Dissertation - SECULARISMS UNDER THE SHELL OF CONSTITUTION OF INDIA

“SECULARISMS UNDER THE SHELL OF CONSTITUTION OF INDIA”

A DISSERTATION

SUBMITTED TO THE UNIVERSITY OF MUMBAI FOR THE DEGREE OF
LL.M SEM - IV
ROLL NO – 70
GROUP - I

IN CONSTITUTIONAL AND ADMINISTATIVE LAW
(PARTLY BY PAPERS AND PARTLY BY RESEARCH)

SUBMITTED BY
MR. MAYUR AMARSING VALAVI

UNDER THE GUIDANCE OF

PROF. (MRS.) ALKA PATIL
DEPARTMENT OF LAW

UNIVERSITY OF MUMBAI, FORT CAMPUS, MUMBAI- 400 001.
SEPTEMBER 2020

ACKNOWLEDGEMENT

At the outset, I would like to thank God for blessing me with a wonderful family. I
owe the deepest sense of gratitude and indebtedness to my Parents all family
members for their unflagging love, inspiration, encouragement and support
throughout this journey. I would like to convey my heartfelt gratitude and sincere
appreciation to all the people who have helped me during my Post graduate study of
LLM. This dissertation would not have been possible without their support and care.

I take this opportunity to express my deep sense of gratitude to my Mentor Prof. Mrs.
Alka Patil, professor in Constitutional & Administrative Law, Department of Law,
Mumbai, for his constant support, guidance, valuable insights which gave my
research work a complete shape during my Post graduation at Department of Law.
Her perpetual energy and enthusiasm in research extremely motivated me in my
research work. In addition, she was always accessible and willing to help not only to
her students, but also to other young researchers. As a result, research life became
smooth and rewarding for me. She has taught me the true meaning of research in
Law. Her Discipline, sincerity towards work, Punctuality and zeal for perfection have
been a great inspiration for me. She has taught me to focus on solutions to problems
rather than on problems. Her patience, understanding and steady encouragement have
helped me sustain throughout the research work. Mam, your smart ideas and your
bright input have helped me in planning the research on dissertation, in analyzing
data and in organizing the dissertation appropriately. This dissertation would not
have been possible without your extraordinary support.

I owe you lots of gratitude for having shown me how to be an ideal professor, a good
supervisor and a kind person. I earnestly believe that a sturdy building cannot be built

without a strong foundation. I therefore take this opportunity to thank all my teachers
at Sheth K D Highschool, S L Mali Jr. College and A R A College of Pharmacy,
Dhule. I am thankful to Dr. M. N. Saraf, Principal, Bombay College of Pharmacy,
Mumbai, for providing essential facilities for carrying out the research work. I am
also thankful to the Government Law College, Mumbai for taught me true lessons of
the law.

I am extremely grateful to Dr. (Mrs.) Varhadi Mam, Professor and Head, Department
of Law, for timely support in carrying out my research work.

I sincerely acknowledge the help & support provided to me by all my colleagues Adv
Lokeshji, Ashana, Sarwade Sir, Rajesh, Onkar, Mehta Sir, Sherry, and my classmates
during the course of my research work.

I am also grateful to the administrative staff as well as the non-teaching staff of
Department of Law for all their small and big favours. Last, but words are an
inadequate medium to express my deep sense of gratitude to my Parents, Brother and
my Sister who always assure me moral support and their prayers to almighty, their
trust has always inspired me to do my best. They sacrificed their own comfort for my
education. Whatever I have achieved was not possible without their blessings.

Finally, I would like to thank each and every person who in his or her own way has
helped me to complete this dissertation.

Mayur Amarsing Valavi

TABLE OF CONTENTS

CHAPTER TITLE PAGE
NO. NO.

INTRODUCTION TO SECULARISMS 1
1 UNDER THE SHELL OF

CONSTITUTION OF INDIA

2 HINDRANCE OF SECULARISM IN INDIA 79

SECULARISMS UNDER THE 94
CONSTITUTION AND ROLE OF NEHRU
3

IN IMPLIMENTATION

LANDMARK JUDGMENTS ON
4 145

SECULARISMS

5 QUESTIONNAIRES 153

6 CONCLUSION 155

BIBLIOGRAPHY/REFERENCES/LAW/REPORTS/WEB 159

MATERIALS

CHAPTER 1
INTRODUCTION TO SECULARISMS UNDER THE SHELL

OF CONSTITUTION OF INDIA

Abstract

The Dissertation on ‘Secularism’ seems to be highly pertinent at this moment
given the fact that our country is now witnessing fissiparous tendencies apparently
based on religion which increasing the gap between the society. Although the danger
of communalism is not a new phenomenon in the Indian society, as wherever are
diversity in the society, yet it is quite mysterious and embarrassing that even after
more than seven decades of independence and despite a definite proclamation by
the constitution that we are secular, still things are not so bright and cleared in the
mind of society.1

India is a diverse country. Indians can express themselves by different ways in
terms of languages, dialects, cultures and religion. There are multiple socio-cultural
regions, each of them having its strong insight specific to the region; multiple
communities, religion, living styles, habits, behaviour pattern, food, fashion etc. The
Indian diversity has been one of the most fascinating and challenging parts. As any
modern civilization without the shell of Secularisms won’t achieve the hierarchy of
humanity and level of dignity which naturally accepted by the idea of any ideal
society. The concept of living together, with someone, for forever, until death, with
happiness and joy is a sign of healthy civilized society. This concept defines the new
inception of secularisms into the modern society.

Before proceeding further, it is necessary to have an idea of the nature and
meaning of the term ‘secularism’. It is interesting to note that there is no agreed and
precise meaning of ‘secularism’ in our country. As Jawaharlal Nehru wrote in his
autobiography… “no word perhaps in any language is more likely to be interpreted
in different ways by the people as the word ‘religion’. That being the case,
‘secularism’ which is a concept evolved in relation to religion can also not have the
same connotation for all”.1

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Secularism had its origin in the West and developed as a philosophy in reaction
to a strong hold of religion on the state and the necessity of setting up a more elastic
set of moral values for the immediate needs of the developing mercantilist society
in the west. As a concept, it was then equated with rationality, positivism,
mercantilism and utilitarianism.2

British writer George Jacob Holyoake used the term “secularism” for the first
time. Secularism is the most crucial of separating of government organizations, and
the individuals required to signify the Condition, from religious organizations and
religious dignitaries. The idea of secularism furnished the sole reply as the coupling
concrete of Indian social order. Thus, an unfaltering and judicious thinking was
solicited to wean away open life from religion. Religion came to be recognized as a
particular undertaking with no impact on country’s strategies and choices. This
appeared to be the main viable response regarding multi- religious populace of India.

Machiavel (1469-1527) wanted the state and religion to be separated and the
state to be absolutely independent of the church. However, it was in 1851 that
George Jacob Holyoake, in his book, ‘Principles of Secularism’, introduced
secularism as a new ‘ism’ to the world. Holyoake stated that the secularist is
intended to be a reasoned. The term secularism was chosen to express the extension
of free thought to ethics. According to him, secularism has three central tenets:

(i) The improvement of life by material means;
(ii) It is good to do good
(iii) Science was the available providence of humans.2

India is secular. Secularism is a basic feature of the Constitution. The state
treats equally all religious and religious denominations. Religion is a matter of
individual faith and cannot be mixed with secular activities. Secular activities can
be regulated by the state by enacting a law. Secularism is neither anti-god nor anti-
religious. Whenever state facing the matter of religion, the state should be acts as
neutral and treats every religion alike. The doctrine of secularism and freedom of

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religion are the two sides of the same coin. Freedom of religion guaranteed under
article 25 of the Indian Constitution is an extension of doctrine of secularism.

There are two possible models of secularism,

1) There is a complete separation of religion and state to the extent that there is an
‘impassable wall’ between religion and secular spheres. In such a model, there
is no state intervention of religious matters and vice versa.

2) All religions are to be treated equally by the state; in other words, the state is
equi-distant from all religions. This model is also referred to as ‘non-
discriminatory’ and is particularly relevant for multi-religious societies. In
contrast to the former model, the latter allows for state intervention on grounds
of public order and social justice.1

Both the above points are based on Secularism as a modern political and
constitutional principle involves these two basic propositions. Further explained as
the first is, people belonging to different faiths and sects are equal before the law,
the constitution and the government policy. The second requirement is that, there
can be no mixing up of religion and politics. It follows that there can be no
discrimination against any one on the basis of religion or faith nor is there room for
the hegemony of one religion or majoritarian religious sentiments and aspirations.
It is in this double sense – no discrimination against any one on grounds of faith and
separation of religion from politics – that our constitution safeguards secularism.1

In short, we can say that secularism emerged in the West as a concept
antagonistic to religion and as a by-product of materialism and industrialism. Many
Indian and Western Marxists continue to think that religion is dope and the progress
of human society can be made if religion is completely expunged from the human
mind.2

Secularism is the essence of our democratic system. Secularism and the
brotherhood or comradeship is a golden thread that runs into the entire constitutional

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scheme. In the Indian context, secularism has been interpreted as the equal
treatment of all religions and faiths. In particular, the most significant impact of
religion in everyday life of an Indian citizen is in matters of civil law – marriage,
divorce, inheritance and others. The acceptance of any human behaviour within any
society without hesitations and undue influence which represent the fulfilment of
satisfaction. The concept of secularisms is generally defined by many of scholars as
“Secularism is a belief system that rejects religion, or the belief that religion should
not be part of the affairs of the state or part of public education. The principles of
separation of temple/mosque/church and state and of keeping religion out of the
public-school system are an example of secularism”.3

Religion, in India is said to be constitutive of society, and this makes
secularism extremely difficult to define in the Indian context, and still more difficult
to outline as a programme of action. All that can be done is to create appropriate
legal institutions.2

It is a matter of great concern that secularism is struggling for survival in our
country now. The anti-thesis of secularism is communalism, which is gaining
momentum in our society at an alarming pace. The mixing of religion with politics
and the dangerous growth of communal parties pose a major threat of the secular
framework of our country. India is a secular state and yet communalism continues
to shape its policies. Frequent occurrences of violence in the name of religion give
fatal blows to the very existence of secularism. There have been reports that some
state governments were partisan and were instrumental in aggravating communal
violence. Such shocking incidents would undoubtedly affect the secular credentials
of our country. The divorce of politics from religion is the need of the hour and
unless this task is expeditiously accomplished, secularism is bound to have its last
breath in our country. The constitution of India does not clearly and explicitly and
hence there is hardly any remedy if the state acts in an un secular way.1

The Indian concept of secularism is full of contradictions and therefore, is
unable to provide a clear, un-ambiguous guidelines either to the individual or to the
state. As a consequence, the religious values continue to dominate the day-to-day
affairs and, in the process, generate tension because of plurality of religious views.

