1

COMPARATIVE CONSTITUTION
FINAL SUBMISSION
ON

COMPARATIVE ANALYSIS OF POLITICAL

SECULARISM: FRANCE AND INDIA

Submitted by
Shivanshi Gupta
Group B; PRN:13010224122; Class 2013-2018
Of
Symbiosis Law School, NOIDA
Symbiosis International University, PUNE
In
October, 2017
Under the guidance of
Mr. Satya Prakash
Assistant Professor of Law
SLS, Noida.
 2

Certificate

The project entitled “Comparative Analysis Of Political Secularism: France And India”
submitted to the Symbiosis Law School, Noida for Comparative Constitution as part of the
Internal assessment is based on my original work carried out under the guidance of Mr. Satya
Prakash from July 2017 to November 2017. The research work has not been submitted elsewhere
for award of any degree.

The material borrowed from other sources and incorporated in the thesis has been duly
acknowledged.

I understand that I myself could be held responsible and accountable for plagiarism, if any,
detected later on.

Shivanshi Gupta

Date: 1st October, 2017.

 3

Table of Contents

Chapter No. Particulars Page no.

1. Introduction 4

2. Political Secularism in France

2.1 Constitutional Background

2.2 Religious Demography 5-11

2.3 Legal framework governing Religious Freedom

2.4 Recent Practices

2.5 Impact of French Secularism

3. Political Secularism in India

3.1 Constitutional Background

3.2 Religious Demography

11-18
3.3 Legal Framework governing Religious Freedom

3.4 Recent Practices

3.5 Impact of Indian Secularism

4. Conclusion 19

5. Bibliography 20-21
 4

1. Introduction

The realm of religion is much wider and conflicting with other religions of the society, in such
situations the state is bound to protect its subject from the harmful intersection of the religions.
State has therefore granted its subjects certain liberties to profess, propagate, and practice their
religion without interfering in the religious beliefs of the others and thereby aims at reduction of
the propensity of the conflicts, but at the same time there are certain countries in the world which
do not protect all the religions equally but recognize a particular religion to be state religion,
while many countries declare them to be neutral in the matter of religion and state affairs.1
Political Secularism is meant to be a doctrine that guarantees freedom of religion and seeks
separation of religion and politics, religion and state affairs in order to check religious tyranny
and oppression. It promotes freedoms and equalities for the religious and non-religious.

Yet, the same fails to have a universal meaning, unable to follow a single template. The
same holds true for India and France. In India, the general law is secular, yet a degree of
jurisdictional autonomy is granted to religious communities, primarily in the matters of personal
status and education. The Indian model of granting religious freedom as a matter of Fundamental
right is based on the ‘secular principles’ and the concept of secularism is implicit in the Preamble
of the Indian Constitution which declares the resolve of the people to secure to all its citizens
“Liberty to thought, belief, faith and worship”.2 On the other hand, secularism in France is based
on an assertive model. A model that establishes the form of assertiveness, even militant,
secularism that goes beyond neutrality towards religion or a declared a-religiosity, to advance an
explicitly secular civic religion that resents manifestations of religion in the public life and views
secularism as a core element of the modern nation and its members, or a collective identity.3

The following will be an analysis on the differences in the two approaches taken by the two
countries respectively in handling the much needed question of political secularism and will be
an effort to point out the constitutional difference in the two.

1
Paul Kurtz, What Is Secular Humanism?, Amherst: Prometheus Books, 2006.
2
Rajeev Bhargava, “The Distinctiveness of Indian Secularism”, in T. N. Srinivasan (ed.) The Future of Secularism,
New Delhi: Oxford University Press, 2007.
3
Wilfred McClay, Speech on “Religion and Secularism: The American Experience”, Pew Forum’s Biannual
conference on Religion, Politics and Public life, December 3, 2007
[http://www.pewresearch.org/2007/12/03/religion-and-secularism-theamerican-
experience/
 5

2. Political Secularism in France

2.1 Constitutional Background

Since the French Revolution, the French State has been no longer a confessional state, except for
the period of the Restoration (1815-1830). By the Declaration of the Rights of Man and of the
Citizen, freedom of thought and opinion, including religious thought and opinion, was
nevermore to be questioned. Similarly, from the time of the Revolution and most particularly
with the establishment of the Civil Code in the early twentieth century, the only laws recognized
by the French State are those that the state promulgates, and relationships between citizens of the
country are governed by the statutory framework. A religious framework, the religious law, has
no legal force, and no strong social and moral weight. The French Constitution recognizes
religious freedom through devotion to freedom of opinion and belief in the “constitutional
bloc.”4It protects with the same force opinions and beliefs. In addition, the Constitutional
Council described freedom of conscience as a “fundamental principle recognized by the laws of
the Republic” in its 1977 decision Liberté d’enseignement et de conscience (Freedom of
education and of conscience),5 which implicitly includes freedom of religious belief in its 5th
recital, recalling the requirements of Article 10 of the DDHC as respect for religious beliefs, in
conformity with public order, and the principle of non-discrimination in employment on the basis
of beliefs.
Thus, while it is true that very relevant doctrinal distinctions6 are made between freedom
of opinion, freedom of conscience, freedom of worship, and freedom of religion, the latter cannot
be exercised without the first. Therefore, it is possible to conclude that the constitutional
guarantee of religious freedom is characterized by three features7: a collective dimension,
inclusiveness, and the externalization of conviction in religious exercise. Taken into account,

