CHAPTER 1

INTRODUCTION

1.1. Secularism- Introduction

Before India gained Independence "Hindustan" was recognized as a country and a

sub continent. When the question of drafting, the constitution of India, there arose a
fundamental feature of the entire constitution has been deemed to be absolutely secular. If
we refer to the preamble of the constitution, it explicit in the language of the preamble itself
and very clear in its concept and content, the Indian state is describe as a secular,
Democracy, socialist, sovereign Republic.

The preamble of the constitution adopted by independent India on 26thNovember,

1949(effective from 26th January, 1950) declared India as "Sovereign Democratic
Republic". Till the 42nd Amendment in 1976, the constitution did not contain the word
"secular" although the spirit of secularism is evident in the various Article of the
constitution. There were however efforts in the constituent Assembly to make a specific
mention of the principle of secularism in the constitution. During discussions on the Draft
constitution, Prof, K.T. Shah and Kamath tried to get the following provisions included in
the constitution.

"The State in India being secular shall have no concern with any religion, creed or
profession of faith: and shall observe an attitude of absolute neutrality all matters relating to
the religion of any class of its citizens or other person in the Union."The state shall not
establish, endow, or patronize any particular religion. Nothing shall however prevent the
state from imparting spiritual training or instruction to the citizens of the Union1. However
all such amendment was summarily rejected?2 The reason as to why the word "secular" was
not in the constitution adopted, is attributed to the fact that "so ingrained is the Indian

1
Constitute Assembly of India, vol.VII (Available at http//Parliament of india.nic.in/is/debate/vol7p20a.htm.
2
Lavlare, Arvind, quoting DrSubhashkashyap,in The counterfeits and Their Continuous Issues, May
11.1999.(Available at http://www.rediff.com/ews/1999/may/ 11arvind.htm)

1
concept of the secularism in our national culture that it did not even occur to the architects of
theconstitution that they should specially mention it as one of its perambulatory Principles3.

Secularism as a political concept gained prominence in the 1940s, after the Muslim
League demands a separate home land for the Muslim on religious and Culture grounds. The
congress party objected to the demand by pointing out of the syncretism religious tradition
of India, Affirming its faith in Secularism. Congress said that it did not contemplate
misusing religion for accomplishing its political objectives, but believed in confining
religion to the private sphere. It assured that the post- colonial state would not discriminate
on the basis of religion. Thus the congress invoked secularism" to distinguish its politics
from the communalism of the Muslim League4

The word "Socialist" and Secular "were added to the preamble of the constitution by
the 42nd constitutional Amendment Act of 1976. The word "secular" was meant to imply
equality of all religions and religious tolerance. In views of the 42nd Amendments,
secularism has become an integral part of the basic structure of the constitution and the
Supreme Court has also decreed as such in the case of S.R. Bommai vs. Union of India 5 and
also Adi Vishweshwar of Karachi vs. Wishwanath Temple, Varanshis State of U.P6

The "unity "and "Fraternity" of the people of India professing numerous faiths has
been sought to be achieved by enshrining the ideal of a "secular state". This means the state
protects all religious equally and does not itself subscribe or uphold any religion as the
religion of the state. The question of secularism is not one of sentiments but one of law.
There is no provision is the constitution making, any religion the 'Established Church' as
some other constitution do. The state has no religion, nor it will favour any religious dogma,
not -religion, it isn't in favour of any religion nor the state structure and the edifice is not
based on any religious structure. The essence of the constitution of India is not religious not
sectarian, but absolutely secular.

The constitution, as such is not opposed any religion, or in favour of any religion. It
is absolutely and wholly secular in its character. On the other hand our constitution provides,

3
AdvaniL.k, (Available at http:/www.rediff.com/news/1998May//27cons.html
4
RaoBqadrinath, The variant meaning of secularism in India: notes toward conceptual clarification, Journal of
Church and State, witer2006. BadrinathRao is an Assistance Professor of Sociology and Asian Studies,
Department of Social science , Kettering University, Flint Michigan,USA)(Available at http://Find
articles.com/p/articles/mi_hb3244/is_1_48/ai_n29260505/pg_1
5
S.R. Bommai and Others. Union of India and Others(AIR1994SC, 1918)
6
Vishweshwar of karanchiVishwanath Temple, Varanshiys State of U .p 8 [1197]4:s.c.c [para26]

2
in Art,25[1] that every person in guaranteed the freedom of conscience and the right to
profess, practice and propagate religious beliefs, which a person is adhering to, is only a
constitutional right. Which is not absolute, but subjected to public order, morality and the
others provision of the part III of the constitution e.g. Pakistan is recognized as an Islamic
Republic of Pakistan, and Nepal is recognized as a "Hindu Religious State" but India is not
describe as a state belong to any religion. India as a multi lingual and multi religious state,
professing innumerable faiths. The point is the state has no role to playing matter of religion.
India is a multi lingual, multi cultural, multi religious country. Therefore, in matter of
administration, governance and in judicature religion has no role to play.

The present scenario of ‘Secularism’ in India is indeed a cause of concern. Today,

the secular character of the Indian democracy is considered to be under threat. The razing of
the Babri Mosque in Ayodhya (Uttar Pradesh) led to riots and killings by Muslims and by
Hindus. The recent massacres of innocent Hindus in Godhra (Gujarat), presumably ignited
by smoldering Muslim resentments against the Hindutva proponents over Ayodhya, touched
off a larger massacre of equally innocent Muslims in tit-for-tat killings that undermined yet
further the amity under which these religious communities had lived earlier in Gujarat State
in an atmosphere of secularism.

Apart from these, the unspeakable atrocities of 1984 against the Sikhs in Delhi after
the assassination of Prime Minister Indira Gandhi; and an occasional slaying of proselytizing
Christian missionaries clearly presents a grim picture of “Indian Secularism”, moreover, the
intrusion of religious passions and caste loyalties into Indian politics casts serious doubts
over the claim of India to be a secular and theocratic state. This is also highlighted from the
changing trends of the decisions given by the Hon’ble Supreme Court of India, which is
regarded as the guardian of constitutionalism in India.

The Hon’ble Supreme Court of India in Sardar Taheruddin Syedna Saheb v. State of
Bombay7, in this case first time explained the concept of secularism wherein Ayyangar, J.,
explained: "Articles 25 and 26 embody the principle of religious toleration that has been the
characteristic feature of Indian civilization from the start of history. The instances and
periods when this feature was absent being merely temporary aberrations. Besides, they
serve to emphasize the secular nature of the Indian democracy which the founding fathers
considered to be the very basis of the Constitution."

7
AIR 1962 SC 853, 871
3
 The demolished Babri-Masjid not only brought into sharper focus the estranged
relations between Hindus and Muslims in India today but also the larger issue of whether
people belonging and deeply committed to different faiths can live together. Moreover, the
demolition was widely believed by non-religious people as a frontal attack on the secular
constitution of India. The ferocity with which militant Hindus attacked and challenged the
constitution left many people wondering whether believers and non-believers could live
together at all. It was earlier thought that the ideology of secularism enabled people with
different faiths as well as believers and non-believers not merely to live together but to live
together well. The demolition certainly put to rest any complacence in the possibility of
secularism automatically solving the vexed problem of diverse people living together.

These Recent developments show that communalism is still a very ‘hot’ and pending
issue in India. For the last six years, India’s political landscape has been characterized by
political fragmentation and the rise of caste and regional interests, and no national party has
managed to command a majority on its own. India’s current Hindu nationalist government is
the fifth government in two years, with the BJP depending on the support of 19 other parties,
some with a primarily regional focus, to form the National Democratic Alliance.

Secularism in the Indian context means an equal status for all religions and equality
for all religions means that faith in one’s own religion must not detract one from respecting
other religions. It can only matter if religion is seen as a source of political power. As early
as 1994, it was noted by the Supreme Court that rise of fundamentalism and
communalization of politics is anti secularism. They encourageseparatist and divisive forces
and become breeding grounds for national disintegration and fail the parliamentary
democratic system and the Constitution. Who then is responsible for keeping secularism and
national integration a live?

In the context of a free play of social forces where it is not possible to bring about a
voluntary harmony, it is the State which has to step in to set right the imbalance between
competing interests. It is India’s misfortune that although it was founded and meant to
continue as a “secular” state, religion is seen as a source of political power and therefore
colors governmental action. How can an Indian hope for neutrality in governance if the
government is religiously prejudiced?

Is India a secular state and society, and can it is? What are the forces, secular and
non-secular, currently operating in the Indian polity?What is secularism? What is the major
problem, which increasingly pose challenges to secularism in India? Does the emergence of

4
such challenges signal? "Demise of secularism 'in India? Is secularism, to use madans
words', impossible, on practicable, and impotent? Or does secularism in India have the
capability to transcend these challenges? In view of the diabolic the end of increasing
communalism and fissiparous tendencies, these questions assume added significance.

India in recent years, has been witnessing an escalation of religious revivalism,

fundamentalism and religious–communal identification. The rising tide to this fissiparous
force threatens to engulf Indian social and political life. Against the back drop, secularism
has come to the center stage of social and political discourse in the country and various
critical issues pertaining to its interpretation, practice, and application are being raised.

The aggressive resurgence of majority communalism in constitutes one of the major

threats to secularism in India. The Hindu fundamentalists propound the concept of Hindutva
and Hindu state reveal and explicit aniti minority bias expressed through their tirade against
minority appeasement, separate personal law Article.370 and existence of Alighar Muslim
University etc. This leads to fears of establishment of a theoretic state. On other hand
minority communalism, too has become more assertive and aggressive as exemplified by the
agitation over the Shah Banu judgment8 and the vehement supports of separate personal laws
particularly in the wake of supreme court judgment in the sarlamrudugar case, 9 significantly,
the issues emphasis' by the protagonists of the both majority and minority communalism are
limited to religion communal ones. These issues of socio–economic development are thus
over shadowed by fundamentalism, revivalism and violence.

The resurgence of non secular force is accompanied by the manipulation of religion

for electoral gains by the political parties. The electoral process is the vitiated by the
predominance of communal and chauvinistic forces. Issues like Ram Janmbhumi-
Babrimasjid controversy are given prominence for electoral gain and are yielding rich
dividends, Thus communalization of the political process is accompanied by the emergence
of ‘new gave of political activist – the ram bhakts10’who are attempting to undo historical
wrongs .In the process religion to gets politicized . Increasing political role is being
appropriate by mullahs, sadhus. SadhvisPunder polity by suggesting amendment in what
they call him and Hindu constitution making the contours of Hindu Rastra as well as giving
direction to votes as to how to vote.

8
Mohd. Ahmed Khan v. Shah Bano Begum, AIR 1985 SC 945
9
SarlaMudgal v. Union of India, AIR 1995 SC 1531.
10
GeetaPuri, “The Congress and the BJP”, Indian Express, November 30, 1992 In the 1991 election ,there
wereat least seven sadhus in the lokshabha
5
 A. RESEARCH METHODOLGY

RESEARCH METHODOLOGY OF THE STUDY:

The present study is non-empirical (doctrinal) in nature. Non-empirical research

means a research that has been carried out on legal propositions by way of analyzing the
existing statutory provisions. It involves analysis of case laws, ordering and systematizing of
legal propositions and study of legal institutions through legal reasoning or rational
deduction.

TITLE OF THE STUDY

The title of the study is “Indian Constitution Tryst with Secularism: A Study of
Changing Dimension of Religious Freedom Jurisprudence”

PROBLEM OF THE STUDY

One of the root causes of the longstanding crises of the Indian State and Society was
religious inequality that has been entrenched by past successive regimes. The
institutionalization of one religion to assume a dominant political role in the society and
using it as ideological justification for empire building, coupled with other misguided
policies have triggered bloody conflicts. The Indian Constitution of 1950 has made a
significant, if not radical departure from its predecessors in many respects. Thus, the
Constitution guarantees equality of religions, proclaims freedom of religion, and declare its
concomitant principle of secularism.

Given the country’s bitter past it is no surprise to see a general consensus as regards
the separation of religion and State among the multi-confessional society of this polity.
There seems, however, some difference of opinion, if not confusion both in theory and
practice as regards the nature of secularism. Moreover, religion ‘related’ clashes reported in
the last ten years have their own patterns and features. The clashes are more organized and in
most cases incited in some way to bring the other party into confrontation. Thus, it would be
naive to take them as spontaneous or sporadic personal conflicts among followers of
different religions. One thing seems clear, a new pattern of clash is emerging, however, there
is a doubt whether the cause is really religion; or whether it is a symptom of the global
6
syndrome, of course, religion cannot be regarded as the sole culprit of social tension and
unrest. Nonetheless, this is a worrisome situation for all of us, since at least in the recent
generations, such tensions and scale of clashes never used to happen, but they seem to be
starting now. Indeed, the scary scenarios demonstrated by the current developments of
religious intolerance have become topics of discussion among people across the nation.
Furthermore, in some parts of the country there were isolated incidents that some Muslim
university students took to the streets protesting that public school authorities interfered with
their free exercise of religion. These students complained that public school authorities ban
prayer in school campus, and prohibit Muslim school girls from wearing headscarves, hijab,
as well as veil.

This thesis will investigate why under the existing constitutional frame work religion
‘related’ conflicts and tension is increasingly becoming a subject of concern? In order to
evaluate and understand the actual challenges and the ensuing problems of our secular State
vis `a vis religious freedom, this study focuses on three interrelated themes. The first
concerns the scope and content of religious freedom as enshrined in the Federal Constitution.
The second theme focuses on how the constitutional limitations on religious freedom are
interpreted and implemented, and what are the guiding principles and standards that justify
limitations. The third theme emphasizes on how our constitutional secularism is theoretically
grounded and practically implemented.

RATIONALE

RATIONALE OF THE STUDY:

Looking into the present trend in our society deep division which is not easily
compatible or compromisable, Delicate issues of convincing people to forgot and forgive
past wrongs and provide catalyst to harmonize, the divergent element and proponents of
various faith. In fact if we go deep into any faith, no faith teaches conflict and chaos. Every
faith teaches infect on division and shall not encourage discrimination on the basis of caste,
creed and religions. In the turmoil- ridden society like ours, we have to take care. We should
proposed secularism itself as a religion. Specially, more particularly the students of The Lok
Sabha (House of the People) is the lower house and the supreme legislative body in India.
For any society to developed and blossom the substratum should be a socialists, a secular
and integrated Nation. Without secularism every nation finds no peace but only conflict, no
progress at all. The history has witnessed time and again racial conflicts and religious wars.
7
Disturbing the peace and tranquility of mankind. It "Democracy is to survive; we have to
take care not to sleep in to sleep into factional wars and religious disputes. It is aptly
observed by the highest court of our land, the Supreme Court of India, that religion is
considered as private avocations, but not a theme in our public life. We have to evolve to
provide techniques, a new in sight to inculcate a new behaviour altogether in the minds of
law students as teachers as practitioners, as judge and the legal idea and the legal perspective
of Unity, integrity and fraternity. The present study of mine is focused on how to bring about
unity in thought, word and deed, in diversity. We are in the midst of a volcanic state which
may irrupt and explode at any time. The present state of society is so vulnerable that a small
event on an incidental can explode the whole nation or the continent. Whatever we do,
however we do, it affects others and the nation. The freedom of religion is a fundamental
right guaranteed under the Indian constitution article 25 - 30. But, according to many
observers this right is being exploited today for advancing dubious ends, and at times to
justify claims to political power and violate the fundamental rights of others. We should
therefore, create an awareness of its scope, limits, and accepted practice, that allows us to
define them for even fundamental rights need a frame work. Given the escalation of
religious intolerance by non-state actors in our country, this study makes a modest attempt to
foster open and constructive discussion among academics and encourage interfaith. It also
highlights the corresponding role of the State in combating intolerance.

OBJECTIVES:

1. The basic objective of the present study is to analyze the past and present the
concept of secularism and right to religion and discuss problem and issues and
challenging to it.

2. To analyze the legal frame work pertaining to freedom of religion and to flesh out
the scope and content of this right as well as to examine the nature of limitations in
light of international standards.

3. To investigate the notion of our secularism and its practical impact on real life and
to highlight what model of neutrality is sought to be followed.

4. To explore the contemporary legal controversies, political, and social problems

and challenges that impact religious freedom and secularism.

8
 5. To assess whether our constitutional secularism is capable to bolster up the values
of pluralism and tolerance.

To observe the constitutional aspect of freedom of religion, secularism and

freedom of religion in India. To present the views about international covenants on
civil and political rights and international covenants on economic social and cultural
rights in India. To examine the interdependence of religion, secularism and human
rights in India

HYPOTHESES

HYPOTHESES OF THE STUDY:

1. Despite secularism being an integral part of the constitution, it was never possible
to achieve complete separation of politics from religion.

2. Secularism has been conceived by every institution differently, thus causing

problem in achieving it in true sense.

REVIEW OF THE LITERATURE

REVIEW OF LITERATURE OF THE PROJECT:

1. Name of Author: Jaques Berlinerblau

Subject: How to be Secular A call for Arm for Religious Freedom

Finding: Secularism is the process whereby the influence of religion is removed

from public life. In the United States, there is a standing principle of a “wall of
separation” between church and state, enshrined in the First Amendment. The only
real debate regarding secularism is whether there should be freedom of religion or
freedom from religion in society.

British writer George Jacob Holyoke first used the term “secularism” in 1851,
although it was largely coining a new term for ideas that had existed for centuries.
Holyoke, an agnostic, was not critical of religion, but desired a social order separate
from religious influence.

Politically, secularism separates religion and government into separate spheres,

reducing civic reliance on religious laws as well as protecting the rights of

9
 individuals to worship as they please. Modern democracies are held to be secular
societies, characterized by the inability of religious leaders to influence policy.

2. Name of author: Madhav Godbole, Madhav Godbole was the former Union Home
Secretary and Secretary, Justice, Government of India.
Subject: ‘Is India a Secular Nation?

Findings: The It must be stated that India would not have been either a parliamentary
democracy or a secular nation, to whatever degree it is, without the firm commitment
of Jawaharlal Nehru and Vallabhbhai Patel to these precepts. The Indian Constitution
is one of the most explicitly secular Constitutions in the world though the founding
fathers of the Constitution could not agree on calling it 'secular' for fears that it would
be perceived as anti-religious or irreligious in the Western sense of the term. It was
felt that by calling it secular, the Constitution would be denuded of the ethical and
moral underpinning of the religious precepts which are so necessary for the
governance of the country. This deficiency was made good during the Emergency in
1976 by the Forty-second Amendment by the inclusion of the word 'secular' in the
Preamble of the Constitution

3. Name of author: Sumbul Fatima

Subject: ‘Secularism in India: A Myth or Reality

Findings: First is the principle of liberty, which requires that state permit the
practice of any religion, within the limit set by certain other basic rights. Second is
the principle of equality, which requires that the state do not give preference to one
religion over other. The third principle is neutrality which is best described as the
requirement that the state not give preference to the religions over non religions and
which leads in continuation with liberty and equality principles, to what is known in
US constitutional law as the Wall of Separation doctrine namely, that the state do not
involve itself with religious affairs or organizations.

4. Name of author: Md Musa Ali, Assistant Professor, Department of Education,

Aligarh Muslim University
Subject: Secularism In India: Concepts, Historical Perspective And Challenges
Findings: Sometimes, the word secular is used as a contrast with the word religious,
which lead people to believe that secularism is opposed to religion. But in reality
rather than remaining opposed to religion, secularism takes a dispassionate view in

10
 running the affairs of the state. In the context of India, it basically connotes treatment
of all religions on a footing of equality and ruling out any discrimination. Hence,
secularism means separation of the state, politics and non-religious areas of life from
religions and religions being treated as a purely personal matter (Chandra, 2008). So,
when India is said to be a secular state, it only means that the state will not identify
itself with any particular religious faith and that no person shall suffer any disability
or discrimination on the basis of religion.

5. Name of author: Tony Meacham

Subject: The Constitutional Context of Secularism, Religious Freedoms, and the

State

Findings: India however never had religion in a comparably organised form in the
shape of the Brahmanical order sufficiently organised that it posed a threat to
government, where religion needed to be pressed out of the public sphere. 142 In
ancient India the government never sought to press any particular school of religious
thought upon the population, but rather permitted the teachings of Jainism,
Buddhism, and later Judaism, Zoroastrianism, Islam and Christianity, as well as
doctrines of agnosticism, atheism and materialism. In Europe and later in North
America, no such freedom of religion developed. 143 In more recent times, the
Indian Supreme Court noted shortly after the drafting and ratification of the Indian
Constitution that in the constitutions of the United States and Australia, freedom of
religion was provided in absolute terms, leaving the courts to derive exceptions and
limitations to those freedoms. However, Articles 25 and 26 of the Indian Constitution
contain limits to the freedoms contained therein.

6. Name of author: Mahipal Singh Lamror

Subject: Secularism and Freedom of Religion in India, International Journal of Arts,

Humanities and Management Studies.

Findings: Looking at the various constitutional provisions, the answer is „yes‟. The
ideas of secular state have clearly been embodied under the Indian constitution and
the provisions are being implemented in substantial measure. But the conditions
after independence have posted a challenge before secularism of India for a numbers
of time .Sometimes it is also alleged that by common civil code, the existence of
minorities in India is in danger or it is an assault on the identity of minorities. India

11
 being still a traditional nation that contains no one, but many traditions owing their
origin in part to the different religions that exist here. While India carries with it
many traditions it has managed to retain the secular character of its polity, while in
many countries especially from the third world, a secular authority has crumbled in
face of conflicting traditions. In sum up, it may be submitted that it is beyond the
scope of this paper to outline the implications of the conceptual failings of
secularism in India. The judiciary is trying to strike the balance in the harmonious
way but the people of India should not forget the dream of farmers of the
constitution and the ancient philosophy of Sarva Dharma Sambhav.

OPERATIONAL CONCEPTS AND VARIABLES OF THE STUDY

The following are the terminologies that are used in the research:

1. Secularism: Secularism means equal treatment of all religions by the state.- With the
42nd amendment of the constitution of India enacted in 1976.[1] the Preamble to the
Constitution asserted that India is a secular nation. However, neither India's
constitution nor its laws define the relationship between religion and state. The laws
implicitly require the state and its institutions to recognise and accept all religions,
enforce parliamentary laws instead of religious laws, and respect pluralism.

2. Freedom of Religion: Indian constitution in its Part III provides endorsement to

freedom of religion in India. This freedom is reserved not just for Indian citizens but
is also conferred on anyone who resides in India. It becomes amply clear from the
words of article 25 which states that “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, practise and propagate religion.”

Further the Indian state is also empowered to regulate matters incidental to religion
or in other words secular activities associated with religious practices but the state is
not permitted to interfere with the religious matters as such. What the state can
regulate under article 25(2)(a) are the activities which are really of an economic,
commercial or political character though these may be associated with religious
practices. Further religious denominations have also been given freedom to establish
and maintain institutions for religious and charitable purposes; to manage its own
affairs in matters of religion; to own and acquire movable and immoveable property

12
 and to administer such property in accordance with law. To sum up, the Indian
position on the freedom of religion entails non interference of the state in religious
matters and the only permissible interference is confined to matters incidental to
religion. This is a skeletal model of Indian secularism. How this skeletal model
works out when life and blood are infused into it is a matter of ongoing observation.
3. Communalism: It is a term used in South Asia to denote attempts to construct
religious or ethnic identity, incite strife between people identified as different
communities, and to stimulate communal violence between those groups.[1] It derives
from history, differences in beliefs, and tensions between the communities

4. Interpretation: Interpretation meant the process by which courts seek to ascertain

the meaning of legislation through the medium of authoritative forms in which it is
expressed.

RESEARCH DESIGN

RESEARCH DESIGN OF THE STUDY:

Nature of the Study: The methodology adapted for the present study is doctrinal in nature
and Present research is an exploration, descriptive and explanatory in nature. This study is a
historical and descriptive approach, based on documents and published materials which are
relevant to the present study. The study is based on the analysis of the existing Constitutional
law, statutory provisions.

Source of Information: -The source of the study is basically secondary in nature. The
material has been collected from the authoritative publications and has been supported with
the cases from the legal journals. The main sources of my thesis are researches in Indian
history. I have used books by Indian scholars quite a bit, as Researcher think that it is fruitful
to be familiar with the views of both western scholars and “domestic” Indian scholars.
Indian society is very complex and therefore these researchers might have very different
ways to explain and interpret the history of India. Researcher has worked. Researcher have
familiarized with less famous researchers. How much of the research literature I have been
able cover, is hard to say. Researchers have believed that, Researcher have covered most of
the point of views that exist on the study of the Indian secularism, my primary sources are
the archival material available at the Archives of the ministry of India. Moreover, Researcher
have consulted a member of secondary works relating with secularism albeit, there are some
books that serve both as primary as well as secondary sources. I have study the LokSabha

13
Debates from December 1992 concerning the demolition of a mosque in the town of
Ayodhya, and also examined facts about Operation Bluestarjuly1984 that prime Minister,
Indira Gnadhi ordered to restrain the rise of Sikh militants. Researcher feels that religion and
politics should be kept in different spheres in society, religion in the private sphere and
politics in the public. Indian secularism, on the other hand, means that this division is not
that strict but the state is allowed to support religions equally. The source of collection are
mainly base on acquiring data information, facts are collected from statutory provisions,
judgments', historical records and contemporary thinking and concept and practices.
Interview with some secular activist and advocates. The primary sources include published
documents of international covenants, and the cases of Supreme Court in India and other
relevant research materials. The secondary sources consist of books, articles which appeared
in journals and news paper, website and literature by various scholars and jurists, reports of
committees etc.

LIMITATIONS OF THE STUDY

India is a multi-religious, multi-lingual and multi-cultural society where peoples are

having different faith religious values, ethos and practices. The constitution of India is
safeguarding religious practices through fundamental rights. In a democratic country like
India deep conflicts emerged on religious concerns especially on matters related to religious
equality. However the preamble of Indian constitution declares and prohibits discrimination
against members of particular religion, race, caste, sex, or place of birth. The word secular
was inserted into the preamble by the 42nd Amendment of Indian constitution for
maintaining equality among the Indians. Hence, secular values of non-discrimination on the
basis of religion, caste etc were used in mere contextual basis in India. The secularism in
India is prevailing for the sake of vote bank purposes, the political parties misuse secular
values for their party gain.

So, The paper mainly focus at the incidences of collision between secularism and Freedom
of religion in India enshrined under Indian Constitution.

TIME SCHEDULE

The researcher has completed the research within the time period of Approx three months

Sr. No. Particulars Time(days)

1. Framing of the title and its approval 7

14
 2. Collection of Material 20
3. Formulation of problem and objectives of study 15
4. Review of Literature 11
5. Chapterisation 32
6. Conclusion, recommendation and suggestion 15
7. Total 100

POSSIBLE CONTRIBUTION OF THE STUDY

The findings of the research project will be very significant for the Government, as it
would help the it in judging the probable reasons of the apprehensions among the secularism
and right to freedom of religion. This study makes efforts to focus incidences and judicial
interventions and case law to infer various reasons for religion of India. Underlying clinical
and ethical factors either influencing or occurs because of breach of Freedom of religion
found in cases.

CHAPTERISATION

 Chapter 1: Secularism - Introduction

Chapter one deals with introduction, the need for the study, scope of the study,
review of literature, objective of the study, hypothesis, and research methodology objectives
of the study chapterisation and scope of further study. The present scenario of ‘Secularism’
in India is indeed a cause of concern. Today, the secular character of the Indian democracy is
considered to be under threat. The razing of the Babri Mosque in Ayodhya (Uttar Pradesh)
led to riots and killings by Muslims and by Hindus. The recent massacres of innocent Hindus
in Godhra (Gujarat), presumably ignited by smoldering Muslim resentments against the
Hindutva proponents over Ayodhya, touched off a larger massacre of equally innocent
Muslims in tit-for-tat killings that undermined yet further the amity under which these
religious communities had lived earlier in Gujarat State in an atmosphere of secularism.

 Chapter 2: Secularism: Concept, Scope and Its Importance

This chapter attempts to find out the secularism, origin, meaning it attempts to define the
term of' ' secular', 'secularism' and secular state. The origin and meaning of the concept of
secularism, its various components and their linkages with each other

15
  Chapter 3: Secularism under Indian Scenario
An Indian Secularism Researcher have study the concept of secularism and how it
derives from the framework of the modern idea of secularism and development. On my
opinion, Indian secularism is a product of this reasoning. This gives then a background for
understanding the concept of secularism. The concept of secularism in India it attempt to
identify historical background and concept of the Indian constitution, Presents study of the
Indian political history. We present a historical survey beginning from ancient history to the
time of making of the Constitution of modern India as a nation- state. We pay special
attention to some important political developments and ideas that shaped the culture of
religious diversity and tolerance, and the history of Indian national movement for the
independence of the country. We highlight the importance of the secular nationalism, which,
under the leadership of Gandhi, the Father of the nation, became the national mass
movement for the creation of a modern secular democratic State in India. Researcher also
present the opinions of the framers of the Constitution on secularism as voiced during the
debates on the subject in the Constituent Assembly and the opinion of the scholars. We
follow this process of investigation to obtain, from a historical perspective, a clear idea of
the development of the Indian form of secularism enshrined in the Constitution of India,
even though the secular provisions of the Indian Constitution are, for the most part, adopted
from the political principles of the Western countries.

Chapter 4: The freedom of Religion under the Indian Constitution

Chapter Four deals with the secular provisions of the Indian Constitution and allied
articles as interpreted by the Indian judiciary and political and judicial pronouncement with
regard to the right to freedom of religion in India, have been examined and analyzed in detail
subscribe to the Indian Philosophy of secularism. Most of our study in this chapter revolves
around articles 25 to 30 of the Constitution, which guarantee individual and corporate
freedom of religion, which guarantee individual and corporate freedom of religion. These
provisions point out that the framers of the Constitution intended a form of secular polity
that respects all religions with equal regard and acknowledges the place of religion in the
society. However, the right to free exercise of religion is subject to a constitutional
framework of egalitarian social order, imbued by the principles of welfare State, public
order, morality and health. These are expected to promote substantive values for the
enhancement of human dignity in the civil society. Hence, the State in India has wide
powers to regulate religious freedom in defance of Human rights. Moreover, when cases are
appealed against certain State regulations allegedly violating the right to religious freedom,
16
the Courts in India have the responsibility of giving judicial definition to “religion” and
“matters of religion” protected under the secular provisions of the Constitution.

Chapter 5: The Issues and Challenges to Indian Secularism and Right to

Religion

Chapter five deals with the conceptual issues and problems of secularism that have
arisen during the last six decades as challenges to the secular polity. In the backdrop of the
ideological debate and the conflicting viewpoints on secularism, including ‘Nehruvian
secularism’ and the thesis of ‘positive secularism’ as propounded by the BJP/VHP/RSS
combine, an attempts has been made to study the impact of State policies on secularism, the
challenges emanating from majorityminority relations, communalism, casteism, etc. and the
impact thereof on electoral politics and power equations.

Chapter 6: Conclusion and Suggestion

The present study relates to overall assessment of the concept of Secularism in our
country right from ancient period to present day. The main aim of this study is to review of
the changes in the philosophy of Secularism since independence and to report on the existing
conditions of this concept and also to study the existing legislative and judicial decisions and
other provisions intended to protect the interest of the people India relating to their Religion
and thought about Secularism.

Secularism- Comprehensive Introduction

Before India gained Independence "Hindustan" was recognized as a country and a
sub continent. When the question of drafting, the constitution of India, there arose a
fundamental feature of the entire constitution has been deemed to be absolutely secular. If
we refer to the preamble of the constitution, it explicit in the language of the preamble itself
and very clear in its concept and content, the Indian state is describe as a secular,
Democracy, socialist, sovereign Republic.

The preamble of the constitution adopted by independent India on 26thNovember,

1949(effective from 26th January, 1950) declared India as "Sovereign Democratic
Republic". Till the 42nd Amendment in 1976, the constitution did not contain the word

17
"secular" although the spirit of secularism is evident in the various Article of the
constitution. There were however efforts in the constituent Assembly to make a specific
mention of the principle of secularism in the constitution. During discussions on the Draft
constitution, Prof, K.T. Shah and Kamath tried to get the following provisions included in
the constitution.

"The State in India being secular shall have no concern with any religion, creed or
profession of faith: and shall observe an attitude of absolute neutrality all matters relating to
the religion of any class of its citizens or other person in the Union11."The state shall not
establish, endow, or patronize any particular religion. Nothing shall however prevent the
state from imparting spiritual training or instruction to the citizens of the Union12. However
all such amendment was summarily rejected?13 The reason as to why the word "secular" was
not in the constitution adopted, is attributed to the fact that "so ingrained is the Indian
concept of the secularism in our national culture that it did not even occur to the architects of
the constitution that they should specially mention it as one of its perambulatory
Principles14.

Secularism as a political concept gained prominence in the 1940s, after the Muslim
League demands a separate home land for the Muslim on religious and Culture grounds. The
congress party objected to the demand by pointing out of the syncretism religious tradition
of India, Affirming its faith in Secularism. Congress said that it did not contemplate
misusing religion for accomplishing its political objectives, but believed in confining
religion to the private sphere. It assured that the post- colonial state would not discriminate
on the basis of religion. Thus the congress invoked secularism" to distinguish its politics
from the communalism of the Muslim League15.

But prior to and even during the independence Movement, Indian national leaders like Bal
gangadher Tilak and even Mahatma Gandhi used religion and religious symbols to unite
Indian masses against British colonialism, by for example, providing a nationalistic

11
Quoted by justice Jahgirdar, in his articcommunalismle, Secularism in India. The Inconclusive Debate,
International Humanist and Ethical Union
12
Constitute Assembly of India, vol.VII (Available at http//Parliament of
india.nic.in/is/debate/vol7p20a.htm.
13
Lavlare, Arvind, quoting Dr Subhash kashyap,in The counterfeits and Their Continuous Issues, May
11.1999.(Available at http://www.rediff.com/ews/1999/may/ 11arvind.htm)
14
AdvaniL.k, (Available at http:/www.rediff.com/news/1998May//27cons.ht
15
Rao Bqadrinath, The variant meaning of secularism in India: notes toward conceptual clarification,
Journal of Church and State, witer2006. Badrinath Rao is an Assistance Professor of Sociology
and Asian Studies, Department of Social science , Kettering University, Flint
18
interpretation of the Bhagvad Gita, holding up Ram Rajaya as the post independence
scenario, and popularizing the celebration of the birthday of shivaji and Ganesh Chaturthi
festival to promote communitarian solidarity among the Hindus. Further, even during the
British period, the government was drawn to interfere in religious affairs of both Hinduism
and Islam, which is continued in independent India in the form of establishing Departments
of religious Endowments, Wakf Boards, appointing Trustees of temples and Wakf, subsiding
Hajj pilgrimage, etc; and to deal with the issues concerning its reforms. Under the
circumstances, it was difficult for the Indian State to divorce itself from Religion.

The word "Socialist" and Secular "were added to the preamble of the constitution by
the 42nd constitutional Amendment Act of 1976. The word "secular" was meant to imply
equality of all religions and religious tolerance. However, H. M. Shervai, an authority on
constitution, opines that the words "Socialist and Secular are ambiguous and should not have
been inserted in the preamble without a reason16. Inviews of the 42nd Amendments,
secularism has become an integral part of the basic structure of the constitution and the
Supreme Court has also decreed as such in the case of S.R. Bommai vs. Union of India17,
and also Adi Vishweshwar of Karachi V Wishwanath Temple,Varanshis State of U .P.18

The "unity "and "Fraternity" of the people of India professing numerous faiths has
been sought to be achieved by enshrining the ideal of a "secular state". This means the state
protects all religious equally and does not itself subscribe or uphold any religion as the
religion of the state. The question of secularism is not one of sentiments but one of law.
There is no provision is the constitution making, any religion the 'Established Church' as
some other constitution do. The state has no religion, nor it will favour any religious dogma,
not -religion, it isn't in favour of any religion nor the state structure and the edifice is not
based on any religious structure. The essence of the constitution of India is not religious not
sectarian, but absolutely secular.

The constitution, as such is not opposed any religion, or in favour of any religion. It
is absolutely and wholly secular in its character. On the other hand our constitution provides,
in Art,25[1] that every person in guaranteed the freedom of conscience and the right to
profess, practice and propagate religious beliefs, which a person is adhering to, is only a

16
Available at http// www.legalserviceindia.com/Article/ 140-42nd Constitutional-
Amendment.htm.
17
S.R. Bommai and Others. Union of India and Others(AIR1994SC, 1918)
18
Vishweshwar of karanchiVishwanath Temple, Varanshiys State of U .p 8 [1197]4:s.c.c [para26]

19
constitutional right. Which is not absolute, but subjected to public order, morality and the
others provision of the part III of the constitution e.g. Pakistan is recognized as an Islamic
Republic of Pakistan, and Nepal is recognized as a "Hindu Religious State" but India is not
describe as a state belong to any religion. India as a multi lingual and multi religious state,
professing innumerable faiths. The point is the state has no role to playing matter of religion.
India is a multi lingual, multi cultural, multi religious country. Therefore, in matter of
administration, governance and in judicature religion has no role to play.

Religion is an integral part of civil societies, its importance both to the individual and
society has been universally recognized. Even the countries with professed anti- god and anti
religion ideology have included the right to religion as a fundamental rights in their
constitutions, However, the shape and structure of this right differ from country to country to
depending upon their socio-cultural environment an more particularly on the constitutional
ideology of the state. The present study is an attempt to examine the concept of secularism
and the rights to freedom of religion in India from the ideological perspective of Indian
secularism.

