Secularism in India

The Preamble to the Constitution of India signifies that India is a secular state. The Preamble reflects the way of life adopted by Indian citizens for themselves after independence. In fact every civilization has also been a mirror of way of life as well as reflecting movement of human spirit. Religion in each civilizastion has indicated about the faith of human beings in absolute values and a way of life to realize them.

Religious faith is continuously providing the passion to preserve in the way of life and if it declines, obedience degenerates into habit and habit slowly withers way. Therefore laws, customs, conventions and fashions etc. are not the only means of social control but the religion and morality also formulate and shape the human behavior.

Individual Freedom of Religion- The Constitution of India recognizes the freedom to profess, practice and propagate the religion under Article 25. Part (1) of Article 25 secures to every freedom of conscience: and the right to (i) profess religion; (ii) practice religion; and (iii) propagate religion. The term ‘religion’ has not defined in the constitution but the meaning given by the Supreme Court of India to the religion can be referred here, the Supreme Court in Commissioner, H.R.E. Vs. L.T. Swammiar held: Religion is a matter of faith with individuals or communities and it is not necessarily theistic. A 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. A religion may not only lay down a code of ethnical 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 and observance might extend even to matters of food and dress.

The freedom of religion guarranted under Indian constitution is not confined to its citizens but extends to ‘all persons including aliens.’ This point, was underlined by the Supreme Court in RatiLal Panchand Vs. State of Bombay as it is very important because substantial number of foreign Christian missionaries in India were engaged at that time in propagating their faith among the adherents of other religions.

The Constitution thus declares that every person has a fundamental right not only to hold whatever religious belief commend themselves to his judgement, but also to express his beliefs in such overt acts, as are prescribed by his religion and propagate its tenets among others. The exercise of this right is, however subject to ‘public order, morality and public health.’ Here the constitution succinctly expresses the limitations on religious liberty that has been evolved by judicial pronouncements in the United States and Australia. In fact, the framers of the Indian constitution attempted to establish a delicate balance between ‘essential interference and impartial interference’ on the part of the state. They kept in consideration the possibilities of arising out of circumstances in which the government may have to impose restraints on the freedoms of individuals in collective interests.

Accordingly Article 25 (2) provides broad sweeping power of interference to the state in religious matters. This Article imposes drastic limitations on the rights guaranteed under Article 25(1) and reflects the peculiar needs of Indian society. It is important to mention here that law providing for the very extensive supervision by the state about temple administration has been enacted by virtue of this provision. Here it would not be out place to state that the extensive modification Hindu personal law (marriage, divorce, adoption, succession etc.) has been effected by legislation based on the provision permitting measures of social welfare and social reform.

 There is an interesting case on the validity of the Bombay Prevention of Hindu Bigamous Marriages Act of 1946, where the validity was upheld by the Bombay High Court. Chief Justice Chagla (Muslim, later appointed as Indian Ambassador to US) delivered his judgement as follows: it is only with very considerable hesitation that I would like to speak bout Hindu religion, but it is rather difficult to accept the proposition that polygamy is an integral part of Hindu religion. It is perfectly true that Hindu religion recognizes the necessity of a son for religious efficacy and spiritual salvation. That same religion also recognizes the institution of adoption. Therefore the Hindu religion provides for the continuation of the line of a Hindu male within the framework of monogamy. The learned judge went on to argue, that even assuming that polygamy is a recognized institution according to Hindu religious practice, the right of the state to enact this legislation could not be disputed. The enforcement of monogamy among Hindu is a measure of social reform which the state is empowered to legislate by Article 25 (2) (b) ‘notwithstanding the fact that it may interfere with the right of a citizen freely to profess, practice and propagate religion.

The same constitutional provision permits legislation opening Hindu religious institutions of a public character to all classes and sections of India. Harijan temple entry laws have been enacted by many of the state legislatures. The Central Untouchability (Offences) Act of 1955 provides that any attempt to prevent Harijans from exercising their right to enter the temple is punishable with imprisonment or fine or with both. Therefore it must be clear that a secular civil law is equally applicable to all Indian citizens.

Collective Freedom of Religion- Religious denominations as well as individuals have certain important rights spelt out under Article 26. The term ‘religious denomination’ has not been defined under the Constitution. The Hon’ble Supreme Court has accepted the definition given in Oxford Dictionary, that defines as ‘a collection of individuals classed together under the same name a religious sect of body having a common faith and organization and designated by a distinctive name.’ The Supreme Court in number of cases held that Arya Smaj, Anandmarga, Vaishanave, The followers of Madhawacharya and other religious teachers, though not separate religions, yet these are separate religious denomination and enjoys the protection under Article 26 of the Constitution.

The right under Article 26(a) is a group right and is available to everhy religious denomination. Clause (b) of Article 26 guarantees to every religious denomination the right to manage its own affairs in matters of religion. The expression ‘matters of religion’ includes ‘religious practices, rites and ceremonies essential for the practicing of religion.’ An important case that involved the right of a religious denomination to manage its own affairs in matters of religion was Venkataramana Devaru Vs. Stae of Mysore . In this matter, Venkatramana temple was belonging to the Gowda Saraswath Brahman Community. The Madras Temple Entry Authorization Act, supported by Article 25(2)(b) of the Constitution, threw open all Hindu public temples in the state to Harijans. The trustees of this denominational temple refused admission to Harijans on the ground that the caste of the prospective worshipper was a relevant matter of religion according to scriptural authority, and that under Article 26(b) of the Constitution they had the right to manage their own affairs in matters of religion. The Supreme Court admitted that this was a matter of religion, but when it faces conflict with Article 25(2) (b), it approved a compromise arrangement heavily weighted in favour of rights of Harijans and a token concession to the right of a religious denomination to exercise internal autonomy

Further Article 26© and (d) recognize the right of a religious denomination to own, acquire and administer movable and immovable property in accordance with law. However it was held in Surya Pal Singh Vs. State of U.P. that this guarantee did not imply that such property was not liable to compulsory acquisition under the U.P. Abolition of Zamindari Act. Similarly in Orissa, land reforms resulted in the expropriation of a village and surrounding agricultural land dedicated to the maintenance of a Hindu deity. Since compensation was paid, the High Court held that there was only a change in the form of the property.

Article 30 deals with another aspect of collective freedom of religion:

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

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

The object behind Article 29 & 30 is the recognition and preservation of the different types of people, with diverse languages and different beliefs, which constitute the essence of secularism in India.

 The ideals of secular state have clearly been embodied under the Indian Constitution and the provisions are being implemented in substantial measure. But the circumstances after independence have posed a challenge before secularism of India for a number of times. Sometimes it is also alleged that by Uniform Civil Code, the existence of minorities in India is in danger or it is an assault on the identity of minorities. India being still a traditional society that contains not 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; nonetheless we must attempt to raise issues and questions for continuing study of the problem.

Clearly the judiciary in India is a significant site where contests under the banner of secularism have been taking place over the last fifty and odd year. Though the judiciary is trying to strike the balance in a harmonious way but the people of India should not forget the dream of framers of the constitution and the ancient philosophy of ‘Sarva Dharma Sambhavah’.