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In such circumstances, it is imperative that serious attention is paid to revive
secularism and curb communalism. A secular state in India is not only necessary
from the point of view of the religious minorities by is in the interest of all the people
in India including the majority community. In order to permanently relegate the
recurrence of communal riots, it is necessary to advance the concept of secularism.
We need to progress to a stage where politics is completely free of religion and
religious freedom of an individual is allowed only to the extent that is does not
interfere with the personal freedom of others and betterment of the society in
general.1

With that end in view, we need to have a second look at the provisions of the
constitution concerning secularism. At present, there is hardly any remedy available
to us against the state abandoning secular path or for using the organs of the state
for religious and communal purposes. There is nothing in the constitution to stop
formation and functioning of communal organizations and groups and their
participation in elections. Such loopholes need to be plugged without any
procrastination. Over and above all these measures, there is need for positive change
in the attitude and outlook of the society towards Secularism. In a multi-religious,
multiracial and multi-cultural developing society like India, it is necessary that
rulers, leaders, administrators and citizens have very clear ideas about Secularism.
If we are to evolve a secular state, we need to produce secular minds.1 The basic
principles accepted by the Indian Constitution and the critical study of secularism
under the shell of constitution of India is explained in this study of dissertation.2

Significance of Study

India has a long tradition and practice of secularism. It was not only a cradle
of many religions but also of progressive thoughts, Charvakas or Lokayatas an
heterodox Indian philosophy opposed orthodoxic religious practices. Gautama
Buddha and Mahavira propagated tolerance and nonviolence and equal respect to
all. Social reformers like Raja Ram Mohan Roy who opposed the inhuman custom
of Sati, championed secularization of society and positive interference of the state
with a view to curbing antisocial acts of religion. The advocacy of religious

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tolerance and equal respect for all religions was, in itself a progressive step till
independence in India.3

The nationalist movement in India, right from the latter part of the 16th century,
drew inspiration from the secular concepts. In fact, in Indian nationalism, secularism
was an important element. Our leaders opposed religious fundamentalism and
moves for the partition of the country on religious basis. Mahatma Gandhi
considered religion a personal matter and he was for the formation of a secular state.
Pandit Jawaharlal Nehru was not only a socialist, but also a great champion of
humanism and secularism.3

Our constitution doesn’t proclaim any religion as religion of the state even
though partition of 1647 was based on religion and a new state Pakistan was born
which declared Islam as its state religion. Many argued, India by default became a
Hindu nation, but it was resisted and we decided not to be a Hindu nation but a
nation where everyone irrespective of his/her religion, race, caste, sex, creed or place
of birth would enjoy same rights and opportunities. Thus, secularism as one of
India’s basic characters was introduced in our constitution. The Preamble, which is
the soul of our Constitution, also proclaims our country as s Sovereign, Socialist,
Secular Democratic, Republic.4

The founding fathers of the Indian Constitution never hesitated to build India on
secular foundations. They opposed and defeated the amendment of Mr. H.V.Kamath
to invoke the name of god in the preamble of the Constitution. Pandit Kunjru said
that we invoke the name of God, but I am bold to say that while we do so, we are
showing a narrow, sectarian spirit, which is contrary to the spirit of the Constitution
and it would raise the questions of communalisation of society. The Indian Flag
consists of Ashoka Chakra in its centre. The wheel has many spokes but, all are of
equal length. It indirectly refers to the Indian stand on the principle of equal
treatment of all religions. (Sarva Dharma Samba ). 3

A constitution is superior to all the laws of the country. Every law enacted by
the government has to be in conformity with the constitution. The constitution lays

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down the national goals of India, i.e. democracy, socialism, secularism and national
integration. On the other hand, India’s challenge, as described by its first prime
minister, Jawaharlal Nehru, has been to build “a secular state in a religious country.”
Indeed, the Indian constitution, which came into force in 1650, affirms “the right to
freely profess, practice and propagate religion.” 3

On the other hand, the Constitution made no mention of the word “secular” until
1676 during Indira Gandhi’s brief Emergency rule as the Prime Minister. India’s
founding fathers were deliberately ambiguous on religious rights – both giving the
Muslim minority their own Islamic-based civil code but also promising the over
whelming Hindu majority that the government would work towards a uniform civil
code. Because the Constitution gives something to everyone, all sides claiming to
march under the banner of secularism. One group says secularism means
government intervention on behalf of persecuted minorities. Another group decry
this as “pseudo secularism” and say true secularism means government remaining
neutral. However, the terms democracy and secularism, as the modern world
understands today, do not approve the authority of any religion with temporal
power.3

What is problematic in this context is the absence of a proper definition of
secularism.

1. How can we interpret the term secularism?
2. Do we interpret it as the complete detachment of state from religious

activities or do we accept the original definition of Holyoake?
3. What is the stand of the government regarding this?

To find answers to these questions, we have to look at the related discussions
in the Constituent Assembly. An important amendment (Amendment 566) was
moved in the meeting dated December 03, 1648 by Prof. K.T. Shah. “The State in
India being secular shall have no concern with any religion, creed or profession of
faith; and shall observe an attitude of absolute neutrality in all matters relating to the
religion of any class of its citizens or other persons in the Union.” It is now clear
that this idea of making India a secular state was not there in the original draft. It

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was only on December 18, 1676 the word “SECULAR” was added in the preamble
of our Constitution. The 42nd amendment Act reads – “In the Preamble to the
Constitution, -(a) for the words “SOVEREIGN DEMOCRATIC REPUBLIC” the
words “SOVERIGN SOCIALIST SECULAR DEMOCRATIC REPUBLIC” shall
be substituted”. So, the word secular entered our Constitution only almost 25 years
after it had come into effect.3

If one tries to look at the secular aura in our Constitution, the only point to
reach is

 Article 25, which refers “Right to freedom of religion”. It reads thus–
“Freedom of conscience and free profession, practice and propagation of
religion – Subject to public order, morality and health and to the other
provisions of this Part, all persons are equally entitled to freedom of
conscience and the right to freely profess, practice and propagate religion”.

 Article 26 (Freedom to manage religious affairs),

 Article 27 (Freedom as to payment of taxes for promotion of any particular
religion) and

 Article 28 (Freedom as to attendance at religious instruction or religious
worship in certain educational institutions) can be considered as the
interpretations of the principle of secularism in the constitution.5

We have seen how Article 25 gives freedom for all to practice any religion
they want. This is a basic right guaranteed in the Constitution. Art. 26 deals with the
freedom to manage religious affairs. Accordingly, any religious denomination is
given right to establish religious institutions, acquire properties (movable and
immovable) and manage affairs regarding the religion.3

Art. 27 is also very important which reads – “Freedom as to payment of taxes
for promotion of any particular religion. – No person shall be compelled to pay any

8

taxes, the proceeds of which are specifically appropriated in payment of expenses
for the promotion or maintenance of any particular religion or religious
denomination.” The implication and implementation of this article is debatable. We
know that government gives donations for all major religious activities. Is this action
by government not questionable under this Article?6

Art. 28 reads – “Freedom as to attendance at religious instruction or religious
worship in certain educational institutions – (1) No religious instruction shall be
provided in any educational institution wholly maintained out of State funds.” This
article prohibits any religious activities in educational institutes. But these limits
itself to state-maintained institutes. Nevertheless, this is one important aspect of
secularism in India. 3

In order to completely understand the interpretation of secularism in Indian
context, it is important to analyse these Articles. This along with a few judgments
of Supreme Court can give us a clear idea on this issue. 3

Before looking into the Articles in the Constitution that are supposed to
interpret the idea of secularism, it will be worthwhile to look into one important
judgment given by the Supreme Court of India viz. Kesavananda Bharati vs. Kerala
case which was decided by a full Constitutional bench of judges on April 24,
1673.By a water-thin majority of 7-6, the Supreme Court held that the power to
amend the Constitution under Article 368 couldn’t be exercised in such a manner as
to destroy or emasculate the fundamental features of the Constitution. In identifying
the features, which are fundamental and thus non-amendable in the constitution was
this statement – A secular State, that is, a State in which there is no State religion
(5(vii)). This was (probably) the first time that the concept of secularism was
interpreted by the Supreme Court. Here we get the first authorized interpretation of
the word “secular” as mentioned in our Constitution. So our basic idea of being a
secular state is that we do not have a state religion.3

Every time secular India has demanded that the system of personal laws
based on religious injunctions should be done away with, Article 44 which enjoins

9

upon the government to adopt a Uniform Civil Code that should be taken for what
it was meant to be a cornerstone of state policy in a modern nation state. However,
a countervailing cry has gone up alleging that it is an assault on the identity of
minority communities. We know that there is a directive principle in the
Constitution that calls upon the government to enact a uniform civil code.3

The 42nd amendment to the Constitution introduced by Mrs. Indira Gandhi,
the then Prime Minister, reiterated the secular character declaring India as a
“socialist, secular, democratic state”. The fundamental duties incorporated in the
Constitution through the same Amendment make it the responsibility of every
citizen to strive for the promotion of the spirit of enquiry, scientific outlook,
humanism and reform. The Constitution of India abolished untouchability and
prohibited its practice in any form. Special preferences in the name of religion do
not exist. In India, secularism does not mean mere separation of religion and state
but, the abolition of the practice of untouchability and promotion of caste lessness.
Secularism has been one of the essential elements in the basic structure of our
Constitution which lays down that