The present scenario of ‘Secularism’ in India is indeed a cause of concern. Today,

the secular character of the Indian democracy is considered to be under threat. The razing of
the Babri Mosque in Ayodhya (Uttar Pradesh) led to riots and killings by Muslims and by
Hindus. The recent massacres of innocent Hindus in Godhra (Gujarat), presumably ignited
by smoldering Muslim resentments against the Hindutva proponents over Ayodhya, touched
off a larger massacre of equally innocent Muslims in tit-for-tat killings that undermined yet
further the amity under which these religious communities had lived earlier in Gujarat State
in an atmosphere of secularism.

Apart from these, the unspeakable atrocities of 1984 against the Sikhs in Delhi after
the assassination of Prime Minister Indira Gandhi; and an occasional slaying of proselytizing
Christian missionaries clearly presents a grim picture of “Indian Secularism”, moreover, the
intrusion of religious passions and caste loyalties into Indian politics casts serious doubts
over the claim of India to be a secular and theocratic state. This is also highlighted from the
changing trends of the decisions given by the Hon’ble Supreme Court of India, which is
regarded as the guardian of constitutionalism in India. The Hon’ble Supreme Court of India
in Sardar Taheruddin Syedna Saheb v. State of Bombay19, in this case first time

19
AIR 1962 SC 853, 871
20
explained the concept of secularism wherein Ayyangar, J., explained: "Articles 25 and 26
embody the principle of religious toleration that has been the characteristic feature of Indian
civilization from the start of history. The instances and periods when this feature was absent
being merely temporary aberrations. Besides, they serve to emphasize the secular nature of
the Indian democracy which the founding fathers considered to be the very basis of the
Constitution."

The probable cause for the threat to “Secularism” can be attributed to the large scale
religious turmoil at the international level. The after impact of the 9/11 has, as a matter of
fact, led to the rise of religious fundamentalism across the world which has grown itself into
religious fanaticism probably because of the singling out of one particular religion, despite
the fact that the act was done by a handful of people. This indifferent approach of singling
out a religion has lead to large scale resentment amongst people of various walks of life.
India as a part of the globalised world has been adversely effected by this turmoil.

The demolished Babri-Masjid not only brought into sharper focus the estranged
relations between Hindus and Muslims in India today but also the larger issue of whether
people belonging and deeply committed to different faiths can live together. Moreover, the
demolition was widely believed by non-religious people as a frontal attack on the secular
constitution of India. The ferocity with which militant Hindus attacked and challenged the
constitution left many people wondering whether believers and non-believers could live
together at all. It was earlier thought that the ideology of secularism enabled people with
different faiths as well as believers and non-believers not merely to live together but to live
together well. The demolition certainly put to rest any complacence in the possibility of
secularism automatically solving the vexed problem of diverse people living together.

A year ago, on a Monday (3rd May 2006) morning an old Dargha in Vadodra was to
be removed. This was a dargah that had withstood the pressures of time and weather for
more than 200 years. The dargah finds first mention in 1912, in a municipal survey under the
princely state of Baroda ruled by Siyajirao. The dargah was said to have been built in honour
of Syed Rashiduddin Christi and was a site where programmes were being held every day,
ironically fully funded by Hindus. Unfortunately its location in Gujarat was its biggest
drawback.

Gujarat today has become a shameful blot on India's struggle to maintain her
pluralistic ethos. Minorities there have become a condemned lot living in fear of threats to
life and property. As much as we would like to see strong protests from the public to
21
preempt such meaningless demolitions, we will have to resign ourselves to the fact that for a
long while now the demoralized citizens of the state have become too heart weary and feeble
to raise their voices in order to protect identity, ideology or property.

The dargha was demolished; everyone with a basic understanding of the human
psyche would have anticipated riots as a response. One fails to understand why then the
Municipal Corporation of Vadodara and the Police failed to anticipate this outcome. This
definitely leads us to the uncomfortable zone that questions not just the credibility of these
officials, but the system which is responsible for systematically creating such instability. In
this act of ravagement, was the state perpetuating communalism? What happened to the state
that was committed to building a Secular Nation?

It also brings us to questions like the ones that well-known Marxist, Sitaram Yechury
raises in one of his speeches about the situation in Gujarat post-Godhra. He says, “The
question here... is how to maintain communal harmony and how to strengthen the secular
and democratic republic in the country... The complaint is that thousands of riot victims in
Gujarat are still not getting justice. About POTA detainees, the POTA Review Committee
says these arrests are not justified. The question is not whether economic development is
taking place in Gujarat or not, the question is not whether this development can be expedited
or not, the question is whether we would be able to preserve our secular democratic republic
and recent. Events need examined in this context.20

But the man and his party, seen to have been crusading for victims of Gujarat, find
themselves in a cleft-stick on Singur. The proposed SEZ allotted to one of India's top-most
Industrial houses is embroiled in a sea of controversy. Farmers are being displaced from
their livelihood with very little compensation. We see Mr Yechury tongue-tied on the issue
of Singur, where the same party that crusaded for Gujarat victims is creating havoc in the
lives of innocent farmers of Singur. They also find themselves on sinking sand with the
Nandigram episode. But these are not isolated instances which make me feel uncomfortable.
Remember the riots in Mau and Bhiwandi, industrial towns, the former in Uttar Pradesh and
the latter in Maharashtra..

20
Religious and political communities in India Neera chandhoke, Beyond Secularism.

22
 The world is of course not as bleak as we make it out to be. There are heart-warming
stories of togetherness between diverse communities which need to be ferreted out and
showcased as examples of the upholding of human values. One such story is about the
people of Pende village which you will read in the chapter on secular action. I am absolutely
sure that if we probe deeper into our.

The Supreme Court has recently upheld a ban on Dr. Praveen Togadia restraining
him from entering a district in Karnataka and from participating in any function in the
district for a period of 15 days as there were several instances where on account of the action
of Dr. Togadia, and his speeches and acts of organizers function, there were intervene to
avoid disturbances of social tranquility and communal harmony. Day-to-day lives we will
find similar examples in every nook and corner.21Three coaches of a train carrying devotees
belonging to the Hindu community back home from a place of pilgrimage in Ayodhya
Northern India, were burnt down by a mob from the Muslim community on the 27 th of
February 2002, in which 57 people, including women and children, were burnt alive and
charred to death.22The attack could be seen as an act of revenge against the holy and
disputed site in Ayodhya and against the expanse of Hindutva. This attack was followed by
the second largest communalist riots in the country since the beginning of the 1990s. The
Hindu nationalists wanted to start the construction for the temple for God Ram, which had
been pulled down during the Muslim era. Until 1992, on the place stood the Babri Mosque,
but the Hindus demolished it.23

The Hindu Nationalist Organizations were able to continue their agitation in the state
of Gujarat, while the government of India was not able to respond to the riots quickly
enough. The organizations circulated flyers which demanded people to boycott Muslim
shops and not to watch movies whose protagonists were Muslims!15 Some suspects that
there was no interest on the side of government to respond and has let the rioting continue.
The opposition and several intellectuals have demanded that the Chief Minister of Gujarat,
Narendra Modi, and the Union Home Minister, L. K. Advani, resign. The Prime Minister of
India has also got a share of the criticism.16 The violence in Gujarat has been referred to as

the genocide and pogrom of Muslims,17 and low-scale rioting still continues.

The Hindu Nationalist Party, the Bharatiya Janata Party (BJP), has shifted to promote
the Hindutva message through the fight against terrorism, by claiming that the Muslims are
terrorists. Prime Minister Vajpayee (the BJP) took a strident pro-Hindutva line at a public

21
State of Karnataka v. pravinbhai Togadia (2004) SCC. 684 at page 692
22
Introduction Herald Tribure February 28, 2002. Front page.57 Indian Today month 10, 2002.
23
The rising death to tolllcan is Followed from the Hindustan Times March 1-5-17, 2002.
23
rally. He claimed that Islamic terrorism and not Hindu extremism was the real danger to
India and the world24 and accused Muslims of lighting the fire. Vajpayee also blamed the
European Union and the USA for their involvement in India’s internal affairs after they had
expressed concerns about the violence in Gujarat, by saying that India does not need any
lessons in secularism from the West.19 The Chief Minister of Gujarat, who is also of the

BJP, posed the Muslim attackers in Godhra as terrorist supported by Pakistan.20

After the storming in Gujarat the situation has heated up in Jammu and Kashmir as
well. In the late spring in 2002, the attacks in Kashmir became more frequent, as the state
elections were coming closer. So far, the Kashmiri separatists groups have been against
participation in the elections because that would legitimize the rule of India in Jammu and
Kashmir. However, some groups have got tired of the constant violence and have considered
participation as a solution to the dead-end situation. The issue of participation caused
division among the separatist groups and as a consequence a moderate leader of a major
separatist party was shot. The situation suddenly got worse after a terrorist attack on an
Indian army camp, and the diplomatic relations between India and Pakistan broke down. The
international community reacted quickly and tried to moderate between the quarrel mongers,
but without any success. The situation was close to a nuclear war, as both of the countries
are equipped with nuclear weapons.

These Recent developments show that communalism is still a very ‘hot’ and pending
issue in India. For the last six years, India’s political landscape has been characterized by
political fragmentation and the rise of caste and regional interests, and no national party has
managed to command a majority on its own. India’s current Hindu nationalist government is
the fifth government in two years, with the BJP depending on the support of 19 other parties,
some with a primarily regional focus, to form the National Democratic Alliance.

Secularism in the Indian context means an equal status for all religions and equality
for all religions means that faith in one’s own religion must not detract one from respecting
other religions. It can only matter if religion is seen as a source of political power. As early
as 1994, it was noted by the Supreme Court that rise of fundamentalism and
communalization of politics is anti secularism. They encourage separatist and divisive forces
and become breeding grounds for national disintegration and fail the parliamentary
democratic system and the Constitution. Who then is responsible for keeping secularism and
national integration a live?

24
Hindustan Times march 5-2002 and Set of riot’s vows
24
 In the context of a free play of social forces where it is not possible to bring about a
voluntary harmony, it is the State which has to step in to set right the imbalance between
competing interests. It is India’s misfortune that although it was founded and meant to
continue as a “secular” state, religion is seen as a source of political power and therefore
colors governmental action. How can an Indian hope for neutrality in governance if the
government is religiously prejudiced?

Is India a secular state and society, and can it is? What are the forces, secular and
non-secular, currently operating in the Indian polity? Can our Constitution and governments
live up to the large secular claim made by our national leadership! Do religion and Para-
religion infiltrate into a geo-secular glance reveals that Pakistan is openly Islamic in polities
while Bangladesh is secular by constitutional assertion? People’s China and the Soviet
Union possess a flavor of anti-goodish. Britain has an established religion coexisting with a
democratic set-up and America has built a wall of separation between God and Caesar. India
that is Bharat is a curious hybrid secular in text but sacerdotal in attire, with a leaning wall of
State-Church separation and suffering from a constitutional solicitude for religious
minorities.

The paradox of liberal religious thought and communal belligerency, of

constitutional commitment to a social revolution and the polities of religion which even
revlulutionary parties play, and the phenomenon of two ‘total’ religions that regulate worldly
and other-worldly affairs-can this vast Indian mosaic fulfill a secular promise or should we
so condition the genetic code of the nation a as to ensure an Indian humanity not blotted by
deities and divided by Gods but spurred on by science and socialism and informed by
cosmic spiritualism?25

Secularism is a recognized constitutional goal and is a part of the basic structure of

the constitution which cannot be amended in exercise of the powers of the amendment
granted to parliament under Article 368 of the Constitution. It is a facet of the right to quality
which is the cement which holds the citizens of this country together. Sixty seven years ago
"we the people of India "gave to ourselves a constitution imbued with the spirit of
secularism. it was hoped , would prevent religious conflict escalating in to a bloodbath as
seen during the partition , but an end to communalism and scientific temper .But we had
"miles to go" before secularism could be realized in political life. Somewhere in the course
of these six score and seven years we "slipped and floundered ", the result being a confused

25
Article Indian Secular and Religion Philosophy.Under siege. legalserviceindi.com.htm12/11/11
25
cacophony of voices each claiming to be the doyen of secularism As a consequence, the very
concept came.

What is secularism? What is the major problem, which increasingly pose challenges
to secularism in India? Does the emergence of such challenges signal? "Demise of
secularism 'in India? Is secularism, to use madans words', impossible, on practicable, and
impotent? Or does secularism in India have the capability to transcend these challenges? In
view of the diabolic the end of increasing communalism and fissiparous tendencies, these
questions assume added significance.

India in recent years, has been witnessing an escalation of religious revivalism,

fundamentalism and religious–communal identification. The rising tide to this fissiparous
force threatens to engulf Indian social and political life. Against the back drop, secularism
has come to the center stage of social and political discourse in the country and various
critical issues pertaining to its interpretation, practice, and application are being raised.

The significance of secularism for emerging out of the holocaust of partition was self
evidence secularism accordingly, was accepted as the mainstay of the constitution, but was
not precisely defined. An analysis of the debates of constitution assembly, however, reveals
a rejection of the western concept of secularism that is absolute separation of state and
religion.26 and acceptance of the Indian concept of serva dharma sambhav or equal regard for
all religions Secularism is thus one of the fundamental tenets of the constitution, yet the
express declaration of India as a secular state can only with the enactment of the 42 nd
Amendment of the constitution [1976]. The word in emphasis was added. Nothing else in the
Constitution was changed to invest the Constitution with secular character. By putting on a
Gandhi cap one does not become Gandhi or a Gandhi an.

The preamble now proclaims India as secular state. The constitution does not Neither
establishes not state religion nor does it create any category of preferred citizens. Secularism
is reinforced through material provisions of the constitution Indeed. It is writ large in the
entire constitution fundamental rights are guaranteed to every Indian citizen regardless of
religion, caste, creed, race, Besides this the constitution expressly guarantees individual and
collective freedom of religion, which included the freedom to profess, practice and prorogate
religion and grand's religion denomination, the freedom to established and maintain
institution for religion charitable propose along with freedom to manage their own affairs in
matters of religion. No special taxes can believed for promotion of any particular religious

26
(C.A.D., VoI, No.19, p.815.) Rejection of this Amendment did not, of course, mean rejection of the Secular
State which it embodied.
26
institution in state-run educational institutions is prohibited and no person can be compelled
to attend religious instruction or religious worship in educational, institution receiving state
aid.

However, keeping in view the essential quintessence of Indian socially imbued in

superstition obscurantism and myths and the all pervasive role of religion it was generally
recognized that the state had to intervene in religion or order to the remove the resurgent
socio – religions practices in maniacal to democracy and modernization

Hence with freedom of religion is guaranteed, it is subject to certain limitation in the

interest of public order and morality health.

Secularism, it was assumed, would promote notational integration, through

elimination of religion and caste as factors in political life eradications of inequalities based
on religion and caste, egalitarians treatment of all religion groups and improving of the lot of
the depressed classes, these were the board implication of the secular ism and constitution
acceptance of the secular ideal was expected to lay the foundation for a modern society,
rooted in secularism and democracy.

At another level secularism is challenges by the ascendance of the forces of

communalism,, fundamentalism and religion revivalism accompanied by violence,
communal riots continue unabated27 ‘Meerut,’ Bombay, Bhiwandi; Ahmadabad, Surat and
marmots' recently Hyderabad are just a few cases in Pont, The 1980s and 1990s have
witnessed violent secessionist movement in Punjab and Kashmir and upsurge in the use of
religion symbols and terminology in politics.

The aggressive resurgence of majority communalism in constitutes one of the major

threats to secularism in India. The Hindu fundamentalists propound the concept of Hindutva
and Hindu state reveal and explicit aniti minority bias expressed through their tirade against
minority appeasement, separate personal law Article.370 and existence of Alighar Muslim
University etc. This leads to fears of establishment of a theoretic state. On other hand
minority communalism, too has become more assertive and aggressive as exemplified by the
agitation over the Shah Banu judgment28 and the vehement supports of separate personal
laws particularly in the wake of supreme court judgment in the sarla mrudugar
case,29significantly, the issues emphasis' by the protagonists of the both majority and

27
Indian Express, July 9, 1991
28
Mohd. Ahmed Khan v. Shah Bano Begum, AIR 1985 SC 945.
29
Sarla Mudgal v. Union of India, AIR 1995 SC 1531.
27
minority communalism are limited to religion communal ones. These issues of socio–
economic development are thus over shadowed by fundamentalism, revivalism and violence.

Communalism and communal politics constitute one of the major challenges to

secularism. The problem is, however further enhanced by the lack of homogeneity amongst
members of each community which leads to the problem of intra community conflicts. Inter
caste conflict, persistence and recurrent phenomena have become more intense and
pronounced in recent Years.

The resurgence of non secular force is accompanied by the manipulation of religion

for electoral gains by the political parties. The electoral process is the vitiated by the
predominance of communal and chauvinistic forces. Issues like Ram Janmbhumi-
Babrimasjid controversy are given prominence for electoral gain and are yielding rich
dividends, Thus communalization of the political process is accompanied by the emergence
of ‘new gave of political activist – the ram bhakts30’who are attempting to undo historical
wrongs .In the process religion to gets politicized . Increasing political role is being
appropriate by mullahs, sadhus. Sadhvis.31Punder polity by suggesting amendment in what
they call him and Hindu constitution making the contours of Hindu Rastra as well as giving
direction to votes as to how to vote.

Communalism of the society and the political process is further accompanied by

criminalization of politics. For instance sambhaji Rao–arrested under the goodness Act, was
the major of Belgium32The Islamic sevake sanghan get away with treating to be head the
principal and manager of a school for insisting on a uniform dress.

The state, too has fallen prey to the pressure and lobbing of communal organization
and groups, as illustrated by the enactment of the Muslim women [Protection of right on
divorce] Act 1986, banning of satanic verses and opening of the lock on the Babri Masjid-
successive government it is felt have played the ethnic/communal card under the clock of
secularism in order to promote their own sectionals interest. Deepak Gupta indicates what he
call the; pseudo secularism’ of successive Indian governments as ‘primarily responsible for
the emergence of Hindutva as apolitical ideals amongst a large section of the
population,33The blame it is argued rests search on the way of secularism has been practiced
over the years with liberal use of state largesse and patronage, vested interest have been

30
Geeta Puri, “The Congress and the BJP”, Indian Express, November 30,
31
1992 In the 1991 election ,there wereat least seven sadhus in the lok shabha
32
Sarjoo Katkar, “The Politics of Crime”, Indian Express, Sunday Magazine, Januar Dipankar
33
Gupta. “Communalism and Fundamentalism: Some Notes on the Nature of Ethnic Politics in India”,
Economic and Political Weekly, VoI. XXVI, Nos. 11 & 12, March 1991, p.573
28
created in every conceivable religion, sect, denomination, caste sub caste, tribe, lingustiqe
gropes, creating enormous challenging of secularism. The government has followed
inconsistent polices in dealing with communalists and communalism, political convenience
has been the guiding principle in following a vacillating polices, reflecting an inability to
deal with the crisis.

The upshot of the entire controversy is that the very basis of a secular India as being
question. It is in the back ground that the present study assumes significance. Before the
precise issues that have been raised and examined in the study and spelt out, it would be
pertinent to survey the literature on secularism.

Secularism plays a major role for the protection of the state order. In the name of
secularism the emerging forms state order over the period in the world history showing
greater turbulence. Starting from ancient period, there are number of scholar try to emulate
the secular mode of life but religious fundamentalism is an omnipresent in different form
which has a major threat to secular way of life, and it is also endangering to human rights
and the world peace.

However, over the last three decades, many ideas that form the basis of modern
democratic societies, such as civil Society, citizenship, human rights and freedoms,
secularism and tolerance have come under severe scrutiny. In many societies, deep conflicts
arise around religious matters, and around equality. Often, religious collectives demand the
right to self-determination of issues considered–by them–to be their own, and these demands
collide with individual rights to, again, religious freedom. These are thus conflicts of religion
v. religion. Today, there is an abundance of conflicts surrounding religious freedom
throughout the world. To many societies, states, courts, and scholars, these are not entirely
new.

State plays a vital role as an initiator and enforcer of values of human rights and
welfare in the society. It exercises its distinct power that indirectly influences the pattern of
religious life. It resolves inter-religious conflicts by ensuring communal harmony and by
facilitating religious acts, it plays crucial paternal role in the society. Religion plays an
important role on the social and individual life in traditional societies as that of India,
because it over emphasizes on customs and usages, and therefore sometimes it hinders
modernization of the society. Social transformation with the help of law creates practical
problem. Therefore, it is the society which prepares itself for an orderly development by
respecting paramount human values. State's decision to keep distance from all religions and
an approach of impartiality in treatment provide soberness and legitimacy for state action.
29
This policy encourages multiculturalism and this approach sets ways and limits to regulate

the attitude and mindset amidst different religious communities.31

The vision of the founding fathers was that of a nation transcending all diversities of
religion, caste and creed. They were not against any religion and they hoped that religious
differences would not affect nation's integrity. The Constitution of India envisages a new
social order free from communal conflicts and based on justice, social, economic and
political.

The Indian State continues to recognize various religions and religious organizations.
But, at present religion and society have become more interlocked. The working of the
Constitution during the last four decades and more has shown that there is increasingly
greater emphasis on religion, community and caste than ever before. Maulana Azad had said
that:

“The palm of almost every politician bears the blood stains of a bleeding
Secularism. With the process of deideologisation nearing completion,
casteism and communalism are bound to step in as successors; no matter
how illegitimate they are Now no party can think of setting up a candidate
without any caste and communal considerations. In fact the spirit of
nationalism has waned so precipitously under the impact of competitive
politics of elections that all kinds of particularistic trends are on the rise and
Indians without denominational labels are a dying species”.

30
 CHAPTER: II
Secularism: Concept, Scope and Its Importance

2.1 The Concept of Secularism

This chapter starts with the over view of the major historical developments
pertaining to religious freedom; it highlights the major events that led towards the
achievement of a complete freedom of conscience and religion. It also discusses how the
notion of separation of State and religion evolves and become one of the dominant liberal
values in the history of mankind. Then it proceeds to address the issue how the concept of
secularism is viewed from the main stream religion perspective. In connection to this the
issue of the place and role of religion in the public sphere will be discussed. In relation to
the constant tension between secularism and the freedom to practice or manifest religion,
some questions will be raised, such as what are the compelling arguments in favor of
restricting religion to private life; what are the counter arguments in favor of allowing
religion to play a greater role in the public arena, especially in politics; and how do these
competing interests be reconciled. Finally, how other constitutional democracies adopt and
implement the principle of secularism vis-à-vis freedom of religion will be examined.
Accordingly, this chapter focuses first on the meaning, origin and components of
secularism.

2.1.1 Origin of the Concept

The emergence of secularism can be traced to the social and political situation existing in
Europe during the 17th and 18th centuries. The term itself was coined by Holyoake in 1851,
but the emergence of the concept must be understood in the context of the conflict between
Church and the State, which commenced much earlier. It was through this conflict that a
gradual delimitation of the spheres of the temporal and spiritual authorities was made and
which led to the evolution of the various principles associated with secularism, viz. freedom
of religion, and of conscience, tolerance, a democratic conception of citizenship, etc.

31
accordingly, it would be pertinent to trace in brief the historical conflict between Church
and state in the West.

The problem of the relationship between religion and the State emerged with the rise of
Christianity, with its distinction between the spiritual and the temporal, “Render therefore
unto Caesar the things that are Caesar’s; and unto God the things that are God’s. “Until the
Edict of Milan (313 A.D.)34, Christians were constantly persecuted for they refused to
acknowledge the divinity of the Emperor35. With the conversion of Constantine to
Christianity, it became established as the State religion of the Roman Empire. Christianity,
which had proclaimed the right to belief, itself, became intolerant of other faiths. While on
the one hand, this close alliance led to acceptance of Christianity which heretofore had been
taboo. On the other, it led to conflicts between the Pope and the Emperors and active State
interference the powers of the State and Church via the Gelanasian theory enunciated by
Pope Gelasius I (495-496) A.D.). This theory attempted to set up a “dualism of authority” in
regard to the two spheres, while maintaining the spiritual power as the higher of the two.

The conflict between the two continued over the next few centuries. It was primarily
a manifestation of clash of interests and roles. For instance, in 800 A.D. Charlemagne
(Emperor of the Frankish Empire) had been crowned by the Pope, but in order to assert his
supremacy, Charlemagne himself crowned his son as his successor.

The period following the disintegration of Charlemagne’s empire was characterized

by political and moral decay. The Church was also affected by the decay of such values. A
reforming tendency began within the Church with the appointment of a number of reform-
seeking Popes. One of the principal aims of their reform was to emancipate the
ecclesiastical power from the temporal authority, as a result of which arose the investiture
controversy of the 11th Century. The problem mainly revolved around the role of the
temporal authority in the choice of Bishops36. This emancipation involved a substantial
diminishing of temporal authority over the Church. The Church tended to assume the roles
of a colossal supranational power with vast resources and authority. It also played a decisive
role in the Roman Empire as the Emperor had to be crowned by the Pope.

34
The Edict of Milan provided for neutrality on the part of the State in matters of religion. See Sidney Z. Euler
and John B. Moral, Church and state Through the Centuries, (Burns and Oates, London, 1954), pp.4-6
35
Ibid I
36
Ibid
32
 The struggle for supremacy between the state and Church continued throughout the
middle ages. The authority of the Church was further reinforced by the clash between
Frederic II, Emperor of the Holy Roman Empire as well as King of Sicily, and the Papacy,
which culminated in the former’s deposition and subsequent death in 1250 A.D This
struggle took another turn in the conflict between Pope Boniface VIII and Philip IV, King of
France over taxation of the clergy in which the latter emerged triumphant. Despite the
decisive victory, the Church still remained influential.

The idea of religious liberty and toleration was almost unknown in the middle Ages.
The medieval Church considered it to be its duty to force a like belief in all men37. The ideas
of Augustine and Aquinas regarding heresy as a crime and death penalty as a punishment
for such a crime prevailed38, inspire of Marsiglio of Padua’s attack on Papal supremacy and
calling for a transfer of authority from the Church to the State in his book Defensor Pacis.
Some monarchs attempted to restrict the Papal power over the Church in their territories 39
and thereby limit the authority of the Church.

The Church itself suffered from dissensions and abuses resulting in the protestant
Reformation of the sixteenth century under the leadership of Luther, Calvin and others.
Luther attacked Catholic authority and the Papacy as the seat of such authority. He
advocated subordination of the Church to the State and tended to regard religion as merely
an aspect of State policy. But he advanced no new notion of religion freedom. As a matter
of fact he even defended persecution of heretics and imposition of religion uniformity
because the magistrate had a duty to “prevent divisions arising among his subjects.” The
Calvinist wing of the Protestant Reformation stressed Church independence and favored a
policy of revolt against “ungodly rules” in support of the “true religion”. Thus it engendered
militant fervor and “contributed greatly to complicate and embitter the religious conflicts in
the sixteenth and seventeenth centuries.” Calvin’s own city, Geneva, was theocratic. Even
during the protestant Reformation, the governing principle was ‘cujus region, ejus religio’
(whatever the religion of the ruler that would be the religion of the State). Religious

37
I Cecil North cott, Religious Liberty, (SCM Press, London, 1948), p.25.
38
D.E. Smith, op. cit., p.12

33
minorities, even during the Reformation, were “encouraged or compelled to immigrate to
states professing their own religion”.

Even until the end of the middle ages, the church was regarded as superior to the
State. As late as the sixteenth century freedom of religion was denied and persecution of
heretics was defended even by enlightened politicians such as Sir Thomas More. More
defended the preservation of heretics as something essential “not only to the preservation of
true religion, but also to the cohesion of civil society itself40.”

The underlying principles of the Reformation such as “the right to rebel against the
established ecclesiastical authority and to examine the truths of religion without restriction
and the idea of a direct relationship between God and man obviating the necessity of
mediation by a charismatic church41”, however, contributed towards greater religious
liberty. The Reformation also provided an opportunity to monarchs to assert their
independence from all external authority, be it spiritual or temporal and worked towards
religious liberty and toleration. For instance, in England, Henry VIII revolted against the
authority of the Church established the Church of England, assuming at the same time the
title of ‘Defender of the Faith42’.

The presence of sizable religious minorities in France and England also had the
effect of introducing a “conception of citizenship not dependent on a common religious
faith.” Theoretically, it had been Machiavelli who, in the sixteenth century, first separated
politics from religion and asserted the supremacy of political power, while emphasizing the
Prince’s duty of independent rule. Toleration was emphasized by Bodin in the sixteenth
century and by Locke in the seventeenth century in his Letter on Toleration. However,
Catholics and atheists did not come under the purview of Locke’s toleration.

In the seventeenth century with the emergence of the process of enlightenment,

scholars such as Descartes, Hobbes, Spinoza and Leibniz represented “the first sustained
attempt to construct a rational picture of the universe on the basis of scientifically
established knowledge43” and emphasized human values. The development of modern

40
Anthony Kenny, Reason and Religion, (Basil Blackwell, Oxford, 1987), p.170
41
Guido De Ruggiero, “Religious Freedom”, in Edwin A. Seligman, (ed.), Encyclopedia of Social Sciences,
42
D.E. Smith, op. cit., p.13.
43
B. Groethuysen, “Secularism”, in Edwin A. Seligman, (ed.), Encyclopedia of Social Sciences, VoI. XIII,
(Macmillan, New York, 1949), p.631.
34
science and the spirit of reasoned inquiry inspired the scholars and philosophers of the
Renaissance.

The gradual emergence and growth of the ideas of religious. Liberty and tolerance
marked a step towards secularism. Enlightenment, in the eighteenth century, was furthered
by Rousseau and Kant, resulting in increased rationalism and declining superstitions and
dogmas. The European rulers, Attempted to reconstruct their State on the basis of the
teachings of the rationalist thinkers of the Enlightenment

The French Revolution of 1789, based on the political dogma of popular

sovereignty, combined with the emergence of the nation-state resulted in depriving the
church of the last remnants of supremacy, at the same time enabling the State to regulate the
affairs of the Church. This was amply demonstrated by Napoleon when he refused to be
crowned by the pope, instead performing the ceremony himself. A broadly humanist
approach became the predominant factor in matters of state policy.

Throughout the nineteenth century, the principles of religious liberty and toleration
received support from political philosophers such as Bentham and Mill. Thus the British
utilitarian’s were “philosophically, the sponsors of secularism44”. All this prepared the
environment for the establishment of secularism. Secularism, as a doctrine, emerged in the
late nineteenth century, especially in the works of Holyoake. Secularization was, however,
not complete for freedom of religion was limited. Even in in religious matters, to an equal
regard for all religious, secularism is defined by the Encyclopedia Britannica generally in
terms of separation of state from religion.

Secularism as a modern concept was born in Britain, It was Holyoke, for the first, who used
the word "secularism" and its systematic formulation was done mainly by him. Charles
Bredlaugh further elaborated its basic principles and virtually agreed with Holyoke. The
secularism of Holyoke was but a conscious affirmation of the goals and urges of westerns
during the nineteenth century. They, in turn were product of the renaissance that asserted the
dignity of the person, and of the science, as also of the liberalism of the nineteenth century,

The concept of secularism in its modern from was articulately expressed by Gorge
Holyoake. It owes its name and, in a large measure, its existence to the life and labor of
Holyoake, who was born 1817 in Birmingham, of artisan parents with religious upbringing.
44
Encyclopedia Britannica, Vol.20[London],P.264
35
Secularism is the concept that government or other entities should exist separately from
religion and/or religious beliefs. The term was coined by British writer George Holyoake in
1851. It was regarded by its first proponent, G.J.Holyoke, as an alternative to atheism and be
defined on considerations purely human, and intended mainly for those who find theology
indefinite, or inadequate, unreliable and unbelievable.45 Secularism is also described as a
movement founded with the intention of providing a certain theory of life and conduct,
without reference to religion, having its antecedents in the political situation of Europe and
also in the philosophical school of the Utilitarian's.46 There is thus a widespread and long-
standing sense or meaning of secularism as per which it involves the rejection of religion,
opposition to religion, conflict with religion. It stands as district or separate from, and is not
connected or concerned with religion or spiritual matters. The secularism represents a sphere
which is purged of the supernatural; there exists an antinomy between religion and
secularism. Secularism sometimes expresses the fear or consternation of religion. The
objective of secularism is to free human mind from the “illusion”, “neurosis”, and “tyranny”
of religion.47

According to Dietrich Bonheoffer, Secularism lays emphasis on this world rather than the
supernatural, behavior rather than belief, freedom rather than obedience and a bold maturity
rather than conservatism.48

According to Wilfred Cantwell Smith, "a secular state is a form of state so contrived as to
win and hold and deserve the loyalty and warm allegiance of any citizen of whatever
religion or of one"

According to G.G.Hackman, secularism signifies the kind of life that is lived in complete
indifference to God and to religious values. The same view has been put with greater force
by.

2.1.2 The Meaning of the Word 'Secular', Secularization' and 'Secularism'

45
G.J.Holyoke. The Origin and Nature of Secularism[London,1986],p.41
46
Eric S.Waterhouse,op.cit,p.347
47
Non- Spiritual, having no concern with religious or spiritual matters, Encyclopedia Britannica,
Vol.20[London,1950],p.625
48
Allan Bullock and Oliver Stally brass. Fontana Dictionary of Modern Thought,[London;14 State James
place1977],p.264
36
 In politics today, both Indian and International, perhaps few other words of frequent
use are as confusing, abused and misunderstood as Secularism. The West is believed to be
the cradle of this concept. But, as we shall see soon, in the Western dictionaries secularism
is described as something opposed to religion, as something which has nothing to do with
God or with anything super-natural or transcendental.

Before presenting the case of Indian secularism, it is essential to define secularism,

so as to have a benchmark against which to compare the Indian variant. Quite simply,
secularism is the separation of state and religion, or more broadly zero interference of the
state in the matters of religion, and vice-versa. What this implies is that the state treats all
citizens equally, regardless of religious beliefs (among other things). Secularism implies that
all are considered equal in the eyes of the law.

Its origin can be traced to the western world view. It is, therefore, important to
understand its philosophical base to fully appreciate its connotation, its importance and its
limitations. Before considering the topic under discussion it would be naturally appropriate
to briefly notice the meaning of the word 'secular' and 'secularism'. The word is a product of
the Renaissance and post Renaissance period and has not always meant the same thing to all
people. As I will presently show, for the purpose of our study it is enough to understand the
word secularism as meaning something which is opposed to religion.

Secularism is the like a hat has lost its original shape, as it assumes the shape of the
head on which it has been placed. It is viewed by different person form deferent angles
hence; its whole meaning is difficult to comprehend. Men of philosophy, of ethics, of
religion and of social science have looked at it from their respective points of view and have
offered their definition. Secularism is a catch word and watchword of the present century.
Like socialism and democracy, it has proved to be a hydra of political science. It defies
definition.

[A] Meaning of the Term 'Secular' and ‘Secularization’

"Secular" means " not connected with religious or spiritual matter" In this sense it is
probably right to say that many of us live in secular states, in countries in which the origin
and justification of the political power is totally secular state in which religion is present but,
as charls Taylor point out, religion "occupies as different place in social life, compatible
37
with the sense that all social action take in profane time" . Put in another way, in our Secular
societies, you can engage fully in politics without ever encountering God'

The English word ‘secular’ comes from the Latin ‘saeculum’, which means ‘an age’
or ‘the spirit of an age’. It has the same meaning as the Greek ‘a eon’, which is used in the
New Testament for an ‘age’ or ‘era’. The conflict between religious faith and human reason,
which forms part of the background to the emergence of the modern ideology of secularism,
surfaced in the late middle Ages. Historically secularism as an orientation to the world is
linked to two major interrelated processes in Europe.

Along with the term secular, immediately it appears the term "secularization".
Strictly speaking, secularization tin "means "to transfer from ecclesiastical to civil or lay
use, possession or control" Secularization is process in which religion ceases to be the
central factor of social cohesion, of collective world explanation, to become a choice among
others choices.

Secularization according to Oliver Roy "a social phenomenon that requires no

political implementation ". It would be proper to say that religion has been "tamed" or
domesticated" and rendered under the legal scheme of the civil right as "freedom of religion
or belief". The understanding of religion as a matter of choice leads to the understanding of
religion as a matter of freedom". However, this perspective may lead also to privatization of
religion [a private choice] and also to the detriment of that link between culture, religion and
identity.

[B] Meaning of the Term "Secularism"

A Beginning may be made with the Dictionary. The Oxford English Dictionary, states
that Secularism is the doctrine that morality should be based solely on regard to the well-
being of mankind in the present life to the exclusion of all considerations drawn from belief
in God or in a future state.

The Concise Oxford Dictionary defines the word “secularism” as something which is
concerned with the affairs of this word, something which is worldly not sacred, not
monastic, not ecclesiastical. Secularism is skeptical of religious truth and is also opposed to
religious education. Secularism, therefore, must mean an attitude or an approach which is
38
concerned with the affairs of this word and which does not regard anything as sacred or as
not open to question. It is not concerned with monastic life or ecclesiastical doctrines. It
questions the basis of religious faith and insists that the things of the flesh should not be
governed by considerations of the spirit. The affairs of this world must be ordered as to the
known truth and not by speculative doctrines.

Let me enumerate some of the propositions that emerge from the discussion so far or that
are necessary to understand what follows:

 Secularism is a system of social organization and education which believes that

religion has no part to play in the problems and events of everyday life.

 A culture is seen as secular when its acceptance is based on rational and utilitarian
considerations rather than on reverence and veneration.

 A secular society is one that engenders in or elicits from its members readiness to
change customary orientation towards or definition of values regarded as essential in
that society.

 Secularism on the part of the individual means a rational state of mind which refuses
to recognize the arbitrary authority of any individual or any book.

 In the context of 'state’ or 'society', secularism means an endeavor on the part of state
or society to modernize the societal values and thus a policy of not being Broadly
speaking, secularism is a movement of thought, which aims to improve the temporal
welfare of the people on rational and ethical grounds independently of religious
considerations. The liberal ambiance of the nineteenth century Western Europe
favored the emergence of this movement. In the course of time, this concept has
been assimilated into many systems of philosophical thought and socio-political
movements and assumed different value connotations. Hence; it may be difficult to
give an adequate conceptual definition to secularism.

