Constitutional Perspective on Secularism

As India is poised to celebrate 70 years of Independence, we present here some pertinent views on challenges confronting the nation

The Indian Constitution is both a legal and social document. It provides machinery for the governance of the country. It also contains the ideals expected by the nation. The political machinery created by the Constitution is a means to the achieving of this ideal. India’s challenge, as described by Jawaharlal Nehru, has been to build “a secular state in a religious country.”

The concept of secularism is embedded in our constitutional philosophy. India’s constitutional commitment to secularism emerged out of the freedom struggle. In 1908, Gandhiji wrote in Hind Swaraj: "India cannot cease to be one nation, because people belonging to different religions live in it... In no part of the world are one nationality and one religion synonymous terms; nor has it ever been so in India."

As the Supreme Court observed, “The term 'Secular' has advisedly not been defined presumably because it is a very elastic term not capable of a precise definition and perhaps best left undefined.” The apex court itself declared in no uncertain terms that secularism is part of the basic structure of the Constitution. As held by the Supreme Court in the famous Kesavananda Bharati case, even Parliament has no right to amend the basic structure of the Constitution.

Therefore, whatever may be the political machinations over it, secularism remains and shall remain the bedrock of Indian constitutional democracy. Dr B R Ambedkar said that “Constitution is not a mere lawyer’s document, it is a vehicle of life, and its spirit is always the spirit of age.” It is the spirit of Modern India, which has often found its expression in the form of judicial interpretation, especially as the ‘Basic Structure’ will act as the guiding force for the body politic to adopt this novel ideal.

More recently, an argument is advanced to state that secularism is the postscript of the Constitution introduced into it by the 42nd Amendment to the Constitution of India in 1976. This argument can even imply that the Constitution can be devoid of secularism in case the political establishment wishes it to be so. As the Supreme Court noted in SR Bommai vs Union of India, 1994 case, “Notwithstanding the fact that the words 'Socialist' and 'Secular' were added in the Preamble of the Constitution in 1976 by the 42nd Amendment, the concept of Secularism was very much embedded in our constitutional philosophy …. By this amendment what was implicit was made explicit.”

Secularism not irreligious
The true meaning of secularism as reflected in the Constitution of India is often misread to serve the political purpose. The major tirade against secularism is that it abrogates religion. This canard on secularism is intended to make it unpopular in deeply religious society like ours. But, As Dr S Radhakrishnan, whose authority on religion is unassailable, rightly defined, “the secularism is embedded in our constitutional values. When India is said to be a secular State, it does not mean that that we exalt irreligion. Indian State will not identify itself with or be controlled by any particular religion.”

State and religion in secular Constitution
The State is enjoined to accord equal treatment to all religions. But, these provisions of the Constitution by implication prohibit the establishment of a theocratic State and prevent the State from either identifying itself with or favouring any particular religion. The religious matters should, therefore, be regarded entirely as relating to the conscience of the individuals.

Justice Chinnappa Reddy, delivering his Ambedkar Memorial Lecture on 'Indian Constitution and Secularism' has observed that: "Indian constitutional secularism is not supportive of religion at all but has adopted what may be termed as permissive attitude towards religion out of respect for individual conscience and dignity….”

More precisely, Article 27 provides that no person shall be compelled to pay any taxes, the proceeds whereof are specifically appropriated in payment of expenses for the promotion or maintenance of any particular religion or religious denomination. This is an important article which prohibits the exercise of State's taxation power if the proceeds thereof are intended to be appropriated in payment of expenses for the promotion and maintenance of any particular religion or religious denomination. That means that State's revenue cannot be utilised for the promotion and maintenance of any religion or religious group.

The constitutional founding fathers clearly wanted the Indian State to be divorced from religion. In fact, the attempts to begin the Preamble of the Constitution by invoking God did not succeed in the Constituent Assembly. Members such as H V Kamath, Govind Malaviya and S L Saxena wanted to begin the Preamble to the Indian Constitution with the phrase ‘In the name of God.’ But, after a heated discussion, this proposal was put to vote and defeated. Pandit Kunjru said that, “we invoke the name of God, but I am bold to say that while we do so, we are showing a narrow, sectarian spirit, which is contrary to the spirit of the Constitution.

