Secularism as an idea, advocates for the separation of church and state.

In India, the current

political, as well as academic realm, is witnessing debates on secularism. India is a homeland for
people from diverse cultures, as a country with such diverse cultures and religious identities
secularism is naturally relevant in the political and legal discourse.

The author points out the role of secularism and its de nitions as an important factor in electoral
politics in a couple of decades. The constitutional conception of secularism is claimed by both
sides to legitimise their political stance and actions.

The word Secularism was added to the preamble in the Forty-Second Amendment Act of the
Indian Constitution. However, the supreme court has stated on several occasions that the concept
of secularism is present in the Indian Constitution since its very inception.

The author focuses on

A. Right-oriented secularism as de ned by Professor Upendra Baxi.

B. Articles 25 and 26 of the Indian Constitution, which deal with freedom of religion.

C. Supreme Court’s e orts at drawing

The Supreme Court applies the test of ‘essential’ features of religion for providing protection to
freedom of religion.

Construction of Wall between Religion and State

In the case of State of Bombay vs Narasu Appa Mali the High Court was presented with the
question of the validity of the Prevention of Hindi Bigamous Marriages Act, 1946. Chagla CJ and
Justice Gajendragadkar came up with distinct views. Justice Chagla upheld the legislation on the
grounds of the dichotomy of religious belief and practice under the constitution. He opined that a
sharp distinction shall be made between religious faith and religious practices, the state protects
religious faiths and if a religious practice is against public order, morality or health then the
religious practice shall not be protected. He opines that even if polygamy is a recognised
institution of Hindu religious practice, this does not take away the state’s power to legislate a for
social reform.

Justice Gajendragadkar had a di erent approach, he does not di erentiate between religious
beliefs and practices. He upheld the legislation on the ground of the overriding power of the state
to enact social reforms. He restates that the ancient Sanskrit Texts made no distinction between
religion and its practice. In his approach, he looked into the religious text as and interpreted it as
an insider.

In the cases of The Commissioner, Hindu Religious Endowment, Madras Vs. Sri Lakshmindra
Thirtha Swaminar, Ratilal Panchanad Gandhi vs State of Bombay and Sri Venkatarmana Devaru v
State of Mysore, in these cases the supreme court examined the enactments from the prism of
individual rights as well as rights of endowments. In this manner, individual and denominational
rights converged.

In Shirur Mutt, Justice Mukherjea maintains Under Article 26(b), religious denominations or
organisations have complete autonomy to decide what rites and ceremonies are essential
according to religion without any interference from the constitution. He opined that outside
interference is not allowed in the constitution. In Ratial case he reiterated if certain ceremonies are
prescribed in a religion to be done in a particular time, they cannot be termed to be secular
activity simply because it involves expenditure of money or emplyment of priests and the state
does not have an authority to restrict or prohibit it in any manner. He admits that ‘religion’ had
been left unde ned under the constitution but it includes all acts in persuance of of a belief.

In the Devaru Case, the dispute was regarding Madras Temple entry Authorisation Act, which
ensured opening up of temples for lower castes. Justice Venkatrama Aiyar accepted the
protection for religion in Shirur Mutt, but didn't respond to the question of whether religious
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 character is ascertained with reference to doctrines of the religion itself or it also includes
practices which are regarded by community as a part of its religion. The Constitution under Article
25(2)(b) states

(2) Nothing in this article shall affect the operation of any existing law or prevent the State from
making any law
(b) Providing for social welfare and reform or the throwing open of Hindu religious institutions of a
public character to all classes and sections of Hindus

Two of the relevant questions raised were, Whether the denomination had a right to exclude certain
castes?
And if they did, was the law prohibiting such exclusion valid?
Justice Venkatarama Aiyar maintains, under the constitutional sense, religion is wide enough to
include the choice of the religious community to restrict access to temples.
In his view, who is entitled to stand and how worship is to be conducted are all matters of religion,
and thus are protected by Art 26(b). Petitioners argued this was a case of con ict between Article
26(b) and Article 25(2)(b). However, justice did not read down article 25(2)(b) he applied the rule
of harmonious construction and held that Article 26(b) must be read subject to Article 25(2)(b).
Thus even under article 26, the denomination can exclude people other than those belonging to a
certain community, provision of Article 25(2)(b) would override this autonomy.

The Essentiality Redu

In the case of Sardar Syedana Taher Saifuddin Saheb v State of Bombay ( Excommunication state),
the constitutionality of Bombay Prevention of Excommunication Act, 1949. The act outlawed the
practice of excommunication in Dawoodi Bohra community.
Justice Das Gupta opined that both belief and acts in pursuance of that belief are protected under the
Constitution and the doctrine of faith will determine the essential aspects of religion. He analysed
the history of excommunication in Islam, he held that the practice of excommunication cannot be
termed as ‘economic, nancial, political or social activity. He holds that, barring excommunication
on any other ground than a religious ground would be a measure of social reform and barring of
such excommunication can only be done under the provision of Article 25(2)(b) and taking away
Dai’s power to excommunication cannot be considered to be a measure of social reform.