2.1.3 The Principle of Secularism

39
 The essential principle of secularism is to seek for human improvement by material
means alone. It holds that such means are the more important, because the more proximate
and that, independently and in themselves, they are adequate to secure the desired end.

It has been defined by the Encyclopedia Americana as an ethical system which is

“founded on the principles of natural morality and independent of revealed religion or
supernaturalism."49 The principle of secularism is a theory which has no concern with
religion, God and unknown world. Secularism arose and developed at a period when the
relation s of science and religion were beginning to be regarded as those of sharp opposition.
In harmony with that notion. It proclaimed the independence of this life and can be
maintained and tested by reason at work in experience. It conceived that just as
mathematics, physics, and chemistry were "secular 'sciences. So it would be possible on the
same lines to establish a secular theory of the conduct and welfare and life, and to add the
instruction of the conscience to instruction in the sciences, in a similar manner and on
similar condition.

The relation of secularism to religion was accordingly defined as mutually exclusive

rather than hostile. Theology, professes to interpret the unknown word. Secularism is wholly
unconcerned with that world and its interpretation.

INDIVIDUAL

FREEDOM OF
CITIZENSHIP
RELIGION

• Religion and the individual (freedom of religion).

• The State and the individual (citizenship).

• The State and religion (separation of State and religion).56 `

Secularism is generally seen simply in the context of separation of the temporal and
the spiritual. Thus separation of State and religion is the most commonly recognized
component of secularism, the underlying assumption being that each limits itself to its own

49
Encyclopedia Americana [American crop, New York,1944],Vol.24,p.521
40
sphere. This necessarily implies that the State shall not undertake religious functions and
vice versa, nor will the State impose any religion upon its subjects.

However, such separation does not suggest that secularism is anti-religion. The
spheres of the two are distinct and relations between them are defined as “mutually
exclusive rather than hostile.”50 Holyoake, too, had argued that secularism was distinct from
atheism. Secularism, therefore, merely intends to restrict religion to the private domain and
does not entail a total abandonment of religion. As pertinently observed by Black shield,
“While non-religious, anti-religious, skeptical and profane positions may exemplify
“secularism”, or offer one king of basis for it, it would be fatal, a liming error to identify it
with these.” It is argued at the same time that an anti-religious exposition of secularism
which would envisage elimination of religion from public affairs and which could be termed
as radical secularization of society can have an adverse impact in that secularism itself
becomes a religion, intolerant of other religions.

Secularism is not only anti-religion, but it expressly guarantees freedom of religion.

Freedom of religion involves the right of an individual to profess any religion without
interference or compulsion by the State, viz. individual freedom of religion. Concomitant
with the individual freedom of religion is the right of individuals to form associations for
religious purposes, viz. collective freedom of religion. The importance of freedom of
religion is also recognized in the U.N. Declaration on the Elimination of All Forms of
Intolerance and of Discrimination based on Religion or Belief. Freedom of religion also
involves freedom of ethical and religious research. As Waterhouse observes, “There must be
no penalties, legal or spiritual, for any investigation, criticism or publicity.”59

Implicit in freedom of religion is freedom of thought and conscience, i.e. the right of
every man to think for himself, which further implies the right to difference of opinion on
all issues as well as the right to express that difference. As stated in the Encyclopedia
Americana, “secularism asserts the right to discuss and debate all vital questions, such as the
commonly received opinions regarding the foundations of moral obligation, the existence of
God, the immortality of the soul, the authority of conscience, etc.” This also calls for
freedom of expression. Separation of State and Religion is thus not the only prerequisite of
secularism. An interpretation of secularism51 in terms of only separation of State and
religion would perhaps exclude from the ambit of secularism some of the most secular

50
Eric S. Waterhouse, op. cit., p. 348
51
Church and state through the Centuries, (Burns and Oates, London, 1954), pp.4-6.
41
States. On the other hand, this could provide legitimacy to such States as secular states,
which have excluded religion from politics but which lack the necessary prerequisites of a
free society-tolerance of dissenting opinions, freedom of conscience, etc. a definition of
secularism which gives due cognizance to the other components of secularism, viz. freedom
of religion and conscience, tolerance, a democratic conception of citizenship, equality,
liberty, freedom of thought and expression, rationality and scientific temper, etc. that is,
where the state is not connected to any religion, but maintains a distance from religion as
well as guarantees and protects fundamental human rights regardless of religious belief,
provides a wider theoretical framework in terms of which the secular status of a state may
be adjudged. Such a conception of secularism has emerged as central element of liberal
democracy. However, it is only recently that secularism has world. This was preceded by
centuries of conflict between the church and the state.

It is true there is one tradition according to which secularism does not conflict with
religion but it stands for equal respect all religions. It is said that in the Roman Empire, the
various modes of worship were all considered by the people as equally true, and by the
philosophers as equally false, and by magistrate as equally useful. Similar, the
administrators in British India understood secularism as scrupulous impartiality in the
treatment of or even-handed operation of the rule of law in regard to different beliefs. The
policy was to hold the scale of balance fairly between different communities.

2.1.4 Secularism and Secular State

When secularism is actively applied to all important affairs of a state. We call it a
"secular state" Such a state is wholly non religious [non anti -religious] in the sense that it
has no official religion of its own is totally indifferent to all the religious followed by its
citizens in their private life. It grants every individual the freedom to follow any religion or
no religion in his personal life. It does not compel him to promote any religion by paying
taxes for its prorogation or by any other means, If the individual decides to renounce his
own religion and embrace another one he free to do so. A secular state does not dictate any
kind of religious beliefs to its citizens, nor does it force them to profess a particular religion
or any religion

A secular state does not mean an irreligious state rather it means that in the matters
of religion it will remain neutral. The state will not have any religion of its own i.e. it will
promote any religion and at the same time it interfere with none. Secularism or reflects a

42
policy of religious non-discrimination and equal liberty for all, including believers and non-
believers. Although it connotes irrelevance of, and indifference to religions and exclusion of
religion. Its logical delineation in the religion-ridden world does not necessarily require such
wall of separation. A secular state is a state which guarantees individual and corporate
freedom of religion. It considers individual as a citizen irrespective of his religion i.e. it is
not constitutionally connected to a particular religion contemplates guarantee of religious
freedom to all both individual and groups subjects to legitimate restrictions in the interests
of safely, public order and morality.

The ideal secular society will not have a State religion, even if all members of the
community confess to one faith. Liberal society does not punish apostasy or heresy. In a
liberal democracy, citizenship is not dependent on adherence of a certain religion. Religion
is not a constitutive element of citizenship. This principle is today accepted universally in
many democratic States.52 Equally well accepted is that in a liberal democracy the
government may not penalize citizens or persons within the jurisdiction because they
profess a faith that is not shared by a majority of their fellow citizens.53It is also settled that
in a liberal democracy citizens enjoy the freedom to express their religious views, and to
form institutions consistent with those views, without fear of punishment or civic disability.
It is likewise widely accepted that liberal democracies cannot compel the doing of religious
acts or attendance at worship services. Liberal democratic theory assumes the importance of
a sharp demarcation between State and the private sphere, so as to distinguish State action
and private one.54

2.1.5 The Role of Religion in the Public Sphere

The tension between the State and religion in its broader sense has been more or less
discussed in the foregoing titles; now it would be appropriate to narrow down the scope to
the role of religion in the public sphere. More specifically, how should citizens in a modern
pluralist democracy debate and discuss public affairs? What kinds of reasons are appropriate
in the context of legislative debate, judicial opinions, or administrative decision making?
There is a wide agreement that the government should not censor public debate about
politics, at least not without very good reason.55But when it comes to the issue of religion

52
Austin Cline, Government Neutrality towards Religion, (atheism.about.com/od/weekly
quotes/a/fortas01.htm), last visited, 17/08/2009.
53
ibid
54
ibid
55
The Indian Constitution, Article, 26 (2&3)
43
visa-`a-visa public discourse; to what idea should citizens aspire in political debate. For
example, some have argued that religiously motivated political debate should be allowed in
the public sphere, others argue for the complete exclusion of religious voices. Still others
contend that in the public debate, an ideal of political morality should mirror the freedom of
expression to all, provided religious reasons are subject to equal scrutiny as any other civic
reason.

The interaction between religion and politics has been a subject of debate among
scholars of theology, and academics. These complex relationships between religion and the
State as they are regulated by law, often constitutional law are characterized by discord than
agreement.56

2.2 Importance of Secularism

This is important for a country to function democratically. Almost all countries of

the world will have more than one religious group living in them. Within these religious
groups, there will most likely be one group that is in a majority. If this majority religious
group has access to State power, then it could quite easily use this power and financial
resources to discriminate against and persecute persons of other religions. This tyranny of
the majority could result in the discrimination, coercion and at times even the killing of
religious minorities. The majority could quite easily prevent minorities from practicing their
religions. Any form of domination based on religion is in violation of the rights that a
democratic society guarantees to each and every citizen irrespective of their religion.
Therefore, the tyranny of the majority and the violation of Fundamental Rights that can
result is one reason why it is important to separate the State and religion in democratic
societies.

Another reason that it is important to separate religion from the State in democratic
societies is because we also need to protect the freedom of individuals to exit from their
religion, embrace another religion or have the freedom to interpret religious teachings
differently.

56
www.religiousfreedom.com/conferences//vermeulen), last visited, 18/06/2012.
44
2.2.1 Separation of Religion from State

The separation of religion and state is the foundation of secularism. It ensures that
religious groups don't interfere in affairs of state, and makes sure the state doesn't interfere
in religious affairs.

In the United Kingdom there are official two state recognized Christian
denominations – the Church of England and the Presbyterian Church of Scotland. The
Queen is both head of state and Supreme Governor of the Church of England. There is no
established church in Northern Ireland or Wales but the 26 unelected bishops of the Church
of England who sit in the House of Lords influence laws that affect the whole of the UK.

Christianity is one major influence among many that shape our current ways of life;
we are a nation of many denominations and religions and large sectors of the population do
not hold, or practice, religious beliefs. If Britain were truly a secular democracy, political
structures would reflect the reality of changing times by separating religion from the state.

2.2.2 Secularism Protects Both Believers and non-Believers

Secularism seeks to ensure and protect freedom of religious belief and practice for
all citizens. Secularism is not about curtailing religious freedoms; it is about ensuring that
the freedoms of thought and conscience apply equally to all believers and non-believers
alike.

2.2.3 Religious Freedom

Secularism seeks to defend the absolute freedom of religious and other belief, and
protect the right to manifest religious belief insofar as it does not impinge disproportionately
on the rights and freedoms of others. Secularism ensures that the right of individuals to
freedom of religion is always balanced by the right to be free from religion.

2.2.4 Secularism is about Democracy and Fairness

45
 In a secular democracy all citizens are equal before the law and parliament. No
religious or political affiliation gives advantages or disadvantages and religious believers are
citizens with the same rights and obligations as anyone else.

Secularism champions human rights above discriminatory religious demands. It

upholds equality laws that protect women, LGBT people and minorities. These equality
laws ensure that non-believers have the same rights as those who identify with a religious or
philosophical belief.

2.2.5 Equal Access to Public Services

We all share hospitals, schools, the police and the services of local authorities. It is
essential that these public services are secular at the point of use so that no-one is
disadvantaged or denied access on grounds of religious belief (or non-belief.) All state-
funded schools should be non-religious in character, with children being educated together
regardless of their parents' religion. When a public body grants a contract for the provision
of services to an organization affiliated to a particular religion or belief, such services must
be delivered in a neutral manner, with no attempt to promote the ideas of that faith group.

2.2.6 Secularism is not Atheism

Atheism is a lack of belief in gods. Secularism simply provides a framework for a
democratic society. Atheists have an obvious interest in supporting secularism, but
secularism itself does not seek to challenge the tenets of any particular religion or belief,
neither does it seek to impose atheism on anyone.

Secularism is simply a framework for ensuring equality throughout society – in politics,

education, the law and elsewhere, for believers and non-believers alike.

2.2.7 Secularism Protects Free Speech and Expression

Religious people have the right to express their beliefs publicly but so do those who
oppose or question those beliefs. Religious beliefs, ideas and organizations must not enjoy
privileged protection from the right to freedom of expression. In a democracy, all ideas and
beliefs must be open to discussion. Individuals have rights, ideas do not. Secularism is the
best chance we have to create a society in which people of all religions or none can live
together fairly and peacefully

46
 _________________________________________________

CHAPTER: III

Concept of Secularism: An Indian Scenario

3.1 Historical and Cultural Over View of Indian Secularism

India became a secular state in the post- era, i.e. after becoming independent in 1947.
However, the constitution that came in to force with effect from 26 the January, 1950 did
not use the word secularism. In other words, India became a secular state more in spirit than
in terms of political ideology. The word "secular" was added during emergency through an
amendment. Thus, today our constitution is a secular constitution.

Secularism in India context was never clearly defined by either our constitutional
experts or political ideology. There are several problems in defining secularism in the
Indian context. Both during colonial and post -colonial period, the Indian society has been a
traditional society dominated by various customs and tradition with deep religious
orientation. For the liberal and progressive intellectuals, on the other hand, secularism
meant total exclusion of religion from political arena. India

The development of the idea of; secularism' has been of a differed pattern in India.
The idea has not been the product of a process of actual secularization of life, and second
philosophical development had been different lines. Like other ideas of democracy,
socialism and the likes, if developed as a response to the actual historic need of Indian
society.

3.1.1 Origin of Indian Secularism

Indian secularism, in the sense of equal reverence for all religions, was not born on
January 26, 1950 its history did not begin on January 26, 1950. It predates the Constitution,
the freedom movement, the Moghuls, the Turks, the Maury as and the Asoka's. It predates
the known and written history of India. It is part of the spiritual conviction of this country as
expressed in the Vedas and Upanishads whose dates are speculated even today. Theology

47
and not theocracy is the Hindu tradition. No king other than Ashoka the Great declared a
State religion in this country. But Ashoka is still regarded as the model for peace and
tolerance. The constitutional provisions on freedom of worship and injunction against the
Indian state promoting or subsidizing any religion are not the creation of the Constitution
but the product of centuries of harmonious functioning of the Indian mind which is
essentially and largely the Hindu genius. The Constitution of India merely recorded the
timeless faith and conviction of the Hindus that every religion is sacred and there is no need
for selection or elimination of any faith or religion. Even a non-believer's soul is as sacred as
that of the faithful. This is based on the Hindu view that every living being is sacred.

So it is the Hindu psyche that guarantees equality to all faiths and not the provisions
of the Constitution of India. How did the Hindu psyche react to the other faiths that came to
India seeking refuge against extermination by the invading Islam and Christianity in their
lands? The instances of Parsis and the Jews are highly instructive of the core of the Hindu
psyche.

India is a pot-pourri of diverse religions, races and cultures. From antiquity, she has
been receptive to different beliefs and nurtured both the native Dravidians and the invading
Aryans. Even the Tatars, the Turks, the mogals and the Europeans left their imprint in the
land by intermarrying with the locals. The blending of culture of natives and foreign
elements led to development of composite culture and not any religious culture hence there
has been a sort of unity with multiple diversities. The geographical location of the sub-
continent has also acted as catalytic agent to promote unity.

The people of India, from heterogeneous groups had obviously little in common to
forge a homogeneous identity. They differed in physique as well as in ideology and culture!
The social order founded on caste system forced them to live in caste-compartment. Each
temple, mosque, church, gurudwara, and vihar had its own place of inspire its believers.
Sometimes, the religious texts of each denomination shared certain values but very often
differed. This resulted in conflict, isolation and subjugation of certain groups. This gave rise
to classes, castes and class wars and caste conflicts.

The belief in a supernatural agency which ordains everything has led to certain
irresponsibility on the social plane, and emotion and sentimentality have taken the place of

48
reasoned thought and inquiry.”57 Religion in this sub-continent has also laid down a solid
foundation for irrational, superstitious society, closing the doors for science and
development, superstitious society, closing the doors for science and development, logic and
reason in violation of one of the fundamental duties of every citizen of India, that is, ‘to
develop the scientific temper, humanism and the spirit of inquiry and reform.

India has been the product of historic consequence of a series of events, never
existed prior to the commencement of the Constitution of India. The new born State, India

i.e., Bharat joined the family of sovereign republics on 26th January 1950. On independence

the people of India constituting Hindus, Muslims, Christians, Sikhs, Buddhists, Janis,
Parsees and others agreed to unite in nation-building in spite of their historical differences.
The contents of the constitution of India are largely founded on the past.

3.1.2 Multiculturalism and Secularism in India

Any study of secularism today would be incomplete without an analysis of the

cultural ethos, for much of the discourse on secularism hinges around culture. This becomes
all the more significant a various issues and problems are beings projected in cultural terms
and context. A vital question in this regard pertains to the nature of Indian culture. Is it
Hindu or composite? What are its implications for secularism in India? An inquiry into
these issues acquires significance in view of the centrality of the concept of culture to the
secular discourse.58

An analysis of the nature of Indian culture reveals two divergent views. One view
propounded by the Bharatiya Janata Party (BJP) and its allies equates Indian culture with
Hinduism; non-Hindu aspects are regarded as contaminating influences which need to be
‘expunged’. Such a conception ignores the impact of other religious systems on Indian
culture. It also ignores the impact of other components of culture viz. art, architecture,
philosophy, language, etc. the protagonist of this view seek the roots of Indian culture in the
ancient period of Indian culture and ethnicity.“ Cannot be said to be rooted in anything

57
Report of the committee on the welfare of scheduled caste and s.t[ 1922-2000 called as
kariamunda report] XIII Loksabha
58
Rajni Kothari, Politics and the people: In Search of a Humane India, Vol. II, (Ajanta, Delhi, 1989), p.372
49
other than the Vedas.” And this is so, “not only because nothing order survives but also
because nothing basically alien to them can be located in any part of the land.”59

3.2 The Constitutional Ideal of Secularism

The historical and cultural ethos of India, its plural society, and the social turmoil
and political upheaval accompanying independence formed the backdrop for the adoption of
secularism as the cornerstone of the Constitutional setup.

3.2.1 Making of a Secular Constitution

After the independence of India on August 15, 1947, the Drafting Committee was
appointed by the Constituent Assembly on August 29, 1947. It was charged with the duty of
preparing a Constitution in accordance with the decisions of the Constituent Assembly. The
Government of India Act of 1935 supplied a large part of the basic framework to work out
the new Constitution. However, important principles and constitutional provisions were
adopted mostly from the constitutional systems of Great Britain and United States. Part III
of the Indian Constitution which deals with fundamental rights, including the provisions
dealing with the Indian form of secularism as given in articles 25 to 28 have been adopted
mostly from the secular provisions of the of United States Constitution.

However, at the time of drafting of the Constitution and during the debates which
took place in the Constituent Assembly, the members of the Constituent Assembly refused
to add the terms “secular” or “secularism” either in the Preamble of the Constitution or in
the articles dealing with the secular provisions of the Constitution. At that time these terms
had a compelling sense of atheistic connotation, especially as it was in usage in the Western
countries. Therefore, the Constituent Assembly omitted their usage in the Constitution. This
calls for explanation. We provide it in the following sections.

3.2.2 The Omission of the 'Secular 'in the Constitution

On December l3, l946, Mr. Jawaharlal Nehru moved the Objectives Resolution in
the Constituent Assembly, which was passed on January 22, l947. The Objectives
Resolution gave expression to the ideals and aspirations of the people of India. Its principles
were to guide the Constituent Assembly in its deliberations in making the Constitution. The

59
Girilal Jain, as quoted in SuKumar Muralidharan, “Hindutva and Perversion of Nationalism”, Mainstream,
Vol. XXX, No.18, February 22, 1992, p.14.
50
principles embodied in the Objectives Resolution were incorporated into the Preamble of
the Constitution of India. Some of the provisions of the Objectives Resolution read:

1. This Constituent Assembly declares in its firm and solemn resolve to proclaim
2. India as an Independent Sovereign Republic and draw up for her future governance a
Constitution…Wherein all power and authority of the sovereign Independent India,
its constituent parts and organs of Government, are derived from the people; and

3. Wherein shall be guaranteed and secured to all the people of India, justice, social,
economic and political; equality of status, of opportunity, and before the law;
freedom of thought, expression, belief, faith, worship, vocation, association and
action, subject to law and public morality; and

4. Wherein adequate safeguards shall be provided for minorities, backward and tribal
areas, and depressed and other backward classes; and

5. Whereby shall be maintained the integrity of the territory of the Republic and its
sovereign rights on land, sea and air according to justice and the law of civilized
nations, and

6. This ancient land attains its rightful and honored place in the world and makes its
full and willing contribution to the promotion of world peace and the welfare of the
mankind.

It is surprising to note that the Objectives Resolution did not mention the terms ‘secular
state’ or ‘secularism’ even though clause (5) of the Resolution was definitely secular in
character. The terms did not occur in the long speech Mr. Jawaharlal Nehru delivered at the
time of moving the Resolution in the Constituent Assembly. They were also not referred to
by Dr. B. R. Ambedkar, the Chairman of the Drafting Committee, in his speech given at the
time of introducing the Draft Constitution in which he highlighted the salient features of the
Draft. The terms, moreover, did not find a place in any part of the Constitution. The
omission of the words ‘secular’ and ‘secularism’ are not accidental, but deliberate. The
reasons for the omission would become clear when we access the debate on secularism,
which took place in the Constituent Assembly.
51
3.3 The Inclusion of the Term 'Secular' in the Preamble

The secular nature of the State in India is obvious from the aims and objectives of
the Constitution as spelt out in the preamble. However, as we have seen, to avoid possible
anti-religious impression that the term ‘secular’ might connote, it was omitted from the
Preamble and other parts of the Constitution. The test of the original Preamble reads

"We, the people of India, have solemnly resolved to constitute India into a sovereign
democratic republic…"

This word was introduced in the Preamble by the Constitution (Forty-Second

Amendment) Act 1976 which came into force on 3 January 1977. The Indian Constitution

enacted in the year 1950 did not, before the 42nd Amendment, contain the word “secular” or

“God” in it. The word “God” is to be found only in the Third Schedule of the constitution

By the 42nd Amendment, the opening words were replaced by the following:

“We, the people of India, have solemnly resolved to constitute India into a sovereign
socialist secular democratic republic.” The word "socialists as added to emphasize the
existing constitutional commitment to the goal of socio- economic justice. The intention of
the "socialist" was not setup a vibrant throbbing welfare state.

The Constitution as enacted did not contain the word "secularism" at all. It only
spoke of freedom of religious faith and of the State of India immunized from religion. It was
Mrs. Indira Gandhi who introduced the word "secularism" in the preamble of the
Constitution in the year 1976.The word "secular "was also added the same Amendment Act.
This word high lights that the state has no religion of its own and all person s shall have the
right s to profess, practice and propagate religion of their own. This right has been further
guaranteed by the fundamental Rights in Artical25-28. The expression also signifies that
constitution does not recognize does not permit mixing of religion and state power. Both
must be kept apart. This is constitutional injection. The both constitutional Amendment
Act.1993 was enacted for separation the religion from politics. Secularism is not the absence

52
of \religion as defined by Webster Dictionaries. Secularism is more than passive attitude of
religious tolerance. It is a positive concept of equal treatment to all religions.

It is true that the word 'secular' did not first occur either in Article 25 or 26 or in any
other Article or Preamble of the Constitution. By the Constitution (42nd Amendment) Act,
1976, the Preamble was amended and for the words 'Sovereign Democratic Republic' the
words 'Sovereign, socialist, secular, Democratic Republic' were substituted.

The Forty-Second Amendment was the most comprehensive and most controversial
amendment made in the Constitution. The statement of objectives and reasons given in the
Bill for the Forty- Second Amendment Act 1976 indicated that the said amendment was
required inter alia “to spell out expressly the high ideals of Socialism and Secularism.”
When the Bill was moved for discussion in both Houses of the Parliament, the members
questioned the Parliament’s power to amend the Preamble of the Constitution. However, no
one was opposed to the inclusion of the term “Secular” in the Preamble.

Sri P.G. Mavalankar, for instance, argued that the Preamble could not be amended.
He said,”if you put the words today ‘socialist’ and ‘secular’ in the Preamble, I am
afraid…some people might say remove the word ‘democracy’. Already, the substance has
gone, the word may go next time.” Srimati Indira Gandhi, the then Prime Minister, spoke
for the reasons to amend the Preamble. She emphasized: The founding fathers of our
constitution and of our country had intended Indian society to be secular and socialist. They
have guided our laws all these years. All we are doing now is to incorporate them in the
Constitution itself for they rightly deserve to be mentioned there. The specific mention of
this fact in the Preamble will provide the frame of reference to the people, to the
Government, to the judiciary and to the world.

3.4 The Constitutional Implications of Secularism

3.4.1 Positive Content of Secularism

All religions are equal to the sovereign democratic republic of India. State as defined
in Article 12. There for is no "State Religion "as is in Pakistan and other Islamic countries
.i.e. Islam is "state religion" there, India has none. It has all Religion in India are of India.
Islam is religion in India as is Hindu. None superior, none inferior. Both are superior both
inferior but not or never, one against the other or one over the other "Fraternity is what
Preamble cherishes; There can be no fraternity beyond what it is practiced in Islam.
53
Fraternity and Islam are interchangeable of Christianity means" service and kindness" and
Pity are specialties of traditional Hindu religion. Hindu is one who cherishes Ahinsa [non
violence]. Ahinsa "parmo Dharma" is what sanatan Hindu Dharm proclaims "Styamev
Jayate"[truth alone wins] in crucial slogan.

As will be seen below, there is a blend of secular and religious elements within the
text of the Constitution and it is this admixture that defines and determines the contours of
secularism to be acted upon by the State and the religious freedom to be exercised by
individuals and communities in modern India. We are a secular nation, but neither in law
nor in practice there exists in this country any 'wall of separation' between religion and the
State - the two can, and often do, interact and intervene in each other's affairs within the
legally prescribed and judicially settled parameters. Indian secularism does not require a
total banishment of religion from the societal or even State affairs. The only demand of
secularism, as mandated by the Indian Constitution, is that the State must treat nil religious
creeds and their respective adherents absolutely equally.

India is a pluralistic society and a country of religions. It is inhabited by people of

many religions. The framer of the constitution thus desired to introduce the concept of
secularism, meaning state neutrality in matter of religion .They also wanted to confer
religious freedom on various religious groups .Religion has been a very volatile subject in
India both before and after independence. The constitution there for seeks to ensure state
neutrality in this area. Religious tolerance and equal treatment of all religious groups are
essential part of secularism.

Secularism in India does not mean irreligion. It means respect for all faith and
religions. The state does not identify itself with any particular .India being a secular state,
there is no state or preferred religion as such and all religious groups enjoy the

India is a pluralistic society and a country of religions. It is inhabited by people of

many religions. The framer of the constitution thus desired to introduce the concept of
secularism, meaning state neutrality in matter of religion .They also wanted to confer
religious freedom on various religious groups .Religion has been a very volatile subject in
India both before and after independence. The constitution there for seeks to ensure state
neutrality in this area. Religious tolerance and equal treatment of all religious groups are
essential part of secularism.

54
 Secularism in India does not mean irreligion. It means respect for all faith and
religions. The state does not identify itself with any particular .India being a secular state,
there is no state or preferred religion as such and all religious groups enjoy the same
constitutional protection without any favour or discrimination. Article 25to 28 of the Indian
constitution offer certain right relating to freedom of religion not only citizen but also as
such; all religion are treated alike and enjoy equal constitutional protection without any
favour or discrimination. No specific protection has been accorded to any religious groups
as such. However, the policy of non- interference with religious secular right of the citizen,
or the state power to regulate socio-economic matters.

The word “secularism” used in the preamble of the Constitution is reflected in

provisions contained in Articles 25 to 30 and Part IVA added to the Constitution containing
Article 51A prescribing fundamental duties of the citizens. It has to be understood on the
basis of more than 66 years experience of the working of the Constitution. The complete
neutrality towards religion and apathy for all kinds of religious teachings in institutions of
the State have not helped in removing mutual misunderstanding and intolerance inter se
between sections of people of different religions, faiths and beliefs. ‘Secularism,’ therefore,
is susceptible to a positive meaning that is developing understanding and respect towards
different religions. The essence of secularism is non-discrimination of people by the State
on the basis of religious differences. ‘Secularism’ can be practiced by adopting a complete
neutral approach towards religions or by a positive approach by making one section of
religious people to understand and respect religion and faith of another section of people.
Based on such mutual understanding and respect for each other’s religious faith, mutual
distrust and intolerance can gradually be eliminated. Study of religions, therefore, in school
education cannot be held to be an attempt against the secular philosophy of the Constitution

Various provisions of Indian Constitution contemplate the secular nature of India.

Article 25-28, 29 -30, to 14, 15, 16, and 17 as well as to art .44and 51A.These provision s
promote the idea of secularism and by implication prohibit the establishment of a theocratic
state. The state is under an obligation to accord equal treatment to all religions and religious
sects and denomination.

3.4.2 Is India Truly Secular

55
 It s interesting to note that there is no agreed and precise meaning of ‘Secularism’ in
our country. A secular state' in the Indian context means one, which protect all; religion
equally and does not uphold any religion as the state religion. The Sanskrit Phrase: Sarva
Dharma Sambhava" is the most appropriate Indian vision of secular state and society. But ,it
should not be forgotten that the word :secular" has not been defined or explained under the
constitution either in 1950 or in 1976 when it was made part of the preamble. India is multi-
religious society and the survival of such a society is possible only it all religions are given
equal treatment without any fevour or discrimination. The Word: secular" was not there in
our constitution when it actually came in the being .It was subsequently incorporated in to
the preamble of the constitution by the 42nd Amendment Acts of 1976. The formal
inclusion of the adjective terms; secular ' is mainly the result of the meeting out the
exigencies of the prevailing circumstances, requirement of party politics and ideological
window dressing. In view of the various Articles appearing in part III of the constitution. It
can be said that India was already a secular state.

3.5 Theory and Practice of Secularism

A brief review of the literature on secularism reveals the vast variety of shcollaring
discover on the subject as well as the lack of argents emergent scholars on whether India as
a secular state are not . It future reveals the diversity of opinion on the appropriateness of
secularism, as a concept, has been variously interpreted. The term secular has, on the one
hand, been contrasted with the sacred or the spiritual as against the worldly; and, on the
other, is interpreted as a trend or condition continuing over a period of time.

A very comprehensive study of the Constitution of India and, also of the social and
cultural conditions in India with a view to determining whether India is a secular State has
been made by D.E. Smith in India as a secular State noticed earlier. It has been rightly
regarded as a pioneering study on the subject. Contrary to popular understanding, Smith
does not assert that India is a secular state. To the question whether India is a secular state,
his answer is a qualified ‘Yes’. The reason why he does not answer in the negative is that he
poses the question, in this author’s opinion, wrongly, as: what is the meaning of the term
‘secular state’ in the Indian context? There were several features of the Constitution which
were strongly suggestive of secularism. The prevalent cultural indicators were supportive of
secularism. Till the 60s significantly, the there was no major work on secularism in India

56
 A comprehensive study of the secular state in India was under taken by Pro..DE
Smith in 1963, first enumerating a conceptual frame work smith proceed , on this bans to
analysis and which as its problems. He concluded that India is and would in all probably
remain secular state and is hopeful that the ‘present anomalies would disappear in the,….
He however discount the possibly of an upsurge of Hindu communal force, The most import
ants problems confronting the secular state in India which the identifies are communalism,
extensive state interference in Hindu religion institutions prostitute of personal law in the
legal structure, and basic definition of secular state.

Narendra modi said his idea of secularism is "India First' will forgive 'Mistake' of a
government if it serves them well."My definition of secularism is simple: 'India First'.
Whatever you do, wherever you work, India should be the top priority for all its citizens,"
Modi said as he took to video conferencing to address the Indian-American community on
Sunday. "Country is above all religions and ideologies," he argued and asked people to
follow the same.

3.6 Representation of the People Act 1955 and Secularism

The acceptance of this goal of secularism, the Court further declared, is not merely
the result of a historical legacy and a necessity for unity and integrity” … but also as a creed
of universal brotherhood and humanism. It is our cardinal faith. Any profession and action
which go counter to the aforesaid creed are a prima facie proof of the conduct in defiance of
the provisions of our Constitution.”

The Court upheld the right of the State to make laws regulating the secular affairs of
temples, mosques and other places of worship and math's as also power of the parliament to
form and rationalize personal laws.

It unequivocally forbade any political party from mixing religion with politics. The
Constitution, the Court held, requires not only the State, but the political parties as well, to
be secular in thought and action. Further, no political party or organization may fight
election on the basis of a religious plank, which would result in erosion of the secular
philosophy of the Constitution. Such a party or organization would be deemed guilty of
following an unconstitutional course of action.

57
 The contention that Section 123(3) of the Representation of the People Act did not
prohibit a candidate from seeking votes in the name of a religion to which he did not belong
was refuted by Justice Sawant in this case. He declared “… assuming that the interpretation
placed by the learned counsel is correct, it cannot control the content of secularism which is
accepted by and is implicit in our Constitution.”

The decision of the Court in the Manohar Joshi and Yeshwant Prabhoo cases,
wherein the Court had occasion to expound on the meaning of Hindutva also has significant
implications for secularism in India. It is contended that the Court in these cases the
delivered a “mixed message” to the cause of secularism and has perhaps inadvertently
legitimized the Hindu right’s interpretation of secularism. In Manohar Joshi v. Bhaurao
Patil, the court held that” … the word ‘Hindutva’ by itself does not invariably mean Hindu
religion and it is the context and the manner of its use which is material for deciding the
meaning of the word ‘Hindutva’ in a particular text.” The Court further declared, “In our
opinion, a mere statement that the first Hindu state will be established in Maharashtra is by
itself not an appeal for votes on the ground of his religion but the expression, at best, of such
a hope.” Again in Dr. Ramesh Yeshwant Prabhoo v. Prabhakar Kashinath Kunte the court60
held that “no precise meaning can be ascribed to the terms ‘Hindu’, ‘Hindutva’, and
‘Hinduism’, and no meaning in the abstract can confine it to the narrow limits of religion
alone, excluding the content of Indian culture and heritage… the term ‘Hindutva’ is related
more to the way of life of the people in the sub-continent. It is difficult to appreciate how in
the face of these decisions the term ‘Hindutva’ or ‘Hinduism’ per se, in the abstract, can be
assumed to mean and be equated with narrow fundamentalist Hindu religious bigotry, or be
construed to fall within the prohibition in sub-sections(3) and / or (3-A) of section 123 of the
R.P. Act.”

3.7 The Opinion of the Scholars

The inclusion of the term ‘Secular’ in the Preamble by the Forty- Second
Amendment Act of 1976 became a matter for debate among constitution experts, political
scientists and judges. Professor S.V. Kogekar opined that the inclusion of the term ‘secular’
in the Preamble is “only a recognition”61 of the secular nature of the Indian State as

60
(1996) 1 SCC It may be noted that in this case both Bal Thackeray and Yeshwant Prabhoo were held Guilty
of corrupt practice under the Representation of the People act Section 123(3)
61
S.V. Kogekar, Revision of the Constitution: R.R. Kale Memorial Lectures (Poona, Gokhale Institute of
Politics and Economics, 1976), p. 13.
58
enunciated in the various relevant provisions of the Constitution. Sri H. Swaroop
commented that the inclusion of the term, Socialism, Secularism and Integrity, in the
Preamble “are three jewels, which make the nation’s most important manifesto a real
document of a socio-economic revolution.”62

Justice R.A. Jahagirdar63 and Justice Robert D. Baird64 were of the opinion that the
addition of the term, secular, in the Preamble is superfluous because it does not add
anything new to the secular nature of the State in India as already provided in the relevant
provisions of the Constitution. Dr. D.D. Basu, another expert of the Indian Constitution,
commented that a clarification to the meaning of the secular provisions of the Constitution
would have been much more beneficial than adding technical word, ‘secular’, in the
preamble.65

Justice Shelat opines that secularism in India is a recent development arising out of
Indian setting and problems, but India has not yet manages to attain the good of secular
state. He bases his conclusion on a study of the historical setting the constitutional
provisional and judicial decision.

The concept of secularism and its problem and prospects have also been studied by
mohmad ghouse, against a back drop of communalism and communal riots, casteism, the
tactics and commitments of political parties and the attitude of the Hindu and Muslim to
secularism. He studies the contents and extent of religion freedom and the judicial; process
employed the case on that freedom.

At the same times he makes a comparative study on Indian and American rules of
decision. The author concludes that though the constitution cherishes the ideal of
secularism. The caste and religion–oriented behaviors of the people the reliance on
secretariat loyalties by the political parties and the existence and emergence of communal
organization of the political processes.

In Gajendragadkar’s view the Indian Constitution concept of secularism recognizes

the relevance and validity of religion in life but seeks to establish a rational synthesis

62
H.Swaroop, New Jewels in the Constitutions Preamble; in Secular Democracy, Vol.X.
NO1&2[January1977],p.28
63
R .A. Jahagirdar, “Secularism under the Indian Constitution”, in The Secularist, vol. II, No. 66 (November-
December 1980), p. 145.
64
Robert D. Baird, Religion in modern India (New Delhi, Manohar Publications, 1981), p. 391.
65
D. D. Basu, Constitutional Law of India, third edition (New Delhi, Prentice- Hall of India, 1983), p.3
59
between the legitimate functions of religion and those of the state. The Indian constitution
and therefore the Indian state do not have a position of anti-God on anti-religion or
irreligion; it treats all religions alike, it respects all faiths and religions and does not identify
itself with any particular religion.

