Contemporary Debate on Secularism: The Implicit and The Explicit

[This article is co-authored by Tejas Satish Hinder and Prakarsh, National Law Institute University, Bhopal]

The debate about secularism in India today is arguably symptomatic of the increasing communalization of Indian society and politics. The resurgence of majority and minority fundamentalism, the reassertion of parochialism, the sudden outburst of the anti-reservation movement, and, above all, the call to liberate Lord Rama in Ayodhya, have all contributed towards the creation of the current state of “civil war” in the Indian society.
Between 1982 and 1985, the army was called out as many as 353 times to maintain law and order in different parts of the country. [1] Between 1980 and 1989, India witnessed close to 4,500 communal incidents, in which over 7,000 people lost their lives, [2] almost four times as many deaths in this type as in the 1970s. 
India’s intellectuals argue that secularism is essentially a western value, out of place in the Indian cultural context, They seek, instead, alternatives in the Indian past, turning to the “real India” of pre-colonial times and to its ‘history and mythology”, in the hope that “our past, in its essence, could be adopted for the future.” [3] They attribute the decline of secularism in India not to the social and political process at work under British rule, within the national movement and under the independent Indian state, but to the un-Indianness of the concept of secularism itself. [4]

The implications 
Secularism is implicit in the entire constitutional framework. What does secularism in the Indian Constitution mean? The question admits of no easy answer and cannot be restricted to textual interpretation alone. It is a constitutional value that seeks to manage India’s diverse and plural society, in an atmosphere of cohesiveness of national purpose.
The guarantee of equality in Article 14; the promise of non-discrimination in Articles 15 and 16; protection from religious taxes and religious instruction in state-funded institutions set in Articles 27 and 28; the permission of educational institutions of choice to linguistic and religious minorities in Articles 29 and 30; the promise of equal ballots devoid of sectional preferences in Article 325 - all make for a constitutional architecture which is devoid of any religious preference whatsoever. God is significantly absent throughout the Constitution. “One nation under God” is not the allegiance which the Constitution seeks of its citizens. Believer, atheist, and agnostic alike, the Constitution do not differentiate.
There are however provisions that seek to enforce equality within the Hindu religion in Articles 17 and 25(2)(b). Deference to Hindu sentiments on cow slaughter is also provided for in Article 48, as is the pious hope for a uniform civil code in Article 44. Taken as a whole package, the constitutional vision of secularism is one of principled equidistance from all religious matters, while at the same time regulating its practice in a manner consistent with the demands of modern society. Crucially, in Article 25(2)(a), we can find constitutional permission for the state to regulate or restrict “any economic, financial, political or other secular activity which may be associated with religious practice”.
Thus, it is fallacious to argue that the original Constitution as adopted, enacted, and given to ourselves on November 26, 1949, was not a secular document. The inclusion in the Preamble of the words “socialist” and “secular” by the 42nd Amendment on January 3, 1977, only headlined what was already present in the original text of the Constitution. We must also remember that the Preamble itself was drafted only after the Constitution was approved by the Constituent Assembly. The Preamble thus became a one-page mission statement of the republic’s intent. [5]

