1. INTRODUCTION : India is a Constitutionally secular state as the concept of secularism is implicit in Preamble of Constitution of India, which declares the resolve of the people to secure to all its citizens” liberty of thought, belief, faith and worship”. The 42nd Amendment Act, 1976 has inserted the word “Secular” in the Preamble. This amendment is intended merely to spell out clearly the concept of Secularism in Constitution of India. The Supreme Court of India too while explaining the concept of secularism said that “there is no mysticism in the secular character of the State. Secularism is neither anti-God nor pro-God, it treats alike the devout, the antagonistic and the atheist. It eliminates God from the matter of the State and ensures that no one shall be discriminated against on the ground of religion. Moreover, SC in Bommai Judgment has also held “secularism” to be a part of basic structure of Constitution.
Secularism has many shades of meaning. In the Constitution it is used in two different senses. In the Preamble, it denotes that the State does not accept any religion as the basis of State action. The State treats all religions with strict neutrality. The second meaning of the word secular is worldly. Article 25(2)(a) uses the word in this sense. There it means those activities which are not essential religious functions but are of a worldly character e.g.: investments or use of the offerings, wages to be paid to the employees of religious institutions.
A secular state does not mean an irreligious state, it only means that in matters of religion it is neutral, the State has no religion of its own, and the State protects all religion but interferes with none. Ina secular state, the state is concerned only with the relation between man and man, it is not concerned with the relation of man with God. It is left to the individual conscience.
India has been declared Secular State by Constitutional mandate and it is every Indian’s duty to stand by and believe in this declaration. But, yet recent political and social events like 1984 Anti-Sikh Riots, 1992 Babri Masjid demolition, 2002 Godhra riots etc. have questioned this declaration. It is a bigger question that does secularism really exists in India or it is pseudo secularism.
Secularism: Constitutional Provisions & Judicial Review
Now, as far as this present paper is concerned, it is based on the Article “Secularism: Constitutional Provisions & Judicial Review” written by P.K. Tripathi. This article was published in G.S. Sharma (Ed.), Secularism, Its Implications for Law and Life in India in 1966. This article is beautifully written by Mr. Tripathi. He has broadly been divided this whole article in different parts and each part dealing particularly with each aspect of Indian Secularism.
Secularism: Constitutional Provisions & Judicial Review
Secularism: Constitutional Provisions & Judicial Review by P.K. Tripathi
2. PART- 1st – Different Notions of Secularism under Different Systems of the World
The author writes about the different notion of Secularism prevalent in major systems of the world.
He says, in Russian Communist pattern if secularism, the state actively favors anti-religious beliefs. In this system, there is no freedom to propagate religion and religion is tolerated with considerable enmity.
In U.S., the secularism means the freedom of the individual in choosing religion as an attribute of individual liberty. The first amendment to the U.S. Constitution states that the congress shall not make any law regarding the establishment of a religion or restricting the free exercise thereof. It means the state shall not favor or restrict any religion. It means that the U.S. Constitution guarantees not only the free exercise of religion but it also enjoins congress not to make any law establishing a religion.
The “Non-establishment “clause of first amendment is the peculiar feature of the U.S. concept of state secularism. In Everson v. Board of Revenue(1) it was held that it means, neither a state nor the Federal Government can set up a church. Neither can pass laws which aid one religion, aid all religion or prefer one religion over another.
The philosophy underlying the “non-establishment” clause is that a union of Government and religion tends to destroy government and to degrade religion(2). Jefferson said that the “non-establishment” clause was intended to erect a wall of separation between Church and State. Here, I want to mention that in contrast to “non-establishment clause” there are states like Pakistan where there is a system of state religion and state actively favors that particular religion. In France, Separation of religion can be clearly seen. There is a prohibition in using or showing any religious symbols in public or educational institution.
