of conscience and the right to profess, practice and propagate the
religion of one’s choice. The constitution not only guarantees a person’s freedom of religion and
conscience, but also ensures freedom for one who has no religion, and it scrupulously restrains the
state from making any iscrimination on grounds of religion.Article 26 provides freedom to manage
religious affairs and Article 27 prohibits compulsion to pay taxes to benefit any religious
denomination.

The impact of Secularism can also be seen in Article 28, which states that no religiousinstruction shall
be provided in any educational institution wholly maintained out of statefunds.The analysis of the
above said constitutional provisions makes it amply clear that Indian secularism is unique and it treats
all religions alike.

It does not, however, prevent the state from financially assisting educational institutions sponsored by
the ‘church’ or religious organizations. The state has also reserved to itself and has sometimes
exercised the right to interfere in the religious practices of various communities in the interest of their
peaceful coexistence and cultural development.For instance, under section 494 of the Indian Penal
Code, bigamy is an offence and a person, who contracts a second marriage while the first marriage is
subsisting, is guilty of the offence. But this provision is in applicable to those people who can have
more than one wife as per their religion.Secularism has been one of the essential elements in the basic
structure of our Constitution which lays down that
1) the state has no religion;

2) all citizens have the fundamental right to follow and

propagate their own religion; and

3) it is the duty of the state to protect and secure the life, liberty and property of all the

citizens of the country.Secularism in the Indian Constitution is Very simple, it asserts that:

1. The state by itself shall not espouse or establish or practice any religion.

2. Public revenues will not be used to promote any religion.

3. The state shall have the power to regulate any economic, financial or other secular

activity associated with religious practice – Article 25 (2)

4. Article 17 constitutionally outlaws the practice of untouchability.

5. Every individual person will have under Article 25 an equal right to freedom of

conscience and religion.

6. These rights are however subject to the power of the state through law to impose

restrictions on the ground of public order, morality and health.

7. These rights are furthermore subject to other fundamental rights in Part III.

8. The courts, especially the Supreme Court shall have the final say on adjudgingstate action as valid
or otherwise under the above principles.ii

2.2 FREEDOM OF RELEGION IN INDIA

Freedom of religion in India is a fundamental right guaranteed by Article 25-28 of the Constitution of
India. Modern India came into existence in 1947 and the Indian constitution's preamble was amended
in 1976 to state that India is a secular state.However, in S.R Bommai v. Union of India, Supreme
Court of India ruled that India was already a secular state from the time it adopted its constitution,
what actually was done through this amendment is to state explicitly what was earlier contained
implicitly under article 25 to 28.Every citizen of India has a right to practice and promote their
religion peacefully. However, there have been numerous incidents of religious intolerance that
resulted in riots and violence, notably, the 1984 Anti-Sikh riots in Delhi,1990 Anti-Hindu riots in
Kashmir, 2002 Gujarat riots and the 2008 Anti-Christian riots. Some perpetrators of the 1984 Anti-
Sikh riots in Delhi have not been brought to justice despite widespread condemnation.

India is one of the most diverse nations in terms of religion, it being the birthplace of four major
world religions: Jainism, Hinduism, Buddhism and Sikhism. Even though Hindus form close to 80
percent of the population, India also has region-specific religious practices: for instance, Jammu and
Kashmir has a Muslim majority, Punjab has a Sikh majority, Nagaland, Meghalaya and Mizoram have
Christian majorities and the Indian Himalayan States such as Sikkim and Ladakh, Arunachal Pradesh
and the state of Maharashtra and the Darjeeling District of West Bengal have large concentrations of
Buddhist population. The country has significant Muslim, Sikh, Christian, Buddhist, Jain and
Zoroastrian populations. Islam is the largest minority religion in India, and the Indian Muslims form
the third largest Muslim population in the world, accounting for over 14 percent of the nation's
population.iii

3. SECULARISM AND FREEDOM OF RELEGION IN AMERICA

It outlines theconceptual and theoretical frame work of the concept of secularism as well as the
varyingpractices of constitutional democracy with respect to issues of religious freedomand
secularism.

