Although the 42nd Constitutional Amendment, through insertion of the word ‘secular’ in the Preamble of the Constitution asserted that India is a secular nation, the relationship between the state and religion has not yet been defined but only interpreted. A cloud of great confusion still lurks amidst the current debates on religious intolerance and secularism in India as to how the social milieu might interpret secularism. The Supreme Court has consistently taken up the task of defining secularism and has tried giving it a wide ambit of reasoning and interpretation, but this has also, in a fortuitous misfortune, created the great confusion that exists today. This observation raises the question, should the Supreme Court and the Parliament make efforts in defining Indian secularism or even the idea of it? The Constitution has laid down secularism as only a goal towards which all activities of the nation must approach, the silence on its connotation however remains long debated.
Gandhian & Nehruvian Secularism
“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.”
– Constituent Assembly Debates, Vol. I, p.55
Nehru carried a Jeffersonian attitude when it came to secularism. Although he believed that all religions must be respected equally, he was inclined towards the ‘wall of Thomas Jefferson’ which separates religion from the state. He was always of the thought that religion only hampers the growth of the nation and speaking in the Indian context, he vehemently stood by his views. It must however be understood that his views were not against the internal content of religion but only its external manifestation. The Karachi Resolution of 1931, the original draft of which was made by Nehru, clearly stated the state’s role in regard to religion. His original draft was rejected, it being too “radical”.
Nehru would be, in today’s age, what is called the ‘Militant Atheist’, in the league of people like Richard Dawkins and Christopher Hitchens, with his opinions on religion as follows:
“Religion is narrow and intolerance of other opinions and ideas; it is self-centered and egoistic and it often allows itself to be exploited by the self-seekers and opportunists.”
Gandhi’s view however remains disputed, since on one hand he propagated a complete separation of the state from religion, calling religion a man’s ‘private affair’ and that it should never intervene anyhow, in the state’s functioning, and on the other hand, he emphasized a close connection between religion and politics since his political work was deeply inspired by his religious morality and beliefs. He writes in his autobiography:
“My devotion to Truth has drawn me into the field of politics. Those who say that religion has nothing to do with politics do not know what religion means.”
– Mahatma Gandhi, THE STORY OF MY EXPERIMENTS WITH TRUTH
In April 1924, he asserted:
“For me there are no politics devoid of religion. They sub-serve religion. Politics bereft of religion are a death-trap because they kill the soul.”
– Young India
Through this, we see the stark contradiction between the views of Gandhi and Nehru in regard to the concept of secularism. Gandhi was opposed to any kind of state aid to religious bodies and this majorly marked his line of separation. He strongly professed for a religion to be a private affair. He said in February 1947, “..in reality as many religions as minds. Each mind had a different conception of God from the other.”
The State & Religion
That the word secularism needs to be defined is seen in the irony that India despite claiming to be a secular state fails to enforce a uniform civil code. Yes there is certainly the point of India being greatly diverse, diverse to the extent of making it impossible to unify it, but the way the legislative bodies and even the court have succumbed to religious laws forfeiting the ideas of natural justice, is an issue to be scrutinized.
Article 29 and 30 are provided as a protection for the minorities against the cultural hegemony of the dominant groups. Both these articles provide a great scope for the minorities to co-exist with the majorities peacefully and amicably and also provides grounds where the minorities can develop and carry forward their distinct culture and language forward, without any unreasonable interference from anyone.
The Constitution has not erected a strict wall of separation between the church and the state. There are still grave doubts whether the expression ‘secular state’ if it denotes a definite pattern of relationship can, with propriety, be applied to India. Only in a qualified sense can India be said to be secular. There are provisions in our Constitution, which make one hesitate to characterize our state as secular. Secularism in the context of our Constitution means only an attitude of live and let live developing into the attitude of live and help live, as was held in the case of Ahmedabad St. Xavier’s College v. State of Gujarat [AIR 1974 SC 1389].