1)the state has no religion;
2) all citizens have the fundamental right to follow and propagate their own
religion; and
3) it is the duty of the state to protect and secure the life, liberty and property of
all the citizens of the country. Further, the state will not discriminate between the
citizens on the grounds of religion and language. Thus, it may appear that our
Constitution has been based on secularism or dharmanirapekshita, our society is
steeped in religion. 3

Chief Justice of India A.M. Ahmedi opined in a case that the term secular
has advisedly not been defined presumably because it is a very elastic term not
capable of a precise definition but perhaps best left undefined……There are several
features of the Constitution which are strongly suggestive of secularism. The
prevalent cultural indicators are supportive of secularism. Some other judges have
delivered separate but concurring judgments on secularism as basic structure.
Secularism is, therefore, part of the fundamental law and basic structure of the

10

Indian political system to secure to its people socio-economic needs essential for
man’s excellence with material, moral prosperity. Some other judgments read as
“secularism is thus more than a passive attitude of religious tolerance.” 3

A conference on secularism was held at Vijayawada on October 22nd 1668,
which was inaugurated by Justice V.M. Tarkunde, the then judge of the Bombay
High Court and a radical humanist leader. He said that the concept of secular state
does not merely imply that the state will be impartial to all religions; it implies that
the state will have nothing to do with religion. Mr. Tarkunde said that the
constitutional provisions might entitle one to claim that ours was largely a secular
state, but merely law could not create a truly secular state. While the constitutional
provisions represented a significant advance towards the ideal of a secular state, a
good deal had yet to be done before the ideal could be achieved.

Mrs. Chennuapati Vidya, M.P. from Vijayawada introduced a private
member resolution in Lok Sabha (House of the People) on the Necessity to
strengthen Secularism. It was discussed in the Lok Sabha on April 15, 1682.
Keeping in view the secular character of our Constitution and the fact that
secularism is one of the basic tenets of our State Policy, this House recommends to
the Government to take immediate steps to:-

a) Promote a sense of castelessness through inter-caste and inter-religion
marriages;

b) Prepare suitable text books to propagate secular ideas by laying emphasis on
fundamental duties enshrined in the Constitution; and

c) Encourage secular outlook among the employees working in Government
and Public Sector Undertakings.

Definition of Secularism -
What should be meaning of secularism (Focusing Point of Researcher on

Secularism) what we can meaning of term “Secularism?”

It should be ?
 State has no religion?

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 Separation of Religion and State?
 Religious’ Religion?
 State first second is Religion?
 No need of Religion for state?
 No priority to one Religion?
 Can practice in any religious which you belief?
 Can change religious of your choice?
 Can choice to reject all the religious belief?
 Respect to all the religious and their faith, traditions, holy books?
 What it can mean if we called us Secular: - Anti-Secular?
 Nastik? Atheist? Non-Religious?
 Free from Religious spiritual?
 Anti-Religious?
 Hate other religious?
 Hate all religious? No belief in Bhagavan, God, Ishwar, Allah?

Various Definition Of Secularism7

Constitution of India “The term ‘secularism’ is not used anywhere in the
constitution except in the Preamble, where the word ‘secular’ was added by the 42nd
Amendment in 1676. The Preamble says that India is a ‘secular, democratic
republic.’

 Random House Dictionary, defines the term secularism as a system of
social or political philosophy that rejects all forms of religious faiths.

 Holyoake in support of the proposition canvassed that “… the secularist
concerns himself with this world without denying or discussing any other
world, either the origin of this, or the existence of that”.

 Asgar Ali Engineer, Secularism means liberation of politics from the
hegemony of religion. Oxford Advanced Learner’s Dictionary defined the

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term secularism, as Belief that morality and education etc. should not be
based on religion.

 Oxford English Dictionary (OED Vol.IX 1678), which states that
secularism is the doctrine that morality should be based solely on regard to
the well-being of mankind in the present life to the exclusion of all
considerations drawn on belief in God or in a future State. OED further
points out that it was George Holyoake (1817-1606) who gave this name to
the definitely professed belief.

 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".

 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.3

 Mahatma Gandhi (Bapu) "I do not expect India of my dreams to develop
one religion, i.e., to be wholly Hindu or wholly Christian or wholly
Mussalman, but I want it to be wholly tolerant, with its religions working
side by side with one another.''

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 Mahatma Gandhi (Bapu) ‘those who say that religion has nothing to do
with politics do not know what religion means.’

 Mahatma Gandhi (Bapu) “Sarvadharma Sambhav”

 Mahatma Gandhi (Bapu) “Sarvodaya”

 Jawahar Lal Nehru, “We call our State a secular one. The word secular,
perhaps, is not very happy one and yet, for want of a better we have used it.
It does not mean a State where religion as such is discouraged. It means
freedom of religion and conscience,including freedom for those who may
have no religion. It free means, play for all religions, subject only to their
not interfering with each other or with the Basic conceptions of our State.
Dr. B.S. Ambedkar considered the concept of secular State la the form where
Parliament shall not be competen to Impose any particular religion upon the
rest of the people.”8

 Jawaharlal Nehru, wrote in his autobiography… “no word perhaps in any
language is more likely to be interpreted in different ways by the people as
the word ‘religion’. That being the case, ‘secularism’ which is a concept
evolved in relation to religion can also not have the same connotation for
all”.3

 Jawaharlal Nehru, in 1661, just three years before his death he wrote: “We
talk about a secular state in India. It is perhaps not very easy even to find a
good word in Hindi for ‘secular’. Some people think it means something
opposed to religion. That obviously is not correct…It is a state which
honours all faiths equally and gives them equal opportunities.”

 Jawaharlal Nehru "I have no desire to interfere with any person's belief",
but he objects strongly to any efforts that perpetuate "a complete structure of
society by giving it religious sanction and authority", and lie desired a state

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which "protects all religions, but does not favour one at the expense of others
and does not itself adopt any religion as the state religion".8

 Dr. S. Radha Krishnan “when India is said to be a secular State, it does not
mean that we reject the reality of an unseen spirit or the relevance of religion
to life or that we exalt irreligion. It does not mean that secularism itself
becomes positive religion or that the State assumes Divine prerogative,
though faith in the Supreme Almighty power is the basic principle of the
Indian tradition the Indian State will not identify itself with or be controlled
by any particular religion. We hold that no one religion should be given
preferential status or unique distinction, that no religion should be accorded
special privileges in national life or international relations for that would be
violation of the basic principles of democracy and contrary to the best
interests of religion and Govt.”

 Rajnath Sigh (Home Minister of India) in recent days Hon’ble Home
Minister of India Mr. Rajnathsinh spoken in the parliament of India that
Secular mean “PANTHNIRPEX” not DHARMANIRPEX, so now in 2015
we got another definition of secularism by the Parliamentary debate. But
argue is that again he did not clear full definition of PANTHNIRPEX so
again we can imagine that we want for PANTHNIRPEX. Here law says
Respondent Superior.

 Salman Rushdie "Secularism in India is not a just a point of view, it is a
question of survival"

 Lancy Lobo, “Secularism is an outcome of the modernisation process in the
West. Enlightenment, progress of science and reason were brought to bear
on religion. The State and the church were separated. Atheism, materialism
and secularism dealt blows on religion reducing its influence in the lives of
people at the personal, familial and societal level. In the West organised
religion was relegated to the background and to private realm. For some

15

atheism, materialism and secularism itself became a religion. In major
universities one was considered to be bright if he ridiculed religion.3

 Paul R. Brass, Indian Secularism and Universal Values

What then does secularism actually mean to those who are actively
involved in politics, either in political practice or political commentary in
India? For such people, secularism means first of all universal values
applicable to persons of all faiths or none, but it does not refer to all values.
It does not refer to whether or not one has one wife or four, whether one has
faith in a higher being or not.

Second meaning of secularism in India applies. Secularism means––and
some of this is written into the constitution of the country––that all religious
and cultural groups in India are entitled to practice their faith, to be instructed
through the medium of their mother tongue, and to be protected, not attacked
without cause by the police.8

 Bradlaugh, on the other hand, held “that the logical consequence of
secularism is the denial, the absolute denial of Providence”.

 The theory of separation of the Church from the State had been earlier, in
December 1791, incorporated in the U.S. Constitution by the First
Amendment which stated that “Congress shall value no law respecting an
establishment of religion, or prohibiting the free existence thereof; …”.

 Justice P.B. Gajendragadkar "The word ‘secular’, like the word
‘religious’, is amongst the richest of all words in its range of meaning. It is
full of subtle shades which involve internal contradictions, and of these
contradictions the conventional dictionary meaning can scarcely give a
correct view.”

 Pandit Laxmi Kanth Maitra “secular State, as I understand it, is meant that
the State is not going to make any discrimination whatsoever on the ground
of religion or community against any person professing any particular form
16

of religious faith. This means in essence that no particular religion in the
State will receive any State patronage whatsoever.”

 M.N. Roy had already commented on this phenomenon in his article in 'The
Radical Humanist' of 14th May 1650 as follows: What is necessary is not
facile profession of secularism, but a movement for the popularisation of
cultural values. The process of secularisation, assuming that it is desired by
the Government, cannot be promoted by legislation or executive orders. But
men at the helm of affairs could help, if they did not willingly swim with the
contrary current, as they do as a rule. The President of the Republic,
Governors and Ministers of the States and the lesser are frequently taking
leading parts in public religious ceremonies. This demonstrative religiosity
is entirely different from religion as a part of one's private life.

 “Basic Structure”, K. Ramaswamy, J., “Secularism is, therefore, part of
the fundamental law and basic structure of the Indian Political System to
secure to all its people socioeconomic needs essential for man's excellence
with material and moral prosperity and political justice.”

