Constitution of India: A positive secular constitution

Articles

Constitution of India: A positive secular constitution

July 8, 2021

By- TUSHAR SINGH SAMOTA

The phrase “secular” refers to being “apart” from religion or having no religious foundation. A secular person derives his moral standards from no religion. His ideas are the result of his logical and scientific reasoning. Secularism refers to the separation of religion from the political, economic, social, and cultural components of life, with religion viewed as a strictly personal concern. It stressed the separation of the state from religion, as well as full freedom and tolerance for all religions. It also stands for equal opportunity for people of all faiths, as well as no prejudice or favouritism based on religion.

Secularism in the History of India

Secular traditions are well established in Indian history. Indian culture is built on a synthesis of diverse spiritual traditions and social movements. Santam Dharma (Hinduism) was generally permitted to evolve as a holistic religion in ancient India by embracing diverse spiritual traditions and attempting to merge them into a single mainstream.

The creation of four Vedas, as well as diverse interpretations of the Upanishads and Puranas, clearly demonstrate Hinduism’s religious diversity. As early as the third century B.C., Monarch Ashoka was the first major emperor to declare that the state would not pursue any religious sect. In his 12th Rock Edict, Ashoka urged not only the tolerance of all religious groups but also the development of an attitude of high respect for all. Even with the arrival of Jainism, Buddhism, and subsequently Islam and Christianity on Indian land, the desire for religious tolerance and the coexistence of many religions persisted.

The Sufi and Bhakti groups in mediaeval India used to love and peace to bring individuals from different cultures together. The leading lights of these movements were Khwaja Moinuddin Chisti, Baba Farid, Sant Kabir Das, Guru Nanak Dev, Saint Tukaram and Mira Bai etc. Religious tolerance and freedom of worship were hallmarks of Akbar’s state in mediaeval India. He appointed a handful of Hindus as ministers, prohibited forceful conversions, and abolished Jizya. His proclamation of ‘Din-i-Ilahi,’ or the Divine Beliefs, which included aspects of both Hindu and Muslim faith, was the most visible manifestation of his tolerance policy. The fact that it had few supporters demonstrates that it was not forced on the subjects. Along with this, he stressed the notion of ‘sulh-i-Kul,’ or religious peace and concord. He even hosted a series of theological discussions at the Hall of Worship’s ‘Ibadat Khana,’ with participants included theologians from the Brahmins, Jains, and Zoroastrians. Babar had already counselled Humayun to “shed religious prejudice, maintain temples, save cows, and administer justice appropriately in this tradition” before Akbar. The spirit of secularism was also developed and enriched by the Indian liberation movement, notwithstanding the British strategy of divide and rule.

The British partitioned Bengal in line with this approach in 1905. The Indian Councils Act of 1909 established separate electorates for Muslims, a provision that was extended to Sikhs, Indian Christians, Europeans, and Anglo-Indians in some provinces by the Government of India Act of 1919. Ramsay MacDonald is a chef from the United Kingdom. The Communal Award of 1932, which allowed for distinct electorates as well as seat reservations for minorities, including the poor, formed the basis for representation under the Government of India Act, 1935.

However, the Indian liberation struggle was defined from the outset by secular heritage and ethos. Liberals such as Sir Feroz Shah Mehta, Govind Ranade, and Gopal Krishna Gokhale generally followed a secular approach to politics throughout the early stages of the Indian liberation struggle. Many provisions on secularism were included in the constitution drafted by Pandit Moti Lal Nehru as chairman of the historic Nehru Committee in 1928, such as: ‘There shall be no state religion for the commonwealth of India or any province in the commonwealth, nor shall the state, either directly or indirectly, endow any religion with any preference or impose any disability on account of religious beliefs or religious status.

J. L. Nehru’s secularism was founded on a dedication to scientific humanism tinged with a progressive perspective of historical development, whereas Gandhi Ji’s secularism was based on a commitment to the brotherhood of religious groups based on their respect for and pursuit of truth. In the current Indian setting, the separation of religion from the state is at the heart of the secularist worldview.

Philosophy of Indian Secularism

The term “secularism” is related to the Vedic notion of “Dharma nirapekshata,” or the state’s indifference to religion. Western cultures have embraced this secularism approach, in which the government is completely independent of religion.

The Indian idea of secularism is connected to “Sarva Dharma Sambhava,” which means that the goal of all faiths’ pathways is the same, even though the roads themselves are different, implying equal respect for all religions.

This notion, accepted and advocated by figures such as Swami Vivekananda and Mahatma Gandhi, is known as ‘Positive secularism,’ and it represents the prevalent attitude of Indian culture. There is no recognised state religion in India. However, other personal laws – such as marriage, divorce, inheritance, and alimony – vary depending on an individual’s faith. Indian secularism is not an aim in itself, but rather a way of addressing religious diversity and achieving the peaceful coexistence of many religions.