3.1 THE CONCEPT OF SECULARISM-IN AMERICA

In the U.S the notion of separation of State and religion in general, and the exact meaning of the
‘Establishment clause’ in particular, has been the subject of much debate and controversy.In the
earlier period there were at least five perspectives as regards the notion of separation. Some have
viewed the establishment clause’s purpose is primarily to ‘protect the Church from the State’, others
have argued that it is designed to ‘protect the State from the Church’, and some also see it as a means
to protect the individual’s liberty of conscience from the intrusions of either Church or State, or both
buttressing one another, and others hold that, it is there, for the 'protection of individual States from
interference by the federal government in governing local religious matters, still others argued it is
meant to protect society and its members from unwelcome participation in and support for religion.

Despite this background, it is only after the 1940s many issues have become clear, since cases of
infringement on religious freedom and whether certain practices represent government
‘establishment’ or support of religion have become the subject of scholarly scrutiny and frequent
litigation.

As a result, it has been suggested that, the philosophical impetus behind the U.S secularism has
always been to ‘protect religion from the State.4 In spite of this notion, still many perspectives and
interpretations have been offered in several occasions, and two contemporary views are worth noting
at this juncture. The first view is that the establishment clause prescribes strict government neutrality
on all religious issues, including ‘neutrality’ between religious beliefs and non religious beliefs. The
second perspective holds that the establishment clause only prohibits the government from preferring
one religion over others, but does not disable the government from assisting religion in general so
long as it offers equal treatment for allMoreover, a government cannot force a person to attend or to
stay away from religion against his/her will or force him/her to profess a belief or disbelief in any
religion. Furthermore, neither a State nor the Federal government may overtly or covertly take part in
the affairs of any religious organization or groups and vice versa.

In order to help interpret the ‘establishment clause’ the Supreme Court develops a three part test,
sometimes known as the ‘Lemon test’. This test draws its name from the 1971 decision Lemon V.
Kurtzman.According to this test, first the governmental action at issue must have a secular purpose,
second, its principal or primary effect must be onethat neither advances nor inhibits religion, third,
and the governmental action must not exhibit an excessive government entanglement with
religion.When the courts apply the ‘Lemon test’, the governmental law or action must pass the three
parts of the test to be consistent with the establishment clause. In applying the‘purpose test’ the
challenged governmental action or law must have been done for civicor secular purpose, for example
to promote education, health or safety of the public.
In examining the purpose the courts use the ‘objective observer’ standard and maylook at the text of
the law, all surrounding circumstances, including history, context, ‘logical effect’ and manner of its
implementation. As regards the second test, even through, the challenged law or governmental action
meets the purpose test, if its primary effect advances or restricts religion; the law is facially invalid.
However, a mere secondary effect that promotes or inhibits religion cannot render it void as long as
the primary effect of the law is to further some legitimate governmental interest The third test requires
that the ‘nature’ and ‘character’ of the governmental action at issue must not indulge excessively in
religious matters or must not allow excessive religious intrusion in governmental matters. Some
justices have been dissatisfied with the ‘Lemon test’ and offered alternatives. These are known as
“Endorsement” test and “Coercion” tests. The‘Endorsement test’ used to determine the fundamental
question that, whether a ‘reasonable and informed’ observer would view governmental action or
practices amounts to ‘endorsement’ of religion. The ‘endorsement’ test designed to prevent the
government from conveying or attempting to convey a message that religion or a particular religious
belief is preferred or promoted. Of course, some justices viewed andtreat the ‘Endorsement’ test
within the purview of the first two components of ‘Lemon’ test. Others also handle it as a separate test
altogether.

The ‘coercion’ test appears most often in the context of school prayer. Under this test the
governmental action does not contravene the establishment clause unless, it provides ‘direct’ aid to
religion in such a manner that create a perception favoring religion or particular religion or forces
people to support or to take part in religion against their willThe ‘Free exercise clause’ basically
protects the individual’s belief and religious expression from government interference, while the right
to hold religious belief is absolute; the right to involve in religious practices is not.