 Jeeven Reddy, J. (for himself and on behalf of S.C. Agarwal, J., said:
Secularism is thus more than a passive attitude of religious tolerance. It is a
positive concept of equal treatment of all religions. More eloquently, though
not accurately, he proceeded to say: In short, in the affairs of the State (in its
widest connotation) religion is irrelevant; it is strictly a personal affair. In
this sense and in this behalf our Constitution is broadly in Agreement with
the U.S. Constitution, the First Amendment whereof declares that 'Congress
shall make no laws respecting an establishment of religion or prohibiting the
free exercise thereof ...' (generally referred to as the "establishment clause").
Perhaps, this is an echo of the doctrine of separation of Church and State;
may be it is the modern political thought which seeks to separate religion
from the State - it matters very little. Even better: "In this view of the matter,
it is absolutely erroneous to say that secularism is a 'vacuous word' or 'a
Phantom concept'."

17

 Dr. Amartya Sen, in his essay, 'Secularism and Its Discontents' to
"Unravelling The Nation", calls himself an unreformed secularist and
proceeds to propound the theory of symmetric treatment to all religions.
This, according to him, is warranted by the provisions of the Indian
Constitution. His conclusion in his own words was that: It is hard to escape
the need to see India as an integrally pluralist society and to accept the
necessity of symmetric treatment and secular policies as crucial parts of that
recognition.

 Prof. M.P. Rege, a great analytical philosopher of India, had, in his editorial
in the New Quest had canvassed the view that the concept of secularism in
India could have three meanings; the recognition that the State is secular and
that religious communities are ready to reformulate their values, norms and
practices; the acceptance of Sarva Dharma Samabhav i.e. the attitude of
equal respect for all religions as a social and also as a religious value; the
acceptance of the worldview which claims to be based on scientific
knowledge and rational morality.

 Prof. Gore "even secularism of the agnostic variety need accept the right of
another individual to have his own belief system; this is not the same thing
as respecting that belief system itself."

 Prof. H.Y. Siddiqui has accurately stated that instead of demanding a
rational state of mind "the Indian concept of secularism demands acceptance
of the values of other religions while permitting the individual to believe in
the values of his own religion".

 Dr. Rasheeduddin Khan, the then Director of the Indian Institute of Federal
Studies, Jamia Hamdard, New Delhi. Let me quote a paragraph from it: The
secular character of the State is exhibited when it remains distant from,
distinct from, religion-dominated politics. A secular State, in the pursuit of
State activities, governmental obligations and administrative duties, should

18

exhibit a capacity to show respectful indifference to religions and indeed
keep vigilant distance from the politics of religious communalism.

 Rajeev Bhargava, what is secularism? It is widely accepted that secularism
advocates the separation of politics from religion. It follows that an adequate
theory of secularism must answer at least three questions:
 First, is it possible to separate religion and politics?
 Second, why must religion be separated from politics? What justifies
the separation of religion and politics?
 Third, how, after separation, must the two relate to each other? What
kind of? separation must it be? The conceptual structure of the theory
is built around an answer to these questions and therefore stands or
falls with it.

 Elizabeth Shakman Hurd, Northwestern University, “Secularism is an
important source of political authority in International Relations theory and
practice. Secularists identify something called ‘religion’ and separate it from
the domains of the state, the economy and science. This separation facilitates
a consensus which is sustained by a powerful yet historically contingent set of
beliefs, including secularism as the realization of God’s will, secularism as the
natural evolution toward universal morality and secularism as a normal
consequence of economic modernization. Despite these aspirations,
secularism is unequipped to serve as a universal model of public life, either
domestically or internationally.”

 Bihar Chief Minister Nitish Kumar, "Communal agenda cannot succeed in
the country in whose soul the principle of secularism is deeply ingrained. Be
it Hindus, Muslims, Sikhs or Christians, a vast majority of Indians are
genuinely secular,"

 Wikipedia “Secularism is the principle of the separation of government
institutions and persons mandated to represent the state from religious
institutions and religious dignitaries. One manifestation of secularism is
asserting the right to be free from religious rule and teachings, or, in a state
19

declared to be neutral on matters of belief, from the imposition by government
of religion or religious practices upon its people. Another manifestation of
secularism is the view that public activities and decisions, especially political
ones, should be uninfluenced by religious beliefs and/or practices.”

 Romila Thapar: “Secularism goes beyond just politics, although our political
parties have attempted to reduce it to a political slogan. So, one party endorses
it in theory but hesitates to apply it properly in practice, the other makes fun
of it since the party’s foundational ideology is anti-secular. Supporting
secularism or dismissing it, is not just a political slogan. It is deeply tied to the
question of the kind of society that we want. This is perhaps why it was widely
discussed in the early years of independence whereas now attempts are being
made to scuttle it. Questioning the secular would mean seriously changing the
direction that we have intended to give to Indian society. If secularism is
removed from the constitution then democracy becomes a victim, with an
unthinkable future.”

 Romila Thapar: “Secularism is the curtailment of religious control over
social institutions, not the absence of religion from society. It is when our
primary identity is of equal citizens of the nation, not as belonging to a
particular religion or caste. But the Indian definition of secularism is limited
to the coexistence of many religions which is incomplete because some
religions can still be marginalised as they are,”

 Manudev Jain, Civil Servant. Political blabber mouth, “There are essentially
two notions of Secularism. One is the western notion of Secularism, other is
Indian notion of Secularism. Both these notions of Secularism emerged out of
the respective historical conditions and needs of the two societies.

 Kamaluddin Khan, “Secularism is one of the major instruments for building
a modern polity. It is one of the fun damental values of our national life,
emphasized by the national movement and the founding fathers of the
Republic.

20

In the Indian context, secularism and communalism are considered to be
binary opposites. Secularism is a sign of modernity, plurality, co existence,
rationalism and developing with a fast growing multicultural society.
Communalism, which some consider as being based on love of one's
community, has come to acquire the derogatory meaning of an attitude that is
narrow, based on prejudices about the 'other' and almost based on hatred and
violence. In India to pursue communal politics as religion is the main
identifying factor and also acting against the interests of the 'other'. In the
politics of the '1690s the essentially ehruvian notion of secularism itself began
to be challenged, without being totally rejected. In this context it is important
to see what the term means or was meant in the making of the constitution and
thereafter.

 K.N. Panikkar argues that there are three characteristics of the kind of secular
state that India claims to be:
 Firstly, the secular slate postulates that political institutions must be
based on the economic and social interests of the entire community,
without reference to religion, race or seat; that all must enjoy equal
rights and no privileges, prescriptive rights or special claims should be
allowed for any group on the basis of religion.
 Secondly, it eliminates from the body politic ideas of division between
individuals and groups on the basis of their faith and racial origin. In
the third place. It is obvious that a composite secular state must accept
as the basis of its policy what Aristotle termed as 'distributive justice',
the idea that all communities must have power, as they must share the
duties and responsibilities of being citizens.

 Maxmuller "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, "Religion as a mental faculty or
disposition which enables man to apprehend the infinite." 15

21

 Madan "Secularism is a late Christian idea, ‘a gift of Christianity’ to India"15

Secularism is an indispensable part of the basic structure of India’s
Constitution. Not only is it postulated in the preamble, the light of this principle
radiates in several provisions of the Constitution. As for the National Policy on
Education (NPE), formulated in 1686 and revised in 1692, it states that the national
system of education will be based on a national curriculum framework, which
contains a common core along with other components that are flexible. The common
core is to be designed to promote values, which include India’s common cultural
heritage and secularism. The policy makes an unequivocal statement: “All
educational programmes will be carried on in strict conformity with secular
values.”3

In India, secularism receives challenges from many fronts. On one hand,
casteism and communalism appear to be losing their credence, because of the spread
of science and technology and communication, as well as liberal and progressive
outlook. On the other, casteism and communalism are getting a new lease of life
because of the short-sighted policies of power-hungry politicians and the narrow
outlook of the administrators and the leaders. Instead of proceeding on the path
enunciated in the Constitution, the leaders fanned the communal and caste passions
of the people, with a view to reaping the harvest of votes and to achieving their
partisan ends. The politicization of caste and religion and pampering of communal
leaders is causing great harm to the body politic of the nation. The time has come to
strengthen the secular values, institutions and practices in an uncompromising
manner and to accelerate the pace of change in India.3

India is the largest democratic and secularist country. The Indian
Constitution in theory and practice has wholeheartedly adopted the alien concepts
of religion and secularism. Therein lies the root of our problems. We talk of ‘rights’
instead of ‘duty’ with an emphasis on “what is in it for me” instead of “what is it
that I can do for you.” The need of the hour is creating secular society and not
necessarily a secular state, because secular state need not always imply secular
society. 4

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The major significance of the study is to define and distinguishing the
concept of secularism under the shell of Constitution of India in view of the modern
culture of the 18st century. The second important criteria of this study is to define
the line between the modern concept of secularism and the concept which carried
by the forefathers of the constitutions who emerged the concept of secularism in to
the newly born India. The major view to define this study on two different lines is
because of the Idea which to connect the link between the thinking over the
secularism by 18st generation and the old era of the past Indian generation.

The major lines which drawn by the political situation in between recent years into
the minds of common citizens of the India and the so-called scholars or the educated
citizens. The commencement of the study will reveal the basic and universally
accepted concept of secularism the link between the Constitution of India. In
political terms, secularism is a movement towards the separation of religion and
government. This can refer to reducing ties between a government and a state
religion, replacing laws based on scripture with civil laws, and eliminating
discrimination on the basis of religion. This is said to add to democracy by
protecting the rights of religious minorities. What all secular governments, from the
democratic to the authoritarian, share is a concern about the relationship between
the church and the state. Each secular government may find its own unique policy
prescriptions for dealing with that concern (separation being one of those possible
policies; French models, in which the state carefully monitors and regulates the
church, being another). A major impact on the idea of state religious liberty came
from the writings of John Locke who, in his A Letter Concerning Toleration, argued
in favour of religious toleration.