Secularism and the Indian Constitution

All of the fundamental concepts of secularism are included in several articles of the constitution. The adjective “secular” was introduced to the preamble by the 42nd Constitution Amendment Act of 1976. India is a sovereign, socialist, secular, democratic republic. It emphasises the fact that India is a constitutionally secular country with no state religion. Furthermore, the state should recognise and respect all religions without favouring or patronising any specific religion. Where:

Article 14 guarantees equality before the law and equal protection under the law for all,

Article 15 broadens the concept of secularism to the maximum extent possible by prohibiting discrimination based on religion, race, caste, gender, or place of birth.

Article 16 (1) ensures equal opportunity for all citizens in public work and reiterates that there will be no discrimination based on religion, race, caste, sex, descent, place of birth, or residency.

Article 25 guarantees ‘Freedom of Conscience,’ which means that all people have the same right to the ability of conscience and the freedom to openly proclaim, practise, and propagate their beliefs.

According to Article 26, every religious group or individual has the freedom to create and operate institutions for religious and philanthropic reasons, as well as to administer its religious affairs.

According to Article 27, the state may not compel any person to pay taxes to promote or maintain any specific religion or religious institution.

Article 28 enables religious instruction to be given in educational institutions run by diverse religious organisations.

Minorities have cultural and educational rights under Articles 29 and 30.

Article 51A, i.e. Fundamental Duties, obligates all citizens to foster concord and the sense of shared brotherhood, as well as to appreciate and conserve our composite culture’s rich history.

Comparison of Indian with western secularism

Over time, India has created its idea of secularism, which differs significantly from the comparable western concept of secularism in the following ways: According to the Western paradigm of secularism, the “State” and the “Religion” have distinct domains, and neither the state nor the religion may meddle in the business of the other.

As a result, the western notion of secularism necessitates the full separation of religion and state. However, neither in law nor in practice, there is a “wall of separation” between religion and the State in India. In India, both the state and religion can and frequently do interact and intervene in each other’s affairs within legally regulated and judicially established boundaries.

In other words, Indian secularism does not need the absolute exclusion of religion from state activities. According to the Western model, the state cannot provide financial assistance to religiously affiliated educational institutions. The Indian model, on the other hand, has selected a positive form of interaction. In India, the state grants all religious minorities the freedom to create and operate their educational institutions, which may receive public funding. In the Western paradigm, the state does not meddle in religious matters until religion is operating within the bounds of the law.

On the other hand, in Indian secularism, the state must intervene in religion to correct any flaws. India has stepped in by implementing laws against sati, or widow-burning, dowry, animal and bird sacrifice, child marriage, and banning Dalits from visiting temples. Religion is completely confined to the private realm and has no place in public life under the Western idea of secularism. Because the Western model forbids any public policy from being formulated based on religion, the state is completely divorced from its citizens’ religious activities and practices. In India, the state has a policy of establishing Departments of Religious Endowments, Wakf Boards, and so on. It is also engaged in the selection of Trustees for these boards.

Threats to Secularism

While the Indian Constitution mandates the state to be religiously neutral, our society is entrenched in religion. The mingling of religion and politics, or the mobilisation of votes based on basic identities such as religion, caste, and ethnicity, has put Indian secularism in jeopardy. Communal politics functions through communalizing social space, disseminating myths and stereotypes about minorities, attacking rational principles, and engaging in divisive ideological propaganda and politics. The politicisation of one religious group results in the competitive politicisation of other groups, culminating in inter-religious strife.

Communal riots are one expression of communalism. In recent years, communalism has proven to be a major danger to India’s secular fabric. In recent years, the rise of Hindu nationalism has resulted in mob lynchings based on the mere suspicion of killing cows and consuming beef.

Furthermore, the forced closure of slaughterhouses, campaigns against ‘love jihad,’ reconversion or Ghar-wapsi forcing Muslims to convert to Hinduism, and other practises strengthening communal tendencies in society. Islamic fundamentalism or revivalism advocates for the establishment of an Islamic state based on Sharia law, which contradicts secular and democratic state concepts. . In recent years, there have been isolated incidents of Muslim youngsters becoming inspired and radicalised by organisations such as ISIS, which is extremely sad for both India and the rest of the globe.

Way Forward

In recent years, there have been rare cases of Muslim youth becoming inspired and radicalised by organisations such as ISIS, which is incredibly unfortunate for both India and the rest of the world.

There is also a need to define a common framework or shared set of values that will allow the various groups to coexist. To execute a social reform effort such as the Uniform Civil Code, a suitable atmosphere must be created, as well as a socio-political consensus must be formed.

Constitutional/ legal prespective

Since we are touting Indian secularism as positive secularism since it engages in religious concerns within the specified limits. So, for the first time, the Supreme Court has articulated its views on the Constitution’s secular nature in one of its decisions.

