ABSTRACT

India is a country which is often praised for its ‘Unity in Diversity’. It has various cultural and religious differences, and it believes in celebrating its differences by being united all together. Freedom of Religion and Secularism are two of the embedded elements of the Indian Constitution. Secularism, though was not mentioned in the Preamble till the 42^nd Amendment, yet it has always existed in the Indian society, which is why the people of India forget their religious differences and come together to celebrate Diwali, Christmas, Eid and so on. The Indian citizens are free to practice, profess and propagate their religion, without facing any obstacle from the government, provided that such exercise of religion should not be unconstitutional. The State which gives such right of freedom of religion to its citizens, itself is secular, which means it does not possess any specific religion as its official religion. However, it respects all religions and treats them equally. This article revolves around the concept of Freedom of religion and secularism, unfolding the historical background of secularism as well as discussing the present status of freedom of religion and secularism, which go hand in hand in India.

KEYWORDS: Religion, Secularism, Article 25 – 28, equality, 42^nd Constitutional Amendment.

INTRODUCTION

Freedom of religion refers to a principle supporting the freedom of an individual or community in public or private, to manifest religion or belief in teaching, practice, worship and observance.[1] A country gives freedom of religion to its citizens means that it allows its citizens to practise their religion and its customs, no matter from what religion they belong. This freedom permits the people to freely carry on their religious activities without any hindrance from the government or any other executive authority of the country. Secularism refers to the principle of seeking to conduct human affairs based on naturalistic considerations, uninvolved with religion.[2] Secularism can be understood as a concept where all the religions are thought to be the same, no religion is considered superior than the other. Neither is any religion considered to be inferior to the other. A secular state means a state that does not recognise any religion as its official religion.[3] It respects all religions, but does not follow any specific religion. A secular state allows all its citizens to have the right to freedom of religion, so that they can carry on their religious practices.  

India is a secular state, which does not have any official religion. We find the diversity of religions and customs in India, people from various religions faiths, like Hindus, Christians, Jews, Sikhs, Muslims etc., reside here. They are free to practice, profess and propagate their religion without facing any obstacles from the State.

CONSTITUTIONAL PROVISIONS[4]

India guarantees Right to Freedom of Religion under Articles 25 – 28 of the Constitution of India. The article 25 of the Constitution allows the citizens of India to practice, profess and propagate their own religion. This article does not affect any existing law and should not restrict the state from bringing a law regulating or restricting the economic, financial, political or secular activity related to religious purpose; making provision for social welfare; opening od Hindu religious institutions of a public character to all classes and sections of the Hindus.

The Article 26 allows every religious denomination, respect to public order, morality and health, to establish and maintain their religious and charitable institutions, manage their own religious affairs, acquire and own both movable and immovable property, legally administer such property.

The Article 27 restricts compelling anyone to pay tax, proceeds of which are to be used for the payment of such expenses made for promoting or maintaining any particular religion or religious denomination.

The Article 28 firstly says that religious instructions should not be provided in any educational institution which is wholly maintained out of State funds. This instruction shall not be applied to educational institutions which are administered by the State but are established under any endowment or trust which requires to impart religious instruction to such institution. This article further says that any person attending any educational institution recognised by the state or receiving aid out of state funds, is not required to take part or attend any religious ceremony or worship which is conducted in the institution or any premise thereto, unless such major person or such minor person’s guardian has given consent to it.

The Preamble of the Constitution says that India is a secular state, which means that India does not recognise any religion as its official religion. The people of India are free to practice, profess and propagate any religion of their choice, but India itself has no religion as the religion of the State. Secular not only meant that the state should have no religion of its own and should be neutral as between different religious, but that political party which sought to capture the power, the religious would come to capture the power, the religions would come to acquire a secondary or less favourable position.[5]

HISTORY AND BACKGROUND OF SECULARISM

Jawaharlal Nehru thought of separating religion and politics and gave the concept of Dharmanirpeksata.[6] Historian Madhavan Palat said that Jawaharlal Nehru thought secularism as a possible source of dogma. In a Congress Parliamentary meeting, Nehru said that secularism was not a happy word, it didn’t mean that they were anti-religious, it just meant that India was not formally entitled to any religion as a nation.[7]

Mahatma Gandhi believed in the principle of equal respect of all religions. He was upholding the concept of ‘Sarva Dharma Sambhava’. He viewed this as a way to bring all people from different religious backgrounds together and thus form a mass movement.  He understood the value and importance of religion in the lives of the people.

