IDEA OF SECULARISM IN INDIAN CONSTITUTION BY - SUKRITI SAH

IDEA OF SECULARISM IN INDIAN CONSTITUTION

AUTHORED BY - SUKRITI SAH

ABSTRACT

Secularism and Uniform Civil Code are the most debated topics in contemporary India. The term Secularism means where State chose not to interfere with the religious matters. The freedom to religion already existed in our constitution in Part III before the inclusion of the word ‘Secularism’. By including this concept in the Constitution the State has upheld the beliefs of Indian gentry, whose foundation is found in the religion. Nevertheless, this has led to continuance of some practices in the name of religion which are discriminatory and is often a step back from the progressive country that India aspires to be. Apart from this, the presence of different religions and their respective customs and laws which are usually contrary to the common law of the country creates ambiguities.  One solution to this is mentioned in the Part IV of the Constitution itself. As per Article 44, which is a part of Directive Principle of State Policy, it is mentioned that there must be a Uniform Civil Code, through which the purpose of uniform law related to marriage, divorce, inheritance, maintenance etc. can be achieved. However if we analyze it, it is also debated that by implementation of Uniform Civil Code, the religious freedom granted by the Constitution as a fundamental right will be violated. The other point of argument is the Directive Principle of State cannot override a Fundamental Right. Over the few years, the judiciary has faced number of cases involving religion some of them being Ramjanmabhoomi Case, Sabrimala Case, Shani Signapur Case, Hijab case etc. The Judiciary has been playing an active role in demarcating what needs to be protected as a part of religion and what practices should be stopped .The paper thus brings about a research into concept of secularism, its meaning, the threats to secularism and whether a Uniform Civil Code is a  way to make India  a truly secular country.

Keywords: Secularism, Uniform Civil Code, Fundamental Rights, Religion, Constitution

INTRODUCTION

India is a country which is described as having a rich culture, plenty of religions and languages yet still unified.  The country presents a glaring example of ‘Unity in Diversity’, unique in itself. Religion is the most important part of identity of Indian mass. It is the land of famous sages, epics and mythologies. We have all grown up listening to the stories of different gods and their triumph over evil hence the concept of religion has deep roots in our lives.  At the contemporary time, presence of concept of ‘Secularism’ in the lives of Indian people who are deeply religious lead to a never ending debate on whether the decision of imposing such concept which is often termed as a ‘foreign concept’ was a correct decision or not? Similarly, the Uniform Civil Code (UCC) has always been a hot topic associated with the debates surrounding secularism. In order to assess the viability of UCC, the first thing one need to do is to understand the concept of Secularism then only one can arrive at any conclusion.

 The word Secularism does not have a single precise definition and is derived from a Latin term ‘Sacularis’ which means ‘that which belongs to this world, non-spiritual an opposed to spiritual thing’.[1] ‘Secular’ is used generically to describe of a thing that is separate from religion. Jean Baubérot sees secularism as made up of three parts:f

 ● Separation of religious organizations from the foundations of the state and no mastery of the political circle by religious establishments;

● Opportunity of idea, conscience and religion for all, with everybody allowed changing their convictions and showing their convictions inside the breaking points of open request and the privileges of others;

● No state shall victimize anybody on grounds of their religion or non-religious perspective and where everyone accepts an equivalent treatment on these grounds.[2]

Secular State is defined by Donald Eugene Smith as – ‘The Secular state is a state which ensures individual and corporate of religion, manages individual as a religion independent of his religion, isn't unavoidably associated with specific religion nor does it tries to advance or meddle with specific religion’.[3] ‘

The U.S concept of Secularism is that States and church co-exist but does not interfere in the regimes of one-another. Whereas, in Europe Secularism is considered as denial of religious things especially in the political arena. In these States, the religion      is kept entirely separated from the State. The two does not interfere in each other’s practices.’ Indian Constitution follows the concept of positive secularism as differentiated from USA and Europe. However, in India State can interfere in religious affair which poses an obstruction to governance of the country.

