As time passed, people's point of view in understanding the societal
functioning took a drastic change. This change started questioning every
fundamental order of nature, religion, law, science, art, culture, and customs
around the world. This nature of questioning started to fulfil the quenching
thirst to knowledge where humans preyed upon the unimaginable reasoning capacity
of our thoughts.
This thoughtfulness brought answers to many questions and these answers
structured a conditioned way of life in society and built history along time.
When there emerged a question on a legal plane, jurisprudence has always acted
as a tool to answer it. This jurisprudential view on history, answered many
contemporary questions, and one question among the many is the question of
secularism in the Indian history.
The word secular has been through a great debate in the Indian history. These
debates led to the removal and acceptance of the term secular in the preamble of
the Indian constitution. So, starting from the ancient Era to the present cases
the term secular has been through many opinions.
This paper contains many opinions about the word secular in the preamble of the
Indian constitution. This paper uses jurisprudence as a tool to analyse and to
answer the question of secular character of democratic India.
In this independent India, the Indian nation-state has seen multiple changes,
leaders come and go, many amendments being implemented and stripped off, many
topics concerning legal, social, political and economics being debated on. One
among these topics which has been on the spotlight for many years and has become
an important topic in recent years is the concept of secularism in the Indian
The question of secularism in a multi-religious and multi-cultural India has
always stayed a question of never-ending answer in the societal plane, even when
the legal plane through constitution tried its best to ensure it in many
instances. This paper uses jurisprudential view as a scope to find the answer to
the rejection of secularism in the constitutional debates, and for its proposal
and acceptance in the 42nd amendment act,1976 by referring and understanding the
history of the secular Indian state long before the arrival of the colonisers.
In this paper the term 'secular' is analysed in the jurisprudential aspect.
Jurisprudence means knowledge of law or skill in law. In secularism,
jurisprudence means discussing about the historical aspect, the growth, and the
contribution of many throughout history which has led to the current scenario.
The philosophical thought started to grow in a fast pace during the same time it
started to grow in the western world i.e., during the fifth B.C. Gautama and
Mahavira are some in many who would be the best examples to quotes when talking
about secularism in the Indian context, because during their period the societal
concept of cast held a powerful place.
Being born in one of the highest castes of the time the Kshatriya i.e., the
royal warrior group, they strongly opposed the concept of racial based
discrimination and caste-based discrimination, which forms a basis to prove that
the Indian society had the concept of secularism long before the term or concept
of secularism emerged in the west.
Then comes in the line the great emperor Ashoka who had a humanitarian approach
towards religion. After converting to Buddhism, he grew a very high religious
tolerance and had only one thought and principle that the people should follow
Ahimsa, the concept of non-violence. There also prevailed philosophical schools
of thought which are of two mother chains namely astik and nastik schools, one
among the six nastik school was charvaka, the school of materialism which
rejected any belief and concept regarding the body of God and religion.
The concept of secularism is a trademark of the medieval Indian nation. 'There
is no Hindu and no Musselman, as there is no distinction between man and man' by
guru Nanak is a one in many exemplars statement to get a glimpse on the secular
Indian past. Akbar who promoted religious unity and his propagation of 'Din-e-Illahi'
and 'Sulh-Kul' respectively meaning divine faith and peace with all adds to the
fact of secular Indian history.
British Colonial Era:
During the British rule in India, it is observed that Secularism was
artificially imposed by the colonial government. In England the only religion
which existed was Christianity but in India there were both Hinduism and Islam.
So, it was difficult for the colonizers to officiate a particular religion in
India. Both Hinduism and Islam were heathen. The British were unable to force
Christianity because it will make the colony ungovernable. Churches administered
the officials and the government back in Britain.
After arriving in India, they felt uncomfortable in associating themselves with
worship houses like mosques and temples to which they assigned Indian trustees
and it decided to separate the religion from the state. They adopted the policy
which was called colonial secularism. There are three things which was followed
by the British government, First the colonial government would not endorse with
the local religion.
Second the colonial government would protect minority religions and Third the
British government tacitly encouraged Christian missionaries to preach
Christianity and to convert people from Hinduism or Islam to Christianity.
Therefore, this was the situation of secularism during the colonial British era
Constitution Assembly Debate:
The concept of secularism existed in the India constitution before the 42nd
amendment act. It was first brought into limelight when the draft preamble was
debated in CAD on November 15, 1948.prof. K.T. Shah was a graduate from London
school of economics and a professor of economics at Mysore university. He was
member of the congress experts committee set up in 1946 to prepare preliminary
materials for the constituent assembly.
Prof. K.T. Shah was the member of CAD who proposed the word 'secular' to be
added in the preamble and added that the term 'union' stands for aggregate of
states and states should be federal, secular, and socialist. He wanted the
character of the state to be secular because of the past bitter experience.
And he wanted the state to ensure the citizens of the nation that the governance
of the country and disputes between man and man or citizen and government will
not be influenced by those considerations which will result in injustice or
inequality as between the citizens of India.  There was difference in view of
opinion about the word 'secular' in the constitution assembly debate.
B.R. Ambedkar stated that Shah's amendment cannot be added. He stated that the
citizens of the state should decide the policy followed by the state in social
and economic matters and it should not be mentioned in the constitution if
mentioned it will destroy the democracy together. And he stated that the
amendment is purely superfluous. V.K. Krishna Menon drafted the preamble
before it was debated in the CAD.