He argued that government must treat all citizens and all religions equally, and that
it can restrict actions, but not the religious intent behind them. In accord with the
belief in the separation of church and state, secularists tend to prefer that politicians
make decisions for secular rather than religious reasons. Some fundamentalists and
scholars (notably in the United States) oppose secularism, often claiming that there

23

is a "radical secularist" ideology being adopted in our current day and they see
secularism as a threat to "basic rights" and national security.

The most significant forces of religious fundamentalism in the contemporary world
are Hindus fundamentalism, Christian fundamentalism and Islamic
fundamentalism. At the same time, one significant stream of secularism has come
from religious minorities who see governmental and political secularism as integral
to the preservation of equal rights.6

Scope of the study

“The purpose of the law must not be to extinguish the groups which
make the society but to devise political, social, and legal means of preventing them
from falling apart and so destroying the plural society of which they are
members.”

India is the only country in the world where the issue of secularism has
occupied a centre stage in intellectual discussions. Secularism is, as for its genesis,
an alien concept for India envisaging separation of the church and the state – an
apparently impossible proposition in the Indian situation. In practice, however, all
that ‘secular’ means is that the Parliament shall not be competent to impose any
particular religion upon any section of population.6

Nehru, on a positive note, observed that the state gives protection and an
opportunity to all religions and cultures and thus brings about an atmosphere of
tolerance and co-operation and equal treatment to all religious communities. Sarva
Dharma Samabhava is the central idea of Indian secularism, however unpalatable
it is to concept puritans. 5

The core of this study is the “secularism” which is critically studied in view
of to connect the link of acceptance of it by the past generations and extensions of
the acceptance by new generation of the modern era. Secularism is defined by the

24

various societies in their individual recognitions and the same is demarcated by the
Indian Society.5

Today it is secularism which keeps religious forces at bay who at the first
instance will try to stoke violence and hence communal problems. It is the only
medicine which can bring this country out of the cancerous effects of religious
politics and violence. 2

Secularism and Law through the ages
The secular character of kinship was emphasized by the social contract

theories of ancient India. There is no doubt that dharma and sasana were
inextricably interwoven in ancient times. But, the king had a distinct identity and
functional realm of his own. Moreover, dharma did not signify any established
church. Kautilya, with his unending sense of realism, describes king as the fountain
of justice (dharmapravartaka) and lays down that whenever the sacred law is in
conflict with rational law or the ‘king’s law’, the latter shall prevail. The post-Vedic
period, particularly, abounds in religious polemics and dialectical warfare. There
appears to have been no continuously organized religious persecution or crusade
even though sometimes there was a measure of state patronage for a particular
religion or sect owing to the personal law of the ruling prince or his clan. 5

The impact of the Islamic faith on the Indian society would have had a
different history and reckoning had it not been admixed with subsequent Turkish-
Afghan, Turko-Mongol and Mughal invasions which put the assimilative
synthesizing capacities of Indian culture to a severe test mainly because these
invasions introduced an element of political coercion and domination. The pure
theocratic inclinations and the orthodox constitutional jurisprudence attributed to
many of these rulers, who happened to be Muslims did not, it seems, allow them
freely and fully to integrate their subjects belonging to different religions, sects and
races. 4

During the British rule, notwithstanding the preconceptions of the colonial
power favouring the spread of Christianity, a plausible policy of official neutrality
was formulated. At the same time existing religious differences were so politicized

25

and encouraged that they led to sharply divisive communal conflicts. Paradoxically
enough, the process of secularization gained considerable momentum under the
British, partly as a result of the impact of the West, partly due to the exigencies of
imperial colonial rule and largely because of the rise of nationalism. On the one
hand, the British power thwarted and retarded national integration in India because
they found it easier to rule by dividing different sections of the people. On the other,
the British ideas and institutions led to progressive unification and secularization of
Indian administrative, legislative and judicial institutions, which became the most
potent promoters of secularism. 8

The Constitution of India owes its inspiration to the liberal ideals of our
freedom movement, the constitutional evolution and the experience already gained
in the process of modernization and democratization and from the British traditions,
the French Revolution, the American Revolution and the Russian Revolution and
the worldwide climate for the larger freedom in the wake of the World War II. The
Indian constitution embodies the quintessence of diverse facets of secularism. It is
a mistake to think that the Indian Republic became more secular when the Preamble
of the constitution was amended and the word secular inserted by the Forty-Second
Amendment Act of 1676. It is also a mistake to think that the constitutional
provisions relating to secularism are neatly and separately packaged in the
fascicules of provisions beginning with Article 25 and ending with Article 30 of the
constitution. Doubtless, the right to freedom of religion and the cultural and
educational rights are important and integral part of Indian secularism but Indian
secularism extends far beyond the confines of the bundle of rights contained in the
aforesaid provisions. Secularism is a goal as well as a process. As an ideology and
a bundle of working norms, it is conditioned by the past legacies and the prevailing
realities. Secularism in our country is an ally of nationalism and national
integration. 3

Secularism in the Indian Constitution is Very simple, it asserts that:
1. The state by itself shall not espouse or establish or practice any religion.
2. Public revenues will not be used to promote any religion.
3. The state shall have the power to regulate any economic, financial or other
4. secular activity associated with religious practice – Article 25 (2)
26

5. The state shall have the power through the law to provide for social welfare
6. and reform or the throwing open of Hindu religious institutions of public

character to all classes and sections of Hindus.
7. Article 17 constitutionally outlaws the practice of untouchability.
8. Every individual person will have under Article 25 an equal right to freedom

of conscience and religion.
9. These rights are however subject to the power of the state through law to

impose restrictions on the ground of public order, morality and health.
10. These rights are furthermore subject to other fundamental rights in Part III.
11. The courts, especially the Supreme Court shall have the final say on

adjudging state action as valid or otherwise under the above principles.2

The analysis of the relationship between secularism and law is essentially a
search for answers to two troublesome questions. Firstly, whether secularism, as we
understand it, is a logical offshoot of modern law and that they are the two sides of
the same coin or whether there is in fact an anti-thesis between the two concepts in
practice, if not in theory (especially in the context of attempts by the State to
“enforce” secular practices). These are vexing questions, particularly in the present
scenario of global terrorism, which has given a severe churning to issues of identity,
especially religious. Such identities are now perceived by many to be under ‘threat
‘due to the attempts made by many states to enforce an international ‘secular’ legal
structure. 5

But before focusing attention on these two questions, one may examine the
meaning of secularism. The traditional western concept of secularism envisages a
complete separation of the church and state where the state subscribes to no religion
and disunites itself from any religious activity on a public/official platform. An
integral component of such policy is the provision of adequate safeguards,
protection and sometimes – special provisions in favour of minorities (whether
religious, ethnic or otherwise). For instance, the indigenous Americans in USA
enjoy certain benefits on the “reservations” earmarked for them. 5

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India, which is considered a successful model of secular laws and practices,
offers a unique case study in terms of how the term secularism is understood in
theory and also the way it is practiced. Unlike the Western model, where the state is
expected to be completely religious and is even anti-religious as in communist
countries), in India the state does not shirk away from involvement in religious
affairs of communities/religious groups. The interesting feature here is that the
ordinary citizen does not resent state involvement, especially support for religious
endeavours. The only rider is that the state now appears to be even headed. Thus,
state subsidy for one community’s religious pilgrimages is matched by similar
subsidy for other religious groups. As a result, India offers a sui generis model where
the government may give grants for religious celebrations, involve itself in temple
administration, organize religious pilgrimages, and host functions for/in presence of
religious leaders; and all this without any resentment from the populace. The only
qualification as mentioned earlier is that the state action must balance the legitimate
expectations of different communities. The Indian State is, therefore, not expected
to be completely neutral in religious affairs.8

The scope of this study is not only ending with above mentioned view but it
organized the views of all sectors of Indian society and the individual concepts on
their individual endorsement which rearranged the thinking pattern of the society
which has real meaning of unity in diversity. Major point which contain in this study
is to aware the section of society regarding the concept of secularism and their
misconceptions on it and minimising the influence of hardcore bigotry over
secularisms. The scope of secularism in India is mammoth. It is what can soothe the
minds and hearts of billions who would otherwise be baying for the blood of the
‘other’ man. Secularism is what binds a democratic nation. Before development
takes place or we become economically strong as a nation, we must ensure internal
peace in the country and draw up a resolution whereby we will do anything and
everything to maintain this peace. This peace can only be obtained and preserved by
the spreading and sharing of secular values and value systems. Secularism also has
a large scope in the upliftment of the religious backward classes and the minority
groups to make sure they do not feel alienated from mainstream Indian way of life.

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We need to ensure that a chunk of the overall national development must help in
their development too, thus removing the sources of religious discord.

