Govind Kumar, a 2nd year law student of Banaras Hindu University discusses the concept of Secularism as the Basic Structure of Indian Constitution.
THE CONCEPT OF SECULARISM
Eastern concept of secularism emphasizes equal respect and equal treatment of every religion; whereas, western concept of secularism iterates law and religion as independent of each other. They talk about the separation of law and religion in toto. It is said that the western concept of secularism evolved due to conflict between church and state. Because of the intervention of the state in the matters of the church, there rose a battle. However, ultimately the state won the conflict. Thus, at this juncture, we can conclude by saying that secularism is the ultimate victory of state over the church.
Industrialisation changed the role of the state. Notwithstanding, development in science and technology empowered state to assert itself. This was followed by rationality in the minds of the people, ultimately raising questions. In the USA, there is the presence of a functional state.
HISTORICAL ANALYSIS OF RIGHT TO RELIGION
In India, religion is not denoted by mode of worship, but Dharma indicates it, ‘Dharma’ means duty. From ancient times kings used to patronage religion. Religion and state were never separate, so, the western concept of secularism is not applicable in India.
In India, religion was used as a tool to convey the message to the masses by sufi poets, Kabir, Nanak etc.
In the political sphere, Gandhi used religion to propagate freedom movement. He used to say Ram Rajya instead of ‘rule of law’. One should not be confused that Gandhi was using the religion of the majority. He also used the Khilafat movement in freedom struggle, although there was no connection between the two. Gandhi used religious symbol to spread the reach and scope of the freedom movement.
In 1857, the state attempted to make the people secular by introducing a new type of arms and ammunition. The people revolted, and in 1858, transfer of power took place after this incident and the British government made a policy not to intervene in the religious matter.
In 1918, a special session of Congress held in Delhi. Pandit Madan Mohan Malviya presided it. He raised the issue of basic rights. Fundamental right to religious freedom is one of the main components of those basic rights.
The commonwealth of India bill 1925 was introduced in house of commons. Through this bill, they promised to provide religious freedom to the native population. But this Bill was not passed.
PARAMETERS OR FACETS OF FUNCTIONAL SECULARISM
Following are generally regarded as the facets of functional secularism-
- Right to religious freedom
- The state shall not discriminate based on religion.
- No religious qualification is prescribed for holding any public office.
In 1947, Dr.Radhakrishnan viewed that secularism means equal respect and equal treatment to all religion. The word ‘secularism’ was added in Preamble by 42nd constitutional amendment in 1976. Supreme court in the case of S.R Bommai v. Union of India declared secularism is the basic structure of the Indian constitution. Justice Sawant talked about religious tolerance and equal treatment. He spoke about protection of life, liberty and also security of places of worship. These elements are an essential part of secularism. Justice B.P Jeevan Reddy said that state is neutral. The state will treat every section of society equally. The state will not discriminate based on religion; the State should not give preferential treatment to any religion.
Justice J.S.Verma in the case of Dr M.Ismail faruqui vs Union of India linked Preamble with Article 25 to 28 also with rights of minority, DPSP and fundamental duties. According to him, right to religious freedom and right to equality are closely related. It is the responsibility of the state to treat every religion equally. If state is discriminating among different faith, then it will be violating the right to equality guaranteed by Constitution. Our preamble enshrines the word ‘SECULAR’ and right to equality is one of the facets of secularism. According to him, one can explain the concept of secularism by linking right to equality with right to religious freedom, right of minority, obligation of state and obligation of citizens.
Apex court in the case of Santosh Kumar vs Secretary, ministry of HRD held that inculcating the Sanskrit language in the academic curriculum is not against the concept of secularism.
Supreme court in the case of Ms Aruna Roy vs Union of India ruled that concept of secularism is not endangered if the basic tenets of all religion all over the world are studied and learnt. Value-based education will help the nation to fight against fanaticism, ill-will, violence, dishonesty and corruption. These values can be imbibed if the basic tenets of all religion are studied from.
Supreme court in the case of State of Karnataka vs Praveen Bhai Thogadia upheld an order of Additional District Magistrate restraining Dr Thogadia from entering Karnataka for 15 days. The court said that whenever the authorities concerned in charge of law and order observe that person speech or action are likely to trigger communal hatred, undermining and affecting communal harmony, prohibitory orders need necessarily to be passed, to avert such untoward happening effectively.
Apex court in the case of Abhiram Singh vs C.D. Commachen declared seeking a vote in the name of religion is corrupt practise under Section-123 of People Representative Act, 1951. Supreme court has linked religion and electoral reform with the concept of secularism. This decision of the Supreme court helps to facilitate democracy through election by way of secular politics.
Supreme Court in the case of St.Xavier’s vs State of Gujarat said secularism in not supportive of or anti the concept of the almighty but it is neutral towards all religions at large. Even atheist, agnostic has every right to follow their belief, faith or practise. This explanation of the Supreme court is more close to the western concept than Indian concept.
K.T. Shah made two attempts to incorporate the term ‘SECULAR’ in the Constitution in Article 1. But constituent assembly rejected both of his efforts. Justice Gajendragadkar explained if meeting would have accepted his suggestion, then it must have been the western concept of secularism but the constituent assembly was looking for eastern concept.
Secularism is a value system. World consider Europeans as mostly secular and Indians as essentially religious. But after 1950 framers of Indian constitution has excluded religion from the public sphere and India has been declared as secular state. There must be freedom of religion and freedom from religion.The state must be a neutral institution towards any religion.There must not be any discrimination based on religion.
Govind Kumar is a 2nd year law student from Banaras Hindu University, Varanasi.
Satya Sundar Shety, Dharma as religion, Reinterpreting Gandhi’s Notion of “Dharma”: An Entanglement of Duty, Religion, and Ethics (May 16, 2020, 08:30 PM), https://www.mkgandhi.org/articles/reinterpreting-gandhis-notion-of-dharma.html.
Anand, The Sufi movement, Sufi and Bhakti Movement in India (May 15, 2020, 07:30 PM), https://www.historydiscussion.net/history-of-india/sufi-and-bhakti-movement-in-india/3052.
Supra note 1.
Supra note 1.
AIR 1994 SC 1918.
AIR 1995 SC 672.
(1994) 6 SCC 579.
AIR 2002 SC 122.
AIR 2004 SC 2081.
AIR 2017 SC 182.
AIR 1974 SC 1389.
IMPORTANT – Opinions expressed in this article are the sole responsibility of the author and do not necessarily reflect the views of IJOSLCA.