Secularism and religious freedom
The Supreme Court in the S R Bommai verdict elaborately dealt with the concept of secularism enshrined in the Constitution of India. The Preamble of the Indian Constitution itself spoke of liberty of thought, expression, belief, faith and worship. While granting this liberty, the Preamble promised equality of status and opportunity.

It also spoke of promoting fraternity, thereby assuring the dignity of the individual and the unity and integrity of the nation. While granting to its citizens liberty of belief, faith and worship, the Constitution abhorred discrimination on grounds of religion, etc. Not only in fundamentals rights (as has been discussed above) protected by the Right to Constitutional Remedies, but the Principle of Secularism has been incorporated (although implicitly) in the Directive Principles of State Policy (DPSP) and the Fundamental Duties as well.

In the DPSP, the Articles of 38, 39, 39A, 41 & 46 not only attempt to promote equal opportunity for growth and sustenance for all, but these principles, coupled with the most basic objective of the state, the doctrine of ‘Parens Patriae,’ promote secularism in all of its form. Although not justiciable but the onus of maintaining the cordial atmosphere among all the religions and caste, creed and sex is also the responsibility of the citizens as per the Fundamental Duties, especially according to Articles 51A(b), 51A(e) & 51A(f).

Our Constitution does not prohibit the practice of any religion either privately or publicly. Article 25 provided, subject to public order, morality and health, that all persons shall be entitled to freedom of conscience and the right to profess, practise and propagate religion. The Constitution clearly prohibits discrimination on the basis of religion. For instance, Article 29 inter alia provides that no citizen will be denied admission to an educational institution maintained wholly or partly from State funds on grounds only of religion, etc.

Contours of religious freedom
One cannot ignore the Constitutional contours of the religious freedom. As Justice Chinnappa Reddy, argued, “….There, even while recognising the right to profess and practise religion, etc., it has excluded all secular activities from the purview of religion and also of practices which are repugnant to public order, morality and health and are abhorrent to human rights and dignity, as embodied in the other fundamental rights guaranteed by the Constitution."

Even the apex court clarified the limits of religious freedom in a secular constitution. The Supreme Court of India in a significant judgement in Adi Saiva Sivachariyargal Nala Sangam & ors. Versus The Government of Tamil Nadu & Anr said, “…while the right to freedom of religion and to manage the religious affairs of any denomination is undoubtedly a fundamental right, the same is subject to public order, morality and health and further that the inclusion of such rights in the Constitution will not prevent the State from acting in an appropriate manner, in the larger public interest…”

The often quoted argument is that courts have no role in religious matters as Article 26 of the Indian Constitution provides for religious freedom.
But, the ecclesiastical jurisprudence rejects this argument. The Supreme Court repeatedly held the view that a religious institution has freedom to manage its own affairs in matters of religion. But this right guaranteed under Article 26 of the Constitution of India cannot be either absolute or arbitrary. Such freedom is confined to essential elements of a religious practice as stated by the apex court judgments in cases like Sri Venkataramana Devaru and Others Vs. State of Mysore and Others and Durgah Committee, Ajmer and another Vs. Syed Hussain Ali and others.

Justice Gajendragadkar was of the view, “……. that in order that the practices in question should be treated as a part of religion they must be regarded by the said religion as its essential and integral part; otherwise even purely secular practices which are not an essential or an integral part of religion are apt to be clothed with a religious form and may make a claim for being treated as religious practices within the meaning of Article 26.

Unless such practices are found to constitute an essential and integral part of a religion, the claim for the protection under Article 26 may have to be carefully scrutinised; in other words, the protection must be confined to such religious practices as are an essential and an integral part of it and no other.” The SC explicitly reiterated the Court’s power to decide on what constitutes an essential religious practice.

Therefore, the religious institutions, organisations or their believers cannot claim supremacy or immunity from the tenets of secular constitution of India in the name of faith and the constitutionally sanctioned freedom to pursue, propagate it. But, this is not to argue that secular institutions like courts or government can always interfere in religious affairs. The observations made in the minority view in the Supreme Court judgement in Commissioner of Police and Others Vs. Acharya Jagadishwarananda Avadhuta and Another are worth mentioning here.