In India, the concept of secularism did not exist previously until Pt. Nehru sourced the concept from Europe. The word did not initially find place in the Constitution in 1949, but the concept was discussed at length during the constituent assembly debates that took place during the formation of Constitution[4]. The concept of secularism is different from that of west and is based on concept of ‘Sarv Dharma Sama Bhava’. Swami Vivekananda was a defender of a multicultural country established in religious resistance and advancement. He lectured the possibility of Sarv Dharma Sama bhava (all religion lead to same goal), which translates equality of all religion, while talking at Parliament of World Religions in Chicago. Ramakrishna and Mahatma Gandhi also embraced this concept of pluralism of religion and Positive Secularism. Mahatma Gandhi was a staunch supporter of Secularism and the term secularism is also akin to Vedic concept of ‘Dharma nirpekshta’ which means the doctrine of state being indifferent to religion. There will be no discrimination by State on the basis of religion. Indian secularism treats every religion equally without maintaining hegemony of any particular religion. It includes not only tolerance but also encouragement towards plurality of religions.[5] Secularism was added to the Preamble of Constitution and has become a part of basic structure.

‘Secularism’ in the Indian Constitution

The Constitution of India is organic in nature and a living document hence the concept of amendment has been included by the makers of the Constitution. The reason behind it is that society, for which the laws are made, is dynamic and developing in nature and it becomes necessary that the laws regulating the society must also develop with it. Since, the laws derive their validity from Constitution, it becomes equally important for Constitution to keep in pace with the changing society in order to achieve socio-economic objectives. The same need for change was felt years ago and it was proposed that Constitution should spell out clearly the ideals of secularism, socialism and integrity.

On such a backdrop, the term ‘secularism’ was inserted through the Constitution (42nd Amendment) Act, 1976, which came into force on 3rd January 1977. Late Prime Minister Indira Gandhi has had the credit of inserting the word ‘secular’ in the constitution during the time of emergency. Although the inclusion of this word was debated thoroughly during the constituent assembly debates but even in the absence of the expression mention of the word ‘secularism’, Constitution included the provisions of Right to equality (Art. 14-16) Right to freedom of religion (Art. 25-28), Directive Principle of State Policy, Fundamental duties etc. These provisions prevented establishment theocratic state.[6]

During the discussion of Preamble in the constituent assembly debates there were disagreements and agreements regarding incorporation of principle of secularism in Preamble. On 17 October 1949, H V Kamath moved an amendment discussing the preamble and started it with the phrase ‘In the name of God’, on which there were, divided opinions. The people opposing this act called it ‘narrow and sectarian approach’, whereas people in favour said that it was not anti-secular to start preamble by remembering the Supreme Being, including within itself the different names by which it is called. It was also contended that Religion has been part of the Indian civilization since ancient times and by adding the phrase in the preamble, the spirit of people of India is being recognized.[7] Neither amendment proposed by Kamath nor the word ‘secular’ found place in the Constitution of India. Most of the members of Constituent Assembly agreed on the establishment of secular state which as per them was important for democratization.

Next point of discussion in the debate was the type of secularism to be adopted and also how to include such concept in deeply religious Indians. Also, what should be the ‘Indian secularism’- does it imply that state should strictly stay away from religion or whether it should be based on the concept that all religions are respected equally? Three alternative positions were laid down around this controversy, first was referred to as ‘no-concern theory’ of Secularism drawing a line of separation between State and Religion, it favours religion as a matter of individual private affair. It was argued that since freedom of expression and religion conscience has been provided under Constitution, it is the liberty of individual whether he wants to believe in the religion or not and hence preamble or for that matter constitution should not contain links between State and Religion. The members went a step ahead and suggested that to instill the feeling of nationalism among the Indian mass it is important to place State above God.  They also suggested that in order to make religious a private individual affair, right to religion must be defined as right to practice religion privately and that no individual should wear any visible sins, marks or dress that indicates to their religion. This position was obviously disagreed by many.[8]

Second position was that no link should be made between State and Religion because it will inflict disrespect towards religion. The third position was called equal-respect theory of secularism and it states that in India where there are multiple religion, secularism does not mean that it distances itself from all religion but that it respects/treats all religion alike. Right to religion, under this concept was defined as right to practice religion as opposed to the first proposition which narrowly defined right to religion. The debate regarding secularism was then summed around three points- 1) religious liberty-whether to construct right of religion narrowly or widely and whether state should recognize only linguistic minorities or religious minorities , 2) citizenship- includes Uniform Civil Code and reservations in political arena for religious minorities, and 3) state neutrality- regarding religious instruction in state aided institution. Being a Secular State does not mean that India is an irreligious or atheist state, but it simply means that, it is neutral or unbiased in matters related to religion.