(1) 330 U.S. 1 (1947)
(2) Engel v. Vitale , 370 U.S. 421 (1962)
Secularism: Constitutional Provisions & Judicial Review
3. PART – II : U.S. First Amendment & Secularism
Problem of “Non-establishment Clause” in Indian Context : The major problem seen by the Constitution makers regarding the non-establishment clause was that it has the tendency to prevent legitimate State activities merely because of their possible tendency of aiding religion. It has been argued that giving aid to all school going children in the form of bus fair subsidy or secular textbooks would amount to aid all religions. This would prevent the state from helping children just because they happen to have religion.
SC of India in the Re Kerala Education Bill(3), held that even though there was no constitutional right inhering in a denominational school to receive state aid. But, having regard to the factual compulsion of aid, any unreasonable condition attached to the grant of aid would violate the fundamental right of the denomination to establish and administer educational institutions of its own choice.
Conflict with “Free exercise clause” : The non –establishment clause also conflicts with “free exercise clause “i.e. Congress shall not restrict the free exercise of the religion, of first amendment to U.S. Amendment.
In McCollum v. Board of Education(4) , the U.S. Supreme court has turned down a programme under which public schools permitted religious instructors employed by private religious groups to impart religious instruction in the school building, during a thirty minutes period set by the school for the purpose that such pupils whose parents made request in writing asking for such instruction. It should not be difficult to see here that in such a decision of the SC ,there is an element of denial of the parent’s freedom to give children such religious education as they consider desirable.
In Zorach v. Clauson(5), the court upheld the decision when the children have to be taken away out of the school premises to some other convenient place for imparting such religious instructions.
(3) 1958 SC
(4) 333 U.S. 203 (1948)
(5) 303 U.S. 306 (1952)
Secularism: Constitutional Provisions & Judicial Review
Justice Douglas observed: We find no constitutional requirement which makes it necessary for Government to be hostile to religion and to throw its weight against efforts to widen the effective scope of religious influence. The court held that indulging in such hostility would be preferring those who believe in no religion over those who do believe.
Abington School District v. Schempp(6) : The majority turned down the reading of verses from Bible, without comment, at the opening of each school day and the recitation of Lord’s prayer by students with the condition that individual students could absent themselves on parental request. The court held that the parent’s who desired their children to be exposed to such religious influence could not be permitted to do so under the auspices of secular school system.
However, the dissenting Judge observed that the application of non-establishment clause was a clear invasion of the free exercise clause. He observed that it might be agreed that parent who want their children exposed to religious influence can adequately fulfill that wish off the school premises and outside the school time. If compulsory State educational system so structures a child’s life that if religious exercises are held to be impermissible activity in school, religion is placed at an artificial and state –centered disadvantage, then permission of such exercises for those who want them is necessary if the schools are truly to be neutral in the matter of religion. If a refusal to permit religious exercises is seen as the establishment of religion of secularism or the government support the beliefs of those who think that religious exercises should be conducted in private.
(6) 374 U.S., 203
Secularism: Constitutional Provisions & Judicial Review
4. Part – 3rd – Indian Context & Secularism
In India too, proposals were made before the Constituent assembly for the adoption of very language of first U.S. amendment, including non-establishment clause, for the protection of freedom of religion under the Constitution of India. It was very fortunate that these proposals were negative by the Constituent assembly.
The framers of the Constitution of India shared with the Americans the “free exercise clause”. They believe that State should neither sponsor nor favor any religion, and, should treat all religion with tolerance and equality. But, the founding –Fathers were skeptic of that aspect of “non-establishment clause” which would take separation between church and the State to the extreme where it assumes the character of hostility and began to operate as a denial of religion.
Moreover, as men of sound practical wisdom they could not have India’s history of social experience in the matters of religion. They knew that, if left to itself, religion could permit caste men to burn widows on funeral pyres of their deceased husband; it would encourage even social evils like child marriage or even crimes like human sacrifice; of it could regulate large sections of humanity to the sub-human status of untouchability and inferiority. They understood that asking the State to keep its hands off religion would amount to give constitutional protection to social injustice, exploitation and cruelty in the name of religion. The fundamental rights in the Constitution of India, including those related to religion, were prompted by the concern for liberty, dignity and well being of the individual. In this scheme of liberty , not only freedom of religion is guaranteed to the individual , but where religion tended to become a menace to his liberty and dignity then freedom from religion is also guaranteed to the individual; because without the latter the former guarantee alone will be incomplete and of no-meaning too.
