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Tarun Arora - Baba Farid Law College

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(Introduction, Meaning and Definitions of Religion, Meaning and Definitions of Secularism, Aspects of Secularism- Positive Freedom, Negative Freedom & Neutral Freedom)

'WE, THE PEOPLE OF INDIA, having solemnly resolved to constitute India into a SOVEREIGN SOCIALIST SECULAR DEMOCRATIC REPUBLIC and to secure to all its citizens:
JUSTICE, social, economic and political.
LIBERTY of thought, expression, belief, faith and worship.
EQUALITY of status and opportunity, and to promote among all;
FRATERNITY assuring the dignity of the individual and the unity of the Nation"
IN OUR CONSTITUENT ASSEMBLY this 26/11/1949, do HEREBY ADOPT,
ENACT AND GIVE TO OURSELVES THIS CONSTITUTION'.

The Preamble to the Constitution of India signifies that India is a secular state. The Preamble reflects the way of life adopted by Indian citizens for themselves after independence. In fact every civilization has also been a mirror of way of life as well as reflecting movement of human spirit. Religion in each civilizastion has indicated about the faith of human beings in absolute values and a way of life to realize them.

Religious faith is continuously providing the passion to preserve in the way of life and if it declines, obedience degenerates into habit and habit slowly withers way. Therefore laws, customs, conventions and fashions etc. are not the only means of social control but the religion and morality also formulate and shape the human behavior. Religion and morality are the most influential forces of social control as well as the most effective guides of the human behavior. The social life of a man in addition of its economics, political, philosophical, scientific and other aspects, has also religious aspects. Religion is the major concern of man. Man is always having religious quest which makes him able to become a restless creature even beyond the satisfaction of his physical needs. Religion revolves around man’s faith in the supernatural forces. Religion is concrete experience which is associated with emotions, especially with fear, awe or reverence. Many societies have a wide range of institutions connected with religion and a body of special officials, with forms or worship, ceremonies, sacred objects titles, pilgrimages, and the like. Looking at the definition of religion by Ogburn, "Religion is an attitude towards super human power, it may be submitted that religion explains the relation of man with god and also elaborate rules of conduct." Further Maxmuller defines, "Religion as a mental faculty or disposition which enables man to apprehend the infinite." Maxmuller has attempted to define religion as a matter of belief in supernatural forces. Man believes that he is at the mercy of the supernatural forces and shows his subordination to them by means of prayers, hymns, and other acts, man believes that his disrespect and negligence towards religion would bring disaster so he engaged in endless endeavour to adjust himself with the supernatural. He attempts to do only the acts which are righteous and sacred to please the supernatural. Behaving in accordance with the norms laid down by religion is righteous and going against them is ‘sinful’

The same approach can also be seen in the views expressed by the supporters of ‘functional theory’. According to Kingslay Davis, Religion is the part of society. It is common to the group; its beliefs and practices are acquired by each individual as a member of the group. The worship of gods is a public matter supported by the community and performed for communal purposes. The other supporters of functional theory also confirm the same view that religion is a universal, permanent, pervasive and perennial institution and it has a vital function in maintaining the social system as a whole The are many religions in the world and the questions at this juncture arise-
- Which religion should be followed by a person?
- Can a State compel its citizens to follow a particular religion?
- Can a State have its own religion?
- Can a Government of a State give preferential treatment to the followers of a particular religion?

The answer to all these questions is negative if the has adopted the theory of secularism. A secular state is neither supposed to compel its citizens to adopt a particular religion nor it can give preferential treatment to the followers of particular religion. Secularism eliminates God from the matters of the state.