The possibility that the Indian state may levy taxes for promotion of secular and
religious bodies, the fact that it proclaims State holidays on the days connected with
religious observations, festivals, and ceremonies of different religions, the practice of the
Head and Ministers of the State visiting places of worship of all religions, and the use of
religious symbols by the state – all these also appear to indicate to the position of equal
treatment and equal respect for all religious in India. Notwithstanding all this, it is better to
drop the term secularism from our thought processes because of a number of reasons.

Firstly, if secularism as equal respect to all religious means the recognition of the
relevance and validity of religion, and if it involves active practice of religion, then there is
no point in retaining that term. It is, in that case, better to say that the State or Society or
Nation is religious; to say so would be more candid, less confusing, and less circuitous.

Secondly, the equal respect to all religions is mostly a passive idea; its purpose can
be and has been negative. Its purpose has been to see to it that the religious beliefs do not
have any significant effect on the rule or power of the state. It thinks of the place or role of
religion primarily in the context of the actual or potential conflict in a multi-religious
society. Is the question of secularism not relevant in the state and Society where only one
religious community, such a question is not relevant in such a society? But it remains
relevant in the sense that such a society still faces the question as to whether it would be run
on religious morals of not. To put it differently, the state may give equal treatment to all
religions and yet the religious or spiritual ethos may not actively influence its affairs,
decisions, and functioning.

The question of religion ought to be considered more actively and positively in the
sense of promoting socially beneficent influence of religious understanding and tolerance.
The state and society must actively be founded and run on the cosmic religious world-view
or the basic common quintessential core of all religions of the world. Then only the tension,
conflict, and violence between the state on the one hand and the individual, society, and

60
Nature on the other can be eliminated. It is not enough to think about secularism only from
the point of view of communal differences which is only one of the problematiques of the
society.

The Indian state, accordingly, should not be not only anti-God and anti-religion but
also a religious or neutral to religion. The positions such as “… the state has to discharge its
functions in its own sphere uninfluenced by any consideration of religion”, and “matters of
personal law clearly fall under the secular category and have to be dealt with by the state in
modern times (because) … with the arrival of democracy, the age of commentators has
come to an end and the age or legislators has begun” (Gajenragadkar, 1971) are not proper.
The equal respect to all religions of the Indian Constitution can be called a “synthetic
secularism” which seeks to obliterate and significance of the sacred in our thinking. The
Indian state and society must recognize and accept the man’s inner need to believe in the
seekers, God, sacred things, spirituality, and religious faith.

Thirdly the secularism is not understood by most or the people in the sense
Gajendragadkar sees s enshrined in the Indian constitution. Gajendragadkar’s interpretation
of the position of the constitution is rather generous and it is based on the earlier absence of
the world secular from the constitution. However, as said earlier, the word secular was

inserted in the Constitution by the 42nd Amendment. Further, the 45th Amendment lays

down that the term secular means that all religions command equal respect and recognition
from the state. This clearly is passive position. Moreover, the constitution is indeed a very
imperfect medium to determine the actual perceptions of the people on any subject. The
ideology and policy of secularism has created the Constitution position notwithstanding, an
environment and ethos of anti-religion, or the fear of religion, or religious attitudes in the
minds of people, particularly the highly “educated”, the elite, and the youth in India. This is
shown by the constant cry in all types of circles for the separation of religion and politics.
Contrary to the spirit of Constitution, the politicians, the intellectuals, and others have
worked to create, and have succeeded in creating, a “rigid wall of separation between the
state and religion”.

Similarly, there is now in atmosphere wherein the issues are posed as if the
constitution forbids us from being religious and from adopting religious ways and manners

61
in the conduct of the affairs of the state and state-related (affiliated) organizations and
institutions. It is thought that we have failed to be secular if a person belonging to a religious
organization or order is admitted to or invited to a public institution, or if the public
institution celebrates the birthday of some religious personality or some saint. It has come to
be widely accepted that since India is a secular country, the religion may be practiced
privately or individually, but it cannot play any direct, active, and important role in the
public or social life, and in the affairs of the nation. The ethos nurtured by secularism in
India has been such that a reference to or a talk of or a practice of religion tends to cause a
fear of ridicule and embarrassment. The religious matters are characterized by a defensive
attitude, an apologetic feeling, and a skeptical or an antagonistic stance.66

Upendra Baxi expressed his views “Secularism” in the Indian Constitution connotes:
(i) The State by itself, shall not espouse or establish or practice any religion; (ii) public
revenues will not be used to promote any religion; (iii) the State shall have the power to
regulate any „economic, financial or other secular activity‟ associated with religious
practice; (iv) the State shall have the power through the law to provide for „social welfare
and reform or the throwing open of the Hindu religious institutions of public character to all
classes and sections of Hindus; (v) the practice of untouchability outlawed by Article 17;
(vi) every individual person will have, in that order, an equal right to freedom of conscience
and religion; (vii) these rights are however subject to the power of the State through law to
impose restrictions on the ground of „public order, morality and health‟; (viii) these rights
are furthermore subject to other fundamental rights in . Part III.”

The preamble to the Indian Constitution clearly demonstrates resolve of the Indian
people to constitute India as a secular state although the word „secular‟ was inserted in the
Constitution by the Constitution (Forty- second) Amendment Act, 1976. The Constitution
nowhere defines the word secular67

In the opinion of H.M. Seervai, “Secular may be opposed to religious in the sense
that a secular State can be an anti-religious State. In this sense, the Constitution of India is
not secular, because right to freedom of religion is a guaranteed fundamental right”.
Realizing need to define the word „secular‟ the Constitution (Forty-fifth) Amendment Bill,
1978 proposed an amendment in Article 366 (1) stating that the expression "Republic‟ as

66
P.B. Gajendragadkar, Secularism and the Constitution of India, op.cit, p. 52.
67
Upender Baxi Constitutional Law of India
62
qualified by the expression "Secular" means a republic in which there is equal respect for all
religions.68

3.8 The Supreme Court and Secularism

The constitutional provision have raised problem of interpretation. On the hole, the
supreme court has interpreted these provision with a view to promote inter-religious amity,
harmony and accord .The court has ,on whole ,leaned towards the minority groups and has
conceded to theme certain rights over and above the majority rights.

Is India, a secular State was never considered as an irreligious or atheistic State. It

only means that in matters of religion it is neutral. It is the ancient doctrine in India that the
state protects all religions but interferes with none.

The constitution definitely expressed its attitude toward religion in Article 25-28;
29(2), 30 (together with Article, 15(1).1+6[2] the implications of each of which have
received interpretations from the highest tribunal .i.e. the supreme court, in various cases,
The supreme court had explained the Secularism and the secular character of the Indian
constitution through its important judgments, Eminent jurists also expressed their views on
the concept of secularism.

In Kesavananda Bharati head of Edneer math in Kerala69 (1973) the Supreme Court
said that the Constitution has certain ‘fundamental features’ constituting ‘its basic structure’,
the core that was beyond the amending powers of the Parliament. Keshvananda timely
established that the Supreme Court was unmatched in authority when it came to
constitutional matter. Supreme Court significantly broadened the scope of its judicial review
by assuming the power to scrutinize all constitutional amendments - not just those affecting
fundamental rights. If the parliament has had an unfettered right to amend the constitution,
the Supreme Court had said coextensive power to review and

Secularism was cited as one such basic feature. Kesavananda bhatri case which was
decided by the full constitutional bench of judges on April 24, 1973. By a water- thin
majority of 7-6, the Supreme Court held that the power to amend the constitution under
Artical368 could not be exercised in such a manner as to destroy or emasculate the

68
Seervai H.M., Constitutional Law of India, Universal Law Publishing Co. Pvt. Ltd., 4th Edition, Vol. 1,
II,III.p. 277.
69
Keshvanand Bharti V. state of Kerala AIR1972, SC 146
63
fundamental feature of the constitution. In identifying the features, which are fundamental
and thus non amendable in the constitution was this statement-

A secular state, that is a state in which there is no state religion.

Two years later (1975) in the case concerning the election of Indira Nehru Gandhi
70
the Court said that secularism was inalienable from the Constitution and the polity established
under it. In those two cases the Court did not elaborate on the nature of secularism as there was
no occasion for it. But from the one or two sentences in the two judgments (Shelat and Grover
JJ. in Kesavananda Bharati and Chandrachud J. in Indira Nehru Gandhi) it appears that the
Court was referring, in the abstract, to the first principles of western secularism that prohibit the
State to have any religion of its own and give the individual the freedom of conscience and the
right freely to profess, practice and propagate religion. After Kesavananda Bharati and Indira
Nehru Gandhi the Supreme Court reiterated in a number of decisions that secularism is a basic
feature and a part of the basic structure of the Indian Constitution and it could not be in any way
undermined either by any legislative enactment or by any executive action. The observations
concerning secularism are made in vastly different contexts and sometimes seem to convey
different meanings of secularism. Here I do not propose to refer to each such decision.
Suffice to note here that this line of decisions reached its high point in Bommai’s case.71

In Bommai the Court was called upon to consider the constitutional validity of the
presidential proclamations issued under Article 35, 622 of the Constitution dismissing the
governments of several States. Among the States hit by the presidential proclamation were
Rajasthan, Madhya Pradesh and Himachal Pradesh. The reports of the Governors of the
three States, that formed the constitutional basis for the Presidential Proclamation, inter alia
stated that the governments of those States had extended active overt and covert support to
communal organizations and individuals, greatly aiding them in the demolition of the Babri
Masjid, the medieval mosque in the North Indian Town, Ayodhya. After the demolition, the
three State Governments made no secret of their abetment in the act but on the contrary took
pride in the fact in their public utterances. According to the Governors ‘reports, the
constitutional machinery in those States had failed. But the undeniable fact was that each of
the three dismissed governments enjoyed clear majority in their respective Assemblies. The
presidential proclamation was, therefore, assailed as an attack on democracy.

70
Indira Gandhi V. Rajnarayan
71
S.R.Bommai and Others V. Union of India and Others (AIR 1994 SC, 1918).
64
 But the Court was firm and unyielding in the defense of secularism. Seven out of the
nine Judges constituting the Bench resolutely reiterated the view that secularism was the
basic feature of the Constitution and in case a State Government acted contrary to the
constitutional mandate of secularism or, worse still, directly or indirectly, subverted the
secular principles, that would be tantamount to failure of the constitutional machinery and
the State Government would make itself.

In an early case after the commencement of the Constitution a court had examined
the US principle of the 'wall of separation' between religion and State and Concluded that
there are provisions in the Indian Constitution which are ‘inconsistent with the theory that
there should be a wall of separation between Church and State' - Narayanan Namboodripad
v. State of Madras72.

In the leading case of S.R Bommai v. Union of India (1994)73 various judges of the Supreme
Court of India individually explained the significance and place of secularism under the
Constitution in very meaningful words sampled below:

1. The Constitution has chosen secularism as its vehicle to establish an egalitarian

social order. Secularism is part of the fundamental law and basic structure of the
Indian political system.
2. Notwithstanding the fact that the words 'Socialist' and 'Secular' were added in the
Preamble of the Constitution, the concept of secularism was very much embedded in
our constitutional philosophy from the very beginning. By this amendment what was
implicit was made explicit.
3. Constitutional provisions prohibit the establishment of a theocratic State and prevent
the State from identifying itself with or otherwise favouring any
particular religion
4. Secularism is more than a passive attitude of religious tolerance. It is a positive
concept of equal treatment of all religions.
5. When the State allows citizens to practice and profess their religion, it does not
either explicitly or implicitly allow them to introduce religion into non-religious and
secular activities of the State. The freedom and tolerance of religion is only to the

72
AIR 1955 Mad 385
73
S.R.Bommai and Others V. Union of India and Others (AIR 1994 SC, 1918).
65
 extent of permitting pursuit of spiritual life which is different from the secular life. The
latter falls in the exclusive domain of the affairs of the State.

In this case the meaning and content of secularism were dealt with at length by the
Supreme Court. Religious tolerance, equal treatment of all religious groups and protection
of their life and property and of the places of their worship have been held to be an essential
part of secularism enshrined in our Constitution. From the point of view of the State, the
religion, faith or belief of a person has been held to be immaterial. For the State, all are
equal and all are entitled to be treated equally. Preference or promotion of a particular
religion, race or caste, which necessarily means a less factorable treatment of all other
religions, races and castes, does not permit of equal treatment. Only the eschewing of the
religion, faith or belief of a person from its consideration altogether while dealing with him,
his rights, his duties and his entitlements would permit the realizing of the Constitutional
promises of social justice, liberty of belief, faith or worship and equality of status and of
opportunity. Secularism, it was emphasized, “is thus more than a passive attitude of
religious tolerance. It is a positive concept of equal treatment of all religions.” The Court
further held that, “The acts of a State Government which are calculated to subvert or
sabotage secularism as enshrined in our Constitution, can lawfully be deemed to give rise to
a situation in which the government of the State cannot be carried on in accordance with the
provisions of the Constitution” and any step inconsistent with the Constitutional policy
would be unconstitutional.

The Constitutional provisions, the Court emphasized, by implication prohibit the

establishment of a theocratic State and further prevent the State from either identifying itself
with or favoring any particular religion or religious sect or denomination, the State having
been enjoined to accord equal treatment to all religions and religious sects and
denominations. Thus, the mixing of religion with any secular activity of the State is
forbidden. Tolerance of religion does not make India a theocratic State. For ‘When the State
allows citizens to practice and profess their religion, it does no either explicitly or implicitly
allow them to introduce religion into non-religious and secular activities of the State. The
freedom and tolerance of religion is only to the extent of permitting pursuit of spiritual the
life which is different from the secular life. The latter falls in the exclusive domain of the
affairs of the State.”

66
 The acceptance of this goal of secularism, the Court further declared, is not merely the
result of a historical legacy and a necessity for unity and integrity” … but also as a creed of
universal brotherhood and humanism. It is our cardinal faith. Any profession and action
which go counter to the aforesaid creed are a prima facie proof of the conduct in defiance of
the provisions of our Constitution.”

The Court upheld the right of the State to make laws regulating the secular affairs of
temples, mosques and other places of worship and math’s as also power of the parliament to
form and rationalize personal laws.

It unequivocally forbade any political party from mixing religion with politics. The
Constitution, the Court held, requires not only the State, but the political parties as well, to
be secular in thought and action. Further, no political party or organization may fight
election on the basis of a religious plank, which would result in erosion of the secular
philosophy of the Constitution. Such a party or organization would be deemed guilty of
following an unconstitutional course of action.

In Aruna Roy v. Union of India the Supreme Court74 has ruled that the concept of
secularism is not endangered if the basic tenants' of all religions all over the world are
studied and learnt, Value-based education with help the nation to fight against fanaticism; ill
will violence are learnt.

In 2002 a PIL (Public Interest Litigation) was filed questioning the Curriculum for
School Education framed by the National Council for Educational Research and Training on
the ground that it was heavily loaded with religion and the contents of the Vedas. It was
contended that the inclusion of religion, Sanskrit, Vedic Mathematics, Vedic Astrology etc.
in the courses of study for the schools was contrary to secular principles. The curriculum
prepared by the NCERT, was, therefore, bad as it offended one of the fundamental features
of the Constitution. Dharmadhikari J. one of the members of the three-judge Bench wrote a
separate, though concurring judgment in which he discussed in some detail about the true
nature of secularism. He observed that the doctrine of the State’s neutrality towards all
religions was a narrow concept of secularism. He further observed that, the policy of
complete neutrality towards religion and apathy for all kinds of religious teachings in
institutions of the State had not done any good to the country. The real meaning of

74
AIR 2002 SC.3176
67
secularism in the language of Gandhi is “sarva dharma samabhav” meaning equal treatment
and respect for all religions, but we misunderstood the meaning of secularism as negation of
all religions”. In the Aruna Roy case the Court upheld the constitutional validity of the
national curriculum overlooking the fact that what were included in the curriculum were not
religious teachings of all kinds but only of one particular kind. It also unfolded, on the
authority of Gandhi, a view of secularism that one would find it very difficult to reconcile
with Gandhi’s idea on religion and State.

In Aruna Roy the Court held that though the curriculum mentioned the subject as ‘Vedic
Astrology’ its contents were actually in the nature of ‘Vedic Astronomy’ and hence, its
inclusion in the school course was not unjustified. Two years later it upheld the teaching of
Vedic Astrology (Jyotir Vigyan) too as graduate and post-graduate (B.Sc. and M.Sc.) courses in
different universities .The Court did not accept the submission that the prescription of
JyotirVigyan as a course of study had the effect of “saffron sing” education or that it in any
manner militated against the concept of secularism which is part of the basic structure of the
Constitution and is essential for the governance of the country.75

In 2005 an organization representing a section of the Jain community approached the

Court seeking a direction to the Central Government to notify “Janis” as a minority
community. The Court not only firmly rejected the prayer but also expressed its strong
disapproval of the very concept of ‘minority’ .Calling it a baggage from India’s history, the
Court noted, “Muslims constituted the largest religious minority because the Mughal period
of rule was the longest followed by the British Rule during which many Indians had adopted
Muslim and Christian religions…” It further observed that the concept of “minorities” was
the result of the British policy of divide and rule that first led to the formation of separate
electorates and reservations of seats on the basis of population of Hindus and Muslims and
finally led to the partition of India and formation of a separate Muslim State of Pakistan.
The Court pointed out that India was a democratic republic which had adopted the right to
equality as its fundamental creed and hence, the Constitutional ideal should be the
elimination of “minority” and “majority” and the so called forward and backward classes.
The meaning and scope of secularism was again examined by the Supreme Court in M.
Ismail Faruqui v. Union of India.76 Reiterating that the concept of secularism is part of the
basic structure of the Constitution, the Court held it to be one facet of the right to equality

75
Aruna Roy V.Union of India. AIR 2002 SC.3176
76
M. Ismail Faruqui v. Union of India.
68
“woven as the central golden thread in the fabric depicting the pattern of the scheme in our
Constitution.”

In State of Karnataka v. Dr.Pravin Togadia77 reported at the Apex Court observed

that welfare of the people is the ultimate goal of all laws and State action, and above all the
Constitution. They have one common object that is to promote the well-being and larger
interest of society as a whole and not of any individual or particular groups carrying any
brand names. It is inconceivable that there can be social well-being without communal
harmony, love for each other and hatred for none. The core of religion based upon spiritual
values, which the Vedas, Upanishad and Puranas were said to reveal to mankind, seem to be
“Love others, serve others, help ever, hurt never” and “Servae Jana Sukhino Bhavantoo”.
Rajesh Himatlal Solnki v Union of India, Dismissing a petition purportedly filed in public
interest with costs, a Division Bench of the Gujarat High Court in a recent decision has
declared that the "offering of the prayer to the earth at the time of foundation laying
ceremony cannot be termed as non-Secular action if 'manav dharma' is to be understood in
its real sense in furtherance to the principles of secularism to be observed by our nation."

The High Court culled out the legal principles relating to the meaning and ambit of
'Secularism', as propounded by the Constitution of India and went on to examine the various
dimensions of 'dharma' and 'religion' which were not anti-thesis to secular but on the
contrary were founding stones to human spirit and tolerance in public life to hold that
celebrating the foundation of a new building, which essentially was the reason behind
'bhumi-pujan' could not be said to be anti-secular. "Offering of prayer by any person for
betterment of everybody cannot be termed as any activity or any action resulting into non-
Secular activity".

77
State of Karnataka Vs. Dr.Pravin Togadia(2004) 4 SCC 684
69
 CHAPTER: IV

The Freedom of Religion under the Indian Constitution

4. 1 Right to Freedom Religion

In Western political history the concept of secular State and granting of religious
freedom developed out of many different historical situations and philosophical impulses. In
particular, they have been shaped by the process of secularizations of the State and
sundering of the medieval fusion between the Church and the State. In practice, this
separation hasn’t been always complete as seen earlier in chapter one. The question,
however, may be raised whether the separation between religion and the State in the
absolute sense can ever be maintained in this age of ours, when political decisions affect
every aspect of human life, especially moral and religious issues, which people hold
important in their lives.

This chapter Researcher studies the secular provisions of the Indian Constitution that
regulate the manner of separation between religion and the State in the Indian polity. These
provisions do not intend to create a State that marginalizes religion from society, or to

70
follow a policy of strict neutrality towards religion. As we have seen in chapter two, India’s
historical antecedents, and the context in which secularism evolved as a political concept as
well as its historical exigency do not warrant for such policies. The framers of the Indian
Constitution envisaged a model of secular political system that protects all religions with
equal regard (Sarva Dharma Samabhava) but under the framework of an egalitarian social
order, informed by the principles of welfare State consistent with the progressive
enhancement of human dignity.

The State’s approach towards religion embedded in these constitutional provisions is

one that maintains a ‘principled distance’ from religion. This, however, does not prohibit the
State to intervene when practice of religion contravenes public order, morality, health,
egalitarian social order and objectives of the welfare State intended for integrated
development of the individuals and communities. State intervention or non-intervention in
the practice of religion depends upon which of the two better promotes substantive values
like religious liberty, egalitarian social order, social justice and religious harmony which are
constitutive of a life worthy of human dignity for all.

In this context, the Courts in India have taken upon themselves the task of giving
judicial definition to ‘religion’ protected under the secular provisions of the country’s
Constitution. They also have the burden of doing the sensitive job of differentiating ‘matters
of religion’ protected under the same provisions from matters of secular interest added or
associated with religious practices, which may be liable to the action of the State when
needed to maintain common good and to promote social welfare and reform. Hence, in this
chapter our study is directed towards the contribution of the Indian judiciary by way of
judgments issued by the Courts on several cases associated with religion allegedly affected
by State intervention. The contributions of the Courts are very useful for us to understand
the fundamental principle underlying the political philosophy of Indian secularism. Most of
the cases selected for our study appeared before the Supreme Court of India in the 1950s
and 1960s. These are of historic importance, because those were the important times in the
history of the young nation in setting up the road map for public life regulated by secular
laws governing people’s everyday life. Articles 25 to 30 and 325 of the Constitution contain
the secular provisions. The central provisions are given in articles 25 and 26, which deal
with individual and corporate freedom of religion. Most of our research would revolve
around these 25 to 30 articles. Researcher studies these articles and other allied articles by
going through the judicial decisions on important cases appeared before the Supreme Court
71
of India. We also substantiate our study by researching through the documents of the
Constituent Assembly Debates, the commentaries of the Constitution, and opinion of the
scholars. We limit our material for investigation only to those provisions dealing with the
free exercise of religion and state restriction, state’s assistance to religion, and religion and
the welfare state. These are directly connected with a set of substantive values that protect
equal dignity for all.

4.1.1 The Need and Basis of Religion

The Concept of secularism has been discussed in the previous chapter. Let us now
find out if there is any correlation between religion and secularism and if there exists any
correlation, then what is its nature. Before one can establish whether or not any correlation
ship exists between religion and secularism, it is desirable to have a clear understanding of
the two concepts. The concept of secularism has already been dealt with in the preceding
pages. Let us now explore the concept of religion both in the Western and the Indian
context.

One of the rights guaranteed by the Indian Constitution is the right to Freedom of
Religion. As a secular nation, every citizen of India has the right to freedom of religion i.e.
right to follow any religion. As one can find so many religions being practiced in India, the
constitution guarantees to every citizen the liberty to follow the religion of their choice.
According to this fundamental right, every citizen has the opportunity to practice and spread
their religion peacefully. And if any incidence of religious intolerance occurs in India, it is
the duty of the Indian government to curb these incidences and take strict actions against it.
Right to freedom of religion is well described in the Articles 25, 26, 27 and 28 of Indian
constitution.

The Constitution of India guarantees the protection of certain fundamental rights.

They are given in articles 12 to 35, which form Part III of the Constitution. Among them
articles 25 and 26 are the two central articles guaranteeing religious freedom.

Article 25 reads:

72
(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 economic, 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 andsections of Hindus78.

Explanation I. - The wearing and carrying of kirpans shall be deemed to be included in the
profession of the 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. Article 26 reads:

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.

The religious freedom of the individual person guaranteed by the Constitution of

India is given in clause (1) of article 25 that reads: 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. In precise terms,
the Constitution makes it clear that the rights provided in clause (1) of article 25 are subject
to public order, morality and health and to the other provisions of Part III of the Constitution
that lays down the fundamental rights. Clause (2) of article 25 is a saving clause for the
State so that the religious rights guaranteed under clause (1) are further subject to any
existing law or a law which the State deems it fit to pass that (a) regulates or lays restriction

78
P.B. Gajendragadkar, The Constitution of Inda.op,cit.13-14/40-41
73
on any economic, financial, political or other secular activity which may be associated with
religious practices, or, (b) provides for social welfare and reform or the throwing open of
Hindu religious institutions of a public character to all classes and sections of Hindus.79

Similarly Article 26 is the main article that provides the corporate freedom of
religion governing the relation between the State and 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. Clause (b) of article
26 guarantees to every religious denomination or any section thereof the right to manage its
own affairs in matters of religion and clause (d) gives them the right to administer their
property (institutions) in accordance with laws passed by the State.

It is obvious from the language of the clauses (b) and (d) of article 26 that there
is an essential difference between the right of a denomination to manage its religious affairs
and its right to manage its property.
This means that a religious denomination’s right to manage its religious affairs is a
fundamental right protected by the Constitution. No legislation can violate it except for
health, morality and public order. But the right to administer property associated with
religion can be exercised only “in accordance with law”. In other words, the State can
regulate the administration of religious property by way of validly enacted laws. Hence, in
the exercise of individual and corporate freedom of religion as guaranteed in articles 25 and
26 of the Constitution of India, it is necessary to understand the judicial definition of
‘religion’ as given in article 25(1) and ‘matters of religion’ as provided in article 26(b). To
define religion for judicial purposes has been an onerous job for the judiciary both in the
Western countries and in India.

4.1.2 Judicial Perception of the Right to Freedom of Religion

The term ‘religion’ has not been defined in the Constitution and it is hardly
susceptible of any rigid definition. The Supreme Court has defined it in number of cases. A

79
V.D.Mahajan, Constitutional law of India p.232-241.
74
religion is certainly a matter of faith and is not necessarily theistic. Religion has its basis in
“a system of beliefs or doctrines which are regarded by those who profess that religion as
conducive to their spiritual well being”, but it would not be correct to say that religion is
nothing else but a doctrine or belief. A religion may not only lay down a code of ethical
rules for its followers to accept, it might prescribe rituals and observances, ceremonies and
modes of worship which are regarded as integral part of religion and these forms and
observances might extent even to matters of food and dress.80 Subject to certain limitations,
Article 25 confers a fundamental right on every person not merely to entertain such
religious beliefs as may be approved by his judgment or conscience but also exhibit his
beliefs and ideas by such overt acts and practices which are sanctioned by his religion. Now
what practices are protected under the Article is to be decided by the courts with reference
to the doctrine of a particular religion and include practices regarded by the community as
part of its religion. The courts have gone into religious scriptures to ascertain the status of a
practice in question.81 In numerous cases the courts have commented upon, explained an
interpreted the provisions of the Constitution on equality, non discrimination and religious
freedom. The decisions in most of these cases have been given is the contexts of the rights
of particular religious communities or under sped; laws relating to such communities. A
brief on major decisions follows.

In India the need to define religion was raised for the first time by Dr.B.R.
Ambedkar when the matter pertaining to personal law and its relation to religion came for
discussion in the Constituent Assembly. He pointed out: The religious conceptions in this
country are so vast that they cover every aspect of life from birth to death. There is nothing
which is not religion and if personal law is to be saved I am sure about it that in social
matters we will come to a standstill…There is nothing extraordinary in saying that we ought
to strive hereafter to limit the definition of religion in such a manner that we shall not extend
it beyond beliefs and such rituals as may be connected with ceremonials which are
essentially religious. It is not necessary that the sort of laws, for instance, laws relating to
tenancy or laws relating to succession should be governed by religion…I personally do not
understand why religion should be given this vast expansive jurisdiction so as to cover the
whole of life and to prevent the legislature from encroaching upon that field.

80
Commissioner of H.R.E. v. Lakshmindra, A.I.R. 1954. S.C. 282 at 290. Seshammal v. State of Tamil Nadu
(1972) 2 S.C.C. 11.
81
In Rajasthan v. Sajjanlal, A.I.R. 1975 S.C. 706, the Supreme Court surveyed the Jain religious tenants as
regard to the management of Jain religion endowments. Constitutional Assembly
75
 In the opinion of Dr. B.R. Ambedkar, what constitutes a ‘religion’ or ‘matters of
religion’ is to be ascertained by limiting to religious beliefs and ceremonials, which are held
as essentially religious in a particular religion, which is under judicial review. The Indian
Constitution has no explicit definition of ‘religion’ or ‘matters of religion’. Under the
directive of article 32 of the Constitution, which provides the right to constitutional
remedies, it is left to the Supreme Court to decide on the judicial meaning of such terms. In
the early 1950s in a number of cases the Courts in India had been faced with the problem of
defining ‘religion’ as given in article 25 (1) and ‘matters of religion’ as provided in article
26 (b). Researcher shall now proceed to examine some of those specific cases, which were
appealed before the Supreme Court of India for judicial classification.

Researcher study some of cases of historical importance where need arose to give
judicial definition to “religion” and “matter of religion.” These are (1) Commissioner, Hindu
Religious Endowments, Madras v. Shri Lakshmindra Tirtha Swamiar of Shri Shirur Matt (2)
Ratilal Panachand Gandhi v. State of Bombay, (3) Mohammad Hanif Quareshi v. State of
Bihar. (4) Durgah Committee, Ajmer v. Syed Hussain Ali, and (5) Tilkayat Shri Govindlalji
Maharaj v. State of Rajasthan.

1. Commissioner, Hindu Religious Endowments, Madras v. Shri Lakshmindra

Tirtha Swamiar of Shri Shirur Matt. (Hereafter Researcher will be referred to
as the Shri Lakshmindra case);

The Shri Shirur matt case82 arose out of the Madras Hindu Religious and Charitable
Endowments Act 195183 passed by the Madras legislature in 1951. The object of the Act, as
stated in its preamble, was to amend and consolidate the law relating to the administration
and governance of Hindu religious and charitable institutions and endowments in the State
of Madras. The Act contained sections dealing with the powers of the State with regard to
the general administration of the Hindu religious institutions, their finances and certain other
miscellaneous subjects.

82
Commissioner, Hindu Religious Endowments, Madras v. Shri Lakshmindra Tirtha Swamiar of Shri Shirur
Mutt, AIR 1954 SC 282.
83
Madras Hindu Religious and Charitable Endowment Act, 1951 (Madras Act 19 of 1951).
76
 Section 20 of the Act dealt with matters pertaining to the administration of Hindu
religious endowments that were to be placed under the general superintendence and control
of the Commissioner. The Commissioner was authorized to pass orders, which he deemed
necessary, for the proper administration of these religious endowments. He was to ensure
that the income from these endowments was spent for the purposes for which they were
founded. Section 21 of the Act gave the Commissioner, the Deputy and Assistant
Commissioners, and such other officials as might be authorized, the power to enter the
premises of any religious institution or any other place of worship for the purpose of
exercising any power conferred, or discharging any duty imposed by or under the Act,
provided that the concerned officer exercising such power was a Hindu.

Section 23 of the Madras Hindu Religious and Charitable Endowments Act of 1951
provided that the trustee of a religious institution was to obey all lawful order issued under
the Act by the Government, the Commissioner and other such officials. Section 56 stated
that the Commissioner was empowered to ask the trustee to appoint a manager for the
administration of the secular affairs of the institution and in default of such an appointment
he could make the appointment himself. The rest of the sections dealt with the financial
aspects of the religious bodies.

On constitutional grounds, the validity of the Act was challenged by Shri

Lakshmindra Tirtha Swamiar, the mathadhipati of Sirur math who assumed also the office
of mathadhipati of Udipi math at a time when it was under financial crisis. The Hindu
Religious Endowment Board stepped in at this point to assist the Udipi math in getting out
of its financial problems. Apparently the Mathadhipati, Shri Lakshmindra Tirtha Swamiar,
consented to the intervention as he signed over power of attorney to the manager appointed
by the Board. But it seemed that the manager wanted his own way in all affairs of the math.
This caused the mathadhipati to retract his power of attorney and to ignore the efforts of the
Board, which filed a case against the mathadhipati. The mathadhipati appealed to the
Supreme Court on the ground that the Board, whose powers were alleged to be
unconstitutional, had violated his constitutional guarantees under articles 25 and 26 of the
Constitution.

The Supreme Court found the case in favour of the math. While giving the judgment,
it seems that the Court has taken a thoughtful approach to the meaning of “religion.”
Besides the Supreme Court seemed to have given an indigenous meaning to what includes

77
into the category of “secular activities” associated with religion. This ruling of the Supreme
Court has been considered as one of the most important decisions in Indian jurisprudence
with regard to the definition of religion.84 Mr. Justice Mukerjea who spoke for the
unanimous decision of the Court pointed out that the resolution of the dispute hinged on the
clarification of what ‘matters of religion’ are. He said:

The word “religion” has not been defined in the Constitution and it is a term which
in hardly susceptible of any rigid definition. In an American case (vide Davis v. Benson,
133 U.S. 333 at 342), it has been said “that the term ‘religion’ has reference to one’s views
of his relation to his Creator and to the obligations they impose of reverence for His Being
and character and of obedience to His will. It is often confounded with cult us of form or
worship of a particular sect, but is distinguishable from the latter.” We do not think that the
above definition can be regarded as either precise or adequate. Articles 25 and 26 of our
Constitution are based for the most part upon article 44(2) of the Constitution of Eire and
we have great doubt whether a definition of “religion” as given above could have been in
the minds of our Constitution-makers when they framed the Constitution. Religion is
certainly a matter of faith with individuals or communities and it is not necessarily theistic.
There are well known religions in India like Buddhism and Jainism, which do not believe in
God or in any Intelligent First Cause. A religion undoubtedly has its basis in a system of
beliefs or doctrines that are regarded by those who profess that religion as conducive to their
spiritual well being, but it would not be correct to say that religion is nothing else but a
doctrine or belief. A religion may not only lay down a code of ethical rules for its followers
to accept, it might prescribe rituals and observances, ceremonies and modes of worship
which are regarded as integral parts of religion, and these forms sand observances might
extend even to matters of food and dress.85 This passage, which has been frequently quoted
by judges and jurists, broadened the protection guaranteed in the Constitution ‘to practice
religion’ as given in article 25(1). Commenting on clauses (b) and (d) of article 26, the
Supreme Court held in the instant case:

Under Article. 26 (b), therefore, a religious denomination or organization enjoys

complete autonomy in the matter of deciding as to what rites and ceremonies are essential

84
Richard W. Lariviere, “The Indian Supreme Court and The Freedom of Religion”, in Journal of
Constitutional and Parliamentary Studies, vol. IX, no.2 (1975), p. 176
85
Commissioner, Hindu Religious Endowments, Madras v. Shri Lakshmindra Tirtha Swamiar of
Shri Shirur Matt, AIR 1954 SC 282, at 290
78
according to the tenets of the religion they hold and no outside authority has any jurisdiction
to interfere with their decision in such matters.

Of course, the scale of expenses to be incurred in connection with these religious

observances would be a matter of administration of property belonging to the religious
denomination and can be controlled by secular authorities in accordance with any law laid
down by a competent Legislature; for it could not be the injunction of any religion to
destroy the institution and its endowments by incurring wasteful expenditure on rites and
ceremonies. It should be noticed, however, that under Art.26 (d), it is the fundamental right
of a religious denomination or its representative to administer its properties in accordance
with law; and the 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 a violation of
the right guaranteed under cl. (d) of Art.26.

2. Ratilal Panachand Gandhi v. State of Bombay. (Hereafter Researcher will be

referred to as the Ratilal case);

The Ratilal case,86 the Supreme Court was once again appealed to decide on the judicial
application of ‘religion’ and ‘matters of religion’ as implied in the right to exercise of
religion protected under articles 25 and 26 of the Constitution. The case arose out of the
Bombay Public Trust Act, 1950,87 passed by the Bombay State Legislature. Similar to the
Madras Act of 1951,88 the object of the Bombay Act as stated in its preamble was to
regulate and to make better provision for the administration of public religious and
charitable trusts in the State of Bombay.

Section 18 of the Bombay Public Trust Act, 1950, declared that it was obligatory upon
the trustee of every public trust to which the Act applied, to make an application for the
registration of the trust. Like section 21 of the Madras Act of 1951, section 37 of the
Bombay Act also authorized the Charity Commissioner and his subordinate officers to enter

86
Ratilal Panachand Gandhi v. State of Bombay, AIR 1954 SC 388.
87
Bombay Public trust Act, 1950 (Bombay Act 29 of 1950).
88
Madras Hindu Religious and Charitable Endowments Act, 1951 (Madras Act 19 of 1951).
79
and inspect any property belonging to a public trust. Section 44 of the Act provided that the
Charity Commissioner might be appointed by a Court of competent jurisdiction or by the
author of the trust to act as a sole trustee of a public trust. Section 74 gave powers to the
Court to appoint a new trustee or trustees and the Court, after making inquiries, could
appoint the Charity Commissioner or any other person as a trustee to fill up vacancies.