The Constituent Assembly Minority Sub Committee defined Freedom of Religion as the “Freedom of Conscience and right freely to profess, practice and propagate religion”. This thought was dissented by Amrit Kaur, Jagjivan Ram, GB Pant, PK Salve and BR Ambedkar. Their main point of argument was that when religion would be described in such a vast category, it would imply adding the anti-social customs like child marriage, polygamy, unequal laws of marriage and inheritance. [8] Dr. B.R. Ambedkar was of the opinion that issues related to the state’s policy, organisation as well as economic aspects should be determined by the people, and not decided by the Constitution itself. [9]

The Prime Minister Indira Gandhi made up a committee in 1976, the Chairman of which was the then Minister of External Affairs Swaran Singh “to study the question of amendment of the Constitution in the light of experience”. The 42nd amendment of the Constitution in1976, amended almost all parts of the constitution including the preamble of the constitution.

When the debates of the Constituent Assembly debates were going on, KT Shah gave an offer of an amendment to declare India as a “Secular, Federal, Socialist nation”. Opposing this view, Ambedkar said that, the Constitution is merely a mechanism for the purpose of regulating the work of various organs of the State, and not a mechanism where by particular members or particular parties are installed in office. The policy of the state, organisation of society in its social and economic matters must be decided by the people themselves with respect to time and circumstances. He believed that, this if decided by the constitution would destroy democracy. If the social organisation of the State is stated in the Constitution, this would seize the liberty of the people to decide their way of social organisation in which they wish to live.[10]

In Kesavananda Bharati case, the Basic Structure Doctrine was held where it was said that the basic structure of the Constitution could not be amended.[11] The basic structure doctrine already contained within it the principles of secularism and socialism. But the then Prime Minister Indira Gandhi thought that it was necessary to amend the Constitution and add those two words in the preamble. Her government had severely weakened civil and political rights, so she might be keen to demonstrate her commitment to social and economic rights, for which she wanted to enshrine the idea of a socialistic pattern of society and it gave a scope that went way beyond what was envisaged in the times of the previous Prime Minister Jawaharlal Nehru.[12]

PRESENT STATUS

In Bijoy Emmanuel v. State of Kerala, 1986, it was held that it is not compulsory to sing the National Anthem, if he has genuine conscientious religious obligations. They could show respect towards the national anthem by standing up when the anthem is being sung.[13]

In Shayara Bano v. Union of India[14], the Supreme Court of India dealt with the practise of divorce by pronunciation of “triple talaq” among the Muslims.  The Bench in a 3:2 majority striked down the practise of Triple Talaq, saying that it was unconstitutional. The Court held that personal laws must be subjected to the test of constitutional validity and gender and justice, and Article 25(2) lays down that if any religious practice violates fundamental rights, then it can be struck down by the Supreme Court. It held that Triple Talaq was derogatory and was a violation of Article 14, Right to equality.[15]

M Siddiq (D) Thr Lrs v. Mahant Suresh Das & Ors, 2019[16]