India is currently witnessing widespread protests against the recently passed
Citizenship Amendment Act (CAA) and the anticipated NRC (National Population
Register). Although the Prime Minister has said that no decision has as yet been
taken on an all-India NRC, and that citizenship will not be taken away from any
person, there has been one common refrain: namely, CAA is “antisecular”. 9

These protests began immediately after the Indian Parliament passed the
Citizenship Amendment Bill in December 2016. The new Act makes it easier and
quicker for “persecuted religious minorities” from the neighbouring countries of
Pakistan, Bangladesh and Afghanistan to obtain Indian citizenship. However, in
effect the new Act fast tracks citizenship for Hindus, Sikhs, Buddhists, Jains, Paris
and Christians from these countries who had entered India before 31 December
2014. Since Muslims constitute the majority in the identified countries, migrants
from this community are not to benefit from this amendment. 14

The Indian government has explained this decision as a measure to protect
religious minorities in this region – minorities whose numbers are steadily
decreasing in the identified countries. Yet, this explanation has not satisfied the
protesters who maintain that claims of citizenship should be delinked from
considerations of religion and religious identity. For them CAA contravenes the
secular character of the Indian constitution. 12

The ‘return’ of secularism to the centre of political debate is both interesting
and intriguing, and it calls for careful reflection. First, in India secularism has been
on the backfoot for sometime now as the Bhartiya Janata Party (which has emerged
as the single largest party in the last two general elections) identified it with
‘minority appeasement’, thereby making it a suspect doctrine, at least in the eyes of
the majority. Second, in recent times, appeal to the principle of multiculturalism has
been more effective in challenging the rhetoric and policies of majoritarianism. 6

29

In India, when the government prohibited sale and consumption of beef, or
some states disallowed animal sacrifice in open spaces on Bakr-Id, or renamed
streets that bore names of Muslim rulers, or asked for re-writing history textbooks
to include all those ‘great’ men who fought against the Muslim ‘invaders’, it is the
constitutional commitment to religious diversity and the plural fabric of India that
was invariably invoked. A similar trend can be seen in Europe and other parts of the
world which have witnessed the rise of majoritarian nationalism. 6

Expressions of majoritarianism vary but almost everywhere it has pushed
forward by capturing the public domain and proclaiming what is not acceptable in
these spaces, and identifying 'outsiders' who pose a threat to the security of the
nation and its settled way of life. Whether it is the question of wearing a full or
partial veil, religious headgear in schools, constructing minarets on buildings or
pointing a finger at immigrants who resist integration, it is multiculturalism that has
countered these assertions head on. 6

By arguing that integration is best achieved by accommodating minorities so
that they develop a sense of belonging, it has checked the urge to seek assimilation
and adherence to what the majority considers acceptable. At the same time, it has
analysed concrete policies, such as, public holidays, or food served in hospitals
(which appear to be neutral) to show that these are not ‘neutral ‘decisions and they
invariably impact minority communities adversely. 6

“At times the insistence of secularism on making religion irrelevant in the
public domain, has even helped to sustain minority vulnerability.”

Even as multiculturalism has unrelentingly exposed the subtle ways in which
majority culture prevails in liberal democracies and disadvantages minorities,
secularism lies frayed and somewhat exhausted. At times its insistence on making
religion irrelevant in the public domain, it has even helped to sustain minority
vulnerability. From the perspective of secularism, religious symbols should have no
space in the public domain; not only should state officials not don any religious

30

symbols, such practices as polygamy and covering of the face cannot be accepted in
a liberal democracy as they violate the principle of gender equality. 6

Historically, secularism had played a pivotal role in ensuring religious liberty
to persons of different faiths, but today it is unable to check the expressions of
majoritarianism in the public sphere. To a considerable extent this is because
secularism considers religious identities as inconsequential in matters of citizenship.
It speaks of a common culture and does not make a distinction between majority and
minorities. Multiculturalism, on the other hand, begins with the idea that citizens
belong to different communities and the same policies and laws may affect them
differently. It makes space for religious reasoning and sensibilities to enter the
public domain and participate in collectively deciding what is acceptable. In other
words, it cautions us against pre-judging the other, and this has helped to nurture an
environment in which majoritarian expressions can be checked. 6

It is this difference that has, in the contemporary context, juxtaposed
secularism and multiculturalism. While there are still several analysts who collapse
the two concepts and speak of them interchangeably, the manner in which
secularism has been used to reinforce the dominant liberal ethic compel us to ask if,
in the context of majoritarian regimes, multiculturalism should trump secularism;
and what value should be attached to secularism. 6

“Political theory may need recognize that secularism and multiculturalism
are different but necessary.”

The ongoing protests against the CAA in India, particularly the manner in
which they have invoked the principle of secularism, offer important clues as to how
we might understand and relate secularism and multiculturalism. If we reflect on the
logic embedded in the ongoing protests, secularism surfaces as the first unassailable
principle, determining who will, at any given time, be eligible for citizenship and
the benefits that accrue from it. But after that initial constitutive moment, where
state and citizenship are dissociated from religion, multiculturalism becomes
relevant. It addresses the anxieties of the minorities and provides checks against the

31

possible domination of the majority culture in the public domain. On a more positive
note, multiculturalism suggests the formal and informal arrangements (such as,
representation, accommodation of cultural codes) that may be necessary to ensure
equality for citizens who belong to minority communities. 12

Both secularism and multiculturalism are, it seems, necessary as they address
two different sites of religion-related disadvantage and discrimination. While the
former ensures the initial conditions for equality of membership the latter extends
the commitment to equality by making space for the practices of minority
communities alongside that of the majority community. 14

This distinction, and differentiated responsibility of the principles of
secularism and multiculturalism seems to be understood instinctively by the political
actors, particularly those who are currently protesting in India. Political theory may
need to take a cue from this experience and recognize that secularism and
multiculturalism are different but necessary; and in the absence of either of them
majoritarianism cannot be checked effectively.6

Law, as mention earlier, it does not operate in vacuum, it is always operating
in a “social settings”. It reflexes always social behaviour and attitude. It is seeking
behaviour of people to ensure that they flow the expected channel, and it is also
mold and control social attitude. 7

In all the such situations for this research, inter alia, becomes necessary:
(i) For ascertainment of law on “Secularism”,
(ii) To highlight ambiguities and inbuilt weaknesses of law related to

“Secularism”
(iii) To critically examine legal provisions, principles or doctrines with a view to

see consistency, coherence and stability of law and its underlying policy,
(iv) To undertake social audit of law with a view to highlighting its pre-

legislative ‘forces’ and post-legislative ‘impacts’, and
(v) To make suggestions for improvements in, and development of

“Secularism”.6

32

Further researcher would like to say that; it is needless to say that laws can
never be final & perfect in a recent dynamic society. ‘If our several laws’, are
providing the protection to society as it was framed, then researcher should just
compare and observe, but there is something to do needful, amend, change or not
providing actual protection or it is creating some controversial situation in the
society then researcher should compare, observe and at least recommendation for
the changes or amendment as possible as. 9

This research is important for the researcher because, he cover the below
mention parts with the Secularism, he try to find the historical fact and social aspect
for the benefit of Indian society, researcher try to cover: -
1) Constitution of India
2) Indian Laws
3) Law Commissions reports
4) Relation between: Secularism & Indian Judiciary. (Legend Judgments)
5) Foreign countries constitution aspect reference to “Secularism”
6) Historical & Philosophical background of term “Secularism”
7) Relation between: Secularism & Communal violence
8) Relation between: Secularism & Indian Politics
9) Relation between: Secularism & Emergency.
10) Relation between: Secularism & Religious, holy books, holy places, religious

personalities & holy traditions.
11) Relation between: Secularism & Atheism, etc.
12) Relation between: Secularism & Media (including social media)
13) Relation between: Secularism & Minorities. (Mandal/Sachar commission) 2

Here researcher tries his best to cover the actual concept, meaning & scope of
secularism in the context of Indian society. Researcher also tries to compare,
observe, know to social ideas about the secularism and after that he recommends
some suggestion in the conclusion of this research. Researcher tries critical
examinations of legal propositions, rules and doctrine mention herein, in the light of
interpretation. Researcher also tries to cover pre-legislative situation social audit in
the context of India. It was helpful to understand and appreciated the social situation

33

that plays significant role in the making of Indian Laws in present scenario. It was
also helpful to researcher to clear the Judiciary view about the Secularism. It was
also very helpful for the identify the gap, if any, between the “Legal ideas” (legal
philosophy) and “Social reality”, in the context of India. So it was very helpful to
clear the social needs are covering the Secular concept or not. Is it providing the
social protection of not? It also unravels the reasons or factors that are responsible
for making a given law a mere symbolic or a failure in attaining its intended
legislative goal(s). It also enables us to predict future of the law. 1

Researcher, through the systematic analysis, should be able to highlighting
these “gaps” and inbuilt weaknesses of the said provisions. All these highlights are
mention in the chapter of conclusions. Researcher tries his best to clear the meaning
and scope of secularism under the constitution of India with context to Indian
society.4

Problem Statement

The elementary of this study is for to direct linking with the social view,
therefore the possibility of stuck down with the political view and the individual
view on the topic of secularism is very much possible. The view which defines the
concept of secularism is not only relates with social sojourner even with every single
individual of the nearby society therefore the concept of secularism is very much
confusing on various occasions. The core question of the Indian Society is that it is
sometimes very shy to defined or on another part it is very rude to agree. Therefore,
might be it affect to the critical study of secularism is the shell of Indian
Constitution.10

India is known for its social heterogeneity as for dialect and religion. Hindus
constitute the lion's share, while the Muslim constitutes the biggest minority. The
hostility between the Hindus and Muslims was to a great extent the production of
the English rulers. With a specific end goal to keep themselves in control, they
received an arrangement of 'separation and administer' and endeavour to advance
sentiments of threatening vibe among the individuals from these two networks.

34

After long history of freedom, at show too, the absence of appropriate change
between them has regularly brought about a rough upheaval and public mobs
tragically turns into a genuine test to common personality of our nation. Then again,
all the time the political gatherings including the national gatherings, to some of the
time comma don't enabled secularism to outweigh their political intrigue. The
electorate in India, guided by convention tends to be receptive to bids in light of
position, religion and dialect.13

Initially is the rule of freedom, which requires that state allow the act of any
religion, inside the farthest point set by certain other fundamental rights. second is
the standard of balance, which requires that the state don't give any inclination to
one religion over another. The third standard is lack of bias which is best portrayed
as the prerequisite that the state not offer inclination to the religions over non-
religious and which leads in continuation with the freedom and balance standards.
By mainstream country, we mean a country which has majority of religions yet
which does not recognize itself with any of them either by making religion as its
arranging rule or in different ways. All country states are not common. There a few
states, including a large portion of the Bay and Middle Easterner nations like,
Pakistan, Malaysia and Brunei in Asia and Israel, which are not mainstream.14

The first logical question is whether secular practices/laws are a logical
corollary of the modern legal system. In recent decades as the world has moved from
imperialism to democracy, and as the number of dictatorships have considerably
diminished, modern laws are assumed to be more fair, representative and equitable.
The assumption is that democratic practices promote objective law making. The
second development has been the incorporation of the “reasonableness” principle in
law making, especially in the Indian context. The tempting corollary therefore seems
to be that if all laws are essentially and increasingly rational and fair, they must also
be secular, for they would involve no discrimination or bias. It is then a easy
conclusion that law and secularism are the two sides of the same coin and there
exists no conflict between the two. This conclusion would, however, be fraught with
the danger of massive generalization. For, if this supposed harmony were a reality