Before specific inclusion of the word ‘Secularism’ in the preamble, Art 25-30 which contains rights for freedom of religion held the idea of secularism. In S.R. Bommai v. Union Of India,[9] Supreme court held that “secularism is a basic component of constitution." Also, Justice Reddy stated that religion is matter of individual faith and it cannot be mixed with secular activities which can be regulated by State by making laws. While Article 14 awards equality before law and equal opportunity of laws to all, Article 15 develops the idea of secularism to the amplest conceivable degree by disallowing discrimination on grounds of religion, race, caste, sex or place of birth. Article 16 (1) ensures equal opportunity of public employment to all citizens and  reassures that there would be no discrimination  based on religion, race, caste, sex, residence, place of birth etc. In St. Xavier’s College v. the State of Gujarat[10], the Supreme Court held that “India is neither a supporter nor an enemy of Religion”. It separates God from the question of state and assures that nobody will be victimized in the name of religion.[11] In Indira v. Rajnarain[12],essential component of secularism was clarified by Hon'ble Supreme Court which held that, secularism means state will have no religion of its own and all individual of the nation ought to be similarly qualified for freedom of religion and will have all the privilege uninhibitedly to practice, profess and propagate their religion.

• Article 25 gives freedom of conscience and right to practice, profess and propagate their religion. In Bijoe Emmanuel vs State of Kerala[13], the Supreme Court upheld the religious views of Jehovah’s witnesses to not sing National Anthem as the belief was held part of profession and practice of religion. The right to freedom is not absolute and is limited by public order, morality, health and other fundamental rights mentioned in the Constitution. In addition to that there are certain exceptions to this right which are contained in Art. 25 (2)(a) and (b), which states that the article will not affect any existing law or prevent the State from making any law (i) to regulate/ restrict any economic, financial, political or other secular activity associated with religious practice; (ii) providing for social welfare and opening up of Hindu religious institution of public character.
• According to Article 26, each religious denomination has right to establish institution for religious and charitable purpose and maintain them; to own or acquire property both movable and immovable. This right is subject to public order, morality and health.
• Article 27 deals with freedom from payment of taxes for promotion of religion. It states that the state will not force any citizen to pay taxes proceeds of which are appropriated in payment of expenses for promotion or maintenance of any religion and its denominations.
• Article 28 of the Constitution provides the opportunity for attendance of religious instruction or worship in certain educational opportunity in certain educational institutions. As per this article educational institutions are classified into: 1) institutes maintained wholly out of state funds, no religious instructions are allowed here; 2) Institutes administered by state funds but established under any endowments or trusts which requires religious instructions to be imparted ; and 3) Institutions recognized by states and receiving aid out of state fund and no religious instructions are allowed in such institutes as well.
• Having discussed the backdrop, concepts and provisions related to Secularism, now we should know whether the concept is actually applied on the practical field. Is religion actually separate from the state or the functionaries of State? Whether People of India has accepted this concept, wholly? What are the threats to secularism in India?

THREATS TO SECULARISM

For the last few years concept of Secularism is discussed and debated extensively. Critiques of Secularism have admitted that challenges to secularism may arise from the way it is being practiced.  Secularism of the state and of the general public is recognized by many. The State, in following the concept is bound by the Constitution; however the secularism of society is an alternate issue.  Discrimination and Differentiation based on religion are profoundly implanted in our general public that they can't be ousted by just imprinting in the constitution.

Secularism, the concept how ideal it may sound in theory, suffers many vices in its application. There are many obstacles that are faced including the vote bank politics based on religions, there is presence of extremist religious organizations who performs the function of brainwashing the mass etc.