India is a secular country. The term ‘secular’ denotes the threefold relationship among man, state and religion. The word Secular has not been defined or explained under the Constitution in 1950 or in 1976 when it was made part of the preamble. A Secular State means that the one that protects all religions equally and does not uphold any religion as the State religion. Unlike in England where the Queen is the Head of the Protestant Church in India there is no provision to make any religion the 'established Church'. The state observes an attitude of neutrality and impartiality towards all religions. It is assumed that the secular state, howsoever constructed, will minimally have to contend with and respond to each of the demands of equality, liberty and neutrality. The liberal claim rests on the impossibility of different religious communities in the same democratic polity to live together in harmony, without some model of secularism that embodies the normative force of liberty, equality and neutrality. Random House Dictionary defines the term secularism As a system of social or political philosophy that rejects all forms of religious faiths. In the words of Asgar Ali Engineer, Secularism means liberation of politics from the hegemony of religion. Oxford Advanced Learner’s Dictionary defined the term secularism, as Belief that morality and education etc. should not be based on religion.

Donald E. Smith, Professor of Political Science in Pennsylvania University provided what he regarded as a working definition of a secular state. This was in his book India as a Secular State. "The secular State is a State which guarantees individual and corporate freedom of religion, deals with the individual as a citizen irrespective of his religion, is not constitutionally connected to a particular religion, nor does it seek to promote or interfere with religion".
The definition given by Smith reflects three aspects of secularism in the form of inter-related relations as:
- Religion and Individual
- Individual and State
- State and Religion

These relations can be comprehensively elaborate by this triangle. These three associates are the three sides of a tri-angle, touching each other necessarily at three points and creating their mutually related angles. These three sets of angular relationship contain the total of religious freedom available in a society.

First of all these three angles, reflects the relationship between the religion and individuals. This relation contains’ positive freedom of religion’ which implies ‘reasonable unrestrained liberty of believing & practicing one’s religion.’ In other words, every person should be free to follow any religion, and to act upon its teachings and reject all other without any interference from the state. Religious freedom is the soul of principle of liberty enshrined in the Preamble to the Constitution of India.
The second angular relation reflects the relationship between the state and individual. It contains ‘negative freedom of religion.’ By ‘negative freedom of religion’ mean ‘absence of restrains, discriminations, liabilities and disabilities which a citizen might have been otherwise subject to.’

The third angular relation which emanates from the relationship between the state and its religion. It contains ‘neutral freedom of religion.’ It implies that state has no religion of its own and attitude of indifference towards all the religions by the state.
India is a secular state. The idea of secularism is one of the basic features of the Indian constitution. The Supreme Court in St. Xavier’s College Vs. State of Gujrat observed, India is a secular state, secularism eliminates god from the matter of the state affairs, and ensures that none shall be discriminated against on the ground of religion.

Positive freedom of religion: Religion and Individual
One of the basic civil liberties of an individual is the liberty of his mind and his conscience. Preservation of liberty of the mind, conscience and thought being the greatest liberty alone can make possible and meaningful other liberties. If the mind and conscience of human is in chain, all the other liberties would become meaningless. A free mind and a free conscience, therefore is the essential, integral and indispensable foundation of all other civil liberties.

The Constitution of India, being the supreme law of the nation recognizes the religious liberty of both the individuals as well as associations of individual united by common beliefs, practices & discipline. The individual and collective aspects of freedom of religion can be summarized in this order:

Individual Freedom of Religion- The Constitution of India recognizes the freedom to profess, practice and propagate the religion under Article 25. Part (1) of Article 25 secures to every freedom of conscience: and the right to (i) profess religion; (ii) practice religion; and (iii) propagate religion. The term ‘religion’ has not defined in the constitution but the meaning given by the Supreme Court of India to the religion can be referred here, the Supreme Court in Commissioner, H.R.E. Vs. L.T. Swammiar held:

Religion is a matter of faith with individuals or communities and it is not necessarily theistic. A religion has its basis in a system of beliefs or doctrines, which are regarded by those who profess that religion as conducive to their spiritual well being. A religion may not only lay down a code of ethnical rules for its followers to accept, it might prescribe rituals and observances, ceremonies and modes of worship, which are regarded as integral parts of religion and these forms and observance might extend even to matters of food and dress.

The freedom of religion guarranted under Indian constitution is not confined to its citizens but extends to ‘all persons including aliens.’ This point, was underlined by the Supreme Court in RatiLal Panchand Vs. State of Bombay as it is very important because substantial number of foreign Christian missionaries in India were engaged at that time in propagating their faith among the adherents of other religions.