4
“Text with Constitutional”, La Documentation Francaise, The Directorate of Legal and Administrative Information
(DILA), Head office of the France Prime Minister, 2004
(http://translate.googleusercontent.com/translate_c?hl=en&sl=fr&u=http://www.lado
cumentationfrancaise.fr/dossiers/laicite/fondements-juridiqueslaicite.
shtml&prev=/search%3Fq%3DRepublique%2BFrancaise,%2Bla%25C3%25AFcit%25C3%25A9%26hl%3Den&rur
l=translate.google.co.uk&usg=ALkJrhjhPn0F6uFr8iKfBm7OXa28buoyeg),
5
Ahmet T. Kuru, Secularism and State Policies Toward Religion: The United States, France, and Turkey,
Cambridge: Cambridge University Press, 2009,
6
“Napoleon's concordat (1801): text”, Concordat Watch, Translated by Muriel Fraser from the French
.(http://www.concordatwatch.eu/showkb. php?org_id=867&kb_header_id=826&kb_id=1496 )
7
“100th Anniversary of Secularism in France”, The Pew Forum on Religion and Public Life, Washington, DC,
December 09, 2005 (http://www.pewforum. org/2005/12/09/100th-anniversary-of-secularism-in-france/)
 6

then, are on the one hand the freedom of forum internum, that is to say, freedom to join a religion
or not to adopt a religion, or freedom to change religion by conversion, and on the other hand the
external freedom (forum externum) to express ones religious beliefs, including collective
manifestations of religion in the public sphere.8 Such expression of course cannot interfere with
the rights of others, as required by Article 4 of DDHC, which has constitutional value, whereby
“Freedom is being able to do anything that does not harm others: thus, the exercise of the natural
rights of each man has no limits except those which assure to the other members of the society
the enjoyment of these same rights. These limits can only be determined by law.” For example,
the freedom to wear religious symbols must be reconciled with the neutrality of the educational
space. Also, aggressive proselytism is prohibited as it is likely to undermine the freedom of each
individual to believe or not to believe. Finally, other constitutionally recognized freedoms give
effect to religious freedom.9 There is freedom of speech,10 without which it would be impossible
to express religious opinions; freedom of assembly11 permits meeting in public or in private on
religious matters; freedom of association12 is indispensable in the establishment of religious
groups; freedom of expression makes possible, for example, religious processions. These related
fundamental liberties allow all to express their opinions, including religious opinions, about
everything that is of interest in the public debate.

8
The Legifrance – public service broadcasting law by the Internet, Secretariat Generalof Government (SGG), France
[English Version ],
2009.http://translate.googleusercontent.com/translate_c?hl=en&sl=fr&u=http://www.legifrance.gouv.fr/affichTexte.
do%3FcidTexte%3DLEGITEXT000006070169%26dateTexte%3D20081012&prev=/search%3Fq%3DRepublique
%2BFrancaise,%2Bla%25C3%25AFcit%25C3%25A9%26hl%3Den&rurl=translate.google.com&twu=1&usg=ALk
JrhgeZNfnQCcFkvY4e5dlbknmLcwmKQ.
9
Alex Lefebvre, “France: National Assembly bans Muslim headscarves in schools”, World Socialist Website,
February 18, 2004 (http://www. wsws. org/ articles/2004/feb2004/scar-f18.shtml)
10
Federico Fabbrini, Kelsen in Paris: France’s Constitutional Reform and the Introduction of A Posteriori
Constitutional Review of Legislation, 9 GERMAN L.J. 1297, 1304 (2008).
11
JOHN BELL, FRENCH CONSTITUTIONAL LAW (1992).
12
Supra at note 7.
 7

2.2 Religious Democracy

The U.S. government estimates the total population at 66.8 million (July 2016 estimate). The
French government does not maintain official statistics on religious affiliation, but government
studies occasionally provide estimates. According to the most recent study by the National
Institute for Demographic Studies, conducted in 2008 and published in 2010, 45 percent of
respondents aged 18-50 reported no religious affiliation, 43 percent identified as Roman
Catholic, 8 percent as Muslim, 2 percent as Protestant, and the remaining 2 percent as Orthodox
Christian, Buddhist, Jewish, or other.13

2.3 Legal Framework governing Religious Freedom

The constitution states the country is a secular republic and the state “shall ensure the equality of
all citizens before the law,” regardless of religion, and respect all beliefs. The law provides for
the separation of religion and state and guarantees the free exercise of religious worship except
in the interest of maintaining the public order.14