The Manager of a Jain public temple and Trustees of Parsi Panchayat Funds and
Properties in Bombay challenged before the Bombay High Court 89the constitutional validity
of the Bombay Public Trust Act of 1950. It was done on the ground that the provisions of
the Bombay Act of 1950 contravened freedom to practice religion as guaranteed in article
25 (1) and freedom to manage matters of religion as protected by article 26 (b) of the
Constitution. The Bombay High Court denied the petition in the light of sub- clause (c) and
(d) of article 26 of the Constitution, which provides the State with authority to enact the
legislation as given in the Bombay Act 90Therefore, the Bombay High Court resolved the
case in favour of the State on the basis of the definition that the Court gave to religion in the
instant case. This definition reduced religion to spiritual and moral aspects only and
eliminated secular activities, like the property ownership and expenditure associated with
religious practices, from the protection guaranteed in the Constitution. The Chief Justice,
Mr. M.C. Chagla who delivered the judgment of the Bombay High Court said: “Religion” as
used in arts. 25 and 26 must be construed in its strict and etymological sense. Religion is
that which binds a man with his Creator, but Mr. Sommaya on behalf of his client
(Panachand) says that as far as Janise are concerned they do not believe in a Creator and that
distinction would not apply to the Jains. But even where you have a religion which does not
believe in a Creator, every religion must believe in a conscience and it must believe in
ethical and moral precepts. Therefore whatever binds a man to his own conscience and
whatever moral and ethical principles regulate the lives of men that alone can constitute
religion as understood by the Constitution. A religion may have many secular activities, it
may have secular aspects, but these secular activities and aspects do not constitute religion
as understood by the Constitution. There are religions which bring under their own cloak
every human activity. There is nothing which a man can do, whether in the way of clothes
or food or drink, which is not considered a religious activity. But it would be absurd to
suggest that a Constitution for a secular State ever intended that every human and mundane

89
Ratilal Panachand Gandhi v. State of Bombay, 1953 ILR, Bombay 1187.
90
Bombay Public trust Act 1950 (Bombay Act 29 of 1950)
80
activity was to be protected under the guise of religion, and it is therefore in interpreting
religion in that strict sense that we must approach arts. 25 and 26.

In the Shri Lakshmindra and the Ratilal cases, the Supreme Court of India has given a
liberal approach to the meaning of religion which includes not only faith, belief, doctrines,
code of ethical rules but also rituals, ceremonies and observances done in pursuance of
religious belief, which are regarded conducive to spiritual well being. It is surprising,
however, that in two subsequent cases, Quareshi and Durgah Committee, the Supreme
Court had given a guarded interpretation when it had to decide on ‘matters of religion’ as
referred to in article 26 (b).

1. Mohammad Hanif Quareshi v. State of Bihar. (Hereafter Researcher will be

referred to as the Quareshi case)

91
The Quareshi case is about prohibiting the slaughter of cows. It has got long
constitutional history. The Constitution of India has certain Directives to the States that they
expect to keep in view in the conduct of their policies. These Directives listed in Part IV of
the Constitution under the heading ‘Directive Principles of State Policy’. The Directive
Principles are different from the rest of the articles of the Constitution in the sense that they
are non-justifiable because they don’t have a legal force to bind them. That is, if the State
acts in a way contrary to the Directives laid down in Part IV of the Constitution; its action
cannot be challenged in the Court.

It is held that the Directive principles are, nevertheless, important. Their importance
consists, as commented by M.C. Setalvad, a former Attorney-General of India, that ”they
appear to be like an instrument of instructions, or general recommendations addressed to all
the authorities in the Union reminding them of the basic principles of the new social and
economic order, which the Constitution aims at building.”92 Hence, article 48 of the
Constitution of India is one of the Directive Principles. The objectives of this article are for
the development of agriculture and animal husbandry on modern and scientific lines as well
as for the preservation and improvement of the breeds of cattle, and prohibition of the
slaughter of .cows and calves and other milch and draught cattle. Article 48 reads:

91
Mohammad Hanif Quareshi V. State of Bihar, AIR1958 SC.731
92
V. D. Mahajan, Constitutional Law of India, op.cit. pp. 298-309.
81
 The state shall endeavor to organize agriculture and animal husbandry on modern and
scientific lines and shall, in particular, take steps for preserving and improving the breeds,
and prohibiting the slaughter of cows and calves and other milk and draught cattle.

It may be appropriate here to point out that the directive for the prohibition of cow-
slaughter as referred to in article 48, was made mainly out of respect for the religious
sentiments of the majority community, the Hindus. As it is well known in India, cow has
great religious significance for them. This article did not find a place in the Draft
Constitution but was incorporated during the debates in the Constituent Assembly. Most of
the members of the minority communities, the non-Hindus, who were in the Constituent
Assembly, seemed to have consented to the Hindu religious sentiments associated with the
provision against cow-slaughter However; some held that the Hindu sentiments
predominated in the Constitution.93

As follow-up to these Directives, some State Governments94 have enacted legislation

banning the slaughter of cows. Shortly after these enactments, three cases were petitioned
before the Supreme Court challenging their constitutional validity. 95i The petitioners were
Muslims, mostly of the Quareshi community, who were traditionally engaged in the
butcher’s trade. The first among the three was the Quareshi case that challenged the
legislations of the all three States, namely Bihar, Uttar Pradesh and Madhya Pradesh on the
ground that they violated the constitutional right of the petitioners to carry out their trade. 96

The petitioners also contended that these legislations infringed on their right to practice
religion because Islam enjoined on every Muslim to sacrifice one goat on the Bakr-Id day
(the festival of sacrifice) or seven persons together may even sacrifice one cow. They
claimed that cow sacrifice was customary among Indian Muslims on Bakr-Id day and the
practice was “certainly sanctioned by their religion.”97 Therefore, cow sacrifice was part of
their practice and profession of religion protected by article 25 of the Constitution. The
Bihar Act placed a total ban on slaughter of all types of animals of the species of bovine
cattle while the Uttar Pradesh Act did not protect the slaughter of buffaloes and the Madhya

93
Austin Granville, The Indian Constitution: Cornerstone of a Nation (Oxford, Clarendon Press, 1966) p..
94
The Bihar Preservation and Improvement of Animal Act, 1956 (Bihar Act 2 of 1956); Uttar Pradesh
Prevention of Cow Slaughter Act, 1955 (U.P. Act 1 of 1956); Central Province and Bihar Animal
Preservation Act, 1949 (C.P & Bihar Act 52 of 1949) as amended by Madhya Pradesh Acts 32 of 1951 and
10 of 1956. etc.
95
Mohammad Hanif Quareshi v. State of Bihar, AIR 1958 SC 731
96
Clauses (1) g and (6) of article 19, The Constitution of India.
97
Mohammad Hanif Quareshi v. State of Bihar, AIR 1958 SC 731, at 740
82
Pradesh Act allowed such slaughter under a certificate issued by certain authorities as
mentioned in the Act. In dealing with this case, the Supreme Court traced the history of cow
slaughter in India and indicated that in the past many Muslim kings prohibited cow
slaughter even on the Bakr-Id day. Chief Justice Mr. Das who delivered the judgment of the
Court stressed that the Islamic law gives option to sacrifice a camel instead of a cow or even
permits to give gifts of charity as a substitute for animal sacrifice on the Bakr-Id day. Chief
Justice Mr. Das argued further, as claimed by the State, that many Muslims do not sacrifice
a cow on the Bakr-Id day. He, moreover, pointed out that three members of the
Gosamvardhan (cow protection) Enquiry Committee appointed by the Government of Uttar
Pradesh were Muslims. All the three concurred with the unanimous recommendation of the
Committee for total ban on cow slaughter.

Mr. Das, C.J., who issued the judgment of the Court in the Quareshi case, stated that the
Islamic law sanctioned cow sacrifice on the Bakr-Id day but did not enjoin it as an
obligatory overt act in the practice and profession of Islamic faith and therefore, cow
sacrifice was not essential. He said: We have, however, no material on the record before us
which will enable us to say, in the face of the foregoing facts, that the sacrifice of a cow on
that day is an obligatory overt act for a Mussalman to exhibit his religious belief and idea. In
examining this case, the Court acknowledged that Islam sanctioned cow sacrifice.
Nevertheless, Mr. Chief Justice Das ascertained that it was not “an obligatory overt act for a
Mussalman to exhibit his religious belief” because Islamic law provides alternatives. The
Supreme Court noted that instead of a cow, Muslims could sacrifice a camel or do acts of
charity on the day of Bakr-Id. The petitioners of the instant case pleaded that the impugned
laws, if enforced, would affect adversely their trade and, therefore, violated the
constitutional protection guaranteed under article 19(1) (g). The Court ruled that the laws
only regulated and restricted these occupations, but did not deprive the petitioners of their
right to practice them because butchers could still slaughter certain classes of bulls,
bullocks, buffaloes, as well as sheep and goats.

It seems that the Supreme Court’s ruling on this case (Quareshi case) had taken into
consideration the Hindu religious sentiments attached to the legislation of banning cow
slaughter as one of the reasonable elements. Certainly, the Court was equally concerned
with communal riots often arising on account of cow slaughter. The honorable judges of the
Quareshi case acknowledged, “While we agree that the constitutional question before us
cannot be decided on grounds of mere sentiment, however passionate it may be, we,
83
nevertheless, think that it has to be taken into consideration, though only as one of many
elements, in arriving at a judicial decision as to the reasonableness of the restrictions”

2. Durgah Committee, Ajmer v. Syed Hussain Ali. (Hereafter Researcher will be

referred to as the Durgah Committee case)

In the Durgah Committee case,98 an appeal was made once again to decide on “the
matters of religion” which is protected under clause (b) of article 26. The history of the
present case is as follows: In 1955, the Parliament had passed the Durgah Khawaja Saheb
Act, to administer the Durgah and the endowment of the Durgah Khawaja Moinuddin
Christi at Ajmer. This Durgah, which is a Muslim pilgrim centre built at the tomb of
Khawaja Moinuddin Saheb who is a Christi saint, has been visited by both Muslim and
Hindu pilgrims.

Sec 4 and 5 of the Durgah Khawaja Saheb Act of 955, provided for the appointment of a
Durgah Committee by the Central Government to administer and manage the Durgah
endowment According to the terms of sections 4 and 5 of the Act, the members of the
committee nominated by the Government were to be Hanafi Muslims. Section 15 of the Act
laid down the instruction that the Committee should follow the Muslim rules and tenets of
the Christi saint in performing and conducting the established rites and ceremonies at the
tomb of the Christi saint.

The Khadims (the traditional custodians of the tomb) challenged the constitutionality of
the Act on the ground that it infringed upon their rights guaranteed in article 26(b), (c) and
(d). Their challenge succeeded in the High Court of Rajasthan.99 In issuing the judgment,
the Rajasthan High Court observed that the provisions for the appointment of the
Committee members were ultra vires to the extent that the appointment of the Committee
members avoided members of the Chisti order who have the faith in the religious practices
and rituals associated with the Chisti saint shrine. Other provisions of the Act affecting the
privileges and duties of the functionaries of the shrine were also declared violative of
articles 19 and 25 of the Constitution.

98
Durgah Committee, Ajmer v. Syed Hussain Ali, AIR 1961 SC 1402.
99
Syed Hussain Ali v. The Durgah Committee, AIR 1959 Raj 177
84
 On appeal, the Supreme Court found that the provisions of the said Act were not
violative of the Constitutional rights guaranteed to religious communities. The Court
observed that the Act regulated only the secular practices associated with religion, which
were not essential or integral part of religion. Mr. Justice P.B Gajendragadkar who
delivered the unanimous judgment of the Court said: Whilst we are dealing with this point it
may not be out of place incidentally to strike a note of caution and observe 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. Similarly even practices though religious may have sprung from merely superstitious
beliefs and may in that sense is extraneous and unessential accretions to religion itself.
Unless such practices found to constitute an essential and integral part of a religion their
claim for the protection under Article 26 may have to be carefully scrutinized; 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.

In delivering the judgment of the instant case, Mr. P. B. Gajendragadkar, J., who spoke
for the Court, stressed that ‘matters of religion’ protected under article 26

“Are those acts which are treated as essential and integral part by the religion. He
cautioned that otherwise things that are not of religious concern can be brought under its
ambit in such a way that religion can be used or manipulated to legitimate superstitious
beliefs and practices which may harm instead of enabling human well being. This is the
reason for the learned judge to strike a note of caution to differentiate ‘matters of
religion,’ whose protection is guaranteed by the Constitution of India, from secular
activities attached to religious practices.”

3. Tilkayat Shri Govindlalji Maharaj v. State of Rajasthan, (hereafter researcher

will be referred as the Govindlalji case).

85
 When cases have been brought before the Courts in India on contentious issues
regarding ‘matters of religion’ as referred to in clause (b) of article 26 of the Constitution,
judges have relayed on literary sources as well as traditional usages and practices of the
religion which was under scrutiny to ascertain its essential aspects as claimed by the
petitioners or the contending parties. In this regard, it is informative for our purpose to study
the Tilkayat case,100 which throws more light on the Indian judicial position on ‘matters of
religion’ as given in articles 25 and 26 of the Constitution.

The Tilkayat case arose out of the Nathdwara Temple Act of Rajasthan 101 enacted for
the management of the Nathdwara temple through a Board. Section 16 of the Act provided
that subject to the provisions of the Act and of the rules made there under, the Board was to
manage the properties and “affairs of the temple” and arrange for the conduct of daily
worship and ceremonies and of festivals in the temple “according to the customs and usages
of the denomination” to which the temple belonged.

The custodians of the Nathdwara temple challenged the Nathdwara Temple Act of
Rajasthan (Rajasthan Act 13 of 1959) before the Rajasthan High Court. The plaintiffs
petitioned that section 16 of the Act violated the rights of the denomination to administer its
property as protected by clause (d) of article 26 of the Constitution as well as infringed the
denomination’s right to manage its own affairs in “matters of religion” guaranteed by clause
(b) of the same article.

The Rajasthan High Court decided the case in favour of the plaintiffs. The High
Court held that the expression “affairs of the temple” as referred to in section 16 of the
impugned Act was too wide and could include religious affairs of the temple as guaranteed
in article 26 (b) of the Constitution. Therefore, the Rajasthan High Court concluded that the
impugned Act violated the constitutional protection given to religious denomination to
manage its own affairs in matters of religion.

On appeal the Supreme Court reversed the decision of the Rajasthan High Court and
held that the expression “affairs of the temple” covered only the secular affairs of the temple
and, therefore, could not be objected by law. The Supreme Court then pointed out two kinds
of duties, which had been entrusted to the Board of managers: firstly, the Board had to

100
Tilkayat Shri Govindlalji Maharaj v. State of Rajasthan, AIR 1963 SC 1638. 51 Nathdwara Temple Act,
1959 (Rajasthan Act 13 of 1959).
101
Nathdwara Temple Act, 1959 (Rajasthan Act 13 of 1959).
86
manage the properties and secular affairs of the temple. Secondly the Board had to arrange
for the religious worships, ceremonies and festivals in the temple in accordance with the
customs and usages of the denomination to which the temple belonged.Commenting on the
customs and usages associated with religious practices, which were claimed as integral part
of a particular religious denomination, Mr. Justice Gajendragadkar who delivered the
judgment of the Supreme Court in this case made the observation:

In deciding the question as to whether a given religious practice is an integral part of

the religion or not, the test always would be whether it is regarded as such by the
community following the religion or not. This formula may in some cases present
difficulties in its operation. Take the case of a practice in relation to food or dress. If in a
given proceeding, one section of the community claims that while performing certain rites
white dress is an integral part of the religion itself, whereas another section contends that
yellow dress and not the white dress is the essential part of the religion, how is the court
going to decide the question? Similar disputes may arise in regard to food. In cases where
evidence is produced in respect of rival contentions as to the competing religious practices
the court may not be able to resolve the dispute by a blind application of the formula that the
community decides which practice is an integral part of its religion, because the community
may speak with more than one voice and the formula would, therefore, break down. This
question will always have to be decided by the court and in doing so, the court may have to
enquire whether the practice in question is religious in character and if it is, whether it can
be regarded as an integral or essential part of the religion, and the finding of the court on
such an issue will always depend upon the evidence adduced before it as to the conscience
of the community and the tenets of its religion.

4.2 The Nature of Freedom of Conscience, Free Profession, Practice and Propagation
of Religion

Article 25 of the Indian Constitution provides that: Freedom of conscience and

free profession, practice and propagation of religion.

4.2.1. The Free Exercise of Religion

87
 Article 25[1] a person has a two -fold:-[a] freedom of conscience, [b] freedom to
profess, practice and propagate religion. The preceding cases point out that the Supreme
Court of India has held a principled approach towards religion when appealed for judicial
definition of ‘religion’ and ‘matters of religion’ protected under articles 25 (1) and 26 (b) of
the Constitution. As a general rule, it has maintained a liberal definition of religion - as
assumed in most of the liberal democratic States - covering in its ambit belief, doctrines and
moral codes, rituals and observances, ceremonies and modes of worship.102 However, in
some cases, the Supreme Court did not hesitate to pass a strict definition of ‘matters of
religion’ as protected under clause (b) of article 26 of the Constitution limiting them only to
those essentials and obligatory overt acts necessary to express one’s faith.103 These are the
instances where the Court found that certain acts of rituals though sanctioned by a particular
religion, if allowed to perform would violate, on reasonable grounds, social solidarity and
even cause harm to life.

In the context of a religiously plural society like India, where conflicting value
systems often compete with each other, the principled approach of the Supreme Court on
religious matters is to promote religious freedom that secures human dignity. Therefore, the
Court may apply a liberal or a conservative approach towards religion depending on which
of the two better promotes religious liberty consistent with a set of values that protect the
sanctity of human life and provide a life-affirming space for all to live in dignity.

Hence, the Indian judiciary tells in unambiguous language that the Constitution
recognizes the importance of religion in people’s life, and that it holds religious liberty as a
fundamental value of the Indian political community but not at the cost of certain
substantive principles which are necessary in the society for all to lead a life worthy of
human dignity. Religion thrives in India and it remains an integral aspect of Indian ethos. Its
popular practices are multifarious and often unrestrained as shown by Dr. B.R. Ambedkar
during the debates in the Constituent Assembly In this context, the principled approach
founded on reason as held by the Indian Supreme Court regarding religion is an important
requirement to keep religions to be authentic in their practices. Such an interpretation of
religion would remind believers to shed away non-religious and, at times, even unreligious
accretions added to religious practices. It would enlighten the followers of various faith
traditions not to thwart the legitimate activities of the State to further the cause of human
dignity. The individual person’s religious freedom as guaranteed by the Constitution of

102
Commissioner, Hindu Religious Endowments, Madras v. Lakshmindra Tirtha Swamiar of Shri Shirur Mutt,
AIR 1954 SC 282, at 290.
103
Mhm. Hanif Qureshi vs. State of Bihar, AIR 1958 SC 731, at 739
88
India is provided in clause (1) of article 25. Some say104 that this part of the article seemed
to have been based on the clause (1) of article 2 of the Constitution of Eire (1937). Others
say that the tenor of article 25 resonates with the Karachi resolution on the fundamental
right adopted by the Indian National Congress in 1931 that declared, "Every citizen shall
enjoy freedom of conscience and the right freely to profess and practice his religion, subject
to public order and morality.”105Dr. D.D. Basu commented that all the rights pertaining to
religion provided in article 25 of the Indian Constitution appear to be included in the
expression ‘exercise’ clause of the First Amendment to the U.S. Constitution.

The religious freedom guaranteed under article 25 is not limited to the citizens of
India only but also applies to “all persons” as spelt out in clause (1) of the said article.
Question was raised in the Ratilal case106whether the aliens and in particular, the foreign
Christian missionaries who were exclusively engaged in propagating their religion, were
also protected under clause (1) of articles 25 of the Indian Constitution. Mr. Justice
Mukerjea who spoke for the Court said, “Article 25 of the Constitution guarantees to every
person and not merely to the citizens of India, the freedom of conscience and the right freely
to profess, practice and to propagate religion”. Hence in the next section, we shall discuss
the different aspects of the religious freedom protected under article 25 (1).

4.2.2 Freedom of Conscience

Freedom of 'conscience' is absolute inter freedom of the citizen to mould his own
relation with god in whatever manner he like. The Courts have defined freedom of
conscience as the freedom of a person to entertain any belief or doctrine concerning matters,
which are regarded by him or her to be conducive to his or her spiritual well being. 107 The
wording of article 25 of the Indian Constitution, however, seems to suggest that the
individual’s right to hold such belief is subject to public order, morality and health and to
the other provisions of part III of the Constitution.

Under the terms of article 25, it may be asked whether the State may claim any
power over an individual’s freedom of conscience. Dr. Donald E. Smith argued that the
State could have no power over an individual’s freedom of conscience, and, therefore, the
wording of article 25 which apparently implied State’s restriction was due to inaccurate

104
Commissioner, Hindu Religious Endowments, Madras v. Lakshmindra Tirtha Swamiar of Shri Shirur Mutt,
AIR 1954 SC 282, at 290.
105
Donald E. Smith, op.cit. p. 102
106
Ratilal Panachand Gandhi v. State of Bombay, AIR 1954 SC 388
107
V. D. Mahajan., op.cit. pp. 233-234.

89
drafting. It seems, nevertheless, the restrictions to which freedom of conscience may be
submitted as implied in article 25 of the Constitution of India, are not resulting from such
inaccuracy in drafting; rather the said article did not intent to protect freedom of conscience
on religious scruples when it stands opposed to protect public welfare, because the
protection guaranteed to religious freedom is at the same time subject not only to public
order, morality and health but also to the other provisions of Part III of the Constitution.

Hence, in its operation, article 25 is subject to clause (2) of article 23 that is one of
the articles in Part III of the Constitution. Let us look at this provision as given in article 23.
This article states: (1) Traffic in human beings and beggar and other similar forms of forced
labour are prohibited and any contravention of this provision shall be an offence punishable
in accordance with law. (2) Nothing in this article shall prevent the State from imposing
compulsory service for public purposes, and in imposing such service the State shall not
make any discrimination on grounds only of religion, race, caste or class or any of them.

Clause (1) of article 23 protects individual persons against any form of forced labour
or exploitation. It is designed to protect the dignity of the individuals not only against such
actions of forced labour of any sort but also against perpetration of such actions by other
private citizens. This clause has two declarations. The first is that traffic in human beings;
beggar and other similar forms of forced labour are prohibited. The second is that any
contravention of the first provision shall be an offence punishable according to law. Clause
(2) of article 23 is an enabling provision for the State, which makes exception in favour of
the State to impose compulsory service for public purposes provided that in imposing such
services the State does not make any discrimination on grounds only of religion, race, caste
or class or any of them.

It may be noted that conscription for military service neither amounts to traffic in
human beings nor beggar nor other similar forms of forced labour violating a person’s
dignity. Consequently, it is not affected by the prohibition clause of article 23 (1).
Conscription for military service is, nevertheless, a form of compulsory service imposed by
the State for the security of the citizens’ life and property. Hence, it follows that on
occasion, when the State deems it necessary to impose compulsory military service or other
services for the protection of the people, article 25 does not protect exceptions to persons on
account of religious scruples.

90
 It may be also recalled that when the question of conscription for military service
was discussed at great length in the Constituent Assembly, no one raised the question of
granting exception from such services to conscientious objectors on religious grounds,
though difference of opinion arose as to whether a conscription clause should be provided or
not.So far no case against conscription for military service has been brought before the
Courts in India.

However, in a case regarding State of Bihar v. Sir Kameshwar Singh,which appeared

before the Supreme Court of India, the Court had the occasion to give judicial definition to
the term “public purposes” as used in the Constitution. In this case, the appellant challenged
the constitutional validity of compulsory acquisition of private property with due
compensation by the State for “public purposes” on the ground that its objective was not for
public purposes.

The Court held in its interpretation that whatever furthers the general interests of the
community as opposed to the particular interests of the individual must be regarded as a
public purpose.108

Similarly, in the case of Somavanti v. State of Punjab. The Supreme Court was called upon
to define the application of “public purpose.” Once again the Court in its definition of
public purpose said, “Broadly speaking, the expression public purpose would, however,
include a purpose in which the general interests of the community, as opposed to the
particular interests of the individuals, is directly and vitally concerned.” When article 25 is
read with article 23, the intent of the Constitution is that the State stands to provide its
citizens security of life and property and to promote human welfare with the object in view
for the development of people’s life befitting to a life of dignity for all. This cannot be
disturbed by religious belief. Hence, the types of religious practices or beliefs or even
ideologies protected under article 25 are the ones, which support some of these fundamental
humanistic objectives of the Constitution.

4.2.3 Freedom to Profess of Religion

To "profess" a religion means to declare freely and openly ones faith and belief. The
constitutional right to profess religion means a right to exhibit one’s religion in such overt
acts as teaching, practicing and observing religious precepts and ideals in which there is no

108
V. D. Mahajan, op.cit, p. 231.
91
explicit intention of propagation involved. Taking out religious processions, worship in
public places, putting on specific garments include within the ambit of profession of
religion.The Constitution of India, for example, provides the wearing and carrying of
kirpans 109as part of the profession of Sikh religion. The phrase ‘profess a religion’ as given
in article 25 means according to the Supreme Court “to enter publicly into a religious state.”

In the Quareshi case the appellants contended that sacrificing a cow on Bakr-Id day
amounted to profession and practice of Islam, which is protected by article 25 of the
Constitution. Tracing the history of the custom of offering sacrifice of a cow on the Bakr-Id
day, the Supreme Court ruled, “ We have, however, no material on the record before us,
which will enable us to say… that the sacrifice of a cow on that day is an obligatory overt
act for a Mussalman to exhibit his religious belief and idea.

The right to take out religious processions and to have religious gatherings in the
public places fall under the right to profess religion as guaranteed in article 25 (1). The
exercise of this right is, however, subject to public order and morality. The police authorities,
for instance, have been empowered to regulate such overt acts of religious profession.
Section 30 (1) of the police Act authorizes the police to regulate assemblies and processions
and to prescribe the routes and timings for such purposes. Under section 144 of the Code of
Criminal procedure, a magistrate can ban processions and meetings altogether where there is
an apprehension of breach of peace. Such orders are done during the times of communal
tension that is endemic in some parts of the country.

On some occasions of communal and public disturbances, the prohibitive orders can
also include banning of the use of loudspeaker and such electronic devices employed in
religious profession and practice. For instance, the Commissioner of Police in Calcutta
prohibited the use of loudspeakers for prayer in Mosques located in some residential areas in
the city. On challenge, his ban order was held constitutional110The right to profess one’s
religion includes also the right to use all lawful means required for such acts provided they
don’t destroy public peace and order. The protection given under article 25 (1), however,
does not divest the citizens from their duty to co-operate with the State to maintain public
order so that people may live their ordinary life in dignity.

4.2.4 Freedom to Practice of Religion

109
“The wearing and carrying of kirpans shall be deemed to be included in the profession of the Sikh
religion”. Article 25 (b), Explanation - I, The Constitution of India. Kirpan is a sword, one of the five
emblems, which an orthodox Sikh must wear. Punjab Rao v. D.P. Meshram
110
Masud Alam v. Commissioner of Police, AIR 1956 Cal. 9.
92
 To 'practice' religion is to perform the prescribed religious duties, rights and rituals,
and to exhibit his religious belief and ideas by such acts as prescribed by religious order in
which he believes. The freedom to practice religion is protected under article 25 (1) of the
Indian Constitution. In the year 1952, the first case of this sort seeking protection under this
constitutional right as guaranteed in clause (1) of article 25 appeared before the High Court
of Bombay.

The case arose out of the Bombay Prevention of Hindu Bigamous Marriage Act,111
passed by the State of Bombay. The Act prevented bigamy among Hindus alone who
resided in that State while the Muslim community that practiced polygamy was left out of
the operation of the said Act. Therefore, Shri Narasu Appa Mali appealed before the High
Court of Bombay, because the Act infringed the plaintiff’s religious freedom. The aggrieved
plaintiff alleged that by enacting the Bombay.

Prevention of Hindu Bigamous Marriage Act of 1946, the State of Bombay

discriminated between Hindus and Muslims residing in that State on the basis of religious
practice and, therefore, pleaded that the enactment was void.

The Court upheld the impugned Act constitutionally valid. Mr. M.C. Chagla, the
Chief Justice of the Bombay High Court, who gave the judgment of the Court in this case,
indicated that the freedom to practice religion as provided under article 25(1) was not
absolute, in the sense that if religious practices contravened to public order or to a policy of
social welfare, then they said practices could not claim State protection. He also opined, “a
sharp distinction must be drawn between religious faith and belief and religious practices.
What the State protects is religious faith and belief.”112

Subsequent to the Narasu Appa Mali case, many cases came before the Supreme
Court of India for constitutional protection to “religion” and “matters of religion” as
guaranteed in articles 25 (1) and 26 (b) respectively against certain state statutes.81 In these
cases, the Supreme Court had the occasion to deal with the question of “freedom of practice
of religion” protected under article 25(1).

First among them was the Shri Lakshmindra case.113 The matter under dispute in the
instant case was on the rights of the head of a religious institution in the management of the

111
Bombay Prevention of Hindu Bigamous Marriage Act, 1946 (Bombay Act 25 of 1946) (as amended by
Bombay Act 38 of 1948
112
The State of Bombay v. Narasu Appa Mali, AIR 1952 Bom. 84, at 86
113
Commissioner, Hindu Religious Endowments, Madras v. Shri LakshmindraTirtha Swamiar of
93
affairs of religious denominations in “matters of religion” given under article 26 (b) of the
Constitution. In giving its judgment, the Supreme Court studied in great detail freedom of
religious practice as protected under article 25 (1) of the Indian Constitution in comparison
with similar cases brought before the Courts in the United States of America and Australia.
The Supreme Court of India observed that the “practice of religion” as given in article 25 (1)
and “matters of religion” as given in article 26 (b) of the Indian Constitution have the same
scope.

Mr. Justice Mukerjea who spoke for the unanimous opinion of the Supreme Court said,
“The guarantee under our Constitution not only protects the freedom of religious opinion
but it protects also acts done in pursuance of a religion and this is made clear by the use of
the expression ‘practice of religion’ in Art.25.He further observed that the freedom of
religion in article 25 included not only the “freedom to entertain such religious belief, as
may be approved of by his judgment and conscience, but also to exhibit his belief in such
outward acts as he thinks proper.”

In some of the latter cases of this sort, the Supreme Court’s ruling seemed to have
been rather strict regarding the practice of religion protected under article 25 (1) of the
Constitution. For instance, Mr. Justice Mukerjea who once again delivered the judgment of
the Supreme Court in the Ratilal case114 said:

Thus, subject to the restrictions which this Article imposes, every person has a
fundamental right under our Constitution not merely to entertain such religious belief as
may be approved of by his judgment or conscience but to exhibit his belief and ideas in such
overt acts as are enjoined or sanctioned by his religion and further to propagate his religious
views for the edification of others.

So, we notice that the space granted for the protection of religious practice is getting
restricted. In Shri Lakshmindra case115 the court decided that a person had his \ her religious
freedom protected in those overt acts of his \ her belief which he \ she thought proper; and it
was not required that such overt acts should be enjoined or sanctioned by one’s religion. On
the contrary, in the Ratilal case the court held that such overt actions must be enjoined or
sanctioned by one’s religion.

Shri Shirur Mutt, AIR 1954 SC 282

114
Ratilal Panachand Gandhi v. State of Bombay, AIR 1954 SC 388.
115
Commissioner, Hindu Religious Endowments, Madras v. Shri Lakshmindra Tirtha Swamiar of
Shri Shirur Mutt, AIR 1954 SC 282, at 289.
94
 In the Quareshi case116 the Supreme Court further held that the religious practice
under question should not only be “enjoined or sanctioned” by one’s religion but it must
also be “an obligatory overt act” of the concerned religion to exhibit its tenet. As seen
earlier, in this case the appellants pleaded for the sacrifice of a cow on Bakr-Id day. After
going through the Islamic custom of animal sacrifice on Bakr-Id day and the tradition
maintained by Muslim rulers in India, the Supreme Court observed that cow sacrifice was
sanctioned by Islam but it was not an obligatory overt act to express Islamic faith and,
therefore, it would not be protected under practice of religion as given in clause (1) of
article 25. The criterion adduced to the practice of religion, which might claim State
protection. In giving the judgment of the Court Dr. Justice P. B. Gajendragadkar observed:

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 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 Art.26. Similarly even practices though religious may have sprung
from merely superstitious beliefs and unessential accretions to religion itself.

According to the criterion set by the Supreme Court an act is a religious practice,
which deserves protection under clause (1) of article 25 of the Constitution of India, in so
far as it is held by a particular religion as essential and integral part of its tenet. This
criterion was proposed by the Court with the objective of saving true religious practices
from non-religious accretions and even superstitions. By 1963, the Courts in India have
followed this approach in dealing with matters related to the practice of religion, which is
protected under right to religious freedom. The test is that a particular religious community
must regard it as something essential of its religious tenet.

In the case of counter claims by competing individuals or groups on this matter, the
court is the proper forum to resolve it. This was brought out in the Tilkayat case. The
approach pursued by the Courts in India towards matters pertaining to the practice of
religion has come under severe criticism from Constitution experts. Dr. P.C. Jain has
suggested that in the matter of doubtful religious practices, the Courts in India should accept
the contention of a believer who claims before the Court that certain practice has religious
significance to the plaintiff instead of restoring to judicial prove into plaintiff’s claim so as

116
Mohammad Hanif Quareshi v. State of Bihar, AIR 1958 SC 731
95
to see whether it is an essential and an integral part of a religion, and in some other instances
to ascertain whether it is an obligatory overt act of a religious tenet.

4.2.5 Freedom to Propagate Religion

To 'propagate ' means to spread and publicize his religious view for the edification
of others. But the word "propagation" only indicates persuasion and exposition without any
element of coercion. The right to propagate ones religion does not give a right to convert
any person to one's own religion.

Unlike the Constitutions of many countries, article 25 of the Indian Constitution

specifically provides the right to propagate religion.117 However, the original draft of this
article did not mention it explicitly that reads:

All citizens are equally entitled to freedom of conscience and to the right freely to
profess and practice religion in a manner compatible with public order, morality or health:
“Provided that the economic, financial or political activities associated with religious
worship shall not be deemed to be included in the right to profess or practice religion.118

The insistence from the Christian minority seemed to have largely contributed to the
specific inclusion of this right. The joint Committee of the Catholic Union of India and the
All India Council of Indian Christians passed a resolution in October 1945, which practice
and propagation of religion should be guaranteed, and the change of religion should not
involve any civil or political disability.”

Clause (13) of the Interim Report on Fundamental Rights submitted to the

Constituent Assembly in April 1947 included the right to propagate.Nevertheless, clause
(17) of the Report stated, “conversion from one religion to another brought about by
coercion or undue influence shall not be recognized by law”.When clause 17 was debated on
the floor of the Constituent Assembly, Mr. K.M. Munshi who composed the text, proposed a
new amendment to the clause during the debate which read, “Any conversion from one
religion to another of any person brought by fraud, coercion or undue influence or of a
minor under the age of eighteen shall not be recognized by law.’’

The Christian members of the Assembly opposed Mr. K.M. Munshi’s amendment
proposal, because they voiced that it would nullify in large measure the freedom of religion
guaranteed under clause (13). Dr. B.R. Ambedkar, the Chairman of the Constituent

117
M.V. Pylee, India’s Constitution (Bombay, Asia Publishing House, 1962), p. 113.
118
Shiva B. Rao, op.cit. Vol. II, p. 76.
96
Assembly, also strongly opposed Mr. K.M. Munshi’s amendment proposal. The reluctance
shown by some members of the Constituent Assembly for the inclusion of the clause on the
right to propagate religion was conditioned by their fear that this right would help Christian
missionaries to convert Hindus and others to Christianity.

Some other Hindu members of the Constituent Assembly, however, emphasized

India’s spiritual heritage, which is inclusive and open to all faiths. Therefore, they had no
misgiving to include the right to propagation under religious freedom. In his advocacy for
the inclusion of propagation clause under religious freedom, Pundit Lakshmikanda Maitra,
referred to the sayings of Swami Vivekananda and said: The great Swami Vivekananda
used to say that India is respected and revered all over the world because of her rich
spiritual heritage…If we are to educate the world, if we are to remove the doubts and
misconceptions and the colossal ignorance that prevails in the world about India’s culture
and heritage, this right must be inherent, - the right to profess and propagate her religious
faith must be conceded.

The Constitution when finally adopted, accepted only the positive statements related
to religious freedom as we have it in article 25 of the Constitution. Article 25 provides to all
persons the right to propagate religion and article 26, which guarantees collective freedom
of religion to denominations, or any section thereof, does not explicitly refer to the right for
propagation. In the Shri Lakshmindra case,119 the Supreme Court held that the heads of
religious institutions had liberty to propagate their respective religious tenets because
institutions acted only through human agencies. Similarly, in the Ratilal case,120the Court
said that the right to propagate religion applied to a person in one’s individual capacity as
well as on behalf of an institution.

The right to propagate religion means the right to communicate one’s religious
tenets to others by way of preaching, teaching and writing with the explicit intention of
convincing others about the goodness of one’s religion. As propagation implies convincing
others to one’s point of view, it may involve underestimating others’religion. This may
produce religious ill feeling and may lead to violence, which may place the maintenance of
public order and safety at stake. Hence, the task of the State is to maintain a balance
between the right to propagate religion and the right of the public for order and security of

119
Commissioner, Hindu Religious Endowments, Madras v. Shri Lakshmindra Tirtha Swamiar of Shri Shirur
Mutt, AIR 1954 SC 282
120
Ratilal Panachand Gandhi v. State of Bombay, AIR 1954 SC 388.
97
life. Article 25 of the Constitution, therefore, grants freedom to propagate religion “subject
to public order.”

If propagation is done in any form to outrage the religious feelings of any section of
the public, the same may be penalized. Section 295 A of the Indian Penal Code,121 for
example, punishes deliberate and malicious acts intended to outrage the religious feelings of
any class of persons. In the case of Ramji Lal Modi v. The State of Uttar Pradesh, the
petitioner who was the editor, printer and publisher of Gaurakshak, a monthly journal
devoted for the protection of cows, published an article, which the Supreme Court found
deliberate and malicious in intent to outrage the religious sentiments of the Muslims. Under
section 295 A of the Indian Penal Code he was fined and sentenced to imprisonment. Upon
appeal to the Supreme Court, he challenged the constitutionality of the said section under
article 19(1) (a) of the Constitution, which guarantees the right to freedom of speech.

