Dictionaries define 'Secularism' as pertaining to this world or to things 'not spiritual', 'not concerned with religion', 'a system of belief which rejects all forms of religious faith and worship', irreligious' etc. Encyclopaedia Britannica defines secularism as "Utilitarian ethics" designed for the physical, spiritual and moral improvement of mankind which neither affirms nor denies the theistic premise of religion. Encyclopaedia of Social Sciences defines it as an attempt to establish an autonomous sphere of knowledge purged of supernatural presuppositions. A.R Blackshield who tied to fix the perception and parameters of secularism in the West, was unable to arrive at any fully viable and acceptable definition of the term. It was, he concluded, not exactly opposite of religion, but then it was not easy to define religion either. According to him, secularism could be understood to imply religious freedom and tolerance and respect for ideas of rationalism, materialism, humanism etc.
An academic definition of the concept of secularism in the Indian context has been attempted by Donald Eugene Smith in the following words.
"The secular state is a state which gives individual and corporate freedom of religion, is not constitutionally connected to a particular religion, nor does it seek either to promote or interfere with religion".
As Justice Desai put it, a secular state deals with the individual as a citizen irrespective of his religion, is not connected to a particular religion nor does it seek to promote or interfere with religious affairs except when their management involves crime fraud or becomes a threat to unity and integrity of the State.
Delivering his judgement in Ziyauddin Burhammudin Bukhari Vs. Brijmohan Ramdas Mehra and Bros. (1975 Suppl. S.C.R. 281) Justice M.H. Beg said:
"The secular state, rising above all differences of religion, attempts to secure the good of all its citizens irrespective of their religious beliefs and practices. It is neutral or impartial in extending its benefits to citizens of all castes and creeds. Maitland has pointed out that such a state has to ensure, through its laws that the existence or exercise of political and civil right or the right or capacity to occupy any office or position under it or to perform any public duty connected with it does not depend upon the profession or practice of any particular religion.
Our Constitution and the laws framed thereunder leave citizens free to work out happy and harmonious relationships between their religious and the quite separate secular fields of law and politics. But they do not permit an unjustifiable invasion of what belongs to one sphere by what appertains really to another. It is for courts to determine, in a case of dispute, whether any sphere was or was not properly interfered with in accordance with the Constitution, even by a purported law."
Anything that is pernicious and exploitative cannot be allowed to remain outside the control of law simply because it is paraded under the garb of religion.
Justices Gajendragadkar, Dhawan and Beg found secularism practised by ancient Hindu society and equally traceable to Islamic jurisprudene. Justice Beg suggested that "a happy harmony and synthesis of the best in secularism and religion" was possible. A theory of secularism could be built on ancient jurisprudence. In Keshvanand Bharti Case (AIR 1973 SC 1461), secularism was held to be part of the basic structure. Quoting from Manu and Parashara, Justice Beg, however said:
"Even our ancient jurists recognised the principles that one generation has no right to tie down future generations to its own views or laws even on fundamentals. They not only differ between one society and another but also as between one generation and another of the same society or nation."
In S.R. Bommai v. Union of India (AIR 1994 Sc 1918) the Supreme Court dwelt at length on the basic feature of secularism in the Constitution and justified the proclamations under Article 356 imposing President's Rule in the BJP ruled states in the aftermath of Babri Masjid demolition. In the Ayodhya case (AIR 1995 SC 605), the Supreme Court explained secularism thus:
"It is clear from the constitutional scheme that it guarantees equality in the matter of religion to all individuals and groups irrespective of their faith emphasizing that there is no religion of the State itself. The Preamble of the Constitution of India read in particular with Article 25 to 28 emphasises this aspect and indicates that it is in this manner the concept of secularism embodied in the Constitutional scheme as a creed adopted by the Indian people has to be understood while examining the constitutional validity of any legislation on the touch-stone of the Constitution. The concept of secularism is one facet of the right to equality woven as the central golden thread in the fabric depicting the pattern of the scheme in our Constitution."