The law, as well as international and European covenants, which carry the force of law in the
country, protects the freedom of individuals to choose, change, and practice their religion.
Interference with the freedom of religion is subject to criminal penalties, including a fine of
1,500 euros ($1,580) and imprisonment of one month. Individuals who are defendants in a trial
may challenge the constitutionality of any law they say impedes their freedom of religion. Laws
increase the penalties for acts of violence or defamation when they are committed because of the
victim’s actual or perceived membership or non membership in a given religious group.15

Although not required by law, religious groups may apply to register to gain official recognition
and become eligible for tax-exempt status. The law defines two categories under which religious
groups may register: associations of worship, which are exempt from taxes; and cultural
associations, which normally are not exempt16. Associations in either category are subject to
fiscal oversight by the state. An association of worship may organize only religious activities,

13
https://inomics.com/french-national-institute-demographic-studies-ined.
14
https://www.prospectmagazine.co.uk/magazine/secularisminfrance.
15
http://www.myheplus.com/sites/www.myheplus.com/files/downloads/topics/Activity%202%20%E2%80%93%20
France%20and%20the%20Burkini%20Ban.pdf.
16
http://kaufmansocialstudies.weebly.com/uploads/1/0/9/7/10974186/france%E2%80%99s_%E2%80%98burkini%E
2%80%99_bans_are_about_more_than_religion_or_clothing_-_the_new_york_times.pdf
 8

defined as liturgical services and practices. Although not tax-exempt, a cultural association may
engage in profit making as well as nonprofit activity and receive government subsidies for its
cultural and educational operations. Religious groups normally register under both of these
categories. For example, Mormons perform religious activities through their association of
worship and operate a school through their cultural association.17

The law prohibits covering one’s face in public places, including public transportation,
government buildings, and other public spaces such as restaurants and movie theaters. 18 If the
police encounter someone in a public space wearing a face covering such as a mask or burqa,
they are legally required to ask the individual to remove it to verify the individual’s identity.
Police officials may not remove it themselves. If an individual refuses to remove the garment,
police may take the person to the local police station to verify his or her identity. An individual,
however, may not be questioned or held for more than four hours.19

Public schools are secular. The law prohibits public school employees and students from wearing
“conspicuous religious symbols,” including the Muslim headscarf, Jewish skullcap, Sikh turban,
and large Christian crosses. Religious instruction is not provided in public schools, except in
Alsace-Lorraine, French Guiana, and overseas departments and territories.

The law states “detained persons have the right to freedom of opinion, conscience, and religion.
They can practice the religion of their choice … without other limits than those imposed by the
security needs and good order of the institution.”20

The country is a party to the International Covenant on Civil and Political Rights.

17
Paul Hedges, Fashion, ‘Feminism or Freedom: Dissecting France’s Ban on Burkini’, 2016, available at
https://www.rsis.edu.sg/wp-content/uploads/2016/08/CO16219.pdf.
18
Supra at note 8
19
https://www.prospectmagazine.co.uk/magazine/secularisminfrance.
20
Ibid.
 9

2.4 Recent Practices

The government investigated and prosecuted crimes against religious groups, including anti-
Semitic and anti-Muslim violence, hate speech and vandalism. The government’s ban against
face coverings in public places was confirmed by various court rulings. Several city mayors –
including the mayor of Nice – dismissed the verdict and said they would continue to enforce
bans on full-body swimwear at public beaches, arguing that its use could disturb public order by
leading to fights on the beach, but there were no additional reported cases.21

ISIS claimed responsibility for a terrorist attack in Nice during the July 14 independence day
celebration that killed 84 people without regard for their religious belief. Government officials
and political party members made statements condemning “Islamic extremism.” The president
and government officials condemned anti-Semitic, anti-Muslim, and anti-Catholic acts. The
government continued efforts to promote interfaith understanding through public awareness
campaigns and by encouraging dialogue in schools, among local officials, police, and citizen
groups.22

In this respect, the recent law on religious symbols in schools is an initial measure which, despite
its limitations, must not be underestimated and whose significance should be stressed. In effect,
it constitutes a clear message to all the Muslims living in France, by establishing a reasonable
restriction on Islam and clearly marking out the domain of the state. Recent history already
shows that the attempt to assimilate minorities by stamping out religious expression can backfire.
In the spirit of laïcité, France passed a law in 2004 banning religious symbols and clothing, like
crosses, kippas, and headscarves, in public schools. It had the effect of increasing the demand for
private Muslim schools, keeping Muslims out of the mainstream instead of integrating them. A
similar law banning the burqa in public spaces was passed in 2010.23

After the Charlie Hebdo attacks, President François Hollande affirmed that laïcité was “non-
negotiable,” a “guarantee” against internal and external threats. France has also declared
December 9 (the date of the 1905 law) a “Day of Laïcité” and introduced a new edict reinforcing