This case is popularly known as the “Ayodhya Dispute Case”. This case completely revolves around the possession of Ayodhya which was claimed by the Hindus as Ram Janmabhoomi, the birthplace of Lord Ram and by the Muslims as the city which locates Babri Mosque. The Hindus were of the believe that Babri Mosque was built by demolishing a temple which existed there before the establishment of the mosque. Major issue was that whether a previous Hindu temple was demolished or modified to construct a mosque by Babur. The Supreme Court granted the entire 2.77 acre of disputed land in Ayodhya to the deity Ram Lalla. The Supreme ordered the Union government to create a trust in 3 months for the construction of Ram Mandir. It was found that the structure below the disputed site was not an Islamic structure. The court declared that the Hindus belief regarding the land to be the birth place of Lord Rama can not be challenged. Finally on 9^th November 2019, the Supreme Court ordered the surrender of the land to the trust for constructing Ram Mandir. At the same time, it ordered the government to donate 5 acres of land within the limits of the Ayodhya city to Sunni Waqf Council for building a mosque.[17] Therefore, secularism it clearly portrayed in the Supreme Court judgement.

CONCLUSION

Freedom of religion and secularism has travelled a long way in India. These are now indispensable parts of the Constitution of India. They have always existed in the Indian culture and customs. People in India enjoy the liberty to practice, profess and propagate their religion in whatever way they want, except in the ways that obstruct or violate the fundamental rights of the Constitution. The citizens are free to enjoy their religious rights till the extent of their constitutional validity. However, India practices secularism. It respects all religions and treats them equally. It does not recognise any of the religions as its official religion. Despite of such guarantees given by the Indian Constitution; challenges exist in the form of communal tensions. The democratic framework and pro-active civil society work towards addressing such issues and resolving them. Thus, India tries to maintain harmony among all the religious groups and uphold the secular environment, celebrating its ‘Unity in Diversity’.

[1] Wikipedia, Freedom Of Religion , visited on 19 June 2024, available at https://en.m.wikipedia.org/wiki/freedom_of_religion

[2] Wikipedia, Secularism, visited on 19 June, 2024, available at https://en.m.wikipedia.org/wiki/Secularism

[3] BYJU’S, What Do You Mean by Secular State, visited on 19 June 2024, available at https://byjus.com/question-answer/what-do-you-mean-by-secular-state/

[4] The Constitution of India, arts. 25,26, 27, 28.

[5] S.R. Bommai v. Union of India, 1994 AIR, SC 1981

[6] Chetan Sharma, “Political Processes In India”, Academia, available at https://www.academia.edu/38820883/Debates_on_Indian_Secularism , visited on 20 June 2024

[7] ThePrint, For Nehru, secularism wasn’t happy word but a possible source of dogma: Historian, visited on 20 June 2024, available at https://theprint.in/india/for-nehru-secularism-wasnt-a-happy-word-but-a-source-of-dogma-historian-madhavan-palat/

[8] Chetan Sharma, “Political Processes In India”, Academia, available at https://www.academia.edu/38820883/Debates_on_Indian_Secularism , visited on 20 June 2024

[9] CIVILSDAILY, Evolution of “Socialist” and “Secular” in Indian Constitution’s Preamble, visited on 20 June, 2024, available at https://www.civilsdaily.com/news/socialist-secular-indian-constitutions-preamble/

[10] Wikipedia, Forty -second Amendment of the Constitution of India, visited on 20 June 2024, available at https://en.m.wikipedia.org/wiki/Forty-second_Amendment_of_the_Constitution_of_India

[11] Kesavananda Bharati v. State of Kerala, AIR 1973 SC 1461

[12] Mint, Why secularism and socialism are integral to the Indian Constitution , visited on 20 Jun. 24, available at https://www.livemint.com/Opinion/XKcwMBM2WpKX7TM20PBBP/Why-secularism-and -socialism-are-integral-to-the -Indian-cons.html

[13] AIR 1987, SC 748.

[14] AIR 2017 SCC 1388

[15] ADF India, Top Five Cases Related To Religious Freedom In India, visited on 20 June, 24, available at https://adfindia.org/stories/top-five-cases-related-to-religious-freedom-in-india/

[16] AIRONLINE 2019 SC 1420 ,2020 (1) SCC 1

[17] Ipleaders, Ayodhya Case: India’s longest running dispute, visited on 20 June 2024, available at https://blog.ipleaders.in/ayodhya-dispute-case/