Rejecting the petitioner’s contention, the Supreme Court held that clause (2) of
article 19 of the constitution at the same time empowered the State to impose reasonable
restrictions “in the interest of” and not only “maintenance of” public order and, therefore,
the intent of clause (2) of article 19 covered section 295 A of the Indian Penal Code. In its
judgment in the instant case, the Supreme Court emphasized: The expression “in the interest
of” makes the ambit of the protection very wide. A law may not have been designed to
directly maintain public order and yet it may have been enacted in the interest of the public
order … Sction.295-A does not penalize any and every act of insult to… the religious
beliefs of a class of citizens but it penalizes only those acts of insult…which are perpetrated
with the deliberate and malicious intention of outraging the religious feelings of that
class…It only punishes the aggravated form of insult to religion.

These above observations enable us to conclude that the religious freedom protected
under article 25 of the Constitution includes the right to propagate one’s religion by way of
preaching, teaching and writing with the explicit objective of convincing others about the
goodness of one’s religion that may lead to conversion.

However, incidents of competing claims of religions may cause religious ill feeling
and social unrest, which may jeopardize the life of ordinary people to live in dignity. As the
Supreme Court of India ruled in Ramji Lal Modi v. State of Uttar Pradesh, if religious
propagation is done in any way with deliberate intention to outrage the religious feeling of

121
Section 295 A, the Indian Penal Code as amended by the Indian Penal Code (Amendment) Act, 1961 (Act
41 of 1961
98
others, the same can be penalized within the protection of clause (2) of article 19. Any act
perpetrated with the intention of outraging the religious feelings of the people is an attack on
their dignity in their self-identity because religious convictions are deep-seated values
constitutive of one’s self-identity. By protecting the people against such religious outrage,
the State honours human dignity, which is one of the primary objectives of the secular State,
as referred to in the Preamble of the Constitution of India.

4.2.6 An Originating Approach to Religious Freedom

The foregoing case studies regarding the free exercise of religion provide us the reason
to conclude that the Constitution of India guarantees religious freedom, which is indigenous
to Indian religious ethos and to its socio-cultural context so as to satisfy the multi- religious
tradition of the country. Article 25 of the Constitution guarantees freedom of conscience.
However, clause (2) of article23 does not oblige exemption to conscientious objectors on
religious scruples from compulsory service of the State when services of this sort are
necessary for public welfare and for the security of the country.

As interpreted by the Courts, article 25 (1) protects religious practices that are
essential or integral to a religion. Owing to the delicate communal situation, which is
endemic in some parts of the country, these practices are, however, subject to overriding
regulatory process of the State under sub-clause (a) of clause (2) of article 25 that saves any
State statutes to regulate and restrict secular transactions and activities associated with
religious practices.122Although religious practices protected under the provision of clause
(1) of article 25 are free from State regulation unless detrimental to public order, morality,
health and the fundamental rights guaranteed under Part III of the Constitution, nevertheless
these practices cannot be protected if they contravene social welfare and reform measures

initiated by the State as provided under sub-clause (b) of clause (2) of the same article.

This dialectical process of freedom and regulatory measures amounting to the State’s
non-intervention and intervention associated with the practice of religion brings out clearly
the fundamental dynamics of the philosophy of Indian secularism as enshrined in the secular
provisions of the Constitution. It means that the Constitution is committed to protect values
that enhance the flourishing of freedom of religion. Therefore, the free exercise of religion
cannot supersede these objectives of the nation reposed in the Constitution.

122
Regulating or restricting any economic, financial, political or other secular activity which may be associated
with religious practice.” Article 25 (2) (a) of the Constitution of India.
99
 4.3 The Exercise of Religion Subject to State Restriction
The Constitutions of the democratic States guarantee freedom of conscience and the
right to manifest one’s religious beliefs in overt ways. But this freedom is to be ensured in a
balanced manner so as not to endanger the security and well being of the society, the
maintenance of which is the prerogative of the State for the proper growth and progress of
the people. Hence, Constitutions provide also the power to regulate and even to restrict this
freedom. The manner and various reasons under which religious freedom comes under State
restriction in India will be discussed in the proceeding sections.

The freedom of religion as restrictively guaranteed by Article25 [1] is further

subjected to the exceptions provided by sub -clauses {a} and {b} of clause 2 of the same
article. Rea with clause [1] the grounds for restricting the freedom ogf religion guaranteed
by clause {2} are,

4.3.1 Subject to Law

Article 25 (1) of the Constitution of India guarantees the individual’s right to freedom of
religion.The exercise of this freedom, however, is made explicitly subject to public order,
morality, and health and to the other provisions of Part III of the Constitution, which lay
down the fundamental rights. Exercise of religion means the performance of acts in
pursuance of one’s religious tenet.

In India the limitations laid on the exercise of religious freedom is really very
emphatic. The Constitution of India does not presume that beliefs that are religious deserve
absolute protection. Clause (1) of Article 25, therefore, begins with a number of safeguards.
The right to religious freedom may be exercised only under these conditions. These are
substantial conditions. Commenting on the provision protecting religious freedom under
article 5 of the Constitution, Shri K. Santhanam remarked in the Constituent Assembly:

“Hitherto it was thought in this country that anything in the name of religion must
have the right to unrestricted practice and propagation. But we are now in the new
Constitution restricting the right only to that right which is consistent with public order,
morality and health”.

The Courts in India on various occasions interpreted the scope of freedom

guaranteed to religion that reflects the mind of the framers of the Constitution. The Bombay

100
High Court held in one of the cases123 that article 25 provided to all persons the right to
freedom of religion. But the Court reiterated that this “right is not an absolute or unlimited
right. In the first place, it is subject to public order, morality and health. In the second place,
it is subject to other provisions of Part III”.

In another case124the Supreme Court of India ruled that article 25 of the Constitution
guaranteed to every person freedom of religion. But the Court emphasized:

This is subject, in every case, to public order, health and morality…Subject to the
restrictions which this article imposes, every person has a fundamental right under our
Constitution…to entertain such religious beliefs as may be approved by his judgment or
conscience.

Similarly, the Calcutta High Court in interpreting the scope and limitations laid on
the free exercise of religion as provided in clause (1) of article 25 held that this provision
did not give, for example, a Hindu student the right to perform the ceremonies of his
religion in the compound of a Christian college.125 Therefore, under article 25(1) of the
Indian Constitution, every person is entitled to have the right to free exercise of religion. But
this right is at the same time subject to State law in order to safeguard the security and
welfare of all in the society as well as the individual because protection of human persons in
their dignity is the concern of the Constitution of India.

4.3.2 Religious Freedom: Subject to Regulation of Economic, financial,

political and Secular Activities Associated with Religion
Article 25 (2) (a) empowered the State to regulate financial, political and secular
activities associated with religion. The religious activities as such are not covered under the
regulatory power of the State. It is not always easy to find out whether an activity will be
covered under religious practice or under financial, political or secular activity associated
with religion. Certain activities even if involve expenditure or employment of servants and
priests or uses of marketable commodities cannot be said to be secular activities under
Article 25(2) (a). On the other hand the management of property attached to a religious
institution or endowment has been held to be a secular activity subject to the regulatory
power of the State.

123
The State of Bombay v. Narasu Appa Mali, AIR 1952 Bom. 84.
124
Ratilal Panachand Gandhi v. State of Bombay, AIR 1954 SC 388.
125
Sanjib Kumar v. St. Paul’s College, AIR 1957 Cal, 524. (Cantwell v. Connecticut, 310 US
296, at 304). As quoted in V.P. Luthera, op.cit., p. 114
101
 4.3.3. Religious Freedom: subject to Social Reform and Throwing Open
Temples.
Article 25 (2) (b) enacts two exceptions (a) Laws providing for social
welfare and social reform and (b) the throwing open of all ‘Hindu religious
institutions of public character’ to all classes and sections of Hindus.

The freedom of religion under Article 25 (1) is, therefore, subject to the power of the
State to enact laws for social welfare and social reforms. Thus, the banning of bigamous
marriage was upheld as a measure of social reform.Similarly, the provisions of the Hindu
Marriage Act, 1955 are protected under Article 25(2) (b). 126On the same basis the
prohibition of evil of sati or system of ‘devdasi’ was upheld.

Article 25(2) (b) seeks to the State to throw open ‘Hindu religious institutions of a
public character to all classes and sections of the Hindus’. Public institutions would include
temples dedicated to the public as a whole also those for the benefit of sections or
dominations thereof. The Article confers a right on all classes and sections of Hindus to
enter a public temple for the purposes of worship. However, this right is not unlimited in
character. For example, in Venkataramana v. State of Mysore, the Supreme Court of India
held that no Hindu can claim as part of rights protected by Article 25 (2) (b) that a temple
must be kept open for worship at all hours of the day and night, or that he should personally
perform those services which acharyas or pujaris alone could perform. Thus, the right
recognized by Article 25 (2) (b) necessarily becomes subject to some limitations or
regulations which arise in the process of harmonizing this right with that protected by
Article 26 (b).

In the instant case the facts were that in order to remove the disability imposed on
harijans from entering into temples dedicated to the Hindu public generally, The Madras
Legislature enacted the Madras Temple Entry Authorization Act, 1947. The Government
passes an order that the Act would be applicable to a temple belonging to Godwa Saraswati
Brahimin Community. The trustees of the temple filed a suit which ultimately reached the
Supreme Court. Their contention was that the temple being denominational one, they were
entitled to the protection of Article 26 and it was a matter of religion as to who were entitled
to take part in worship. They further contented that opening of the temple to communities

126
Taheer Saifuddin v. Tyebbhai Mooraji, A.I.R. 1953, Bom. 183.
102
other than Godwa Saraswath Brahmins was violative of Article 26 (b) of the Constitution
and this void.

It was held by the Supreme Court that the ‘matters of religion’ in Article 26 (b) include even
practices which are considered by the community as part of its religion.

From above, it is clear that the courts while interpreting clauses (a) and (b) of Article
25 (2) and specially sub-clause (b) “has sought to strike a reasonable balance between
religious liberty of an individual or a group and the social control.”130

4.3.4 Religious Freedom: Subject to Public Order and Morality

A-- Public order

No freedom can flourish in a state of disorder, there for; it is the duty of the state to
maintain peace and order so that people can enjoy the rights conferred on them by the
constitution. If the enjoyment of a right by someone poses threats to peace and order to state
.Then the state is empowered by the constitution to put restriction on enjoyment of such
rights to the extent it is violative of peace and order. Restrict in on this ground implies that
the can pass a law to regulate religious meetings or processions in public peace like road,
parks, streets, etc. Even a total prohibition of religious procession can be imposed if there is
any danger to peace or communal harmony.. The law also provide for the licensing of
religious processions. It also declares certain acts to be offence if they trend to wound the
religious feelings of any class of person or if it promotes disunity between different
religious, racial or language groups, In view of these provisions many Sate have passed
servel legislation prohibiting the slaughter of cow, and propagation of religion for the
purpose of conversion by fraud, force, allurement or inducement, because such activities
could cause law and order problem.
(b)
B -Morality
No state can allow immorality in the name of religious freedom, nor is it desirable.
Religion aim at the moral well being man but sometimes , certain religious practice have
resulted immoral acts, It is the duty of the state to see that such immoral practice under the
grab of religious freedom are not allowed to flourish in the society . For this the constitution
has empowered the state to declare illegal such immoral practice or to regulate them on the
ground of morality. Such immoral religious practices included Divadasi System, sati system,
gambling on Deepawali, etc
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 In India the State has imposed extensive regulations on the exercise of religion in the
interest of public peace and order. There are three reasons arising from the peculiar nature of
religious practices in the country that call for these measures. First of all both Hinduism and
Islam which have the largest number of followers in the country lack centralized
organization and authority necessary to provide for the orderly conduct of religious practices
in the public space. Secondly most religions in India place great importance to public
display of religious celebrations in the form of festivals and processions spread over many
days. Thirdly India being a multi-religious country, various religious communities having
diametrically opposed belief systems and practices live side by side all over the country.
Hence, it is not possible to permit them all to exercise their different religious beliefs to the
fullest possible measure.

Hence, the State has enacted statutory restrictions to prevent breaches of peace and
to protect people from possible violence arising from religious excitements associated with
practice of religion in the public places. Thus Chapter XV of the Indian Penal Code declares
certain religious acts are offensive if they tend to create breach of peace. It is surprising to
note that the authors of the Code who composed it in 1860 commented, “There is perhaps
no country in which the government has so much to apprehend from religious excitement
among the people.”127

Sections 295 to 298 of the Indian penal Code are more intended for keeping
peace and protection of people against violence than for the protection of religion as
such. These sections deal with cases where a person performs an act whereby the
religious feelings of any class of citizen are wounded. Section 295 A specially limits
the religious freedom of propagation by making it an offence to outrage the religious
feelings of any class of citizens by acts incompatible with a civilized way of
behaviour. The said section reads:

“Whoever, with deliberate and malicious intentions of outraging the religious

feelings of any class of citizens of India, by word either spoken or written, by
signs or by visible representations or otherwise insults or attempts to insult the
religion or the religious belief of that class, shall be punished with

127
As quoted in R. Rachoddas and D.K. Thakore, The Law of Crimes (Bombay, Bombay Law Office, 1948),
p. 671
104
 imprisonment of either description for a term which may extend to two years,
or with a fine, or with both.”128

Under section 153 A of the Indian Penal Code, it has been declared a crime to
promote, on grounds of religion, race, language, caste or community, enmity between
different religious, racial or language groups. This section holds an act as a criminal offence
if it is detrimental to the maintenance of harmony between different religious groups or is
likely to disturb public tranquility. The same is the object of section 34 of the Police Act that
prohibits the slaughter of cattle or indecent exposure of one’s person on any road,
thoroughfare or other public place. Consequently, although the Islamic law sanctions cow
sacrifice on Bakr-Id day, nevertheless, not to outrage the religious sentiments of the vast
majority of the Hindus, the Supreme Court can provide alternative or regulatory measures as
ruled in the Quareshi case129

In March 2004, the Supreme Court again took up the issue and further narrowed the
scope of essential practices to mean the foundational ‘core’ of a religion. The majority
judgment said, ‘essential part of a religion means the core belief upon which a religion is
founded and those practices that are fundamental to follow a religious belief. It is upon the
cornerstone of essential parts of practices that the superstructure of religion is built, without
which a religion will be no religion’.130 However, A. R. Lakshmanan, J contested this
definition of essential practices and wrote in his dissent. ‘If these practices were accepted
by the followers of such spiritual head as a method of achieving their spiritual upliftment,
the fact that such practice was recently introduced cannot make it any the less a matter of
religion.’

The Courts in India have been often faced with cases challenging the constitutional
propriety of banning processions in some religiously sensitive areas. In a case that arose
from the State of Orissa,131the Supreme Court was appealed to settle a long-standing
dispute between a section of Hindus and Muslims in that State. The History of the instant
case was that the leaders of Hindus and Muslims of some villages in Orissa entered into an
agreement in 1931 about the manner of taking religious processions. According this

128
Section 295 A of the Indian Penal Code as amended by the Indian Penal Code (Amendment) Act, 1961 (Act
41 of 1961).
129
Mohammad Hanif Quareshi v. State of Bihar, AIR 1958 SC 731, at 740. For the details of the case see
above Section 4.4.2.
130
Acharya Jagadiswaranda Avadhuta v. Commissioner of Police Calcutta, AIR 1984 SC 51. Ananda Margi is
a Hindu religious sect
131
Shaikh Piru Bux v. Kalandi Pati, AIR 1970 SC 1885.
105
 agreement, the Hindus should not play music near a mosque in order to enable the Muslims
to hold their prayers in a calm atmosphere. In 1964 the Hindus filed a case before the
Orissa High Court claiming that they were not bound by the 1931 agreement and that they
were entitled to play music in religious and non-religious processions on the high way. The
Orissa High Court rejected the petitioners’ claim. On appeal, the Supreme Court upheld the
verdict of the Orissa High Court and asserted that the restrictions on playing music and
beating drums by the Hindus near the mosque were not justified.

As provided in article 25 (1) of the Indian Constitution, while the State protects the
individual’s right to free exercise of religion, the State is also duty bound to safeguard
public order and morality because the State’s coercive power is for the purposes of
maintenance of law and order necessary to promote conditions fitting for the development
of the people that is worthy of human dignity.

In this connection, one of the practices associated with religion, which came under
the purview of the State in India, was the system of devadasi dedication. Many Hindu
temples, particularly in South India, had the tradition of dedicating young girls to the deities
as devadasis (literally, servants of God). The devadasis danced and sang before the deities
in the temples and in religious processions.

It was also a belief prevalent among some sections of the Hindus that spiritual merit
was gained by such dedication. The dedication ceremony was done by the performance of a
spiritual marriage of the girl with the deity of the temple. Although religious in origin, in
time it degenerated to such an extent that most of the devadasis became either temple
prostitutes or took to prostitution.

As early as a century ago prominent members of the Hindu community in South

India condemned the practice of devadasi dedication on account of immorality and
promiscuity spread through the system. They also made it known that the practice of
devadasi dedication was not an essential part of the worship in the temples.132 In 1924, the
amended Section 372 of the Indian Penal Code declared that any person dedicating a girl
for devadasi was liable to punishment. With the enactment of Madras Devadasi (Prevention

132
P. Ramanatha Iyer and P.R. Naraya Iyer, The Madras Hindu Religious and Charitable Endowment Act,
(Madras Law Journal press, Madras, 1953), p. 43.
106
of dedication) Act, 1947, the prohibition of the devadasi practice in any form was legally
enforced in South India.133

In addition, The Suppression of Immoral Traffic in women and Girls Act declared
prostitution illegal if it is practiced within 200 yards of any place of public worship. The Act
also makes it an offence to procure, induce or take women for prostitution. In the case that
came before the Supreme Court of India from the State of Uttar Pradesh,the constitutional
validity of the Act was challenged on the ground that the terms of the Act amounted to a
restriction on the trade of prostitution. But the Court held valid the restrictions involved in
the said Act, because it was a reasonable control in the interest of public morality to stem
the evil of prostitution practiced in some localities. The above considered statutes and Court
observations indicate that whenever the State prohibits immoral practices, religion must give
way to such actions, because under the secular provisions of the Constitution of India, the
State is vested with power to uphold good values, on reasonable grounds, in the interest of
common good.

4.3.5 Religious Freedom: Subject to Public Health

It is the duty of a welfare State to provide legal safeguards to protect individual’s life
and to maintain good health of the community. However, this life-saving objective of the
State may run counter to certain religious beliefs and practices. According to the Penal Code
of India, suicide is a crime that applies to the person who attempts it and those who support
or assist to commit it. Similarly death by starvation or by self-inflicted torture to attain
spiritual ends is also an offence under the same Code. The law, therefore, forbids suicide
even if the act is motivated by religious intention.

Consequently, the practice of sati,134 for instance, though a part of Hindu religious
belief and practiced by some sections of Hindus in some parts of India, was made a criminal
offence by the law. In a case on sati brought before the Rajasthan High Court, 135the
Sessions Judge issued a lenient sentence of six months rigorous imprisonment to all those
who were found guilty of abetting sati on the ground that the people of that particular
locality where sati was committed believed it to be their religious duty to induce the act. But

133
Section 3 (3) of the Madras Devadasi (Prevention of dedication) Act, 1947 (Madras Act 31 of 1947).
134
R.C. Majumdar, The History and Culture of the Indian People, op.cit. vol. 10, pp. 268-275.
135
Tejsingh v. The State, AIR 1958 Raj 169 (DB).
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Chief Justice Mr. Wanchoo of the Rajasthan High Court, who spoke for the Court in the
instant case remarked:

The reasons he (the Sessions Judge) has given for this ridiculously lenient sentence
are rather strange in the middle of the 20th century. He is still not sure whether the people
are wrong or right in their adoration of Sati…He seems to sympathise with the view of the
people that it is their religious duty to help a woman who wants to become a Sati.”

The Rajasthan High Court, therefore, disapproved the term of six months rigorous
imprisonment as lenient and extended it to five years of rigorous imprisonment so that
people may realize the criminality of sati abetment and that they might in no manner induce
or help a woman to commit sati.

4.3.6 Religious Freedom: Subject to Others Provisions of Part III

Clause (1) of article 25 of the Indian constitution declares that the exercise of
religious freedom is subject to other fundamental rights guaranteed in part III of the
Constitution. This requires a balancing of rights in the area of religion with other rights. A
constitutional question to this effect arose for the first time in 1958 in the case of Shri
Venkatarama Devaru v. State of Mysore Case. The facts of this case were as follows. The
case arose out of the Madras Temple Entry Authorization Act passed by the Madras
Legislature in 1947 and amended in 1949. The Preamble to the Act declared that the Act
aimed at the removal of disabilities imposed by custom or usage on certain classes of
Hindus with regard to entry into the Hindu temples in the Madras Province, which were
otherwise open to the general Hindu public. Section 3 of the Act authorized persons
belonging to certain ‘excluded classes’ to enter any Hindu temple and offer worship in the
same manner and to the same extent as Hindus in general. A ‘temple’ was defined as ‘a
place, which is dedicated to or for the benefit of the Hindu community or any section
thereof as a place of public religious worship’.

The trustees of Shri Venkataramana Temple, apprehending the application of the Act
to their temple, sent a memorandum to the Madras Government claiming that their temple
was a ‘private temple’, which exclusively belonged to a Hindu sect called the Gowda
Saraswath Brahmins. Consequently, their temples were not within the scope of the Act. The
Government of Madras rejected the petitioners’ claim. Thereupon the petitioners filed a suit
before the Supreme Court under Article 26 (b) that guaranteed to a religious denomination

108
the right to manage its own affairs in “matters of religion”. The petitioners pleaded that
according to scriptural authority, the caste of the prospective worshippers was a relevant
part of ‘matters of religion’ and, therefore, the enforcement of the Madras Temple Entry
Authorisation Act136 to throw open their denominational temple to general public was
violative of article 26 of the Constitution. The petitioners also pleaded that since article
25(1) was subject to other fundamental rights guaranteed in Part III of the Constitution, the
provision given in Article 25 (2) (b) was also subject to article 26 (b).

In delivering the judgment in the instant case the Supreme Court held section
3 of the Madras Temple Entry Authorisation Act intra vires of the Constitution. The
Supreme Court observed, “the validity of section 3 of the Madras Act V of 1947 does not
depend on its own force but on article 25 (2) (b) of the Constitution…and therefore, the
trustees can succeed only by establishing that article 25 (2) (b) itself is inoperative as against
article 26 (b).137 The court then commented that there were two provisions in the
Constitution, article 25 (2) (b) and article 26 (b). These were of “equal authority, neither of
them being subject to the other.” Consequently, the rule of harmonious construction had to
be applied when interpreting them. Mr. Justice Aiyar who delivered the judgment of the
Supreme Court said: The limitation “subject to the other provisions of this part” occurs only
in cl. (1) of Article 25 and not in cl. (2). Clause (1) declares the rights of all persons to
freedom of conscience and the right freely to profess, practice, and propagate religion. It is
this right that is subject to the other provisions in the Fundamental Rights Chapter. One of
the provisions to which the right declared in Art. 25 (1) is subject to Art.25 (2). A law,
therefore, which falls within Art. 25 (2) (b) will control the right conferred by Art. 25 (1),
and the limitation in Art. 25 (1) does not apply to that law. According to the judgment of the
Court, clause (2) of article 25 supersedes clause (1) of the same article. Therefore, the
petitioners’ right to free exercise of religion is subject to the right conferred to every Hindu
to enter any Hindu temple of public character. The provisions given in article 26 (b), the
Supreme Court observed, were to be read in the light of the limitations contained in sub-
clause (b) of clause (2) of article 25.

Venkataramana v. State of Mysore, the Supreme Court of India held that no Hindu
can claim as part of rights protected by Article 25 (2) (b) that a temple must be kept open
for worship at all hours of the day and night, or that he should personally perform those
136
The Madras Temple Entry Authorisation Act, 1947 (Madras Act 5 of 1947 as amended by Act 13 of. 1949).
137
Shri Venkataramana Devaru v. State of Mysore, AIR 1958 SC 255, at 257
109
services which acharyas or pujaris alone could perform. Thus, the right recognized by
Article 25 (2) (b) necessarily becomes subject to some limitations or regulations which arise
in the process of harmonizing this right with that protected by Article 26 (b). In the instant
case the facts were that in order to remove the disability imposed on harijans from entering
into temples dedicated to the Hindu public generally, The Madras Legislature enacted the
Madras Temple Entry Authorization Act, 1947. The Government passes an order that the
Act would be applicable to a temple belonging to Godwa Saraswati Brahimin Community.
The trustees of the temple filed a suit which ultimately reached the Supreme Court. Their
contention was that the temple being denominational one, they were entitled to the
protection of Article 26 and it was a matter of religion as to who were entitled to take part in
worship. They further contented that opening of the temple to communities other than
Godwa Saraswath Brahmins was violative of Article 26 (b) of the Constitution and this
void.

It was held by the Supreme Court that the ‘matters of religion’ in Article 26(b)
include even practices which are considered by the community as part of its religion.

4.4 The State’s Assistance to Freedom of Religion

The activities of a welfare State are to be ordered in a manner conducive to provide
proper facilities for the integrated development of its citizens including their religious needs.
The secular provisions of the Indian Constitution recognize the importance of religion in
people’s lives, though may not be applicable to all. If religion is an important factor in the
welfare of the people, it must be assisted through constitutional means.

The peculiar nature of religions in India, moreover, calls for various types of
State support to religion. Unlike the ecclesiastical institutions, most of the religions in India
require administrative and organizational systems capable of taking care of the enormous
amount of wealth and landed property they possess. These are given to them from ancient
time onwards by way of endowment for religious, charitable and educational purposes in
perpetuity. Under these circumstances, the State in India has assumed great responsibility
for the proper administration of such religious institutions within the constitutional
rights to religious freedom guaranteed to them. It has to be noted, at the same time, that
India has neither State religion nor it gives any constitutional recognition to Hinduism as the
religion of the majority of the citizens. There is also no Ecclesiastical Department in the

110
Union Government as existed during the British Raj. Hence, we will examine the various
kinds of assistance the State in India provides to religion while being secular. This would
enable us to see another important dimension of the political philosophy of Indian
secularism, which stands committed to integral humanism affirming the dignity of human
persons in their individual self-identities and their plural community identities.

4.4.1 Freedom as to Payment of taxes for promotion of any particular Religion

The financial requirements of a welfare State are met by way of taxes. As a matter of
justice, all who have the capacity to pay tax share the tax burden. Tax exemption is not a
right but a grace granted by the State on certain reasonable grounds. It has been customary
from ancient time onwards both in the East and West to assist religion by giving tax
exemption to religious personnel, institutions and properties. During the time of the Delhi
Sultanate and the Mughal Empire, Islam enjoyed tax exemption in India, while others were
subject to jizya, a poll tax, for recognition of their religions by the State. During the British
rule in India, tax exemption was granted to all religions. But right up to 1948 the
Ecclesiastical Department of the British government paid out of State revenue a large sum
of money for the maintenance of Anglican churches and clergymen.

The Indian Constitution is, nevertheless, silent about the matter of taxation on
religion. This implies that the State in India is not debarred from imposing taxes on
religious institutions. On the contrary, the State in India, by means of various statutes of the
Union Government,138 grants tax exemption to religious institutions of a public character
because tax exemption to religion is a form of State assistance to religion in the public
interest. It is part of the State’s commitment for the all round development of its citizens
which is a significant affirmation of the inherent worth and dignity of the human person.

4.4.2. Direct State Aid to Religious Freedom

The Constitution of India does not debar the State to levy taxes on condition that the
proceeds of which are defrayed without discrimination to promote and maintain religion.
Non-discriminatory taxes for the benefit of all religions would be perfectly valid as
protected under article 27 of the Constitution. This article states, “No person shall be
compelled to pay taxes the proceeds of which are specifically appropriated in payment of

138
Abid S. Husain, The National Culture of India, op.cit. p 77
111
expenses for the promotion or maintenance of any particular religion or religious
denomination.”

The constitutional propriety of levying tax on religious activities was, nevertheless,

raised for the first time in the year 1954 when the Lakshmindra case139of historic
importance was appealed to the Supreme Court of India. The Supreme Court’s observations
of this case throw light on the interpretation of the content of article 27 of the Constitution
within the secular objectives of the Constitution.

What is forbidden by the Article is the specific appropriation of the proceeds of any
tax in payment of expenses for the promotion or maintenance of any particular religion or
religious denomination. The reason underlying this provision is obvious. Ours being a
secular state and there being freedom of religion guaranteed by the Constitution, both to
individuals and to groups it is against the policy of the Constitution to pay out of public
funds any money for the promotion or maintenance of any particular religion or religious
denomination.

Therefore, The Supreme Court indicated that the purpose of the contribution was to
see that religious trusts and institutions wherever they existed were properly
administered.This was a secular administration of the religious institutions with the
objective of ensuring that the endowments bequeathed to religious institutions were justly
administered and their income was duly utilised for the purposes to which they were
established. This implies that it is constitutionally valid to levy tax for religious purposes on
condition that the proceeds of which are used non-preferentially for the benefit of the
religious cause.

On the contrary, one may be surprised to note during the Seventh Amendment to the
Constitution, article 290-A was added140 to grant State contribution to Hindu temples and
shrines in the States of Tamil Nadu and Kerala. Article 290-A reads:

A sum of forty-six lakhs and fifty thousand rupees shall be charged on, and paid out
of the Consolidated Fund of the State of Kerala every year to the Travancore Devaswom
Fund; and a sum of thirteen lakhs and fifty thousand rupees shall be charged on, and paid
out of the Consolidated Fund of the State of Madras every year to the Devaswom Fund

139
Commissioner, Hindu religious Endowments, Madras v. Shri Lakshmindra Tirtha Swamiar of Shri Shirur
Mutt, AIR 1954 SC 282.
140
Section 19 of the Constitution (Seventh Amendment) Act, 1956, with effect from 1.11.1956.
112
established in that State for the maintenance of Hindu temples and shrines in the territories
transferred to that State on the first day of November, 1956, from the State of Travancore-
Cochin.

It is required here, as a matter of clarification, to refer to the historical background of

Article290-A. Prior to the year 1949, Travancore and Cochin were contiguous Indian States
under Hindu Maharajas. The rulers of these States sanctioned a large annual grant of money
for the maintenance of Hindu temples and shrines in their respective States and directly
controlled the management of these institutions. The two States were merged in 1949. As
the royal grants were in perpetuity, the obligations involved thereby were also passed over
to the newly created State of Travancore- Cochin. To this effect the consent of the two
rulers and the Government of India were assented to by an Act of a Covenant. Hence, in
1956 when the new State of Kerala was reconstituted from that of Madras (Tamil Nadu), the
covenantal obligations were also passed on and shared by the States of Kerala and Tamil
Nadu by making payments to the Devaswom Funds from the Consolidated Funds of these
States.

Apart from the historical context of the formation of the Devaswom Fund, the annual
payment to Devaswom funds as granted in article 290-A of the Indian Constitution remains
open to objection. This is a continuation of the old system of State patronage to religious
institutions prevalent in India from ancient time. Similarly, in another case 141 the Delhi High
Court uphold the constitutional validity of the State assistance to the celebrations associated
with the 2500th anniversary of the attainment of salvation by Mahavira, the founder of
Jainism. The Court said that the assistance of the State on an occasion like this neither
amounted to State giving support to Jainism nor infringed on article 27 of the Constitution.

4.4.3 State Aid, Education and Freedom of Religion

Education is one of the important sectors where India’s commitment to the

philosophy of the secular State comes to force. Organized education in India traditionally
remained closely associated with religion, specially confined to Hindu and Muslim religious
institutions.142 The Mughal emperor Akbar, nevertheless, made an attempt to impart secular
education by means of government schools. It was also one of the duties of the Indian rulers

141
Suresh Chandra v. Union of India, AIR 1975 Del 168.
142
R. C. Majumdar, H.C. Raychaudhury and K. Dutta, An Advanced History of India, op.cit., p. 264.
113
to patronise classical learning that basically remained religious in character. The British
government in India followed this policy. Consequently, in 1781 the British government
founded the Calcutta Madrasa for Islamic study, in 1784 the Asiatic Society of Bengal for
Oriental study, and in 1792 the Benaras Sanskrit College for Hindu classical learning. The
Christian missionaries were also permitted to establish educational institutions of their
choice to which some grants were defrayed by the government.

The framers of the Constitution of India laid great emphasis on education to

eradicate illiteracy and backwardness prevalent in the country and to place the nation in the
path of advancement in every field of knowledge with the hope of achieving integrated
welfare of the citizens that furthers the cause of human dignity. For this purpose, they
brought out a number of provisions under the Directive Principles of State Policy in Part IV
of the Constitution.

4.4.4 Restriction on Religious Instruction in Educational Institution

Article 28 of the Constitution is specifically concerned with the question of religious

instruction in three categories of educational institutions. It provides:

(1) No religious instruction shall be provided in any educational institution

wholly maintain out of State funds.

(2) Nothing in clause (1) shall apply to an educational institution which is

administered by the State but has been established under any endowment or trust which
requires that religious instruction shall be imparted in such institutions.

(3) No person attending any educational institution recognized by the State or

receiving aid out of State funds shall be required to take part in any religious instruction that
may be imparted in such institution or to attend any religious worship that may be
conducted in such institution or in any premises attached thereto unless such person or, if
such person is a minor, his guardian has given his consent thereto.

Clause (1) of the Article 28 refers to the first category of educational institutions,
which is wholly owned by the State, where the prohibition to impart religious instruction is
absolute. Neither the State nor a private agency may provide religious instruction in such
institutions. Clause (2) of Article 28 deals with the second category of educational

114
 institutions in which the State does the administration in the place of a trustee. However,
under this category the institution itself is established under a trust or an endowment
wherein the terms of the trust or endowment require imparting religious instruction, which
is protected under this clause.

Clause (3) of Article 28 deals with the third category of educational institutions.
These are owned and managed by religious denominations, but come under the system of
grants-in-aid. These institutions are free to impart religious instruction. The provision under
article 28 (3) assures the conscience clause by which the State protects the individual’s right
to freedom of conscience by placing them above religion while at the same time the State
acknowledges as well as protects religious pluralism.

D.V.A College, Julandhar V. State of Punjab saying that the provisioned not imply
that religious instruction would be given. A provision for an academic study of, and research
in, the life and teaching or the philosophy and culture of any great saint of India in relation
to, or their impact on, the Indian and world civilization could not be considered as providing
for religious instruction. The court stated that religious instruction is that ; which is imparted
for inculcating the tenent, the ritual, the observance, ceremonies and mode of worship of a
particular sector denomination'

In Aruna Roy V, Union of India, the Supreme Court has ruled recently that article 28
does not ban a study of religious. The whole emphasis of Art, 28 is "against imparting
religious instruction" .There is no prohibition on ' Study of religious philosophy and culture,
particularly for having value based social life in a society which is degenerating for power,
post or property'.

4.4.5 Freedom as to Attendance at Religious Institution or Religious Worship in certain

Educational Institutions

The last provision dealing with protection of religious freedom of minorities is

Article 28.143

Article28 (1) of the Article provides that no religious instruction shall be provided in
any educational institution wholly maintained out of State funds. Thus, the institutions

143
Freedom as to attendance at religious institution or religious worship in certain educational institution
115
which are wholly maintained out of State funds are not amendable to this provision. The
restriction laid down in clause (1) would not apply under clause.

Article 28 (2) Where an educational institution though administered by the State has
been established under an endowment or trust.

Article 28 (3) provides that in educational institution recognized or aided by the

State, no student can be required to take part in religious instructions given in that institution
unless he consents or if he is a minor, his guardian consents to it.

Article 28 makes a distinction among three types of educational institutions i.e.,

institution of completely public nature, where there is absolute prohibition on religious
education; the institution where State acts as trustee, religious instructionsare allowed: the
institution aided by the State, the religious instructions is permitted on a voluntary basis.
Article 28 (3) thus supplements Article 30(1).

In a very recent case(popularly known as Natioanl Anthemcase) the Division Bench

of the Supreme Court has held that no person can be compelled to join in the singing of
National Anthem against his will, “if he has genuine conscientious religious objection”.
Such compulsion, according to the court would be violative of the fundamental right
guaranteed under Articles 19(1) (a) and 25 (1) of the Constitution. The fats of the case in
brief were as follows: Some children from a school in Kottayam, Kerala were debarred from
attending their classes because they refused to sing the National Anthem of the country.
These children belonged to Jehovah’s witnesses who worshipped only Jehovah – the creator
– and none other. It was against the tenants of their religious faith which does not permit
them to join in any rituals except if it be in their prayers to Jehovah.

The school authorities had made it compulsory for the children to participate in
morning school assembly when National Anthem was sung. The children who are petitioner
in this case stood mutely and refused to sing National Anthem even though there was
circular to that effect issued by the Directorate of Education. Consequently they were
expelled from the school on July 26, 1985. The petitioners moved the Kerala High Court.
The High Court rejected their plea on the ground that National Anthem affected no body’s
religious susceptibilities and thus appealed to the Supreme Court. The Supreme Court held
that there was no provision in law which obliged any one of sing the anthem nor it is
disrespectful to the anthem if a person stood up and did not join in the singing. “Such

116
conduct does not either prevent the singing of the National Anthem nor causes disturbance
to an assembly engaged in such singing so as to constitute an offence under section 3 of
Prevention of Insults to National Honour Act, 1971. The court pointed out that Jehovah’s
witnesses have the same attitude towards “God save the Queen” in Britain and “The Star-
Spangled …” in the U.S.A. neither their patriotism nor their nationalism has been called into
question on this score. This decision has been seen by some as encouragement to separatism
in India.