21
Alex Lefebvre, “France: National Assembly bans Muslim headscarves in schools”, World Socialist Website,
February 18, 2004 (http://www. wsws. org/ articles/2004/feb2004/scar-f18.shtml).
22
Supra at note 5.
23
Supra at note 9.
 10

the teaching of laïcité in public schools. The edict was inspired in large part by the refusal of
many children to participate in a national minute of silence for the Charlie Hebdo victims, who
they believe insulted the Prophet Muhammad. Parents and children must now sign a “charter of
laïcité” demonstrating their understanding and respect for the principle.24

2.5 Impact of French Secularism

While French secularism is not really under challenge, it currently finds itself under intense
discussion. This labour is especially necessary today for two reasons, which have a direct impact
on secularism: on the one hand, the transformation of the state; on the other, the presence of
Islam in France. If French secularism is in question and undergoing a certain evolution, it is due
in the first instance to the changes affecting the state in recent decades. Consequently, religion,
which has its natural place in society, is seeing its domain expand and its role increase, despite
growing secularization. Secularism is necessarily affected and restricted as a result.25

By transferring various functions to society – e.g. cultural or humanitarian matters – the state
offers religions new arenas of possible action. The state constantly intervenes in the life of
society and supports it in many ways. Conversely, society (individuals, groups, associations,
enterprises, etc.) does not hesitate to penetrate the state, to obtain state support (including
financial support), and to promote its own particular interests.26

Naturally, religions cannot remain outside this dual dynamic. On the one hand, the state consults
them (e.g. on ethical issues), solicits their collaboration, or provides them with indirect aid (tax
reductions for gifts, social security of forms of worship, religious broadcasts on radio and
television, etc.). On the other hand, religions seek to have a public (not merely a social)
existence, to secure recognition from the state, and to get it to accept their own positions on
numerous issues (the family, abortion, homosexuality, euthanasia, bioethics, immigration, social
justice, humanitarian action, etc.). The relaxation of the boundary between state and society

24
https://www.theguardian.com/media/charlie-hebdo.
25
Shantanu Majumder, ‘ Understanding of Political Secularism in a Comparative Perspective: France, USA, Turkey
and India’, Journal of the Asiatic Society of Bangladesh (Hum.), Vol. 58(2), 2013, pp. 217-237.
26
Balndine Chelini- Pont, Nassima Ferchiche, ‘ Religion and the Secular State: French Report’, Droit et Société 68
(2008): 11-31.
 11

helps attenuate the separation between state and religions, which readily confuse their social
visibility with their entry into the public sphere.27

The second reason for refocusing secularism is the durable presence of Islam and of a large
Muslim community. Muslims feel targeted by laïcité. Although the principle is, in theory,
applicable to all religions, in practice it tends to discriminate against Islam. In a country where
many people aren’t religious to begin with (or only loosely so) and most state holidays are
Catholic holy days, Muslims have simply had more to give up. However, there is a serious
difficulty to be resolved, which is new and disconcerting: this is the fact that Islam is not only a
religion, but contains a social and political dimension, and hence an ideology capable of
inspiring a practice. Consequently, it is necessary to separate what is religious in it from what is
not. This is a delicate operation, for which the state is not competent and which Muslims are
loath to carry out.28

3. Political Secularism in India

3.1 Constitutional Background

Secularism in India is based on the selective accommodation of religion in certain areas of the
law. The general law is secular, yet a degree of jurisdictional autonomy is granted to religious
communities, primarily in the matters of personal status and education. 29 The Indian model of
granting religious freedom as a matter of Fundamental right is based on the ‘secular principles’
and the concept of secularism is implicit in the Preamble of the Constitution which declares the
resolve of the people to secure to all its citizens “Liberty to thought, belief, faith and worship”.
The 42nd Amendment Act, 1976 has inserted the word ‘secular’ in the Preamble. In India, a
secular state was never considered to be irreligious or atheistic state. It only means that in the
matters of religion it is neutral. Explaining the secular character of Indian Constitution the
Supreme Court said30, there is no mysticism in secular character of the state. Secularism is
neither anti-God nor pro-God, it treats alike the devout, the antagonistic and atheist. It eliminates

27
Supra at note 11.
28
Supra at note 25.
29
Yerankar, S., ‘Secularism in India: Theory and Practice’, (2006), Delhi: Adhyayan Publisher & Distributors.
30
S.R. Bommai v. Union of India, (1994) 3 SCC 1.
 12

God from the matter of the state and ensures that no one shall be discriminated against the
ground of the religion. Article 25 of the Constitution of India guarantees to every person the
freedom of conscience and right to profess, practice and propagate religion. The right guaranteed
under Article 25 is not absolute and it is subject to the public morality health and to other
provisions. Thus under Article 25 a person has two fold freedoms:

1. Freedom of the conscience,

2. Freedom to profess practices and propagate religion.

To ‘practice’ religion is to perform the prescribed religious order in which he believes. To

‘propagate’ means to spread and publicized his religious views for the edification of others. But
the word ‘propagation’ only indicates persuasion and exposition without any element of
coercion. The right to propagate one’s religion does not give a right to convert any person’s own
religion.31

There is no fundamental right to convert any person to own religion. As it is clearly mentioned in
Article 25 the right to freedom of religion is not absolute, and there are restriction on the freedom
of the religion viz; Religious liberty subject to public order, morality and health, forced
conversion is no allowed where in Supreme Court held that “what Article 25 grants is not the
right to convert another person to one’s own religion, but to transmit or spread one’s religion by
an exposition of its tenets”. The positive religious freedom includes Articles viz. Art. 25, 26 and
30 which deals with the “freedom of conscience and free profession, practice and propagation of
religion”, “freedom to manage religious affairs” and “the rights of minorities to establish and
administer educational institutions”. These freedoms are not absolute but subjected to certain
reasonable restriction.