To determine an issue of whether a governmental action has imposed a ‘burden’ on the right of
religious exercise, the U.S Supreme Court has developed a standard of interpretation known as
‘Sherbert test’, this test derives its name from a case, Sherbert V. Verner (1993).This test has four
components; two of them apply to any person who petitions his ‘free exercise’ right has been
infringed. The other two apply to the government organ accused of violating such rights.In order to
claim protection under the free exercise clause a complainant must show that his actions are motivated
by a ‘sincere’ religious belief and have been ‘substantially burdened’ by the government’s action. In
this scenario sincerity of belief does not necessarily be ‘logical’ ‘rational’, ‘sensible’, even; ‘popular’
and the petitioner needs not be a member of an organized religious denomination.Yet, the belief must
genuinely occupy a central place in the life of the possessor; something parallel to that of the spiritual
belief holds by traditionalreligious persons. In addition; the petitioner must demonstrate substantial
burden as remote and incidental burden will not suffice. When these components are proven, the
government has a burden of showing it is acting in furtherance of a ‘compelling state interest’ and it
has pursued that interest in a manner less restrictive or least burdensometo the religious right under
consideration.

According to the judicial precedent a ‘compelling’ interest has been described as‘an interest of the
highest order’ or vital interest’. And ‘least restrictive’ or ‘narrowly tailored’, would mean that the
government action at issue must be neither ‘under inclusive’ or ‘overbroad’.24

A governmental law or action is ‘under inclusive’, when it regulates religious practice, but does not
regulate (restrict) non- religious conduct that produces the same harm. If courts found the challenged
law or action under inclusive, it implies the governmental interest is not compelling because it cannot
be regarded as protecting an interest of the highest order.
A law is also ‘over broad’ whenever it restricts religion or religious practice more than is necessary
for the furtherance of the stated compelling governmental interest.Since the decision of the Supreme
Court on Employment Division V. Smith case in 1990s there is a significant shift as regards the
‘substantial burden’ test. The court ruled that as long as the law at issue does not specifically targets
religion and its practices, and is generally applicable, the proof of substantial burden is irrelevant,
even if the challenged law incidentally burdens religion and religious practices.

The congressional law known as Religious Freedom Restoration Act (RFRA,1993), was designed to
prohibit the government from ‘substantially’ burdening a person’s expressionof religion, even if the
burden incidentally emanates from a generally applicable law, unless the government shows a
compelling interest and is applying a means that is least restrictive.28 In 1997 when the U.S Supreme
Court reviewed the Boerne V.Flores Case, it has ruled out that the RFRA itself is unconstitutional
stating that Congress has no competence to change ‘substantially’ the free exercise clause.

To sum up until recently America took pride in ‘melting pot’ model of identity as most of the
migrants to USA were from Western countries. But, today when massive immigration to America has
been taken place from all over the World people having Asian, African, Hispanic, and Arab roots are
forming sizeable communities, and the former model has become faded and a new ‘mosaic’ model of
identity has emerged. As a result, at least in official discourse the American society is becoming more
tolerant and accepting differences and diversity. The government also officially supports diversity and
autonomy. It encourages an individualistic society, where citizens make choices with free will and the
government intervenes as little as possible to give each person maximum freedom over his/her own
life.

For this and other reasons the American system gives more emphasis to free exercise clause than to
strict separation. The free exercise clause is also reinforced by other rights found under the umbrella
of broader rights protections available to all citizens, like freedom of speech and non- discrimination.

Perhaps for historical reasons, religion is not strictly confined to private life, inmany occasions
religion is seen in the public sphere. The issues of head scarf and othereligious attire have never been
weighty political matters as compared to some European secular States. Public schools have broader
autonomy to adopt their own rules pertaining to accommodation of religious expressions. Applicable
laws vary depending on the State,thus, interpretation of the free exercise claims against State and local
laws and regulations will rely on the regime of the specific State, even though, the underlining claims
rest onthe federalConstitution. In this respect the United States’ principle of secularism is byand large
characterized as ‘individualized accommodation model.iv

3.2 FREEDOM OF RELEGION IN UNITED STATES

In the United States, freedom of religion is a constitutionally protected right provided in the religion
clauses of the First Amendment. Freedom of religion is also closely associated with separation of
church and state, a concept advocated by Colonial founders such as Dr. John Clarke, Roger Williams,
William Penn and later founding fathers such as James Madison and Thomas Jefferson.