4.5 Right to Cultural and Educational and Religious freedom

[1] Article29-Protection of Minority Interest [2] Article 30- Right Minorities’ to

Establish and Administer Educational Institution,

In the present state of affairs, education is a costly sector in India as it is elsewhere.

So, educational institutions need substantial grants by way of aid from the State. In this
context, in dealing with education in the country, the Constitution guarantees to minorities
the right to conserve their language, script and culture. The State also grants to all minority
communities, whether based on language or religion, the right to establish and administer
educational institutions of their choice as given in the article 29 and 30.

4.5.1 Protection of Interest of Minority

Article 29 reads:

(1) Any section of the citizens residing in the territory of India or any part
thereof having a distinct language, script or culture of its own shall have the right to

conserve the same.” (2) No citizen shall be denied admission into any educational
institution maintained by the State or receiving aid out of State funds on grounds only of
religion, race, caste, language or any of them.

4.5.2 Right to minority to establish and administer education institution

Article30 Reads;
1. All minorities, whether based on religion or language, shall have the right to
establish and administer educational institutions of their choice.

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 2. The State shall not, in granting aid to educational institutions, discriminate against
any educational institution on ground that it is under the management of a minority,
whether based on religion or language.

Clause (1) of article 30 guarantees to all minorities the right to establish educational
institutions of their choice and clause (2) of the same article saves educational institutions
managed by minority communities from discrimination in giving State aid. This article is
supplementary to clause (a) of article 26, which empowers religious denominations to
establish institutions for charitable purposes.

State aid involves also State control over beneficiary institutions in order to see that
the goal set by the government is better realized. Some of the methods of control exercised
by the State such as inspection, process of granting recognition, auditing and qualification of
teachers etc., are acceptable to all. The conflict of interst arises when control becomes a
matter of interference with the internal administrative policies, which are proper to these
institutions. The requirement here is a harmonious understanding between the general
interest of the society at large and affirmative interest of the minority communities to
maintain their identity as well as their development. On several occasions the Supreme
Court has been appealed to on account of conflicts arising from State encroachment on the
autonomy of the minorities to manage their educational institutions as alleged by the latter.
Christians have brought most of these allegations as they run the highest number of
educational and charitable institutions across the country. We shall examine for our purpose
three important cases of this sort to see in the judicial decisions values that protect human
dignity.

The Sidhrajbhai Sabbai case144 was brought before the Supreme Court for protection
under article 30 of the Constitution. The Sidhrajbhai Sabbai case was about a minority
Christian society, known as the Gujarat and Kathiawar Presbyterian Joint Board, which was
running several primary schools and a Teacher’s Training College in the State of Gujarat.
The college was getting an annual grant under the Education Code of the State of Gujarat.
The Education Department of the State held examinations and granted certificates to
teachers trained in the college of the Sidhrajbhai Sabbai Board. The State was interfering

144
Rev. Sidhrajbhai Sabbai v. State of Gujarat, AIR 1963 SC 540
118
with the admission policy of the college and ordered that 80 per cent seats of the college
should be reserved for the nominees of the Government of Gujarat on the ground that the
State of Gujarat need to train 40,000 teachers to staff the primary schools in that State. On
refusal to comply with the State order, State aid was suspended.

As the college belonged to the minority religious community, the Managing Board
of the college appealed to Supreme Court for constitutional protection under article 30 (1),
in addition to a few other provisions of the Constitution. In its observation of the instance
case, the Supreme Court found that the order of the Gujarat Government made serious
inroads into the rights guaranteed to the Managing Board to administer the college under
clause (1) of article 30. In issuing the judgment, the Court compared this article with article
19 under which reasonable restrictions can be placed on the fundamental rights of citizens.

The Supreme Court observed in the instant case: Unlike Art. 19, the fundamental
freedom under clause (1) of Art.30, are absolute in terms: it is not made subject to any
reasonable restrictions of the nature the fundamental freedoms enunciated in Art.19 may be
subjected to. All minorities, linguistic or religious have by Art.30 (1) an absolute right to
establish and administer educational institutions of their choice; and any law or executive
direction which seeks to infringe the substance of that right under Art. 30 (1) would to that
extent be void. This, however, is not to say that it is not open to the State to impose
regulations upon the exercise of this right…Regulations made in the true interests of
efficiency of instruction, discipline, health, sanitation, morality, public order and the like
may undoubtedly be imposed. Such regulations are not restrictions on the substance of the
right which is guaranteed: they secure the proper functioning of the institutions, in matters
educational.

The Supreme Court, furthermore favouring the argument of the appellants that the
regulatory measures of the State could only be in the interest of the minority institution,
emphasized: The rights established by Art. 30 (1)…is intended to be effective and is not to
be whittled down by so-called regulative measures conceived in the interest not of the
minority educational institution, but of the public or the nation as a whole...Regulations
which may lawfully be imposed either by legislative or executive action as a condition of
receiving grant or of recognition must be directed to making the institution while retaining
its character as a minority institution. Such regulation must satisfy a dual test – the test of
reasonableness and the test that it is regulative of the educational character of the institution

119
and is conducive to making the institution as effective vehicle of education for the minority
community or other persons who resort to it.

These judicial observations led the Supreme Court to decide that State’s order to
reserve 80 per cent of the seats for its nominees was an unreasonable demand on the
minority college and, therefore, violated the protection granted to minority institutions under
clause (1) of article 30 of the Constitution The Courts in India have upheld two principles in
the aforesaid cases. Firstly, under clause (1) of article 30, the Courts have defended in
absolute term the protection guaranteed to the minority institutions to establish and
administer educational institutions of their choice. Secondly, the Courts have also approved
the State- intervention to impose reasonable regulations on them in the interest of efficiency
of the institution and to maintain certain fundamental human values, such as public order,
morality and health which are necessary for people to organise their lives in a manner that
protects human dignity.

4.6 Religious Freedom and Right to Equality

Articles 14, 15 and 16 of the Constitution of India deal with the right to equality.
Article 17 is the special provision that abolishes ‘untouchability’ and forbids its practice in
any form. Right to equality before the law and equal protection of the law to all citizens
irrespective of religion, race, sex and place of birth is one of the basic values of a secular
democratic State.145 Article 14 of the Constitution provides both aspects of equality to all
persons, including aliens who reside within the territory of India.

There are at the same time some provisions of the Constitution that recognise
exception to the general rule of equality on various reasonable grounds. These are given in
clauses (3) and (4) of article 15 and in clauses (4) and (5) of article 16. Exceptions to the
general rule of equality granted under clause (4) of article 15 and clause (4) of article 16
would be of interest for our consideration.

Article 15 reads: (1) The State shall not discriminate against any citizen on grounds
only of religion, race, caste, sex, place of birth or any of them. (2) No citizen shall, on
grounds only of religion, race, caste, sex, place of birth or any of them, be subject to any
disability, liability, restriction or condition with regard to – (a) access to shop, public
restaurants, hotels and places of public entertainment; or (b) the use of wells, tanks, bathing

145
Shastri Yagnapurshdasji v. Muldas Bhunardas Vaishya, AIR 1966 SC 1119, at 1127.
120
ghats, roads and places of public resort maintained wholly or partly out of State funds or
dedicated to the use of general public. (3) Nothing in this article shall prevent the State from
making any special provision for women and children. (4) Nothing in this article or in
clause (2) of article 29 shall prevent the State from making any special provision for the
advancement of any socially and educationally backward classes of citizens or for the
Scheduled castes and the Scheduled Tribes.

Article 16 reads: (1) there shall be equality of opportunity for all citizens in matters
relating to employment or appointment to any office under the State. (2) No citizen shall, on
grounds only of religion, race, caste, sex, descent, place of birth, residence or any of them,
be ineligible for, or discriminated against in respect of, any employment or office under the
State. (3) Nothing in this article shall prevent Parliament from making any law prescribing,
in regard to a class or classes of employment or appointment to an office (under the
Government of, or any local or other authority within, a State or Union territory, any
requirement as to residence within that State or Union territory) prior to such employment or
appointment. (4) Nothing in this article shall prevent the State from making any provision
for the reservation of appointments, or posts in favour of any backward class of citizens
which, in the opinion of the State, is not adequately represented in the services under the
State. (5) Nothing in this article shall affect the operation of any law which provides that the
incumbent of an office in connexion with the affairs of any religious or denominational
institution or any member of the governing body thereof shall be a person professing a
particular religion or belonging to a particular denomination.

Article 15 of the Constitution provides for a particular application of the general

principle of equality embodied in Article 14. Clause (1) of article 15 directs the State not to
discriminate against any citizen on the ground only of religion, race, caste sex or place of
birth or any of them. The prohibition contained in this clause applies to the State in dealing
with citizens. Clause (2) of the article 15 prohibits the private individual as well as the State
from inflicting any discrimination or disability with regard to citizen’s access to shops,
hotels etc., and all places of public entertainment and resort. The social and religious impact
of this clause is to be seen in the context of the dreadful history of the so-called
‘untouchable people’ who, for centuries in the past, were subject to social segregation and
humiliation in many parts of the country. Similarly, clauses (1) and (2) of article 16 embody
the principle of equality laid down in article 14 with reference to appointment and
employment under the State.
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 Let us now analyze and see the rationale behind the exception clauses to the general
doctrine of equality, which are known as provisions of “protective discrimination” or
“compensatory discrimination.”Clause (3) of article 15 makes exception in favour of women
and children and clause (4) of the same article provides exception in favour of some
backward classes of citizens and for Scheduled Castes and Scheduled Tribes for their
advancement in the field of education. Similarly, clause (4) of article 16 gives exception in
favour of any backward class of citizens in the area of appointment for jobs under the State,
if they are not adequately represented in such services.

The framers of the Constitution were aware that women and children needed a
humane social order conducive to their growth and empowerment affirmative of their
dignity and, therefore, the State is free to enact provisions to that effect. The constitution-
makers thought out also the socially and educationally backward communities as a ‘class of
people’ who deserved, on reasonable grounds, certain concessions or differential treatment -
also known as affirmative action - to catch up with the progress of the society so that these
communities would be eventually enabled to join the national mainstream with dignity and
self-respect.146 These exception clauses for differential treatment provided in the
Constitution add a new dimension to what the right to equality means in a secular
democratic State, which is committed to the principles of egalitarian social order and social
justice in order to further the cause of human dignity for all citizens. It means equal
treatment of equals in equal circumstances. However, this does not prohibit the State to
make exceptions on reasonable grounds, if the exception sought by the State should be
consistent with the advancement of the weaker sections of people in the society so that they
may engage themselves with the rest of the society in self-respect and dignity. This principle
was the defining to add clause (4) to article 15 by the Constitution (First Amendment) Act,
1951.

146
Harold G. Coward, “India’s Constitution and Traditional Presuppositions Regarding Human Nature” in
Religion and Law in Independent India, ed., Robert D. Baird ( New Delhi, Manohar Publications, 1993),
pp. 35-37.
122
 CHAPTER: V
Issues and Challenges to Indian Secularism and Right to Religion

5.1 The Conceptual Issues of Secularism

India’s ‘tryst with destiny’ was to be firmly grounded on secular principles

paradoxically; however, even 66 years after independence, secularism has not emerged as a
reality for the Indian social and political order. Increasing communalism and communal
violence accompanied by obscurantism and revivalism (as against rationalism and scientific
temper) have become the norm. Such trends are reinforced through State policies and the
politics of vote-banks. In the backdrop of such forces which are both divisive and
fissiparous, there is a drift from the declared objective of secularism. The very concepts as
well as the validity of its adoption in the Indian context are being questioned. This chapter,
accordingly, focuses on the challenges to secularism emanating from the conceptual critique
and perceptional distortions as also from communalism, both that of the majority and the
minority.

Secularism in the multi-cultural, multi-lingual and plural society of India a

significant role to play in reducing religious conflicts and persecution, upholding human
rights and on the whole building a ‘strong’ and ‘unified’ nation. Both the ideology and
practice of secularism are, however, being questioned today by various streams of thought147

147
Rajeev Bhargava observes, “Giving Secularism it’s Due”, Economic and Political Weekly, Vol. XXIX,
No.28, July 9, 1994, p.1784. See Partha Chatterjee, “Secularism and Toleration”, Economic and Political
Weekly, Vol. XXIX, No.28, July 9, 1994, p.1771
123
 First, there are those who desire a re-examination of secularism and emphasize the
need for a new philosophy. They regard the crisis in India today to be rooted in secularism
rather than secularism being the solution of the crisis. It is further contended that secularism
is an alien concept which has been unwisely imposed on India and is incapable of resolving
the problems of a plural society. Madan criticizes Indian secularism as an “inadequately
defined attitude”… of “goodwill towards all religions”, sarvadharma sadbhavana; in a
narrower formulation it has been a negative or defensive policy of religious neutrality
(dharma nirpekshta) on the part of the state.”148 He goes on to say, “In either formulation,
Indian secularism achieves the opposite of its stated intention; it trivializes religious
differences as well as the notion of unity of religions. And it really fails to provide guidance
for viable political action, for it is not a rooted, full-blooded, and well thought out
weltanschauung, it is only a stratagem.” He questions its applicability not only in India but
in the entire South Asian region and rejects it as “impossible”, impracticable’ and
“impotent” From the point of view of a ‘modernist minority’, he regards it as a “social
myth” and from that of the majority, a “vacuous word, a phantom concept”, and believes
that”… it fails to recognize the immense importance of religion in the lives of the peoples of
South Asia.” He further argues that this marginalization of religious faith permits the
perversion of religion.

Secularism, it is also argued, leads to the intensification of communalism. K.

Raghavendra Rao observes that two significant consequences flow from the secularization
of a community. “First, by weakening primordial commitments among individuals”, he
argues, “It generates very strong individualism, releasing individuals to promote self-interest
even at the cost of community interest. As a result, they do not hesitate to use community
interest and identity opportunistically to promote their self-interest. Second, even if no
significant level of individualism arises, the very nature of a community self-concept would
lead to a secular exploitation of a secularized community interest. This also results in
communalism…! Only a secular society which is modern can give rise to communalism.”149

The critics of secularism, it may be submitted, do not clearly define the political and
social order of a non-secular India, which at the same time is not theocratic. They also

148
T.N. Madan, “Secularism in its Place”, The Journal of Asian Studies, Vol.46, No.4, November 1987, p.750.
149
K. Raghavendra Rao, “Secularism, Communalism and Democracy in India: Some Theoretical Issues" in
Bidyut Chakrabarty, (ed.) Secularism and Indian Polity, (Segment, New Delhi, 1990), p.45. K.
Raghavendra Rao, “Secularism, Communalism and Democracy in India: Some Theoretical Issues" in
Bidyut Chakrabarty, (ed.) Secularism and Indian Polity, (Segment, New Delhi, 1990), p.45.
124
ignore the fact that, notwithstanding its lapses, secularism has had a positive impact in
certain areas. The abolition of untouchability, and various other laws relating to religious
and social reform, and expansion of secular institutions such as universities and hospitals,
may be seen in this context. Moreover, the emphasis of some critics on the need for a new
philosophy drawing sustenance from religion fails to recognize the fact that Indian society
has yet to liberate itself from the oppressive aspects of religion and build a social order
where freedom and equality will prevail.

Pitted against these critics are scholars who emphasize the indispensability of
secularism. Charles Taylors remarks, “In the absence of inclusionary definitions of the
people, of modes of coexistence around commonly accessible identities-which secularism
among other contemporary forms tries to facilitate-the logic of democracy can become that
of ethnic cleansing … either the civilized coexistence of diverse groups, or new forms of
savagery. It is in this sense that secularism is not optional in the modern age.” 150They
further build a strong case for an alternative conception of secularism 151

Apart from this research, there are a number of articles on secularism, published in
various journals; Reference to some of these may be made here. Both T.N. Madan and
Ashis Nandy are highly critical of secularism. Regarding secularism as a western idea, they
believe it to be unsuitable in the Indian context and therefore seek an alternative to it. Nandy
even asserts that religious tolerance may come not from the “fashionable secular theories of
statecraft” but from various religions. Religious tolerance is located in tradition not in
modernity.

Apart from the conceptual critique, the working of secularism in India over the past
66 years is also subject to vehement criticism. Although Nehruvian secularism worked well
during Nehru’s Prime-Minister ship, there were certain limitations which, it is argued, came
to there for in later years. As stated earlier, secularism in India was individuals but also to
religious denominations. Consequently, various religious organizations were able to
establish educational institutions, hospitals, etc. and avail of State funding for the purpose.
This, it is contended, provided space to the State to patronize religion. Moreover, important
activities such as education and health passed into the hands of communal organizations. the

150
Charles Taylor, “Modes of Secularism” in Rajeev Bhargava (ed.), Secularism and its Critics, (O.U.P., New
Delhi, 1998.) p.48.
151
Rajeev Bhargava (ed.), op. cit. Rajjev Bhargava argues for ‘principled distance’ between State and religion
and Akeel Bilgrami wants secularism to emerge from
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latter, firstly resulted in communalizing the minds of children, through the imparting of
biased education. Secondly, through their control over such activities and institutions,
prestigious posts such as Vice-Chancellors of Universities, Professors, etc. were cornered by
the communalists, “thus lending the power of the State to their communal
venom.”Communal organizations were also able to corner enormous funds while
masquerading as charitable organizations.the upshot of this entire process was the rise of
covert communalism. The impact was not immediately felt. But because the freedom was
not realized in the right direction, today the problem is coming to the fore as a challenge to
secularism in India.

Furthermore, there are visible distortions which as much constitute a serious

challenge to secularism. The concept ‘sarva dharma sambhava’ is misinterpreted to mean
equal proximity to all religions. Its requirements are therefore regarded as fulfilled by
merely paying obeisance at a mandir as well as a masjid, gurudwara ro church. Such
perceptional distortion is also obvious in the hosting of ‘Iftar’ dinners officially during
‘Ramzan’ and having an official committee to coordinate ‘Haj’ pilgrimages. This becomes
all the more significant when a scholarly person, (and more other than the previous
President of India, Shankar Dayal Sharma) regards such instances as indicators of the
secular nature of Indian polity. They fact that members of minority communities have been
in positions of power and responsibility is often cited as an indication of secularism.152

The ideology and practice of secularism has been most severely criticized by the
Hindu fundamentalists.They attack secularism as the principle behind the appeasement of
minorities, particularly Muslims. Secularism in India, they argue, is merely pseudo-
secularism and it was the pseudo-secularists who failed to educate Muslims in order to bring
them into the national Mainstream153Secularism, insists Balraj Madhok, “have become a
handle for most communal and anti-national elements to push through their nefarious,
separatist and anti-national designs”.154 As a result, he continues, “secularism in practice has
been encouraging minorities and undermining nationalism. It has thus, become a potent

152
S.D. Sharma, “Secularism in the India Ethos-3”, Bhavan’s Journal, Vol. 37, No.9, December 15, 1990,
p.29.He was the Vice-President at the time.
153
Kanayalal M. Talreja opines that India did not need secularism. a Hindu Rajya “Kanayalal M. Talreja, op.
cit., p.7.
154
Balraj Madhok. “Secularism: Genesis and Develo 21M.M. Sankhdher, “Understanding Secularism” in
M.M. Sankhdher (ed.), Secularism in India: Dilemmas and challenges, (Deep & Deep, New Delhi, 1992),
p.12.pment” in M.M. Sankhdher (ed.), op. cit., p.120.
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factor for disintegration of the already truncated country.”155 The main underpinning of the
majority fundamentalist critique is that while the State has used its powers of regulation and
reform in relation to the Hindu community, it has not done so in regard to Muslims. This, in
their opinion, constitutes appeasement of Muslims. Such an approach, they assert, leads to
abuse of secularism.

India was not declared a Hindu State at the time of independence is decried as a
“sheer betrayal, treachery, and heinous crime committed by the pseudo-secularists who
cheated and betrayed the Hindu State as a logical corollary of the partition.”156 ‘Positive
secularism’, they hold, “envisages the coming together of all the religious communities
bound by a uniform code of conduct, rights and responsibilities.”The thesis of positive
secularism is coupled with the assertion that only a Hindu State can and would be secular
and India cannot become a functionally secular State unless it is also declared a Hindu
Rashtra.157Only the preservation of the Hindu character of India would preserve the basic
values of secularism in India. In support of their contention the Hindutva ideologues cite the
example of Great Britain as a Christian Stat which is secular per se.158 religion and that a
Hindu State can and would be secular. This clearly undermines the spirit of secularism, for
as Kapur and Crossman aptly remark, “secularism collapses into antithesis-a theocratic
state”.159

The foregoing analysis reveals a multifaceted critique of secularism in India. At the

conceptual level it is rejected as alien and incompatible with the Indian social ethos.
Furthermore, its misinterpretation and distortions in practice have led to vehement criticism
from various quarters. But the most potent assault on secularism emanates from Hindu
fundamentalists who reject it as pseudo-secularism and propound the thesis of positive
secularism and a Hindu State as the only truly secular State. As such, the validity of
secularism is increasingly being questioned. The entire process has reinforced communalism

155
Balraj Madhok. “Secularism: Genesis and Development” in M.M. Sankhdher (ed.), op. cit., p.120.
156
Sumanta Banerjee, “Hindutva-Ideology an 23 Saifudin. Choudhry:The concept of positive secularism is
based on formal equal treatment of all religious groups. Any law providing special treatment to minorities
comes under ‘pseudo-Secularism’.Saifuddin Choudhury too expressed the opinion that “if you are not
secular, you cannot be positive” and declared positive secularism to be merely a camouflage to cover non-
secularismd Social Psychology”.
157
Sumanta Banerjee, “Hindutva-Ideology and Social Psychology”, 99.
158
Balraj Madhok, “Secularism: Genesis and Development”, in M.M. Sankhdher (ed.), op. cit., p.122.
159
For instance Balraj Madhok comments: “This was a big mistake and opted for Pakistan.”
Balraj Madhok, Rationale of a Hindu State, (Indian Book Gallery, Delhi, 1982), p.166.“Communalizing
Gender/Engendering Community: Women, Legal Discourse and Saffron Agenda”, Economic and Political
Weekly, Vol. XXVIII, No.17, April 24, p.WS-37.

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which constitutes the most potent threat to secularism in India today. Accordingly, any
study on secularism would be incomplete without an analysis of the phenomenon of
communalism. The question of majority and minority fundamentalism and the related issues
raised by their protagonists equally importance in this context.

5.2. Majority- Minority Issues in Religious Freedom

Today the scenario is very complex. The communal forces in the form of various
organizations doing politics in the name of religion have become dominant. Threat of attack
to secularisms not only from the communal political party but it is deeper. It operates
through communalization of social space, by spreading myths and stereotypes against
minorities, and by practicing a divisive ideological propaganda and politics. It also operates
through different culture mechanisms, through attack on rational values and culture, through
increase of blind religiosity. The section of media and the continuation of many textbooks
based on communal historiography and sociology is also a big threat to secular values.

If we wish to strength the secular ethos, it has to be an all round effort, through all
platforms of society with, a multilayered approach. The issues which undermine the secular
values, like Articale370, Uniform civil code ,allegation of appeasement of minorities, all
these need to be handled at humane level by putting across the honest attitude to all sections
of society. It has to be firmly aligned with the values of freedom movement and the values
old Indian constitution. The attack on secular values is the determined attempts by section
of the society to do away with the right of weaker section of society, delist, women, workers
and advises. We have to ensure4 that their self assertations their right is preserved and
strengthened.

A major threat to secularism is from the mingling of religion and politics. Religious
groups, both of majority and minority, organize themselves into political parties with a view
to grabbing political power as a means of economic power. It is politics, which proved to be
divisive and not religion. It is politicians who seek to mobilize votes on grounds of
primordial identities like religion, caste and ethnicity. Thus we can say that India is secular
in as much as it is religiously plural and tolerant but there were politically divisive forces
quite active which create communal pressure and widen the gap between religious
communities thus bringing Indian secularism under threat.

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 The adoption of secularism too did not resolve the vexed issue. Communalism today
constitutes a formidable challenge to secularism in India. Before going into the question of
how communalism both of the majority as well as the minority amounts to a threat to the
secular fabric, it may not be out of context to examine the meaning and nature of
communalism in general.

Communalism, in its positive aspect, stands for the affinity which an individual may
have towards his own community, which involves efforts for the social and economic
upliftment of his community. In its negative aspect, communalism stands for the
exploitation of religion for non-religious purposes and is more or less a product of the
educated middle classes rather than the illiterate masses. It is this aspect of communalism
which is today coming to the fore. Vitally important in any analysis of communalism is
recognition of the fact that, contrary to common belief, communalism has nothing to do with
religion as such. It may even be regarded as the anti-thesis of religion for it reduces the
religion doctrine of ‘universal love’ to ‘fragmented love’ and ‘hatred’.160 Asghar Ali
Engineer categorically asserts, “Communalism is born out of secular issues and communal
parties are led by, or communalism is promoted, by secular leaders.”161

A bird’s eye view of the phenomena of communalism and communal violence in the
country sufficiently proves the above stated hypothesis While blame for the genesis of
communalism is generally laid at the door of the British vis-à-vis their ‘divide and rule’
policy, it is in itself not a sufficient explanation. A number of other causative factors may be
traced, not least among which are the competitive nature of democracy and various political,
social as well as economic factors.162Harbans Mukhia traces it to “communal categories of
social analysis”,163 which in effect implies treating Hindus and Muslims only as unified
communities.

Communalism is manifested through fanatical religious mass movements, such as

the Ram Janambhoomi/Babri Masjid movement, which again have more to do with politics
rather than with religion.

160
Hiranmay Karlekar, “Exorcising Communalism”, Indian Express, December 12, 1992
161
Asghar Ali Engineer, as Quoted in Menon, S.M., “Hindu Upsurge in Perspective”, Mainstream, Vol. XXIX,
No.29. May 11, 1991, p.22
162
For instance, political parties play upon religious sentiments for garnering votes. Pramod Kumar, Polluting
Sacred Faith, (Ajanta, Delhi, 1992), pp.40-41
163
Mukhia observes, “That is, once Indian society is analyzed in terms of communities, in terms of Hinds as
Hindus and Muslims as Muslims and so forth, the two strategies of Political behavior follow. Vol. XXIV,
No.29, March 22, 1986, p.23.
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 Furthermore, communalism may also be exhibited through communal violence.
Prior to independence, the occurrence of communal conflicts as a regular phenomenon
starting in the twenties, achieving its climax in the partition holocaust. Following this, there
was a lull. The first major post-independence riot occurred in Jabalpur in 1961, after which
the number of communal incidents increased annually, with previously peaceful areas also
being engulfed in the floods of communal poison.

The cause of any particular communal riot may be as minor as a religious procession
of a conflict between a shopkeeper and a customer.164 In general; the causes of communal
violence have been traced to socio-economic development and the consequent urbanization,
accompanied by vote bank politics. Besides attempting to divert attention from genuine
socio-economic problems by instigating communal disturbances, a subjective and distorted
interpretation of history and using of the historical past for arousing communal passions are
other major factors in provoking communal riots. These outbreaks are thus rarely, if ever,
caused by religious dissensions.165 their antecedents can more often than not be traced to
political and economic factors.

Most outbreaks of communal violence are characterized by a few common features.

It has been seen that, more often than not, the administration as well as the police are not
free from communal tendencies. A hate campaign is organized by political activists rather
than by religious leaders. Criminals and lumped elements are conspicuous and the targets of
attack are rival business premises, disputed property or religious places. The riots have
become commercialized, leading to large scale destruction of property. Ashis Nandy
remarks that “… the planners, instigators and legitimizes of religious and ethnic violence
can now be identified as secular users of non-secular forces in the society.”

Although communal violence has assumed a lot of significance in the last few years,
the subject is nothing new to post-independence India. We have been experiencing major
communal riots since the first major riot in Jamshedpur in 1961. (Pre-independence India
also saw a lot of communal violence, but my own investigations started with 1961.) In the
1960s we used to see around one communal riot a day, so more than 300 riots every year.

164
In Hojai, a communal riot began over a tiff between a customer and the owner of a photo shop. The Hindu,
March 16, 1992, and in Rampur, murder of a youth led to riots, The Times of India, March 11, 1992.
165
Riots erupted in Hyderabad on June 5, 1998. On june 2, 1998, reports Indian Express, pamphlets appeared
which hurt the sentiments of one community, resulting in tension, followed by riots. See Indian Express,
june 10, 1998
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 5.2.1 Issues of Majority Communalism

In the first few years after independence, majority communalism was inactive and
quiescent. However, in the recent past, particularly during the 1980s, India is witnessing the

militant rise of majority communalism..An analysis of their strategies and approaches reveals a

distinct anti-secular thrust. This is noticeable not only in their struggle for hegemony which
stretches over the entire gamut of history, politics and culture, but also in their attempts to
consolidate the Hindutva fold. Emphasis on Hindu State and Hindutva, the anti-Muslim bias
in their rhetoric, which is discernible in their emphatic reference to appeasement of
Muslims, the yet unfinished agenda of undoing of perceived historical wrongs, etc. and the
pronounced gender bias, clearly reflect an assault on the basic tenets of secularism As
mentioned earlier, the BJP/VHP/RSS combine, rejects Indian secularism as mere pseudo-
secularism. In its place they advocate a Hindu Rashtra, which according to them is the only
answer to the crisis gripping Indian society and the only means to achieve true secularism.
Hinduism is projected as a secular and tolerant philosophy at it embraces varied sects within
its fold. What, however, emerges from their rhetoric is a clear anti-minority bias Defining a
Hindu nation as one where “all those not belonging to the nation, i.e. Hindu race, religion,
culture and language, naturally fall out of the pale of real national life”. Golwalkar declares
that, “the foreign races in Hindustan must either adopt Hindu culture and language, must
learn to respect and hold in reverence the Hindu religion, must entertain no idea except the
glorification of the Hindu religion and culture, i.e. the Hindu nation and must lose their
separate existence to merge in the Hindu race, or they may stay in the country wholly
subordinate to the Hindu nation, claiming nothing deserving no privileges, far less any
preferential treatment, not even citizen’s rights. The attempts is to create an artificially
permanent majority through assimilation of minorities within the Hindu fold. Thus they
maintain that in a Hindu Rashtra all modes of worship will be respected. “But all of us will
be Hindus or Issa Hindus. Two more devtas, Allah and Jesus make no difference to the
country’s long line-up”. The Hindu right’s discourse, however, drastically limits the scope
of religious freedom166

5.3 Challenges to Secularism and Education

166
Cossman and Kapur argue that the discourse of the Hindu right radically curtails the sphere of freedom of
religion.“Economic and Political Weekly, Vol. XXXI, No.38, September 21, 1996, p.2623
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 One of these challenges deals with education. The State claims a leading role
concerning education as a tool for fostering democracy and shaping the profile of
responsible and proactive citizens. This role has been growing in recent years because both
International organizations and States are aware that education is vital to overcome some
critical aspects of post-modernity and globalization. At the same time, religions claim to
have an important role in education too, both as an agent promoting education at the service
of parents and society, according to their own perspective and worldview, and as an
important subject of the educational syllabus. These claims may clash between them and
cast many questions: Does the State have the only leading role in education? Is it proper to
the State to have the monopoly of educational issues? Can be religion be part of the
educational syllabus at the different levels? And, how can religion be part of the syllabus?

5.4 Challenges to Freedom of Expression

Another important challenge for secularism is the scope and limits of freedom of
expression when confronted with religious ideas, religious groups and religious sensibilities.
There are different legal responses to that complex issue, among them: blasphemy laws,
anti-defamation laws, criminal laws to protect religious sentiments, hate speech laws, etc.
There is a growing awareness of the difficulty in reaching a satisfactory solution in national
laws, especially in those cases in which the conflict becomes international or global.
Different affairs concerning cartoons, sacred books burning, transgressive art, etc. lead to
the provisional conclusion that State laws are hardly the last word in resolving these
sensitive issues.

5.5 Problem namely religious clothing

In recent years, we have faced something which seems to be an unending problem,

namely religious clothing or religious attire. In some cases, States require from its citizens a
religiously neutral identity in certain public spaces and in certain official facilities. In doing
so, the secular state intends to preserve its neutral and secular culture to afford freedom to
all and to avoid an unduly religious influence. However, this requirement from the State
compels citizens to shed their own religious and cultural identity. Indiscriminate ban of
certain religious attire, though justified, does not seem to be the best solution; according to
international organizations undoubtedly this is another important challenge for the secular
state.

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 Displaying of religious symbols in public places or in those elements which define
the identity of a given country (like the flag, the anthem the coat of arms, etc.) is another
relevant issue. How to reconcile those historical elements and symbols with the secular
state? In other words, which is the permissible limitation to the negative aspect of freedom
of religion of citizens? Is the solution to this issue beyond competing interests and rights, to
reach an area of tolerance towards certain symbols?

In the aforementioned areas, and in many others, religious conscientious objection

before State regulations is at stake, especially in sensible areas related the ethical dimension
of behavior. It is a field which required from the State a great amount of fairness in
balancing the respect of religious conscience and the protection of the state‘s interests which
contested legal norms protect and support. But the most important challenge for secularist
States is the scope of secularism itself. In a recent conversation with my friend and
colleague Javier Martínez-Torrón, we realized the increasing social presence and activity of
non-theistic, atheistic and humanist organizations which very often request and obtain from
the State legal personality and status akin to that of religious communities. These
organizations claim from the State an implicit but visible endorsement of their ideas many
of them coincide apparently with those of the State. This may well be the case of the claim
for religious neutrality. Is religious neutrality really neutral?

5.6 Conversion, secularism and religious freedom in India

In contemporary India, religious conversion is one of the most contentious issues in

society and politics, which gives rise to heated debate and hostility towards Christians and
Muslims. This doctoral research project studied the debates on conversion, secularism, and
religious freedom, in order to account for the problems at the heart of this conflict over
religious conversion in India.

Today, there are five Indian States with active anti-conversion laws and more are
pending. In the media and on the internet, Indians express incomprehension and resentment
towards conversion practices. As one participant says: “Indeed this whole notion of
conversion seems all wrong to me. What are they converting? Why can’t anyone who wants
to practice Christian religion do so without converting?”

Internationally, the response is also one of incomprehension and resentment. In May

2006, Pope Benedict XVI addressed the new Indian ambassador to the Holy See, referring

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to the anti-conversion laws as “the reprehensible attempt to legislate clearly discriminatory
restrictions on the fundamental right of religious freedom.” In response, the Indian Foreign
Ministry declared sharply that India is a secular and democratic country guaranteeing
equality for all religious faiths. When Tamil Nadu’s chief minister Jayalalitha was criticized
by the previous Pope for her state’s anti-conversion law, she declared that the Pope has no
authority to talk about this, and shot back at a journalist “so what, if he is the chief pontiff?”
But the Pope does not stand alone here. In 2009, a special rapporteur of the United
Nations pointed out that the anti-conversion laws “raise serious human rights concerns.”
The United States Commission on International Religious Freedom decided in 2009 to put
India on its “watch list” of countries requiring close monitoring on religious freedom issues
because of its anti-conversion legislations.

This debate on conversion is not new, but has been going on since the early 19th
century. The debate finds itself in a dead-end: the same arguments and concerns are repeated
over and again. The only thing the different parties agree upon is that the gap between their
viewpoints is unbridgeable. The fact that the issue of conversion has nevertheless remained
central for more than two centuries indicates that both parties feel violated and threatened in
their most basic cultural values. How can we make the experiences of both parties
intelligible?

In the media and the academic literature, there is a dominant framework explaining
the clash over conversion in India. This framework tells us the following: (1) In the modern
world, any civilized nation-state should be a secular state that protects the fundamental
rights of its citizens, including freedom of religion and conscience and the freedom to
choose and change one’s own religion. (2) The opponents of conversion are Hindu
nationalists, who challenge secular values and argue for a Hindu state where religious
minorities will be second-class citizens. (3) These Hindu nationalists fear that allowing
conversion will have Hinduism lose out on other religions like Christianity. This would
happen, one claims, because lower castes, Dalits and tribal groups will convert to other
religions in order to escape from Hinduism and its caste system. (4) In other words, this
framework presents the clash over conversion in India as a struggle between liberal secular
values like equality and liberty, on the one hand, and Hindu nationalism and the caste
system, on the other.

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However, this framework does not work, since it fails to explain a range of facts in the
Indian debate on conversion. Let me mention a few:

- The opposition to conversion is not limited to Hindu nationalists. The feelings of

incomprehension and resentment towards conversion are wide-spread across the Indian
population, in all kinds of communities and traditions.

- Gandhi, who was certainly not a Hindu nationalist and admired Christianity, also wrote the
following: “If I had the power and could legislate, I should certainly stop all proselytizing.”

- Hindu nationalists do not oppose modern values like “secularism,” and “religious
freedom.” Instead, they argue that they are the true defenders of secularism and religious
freedom.

- This points to another crucial fact: when the different parties in the debate discuss
“religion,” “conversion,” “religious freedom,” “secularism,”…, one assumes they are
talking about the same things. In reality, however, they give completely different meanings
to these terms.

These problems challenge us to formulate a better hypothesis. We must be able to

make sense of the different positions without neglecting both experiences of being violated
in crucial aspects of one’s culture. To do so, we can examine the milestones in the
conversion debate (point to the slide). These milestone discussions show that when Hindu
participants use terms like “religion, “conversion”, “secularism”, “freedom of religion”,
etc., they do so in ways that distort the way these terms are normally used in the Western
and western-educated world.

5.6.2 Reasons for conversion

Why do people convert? This has been a subject matter of many disciplines viz.
psychology, sociology, theology but not law. Law is only concerned with the legality or
illegality of the reasons but not the reasons per se. Even so, it is important to briefly mention
various reasons which precede conversion. One of the most significant factors credited with
motivating individuals to convert to other religion is “relative deprivation”.Various social
studies on conversion conducted in the 1960s and 1970s reveal that economic, social, moral,
spiritual, and psychological deprivation has been described as the key impetus behind a
person’s decision to alter their religious identities.34Most importantly gravitation towards

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other religions may also be a consequence of brainwashing, or persuasion by way of
coercion.