The principle of giving primacy to individual by placing him before and above religion, and recognizing freedom of religion & of religious denominations is incidental only to his well being and to a general scheme of his liberty is a distinguishing feature of Indian secularism.
Secularism: Constitutional Provisions & Judicial Review
Article 25(7) Of Constitution of India and Philosophy behind it : Unlike any other article in part-III of the Constitution, Article 25 and its ancillary Article 26, open with the recitations of thee limitations to which the Fundamental rights enshrined in these articles are subject. The general scheme of the Constitution, followed in all other articles of part-III without exception, is to state the right first, thus giving it the primary place, and to mention the limitations only subsequently. A perusal of the public interests to which the fundamental rights embodied in Article 25 is subjected will reveal the significance of its departure. These include not only ‘the ordinary catagories of public order, morality and health’ but also the unique category, found again in no other article namely “other provisions of this part”.
The rights guaranteed in Article 25, especially those related to practice and propagation of religion are susceptible of so exercised by the persons so as to encroach upon the various fundamental rights of others. If so exercised, the freedom guaranteed in this article intended to extend the general area of individual liberty could be perverted into an instrument for shrinking and destroying liberty through individual or collective action. The Constitution would not permit this to be done even in the name of the State, then how it can be done in the name of religion?
The limitations placed at the inception of article 25 are individual liberty itself. The inclusion of other fundamental rights as one of the limitations on the right of the religion, and, the scheme of precedence adopted by the
(7) Article 25 : Freedom of Conscience and free profession, practice and propagation of religion : (1) subject to public order, morality and health and to the other provisions of this part, all persons are equally entitled to freedom of conscience and the right freely to profess, practice and propagate religion.
(2) Nothing in this article shall affect the operation of any existing law or prevent the State from making any law: –
(a) regulating or restricting any economical, financial, political or other secular activity which may be associated with religious practice;
(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.
Explanation I : The wearing and carrying of kirpans shall be deemed to be included in the profession of Sikh religion.
Explanation II : In sub-clause (b) of clause (2) , the reference to Hindus shall be construed as including a reference to persons professing the Sikh, Jain or Buddhist religion, and the reference to Hindu religious institutions shall be construed accordingly.
Secularism: Constitutional Provisions & Judicial Review
Article 25 only indicate unmistakably the salutary principle of giving primacy to individual, placing him before and above religion, and recognizing freedom of religion only as incidental to his well being and liberty.
Article 25 and State Neutrality : The Article states that all persons are equally entitled to “ the freedom of conscience and right freely to profess, practice and propagate religion”. There can be no doubt that the prominence is given to the principle of equality in the key provision of this article brings out the attitude of State neutrality in matters of religion without importing the “wall of separation” doctrine of U.S.
Aid, facilities, protection and even encouragement given by the State to religion will not offend this provision as long as the State adhered to the principle of equality, and to that extent, neutrality among the various religious groups and communities.
Perhaps the word “equally” also has another aspect, less cheering for religionists. As with aid and encouragement, so in regard to restriction and regulation, there will appear to be no offence to the guarantee under Article 25 as long as the State adhered to neutrality.
It may be noticed that four areas covered by the right in clause (1) of article 25 have been placed in a deliberate ordering. Freedom of conscience, which is in its very nature illimitable and not susceptible to Governmental restriction is mentioned at the head. And, among the rights that follow, the first to be mentioned again is the right to profess religion which is the one least likely to affect secular interests or rights of others. Next follows the right to “practice” religion, which obviously has a wide significance to public order, morality and health and the civil rights of others. And logically, last comes the right to “propagate” religion and to propagate (persuading others to accept your religious beliefs) right in regard to which conflicts with competing interests will be more.