In the case of “Sardar Syedna Taher Saifuddin Saheb v. the State of Bombay“, it was determined that: “Articles 25 and 26 contain the principles of religious characteristics of Indian culture from the beginning of history.” In “M.H. Qureshi v. the State of Bihar”, often known as the Qureshi Cow-Slaughter case, the Supreme Court ruled that the state’s prohibition on cow slaughter did not infringe on Muslims’ religious liberties.

The Constitutional Bench of the Hon. Supreme Court stated in “Kesavananda Bharati v. the State of Kerala” that liberty of thought, speech, belief, faith, and worship is part of the essential framework of the Constitution. Secularism is now a component of the fundamental framework. This point of view was encapsulated in the landmark case of “S.R. Bommai v. Union of India“

Wherein, the Supreme Court digs extensively into the notion of secularism while declaring that a state government cannot follow a certain religion. The Supreme Court ruled that secularism is a basic element of the Constitution. Secularism is a positive idea that advocates for the equal treatment of all religions. This is referred to as “neutrality toward religion” or “benevolent neutrality” by others. While religious freedom is granted to all Indians, the state regards a person’s religion, creed, or belief as irrelevant. Everyone is equal and should be treated similarly, according to the state. Religion has no place in government.

Furthermore, because the State is required by the Constitution to be secular in both thinking and conduct, political parties are held to the same standard. The cohabitation of religion and state authority is neither recognised nor permitted by the Constitution. Both must be maintained apart from one other. That is the constitutional enjoinment. Nobody can argue differently as long as this country is governed by the Constitution. Religion and politics are fundamentally opposed. Any state government that supports or acts in non-secular policies or practices is violating the constitutional mandate and may face legal action under Article 356. Given the foregoing, it is clear that any party or group that seeks to run for office based on a plank that contradicts the secular concept of the Constitution is engaging in illegal behaviour.

Within a year, however, the Hon. Supreme Court in “Ismael Faruqui v. Union of India” (also known as the Ayodhya Case) began to erode the active, constructive notion of secularism grounded on scientific reasoning. When read in combination with Articles 25 to 30, it was decided that the Preamble to the Constitution stresses the protection of religious equality for all peoples and groups.

In the infamous Ram Janambhoomi case, A.S. Narayana Deekshitulu v. State of Andhra Pradesh, the Hon. Supreme Court supported its notion of secularism by referring extensively to Indian scriptures to justify its concept of secularism: ‘Sarwa Dharma Sambhava,’ i.e., tolerance of all religions. The Supreme Court seems to have rejected the western idea of secularism based on the separation of the Church and the State, as described in the previous decision of S.R. Bommai and reverted to associating secularism with tolerance.

Indian Young Lawyers Association v. The state of Kerala (Sabrimala case), The High Court reviewed the validity of the women’s limitation in 1991 and maintained the ban as confirming with the practice that had existed since time immemorial. The matter was addressed again by the Supreme Court in 2018, which overturned the previous ruling. The Court ruled that the ban on women’s admission was unlawful by a 4:1 vote. The language of the majority verdicts was human dignity, equality, and development. Thus, the public reaction to the case underscores the importance of religious freedom adjudication in India and highlights the interdependence of multiple diverse realms: religious, public, and judicial.

Conclusion

As previously stated, secularism is an element of the Constitution’s fundamental structure. As a Secular State, it is not only the State’s responsibility but also the people’s responsibility to respect the religious liberties of other inhabitants. In my opinion, we should not proclaim ourselves a secular country if we are unable to sustain the spirit of secularism. A state does not become secular simply by including the word “secular” into its constitution. In actuality, the state must conform to secularist values. It is also the responsibility of anybody resident on Indian territory to uphold those principles and exercise their right to religious freedom under the law.

“We, the People of India, have sincerely resolved to make India a secular nation,” states the Preamble to the Indian Constitution. As a result, every single Indian citizen should work to convert India into a secular society where everyone, regardless of faith, is treated with equal respect, freedom, and opportunity. The Indian state must keep in mind that the aggressive invasion should not be hidden behind the pretext of security. India’s secularism is going through a difficult, if not trying, period. In such a circumstance, the government should act maturely, setting aside its political ambitions. India has encountered several obstacles, and each time it has risen to the occasion and emerged stronger. However, this is only possible if the state performs its responsibilities with caution and discretion.

India has always been and will always remain a secular society. Not due to the legislation, but due to the character of culture. For the time being, it is experiencing a dark period of turbulent religious tensions, but the day will come when civilization and the state will triumph over this darkness and lead the way to the sunlight of secularism, the origins of which will be so powerful that no storm will be able to destroy them. The state and community are required to take a more responsible and realistic approach to conflict settlement. Religious denominations should not be led astray by their tenets, and the state’s wisdom should not be blurred by the desire to gain political advantage.