The Negative freedom of religion includes Art. 15(1) and 15(4) which prohibits discrimination
on the grounds of religion, Art. 16 assure equality of opportunity for people belonging to all
religions in matters of public employment, Art. 17 abolish untouchability, Art. 29(2) caters to
“protection of the interests of minorities”, and Art. 325, 330(1) and 332(1) order no communal
electorates. The Neutral provisions include Art. 27, 290(A) and 28(1) (2) (3) which emphasize

31
Ismail Faruqui v. Union of India, 1994 SCC (6) 360.
 13

that “no religious instructions be imparted through the institutions ran or aided by the state.”
Provision of Art. 44 direct State to bring Common Civil Code which strengthens the secular
foundations of society, Ban on cow slaughter under Art. 47 recognize sentiments of majority
Indians. Thus we have a balanced basic framework of secularism in our Constitution.

3.2 Religious Demography

According to India’s 2011 census, the most recent year for which disaggregated figures are
available, Hindus constitute 79.8 percent of the population, Muslims 14.2 percent, Christians 2.3
percent, and Sikhs 1.7 percent. Groups that together constitute less than 1 percent of the
population include Buddhists, Jains, Zoroastrians (Parsis), Jews, and Bahais. The Ministry of
Tribal Affairs officially classifies the more than 104 million members of Scheduled Tribes –
indigenous groups historically outside the caste system who often practice animism and
indigenous religious beliefs – as Hindus in government statistics.32

3.3 Legal Framework governing Religious Freedom

Subject to considerations of public order, morality, and health, the constitution provides for
freedom of conscience and the right of all individuals to profess, practice, and propagate religion
freely, and mandates a secular state. It prohibits government discrimination on the basis of
religion, including with regard to employment, as well as any religion-based restrictions on
individuals’ access to public or private facilities or establishments open to the general public. 33
The constitution states religious groups have the right to establish and maintain institutions for
religious and charitable purposes, manage their own affairs in religious matters, and own,
acquire, and administer property. It prohibits compelling anyone to pay taxes to promote or
maintain any specific religion. National and state laws make freedom of religion “subject to
public order, morality, and health.” The constitution stipulates that the state shall endeavor to
create a uniform civil code applicable to members of all religions across India.34

There are laws restricting religious conversion in seven of the 29 states: Arunachal Pradesh,
Gujarat, Himachal Pradesh, Chhattisgarh, Odisha, Madhya Pradesh, and Rajasthan. Federal law

32
http://www.censusindia.gov.in/2011-Common/CensusData2011.html.
33
Rizvi, M. M. A., Secularism in India: Retrospect And Prospects, (2005). The Indian Journal of Political Science,
66, 4.
34
Romila Thapar, “Communalism and the Historical Legacy: Some Facets”, in K.N. Panikkar, (ed.), op. cit., p.24
 14

empowers the government to ban religious organizations that provoke inter communal tensions,
are involved in terrorism or sedition, or violate laws governing foreign contributions.35

The federal penal code criminalizes “promoting enmity between different groups on grounds of
religion,” as well as “acts prejudicial to maintenance of harmony,” including acts that cause
injury or harm to religious groups and members. The penal code also prohibits “deliberate and
malicious acts, intended to outrage religious feelings of any class by insulting its religion or
religious beliefs.” Violations of any of these provisions are punishable by imprisonment for up to
three years, a fine, or both. If the offense is committed at a place of worship, imprisonment may
be for up to five years.36

There are no requirements for registration of religious groups, although federal law requires
religiously affiliated organizations to maintain audit reports on their accounts and a schedule of
their activities and to provide these to state government officials upon request. The constitution
states any reference to Hindus is construed as containing a reference to followers of Sikhism,
Jainism, and Buddhism, who are subject to Hindu laws, such as the Hindu Marriage Act.
Subsequent legislation passed throughout the 1950s continues to use the word Hindu to include
Sikhs, Buddhists, Jains and others, but clarifies that these are separate religions whose followers
are included under this legislation.37

Federal law provides minority community status to six religious groups: Muslims, Sikhs,
Christians, Parsis, Jains, and Buddhists. State governments have the power to grant minority
status to religious groups that are minorities in a particular region and designate them as
minorities under the law in that state. The status makes these groups eligible for several
government assistance programs. The constitution states the government will protect the
existence of religious minorities and encourage conditions for the promotion of their individual
identities.38