Sub-clause (a) of Clause (1) of Article 25 at once recognizes the inevitability of such interplay and asserts the overriding power of the State to regulate and restrict over the entire area when the secular and religious activities are found to commingle. Since, “practice” of religion happens to be the only part of religion susceptible of State control, this clause makes the State,
Secularism: Constitutional Provisions & Judicial Review
practically supreme over the religion. This clause recognizes the power of the state to regulate any economical, financial, political or other secular activity without stopping, where such activity begins to touch or commingle with religion. This clause is the expression of the complete supremacy of secular authority and secular interests over religious authority and interests. The sub-clause (b) of clause (1) of Article 25, only completes of the secular power over religious matters, because, the broad power of social welfare and reform it refers to is not even confined to religious practice.
Principle of Tolerance – III Strand of Our Constitutional philosophy towards Religion : Article 26(8) guarantees to every religious denomination and section thereof the right to establish and maintain religious and charitable institutions; the right to manage its own affairs in matters of religion; the right to own and acquire immovable and movable property; and right to administer such property in accordance with law. Religious minorities have been given by Article 30(1), the right to establish and administer educational institutions of their choice, thus securing to religious groups expressly in the Constitutional texts what Americans obtained through litigation in the U.S.A. As to aids, the Constitution not only contemplates and tolerates, being awarded to denominational institutions but even admonishes the State not to discriminate in making the awards against any institution on the ground of its denominational management. The question of religious instruction has also been rescued out of vagaries of litigation and settled by direct provision in the text. The framers of the Constitution laid down categorically in Article 28(1) that “no religious instruction shall be provided in any educational institution wholly maintained out of State funds”. Educational institutions partially aided or merely recognized by the State are free to provide religious instructions to their pupils, but they too may not make such instruction compulsory for any of them.
(8) Article 26 : Freedom to manage religious affairs : Subject to public order, morality and health, every religious denomination or any section thereof shall have the right:
(a) to establish and maintain institutions for religious and charitable purposes,
(b) to manage its own affairs in matters of religion,
(c) to own and acquire movable and immovable property, and
(d) to administer such property in accordance with law.
Secularism: Constitutional Provisions & Judicial Review
Part- 4th – Judicial Scenario
The Comissioner, Hindu Religious Endowments, Madras v. Lakshmindra Swamiar(9) : It was the first case in which Article 25 & 26 of The Constitution of India were relied upon by the Supreme Court for invalidating the provisions of State legislation. In this case , it was observed that under Article 26(d) , it is for a religious denomination or its representative to administer its properties in accordance with law; and law therefore, must leave the right of administration to the religious denomination itself subject to such restrictions and regulations as it might choose to impose. A law which takes away the right of administration from the hands of a religious denomination altogether and vests it in any other authority would amount to violation of the right guaranteed under Article 26(1)(d) i.e. to administer its own property in accordance with law.
Saifudin Saheb v. State of Bombay(10) : In this case, the petitioner was the head of Dawodi bohra community ,styled as Dai-multaq, challenging the Bombay Act, 1949 which invalidates all excommunication (expulsion from the community) of any member of a religious community. In this case, it was alleged by the Dai that power of excommunication is a matter of religion and this power is invested in him as religious head of community, so court cannot intermeddle in this aspect.
The main principles underlying Section 25 and 26 are laid down as follows:
(a) The protection of these articles is not limited to matters of doctrines or beliefs; they extend also to acts done in pursuance of religion and therefore, contains a guarantee for rituals and observances, ceremonies and modes of worship which are integral part of religion.
(b) What constitutes an essential part of religion or religious practice has to be decided by the courts with reference to the doctrine of particular religion, and includes practices which are regarded by the community as part of the religion.
Criticism : Author asks is it the philosophy of Constitution of India that a citizen of this country should be compelled on the pain of deprivation of civil rights such as the right of securing a place for burial for himself and for his
(9) 1954 SC
(10) 1962 SC
Secularism: Constitutional Provisions & Judicial Review
progeny in the vicinity of the graves of his forefathers, to subscribe to “unquestionable faith” in another person, especially about whose religious right to act as the representative of the Imam his conscience is skeptic? It does appear to be a fact that unquestioning faith in the Dai as the head of the community is part of the creed of Dawoodi bohras. Another question is, does Article 26((b) require the State to “establish” the religion of the Dai against the conscience and the wishes of those in the dawoodi bohra community who have no faith in him? Answer to this question is surely a “big no”.