35

then the path to a Uniform Civil Code in India would have been an expressway and
not a road made of pot holes, speed breakers, diversions and blockages.12

The constitution mandates a uniform civil code in spirit if not in letter. However,
this issue highlights the challenges faced by the state in harmonizing the opposing
demands of law/fairness and religious/personal law interests. In a scenario where
internal reform in most communities is more of an agenda than a reality, state
intervention through legislation is perceived as interference and not reform. It
becomes evident, therefore, that the law and secularism do not necessarily share a
consequential relationship. 6

Another instance in this context in the ongoing debate among the Iraqi
lawmakers as to whether Islam should be one source of law or in fact an overriding
influence over all other sources. The other extreme is occupied by Turkey, which
despite being an Islamic state is considered among the more successful secular
polities of the world, notwithstanding the recent rise of religious parties. This brings
us to the second question, that is, whether there actually exists great conflict between
law and secularism in practice. The multitude of examples seems to answer the
question especially in situations where the state has attempted to enforce what it
considers a secular practice/safeguard.10

The France Government recently banned the use of conspicuous religious
symbols by students in the state run schools, generating great resentment among
minorities. The stated reason was to enforce a secular standard but the widely
understood motive was the desire to discourage use of headscarves by Muslim girl
students. This in turn raised fears of targeting the minorities in France. 7

Another illustration of the uneasy relation between secular percept’s and
legal codes is the recent action of the Alabama Supreme Court Judge, Roy Moore,
in installing the “Ten Commandments” inside the court premises. This decision was
later overruled by the United States Supreme Court but it highlighted the sensitive
relationship between personal laws and the general secular laws. 7

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Closer home, the recent Aligarh Muslim University controversy, the
Ayodhya dispute, and the Shah Bano case point to the difficulties in legislating on
religious/personal law matters. The extent of polarity among the contending groups
is a reflection of the challenges facing law makers. For instance, those who
supported reservation in Aligarh Muslim University would categorize it as
safeguard for a minority and safeguards/protection being a critical element of
minority rights in secular set up. The opponents of reservation in AMU would also
justify their standby claiming that reservation on religious grounds breeds
communalism.12

Similarly, very few would support legislation as a measure of resolving the
Ayodhya dispute and it would be construed as state encroachment on a domain,
which is perceived as strictly being within the control of religious leaders of the
communities concerned. 12

The Shah Bano case too brings forth the limitations of the law, whether by
way of judicial pronouncement or legislation in secularizing practices, which are
within the ambit of personal codes. 13

The above discussion leads to the inescapable conclusion that law and
secularism do not necessarily share a comfortable and symbiotic relationship. The
attainment of secularism through state action is not a feasible option because the law
can at best provide for some substantive rights and a few safeguards. The path to
harmony lies in democracy, for in a democratic set up the laws are more reflective
of diverse needs. However, it is more imperative that democratic functioning is
encouraged among religious and community leaders. This would facilitate secular
reform and practices among different groups. The state can then truly operate as a
harmonizer and not be seen as an interferer. 7

In our own times, secularization has acquired the status of a ‘social myth’
that contains elements of truth, namely the empirical processes that constitute it, as
well as the distortions of that truth, all in the service of diverse, even mutually
opposed, ideological positions. While the so-called conservatives see secularization

37

as a threat to their conception of the good, moral life, robbing it of its ideas of
sacredness and value, the secularists look upon it as an urbanization,
industrialisation and modernization as the causes and symptoms of the ‘secularizing
fever’ that grips our societies today.12

The term ‘secularisation ‘was found used in 1648 at the end of Thirty Years
War in Europe, to refer to the transfer of Church properties to the exclusive control
of the princes. Again, in November 2 of 1689, after the French Revolution,
Talleyrand announced to the French National Assembly that all ecclesiastical goods
were at the dispersal of the nation. Later in 1851, George Jacob Holyoake coined
the term ‘Secularism’ and led a national movement of protest. The idea of
secularisation was built in to the idea of progress. Secularisation, though nowhere
more than a fragmenting and incomplete process, however since, retained a positive
consolation. Secularisation now-a-days is generally employed to refer to in the
words of Peter Berger “the process by which sections of society and culture are
removed from the domination of religious institutions and symbols.” It may be held
that the concept of secularism as evolved over the centuries in the west, however,
took an anti – religious character. 12

Niyazi Berkes explains the origin of the word ‘secular’ as ‘Saeculum’ which
means originally ‘age’ or ‘generation’ but which came to mean in Christian Latin
the ‘temporal world’ . The word ‘secular’ has been used with this meaning in all the
major 7 protestant countries.” Nearly the same meaning of the term is incorporated
in Encyclopaedia of Religion and Ethics, “Secularisms wholly unconcerned with
that unknown world and its interpretation. It deals with the known world, interpreted
by experience and neither offers nor forbids any opinion regarding another life.”
Thusyt describes secularism as a movement intentionally ethical, negatively
religious with political and philosophical antecedents. 12

Secularism in India is a multi-vocal word, what it means depends upon who uses
the word and in what context. There is, therefore, no single or straight answer to the
question as to why secularism in India has run into difficulties. We begin by
Mahatma Gandhi because he is known as the spiritual father of Indian secularism.

38

His vision was holistic with religion as its constitutive principle-as the source of
value for judging the worth of all worldly goals and actions. Religion here means,
above all, altruism (sevadharma), self-assurance arising from inner conviction, and
the putting of one’s faith in the saving grace of God (Rama nama). Gandhian politics
was inseparable from religion. Politics was sacralised by Gandhi. For Gandhi, as
Bhikhu Parekh says, it was the citizen’ sense of moral responsibility for his actions
that ultimately determined the character of the state. A Gandhian, according to in
India because the modern state is too much with us, and intrudes into areas of life
where it has no business even to peep. The state is best which governs the least. A
Gandhian critique of secularism in terms of ultimate values and individual
responsibility is in some respects similar to Max Weber’s concern with the problem
of value. What Gandhi and Weber are saying is that a secularized world is inherently
unstable because it elevates to the realm of ultimate values it knows and these are
instrumental values. Ashish Nandy claims that Gandhi showed us a way of rejecting
modernity in favour of a non-modern way of tolerant religious living. 12

Gandhian remedies are believed by modernist Indians to be farfetched and
impractical, if not obscurantist. In relation to the character of the new state, Sardar
Patel and Rajendra Prasad were no closer to Gandhi than was Jawaharlal Nehru
which does not mean that their notions of a strong state were identical. Like all
modern intellectuals he had implicit confidence in the process of secularization. He
reaffirmed the primacy of the economic factor. Nehru attacks the bigotry and
dogmatism of religion, but acknowledges that religion stands for higher things of
life too. Nehru’s position on religion, religious conflict and the significance of the
processes of secularization was what would be rationalist and modern. It was also
idealist in the sense that it reflected more the ideals of European Enlightenment than
the hard facts of society, culture and politics in India. A Nehruvian answer to the
question why secularism has run into difficulties in India would be that the people
are not yet ready for it. It requires a level of general education that is yet beyond
them, and a liberal outlook on life and scientific temper which unfortunately they
lack. 12

39

The framers of the constitution, it seems to Madan, overlooked the possibility
that in a democratic polity the state may reflect the character of the society, and that
a communally divided society and a secular society could be mutually contradictory.
On the one hand, there is a danger of majoritarianism and, on the other, that of
vesting the religious minorities with a kind of veto power. 12

Within the framework of majority-minority politics, although the exploitation
of certain castes and communities at the hands of others over the centuries down to
this day, cannot be denied, the idea of reservation quotas – notwithstanding the fact
that it was intended to be a temporary protective measure for thirty years only
(Article 334)- does not fit well with the idea of secularism, understood as non-
discriminatory state policy, particularly if it threatens to become a permanent vested
interest. by religious and ethnic considerations than by pure Islamic
fundamentalism. But influence of the latter is not absent. Islamic fundamentalists
regard the Kashmiri Muslims as imperfectly Islamized. Whatever judged to be the
character of Kashmiri separatism, it is perfectly clear that it is against pan-Indian
secular nationalism. The issue of Kashmir and the silence of Muslim political
leadership underscores the tragic fact that all is not well with Indian secularism. 12

The destruction of Babri masjid in Ayodhya in December 1692 is ablow to
Indian secularism. There was a widespread sense of foreboding; yet the Indian state
became an accomplice, through acts of omission and commission, in this act of
betrayal of both traditional cultural pluralism and modern secularism. As Prime
Minister P.V. Narsimha Rao put it, ‘the demolition posed a ‘grave threat’ to the
institutions, principles and ideals on which the constitutional structure of the
republic has been built’. The most dangerous potent is the coming to power of the
ultra-chauvinistic Shiv Sena, in coalition with BJP, in Maharashtra. Nothing is more
inimical to the Indian secularism than the vituperations of the Sena Chief Bal
Thakrey, against non- Maharashtrians and those Muslims whom he considers anti-
national. 12

If India is to be saved from religious discord reinforced by fundamentalist
tendencies present in all the three traditions (Hindus, Muslims and Christianity, and

40

the resultant political divisiveness, we need rigorous rethinking and concerted
action. What is at stake is the very survival of the Indian State. The end of the crisis
of Indian secularism is not in sight. 12

Researcher comes to this burning topic because of researcher long interest in
the Law history of the colonial countries and Indian politics conflicts with law and
the situation of Law, Order & Society, before & after the Independence India. India
presents one of the most colourful Law histories in this planet. India, have difference
of religious, tradition, languages, religious holy book, religious holy places and
India state with nuclear weapons. Researcher want to find what was the actual
conditions to add the word “Secular” in the preamble of Constitution of India? Why
Secular word added by amending the constitution of Indian? What we were not
secular before 42nd Amendment Act, 1676? These problems were always catching
researcher consternation to come there. In the beginning researcher also found the
idea that secularism as a blueprint in India fascinating. Mahatma Gandhi skilfully
united the people in the 1620s and 1630s with his campaign against the colonial
rule. He understood the totalizing meaning of religion for the Indian people and tried
to integrate the religions of India to the nationalist movement. Jawaharlal Nehru, the
first Prime Minister of India, wanted to create secularism on the foundation that
Gandhi had made, but he saw that the unity would be more stable if religious feelings
were confined to be outside of the political life. 13

In the Preamble to the Constitution, India has clearly been referred to as a
sovereign socialist secular democratic republic that secures for all its citizens: social,
economic and political justice; liberty of thought, expression, belief, faith and
worship; equality of status and of opportunity; and promotes among them all
fraternity assuring the dignity of the individual and the unity and integrity of the
Nation. The problem is that the Constitution does not define accurately what is
meant by a secular Indian state and how religion should be separated from politics
and the state. The most common conception of how this should be done has been
formulated by Jawaharlal Nehru, but the definition does not have a legal basis. 13

41

So, researcher want to clear the meaning and scope of Secularism in the
Indian Constitution, hence researcher choose the above topic for the research.15

Research Questions of The Study

Indian nation has seen a continuous conflict over the last six decades about
various questions:

1. What exactly is Secularism?
2. What is the scope of law?
3. Is religion only a personal affair or is it above the state?
4. What’s the difference between law and Dharma?
5. Is Secularism an Indian notion?
6. What’s exactly Hinduism and Hindustan?

