SECULARISM: A Study in the light of the CONSTITUTION of India
Updated: Dec 20, 2021
Authored by Ms. Sofia Khatun, Research Scholar cum Ph.D. Candidate at Christ deemed to be University and Mrs. Deepa Rani Salian, Assistant Professor of Law SDM Law College, Mangaluru.
India is one State endorsed with rich cultures that are distinct in language, dressing, and several activities. Religion has been the key differentiating took among the cultures inherent in India. The country is home to major religions such as Buddhism, Jainism, Hindustan, and Sikhism, Muslim, Christian. For instance, the north and south have diverse cultural rich creating a composite mixture of the Indian Culture.
The large population improves the Indian cultural identity and decent variety over the distinctive topographical and religious lines, religious doctrine, impacts culture and it is on this strict premise that diversity of the Indian culture exists. The word "Secularism" derives its essentiality from the constitution of India under Freedom of Religion Article 25 to 28.
Secularism as the basic structure of the constitution
It is clear from the constitutional scheme that it ensures uniformity in the matter of religion to all people and groups irrespective of their faith, emphasizing that there is no religion of the State itself. It is one of the facets of the right to equality, woven in the golden thread in the fabric defining the Constitution. In general parlance, secularism means separation between State and religion, i.e., the temporal power should keep its handoff from the religious world. For the first time, it was recognized in Keshavananda Bharati v. the State of Kerala that secularism was a part of the basic structure of the Constitution. Chief Justice Sikri, observed, "Secular character of the Constitution." Justice Shelat and Grover stated that the "secular and federal character of the Constitution" was among the main ingredients of the basic structure enumerated therein. Justice Jaganmohan Reddy emphasized, "Liberty of thought, expression belief, faith and worship" as already laid down in the Preamble of the Constitution. The Hon'ble court asserted that the basic structure of the Constitution cannot be amended at any cost. Further, in the landmark judgment of S.R. Bommai v. Union of India, the Hon'ble court declared that secularism is the basic structure of the Constitution.
In fact, the Constitution of India guarantees perfect impartiality towards all religious communities in the State and grants the right to profess whatever religion one seeks to follow. In the case of Sri Adi Visheshwara of Kashi Vishwanath Temple v. the State of U.P, it was held that secularism is the basic feature of the Constitution. India is a religious country where the majority of people are Hindus which is divided into castes, sub-castes, sects, sub-sects, and achieving unity among them is the clarion call of the present times.
The Constitution of India provides for a Secular State. A Secular State should not be taken as an anti-religion state (1). A Secular State is a State which is neutral in religious matters. It is a State which provides equal treatment to all religions. It does not support any particular religion; i.e. there is no State Religion. A Secular State may be taken as a State which considers that the various religious opinions, whether provided by the majority or minority communities, are deserving of equal treatment. The citizens in a Secular State may have any religion they like or no religion at all and the Secular State does not prosecute them or impose disabilities on them because of their religious opinion.
In Aruna Roy v. Union of India, the Court has held that the word "secularism" used in the Preamble of the Constitution is reflected in the provisions contained in Articles 25 to 30 and Article 51A. 'Secularism' is susceptible to a positive meaning that is developing understanding and respect towards different religions. The essence of secularism is the nondiscrimination of individuals by the State based on religious contrasts.
According to the Former Prime Minister Lt. Pandit Jawaharlal Nehru, a secular state should be taken to mean a state where there is freedom of religion and conscience including freedom for those who may have no religion. It means free play for all religious subjects only to the use of the general public. Article 15(2) prohibits not only the State but also the private individuals from making discrimination on any of the aforesaid grounds. The word "Secular" appears only in the Preamble, though secularism pervades the constitutional provisions.
The Constitution of India provides religious freedom individually and also in the form of association of individuals organized by the common faith. Article 25 confers the particular right on all persons while Article 26 guarantees certain rights only to religious denomination or a section thereof. Article 26 is subject to public order, morality, and health while Article 25 is subject to public order, morality, and health and also subject to the other provisions relating to the Fundamental Rights. Article 27 guarantees freedom as to the payment of taxes for the promotion of any particular religion. Article 28 gives the opportunity to participate at a religious institution or religious worship in a certain educational institution.
To establish the secular character of the Indian polity, not only does the Constitution guarantee freedom of religion to individuals and groups, but it is also against the overall strategy of the Constitution that any cash is paid out of the public funds for promoting or keeping up a specific religion. According to Article 27 no individual "will be constrained to pay any taxes, the returns of which are explicitly appropriated in payments of costs for the promotion or maintenance of a specific religion or religious denomination". This arrangement has been held, that doesn't nullify the levy of a fee to offer a few types of services. Thus, a fee can be levied on pilgrims to a religious fair to meet the expenses of the measures taken to safeguard the health, safety, and welfare of the pilgrims. Such legislation is not invalid even under Article 25(1) which permits legislation for promoting "health, morality and public order". Similarly, to meet the expenses of government supervision over the administration of religious endowments, a fee can be levied on them. A state cannot levy a tax for the purpose, as there is no such entry in List II or List III. Only Parliament can levy such a tax. The states can only levy a fee. Article 27 will not hit the 'fee' levied by a state because the object of such a contribution is not to foster or preserve religion, but to control the secular administration of religious institutions.
The establishment of Muslim walls to contribute to a fund for the promotion of education of Muslim students does not violate Article 27. Making provision for the education of students professing a particular religion does not amount to maintaining that religion(2). A grant of money by the state for renovating water tanks belonging to Lord Jagannath was held to be not invalid under Article 27, for these tanks were used by the general public for bathing and drinking purposes, and thus needed to be repaired and maintained in hygienic condition. The court even maintained that even if places of worship belonging to one religious denomination alone were damaged and they alone were to be reconstructed, even then there would be no question of promotion or maintenance of that particular religion.
India has a multi-cultural society that has managed to retain the secular character through "oneness" secularism begins in the heart of every individual there is no feeling of "otherness". Secularism is the real strength of India as the biggest democratic country in the world. Secularism as a part of the constitutional scheme plays a very vital role in our nation-building. Secularism which is deep-rooted in the constitution under 42nd Amendment has become the backbone of National integrity.