Secularism has been one of the most debated upon topics even before its inclusion in the Preamble of the Indian Constitution. Its sensitive nature is a further aggravating point in debates om secularism.
By: Rajrishi Ramaswamy, Second Year B.B.A. LLB, Symbiosis Law School, Hyderabad.
Indian Constitution had provisions for secularism even before the inclusion of the term in the Preamble in the year 1976. The provisions relating to secularism in the Constitution include freedom to profess religion and rights to religious denominations (Articles 25 and 26), no discrimination on certain grounds inclusive of religion (Article 15(1)), equal opportunities in public employment (Article 16(1)(2)), non-discrimination in educational institutions 29(2) and other such provisions. Articles 27 and 28 also separate the state and religion, whereby there are no special taxes for promoting religion and educational institutions have to be devoid of instructions of religious nature.1
Definition of Secularism
Though there is a lack of a statutory definition of the term, Indian Courts have attempted to understand the term and the concept of secularism in a few cases. One such case is the landmark case of Indra Shawney vs. Union of India2 where Justice B.P. Jeevan Reddy observed that “An egalitarian society or welfare state wedded to secularism does not and cannot mean a social order in which religion or caste ceases to exist. ‘India is a secular but not an anti-religious state. Article 25 is the pride of our democracy.”
In simpler words, it can be said that secularism is not abandoning religion on the whole, but tolerating the existence of other religions and co-existing with them in harmony.
As regards religious intolerance, the Court in another landmark case, S.R. Bommai vs. Union of India3 commented that secularism is an integral part of the Constitution’s basic structure and that religious tolerance is limited to pursuing spirituality but does not extend to secularism, in the sense that religious tolerance should not encroach into the domain of secularism, which is an affair of State concern.
Governmental Intervention in Religious Matters
The Indian Government has more than once intervened in an issue between religious parties in the recent past too and the same is the case with the Indian Judiciary.
However, some argue that the heads of the respective State Governments are themselves strong adherents to one or the other religion, which acts as a strong determining factor in the decision-making process, and that therefore, India can never be a completely secular state.4
Whenever the State has intervened in religious affairs, there have been consequences, which have been extreme in many cases. The particular communities whose practices or customs the Government or Courts have intervened in have felt this as an encroachment upon their right to practice and profess religion or simply as a threat to their religious autonomy and accordingly had protested against the Government or the Court. Some illustrations of this sort of a situation have been provided hereunder.
On 3rd January 2019, widespread protests took place in the southern Indian city of Kerala in which a person was killed. The protests were against Bindu Ammini and Kanakadurga, who were the first women to enter the Sabarimala temple after the Supreme Court’s verdict lifting the temple’s ban on entry of women aged between 10-50 years.5
After the Supreme Court’s landmark judgment in Mohd. Ahmed Khan vs. Shao Bano Begum6, the then Government of India led by Shri Rajiv Gandhi had passed the Muslim Women (Protection of Rights on Divorce) Act, 1986 which led to widespread protests which were led by organizations including the All India Muslim Personal Law Board were further fuelled by the media, whose reporting was biased, further angering mobs of people. As the ultimate consequence, the very judgment through which the Supreme Court had sought to establish a change in the society was overturned by the Rajiv Gandhi government under political pressure.7
The aforementioned incidents highlight the extremity of the consequences which arise as a result of governmental or judicial intervention in the personal laws of religious communities. The Government, therefore, is in a position where it has to protect the rights of one group of citizens while maintaining its secular form.
In India, importance is given to the principle “Sarva Dharma Sambhava” as per which all religious paths ultimately lead to the same destination.8 The successful applicability of this concept to India is doubtful, as the general perception of secularism is that all religions are treated equally by a state (which does not interfere in their affairs) and not that a state deems it its duty to ensure the establishment of all religions in a country. There are pressing issues in India but a persisting and complex issue is how sensitive the general masses are when it comes to secularism. Clashes between religious extremist groups or even upper and lower castes is a frequently occurring issue in India. Judicial intervention in religious affairs always brings about protests, even if it yields positive results such as in the Sabarimala verdict or the Shayara Bano9 verdict, where the Supreme Court avenged itself after 32 years of the Shao Bano verdict. The yielding of such positive results is a factor that raises the demand for a Uniform Civil Code in India (hereinafter UCC), which has long been pending. The Supreme Court in many cases including landmark judgments such as Sarla Mudgal vs. Union of India or the S.R. Bommai verdict had emphasized the necessity of UCC. Notwithstanding the debate on the UCC, the sensitivity of secularism in the Indian context can be attributed to the long-standing customary and traditional practices, which have led the masses to believe that the government cannot interfere in their affairs. The government in turn perceives that such interference is necessary to eliminate certain shortcomings in society.
A solution that may mitigate this sensitivity is by statutorily defining secularism, which will then facilitate clear boundaries between the state and the citizens as regards secularism and governmental intervention.
- Joseph Tharamangalam, Indian Social Scientists and Critique of Secularism, 30(9) Economic and Political Weekly 457 (1995) https://www.jstor.org/stable/4402446.
- Supp (3) SCC 217 (1992).
- 3 SCC 1 (1994).
- Deepa Das Acevedo, Secularism in The Indian Context, 38(1) Law and Social Inquiry 161 (2013) https://www.jstor.org/stable/23357741.
- Sabarimala: India’s Kerala paralysed amid protests over temple entry, BBC (Jan. 9, 2020) https://www.bbc.com/news/world-asia-india-46744142.
- AIR 945 (1985).
- Nawaz B. Mody, The Press in India: The Shao Bano Judgement and Its Aftermath, 27(8) Asian Survey 938 (University of California Press, 1987).
- Rajeev Bhargava, The Distinctiveness of Indian Secularism, University of Delhi 40.
- 9 SCC 1 (2017).