The greatest example of the personal laws overriding the principles of natural justice would be the Shah Bano case [AIR 1985 SC 945] where the Supreme Court, in 1985, ruled in favor of Shah Bano, a divorced Muslim woman who challenged her husband for extended maintenance in contravention of Muslim Personal Law: The opposition of Muslim groups to the court ruling forced the Government of India to override the Supreme Court’s decision and enact the Muslim Women’s Protection of Rights on Divorce law, which entrenched Muslim personal law and placed the responsibility for protecting divorced women after the iddat period on their natal families and not their husband.
In India, two women may share a same tragedy but not its consequences. In the landmark case of Sardar Taheruddin Syedna Saheb v. State of Bombay [AIR 1962 SC 853], the Supreme Court while deciding a the legitimacy of an act preventing excommunication declared that “What are exactly matters of religion are completely outside State interference, subject of course to public order, morality and health. But activities associated with religious practices may have many ramifications and varieties – economic, financial, political and other – as recognised by Art. 25(2)(a).”
The freedom of religion is not confined to the religious beliefs only; it extends to religious practices as well subject to the restrictions with which the Constitution itself has laid down. No outside authority has the jurisdiction to interfere with the decisions as to what rites and ceremonies are essential according to the tenets of the religion they hold, as held in the case of The Commissioner, Hindu Religious Endowments, Madras v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt [(1954) SCR 1005].
Supreme Court on Secularism
The Supreme Court has expressed its trouble with interpreting the definition of the word ‘religion’ in the case of Commissioner Hindu Religious Endowments, Madra v. Dirur Math [(1954) 26 SCJ, 1954 348] and has not restricted its interpretation to a person’s relationship with a supreme being, since religions like Buddhism and Jainism do not believe in a ‘supreme being’ at all.
The Supreme Court, in the case of Ziyauddin Burhanuddin Bukhari v. Briujmohan Ram Das Mehra [AIR 1975 SC 1788] has agreed that our Constitution makers had always intended to make the country a secular democracy, giving the state a neutral status in regard to religious affairs. Although giving secularism the status of fundamental law of the land, the court has, in the landmark cases of Keshavanand Bharati v. State of Kerala [AIR 1973 SC 1461] & Indira Sawhney v. Union of India & Ors. [AIR 2000 SC 498] always called for a neutral status rather than a separation of state from religion, existence of a classless, cohesive and unified society.
Secularism was held to be the basic structure of the Constitution in the case of S.R. Bomai v. Union of India [AIR 1990 Kar. 5]. It held that in matters of state, religion has no place, and that the application of secularism would extent to political parties as well since they were part of the state. But it’s verdict was more on the lines of defining the relationship between religion and politics, and that the both must never be mixed.
In A S Narayan Deekshitulu v. State of Andhra Pradesh [AIR 1996 SC 1765], it was held that religion in the Constitution was a personal matter for those who have faith and belief in it. Religion, therefore, had its basis in a system of beliefs and doctrines regarded by the practitioners of the religion to be conducive to their spiritual well-being.
The Supreme Court however, while defining Hindutva as a way of life or state of mind and not equal to Hindu fundamentalism in the case of Ramesh Yashwant Prabhu v. Prabhakar K Khuntes [(1996) 1 SCC 130], gave way to much faulty judgments later when it held, in the case of Manohar Joshi v. Nitin Bhaurao Patil & Anr. [AIR 1996 SC 796], that promise to establish a Hindu state doesn’t amount to appealing for votes in the name of religion. It is ultravires of the Constitution as no Hindu state can ever claim to be neutral.
Justice Verma in the case of Ismail Faruqui v. Union of India [AIR 1995 SC 605] implied while invoking the vedas and Akbar’s Din Ilahi that secularism exists in India only because of the tolerance of the Hindus who are the majority religion, a perception which is inconsistent with the minority interests. The very fact that the analysis was based on religious scriptures subverts secularism.