In the absence of any precise or formal definition of 'secularism' in the Indian context, several different interpretations were possible. The perceptions of the apex court also have varied from case to case depending upon the Constitution of each Bench. Unlike the west, in India secularism was never born out of the conflict between the Church and the State. It was perhaps rooted in India's own past history and culture, a very likely response to her pluralism or the desire of the founding fathers to be just and fair to all communities irrespective of their numbers. Very often, in our common parlance, the term secularism therefore is used merely as an opposite of 'communalism.'
The original text of the preamble as adopted by the Constituent Assembly did not contain the word 'secular.' Like the word 'socialist', it was also inserted as an additional adjective before 'republic' by the Forty-second Constitutional Amendment Act during the Emergency. The meaning sought to be given to the term has been that of Sarva Dharm Sambhava i.e. treating all religions alike or giving equal respect to all religions, instead of Dharma Nirpeksh or Panth Nirpeksh i.e. State neutrality in matters of religion.
This was the natural and the only possible interpretation because the hard facts of the Indian situation made the western concept of secularism entirely inapplicable. Secularism in our context only means that ours was a nontheocratic state, that the state as the state as such does not have its own religion, that in its eyes all religions are equal and that it would make no distinction between citizens on rounds of religion.
Justice Gajendragarkar defined secularism of the Indian Constitution to mean equality of rights to all citizens as citizens with their religion being entirely irrelevant in the matter. "The State" he said "does not owe loyalty to any particular religion as such; it is not irreligious or antireligious; it gives equal freedom to all religions." Indian secularism sought to establish a rational synthesis between the "legitimate functions of religion and the legitimate and expanding functions of the State." M. C. Setalvad also believed that under a secular State all citizens are to be treated alike and not discrimination against on account of their religion.
Before the forty-second Amendment, the only mention of the word 'secular' in the Constitution was in Article 25 (2) whereon State had been empowered to regulate or restrict any 'secular activity' associated with religious practice. Obviously, here the connotation of 'secular' was 'non-religious' or pertaining to matters other than purely religious. The Forty-second Constitutional Amendment Act which added the word secular did not attempt to define it. It was, however, felt that the addition had the effect only of affirming and clarifying what was believed to be already present as a basic feature of the Constitution. In Kesavanand Bharti and Minerva Mills cases, secularism came to be mentioned as a basic feature. Also, it was inherent in the guarantee of freedom of religion as a fundamental right. In St. Xavier College Society vs. State of Gujarat, it was held by the Supreme Court in 1974 that even though the Constitution did not speak of a secular state there could be no doubt that the Constitution makers wanted to establish such a state.
The Constitution (45th Amendment) Bill sought to lay down that secular and democratic character of the Constitution would be regarded as being among the basic features of the Constitution. However, before the Bill was enacted as the 44th Amendment, the list of basic features was dropped. Also, apart from using the word secular in the preamble, our Constitution does not anywhere categorically say that religion and politics would not be allowed to be mixed or that religious issues, funds and places of worship would not be allowed to be exploited for political ends.
In the Shah Banu case, the law-makers yielded to the pressure of fundamental Muslim opinion and much against the letter and spirit of the Constitutional precepts of secularism or equal justice for all , Muslim Women (Protection of Right of Divorce) Act, 1986 was brought in to nullify the Supreme Court judgment.
In the Bommai case, the Supreme Court upheld the dismissal of the BJP governments on the ground of threat to 'secularism' which it held to be a basic feature of the Constitution.
Notwithstanding anything, the only operative interpretation of the term 'secular' in Indian Constitution Law now would be what can be gathered from the different provisions of the Constitution e.g. Articles 14, 15, 16, 19, 25, to 28, 44 etc. The preamble itself even in its original unamended form contained the concept of liberty inter alia that of belief, faith and worship. In other words, it stood for a solemn commitment to religious freedom for all. This was reinforced by the principles of equality of status and opportunity and of fraternity among all the people of India.
The vision of the founding fathers was that of a nation transcending all diversities of religion, caste and creed. They were not hostile to religion but they hoped that it would be possible to forge political unity and that religious differences would not hamper nation building. The Constitution envisaged a new social order free from communal conflicts and based on Justice, social, economic and political. It visualised a polity under which laws would not discriminate between citizens on grounds of religion, caste or the like. The Constitution sought to establish a 'secular' order under which the majority of the population did not enjoy any special privileges or preferential treatment at the hands of the State and the 'religious' rights of the minorities were protected in different ways.