35
Harbans Mukhia, “Medieval Indian History and the Communal Approach”, in Romila Thapar, etal, cit., p.28.
36
R.L. Chaudhry, The Concept of Secularism in Indian Constitution, New Delhi, Concept Publishing
House.1987],p.112
37
P.B. Gajendragadkar, Secularism and the Constitution of India, op.cit., p. 52.
38
Brenda Cosmmin and Rtana Kapur" Secularism: Bench -Marked by Hindu Right "Economics and political
Weekly, Vol.XXX 38 September 21 pp.26113 ff.
 15

Personal status laws are applicable only to certain religious communities in matters of marriage,
divorce, adoption, and inheritance. The government grants significant autonomy to personal
status law boards in drafting these laws. These laws, however, do not supersede national- and
state-level legislative powers or constitutional provisions. If the law boards cannot offer
satisfactory solutions, the case is referred to the civil courts.39

The constitution allows for a form of affirmative action for Scheduled Caste or Scheduled Tribe
communities, and the law subsequently added the “Other Backward Class” category for groups
deemed to be socially and educationally disadvantaged. Since the constitution specifies only
persons who are Hindu, Sikh, or Buddhist shall be deemed a member of a Scheduled Caste, the
only means through which Christian and Muslim individuals may qualify for affirmative action
benefits as members of religious communities is if they are considered members of the
“backward” classes due to their social and economic status.40

The country is a party to the International Covenant on Civil and Political Rights.

3.4 Recent Practices

It took India more than five decades longer than its neighbour, Pakistan, to ban a grossly
misogynist religious practice in the Muslim religion that allowed a man to instantly divorce his
wife by using 'triple talaq,' that is, uttering the word 'talaq' three times to her in verbal or written
form.41While such a fact might run the risk of downplaying a major victory, which the ban no
doubt is given the big relief to women of the community that is has provided, it is imperative to
remember that it has taken seven decades after independence for the largest democracy in the
world to achieve it. This has led to a status-quo that is contrary to the hopes of the the makers of
the Constitution that their decision, over a period of time, would not only take away concerns of
minorities by ensuring their social, cultural and political upliftment but also evolve the society
into a secular state.42

39
R .A. Jahagirdar, “Secularism under the Indian Constitution”, in The Secularist, vol. II, No. 66 (November
December 1980), p. 145
40
Robert D. Baird, Religion in modern India , New Delhi, Manohar Publications, 1981, p. 391
41
https://blogs.timesofindia.indiatimes.com/toi-edit-page/turning-point-for-india-supreme-courts-triple-talaq-
judgment-sets-the-country-on-course-to-a-uniform-civil-code/
42
http://www.bbc.com/news/world-asia-india-41008802.
 16

On August 16, the central government submitted a petition to the Supreme Court challenging the
codification of Aligarh Muslim University (AMU), the oldest Islamic university in the country,
as a “minority status” institution. The petition argued AMU received funds from the central
government without reserving the required seats for members of disadvantaged castes and tribes,
and the institution had not originally been founded as a minority university by the British. AMU
was given time to argue its case before the Supreme Court. AMU stated that it was open to
students from all religious groups and courses on Islam were optional. University administrators
and other critics charged the central government with trying to undermine the autonomy of one
of the world’s leading Islamic institutions of higher learning. AMU advocates said without
minority status the university would lose its ability to make its own hiring decisions and choose
its curriculum.43

The high-profile killing of Mohammad Akhlaq Saifi by a mob who believed he had slaughtered a
cow in Dadri, Uttar Pradesh in September 2015 continued to generate publicity and controversy.
A local court ordered a criminal complaint to be filed against the family of Akhlaq under existing
legislation protecting cows. In September investigating officials concluded there was no
evidence to prove Akhlaq or the family ever slaughtered a cow. The men charged with killing
Akhlaq remained in prison, and their case was pending with the Allahabad High Court at year’s
end. On May 6, the Bombay High Court decriminalized possession of beef imported from
outside Maharashtra. The court ruled that a section of Maharashtra’s 2015 beef ban was
unconstitutional and the state could not disallow possession of beef from cows slaughtered
outside the state, as doing so would violate a citizen’s right to possess and consume food of their
choice. Consumers, butchers, and sellers among others in Maharahstra State said they remained
vulnerable to prosecution in court because the burden of proof that the cow was not slaughtered
in Maharashtra rested on the accused.44

There were reports of hundreds of religiously motivated killings, assaults, riots, restrictions on
the right to practice religion and proselytize, discrimination, and attacks against property. Groups
most frequently targeted were Muslims and Christians. Cow protection groups, many of whose
members believed cow slaughter and eating beef were an attack on the Hindu deities

43
http://www.frontline.in/the-nation/a-blot-on-indias-secularism/article9721362.ece.
44
http://www.bbc.com/news/world-asia-india-40428067.
 17

representing motherhood, carried out an increasing number of violent attacks, including killings,
beatings, harassment, and intimidations, against consumers of beef or those involved in the beef
industry.45