Secularism, State and Political parties

The sacred thought of secularism can be realized only if State arrangements are in consonance with it. In reality, however, there is great line of difference between what Secularism ought to be and what it is. Unlike USA and Europe, Indian State has reserved some power to meddle in the issue related to religion. The arrangement has been used by the political parties for their own benefit and is a vote bank strategy by creating a rift between communities following different religions. The elections nowadays are contested in the name of religion. The strategy of political parties regarding religion changes as per the political circumstances of the country.  Recently, Chief Information Commissioner has filed an appeal in Supreme Court regarding practice of Delhi Government, wherein the govt. was found biased towards a specific religion, making huge donations to that religious community and discriminating the other. Few years back, in one of the political rallies held in Hyderabad, the politician of a particular community used foul language against the Hindus of the country and even urged the community to come together for mass killing. Making sensitive religious comments has become new normal for the political parties of the country.  This blending of religion and politics have come at a cost of rights of marginalized sections, for example when Congress party in order to gain the votes of Muslim community enacted Muslim Women (Protection of Rights on Divorce) Act, 1986, overruled the judgement of Shah Bano Begum case wherein Supreme Court granted the right to maintenance under Sec 125 CrPC to muslim women and as result it led to further oppression of muslim women.[14] In the case of Abhiram Singh v. C.D. Commachen By Lrs. & Ors.[15], it was held that the election to state legislature, parliament or a body of State is a secular exercise and the functions of elected representatives must be secular in outlook as well as practice. Supreme Court further directed that candidate will be declared disqualified if he/she seeks votes in name of religion or caste. Although, we all are witnesses to how this directions are ignored by the political parties and its candidates,  presence of  political parties like Bahujan Samajwadi Party, Samajwadi Party, All India Majlis-e- Ittehadul Muslimeen  are direct examples of parties the very foundation of which is based on caste and religion, thereby violating the direction and guidelines of Supreme Court.

Secularism and Communalism

In India people from different religion, cultures and co-exist with respect and dignity. India has always been in the fair of unity of people. Communalism, on the contrary has demonstrated to be an extraordinary danger to this unity of people time and again, our history is full of such examples. No nation can be a modern state or healthy state if there are communal roots. As per Donald Eugene Smith, “communalism is an industrious faithfulness to particular religion which will in general undermine a secular state in every step. Communal violence is endemic in India and can without much of a stretch eject it into brutal clash. [16]

It is broadly understood that communalism in India was conceived, supported and advanced by the British colonialism as a deliberative plan to plant disagreements. It served the provincial organization to 'divide and rule' and along these lines the common religions contrasts were first used to extend the social and social varieties and after that to advance political divisions by treating Indian however as individuals from different religious networks. The British India was separated into the medieval realms and religious networks. The British overseers made division and strains between these networks. The mutual governmental issues were supported by them. A voter was named a Hindu or a Muslim and so on as was an applicant and agent. It is in this chronicled setting that communalism came to get the importance of being paired to national character, of being against the secularization procedure, of being too barely and adversely joined to one's very own religious group. Even after India's freedom, no solid measures were taken to contain communalism. In this manner, 'communal politics' was started into the Indian body politic. It is anti to the concept of nationalism as it places the religion or religious identity at a higher pedestal. Communalism is a social construct which should be countered with solidarity, trustworthiness, secularism, equivalent rights so that an equitable culture can be re-established.

Secularism and Personal laws

Another issue pertaining to Secularism is position of religious personal laws in lawful structure of our nation. This presence of personal laws is an error without a doubt in present day India and is against the concept of Secular nation. The mandate rule that State will attempt to verify uniform civil code for every one of its citizen is far reaching in its suggestion.[17] It is true that as per Secularism, state should not interfere with religion, but the state can correct the wrong, inequalities and oppressions rendered by the religion. For example the practices like Sati prevalent under Hindu religion were abolished and practice of triple talaq was declared unconstitutional that placed a Muslim man in the dominant position to divorce his wife. Moreover, Bigamy is a crime in India but Muslim personal laws allow polygamy. Is it not an example of cruelty towards women? The age of marriage for both girls and boys have now  become   21 years, but as  per Muslim laws  the girls and boys can marry after attaining the age of puberty, at the age where they are not physically and mentally capable of fulfilling marital obligations. Majority of the Personal laws target the rights and liberty of women and lower caste. Personal laws are tools for internal governance of religion and male domination which places women belonging to that religion at a disadvantageous position and makes rights granted by constitution a distant dream for the women. It is noteworthy that certain religious communities oppose UCC in the name of equality and at the same time denying equal status to women. To overcome this evil, there is need for codification of uniform law for all.[18]

Uniform Civil Code: A way foreword?