All such questions deeply impact our nationhood, determine the character of us
polity and indicate future direction of our society. So, it would be necessary to see
what exactly is ‘Secularism and Law’.10

During the study or research on this topic the concept of secularism and
making this research would be difficult without studying the following major
questions – Concept of Secularisms. Universal acceptance view and view accepted
by the Indian Society. Distinction between the concept of secularism in view of
individual common citizens and so-called scholars. Critical study of secularism in
the shell of Indian Constitution. Distinction between the political and social view of
secularisms.

Indian view point was on a different plane altogether. India sharply
distinguishes between Religion & Dharma. Dharma is defined as “that which
upholds” – it is that universal order, condition which preserves the existence. A
human being has his own Manav Dharma. Irrespective of whatever religion he may
belong to, his basic Dharma – nature of duty in life remains the same. This broader
viewpoint has naturally given Indians an all compassing, synthesizing ability.
Through philosophy of Anekantavada, Jainism clearly accepts different dimensions

42

of truth. As social reformer Mahatma Phule puts it, “Even if there are as many
religions as human beings on earth, it doesn’t disturb peaceful coexistence if right
conception of truth is adopted.” Ideal like ‘Vasudhaiva Kutumbakam’ would flow
only through such attitude. As Arnold Toynbee puts it, “This broad minded approach
to reality is the unique characteristic of India. The most devout shaiva and the most
zealous Vaishnava would each recognize that the other is seeking truth and salvation
in his own way…. It is this total openness that is consequence of total faith and
firmness!” 10

Gandhiji was annis mirabelis of secularism in India. Being the most
religious man, it wasn’t difficult for him to appreciate ultimate truth, which all
religions teach. Thus, his religiosity was never an obstacle to be secular. Thus, true
secularism doesn’t mean absence of religion or neutrality towards religion. It only
means not to allow one particular religion to dominate over others, to have equal
respect for all religions and to uphold harmony amongst all.10

There are different viewpoints over what exactly constitutes secularism. There
is dominant class of Hindutva nationalists in India who consistently feel that India
is primarily a Hindu entity and its culture, language, traditions are all testimony of
its Hindu identity. Thus, for them, loyalty towards this Hindu civilization
constitutes secularism. Savarkar defines a Hindu as follows: 10

“Aasindhusindhuparyanta Yasya Bharatbhumika,
Pitrubhoo Punyabhooshchaivas Vai Hindu Riti Smrutah||”

Thus, one whose ultimate loyalty is placed at India and for whom this entity is
fatherland and sacred land is a Hindu. This ‘Hindu’ can also be a Muslim, Christian
etc. Basically, term ‘Hindu’ itself doesn’t connote any religion but probably, a way
of life, an attitude towards it. It is a synthesis of culture, civilization that flourished
here for five thousand years. 8

Another version of secularism completely rejects the idea of religion. It gives
no place for spirituality in human life. Leftists and communists hold such view.

43

Such view has not found much acceptance in overwhelmingly spiritual country like
India. There also exists something called ‘Pseudo-Secularism’. Some sections
assume that secularism means to appease minorities, giving them special status and
concessions, which are not available to majority. It can be as dangerous to a secular
polity as communalism. 8

Now we turn to what exactly constitutes Law. There is no universally
applicable code of conduct or rules, which we can call Law. Social norms and
standards of behaviour are bound to be culture-specific and change according to
time and place. Every religion has its personal law, which deals with civil matters
like marriage, inheritance, etc. Such personal laws were formulated in historic times
but were never revised to suit to changing times. Hence, they became anachronistic.
Laws like Shariyat in Islam, which permitted polygamy cannot address the current
needs. On the other hand, there are modern laws, which contain basic principles of
natural justice, equality of sexes, separate private life and public life. Modern
legislations are flexible in nature and are constantly reviewed to suit the
requirements of dynamic society. Thus, we have rigid, orthodox personal laws,
which are antithetical to modern secular laws. Nature of polity is determined
according to the preference it gives to either of them. 8

It was one of the greatest challenges before Indian polity to keep itself
secular in the aftermath of partition. It was a tough test to convincingly establish
equality of all religions. Our constitution makers really did a tremendous job to lay
the foundations of a secular India. Putting freedom of religion as one of the
fundamental rights really strengthened our secular credentials. 8

There was a historic evolution of laws in British India, which subsequently
minimized the role of religion in public life. Laws like prohibition of sati, widow
remarriage act, minimum age of consent act, etc. slowly removed unjust religious
laws and replaced them by modern rational enactments. This tradition of reforms
was continued even in post-independence India when Hindu Code Bill gave equal
status to women. 9

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Ideal scope of religion and nature of secularism is rightly defined in our
constitution. There are three angles to it – positive, negative and neutral. The
positive religious freedom includes 3 Articles viz. Art. 25, 26 and 30 which deals
with the “freedom of conscience and free profession, practice and propagation of
religion”, “freedom to manage religious affairs” and “the rights of minorities to
establish and administer educational institutions”. Negative freedom of religion
includes Art. 15(1) and (4) which prohibits discrimination on the grounds of
religion, Art. 16 assures equality of opportunity for people belonging to all religions
in matters of public employment, Art. 17 abolishes untouchability, Art. 29(2) caters
to “protection of the interests of minorities”, and Art. 325, 330(1) and 332(1) order
no communal electorates. Neutral provisions include Art. 27, 290(A) and 28(1) (2)
(3) which emphasize that “no religious instruction be imparted through the
institutions run or aided by the state.” Provisions of Art. 44 directs State to bring
common civil code which strengthen the secular foundations of society, ban on cow
slaughter under Art. 47 recognizes sentiments of majority Indians. Thus, we have a
balanced basic framework of secularism in our constitution. 10

The constitutional provisions upheld the spirit of secularism fairly well in the
last sixty years, but there are serious issues and areas where we have failed
miserably. Hindu Code Bill was enacted after much agitation and opposition. Then
why we fear to touch and modify unjust personal laws in other religions? Shahbano
case was a litmus test of our convinced stand that religious laws should not
discriminate against women. But our political establishment faultered us. In Kerala,
a new district was created only on a single criterion of having Muslim majority.
Does that follow spirit of secularism? Even though constitution forbids forcible
conversion, has it stopped in tribal, dalit areas? Some sections oppose Saraswati
Pujan, Vande Mataram on ground of religion, when all these are rich symbols of
our ancient cultural heritage. This confusion between religion and culture has been
a great source of controversy in our country. The demarcating line between the two
is very unclear and hence creates many conflicting situations. But if we
broadmindedly look at 5000-year-old tradition of this civilization, no sane person
will oppose the best heritage we derive from it –whether it is Sanskirt language or
Muslim architecture or Christian passion for service to the downtrodden.12

45

Art. 30 which gives minorities fundamental right to establish their
educational institutes, forbids state from confiscating them. Such provision is
absent in case of majority educational institutions. This clearly violates the true
spirit of secularism. Another example is Bangladeshi illegal refugees. Only to
cherish vote bank, politicians underscore serious threat they pose to national
security and integrity. All the border districts of West Bengal, Assam, Tripura have
dramatically changed demographic ratio. State Government machinery has
seriously failed to protect minorities in times of communal riots as happened in
Godhra or in Kashmir where Pundits have fled from their native lands. With the
rise of religious extremism in country, state is failing in its duty to check those
organizations like RSS Shakhas or Islamic Madarasas, which impart extremist,
fundamentalist notions. 12

Most striking failure to enforce law for upholding secularism has been in case
of uniform civil code. Even after so many “obiter dictas” passed by courts insisting
on its implementation, we still couldn’t enforce it. Lack of political will and vested
interests are responsible for this. If it is applied in the State of Goa so successfully
from 1860, why not for the whole India? Failure of State to increase literacy and
awareness amongst minorities has come in the way of general acceptance of
common civil code. A system like marriage, status of women, inheritance
exclusively depends upon the current phase of society and has nothing to do with
religious prescriptions. Art. 13 provides that all laws in force prior to Constitution,
which violate fundamental rights (like Art. 14 which upholds equality of women)
shall become void. Then how some laws, which allow polygamy, unjust procedure
of divorce, discrimination against women, are still in force? We cannot wait till
general consensus emerges because it will never happen. 14

Indian constitution also lacks provisions, which make it obligatory on
individual to perform his national duty even though it may be against his religious
beliefs. Art. 49 of Swiss Constitution clearly state it. Hence conscription is avoided
on religious grounds. 7

With current law provisions, we can say India is one of the most truly secular
countries in the world. It is an immensely difficult task to combine these billion plus

46