Venkataraman Devaru v. State of Mysore(11) : In this case, Aiyar J., observed that, “ It being thus settled that matters of religion in Article 26 (i.e. right to manage its own affairs in matters of religion) include even practices which are regarded by the community as part of its religion , we have now to consider whether expulsion of a person from entering into a temple for worship is a matter of religion according to Hindu ceremonial laws.
Durgah Committee v. Hussain Ali(12) : In this case, Gajendergadkar J. laid, in order that practices in question should be treated as part of religion they must be regarded by the said religion as its essential and integral part; otherwise purely secular activities which are not an essential or an integral part are apt to be clothed in a religious form and may make a claim for being treated as a religious practice within the meaning of article 26. Thus , thee learned judge was clear in his opinion that the doctrine of autogenesis of denominational powers laid down by the court in the Swamiar and devaru cases needed severally to restricted if not altogether rejected.
Rights in Article 26 are ancilliary to right in Article 25 : The true difficulty of Swamiar, Devaru and Saifudin chain of decisions seems to have been the failure on the part of the court to appreciate the relationship between the rights guaranteed in articles 25 and 26. The court has failed to appreciate that the rights guaranteed to denominations in Article 26 are ancillary to the rights guaranteed in Article 25. The guarantees in Article 26 are not activated by any concern for the for religious denominations or for
(11) 1958 SC
(12) 1961 SC
Secularism: Constitutional Provisions & Judicial Review
religion as such. Instead, the denominational rights were guaranteed in order to complement the individual freedom in matters of religion enshrined in Article 25. The freedom and rights which article 25 contemplates for the individual, the sovereignty which the Constitution carves out for his conscience in that article will be supplemented by his right to associate with others in matters of religion, such as in founding churches, temples, mosques , in religious discourses and exercises, in performing religious rites, and ceremonies jointly with others or in joint prayers, the right in Article 26 are ancillary to the rights guaranteed by Article 25 to the individual , whose liberty and rights alone, are the primary concern of individual.
Resolution of conflict between Article 25(2)(b) and Article 26(b) by the court : In Devaru case, the court observed, if there are two provisions of equal authority, neither of them being subject to the other. Now, the question is that how the apparent conflict between them is to be resolved? The rule of construction is well settled that where there is an enactment, of which two provisions which cannot be reconciled with each other, they should be so interpreted that, if possible, effect could be given to both. This is what is known as rule of harmonious construction. Now applying this rule, If the contention of the appellant to be accepted then Article 25(2)(b) will become wholly nugatory in its application to denominational temples, though the language of Article 25 includes them. On the other hand, if the contentions of the respondent (State) is accepted then full effect ban be given to Article 26(b) in matters of religion, subject only to the fact of one aspect of them i.e. entry into a temple for worship, the rights under Article 25(2)(b) will prevail. While in the former case (petitioner’s argument) Article 25(2)(b) will be put wholly out of operation but in the latter situation, effect can be given to both. Therefore, we must accordingly hold that Article 26(b) must be read subject to Article 25(2)(b).
Acharya Jagdiswaranand Avadhuta v. Commissioner of Police, Calcutta(13) : The court held that tandava dance in procession or public places by Anand margis carrying lethal weapons and human skull was not an essential religious rite of followers of anand marga and hence, the order under Sec. 144 Cr.P.C. prohibiting such procession in interest of “public order and morality” was not violative of the rights of petitioners under Article 25 and 26 of the Constitution.