The Constitution thus declares that every person has a fundamental right not only to hold whatever religious belief commend themselves to his judgement, but also to express his beliefs in such overt acts, as are prescribed by his religion and propagate its tenets among others. The exercise of this right is, however subject to ‘public order, morality and public health.’ Here the constitution succinctly expresses the limitations on religious liberty that has been evolved by judicial pronouncements in the United States and Australia. In fact, the framers of the Indian constitution attempted to establish a delicate balance between ‘essential interference and impartial interference’ on the part of the state. They kept in consideration the possibilities of arising out of circumstances in which the government may have to impose restraints on the freedoms of individuals in collective interests.

Accordingly Article 25 (2) provides broad sweeping power of interference to the state in religious matters. This Article imposes drastic limitations on the rights guaranteed under Article 25(1) and reflects the peculiar needs of Indian society. It is important to mention here that law providing for the very extensive supervision by the state about temple administration has been enacted by virtue of this provision. Here it would not be out place to state that the extensive modification Hindu personal law (marriage, divorce, adoption, succession etc.) has been effected by legislation based on the provision permitting measures of social welfare and social reform. There is an interesting case on the validity of the Bombay Prevention of Hindu Bigamous Marriages Act of 1946, where the validity was upheld by the Bombay High Court. Chief Justice Chagla (Muslim, later appointed as Indian Ambassador to US) delivered his judgement as follows: it is only with very considerable hesitation that I would like to speak bout Hindu religion, but it is rather difficult to accept the proposition that polygamy is an integral part of Hindu religion. It is perfectly true that Hindu religion recognizes the necessity of a son for religious efficacy and spiritual salvation. That same religion also recognizes the institution of adoption. Therefore the Hindu religion provides for the continuation of the line of a Hindu male within the framework of monogamy.

The learned judge went on to argue, that even assuming that polygamy is a recognized institution according to Hindu religious practice, the right of the state to enact this legislation could not be disputed. The enforcement of monogamy among Hindu is a measure of social reform which the state is empowered to legislate by Article 25 (2) (b) ‘notwithstanding the fact that it may interfere with the right of a citizen freely to profess, practice and propagate religion.

The same constitutional provision permits legislation opening Hindu religious institutions of a public character to all classes and sections of India. Harijan temple entry laws have been enacted by many of the state legislatures. The Central Untouchability (Offences) Act of 1955 provides that any attempt to prevent Harijans from exercising their right to enter the temple is punishable with imprisonment or fine or with both. Therefore it must be clear that a secular civil law is equally applicable to all Indian citizens.

Collective Freedom of Religion- Religious denominations as well as individuals have certain important rights spelt out under Article 26. The term ‘religious denomination’ has not been defined under the Constitution. The Hon’ble Supreme Court has accepted the definition given in Oxford Dictionary, that defines as ‘a collection of individuals classed together under the same name a religious sect of body having a common faith and organization and designated by a distinctive name.’ The Supreme Court in number of cases held that Arya Smaj, Anandmarga, Vaishanave, The followers of Madhawacharya and other religious teachers, though not separate religions, yet these are separate religious denomination and enjoys the protection under Article 26 of the Constitution.

The right under Article 26(a) is a group right and is available to everhy religious denomination. Clause (b) of Article 26 guarantees to every religious denomination the right to manage its own affairs in matters of religion. The expression ‘matters of religion’ includes ‘religious practices, rites and ceremonies essential for the practicing of religion.’ An important case that involved the right of a religious denomination to manage its own affairs in matters of religion was Venkataramana Devaru Vs. Stae of Mysore . In this matter, Venkatramana temple was belonging to the Gowda Saraswath Brahman Community. The Madras Temple Entry Authorization Act, supported by Article 25(2)(b) of the Constitution, threw open all Hindu public temples in the state to Harijans. The trustees of this denominational temple refused admission to Harijans on the ground that the caste of the prospective worshipper was a relevant matter of religion according to scriptural authority, and that under Article 26(b) of the Constitution they had the right to manage their own affairs in matters of religion. The Supreme Court admitted that this was a matter of religion, but when it faces conflict with Article 25(2) (b), it approved a compromise arrangement heavily weighted in favour of rights of Harijans and a token concession to the right of a religious denomination to exercise internal autonomy
Further Article 26© and (d) recognize the right of a religious denomination to own, acquire and administer movable and immovable property in accordance with law. However it was held in Surya Pal Singh Vs. State of U.P. that this guarantee did not imply that such property was not liable to compulsory acquisition under the U.P. Abolition of Zamindari Act. Similarly in Orissa, land reforms resulted in the expropriation of a village and surrounding agricultural land dedicated to the maintenance of a Hindu deity. Since compensation was paid, the High Court held that there was only a change in the form of the property.
Article 30 deals with another aspect of collective freedom of religion:

(1) All minorities, whether based on religion or language, shall have the right to establish and administer educational institutions of their choice.

(2) The state shall not, in granting aid to educational institutions, discriminate against any educational institution on the ground that it is under the management of a minority, whether based on religion or language.

The object behind Article 29 & 30 is the recognition and preservation of the different types of people, with diverse languages and different beliefs, which constitute the essence of secularism in India.

Negative Freedom of Religion: Individual and State
The second component of secular state, the concept of citizenship is based on the idea that the individual, not the group is the basic unit. The individual is confronted by the state which imposes duties and responsibilities upon him; in return the state guarantees rights and grants privileges to the individual. The sum of these individual- state relationships constitutes the meaning of citizenship. There are numbers of provisions dealing with citizen’s relations with state in social spheres. The provisions based on non discrimination in political functions have also been dealt with under the Constitution.

Neutral Freedom of Religion: State & Religion
Separation of state and religion is the third principle of secular state that preserves the integrity of the other two relationships, freedom of religion and citizenship. Here one must be conscious about the relationship of the religion and the state. The institution of religion came in existence prior to state. It came into being to establish a social order in ancient times because at that time there was neither any law nor any institution like state was in existence. The main purpose of institution of religion was to regulate the activities of individual on the basis of religion and religion was the supreme law. The institution of state came too much later- so in present scenario, the society is based on the delicate balance maintained between both of these institutions namely state and religion. Both are independent in their spheres and it must be so, Because centralization of powers in one agency would lead to anarchism. Once the principle of separation of state and religion is abandoned, the way is open for state interference in the individual’s religions liberty, and for state discrimination against him if he happens to dissent from the official creed.

Earlier religion was considered superior to state, because it played an important role in regulating actions of human beings and it was the way for human beings towards the god but in present scenario, it must be kept in mind that the first role is being played by the state and as regards to the relation of individual with god, the domain is totally free. The religion has become subordinate in these days and the state is the main unit of the society. So there are number of important areas in which state interference in religious matter is permitted by the Constitution.

Is India a Secular State
Looking at the various constitutional provisions, the answer is ‘Yes’. The ideals of secular state have clearly been embodied under the Indian Constitution and the provisions are being implemented in substantial measure. But the circumstances after independence have posed a challenge before secularism of India for a number of times. Sometimes it is also alleged that by Uniform Civil Code, the existence of minorities in India is in danger or it is an assault on the identity of minorities. India being still a traditional society that contains not one, but many traditions owing their origin in part to the different religions that exist here. While India carries with it many traditions it has managed to retain the secular character of its polity, while in many countries especially from the third world, a secular authority has crumbled in face of conflicting traditions. In sum up, it may be submitted that it is beyond the scope of this paper to outline the implications of the conceptual failings of secularism in India; nonetheless we must attempt to raise issues and questions for continuing study of the problem. Clearly the judiciary in India is a significant site where contests under the banner of secularism have been taking place over the last fifty and odd year. Though the judiciary is trying to strike the balance in a harmonious way but the people of India should not forget the dream of framers of the constitution and the ancient philosophy of ‘Sarva Dharma Sambhavah’.

Bibliography
Audi Robert ‘The Separation of Church and State and the Obligations of Citizenship’, Philosophy and Public Affairs, Vol 18, No 3 (Summer, 1989)
Bhargava Rajeev, Secularism and Its Critics, (Oxford University Press, Delhi, 1998)

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