The freedom of religion has changed over time in the United States and continues to be controversial.
Concern over this freedom was a major topic of George Washington's Farewell Address. Illegal
religion was a major cause of the 1890–1891 Ghost Dance War. Starting in 1918, nearly all of the
pacifist Hutterites emigrated to Canada when Joseph and Michael Hofer died following torture at Fort
Leavenworth for conscientious objection to the draft. Some have since returned, but most Hutterites
remain in Canada.

The long term trend has been towards increasing secularization of the government. The remaining
state churches where disestablished in 1820 and teacher-led public school prayer was abolished in
1962, but the military chaplaincy remains to the present day. Although most Supreme Court rulings
have been accommodationist towards religion, in recent years there have been attempts to replace the
freedom of religion with the more limited freedom of worship. Although the freedom of religion
includes some form of recognition to the individual conscience of each citizen with the possibility of
conscientious objection to law or policy, the freedom of worship does not.

Controversies surrounding the freedom of religion in the US have included building places of
worship, compulsory speech, prohibited counseling, compulsory consumerism, workplace, marriage
and the family, the choosing of religious leaders, circumcision of male infants, dress, education, oaths,
praying for sick people, medical care, use of government lands sacred to Native Americans, the
protection of graves, the bodily use of sacred substances, mass incarceration of clergy, both animal
slaughter for meat and the use of living animals, and accommodations for employees, prisoners, and
military personnel.v

Conclusion

Everything in India revolves around religion and with time religion has flourished with Indian
civilization. In Feudal India, where authority lay in the sword, there was almost complete religious
tolerance. People from different religions used to live in peace and harmony and there was complete
respect for each other’s religion. Few clashes and controversies occured during that time, though later
with the coming of the Mughals, people were forced to adopt Islam by autocratic ruler like
Aurangzeb.
Secularism became more prominent under the British rule in India. Religion then became an
inseparable part of politics and social life. The British government imposed separate laws for Hindus,
Muslims, Christians, Sikhs and other religious communities. This was the basis of their divide and
rule policy. With this a civil code came into existence that was not the same across all religions, but
different for each religion.
At the time of Independence, secularism was the main objective of political leaders. All prominent
leaders of the Indian National Congress were committed to secularism. But unfortunately, the exact
opposite happened, communal violence led to the partition of India and Pakistan in 1947 as separate
nations. Pakistan was formed as a new homeland for Muslims who felt insure of living in India, with a
Hindu majority. This communal violence also led to the assassination of Mahatma Gandhi, who
preached secularism and religious tolerance.
After Independence, India became a secular country in which the Indian state did not have any one
state religion, but her people were free to follow or adopt any religion.Though gradually, most
political leaders started preaching communal ideology, which led to India becoming a combination of
communalism and secularism During the early 80’s communalism became so strong that it began to
overshadow the secularism in India. Hence the word “pseudo-secularism” began to be used by
different political parties, The 1984 anti-Sikh riots in Delhi, The Babri Masjid\Ram janam bhoomi
controversy in 1992, militancy in Kashmir and Punjab are few major examples which prove the
superiority of communalism in India versus secularism. Communal forces oppress minorities in
India and lead to the disintegration of secular policies. Communal and religious clashes are the
biggest question on the definition of “secularism” in present day India.

i
Unit 20 secularism and secularization pdf.
ii
Secularism in india-1, DOCX,Secularism and indian constitution
iii
Wikipedia.org/wiki/Freedom_of_Relegion_in_India
iv
PDF shodhganga.inflibnet.ac.in>bitstream chapter 5 camparative study og secularism and freedom of
relegion in varous constitutional frame work
v
Wikipedia.org/wiki/Freedom_of_relegion_in_united_states