Judicial Stance on the issue 
In S.R. Bommai v. UOI [6], It was held that “Religious tolerance and equal treatment of all religious groups and protection of their life and property and the places of their worship are an essential part of secularism enshrined in our constitution. while the citizen of this country are free to profess, practice and prorogate such religion, faith or belief as they choose, so for as the state is concerned i.e. from the point of view of the state, the religion, faith or belief of a person is immaterial to it, all are equal and all are entitled to be treated equally.” Further the Court while emphasizing the significance of Secularism declared it as the basic structure of the Constitution.
The concept of secularism was not expressly incorporated in the constitution at the stage of its making. However, its operation was visible in the fundamental rights and directive principles. The concept of secularism, though not expressly stated in the constitution, was, nevertheless deeply embedded in the constitutional philosophy. The concepts of secularism are not static; it is elastic in connotation. In this area, flexibility is most desirable as there cannot be any fixed views in this concept for all time to come. The courts decide from time to time the contours of the concepts of secularism and enforce it in practice. In M Ismail Faruqui v. Union of India, [7] It was held that “It is clear from the constitutional scheme that it guarantees equality in the matters of religion to all individuals and groups irrespective of their faith emphasizing that there is no religion of the state itself. The preamble of the constitution read in particular with articles 25 to 28 emphasis this aspect and indicates that it is in this manner this concept of secularism embodied in the constitutional scheme as a creed adopted by the Indian people has to be understood while examining the constitutional validity of any legislation on the touchstone of Constitution.”
The concept of Secularism is one facet of the Right to Equality Woven as the Central golden thread in the fabric depicting the pattern of the scheme in our Constitution. Any steps inconsistent with these mandates are Unconstitutional. The Court further held that any state Government which pursues unsecular policies or unsecular course of action acts contrary to the Constitutional mandate and renders itself amenable to action under Article 356.
In Aruna Roy v. Union of India, [8] The court held that “The Concept of secularism is not endangered if the basic tenets of all religions all over the world are studied and learned. Value-based education will help the nation to fight against fanaticism, ill-will, violence, dishonesty, and corruption. These values can be inculcated if the basic tenets of all religions are learned.” The Hon’ble Supreme court has held in Lata Singh v. State of U.P.[9] “that caste barriers in societal interactions are anti-secular. Inter caste marriage shall be promoted, protected, and conserved by the state to promote greater secular values. This is also a part of the secularization process. The concept of secularism is not merely a positive attitude of religious tolerance. It is also a positive concept of equal treatment of all religions.”
Although the Constitution does not define what is meant by the word "religion," the Supreme Court of India has expressed divergent views on the meaning of religion.  In cases such as Hindu Religious Endowments v. Sri Lakshimdra Thirtha Swamiar, [10] the Supreme Court took an inclusive approach to religion:
On the other hand, some Supreme Court cases have taken a narrower view of religion. For instance in S.P. Mittal v. Union of India[11] the Supreme Court took a restricted view of religion and held that Sir Aurobindo's teachings were a philosophy, not a religion, despite his followers' belief that it was a religion. In other cases, the Court has given effect to the egalitarian vision of the Constitution. For instance, in the Temple Entry case, Sri Venkataramana Devaru v. State of Mysore[12] the Court found that the state legislation allowing all Hindus, including low caste Hindus, the right to enter temples did not violate the rights of religious institutions under Article 26(b) of the Constitution.
In addition to the general inclusive approach to religion, the Supreme Court has stated that religious practices or performances of acts that are essential to the pursuance of religious beliefs are as much a part of religion as faith or belief in particular doctrines. [13] The question of what practices can be considered to be an essential part of the religion is ascertained by examining the doctrines of that religion. [14] 

But if Indian Secularism has indeed been such a failure, why, one might ask, has India continued to pay lip-service to it? The answer, it is possible to argue, lies in the imperatives of nationalism, first in the need to unite India behind the nationalist leadership, and later, in the need to invent a legal and political framework in which “national unity” might be realized. These imperatives pushed even those who had little real commitment to genuine secularism to proclaim publicly their adherence to secular values. There thus has always been a hiatus, therefore, between the true meaning of secularism and the variant of secularism as espoused in India. [15]
If secularization, therefore, is to be understood as a process in which ties of religion, casteist, and ethnic particularisms are gradually transcended, in which politics are defined on rationalist and ideological lines, and in which religion, caste, and ethnicity are confined to the sphere of ‘private” life, then its reverse has occurred in India. Communal politicians have successfully used the economics of inequality, uneven development, and under-development to reinforce their stranglehold over society. [16]

[1] India Today, 15 May 1985, 5
[2] India Today, 15 January 1990, 34. Mushirul Hasan “In search of Intergration and Identity”, 2469.
[3] Veena Das, Difference and Division as Designs for Life, in Carla M. Borden (ed.) Contemporary India: Essays on the Uses of Tradition, pp. 46 (Delhi, 1986)
[4] Rajni Kothari, Will the State Wither Away?, The Illustrated Weekly of India, 8 July 1984
[5] Sanjay Hegde, Secular in spirit and in letter, The Hindu, Available here
[6] S.R. Bommai v. Union of India, AIR 1994 SC 1918
[7] M Ismail Faruqui v. Union of India, AIR 1995 SC 605
[8] Aruna Roy v. Union of India, Writ Petition (Civil) 98 of 2002
[9] Lata Singh v. State of U.P., Writ Petition (Crl.) 208 of 2004
[10] The Commissioner, Hindu Religious Endowments v. Sri Lakshimdra Thirtha Swamiar 1954 AIR 282
[11] S.P. Mittal v. Union of India 1983, SCR (1) 729
[12] Sri Venkataramana Devaru v. State of Mysore, AIR 1958 SC 895
[13] Ratilal Panachand Gandhi, AIR 1954 SC 388, 392; Venkatamana Devaru v. State of Mysore, AIR 1958 SCR 895, 909
[14] The Commissioner, Hindu Religious Endowments v. Sri Lakshimdra Thirtha Swamiar, 1954 AIR 282
[15] Prakash Chandra Upadhyaya, The Politics of Indian Secularism, Modern Asian Studies, Vol. 26, No. 4, pp. 815-853 (Oct., 1992)
[16] Javeed Alam, The Political Implications of Economic Contradictions in Punjab, Social Scientist 161, 15 (10 October 1986)


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