According to the MHA 2015-16 Annual Report, 751 communal incidents (defined by authorities
as violent conflicts involving religious communities on the issues of organizing religious
congregations, desecration of religious symbols, and the ownership of community properties and
facilities) took place in 2015, resulting in 97 deaths and 2,264 injuries. Although MHA stated
there were no major outbreaks of communal violence in the country in 2015, statistics showed an
increase in overall instances of communal violence reported compared to the previous year when
the MHA recorded 644 communal incidents, resulting in 95 deaths and 1,921 injuries.46

3.5 Impact of Indian Secularism

Well, if we go through the basic feature of secularism as understood in the west, it can be seen
that state has nothing to do with religion and there will be no discrimination between citizens on
the basis of their religion or form of worship and that everybody will be equal before law. If this
is true secularism, India ceases to be secular for it has different sets of laws for different
communities. For instance, in the case of Muslims, a separate civil code exists, though Article 44
requires the state to frame a Uniform Civil Code. Moreover, concessions given to certain
communities on the basis of religion undermine the theory of secularism and create perhaps,
grounds for a rapid increase of majority communalism.47

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.48 The very fact that operation of a penal provision is not alike among all people and that
it is dependent on one’s religious faith tantamount to making a mockery of the very concept of
secularism. Similarly, the enactment of the Muslim women (Protection of Rights on Divorce)

45
http://www.thehindu.com/sunday-anchor/propagation-without-proselytisation-what-the-law-
says/article6711440.ece.
46
http://mha.nic.in/sites/upload_files/mha/files/AR(E)1516.pdf
47
A.S. Narayana Deekshitulu v. State of Andhra Pradesh, AIR 1996 SC 1765.
48
R.L. Chaudhry, The Concept of Secularism in Indian Constitution, New Delhi, Concept Publishing
House.1987],p.112
 18

Act, 1986 with a view to circumvent the apex court’s decision in the Shah Bano case49 and to
treat the divorced Muslim women differently from their counterparts in other religious faiths
cannot be termed as secular. To deny rights to Muslim women which are available to the women
of other faiths is a violation of the provisions of the constitution that the state shall not
discriminate against any citizens as grounds of religion.

Although Article 15 of the constitution prohibits discrimination on the basis of religion, even
today the rights and liabilities of people relating to maintenance, inheritance etc. differ according
to their religion. This casts a shadow on our claim of being a truly secular state. Some major
events which changed the way world viewed India were based on communal frenzy viz. Babri
Masjid demolition, the Gujarat riots (2002), Delhi (Sikh) riots (1984), Muzaffar Nagar riot
(Akhlaque lynching incident).50

A truly secular state is not concerned with religion and should not, therefore, specially encourage
or promote any religion. The validity of the Haj Subsidy could well be challenge that it aids
people of a specific religion and thereby interferes in the matters of the state‟s allocation of its
financial resources. Kailash Mansarovar Yatra Subsidy, Amarnath Yatra, and Kumbh Ka Mela,
etc. are also coordinated by the Ministry of External Affairs and conducted with the assistance of
various Central and State Government agencies. Thus it is clearly violation of concept of
secularism, because secular state means State is neither anti-religion nor pro-religion.51

49
Mohd. Ahmad Khan v. Shah Bano Begum, AIR 1985 SC 945.
50
http://indiafacts.org/the-real-truth-about-the-muzaffarnagar-riots-part-1/.
51
Sumbul Fatima. "Secularism in India: A Myth or Reality." IOSR Journal Of Humanities And Social Science (IOSR-
JHSS) 22.7 (2017): 49-.53
 19

4. Conclusion
The experiences of secularism in France and India indicate that political secularism allows
freedom to practice religion. These case studies also show that political secularism does not
advocate atheism or agnosticism something required for state affairs. At the same time,
secularism does not allow the interference of religion in state affairs. And for this reason, it
suggests to erect a wall between the state and religion. It also acts as an official safeguard to
the religious minorities and sects, and checks domination of one religion over others.
Secularism also opposes any official status of a religion in a state. The cases examined in this
article also indicate that the meaning of secularism can vary from country to country.52
For example, the nature of secularism in India is considerably different from France. The
founding fathers in India considered secularism as the state’s neutrality toward religion and
equal treatment to all citizens irrespective of religious persuasions. Secularism in the country
does not ignore or disregard the presence of religion in individuals’ lives and their emotional
attachment to their religious faith.
In contrast to the above experience, the confiscation of Church property in France after the
revolution or the banning of wearing conspicuous religious signs in recent time, are examples
of practice of ‘prohibitory’ approach of a state toward the course of religion. Indian
secularism allows equal treatment to all the religions in their attempt to flourish, something
which is absent in case of France.
The above examples signify that in spite of similarities in its basic premise, i.e., separation of
state and religion, political secularism or experiments with secularism at the state level vary
from country to country, and over time.

52
R.L. Chaudhari, The Concept of Secularism in Indian Constitution, New Delhi, Concept Publishing House, 1987, p.
112.
 20

5. Bibliography

Cases

 A.S. Narayana Deekshitulu v. State of Andhra Pradesh, AIR 1996 SC 1765.