CHAPTER- VI
Findings, Conclusion and Suggestions

6.1 Introduction

Religion is the belief in spiritual things, recognition of a higher unseen controlling

power, an eternal principle etc. In fact, religion is way of life and code of conduct. The
origin of religion is in the society of primitive men. Natural phenomenon is the sources of
the ideas in religion. Religion was born in the insecure condition of primitive men. It is not
made by God. Man makes religion as well as God. There is a vast difference between
'Religion' and 'Dharma'. The difference between these two concepts may be sumrnarised
thus; Religions are many such as Boudha, Jaina, Sikh, Islam, Christianity etc. It is personal
to individuals and left to their choice. One can join or change a religion according to his
urge and desire. Respect for all religions is dharma.

A Peculiar problem regarding Secularism in India is the absence of a proper and

correct Hindi terminology to denote the exact meaning of this concept in the context of
India. The current Hindi word Dharma Nirpeksha used as an equivalent of the English word
‘Secular’ is not a correct term. Because it equates Dharma with ‘Religion’ which are two
distinctly different concepts. Secondly, the use of word Nirpeksha (which means neutrality)
brings it closer to the western concept of secularism with its religiously negative overtones.

It is a code of righteous conduct, of obligations and duties, of law and justice. It also
meant the sum total of traditions, obligations and customs which bound together all the
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members of a caste and were called kula-Dharmaat Sanaatanaah.1 It could also mean a
code of conduct in polite society.2 Lastly, it means the law of the land, both the fundamental
and particulars branches of law, such as the law governing the duties of husband and wife.

The concept of Dharma as a fundamental law has a secular evolution. The word
Dharma is derived from the root dhari which means ‘to support’ or ‘to hold together’
Dharayati iti dharma. They call it Dharma because it is a force which supports or holds
together – because it holds the people and society together.”3 What precisely was the force
that held the society together? Manu provided a guide for righteous which held the society
together.

It consists of the Vedas, the Smriti and Sadachar- that is the righteous conduct
established by custom and public opinion; and if these three fail to provide the guidance,
then conducts according to conscience. These are the four attributers of Dharma. 4 Manu
specified the ten elements of good conduct–contentment, forgiveness, mental discipline,
non-stealing, purity of thought and action, curbing of sensory organs, cultivation of wisdom,
acquisition of knowledge, learning, truth fullness and the control of temper. Thus, the
comprehensive content of Dharma is completely secular and there is not a word in it about
religion, faith or belief.

On the other hand, the meaning of ‘religion’ is quite different from what the concept
of Dharma connotes. Religion means “belief in divine or superhuman power or powers to
be obeyed and worshipped as the Creator(s) and ruler (s) of the Universe. It is expression of
such a belief in conduct and ritual.” Religion generally implies a common sacred book and
a prophet to initiate it. In this sense, Islam, Christianity, Buddhism, Jainism, Sikhism,
Zoroastrianism and Confucianism, etc. may be treated as religions. But, Hinduism is not a
religion because it has neither a prophet nor a commonly accepted sacred book. Hinduism is
a dharma, a way of life, a way of good life. Religion is more metaphysically and mystically
oriented than Dharma. Religion is more dogmatic and less rational. Religion is heavily
weighted in favour of the life after death, but Dharma is concerned more with the life in this
world than with the other world after the death.

Hence, it would be wrong to equate Dharma with religion. The two words are not
really synonymous. The word ‘secular’ has much more to do with religion and very little
with Dharma. Therefore the Indian concept of secularism cannot be termed as Dharma-
Nirpekshtavaad. It would be preferable to call it Dharmik Sambhavavaad.
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 It is submitted here that there is nothing wrong with the Indian philosophy of
secularism which has withstood the onslaughts of quite a many alien attacks and has proven
its mettle against rigours of time. If there is some fault, then it lies with the politicians who
publicly vouch for secular ideals and privately indulge in communal squandering. A
common Indian is still quite liberal and tolerant in his mental makeup, but he/she is also
very sensitive in the matters of religion. The, does it mean that religion and secularism are
self-contradictory? Is there an inevitable inconsistency between religion and secularism?
The answer to this question depends upon what religion should really mean.

If, by religion we mean that which is practiced by the ignorant followers or as it is

preached by the ignorant and bigoted priestly class; or the superstitions that have crept in
the name of religion, or the preaching’s of the unenlightened priests who interpret the
scriptures more by the words than by the spirit of the letter; all these go to make religion
look narrow, pedantic, backward looking, static and exclusive. When religion is transformed
into blind faith; when reason and dissent is heresy, when narrow mindedness and fanaticism
lead to the fructification of reason and scientific temper, then religion becomes a dogma.
Such a religion can never help to build a progressive society. Surely, secularism is deadly
opposed to such a religion. As a matter of fact, the secularist philosophy came into when the
worst crimes were perpetrated on humanity in the name of religion.

There is another point of view also. Some people think that religion cannot be
reconciled with secularism because religion leads to indifference to material in life. If
breeds conservatism creates an antipathy to the adoption of the new ways of life. It creates
an attitude of blind faith and prevents organization of society on rational basis. Religions
teaching emphasizes on the life after death in the ‘other world’. Contrary to this, secularism
seeks to emphasize on the material progress of the human race. It is also concerned with the
good life on this planet only. Secularism is opposed to such a religion which is monistic,
leads to the supremacy of one who is infallible and about whom no questions can be raised.
Secularism, on the other hand, is pragmatic and leans more on experience and reason.
Religion, on the philosophic plane, believes in metaphysical absolutes, while secularism
believes in relative and realizable truth.

Thus, it may be said that religion, in the sense of its traditional meaning, is surely
incompatible with secularist philosophy. But religion, in the true sense of its meaning,
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becomes complementary to secularism. In this sense, religion is concerned with philosophy,
ethics and morality. In this sense, it is inspired by the spirit of human enquiry into the
unknown, the cause of the universe and eternal verities. Religion, in its best and the highest
sense, should and must recognize the validity of reason and the relevance of the spirit of
inquiry, unhampered by the letter of the scriptures.

The Indian approach of secularized religion is not inconsistent with secularism.

Hinduism, itself, is the best example of a secularized religion and Mahatma Gandhi is the
most sincere believer of this kind of secularized religion. Religion tolerance is the essence
of Indian Secularism. All religions, whether it is Hinduism. Islam. Christianity, Sikhism,
Buddhism preached tolerance, equality, kindness and brotherhood. Therefore, all of them
are Secular. Secularism is not anti-thesis of religious devoutness. We have to dispel the
impression that if a person's is a devout Hindu or devout Muslim or Sikh or Christian, he
can be Secular in outlook. Vivekananda, Mahatma Gandhi were embodying the essence of
Secularism. He accepted the creative force of religion in human history. Religion signified,
to him, belief in the ordered moral government of the world. He wrote, “All religions are
founded on the same moral laws. My ethical religion is made up of laws which bind men all
over the world.”5 Religion, to him, was not merely a means for personal purification but it
had an immensely powerful social bond. The true religion, then, should stand for unity and
tolerance. In view of Servapalli Radhakrishnan, “The more religious we grow, the more
tolerant of diversity we shall be-come.” True religion does not teach one to hate those
professing other faiths. There is tolerance if this country is to go ahead. Secularism in not
against religion per se, but it totally rejects the fundamentalist approach to religion.

In summation, a religion which stands for tolerance, peace and unity; which views
Absolute Reality as a mystery of which no more than a friction has ever yet been penetrated
by any human mind is close to secularism. True religion is not opposed to secularism; as a
matter of fact, it supplements secularism. Secularism is always a handmaid of religion if it is
used in the sense in which Gandhi used it. The secular approach to religion is that religion
must make one a good citizen. Regarding the problem of paradox in the practice of
secularism in India, the malady is caused by the narrow minded and power-mongering
politicians. Its further aggravation is caused by the political innocence of the people who are
not able to see through the games which these politicians play for selfish political gains.
But, this is not going to last long. A positive change has already set in. The process of

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transformation of society through democratic means is always slow but definitely a steady
one.

There had been raised yet another controversy by the Akali Dal in Punjab, seeking
an amendment of Article 25 of the constitution of India. It had been asserted that the
provision is discriminatory to the interests of the Sikhs. The agitation, unfortunately, took
an ugly turn of events when “the people who took an oath to protect the constitution, later
burnt the pages of it.” What actually happened in Punjab is known to everyone but what we
are concerned with, for the purpose of this study, is the problem: whether Article 25 of the
constitution needs to be amended or not? Is it discriminatory to the interests of the Sikhs?

Why has this issue been raised for the first time, now, at this stage? Article 25 deals
with the freedom of the individual in matters of religion. Clause 2(b) of this article gives to
the state power to make laws providing for “the throwing open of Hindu religious
institutions of a public character to all classes of Hindus.” According to Explanation II to
this article, the expression “Hindu” includes a Sikh, Jain, and Buddhist. Hence, Hindu, Sikh,
Jain and Buddhist institutions come within the ambit of the above provision. The words
“religious institutions of public character as interpreted by the Supreme court, in Temple
Entry Case would include not only such institutions as are dedicated to the use of a
particular religion but would also include institutions which are purely denominational.

This wider interpretation of the provision of Article 25(2) (b) clearly shows that the
State can validly make a law throwing open a Jain temple to all Hindus. A Hindu
denominational mutt to all Hindus, Sikhs, Jains and Buddhists and a Sikh Gurudwara to
Buddhists. In fact, the idea of widening the scope of the provision was to eliminate any
distinction between one class and another class of Hindus.7 Hence, the interpretation of
Article 25(2) (b), as given by the Supreme Court, is in consonance with the intentions of the
framers of the constitution. What about Explanation II? The Explanation says, “in sub-
section(b) 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.”Broadly speaking, the Explanation means that
institutions belonging to any of the above religions may be thrown open to all those
professing that particular religion. But, the later view creates an impression that each of the
above religion has institutions to which some classes are admitted and others not.

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 It is submitted that there appears to be a flaw in the drafting of the above provision.
Article 25 deals with individual’s religious freedom, whereas Article 26 provides for
corporate religious freedom, and hence, the provisions contained in Article 25(2)(b) should
have been incorporated in Article 26(b).It was to avoid a conflict between Articles 25(2)(b)
and 26(b) that the Supreme Court in the Temple Entry Case gave a wider construction to the
former provision and held that Article 26(b) must be read subject to Article 25(2)(b).

The objection raised by the Akalis that provisions of Article 25(2)(b) vide
Explanation II do not reflect the independent identity of the Sikh religion, does not seem to
make much sense. In answer to this objection, it is contended here that the said provisions
far from weakening the distinct identity of the Sikh community have, in fact, given explicit
recognition to it. This is evident in the provision contained in Explanation I of the same
article which makes a very significant and discriminatory exception in favour of Sikhs by
granting them the fundamental right to “wear and carry kirpans”. Secondly, the Explanation
II implicitly provides that in matters of religious institutions, its provisions shall be
uniformly applicable to Hindus, Sikhs, Jains and Buddhists. Therefore, the removal of these
provisions from the constitution, instead of benefitting the Sikhs, would deprive them of the
constitutional privilege.

It may further be pointed out that Hindu Religion (if at all, this could be so termed)
is reflections of the composite character of the Hindus who are not one people but many.
The evolution of Hinduism shows that Buddha, Mahavir, Guru Nanak, Swami Dayananad,
Ramakrishna, Vivekananda, all have imparted a new dynamic content to it. It is for this
reason that Hinduism is correctly termed Dharma, not as a religion in its traditional sense.

The inclusion of the Sikhs within the word ‘Hindus’ in Explanation II of Article 25
(2)(b) does not mean that the Sikh religion’s identity is lost. The wordings “professing the
Sikh… religion” occurring in the above Explanation I of the same article belies the
argument of the Akali Dal that the provision causing some misgivings over the separate
identity of the Sikhs. Perhaps, the Akali is also denying the historically established fact that
the word “Hindu” is derived from the river Sindhu which is in Punjab. Hence, there seems
to be no justification for seeking an amendment to Article 25 (2)(b) which recognizes not
other religions also and accords them equal status and protection. One should realize that
the interests of the nation are always overriding and paramount to any other sectarian or
sectional interests.

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 It is notable that the word “Secular” did not appear in the Preamble of the
Constitution when it was adopted by the Constituent Assembly in 1949. The only place
where the word “Secular” appeared in the Constitution was in the expression “Secular
Activity” in Article 25(2) (b) where it refers to the sense of “Non-Religious”. The omission
of the words “Secular” or “Secularism” was not accidental. It was a deliberate doing on the
part of the constitution makers.

It was avoided, perhaps, because the founding-fathers felt that the use of the word
“Secular” in the relevant places in the constitution might unnecessarily introduce, by
implication, the anti-religious overtones associated with doctrine of secularism, as it is
perceived in the West. The Indian constitution, however, does not say that religion be
excluded as a social evil. Any such assumption would be against the freedom of religion as
guaranteed by Article 25. It empowers the state to effect social reform, but only so far as
they can be achieved by controlling or regulating “secular practice” and not by suppressing
the essentials of any religious faith. Hence, the secularism under the Indian constitution,
does not mean that the state should be antireligious or even non-religious, but of course, it
shall not favour any particular religion or discriminate against another.

6.2 Concluding Remark

Hence, Researcher would like to submit that secularism is an evolving concept. It

has changed the dimensions of its meaning from time to time and country to country. Its
meaning and implications changes very much as the time passes on. Hence, it is wrong to
hang on to the traditional meaning of secularism as it was understood then. Indian
philosophy of secularism does not accept the dictionary meaning of term. So, why the
hesitation in using word “Secular”? According to an eminent constitutional commentator:
“That to use the vague and dubious word ‘Secular’ in place of the definite and detailed
provisions of the constitution, was likely to breed undesirable confusion in the minds of the
ordinary people and aid political parties who might find it convenient to capitalize of
‘religion’ The resistance against the inclusion of the word “Secular” in the constitution did
not end with the Constituent Assembly only. Later on, some objections on the juristic
grounds were also raised in this matter. The arguments offered in support of these objections
are:

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 1. The word ‘secular is not a juristic term;

2. If it means the same things as indicated by Articles 25-30 in the constitution,

it advances little by introducing this in the Preamble;

3. conversely, it cannot override or supplement the express provisions in Articles

25-30, since the Preamble cannot control the provisions of the constitution or
serve a supplementary source of power or limitation;

The word ‘Secular’ is to only vague but includes undesirable or perhaps mischievous
implications as well.

An interesting question was raised in Ragunath vs. State Case. Due to communal
riots, some houses, schools and places of worship of both communities were destroyed. The
Government sanctioned relief for this purpose. A tax payer challenged it as unconstitutional
on the ground that it attempted to promote and maintain Hindu and Islam religion. While
rejecting the contention the court held, “There is no question of promotion or maintenance
of that particular religion or religious denomination in the restoration of damaged places of
religious worship.” Similarly, in Bira Kishore vs. State Case15, the Court upheld the validity
of a state grant of Rs.3 lakhs for the renovation of a water tank open for use by the public
but belonging to a Hindu deity. The decision turned on on the fact that the grant in question
did not seek to promote or maintain Hindu religion.

Thus, it can be said that Indian secularism is not anti-God or anti-religion. The
provision of Article 27 prohibits the payment of taxes for any particular religion and not for
the promotion of all religions generally. This article would not bar any discrimination, or
indeed, if it benefits all religious institutions in general without making any discrimination.
Consistently with the provisions of this article, we find Article 290A providing for the
annual payment of certain Devaswam Funds, is not vitiating the secular nature of our polity.
In other words, it was not thought inconsistent with the provisions of secularism contained
in Article 25 and 26 to guarantee annual to Devaswam Fund, under the circumstances
enumerated in this article. It also indicates an affirmation of the fact that anti-religionism is
not contemplated by the Indian constitutional philosophy of secularism.

Secular politics is not against religious beliefs of the people but it has to fight for the
privatization of religion. The Central issue is that Secularism in a highly religious society
has to be tolerant of religious beliefs but it has to draw a line that public affairs will not be
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decided according to religious beliefs. It has to draw a line where religion ends and Secular
democratic politics begins. During the last six decades, so-called Secular parties have failed
to draw boundary lines between religion as a private affairs and Secular politics as a public
activity

The failure of Secular politics has led to the strengthening of the communal politics.
All non-BJP political parties are saying that they are Secular and fighting against the so-
called communal forces like BJP, in fact all these non-BJP Parties are non-Secular.
Amongst these, some are cattiest and communal parties.

Proper view of the word religion must be taken to understand the term of
Secularism. Religion is usually conceived as adoption of a faith, a particular dogma or
recognition of some higher unseen controlling powers and recognition of some. In the
primitive societies religion came as a spontaneous response of men to natural calamities,
insecure conditions and the need or moorings for the minds. Though as per the basic
phenomenon giving rise to the need for religion remained the same that is why right from
the most primitive societies up to the most modern societies, all individuals are found to
embrace some religion or faith. But in every society, the existence of every society and the
maintained of its individuals needed to every individual were also essential. It is here that
the need and the concept of Dharma evolved. In Dharma, the root Dari means to hold
together. It includes performance of duties by each individual, social harmony and a code of
conduct for all which can keep society together. In every society adopting some religion or
other, Dharma was universal. It included charity, brotherhood, compassion and tolerance
towards other’s faiths (may be divergent faiths). Thus, while religion may be categorized,
Dharma remains universal and the same. Hence, the concept of Dharma (irrespective of
religion) ought to prevail. Once this is accepted, people with different religious can co-exist
peacefully. Dharma is more concerned with the role and functions of beneficial to the
individual and the society both. In fact, it emphasizes the duties of individuals towards
fellow brothers and the society. Hence it can be Samaj-Dharma, Raj-Dharma or for that
purpose of any individual or group interested with particular responsibility or role in the
social system.

The great Indian thinkers with spiritual, philosophical background have defined the
concept of Secularism. Swami Vivekananda gave the broadest possible meaning to it and
said the Adventism (oneness) was the last word of the religion and maintained that people

144
from all religious faiths should come together and understand that different religions are the
varied expressions of “The Religion” which is “oneness.” This seems to be the ultimate
meaning of all religions making them Secular in nature. Mahatma Gandhi considered
religion as a personal matter but maintained that concept in Hinduism was non-sectarian and
included Islam, Christianity, Buddhism, and Zoroastrianism. To him, Truth was the religion
and Ahimsa the way to its realization. Thus he gave a moral and spiritual contain and
emphasized the religious spirit in each religion rather than a religious sect. He also said that
all those who are born here (Hindustan) belong to the land. He also believed in Sarva-
Dharma-Sambhava but opposed to a state religion or State interference in matters of
religion.

Dr. Radhkrishnan emphasized the separation of religion from state and religious
impartiality of the State. No special privileges should be given and no discrimination should
be made between citizens on the basis of religion. Equal respect for all faiths and religion
was a sign of Secularism. Some expressed the view that historically Hindus have been
tolerating and assimilating people from different religious. Thus it is a sign of a secular
character.

Jawaharlal Nehru was against giving a nearly material background to Secularism and
felt that it had spiritual contains. Granting equal status to all religions, freedom in practice of
religion and no special privileges or deprivation on the basis or religion was advocated by
him.

Dr. B. R. Ambedkar said that in a secular State Parliament shall not impose any
particular religion upon the rest of the people.

M.C. Chagla considered Secularism as an attitude of mind and the equality of heart.
For him, it was a matter of temperament of outlook and of feeling. It means looking at all
persons as human beings, equality of persons in the eyes of law and of God. To think of
man as a human being and dealing with him as human being – and not as a Hindu, Muslim
and Christian – was a sign of Secularism for him.

Many other leaders interpreted Secularism to mean equal treatment and equal rights
irrespective of their respective religion.

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 Dissociation of religious consideration from political and social life, large heartiness
and tolerance towards different creeds, framing similar laws for all religious including equal
Marriage Acts for persons of all religious are some of the views on Secularism.

So far as the political leaders from different parties are concerned they interpreted
and explained the term in the context of their ideologies.

Some call it as being included in Hindutva while, others consider it Sarva-Dharma-

Sambhava. Where State has nothing to do with religion, or a co-existence of religions, is
called Secularism. Some consider it as a combination of good principles from different
religions. Not giving upper hand to the dictates of any religion over and above the
Constitution is Secularism.

Sarva-Dharma-Samanvava and the tolerance and the acceptance of the truth from all
religions are Secular. Absence of discrimination between man and man on the basis of
religion is secularism. According to some keeping religious and States sphere apart from
each other (“Unto God what is Gods” “Unto Ceaser what is Ceasers,” is Secularism).

According to some the implementation and practice of Secularism is more important

than harping upon the concept of secularism. Hence political parties and Governments must
see that the policies are secular and implemented in that manner. All political parties
subscribed to the ideal of secularism but their acts exposed the hierocracy. It is the
politicians who try to exploit the religious sentiment of the people for their political purpose.
Equal respect and protection to all religions. Enacting common civil code and non-
religiousness (rather than anti-religiousness) of the State and polity have been advocated as
the parameters for secularism.

In a truly secular State, national interest, honour and security should be given
priority over any religious belief or principle. There should be no compromise on such
issues. That means, religious consideration should be subordinated to national
considerations.

On the basis of data gathered and analysis made the ultimate meaning and form as
practiced to India since Independence the term 'Secular' or 'Secularism' can be described as
below:

a. The Preamble to the Constitution described India as a “Secular Republic.”

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 b. The State has no official religion and it stands apart from religion.

c. There is no discrimination between citizens on the basis of religion, at public

places, in matters of opportunities for employment etc.

d. Equality before law and no-discrimination on the basis of religion as

guaranteed in the constitution. Here exceptions are made particular in the
sphere of Civil laws like marriage, inheritance etc., and Uniform Civil Code
has not been enacted.

e. The Constitutions as well as some laws give certain concessions and make
exceptions for different religious groups and their religious institutions.

f. Problems and issues related to places of worship are not looked upon from
strictly legal and rational point of view but got bare treated as matters of faith
and sentiments of religious minorities and majorities.

g. Caste system is recognized and given legal status by enacting laws for the
noble of bringing social equality and justice. This much for the
Constitutional and legal provisions.
h. Religion and secularism are not rivals of each other. The relationship of
religion and secularism is very vital to any society and it is determined by the
way in which religion is understood in that society. Religion, if understood in
a narrow sense, breeds superstition, fanaticism and fundamentalism. Such a
religion is definitely an enemy of secularism. But if religion is understood in
a broad sense, then it stands for tolerance, peace and unity. Such religion is
not opposed to secularism. As a matter of fact, it supplements secularism.
b)
g. Is ironic that secularism which began as an anti-God and anti-religion
ideology, has ended up in championing religious freedom and now, the right
to freedom of religion is universally recognized, at least in principle, in most
countries of the world. The exercise of this right differs from country to
country depending

The crux of the problem is: how to follow this directive without hurting the religious
sensibilities of the people? One important dimension of this problem is that whilst the

147
majority community has, generally, been in favour of a common civil code based on secular
values it is minority communities, more particularly the Muslims, who are against it.

The state policy, on this issue is to secularize personal laws of various communities in
a step by step manner. In this too, they showed their eagerness to secularize the Hindu law
first, but regarding other communities, they have adopted a “wait and see” attitude on the
pretext that these communities are not yet ready to accept this change. Really speaking, the
state approach to this whole issue is misdirected. Instead of concentrating on the preparation
of a uniform civil code based on secular values, the state is attempting to secularize the
religion-based personal laws of various communities which is self-defecting in its purpose.

There is no doubt that the problem of the formulation of a uniform civil code is
complex in nature. To have ‘complete uniformity’ in all spheres of civil laws is neither
desirable nor possible. Therefore, the objective should be “uniformity where you can have it
and diversity where you must have, but in all cases certainty.” The first task should be to
take out as much of personal law as possible from the shackles of religion and then attempt
to find legal rules which are common to the main systems. It is, thus that a nucleus of a
uniform code can be formed. Researcher should not hesitate to borrow or even transplant
alien provision of law from other legal systems. Together with this exploratory ground
work, a lot of preparatory ground work is also required. Public opinion has to be educated
and enlightened; the need of a uniform civil code is to be impressed upon the people. Then
only, the problem can be resolved.

Finally, if secularism is to become functional in India, it has to relate itself to the

racial and cultural motivations of the social tradition. In spite of the divergence of religion in
the country, there exists a tradition of mutual tolerance of people belonging to different
faiths and this tolerance is disturbed not only by the believers but by certain bigots also, who
try to enforce their religion on others. The Indian constitution is well armed to set right these
religious who disturb the social peace.

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 Religious pluralism and an absolutely impartial and equidistant attitude of the State
in matters of religion are the only correct position to maintain Secular character of the
constitution.

6.3 Suggestions and Recommendations

To conclude, Researcher would like to make some recommendations in the light of
the preceding discussions,

 Principal of Secularism which is propounded by the framer of the Constitution is

well protected by the highest court of the land. However, there for is along delay in
securing the justice against wrong done by a some of the interested people which
made the secularism fast.

 The demolition of Babri mosque has taken in the year 1992 and these issue is still
pending in the hon;ble Supreme court of India. Several time, tension mounts
whenever there are specific occasions, like Ram Navmi etc. when the sentiments of
religion is invoked by political parties and in the way though there is a secularism
but in true sense, to secure secularism , the delay defeats the object of the
constitution, which is apparent in the facts of the demolition of Babri mosque. There
for, the secularism in India is not archived within reasonable time and which makes
the claim of secularism is weak or partial failed. It is well established principle of
law the 'Justice delayed is Justice denied.

 The principal of secularism though is well secured but that is practical failure. There
is no Secularism in actual practice. The Secular forces are getting eroded day-by-
day. It is, therefore, necessary to strengthen Secular forces to resecularise our polity.
The important question is what should be done! Of course, it is very difficult to
prescribe any recipe for the purpose. But some tentative suggestions based on the
earlier findings can certainly be made.

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 
At present, as on today, the term 'secular' or secularism' has not been defined in the
Indian constitution, hence, the first and foremost task is to define the term
'secularism' and secular'. Once these from are properly defined then such secularism
does not imply hands off government, indecisive, halting, or hesitant until matters
transform from show to shove, or indifferent towards religious affairs. We believe
that such secularism would not deny the possibility of allowing a legally regulated
interaction between the government and religious institutions. This is vital for the
government and religious groups as well; since both have a stake and responsibility

of defending and respecting the Constitution.



Wherever the dispute pertaining to place of worship/ manner of worship/usage of
loudspeaker etc. In the religious places or communal roots should be referred to
special courts constituted by the Government/Parliament. The law in this regard is
required to be made so that such disputes are settled within specified time to ensure
that all the persons, where they belong to minority community or of any religion,
caste etc, must have faith that if any wrong is done affecting secularism or affecting

their lives or their properties .it would be set right by the court law.


 Even appellate forum or even at the level of apex court. Special branches should be
constituted to decide such issue within specified time, may be separate law would be
required to deal with such issue.

Commission to secure secularism should be given constitutional mandate and the
constitution may be amended to constitute one commission, equipped with all the
power like Scheduled caste commission, scheduled tribe commission, commission of
women so that not only the dispute are settled in the court of law but by the
intervention of the commission , the dispute could be settled amicably and time to
time ,the commission could suggest the measure to take remedial action to secure
secularism in India. New law even could be passed for giving ample power to such
commission and any law pertaining to security for minority could be made after

consultation with the members of the constitution.

150


 One must understand in all earnestness the psyche of Indian People and their
religious-cultural traditions. It would not suffice merely to eulogies Western
Concept of Secularism. It may be an ideal for some upper class urban elite or for
those who take certain philosophical or atheistic position. But such a position,
however desirable for some. Would alienate us from the masses. The politicians and
the managers of Indian State are cynically exploiting people's religious sentiments
while the Secularist elite find itself completely out of place. It is, therefore,
necessary to depend our understanding of the Indian situation and adopt a position
which would not make us irrelevant to the masses of people. Equal respect for all
religions on the part of the people must be encouraged as a matter of policy.


There is enough theological justification for such a position both in Hinduism as
well as in Islam. Hinduism talks of Sarva-Dharma-Sambhava and Quran, as
interpreted by Maulana Abul Kalam Azad and even Shah Waliullah before him,
stipulates Wahdat-advan (i.e. Unity of all is religions) though shariats may differ.
Sikhism, of course is founded on this principle. Tolerance thought desirable but as
compared to equal respect, is lower down the scale. One tolerance just because
something exists and cannot be helped. But one respects out of positive attitude and
deep reverence. So we must do everything to inculcate equal respect for all religions
among the people. The State, however, must stay neutral towards all religions. The
media should also refrain from projecting one or the other religion. That would be
greatest harm projecting one or the other religion. That would be greatest harm to the
cause of Secularism as other religious groups would also agitate for exposure of their
religious groups would also agitate for exposure of their religious groups would also
agitate for exposure of their religions in the media. And this competitive
“religiosity” in the media would lead to competitive communalism. This is what is

happening today.



We must generate adequate pressure on politicians to give priority to people’s issues
rather than non-issues like Ram janmabhoomi-Babri Masjid, Kashi and Mathura
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 issue. Also we must compel politicians to come out with concrete programmes for
solution of programme to solve people’s issue. Rather than appealing to them on
caste and religious basis. It is not very difficult to generate such pressures. It is the
duty of the Secular intelligentsia to do this. In this approach lies the salvation of the

country.



There must be a ban on the formation of any political party on the basis of caste or
religion. There must be a code of conduct for the Indian political parties. There
should be no reservation on the basis of caste or religion. So that our politicians

cannot exploit the caste/religious sentiments for political ends.



Therefore, in order to realize the proper implementation of religious freedom
without endangering the constitutional principle of secularism, we need a legislative
framework that provides for specific provisions detailing the meaning, content
andscope of the right and the specific limitations that are sought to be imposed. Such
legislative act not only gives the necessary tool and road map for those who assume
the responsibility for the enforcement of those constitutional values, but also informs
and warns citizens, what to do and what not to do in the course of exercising their

rights.


Based on this legislation, a specific guideline that regulates the issues of religious
accommodation in schools and universities is also become necessary. Although the
Ministry of Education may be in charge of this task. The formulation process should
be participatory to canvass support from all stakeholders. This is crucial, because if
the enforcement and interpretation of religious freedom and secularism is simply left
to the decency and wisdom of those who assume that responsibility without offering
a clear guidance and the proper device for effective implementation, inevitably
matters will fall out differently. As we understand it, the absence of a legislative
frame work and a clear consensus guideline left opened the possibility for every
individual to take matters into his own hands. Though, our premise is not that

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 constitutional provisions may, in no way be directly implemented, the legislature is
better equipped and placed to define the substantive meaning and its scope of
application to respond to the religious needs and dynamics of the society through
specific legislation. Moreover, in the broader sense, interpretation is a collective
enterprise that ranges from a simple executive clerk to the HoF. Thus, by filling the
gaps and clarifying ambiguities, the legislature should discharge its responsibility to

bring the great constitutional provisions and principles into reality.



Furthermore, it has to be noted that freedom of religion is not only merely exercised
individually; but it is a community’s right also, meaning, it has collective dimension.
In addition, it has also vertical and horizontal dimensions, in the sense that it
operates in respect of the relation between private citizens and/or groups and the
State, as well as between private individuals. At times, those relationships may give
rise to some procedural issues like standing, thus, the development of legislation that

handles issues of such nature is important.



Researcher observed that the current system is the outcome of an intense and lengthy
struggle to bring socio-political justice. As a part of this, secularism is introduced
essentially as a political response to India as diversified religious state of affairs.
India is not only characterized by ethno-cultural diversity but also by denominational
plurality. The best means we had to manage this diversity in a fair and
impartialmanner is, if we have a political realm that is free from any religious
influence. This is because, if too many of these religious communities exist, and
touch upon too many areas of life including politics, the common ground essential to
a well being of our democracy will cease to exist. Thus, to prevent this; the strict
conception of Ethiopia’s secularism should be kept intact in its full vigor, keeping

the distinction between religious society and secular State.


However, in order to respond to the constitutionally guaranteed freedom of religious
expression and the normative value of pluralism, a legally regulated, predictable and

153
 reasonable accommodation of religious claims in the public sphere is commendable.
If this is supported by carefully developed guideline, it would at least substantially
minimize the considerable wrangling or confusion that we are witnessing over the
shape and authenticity of the current religious accommodations in public

universities.



The legislation we envisage here, however, must never allow the government to
indulge itself in interpreting ecclesiastical doctrine of any religion or to interfere or
oversee their internal governance, but the government is under a duty to enforce rule
of law and to safeguard the constitutional order. Nonetheless, the government cannot
discharge those responsibilities single-handedly, and it needs the cooperation of

religious communities and their institutions.



Thus, here comes the need for an establishment of a strong institution that makes
assessment, coordinate efforts, facilitate interfaith dialogue and serve as a bridge
between the State and religious institutions. In a religiously diverse society, religion
single handedly cannot resolve conflict; at least between parties from different faiths.

But, impartial institutions may be called upon to do so



The government, especially municipal authorities should enforce town planning and
zoning rules to tackle illegal constructions and land squatting practices for religious
purposes. Leniency towards the powerful religious communities with respect to land
holding practices can generate resentment among other, less privileged, minority

religious communities whom they feel they are losing out.


 The abuse of power committed by local authorities should be taken seriously, and
the government needs to have the determination and necessary courage in bringing
154
 culprit officials before justice. Many of our respondents describe their dissatisfaction
over the lack of transparency and audacity on the dispensation of justice. It is an
irony and a twisted logic to understand, if not to believe, in the era of
democratization, to hear people being forced to recant their religion at gun point in
broad day light.



Religious stickers, crucifix, verses, portraits and the like should be removed from

government offices, and relevant authorities should inspect to that effect.



The government should make strict regulation on guest religious missionaries, who
temporarily enter into the country, and it has to be in full consent and authentication
of the relevant mainstream religious authorities that represent the particular religious

community concerned.



Researcher be considered flippant, Researcher assume that legal mechanism alone
solve the problems and engender the commitment and mutual understanding
required to sustain a culture of tolerance and peaceful coexistence. Thus, it is
necessary to look beyond legal frame work. Researcher believes that the
responsibility to uphold the freedom of religion or belief, and the constitutional
principle of secularism rests not only with the government but also with religious
leaders as well. Therefore, leaders of religious communities bear tremendous
responsibility for guiding their followers towards a peaceful coexistence, using their
power and influence to inculcate the value of tolerance in the hearts and minds of
their members; which is a necessary condition to live harmoniously with those who

think and believe differently.



Moreover, religious leaders must look beyond stereotypes and wholeheartedly
approach fellow leaders of other denominations to make genuine dialogue and
155
 consensus. In a World, harassed by the scourge of violence and conflict in the name
of religion, it will be naive to shy away from genuine interfaith dialogue, and
retreating into religious ghetto mentality will only create the openings for extremist

infiltration, thus, working together on common interest should not be over looked.


 Lastly, if is emphasized that there is no need to despair. Secularism may have been
weakened to some extent but it is certainly not drawn and out, The problems of
developing societies are always enormous. No society can develop without conflict
and violence. The violence may erupt either along class or communal or ethnic lines.
One can only try to minimize it. The violence can be minimized only by making the
development justice oriented. It should not be profit and growth oriented only.

Still there is lot of vitality and life in our democracy and Secularism. Only thing is that
we must act and act vigorously to further strengthen Secularism and inject blood into our
Secular polity. These are no mere high sounding words. These words can. Given strong will
be transformed into deeds.

Sweeping statements are often made about freedom of religion and secularism, but
there is a virtual absence of definition with respect to their content, scope and their
necessary implications. The constitutional provisions such as freedom of thought,
conscience, and religion, as well as the separation of State and religion are too broad and
generally phrased not readily fit into specific cases. For example, what amounts to violation
in terms of wearing religious symbols in educational setting, or ensuring the independence
of the State from religion? Terms of such nature may be interpreted to embrace a wide
variety of acts that are prone to uncertainty, making the need for elaboration very essential.

 Meaning of the terms “Secularism”, “matters of religion” and “minority” to be

clearly defined in Constitution.

156
  Negative clause under Article 25 to be introduced to prevent an organization which
admits to or excludes from its membership persons on grounds of religion, race or
caste or any of them to engage in any political/public activity.

 Clear criterion should be provided pertaining to minority institutions, preventing

misuse of protection of Article 30(1) for monetary benefits with regard to
professional education.

 Clear-cut guidelines should be provided for good management of religious

institutions/monuments and systems of audit.

 Promulgation of a uniform civil code, is to be provided

 A strong act be enacted regarding speedy trial and fair process with respect to
communal and hate crimes as well as rioting

The recent move taken by the government to create awareness and to

revitalize the vigilance of the larger public is constructive. This sort of discussion at
community level will enhance every citizen’s responsibility in spotting those who
call their personal insanity a ‘religion’ in order to garner support and sympathy. But,
such community awareness initiative should not be done after a lengthy denial and
reluctance, awaiting until the grim reality projects itself. Sometimes, we observe a
tendency that ‘religious extremism’ is not named for fear that its mere mention
conjures its existence. Researcher know even some people get nervous when such
and similar terms are mentioned, but the point should no longer be about labels and

packaging, but about content and substance.


The government actions must go beyond being reactive and be proactive

guided by the legal principles and rule of law. During incidents of religion-related
tensions and violence, a highly cautious approach is necessary in identifying the real
culprits, otherwise, lumping all individuals or groups who raise religious issues
under one frightening label will only breed dangerous pattern and itself gives a

preference to violence to the advantage of a few evil master minds.

157
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