Jawaharlal Nehru who was the first prime minister of India, had asked Menon to
"go a little slow" on ''socialist'' and ''secular'', but that does not mean
India is not socialist and secular. Nehru did not want the concept nor the
word secular in the Preamble of the Indian constitution because he felt that
there are divergent points of view and also there was not enough of a consensus
on these issues.
The word which was omitted by CAD while framing the constitution was added to
the preamble by the 42nd amendment act, 1976. This amendment is also known as
the Mini-Constitution. And this is also known as the most important amendment in
the history of Indian constitution. This amendment was brought by the Indira
Gandhi's government during emergency in the year of 1976.
This act is the most contradictory act against the CAD i.e., Constitutional
assembly debate. This amendment added the word 'secular' in the preamble stating
that India is a secular state and there is no influence of any religion in the
governance of the state. Many important amendments of the constitution were a
part of 42nd amendment act, 1976.
- Indira Gandhi V. Raj Narayan
The basic feature of the secularism was stated by the supreme court that the
state shall have no religion of its own and all persons of the country shall
be equally entitled to the freedom of their conscience and have the right to
freely profess, practice and propagate any religion.
- St. Xaviers college V. State of Gujrat
The supreme court in this case stated that India is neither anti -God, nor
pro-God; it treats alike the devout, the antagonistic and the atheist.
- Sardar Syedna Taher Saifuddin Saheb V. State of Bombay
According to the supreme court, the founding fathers built Indian
constitution on the concept of secularism and emphasized the secular nature
of the Indian democracy.
- Kesavananda Bharathi V. State of Kerala
The supreme court stated that secularism is the basic structure of the
Indian constitution. Secularism is the character of the Indian constitution
and a basic ingredient of the basic structure.
- Aruna Roy V. Union of India
The supreme court stated that secularism under the Indian constitution
should be understood with a positive meaning that is developing,
understanding, and respect towards different religions.
- Abhiram Singh V. C.D. Commachem
The Court held that secularism does not say that the State should stay away
from religion instead it should give equal treatment to every religion.
Religion and caste are vital aspects of our society, and it is not possible
to separate them completely from politics.
- S.R. Bommai V. Union of India
The supreme court stated that secularism means equal treatment of all
religions. It held that the word 'secular' which was inserted in the
Preamble by the 42nd Amendment, highlights the fundamental rights guaranteed
India after the recent change in its political leadership, has seen a surge in
religious oriented issues. It has questioned the secular nature of the society
of the independent Indian state. There have been several issues recently and to
name a few they include:
- The famous and recent hijab issue/controversy that emerged in a school
in Karnataka, which the supreme court passed a split verdict imposing a ban
on wearing a hijab in educational institutions in Karnataka.
- The Sabari Malia issue in 2018 where the supreme court stated that "any
exception placed on women because of biological differences violates the
Constitution." Specifically, the court held that the ban violated the right
to equality under Article 14 and the right to freedom of religion under
- The CAA,2019 has failed to pass the test of classification under article
14 which leads to violation of secularism by being discriminative and
- On a recent note, MP Dr. Subramaniya swamy filed a plea to remove the
terms secular and socialist from the preamble of the Indian constitution.
This questions the integral nature of the society and promotes modern
religious view on the state.
The evidences might seem to be very least in numbers, but has a firm place in
the history of India, to quote a statement that India is a secular state. This
history answers the question of secularism in India and reveals that India
remains as an example of a secular state. The predecessors of India held
concepts that was inclusive in nature and which was fundamentally built on the
concept of equality and humanity.
They passed down these ideas as building them as different schools of thought or
as a separate religion namely like Buddhism or Jainism. The formation of new
religion or the concept of religious tolerance can be viewed as a product i) of
many societal problems that prevailed at that point of time and ii) when
humanity was used as a scope to view these problems. Then came the post-colonial
era i.e., the independent era where we, the people of India for ourselves built
a nation. A nation that would allow the free movement of region and religious
ideas through and an inclusive nation.
This concept of equality and inclusiveness was proposed and accepted by framing
the constitution to which preamble was used as the fundamental document, even
when there emerged many questions on the fundamental structure of our legal
construct i.e., the Preamble and on the history of India we find ample of
evidences to prove the secular nature and secular history of India. Nayantara
Sahgal a Indian writer, in her recent interview stated that "We are unique in
the world that we are enriched by so many cultures, religions. Now they want to
squash us into one culture. So, it is a dangerous time.
We do not want to lose our richness. We do not want to lose anything . . . all
that Islam has brought us, what Christianity has brought us, what Sikhism has
brought us. Why should we lose all this? We are not all Hindus but we are all
Hindustani." Thus we would like to conclude our paper that India is a
secular state and will be a secular state in future.
- Domenic Marbaniang ,Secularism in India: A Historical Analysis, Lulu
Press, Inc - History ,18th august 2017.
- Md. Mahtab Alam Rizvi, Secularism In India: Retrospect And Prospects:
The Indian Journal of Political Science, Oct.-Dec., 2005, Vol. 66, No. 4
(Oct.-Dec., 2005), pp. 901-914
- Ramesh, Chequered Brilliance: The Many Lives of Krishna Menon
- 1975 AIR, S.C 2299
- AIR 1974 SC 1389
- 1958 AIR 253,1958 SCR 1010
- AIR 1973 SC 1461
- Writ Petition (Civil) No. 98 OF 2002
- 1996 SCC (3) 665, JT 1996 (4) 194
- 1994 AIR 1918, 1994 SCC
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- WP (C) 1470/2019
- Writ Petition (C) No. 645 of 2022