It seems necessary that the term secularism be clearly defined in the Constitution itself, firmer legislation passed and already existing legislation firmly implemented for preventing misuse of religion for political purposes by any party or person. (For the abortive attempt to amend the Constitution by the Constitution (80th Amendment) Bill. 1993 and for a fuller discussion of the topic see Subhash C. Kashyap, Delinking Religion and Politics, New Delhi, 1993.)
An academic definition of the concept of secularism in the Indian context has been attempted by Donald Eugene Smith in the following words.
"The secular state is a state which gives individual and corporate freedom of religion, is not constitutionally connected to a particular religion, nor does it seek either to promote or interfere with religion".
As Justice Desai put it, a secular state deals with the individual as a citizen irrespective of his religion, is not connected to a particular religion nor does it seek to promote or interfere with religious affairs except when their management involves crime fraud or becomes a threat to unity and integrity of the State.
Delivering his judgement in Ziyauddin Burhammudin Bukhari Vs. Brijmohan Ramdas Mehra and Bros. (1975 Suppl. S.C.R. 281) Justice M.H. Beg said:
"The secular state, rising above all differences of religion, attempts to secure the good of all its citizens irrespective of their religious beliefs and practices. It is neutral or impartial in extending its benefits to citizens of all castes and creeds. Maitland has pointed out that such a state has to ensure, through its laws that the existence or exercise of political and civil right or the right or capacity to occupy any office or position under it or to perform any public duty connected with it does not depend upon the profession or practice of any particular religion.
Our Constitution and the laws framed thereunder leave citizens free to work out happy and harmonious relationships between their religious and the quite separate secular fields of law and politics. But they do not permit an unjustifiable invasion of what belongs to one sphere by what appertains really to another. It is for courts to determine, in a case of dispute, whether any sphere was or was not properly interfered with in accordance with the Constitution, even by a purported law."
Anything that is pernicious and exploitative cannot be allowed to remain outside the control of law simply because it is paraded under the garb of religion.
Justices Gajendragadkar, Dhawan and Beg found secularism practised by ancient Hindu society and equally traceable to Islamic jurisprudene. Justice Beg suggested that "a happy harmony and synthesis of the best in secularism and religion" was possible. A theory of secularism could be built on ancient jurisprudence. In Keshvanand Bharti Case (AIR 1973 SC 1461), secularism was held to be part of the basic structure. Quoting from Manu and Parashara, Justice Beg, however said:
"Even our ancient jurists recognised the principles that one generation has no right to tie down future generations to its own views or laws even on fundamentals. They not only differ between one society and another but also as between one generation and another of the same society or nation."
In S.R. Bommai v. Union of India (AIR 1994 Sc 1918) the Supreme Court dwelt at length on the basic feature of secularism in the Constitution and justified the proclamations under Article 356 imposing President's Rule in the BJP ruled states in the aftermath of Babri Masjid demolition. In the Ayodhya case (AIR 1995 SC 605), the Supreme Court explained secularism thus:
"It is clear from the constitutional scheme that it guarantees equality in the matter of religion to all individuals and groups irrespective of their faith emphasizing that there is no religion of the State itself. The Preamble of the Constitution of India read in particular with Article 25 to 28 emphasises this aspect and indicates that it is in this manner the concept of secularism embodied in the Constitutional scheme as a creed adopted by the Indian people has to be understood while examining the constitutional validity of any legislation on the touch-stone of the Constitution. The concept of secularism is one facet of the right to equality woven as the central golden thread in the fabric depicting the pattern of the scheme in our Constitution."
In the absence of any precise or formal definition of 'secularism' in the Indian context, several different interpretations were possible. The perceptions of the apex court also have varied from case to case depending upon the Constitution of each Bench. Unlike the west, in India secularism was never born out of the conflict between the Church and the State. It was perhaps rooted in India's own past history and culture, a very likely response to her pluralism or the desire of the founding fathers to be just and fair to all communities irrespective of their numbers. Very often, in our common parlance, the term secularism therefore is used merely as an opposite of 'communalism.'