(13) (1984)9 SCC 522
Secularism: Constitutional Provisions & Judicial Review
Farzu v. State of Haryana(14) : in this case, it was held that Muslims are not immune from the law which disqualifies a person from being Sarpanch if having more than two children and such a law is not violative of the Article 25 of Constitution. The SC held that a person has a right to profess and propagate his religion but it is subject to public order, morality and health. The health can be of either spouse. It is settled law that personal law is not a fundamental right. The impunged law is a special law and shall apply to all persons irrespective of their caste and religion.
Bijoe Emmanuel v. State of Kerala(15) : In this case, three school children of Jihovah’s witnesses were expelled from school for refusing to sing national anthem. They stood respectfully when national anthem was sung but they refused to join in singing because according to them it was against their religion which does not permit them to join in any rituals except if be in their prayer to Jihova i.e their God. The SC observed that they did not commit any offence under the Prevention of Insults to national Honors Act, 1971, because they stood respectfully when the national anthem was being sung. Court further held that a restriction on the freedom of religion can be upheld only if it falls within the exception of Cl.(1) and Cl.(2) of Article 25. It cannot be imposed on any other extraneous consideration.
N. Adithayan v. Travancore Devaswom Board(16) : It was held that just because traditionally only Brahmins carried of functions of priests does not mean that non-Brahmins are prohibited from doing so. Properly trained and qualified persons may be appointed as poojaris regardless of their caste.
The above judicial trend has clearly laid down that judiciary has played a very significant role in implementing what was already provided by the Constitution as part of its secular scheme. Judiciary has done a proactive role by reviewing the Constitutional validity of various state laws or other actions which are impugned to be infringing the Constitutional mandate of Secularism.
(14) AIR 1998 P&H 134
(15) (1986) 3 SCC 615
(16) (2002) 8 SCC 106
Secularism: Constitutional Provisions & Judicial Review
6. Part 5th : Conclusion : In his conclusion, the author has observed that the framers of the Constitution of India contemplated a secularism which was the product of India’s own social experience and genius. Constitution framers did not contemplate a state hostile to religion. However, they also did not consider it desirable to arm the religion with the power to do to the individual what neither the State nor any organized authority could be permitted to do so. However, the author thought that Court does not caught the spirit of Constitution as reveled in the Swamiar and succeeding chain of cases. Further, he says that the reason for discord between the constitution ideals and court has been the difference in the social background of the founding fathers and men who adorned the judicial offices in this country. This is the reason why not only in the church-state relations but in several other segments of constitutional development and working there has been a divergence between national aspirations and judicial pronouncements.
This is not to say that rights of mahants or of the denominations should be unduly disregarded. Indeed not to respect their rights in regard to property, management and religious affairs would be violative of the constitutional policy of tolerance in matters of religion.
Secularism: Constitutional Provisions & Judicial Review
7. BIBLIOGRAPHY
BOOKS
(1) H.M. Seervai, “Constitutional Law of India” fourth Ed. Vol. 2, Universal Law Publication.
(1) M.P. Singh
(2) M.P. Jain
(3) Steven I. Wilkinson, “Votes & Violence, Electoral Competition And Communal Riots in India”
(4) P.Shivarao,
(5) P.M. Bakshi, “The Constitution of India”, Eighth Ed. (2001), Universal Law Publishing Co. Pvt. Ltd. N. Delhi.
(6) Mehndiratta, “ Election Laws, Practice And Procedure”
ARTICLES
(1) Subrata Kumar Mitra, “Desecularising the State: Religion & Politics After Independence” Hull University.
(1) Shefali Jha, “Secularism in the Constitutional Debates”, Economic & Political Weekly, Vol. XX No. 35, July 27, 2002.
(2) Justice Ranganath Mishra, “Secularism And The Constitution”, Central India Law Quarterly , Vol.32, 1990.
(3) Cynthia Keppley Mahmood, “ Rethinking Indian Communalism, Culture and Counter Culture.”
(4) Amartya Sen, “The Threats to Secular India”, Social Scientist, Vol.21. March- April, 1993.
(5) Bipin Chanda, “communalism & the State: Some Issues in India”, Social Scientist, Vol.18, Nos.8,9. August- Sep. 1990.
REPORTS
(1) Liberahan Commission Report, 2009.