The author questions the rationale behind this judgement that whether the state is empowered only
to encroach upon the non-essential domains of religion and by this reasoning does the state have the
power to legislate upon refusal of entry of untouchables into temples?
I would agree with the author on this ground that curtailing the legislative powers of the state on the
basis of essential and non-essential dichotomy would not be a welcome move as it would result in
uncertainty in the academic and legal sphere regarding the limit of state intervention

Scholars have tried to provide a justi cation for the view taken by the court in these cases Authors
like Mark Galanter and Pratap Bhanu Mehta, suggest that the court had adopted this view in order
to avoid a con ict between religion and state, the acts are easily legitimised by labelling the
practices as not religion thus avoiding the controversy between religion and state.

In the Durgah Committee case, Justice Gajendragadkar maintains cautiously holds, for a practice to
be treated as part of religion, it must be regarded by the religion concerned as an essential and
integral part, a practice which is an otherwise non-essential or integral part of the religion cannot be
clothed as a religious practice and claimed to be treated as a religious practice. He further adds that
even the practices which are religious may have arisen from superstitious beliefs and thus be an

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 unessential extension of religion. With this, he introduces a rationality test and the test is not for the
scope of the exception under art 25(2)(b), but for the determination of whether a practice is
religious. In the Narasu Appa case he came up with the idea that the real intent of religion discards
the superstitions included in it.

Mohsin Alam suggests that Justice Gajendragadkar could have referred to Art 25 and 26
harmoniously and left the meaning of religion wide. In his opinion, Justice chose to go into the
meaning of religion and ignored the question of fundamental rights in such cases. In my humble
view, Justice Gajendragadkar’s analysis of the problem of religion was important in developing a
constitutional and jurisprudential understanding of the questions of religion, state and secularism.

In M Ismail Faruqui v Union of India known as Ram- Janambhoomi case. Justice Verma holds that
the mosque is not an essential part of the practice of Islam since Muslims can offer Namaz
anywhere, even in open

In Mohd Hanif Qureshi, v State of Bihar also known as the Cow slaughter case, the court came
across a dispute regarding legislation prohibiting the slaughter of cows on the occasion of Eid-ul-
Zuha. Chief Justice did not appreciate the relevance of fundamental rights for the issue in question.
Court maintained that there is an option of sacri cing other animals, and is not obligatory for a
person to sacri ce a cow. Court states that,

“The very fact of an option seems to run counter to the notion of an obligatory duty. It is, however,
pointed out that a person with six other members of his family may afford to sacri ce a cow but may
not be able to afford to sacri ce seven goats. So there may be an economic compulsion although
there is no religious compulsion.

The author is critical of the test of obligation applied by the court in the case. He points out that the
court now applies the test of obligation in the place of test of essentiality. I would disagree with the
author regarding the judgement in question, in my opinion, the view taken by the court in the said
judgement was appropriate and in coherence with the previous judgments on similar issues. Court
has rightly held that the slaughter of cow is not an essential practice in Islam and compulsions if
any, might be economic in nature and not religious.

The Wall of Separation:-

The Supreme Court has de ned secularism in more religious terms, after the Bommai Case. Thus,
the court has applied religious values to pave a way for secularism in the Indian polity. Another
aspect of the court’s reading of secularism also allows the state to give political signi cance to
religious and caste identities for the purposes of af rmative action. The court has decided to not
consider the process of secularisation as its aim. The Author compares Secularism in India to a
permeable membrane, which permeates secular or the state but not the religion.

In the landmark Judgement of Keshawanand Bharti v State of Kerala a full bench prononced that
secularism is an inalienable part of the basic structure of the Indian Constitution and even more
recently in Bommai v Union of India.
In view of SP Sathe, when the court declared secularism as a part of the basic structure in SR
Bommai case, it was aimed at giving a warning to the Hindu right wing that an attempt to amend
the constitution in a majoritarian direction would be against the basic structure of the constitution.

Though the principle of secularism is upheld by the courts, it has not yet been de ned precisely.
This makes it subject to various interpretations which might be a product of the ideological

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 inclinations of the interpreter. Similar debates can be seen regarding the de nition of Hinduism, and
whether it is a culture or a way of life. What are the distinguishing factors between culture and
religion?

Galanter characterises a secular state as not just a bystander but as one which provides explicitly or
implicitly the normative vision of religion in society. Moreover, he identi es two methods of
regulatory oversight:
1. Mode of limitation which means shaping of religion by promoting public standards, and
overruling assertions of the religious authority which are in con ict.
2. Mode of Intervention wherein, the traditions of religion are reformulated by commanding control
over religious authority.

In the Shah Bano case, the Supreme Court was dealing while dealing with the right of maintenance
of a Muslim woman, under Section 125 of the Code of Criminal Procedure, 1973, the argument of
the woman was that the law of maintenance under the code applies to everyone irrespective of
religion. Justice Chandrachud examined the applicability of the provisions of CrPC, on Muslims
despite the personal laws. He came to the conclusion that the statutory right under Section 125
would be available irrespective of religion. The court further attempted to see if there is any
con ict between the statutory provisions and the Quranic verses and held that Islam also speaks for
the interests of married women and it does not

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