The prevalent conditions of communalism, religion based politics and rising intolerance among religious groups indicates that Secularism in India is not stable. It is fragile and it is the need of the hour to strengthen it. The country whose constitution includes the principle of secularism, equality for all and equal opportunities for all irrespective of their religion, presence of oppressive personal laws is quite contrary. The religious communities of India have personal laws governing and regulating the family matters like marriages, divorces, adoption, succession etc. Uniform Civil Code seeks to curb the disparities.

Uniform Civil Code, Article 44, is a part of Directive Principles of State Policy, puts an obligation on the State to ensure for its citizen a uniform civil code. At the initial stages the framers of Constitution felt that the citizens of India are not ready for a uniform code and hence they bestowed the responsibility of implementing the obligation on the future generation. In the meantime, Supreme Court in his wide range of judgements argued on the need of a uniform code for India.  However, the judiciary has left the job on legislature. The article sits like a dead letter and no endeavor has been made at a national level. Goa is the only state which has a uniform civil code, by far and had not witnessed any communal tension which is the biggest excuse to not implement UCC. Following the footsteps of Goa some states like Uttarakhand, Himanchal Pradesh etc. have proposed to formulate a UCC as well.

UCC is widely protested by the Muslim Community and their main argument is that it interferes with rights and freedom granted by their personal laws and by such interference their fundamental right to practice their religion is being violated. It is also argued that India is a country with diverse population and it is difficult to unify it with one kind of anything, let alone one civil code.[19] Not just the religious communities, but there are tribal communities which are governed by their community/personal laws and they see UCC as threat to their traditions. Enacting a code which does not possess a threat to the foundation of the religions and tradition is a difficult task in itself and it will have its repercussions as well. Although as far as gender justice is concerned there must be uniformity in the law otherwise it’s the violation of Right to equality granted by the Constitution of India.

Conclusion

There is no doubt that Secularism is the main method for advancement in plural society like our own. Secularism starts in the core of each person. India being a conventional society that contains not one, however numerous customs owing their birthplace to some degree to the various religions that exist here, has not completely adopted the idea of Secularism. One cannot deny the fact that religion is a political, social and moral reality of India.  The author believes that instead of separating religion, we should have adopted and promoted the concept of Tolerance. All the religion and cultures of India have the principles of tolerance imbibed in them. Even if India wants to continue with the principles of Secularism, it cannot and it should not take a middle stake. Either it should entirely separate the religion from state and public affairs which would also mean that there must be uniformity in dealing with things pertaining to religion and thus the need for Uniform Civil Code is felt or it should accept the religious parameters of India and promote tolerance.

[1] N. P. Verma; Secularism in Indian Constitution and the Experience, 4 INDIAN J.L. & Just. 1 (2013).

[2] Jean Baubérot, The Secular Principle, https://franceintheus.org/IMG/html/secularism.html.

[3] DONALD EUGENE SMITH, INDIA AS A SECULAR STATE 05-06 (PRINCETON UNIVERSITY PRESS 1963).

[4] Eknoordeep, Indian Constitution and the Anecdote of Secularism in India, 28 Supremo Amicus [256] [2022].

[5] Supra note 1.

[6] Ibid pt. 5

[7] Constituent Assembly debates- part X, pg. 439-446.

[8] Shefali Jha, Secularism in Constituent Assembly Debates, 37 Economic and Political Weekly (3176-3179).

[9] AIR 1994 SC 1918. 

[10] 1974 AIR 1389, 1975 SCR(1) 173.

[11]  Id.

[12] 1975 AIR S.C 2299

[13] 1986 3 SCC 615; AIR 1987 SC 748.

[14] Supra note 4

[15] AIR 1996 SCC (3) 665

[16] Supra note 3

[17] Supra note  3.

[18] Akhilendra Pratap Singh, Utility of Uniform Civil Code, Journal of Indian Law Institute, Vol. 59 No. 2, pg. 182-185.

[19] Shrusti Mulgund, Indian Secularism and Feasibility of Uniform Civil Code, 23 Supremo Amicus [148] (2021