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Although the 42nd amendment to the Constitution inserted the term
"secular" in the preamble in 1976, the ideal of secularism was
recognized as far back as 1949. The original Constitution tacitly
accepted it by its declaration in the preamble that it would
provide "liberty of thought, expression, faith and belief' to all.
But as the preamble is not included in the operative part of the
Constitution, the ideal needed legal recognition by means of
written provisions.
The guarantee of fundamental rights relating to religion
constitutes the sheet anchor of the Indian secular state. Article
25 grants individuals freedom to practise and propagate any
religion. Article 26 gives every religious denomination freedom to
establish and maintain institutions for religious and charitable
purposes. Article 27 stipulates no person shall be Compelled to pay
any tax whose proceeds are used to pay any expenses for promoting
and maintaining any particular religion or religious groups.
Article 28 prohibits the introduction of religious instruction in
educational institutions maintained by the state.
What underlies these provisions is the Principle of deliberate
dissociation of politics from religion. When the Constitution
accepts such a principle in the form of enforceable rights, it
helps create a secular state. In such a state, there can be no
discrimination on grounds of religion. In other words, a secular
state does not in any way identify itself with any religion, rather
it helps the individual keep to his chosen faith. At the same
time, the Constitution does not permit any official discrimination
on religious grounds. As B.R. Ambedkar said, "This Parliament shall
not be competent to impose a particular religion on the rest of the
people."
But secularism does not mean the state should be irreligious or
anti-religion. S. Radhakrishnan said, "When India is said to be a
secular state, it does not mean that we reject the reality of an
unseen spirit or the relevance of religion to life." Secularism in
India has some special features. While guaranteeing religious
freedom, the Constitution also empowers the state to impose
necessary restrictions, primarily for social security and national
unity.
Secularism in India differs from the accepted notion of the term in
three days. First, it is truly liberal. Although India's population
is predominantly Hindu, the Constitution not only ensures religious
equality, it also protects the essential rights and privileges of
religious minorities, as is evident from Article 26. The term
"propagate" in the article is seldom found in other written
constitutions. It is to the advantage of Christianity, which
expands on the basis of proselytization.
Moreover, the prohibition of the use of tax proceeds for a
particular religion's benefit is an example of the religious
liberalism enshrined in the Constitution.
Second, Indian secularism is not absolute. It is legally qualified
and conditional, because religious freedom under the Constitution
has to be in consonance with "public order, morality and health".
The state may interfere in an individual's religious rights when
they go beyond the determined limit. Under Article 25 (2a), it can
regulate activities associated with religious practice.
Under Article 25 (2b), it can interfere with religious affairs for
social welfare and reform. Article 26 stipulates that the right of
religious institutions to own and administer property must be
enjoyed "in accordance with law". This is why the state may, if it
deems necessary, pass a restrictive law for land reform or village
reconstruction.
As regards social welfare, the state may prohibit a prevailing
religious convention. For example, bigamy among Hindu men on the
ground that the first wife was unable to beget a son can be
prohibited because the practice is not; an essence of the Hindu
religion. Practices such as sati or the devadasi system may be
prohibited for the welfare of society. Thus social welfare in the
constitutional system can prevail over religious sentiments. The
state may adopt necessary legislations for the people's good, such
as changing a community's personal laws or prohibiting an old
practice which is traditionally thought of as an essential part of
a religion.
Third, Indian secularism is dynamic. Some reasonable restrictions
may be imposed on the right. It has been left to the judiciary to
determine whether these restrictions have been consistent with the
idea of secularism adopted in the Constitution.
But the nature of the judicial verdict may change over time.
Consistency with the constitutional principles may ultimately
ensure that secularism become a matter of social dynamism.
Thus, Indian secularism differs from the orthodox model which
desires the state simply observe neutrality towards all religions.
However, when the circumstances warrant, the state can impose
necessary restrictions on religious activities. Ambedkar had said,
"Let no one be in a state of mind that they are immune from the
sovereign authority of this Parliament."
Muslims may claim their personal laws should be retained as a part
of their religion. However, the Supreme Court has recently ruled
the government should implement a uniform civil code in order to
implement one of the directive principles enshrined in Article 44.
Although the verdict has alienated a section of citizens, the
judges have wisely sought to separate social rules from religious
injunctions.
Some decades ago, the Indian government made necessary legislations
with regard to the marriage, divorce and succession of Hindus.
Although the controversial Hindu code bill was ultimately withdrawn
under pressure, the traditional system, said to have emanated from
the sastras, was largely modified.
Muslim laws, though, remain unaltered. It has been felt the needed
modification cannot be made unless the demand is raised within the
community itself. This is a delicate issue and a hasty step may be
misinterpreted as undue interference into minorities' religious
rights. The government has accepted the 1967 Supreme Court verdict
that, unless both the majority and the minority agreed such a
legislative step was necessary for social welfare, it would be
unwise to impose a law upon a section of the community.
Nevertheless, it can still be said the Constitution has adopted a
new type of secularism. It has sought to effect a compromise
between two opposite considerations - dissociating religion from
politics, and permitting politics to prevail over religion in times
of need. Its framers did bear in mind how religious fanaticism
divided the country, but they also recognized the importance of
religion in the moral and cultural life of Indians.
In addition, the judiciary is vested with power to interfere in a
group's internal affairs. It has to decide whether a specific act
is an essential part of a particular religion. It can classify
religious practices into those which are of religious character and
those which are not. For example, in 1959, the Supreme Court
decided that cow sacrifice is not enjoined by Islam.
India's Constitution is also more secular than other constitutions.
In 1961, for instance, the then Burmese parliament passed a bill to
make Buddhism the state religion. The Roman Catholic religion is
Ireland's official religion. The United Kingdom inclines towards
Church of England and Protestantism.
However in India, both citizens and aliens are guaranteed religious
freedom. The majority faith, Hinduism, is not accorded special
treatment, though Pakistan, ceded on the basis of the two nation
theory, adopted Islam as a state religion. This was a laudable
achievement on the Constitution makers' part because when the
Constitution was being drafted, communal frenzy was sweeping across
the subcontinent.
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