|
(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)
|
Secularism
under the Constitutional Framework of India
More
Articles:
The
author can be reached at: Tarunarora@legalserviceindia.com /