The para 57 of the said view reads as follows: “The exercise of the freedom to act and practise in pursuance of religious beliefs is as much important as the freedom of believing in a religion…. there are some forms of practicing the religion by outward actions which are as much part of religion as the faith itself.

The freedom to act and practise can be subject to regulations in our Constitution, subject to public order, health and morality and to other provisions in Part III of the Constitution. However, in every case the power of regulation must be so exercised with the consciousness that the subject of regulation is the fundamental right of religion, and as not to unduly infringe the protection given by the Constitution.

Further, in the exercise of the power to regulate, the authorities cannot sit in judgement over the professed views of the adherents of the religion and to determine whether the practice is warranted by the religion or not. That is not their function.” The freedom of religion under Articles 25 and 26 of the Constitution is not only confined to beliefs but extends to religious practices and hardly requires reiteration. However, Right of belief and practice guaranteed by Article 25 is subject to public order, morality and health and other provisions of Part III of the Constitution.

Public order will be in jeopardy if in a diverse religious society, various religious bodies give unlimited interpretation of the religious freedom enshrined in the Constitution of India. As Pratap Bhanu Mehta points out in ‘Passion and Constraint: Courts and the Regulation of Religious Meaning’ in Rajeev Bhargava’s (ed) ‘Politics and Ethics of the Indian Constitution (Oxford University Press, 2008), in most constitutional settings , courts “have to determine whether or not a policy places a substantial burden on the free exercise of religion. “

Public interest versus religious freedom
The wording of Articles 25 and 26 (the provisions related to religious freedom), said Marc Galanter (Law and Society in Modern India, Oxford, 1997), establishes primacy of public interest over religious claims and provides a wide scope for governmentally sponsored reforms.

This is evident from SC judgements on eviction of religious places obstructing public utilities like roads. The religious institutions oppose such eviction in the name of their religious freedom. But, the Supreme Court in 2013 said, "Public road is not anyone’s property. Each citizen had a right to use the road and that right cannot be interfered with or impeded by constructing a temple, mosque, church or gurudwara or by installing the statue of a public figure."

The Supreme Court said that unauthorised religious structures near drains and on roads were an insult to God. “Everyone has the right to walk. God never intended to obstruct the path meant for the people. Why shouldn’t these structures go?” said a bench of Justices Gopal Gowda and Arun Misra, hearing a petition on the matter. The apex court had in September 2009 ruled no unauthorised construction shall be permitted in the name of temple, church, mosque or gurdwara on public streets, public parks or places.

The Patna High Court in Rajendra Singh vs The State Of Bihar & Ors, 2013 has remarked, "......... Illegal erection of such places of worship is sought to be justified on the ground that citizens have a right to erect such places of worship at any place because of the freedom enjoyed under the Constitution. This is a misconception, and while every citizen has freedom to practice his own religion or faith, he has no right to erect structures in the name of religion in an unauthorised manner on public land and public road.” The Constitution respects religion but not its exploitation for self-aggrandizement of any kind.

Religious bigotry, secularism and Constitution
Quite often religion and religious bigotry are considered synonymous. But, fundamentalist view of religion is anathema to true religion. Secularism abhors the fanatic and chauvinist aspects of religion but, not the religion as a social institution. At least, the Indian Constitutional view of secularism does not do so.

Even the Supreme Court rejected the rigid and obscurantist view of religion. In the Adi Saiva Sivachariyargal Nala Sangam judgement, it summarises the true character of Hinduism. It said, “…Hinduism, as a religion, incorporates all forms of belief without mandating the selection or elimination of any one single belief. It is a religion that has no single founder; no single scripture and no single set of teachings.

It is the collective wisdom and inspiration of the centuries that Hinduism seeks to preach and propagate…” (Excerpts of the author’s lecture on the subject at a national seminar on the Constitution of India to be organised by All India Lawyers Union (AILU) in Hyderabad today)