The original text of the preamble as adopted by the Constituent Assembly did not contain the word 'secular.' Like the word 'socialist', it was also inserted as an additional adjective before 'republic' by the Forty-second Constitutional Amendment Act during the Emergency. The meaning sought to be given to the term has been that of Sarva Dharm Sambhava i.e. treating all religions alike or giving equal respect to all religions, instead of Dharma Nirpeksh or Panth Nirpeksh i.e. State neutrality in matters of religion.
This was the natural and the only possible interpretation because the hard facts of the Indian situation made the western concept of secularism entirely inapplicable. Secularism in our context only means that ours was a nontheocratic state, that the state as the state as such does not have its own religion, that in its eyes all religions are equal and that it would make no distinction between citizens on rounds of religion.
Justice Gajendragarkar defined secularism of the Indian Constitution to mean equality of rights to all citizens as citizens with their religion being entirely irrelevant in the matter. "The State" he said "does not owe loyalty to any particular religion as such; it is not irreligious or antireligious; it gives equal freedom to all religions." Indian secularism sought to establish a rational synthesis between the "legitimate functions of religion and the legitimate and expanding functions of the State." M. C. Setalvad also believed that under a secular State all citizens are to be treated alike and not discrimination against on account of their religion.
Before the forty-second Amendment, the only mention of the word 'secular' in the Constitution was in Article 25 (2) whereon State had been empowered to regulate or restrict any 'secular activity' associated with religious practice. Obviously, here the connotation of 'secular' was 'non-religious' or pertaining to matters other than purely religious. The Forty-second Constitutional Amendment Act which added the word secular did not attempt to define it. It was, however, felt that the addition had the effect only of affirming and clarifying what was believed to be already present as a basic feature of the Constitution. In Kesavanand Bharti and Minerva Mills cases, secularism came to be mentioned as a basic feature. Also, it was inherent in the guarantee of freedom of religion as a fundamental right. In St. Xavier College Society vs. State of Gujarat, it was held by the Supreme Court in 1974 that even though the Constitution did not speak of a secular state there could be no doubt that the Constitution makers wanted to establish such a state.
The Constitution (45th Amendment) Bill sought to lay down that secular and democratic character of the Constitution would be regarded as being among the basic features of the Constitution. However, before the Bill was enacted as the 44th Amendment, the list of basic features was dropped. Also, apart from using the word secular in the preamble, our Constitution does not anywhere categorically say that religion and politics would not be allowed to be mixed or that religious issues, funds and places of worship would not be allowed to be exploited for political ends.
In the Shah Banu case, the law-makers yielded to the pressure of fundamental Muslim opinion and much against the letter and spirit of the Constitutional precepts of secularism or equal justice for all , Muslim Women (Protection of Right of Divorce) Act, 1986 was brought in to nullify the Supreme Court judgment.
In the Bommai case, the Supreme Court upheld the dismissal of the BJP governments on the ground of threat to 'secularism' which it held to be a basic feature of the Constitution.
Notwithstanding anything, the only operative interpretation of the term 'secular' in Indian Constitution Law now would be what can be gathered from the different provisions of the Constitution e.g. Articles 14, 15, 16, 19, 25, to 28, 44 etc. The preamble itself even in its original unamended form contained the concept of liberty inter alia that of belief, faith and worship. In other words, it stood for a solemn commitment to religious freedom for all. This was reinforced by the principles of equality of status and opportunity and of fraternity among all the people of India.
The vision of the founding fathers was that of a nation transcending all diversities of religion, caste and creed. They were not hostile to religion but they hoped that it would be possible to forge political unity and that religious differences would not hamper nation building. The Constitution envisaged a new social order free from communal conflicts and based on Justice, social, economic and political. It visualised a polity under which laws would not discriminate between citizens on grounds of religion, caste or the like. The Constitution sought to establish a 'secular' order under which the majority of the population did not enjoy any special privileges or preferential treatment at the hands of the State and the 'religious' rights of the minorities were protected in different ways.
It seems necessary that the term secularism be clearly defined in the Constitution itself, firmer legislation passed and already existing legislation firmly implemented for preventing misuse of religion for political purposes by any party or person. (For the abortive attempt to amend the Constitution by the Constitution (80th Amendment) Bill. 1993 and for a fuller discussion of the topic see Subhash C. Kashyap, Delinking Religion and Politics, New Delhi, 1993.)
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