 Ismail Faruqui v. Union of India, 1994 SCC (6) 360.
 Mohd. Ahmad Khan v. Shah Bano Begum, AIR 1985 SC 945.
 S.R. Bommai v. Union of India, (1994) 3 SCC 1.

Books

 Paul Kurtz, What Is Secular Humanism?, Amherst: Prometheus Books, 2006.

 R.L. Chaudhari, The Concept of Secularism in Indian Constitution, New Delhi, Concept
Publishing House, 1987, p. 112.
 Robert D. Baird, Religion in modern India , New Delhi, Manohar Publications, 1981.
 Yerankar, S., ‘Secularism in India: Theory and Practice’, 2006, Delhi: Adhyayan
Publisher & Distributors.

Online Journals

 Ahmet T. Kuru, Secularism and State Policies Toward Religion: The United States,
France, and Turkey, Cambridge: Cambridge University Press, 2009,
 Alex Lefebvre, “France: National Assembly bans Muslim headscarves in schools”,
World Socialist Website, February 18, 2004 (http://www. wsws. org/
articles/2004/feb2004/scar-f18.shtml).
 Balndine Chelini- Pont, Nassima Ferchiche, ‘ Religion and the Secular State: French
Report’, Droit et Société 68 (2008): 11-31.
 Brenda Cosmmin and Rtana Kapur" Secularism: Bench -Marked by Hindu Right
"Economics and political Weekly, Vol.XXX 38 September 21 pp.26113 ff.
 experience/
 Federico Fabbrini, Kelsen in Paris: France’s Constitutional Reform and the Introduction
of A Posteriori Constitutional Review of Legislation, 9 GERMAN L.J. 1297, 1304
(2008).
 Harbans Mukhia, “Medieval Indian History and the Communal Approach”, in Romila
Thapar, etal, cit., p.28
 Paul Hedges, Fashion, ‘Feminism or Freedom: Dissecting France’s Ban on Burkini’,
2016, available at https://www.rsis.edu.sg/wp-content/uploads/2016/08/CO16219.pdf.
 R .A. Jahagirdar, “Secularism under the Indian Constitution”, in The Secularist, vol. II,
No. 66 (November December 1980), p. 145
 Rajeev Bhargava, “The Distinctiveness of Indian Secularism”, in T. N. Srinivasan (ed.)
The Future of Secularism, New Delhi: Oxford University Press, 2007.
 21

 Rizvi, M. M. A., Secularism in India:Retrospect And Prospects, (2005). The Indian

Journal of Political Science, 66, 4.
 Romila Thapar, “Communalism and the Historical Legacy: Some Facets”, in K.N.
Panikkar, (ed.), op. cit., p.24
 Shantanu Majumder, ‘ Understanding of Political Secularism in a Comparative
Perspective: France, USA, Turkey and India’, Journal of the Asiatic Society of
Bangladesh (Hum.), Vol. 58(2), 2013, pp. 217-237.
 Sumbul Fatima. "Secularism in India: A Myth or Reality." IOSR Journal Of Humanities
And Social Science (IOSR-JHSS) 22.7 (2017): 49-.53
 The Legifrance – public service broadcasting law by the Internet, Secretariat Generalof
Government (SGG), France [English Version ],
 Wilfred McClay, Speech on “Religion and Secularism: The American Experience”, Pew
Forum’s Biannual conference on Religion, Politics and Public life, December 3, 2007
[http://www.pewresearch.org/2007/12/03/religion-and-secularism-theamerican-

Online Magazines/News

 http://indiafacts.org/the-real-truth-about-the-muzaffarnagar-riots-part-1/.
 http://kaufmansocialstudies.weebly.com/uploads/1/0/9/7/10974186/france%E2%80%99s
_%E2%80%98burkini%E2%80%99_bans_are_about_more_than_religion_or_clothing_-
_the_new_york_times.pdf
 http://mha.nic.in/sites/upload_files/mha/files/AR(E)1516.pdf
 http://www.bbc.com/news/world-asia-india-40428067.
 http://www.bbc.com/news/world-asia-india-41008802.
 http://www.censusindia.gov.in/2011-Common/CensusData2011.html
 http://www.frontline.in/the-nation/a-blot-on-indias-secularism/article9721362.ece.
 http://www.myheplus.com/sites/www.myheplus.com/files/downloads/topics/Activity%20
2%20%E2%80%93%20France%20and%20the%20Burkini%20Ban.pdf.
 http://www.thehindu.com/sunday-anchor/propagation-without-proselytisation-what-the-
law-says/article6711440.ece.
 https://blogs.timesofindia.indiatimes.com/toi-edit-page/turning-point-for-india-supreme-
courts-triple-talaq-judgment-sets-the-country-on-course-to-a-uniform-civil-code/
 https://inomics.com/french-national-institute-demographic-studies-ined.
 https://www.prospectmagazine.co.uk/magazine/secularisminfrance.
 https://www.prospectmagazine.co.uk/magazine/secularisminfrance.