Amartya Sen has always been a strong critic of the Babri Masjid case and demands that there be a basic symmetry of treatment of religions on the part of the state. He has always been a proponent of Akbar’s secularism who sought to fuse ideas, professed equality between Islam and other religions of India, forbade forced conversions to Islam, abolished religion-based discriminatory jizya taxes, and welcomed building of Hindu temples. Jakob De Roover, in his article The Vacuity of Secularism: On the Indian Debate and Its Western Origins, refutes Sen’s political secularism by giving the example of a predominantly Muslim state “which allows freedom of religion to the minorities, but also proclaims that all women must wear burqa.” and the hypothesis of an Indian state which “forbids the consumption of meat to all citizens.” De Roover then arrives at the extraordinary conclusion that “both states are still politically secular according to Sen’s principle, since they treat the members of different religious communities in a symmetric manner“. De Roover goes on to say that the nations in question could argue that since their policies are not really related to religion, they cannot be charged with violating Sen’s principle of equal treatment of all religions. De Roover too stresses on the semantic confusion surrounding secularism and the need for a proper definition.
In the famous NCERT case, the Supreme Court declared that all faiths are equal, that every religion is the same but only differ when it comes to its practices. The problem with this judgment is that it seeks to create uniformity based on oneness rather than trying to create a space for the diversity. It doesn’t respect the autonomy of the self but rather tries to bring forth oneness without addressing the Herculean task of a comfortable assimilation of everyone in a nation.
A proper definition of secularism that the Court can rely upon would Bipan Chandra’s whose secularism was four-pronged:
“Secularism meant first, separation of religion from political, economic, social and cultural aspects of life, religion being treated as a purely personal matter; second, dissociation of the state from religion; third, full freedom to all religions and tolerance of all religions: and four, equal opportunities for followers of all religions, and no discrimination and partiality on grounds of religion.”
– “Mughal Empire.” Gale Encyclopedia of World History: Governments. Vol. I
The court’s power of interpreting the Constitution has given it considerable authority. In the absence of any rigid positivist demarcation of the spheres of the secured and secular the court has remarkable autonomy. Religion and secularism in India are given categories. The court decides, and more so in its activist phase, what is secular and what is not, what is religious and what is not; thereby regulating their meaning and thus the personal realm. The judgments defy the logic of the positivist determination of outcomes. Judicial deliberations on issues of secularism rather reveal that context takes centre-stage in decision-making. Judicial pronouncements on secular issues have thus been marked by contradictions. While in cases it has promoted majority interests, eroding the rights of minority groups, in others, it has privileged minority groups.
India as Mark Twain once wrote, is “the cradle of the human race, the birthplace of human speech, the mother of history, the grandmother of legend, and the great grandmother of tradition. Our most valuable and most instructive materials in the history of man are treasured up in India only.” India is so structurally divided that it’d be fit for someone to say that it is a nation of various continents, a widely multi-cultural and multi-linguistic nation. India has seen all kinds of religious empires, a feature unique to its history. It has also seen the birth of religions like Jainism, Buddhism and Sikhism. It’s multi-cultural nature coupled with its economic problems makes it impossible for people of different religious denominations to live in a cordial harmony.
Secularism as we see, in the context of India, can never mean the alienation of religion from the state like the Western concept. It cannot also mean indifference to religions and religious institutions given India’s volatile religious scenario. However, the Constitution can ascribe to a concept of secularism where all religions are given equal status and freedom to make their own laws but also with a reasonable scope for state interference. Personal laws should not be allowed to override the fundamental rights or the ideas of natural justice. It is here where the global perceptions and scenarios must be taken into account, the global perception of women rights and human rights and at the same time taking the religious justification of the same. The Doctrine of Essential Practices if used effectively can greatly help define the concept of Indian secularism and if misused, then it’ll lead to a majority hegemony.
There are a lot many caveats that come along with a definition of secularism but leaving it undefined only paves the way for more religious conflicts in the future. A constitutional definition of secularism if defined broadly and with scope for further interpretation would help the courts to decide cases concerning religion. The path to glory as of now, seems full of thorns but must eventually be treaded upon for the sake of the nation and this can only be achieved if we strive for an eclectic definition of secularism, one which derives ideas from both national and international ideas and not a definition which might restrict, stagnate or hamper the growth of the nation.
This again, is a whole lot relevant now given the Saffronisation of India, with people gaining the audacity to post posts on social media saying “mandir yahi banega“, acts which are as intolerable as the atrocities in the riot itself. Are we all secular beings in these times, when we claim that our hearts bleed saffron, in a country which celebrates all the colours?