(Sanskrit and Arabic). Such a controversy made the Government to set up a
Committee to settle it. Lord Macaulay was appointed the Chairman of the
Committee in 1835. On February 2, 1835, Macaulay presented a Minute that argued
the importance of modern education through the English language. Part of his
argument was that Sanskrit was itself a dead language and the books written in it
conveyed information of the least value for the modem context. In comparison, the
English language had books rich in literature, science, arts, philosophy, politics,
trade, and so on. He said, „Whoever knows that language has already access to all
the vast intellectual wealth which all the wisest nations of the earth have created
and hoarded in the course of ninety generations.‟ Earlier on he had argued in the
House of Commons: „The question before us is simply whether, when it is in our
power to teach this language-English-we shall teach languages in which, by
universal confession, there are no books on any subjects which deserve to be
compared to our own. Consequently, on March 7, 1835, Lord William Bentick
passed a resolution in approval of Macaulay‟s Minute. The resolution emphasized
the employment of all educational funds on English education alone and the
discontinuation of Government funds towards oriental. 18
Difficulties of secularism in India
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
(Abdullah and Salim Abdullah). 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. 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 has
a tendency to be receptive to bids in light of position, religion and dialect. 18
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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. 18
Secularism in India and under the Indian Constitution
Connection amongst religious and the individual, the mainstream State.
Liberal equitable custom of the west and it is additionally said to be basically that
which can be gotten from the Indian Constitution itself (Liew; Habermas) (Donald
Eugene, 1663). Constitution of India is embraced an arrangement of political
rationality that all types of religious confidence and love are of equivalent status
and has acknowledged the view that government funded training and different
issues of open strategy ought to be directed with the presentation of religious
conclusions. Indian constitution has expounded the rule of secularism in awesome
detail. The idea of secularism isn't new to India. The vision of secularism-'sarwa
dharma sambhava', that is, resilience for all religions-has dependably been there in
our nation and has its foundations in the Yajur veda, atharva veda and apparatus
veda. 18
Anyway, the word secularism was not utilized as apart of the Indian
Constitution until 42nd alteration in 1676, which consolidated the word
unequivocally in the introduction. The genuine instruction can become just in
mainstream condition of nation. A common state is one which perceives each
subject as equivalent and does not perceive any social or religious gatherings. Be
that as it may, for all intents and purposes, in secularism there is likewise resilience
of all religions with extraordinary accentuation on the insurance of minorities and
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protection of shared agreement. India is accepted as a country in hypothetical stage
where as strains of assorted types are making near. 18
The Hon'ble Incomparable Court of India, which is viewed as the watchman
of constitutionalism in India. The Hon'ble Incomparable Court of India in sardar
taheruddin syednasaheb v. Territory of Bombay AIR 1662 SC 871, 853 out of the
blue clarified the idea of secularism wherein Ayyangar, J., clarified article 25 and
26 exemplify the rule of religious toleration that has been the trademark highlight
of Indian Human progress from the beginning of history. The occasions and periods
when this element was truant being just variations. Plus, they serve to underline the
mainstream idea of Indian popular government which the establishing fathers
thought to be the plain premise of the constitution.18
Secularism and Legal Distortions
Religious tolerance, which is the essence of Indian secularism, presupposes
mutual understanding.
This mutual understanding is possible if we are aware of the basic principles of our
religion as well as religion of others. Secularism has been accepted today as the
guiding principle of state policy and action. Indian secularism is the product of our
cultural heritage, personal attitudes, historical circumstances and domestic
compulsions.
All religions are given equal protection in the constitution. Resultantly, there are
religious endowment trusts, waqf boards etc. established under the law. Secularism,
in the positive sense, is the cornerstone of egalitarian and forward-looking society,
which the constitution purports to establish. The point is that the Indian state is not
supportive of any particular religion or religious community. However, it may be
stated that our aspirations for a socialist and secular state have only been wishful
thinking or just plain optimism.
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CONTEXTUAL SECULARISM
“When India is said to be a secular state, it does not mean we reject the
reality of an unseen spirit or the relevance of religion to life or that we exalt
irreligion. I do not mean that secularism itself becomes a positive religion or that
the state assumes divine prerogatives. Though faith in the supreme principle is basic
to 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 accorded special
privileges in national life or international relations, for that would be a violation of
the basic principles of democracy and contrary to the best interests of religion and
government. No person should suffer any form of disability or discrimination
because of his religion but all alike should be free to share to the fullest degree in
the common life. This is the basic principle involved in the separation of church
and state”. 6
This is an elegant exposition of meaning of secularism by S. Radhakrishnan.
It is consonant with Gandhi’s faith in the supreme and the reality of the unseen
spirit. Contextual secularism is the view that under certain conditions religious and
political institutions must be separated on the basis of non-sectarian principles.
Separation does not always mean exclusion; principled distance is also one of its
forms. Those who define their identities in terms of traditional practices or modern
institutions are not automatically debarred from public sphere. This is so because
the idea of separation qua principled distance is built into a commitment to
participatory democracy. Any intermingling of religion in whatever form with
politics that violates the basis of equal participation in the democratic process is to
be abjured. 4
What does a right based secularism look like? It acknowledges difference
– difference between religious communities and between religious and non-
religious communities – it is unmistakably distinguishable from hyper-substantive
secularism. Because it abstracts not from every substantive content but only from
those that are identifiably controversial or posing to be universal, it is not the same
breed as ultra-procedural secularism. Nor does it exclude religious communities
from political arena. Indeed, it readily brings them in. Under certain conditions it
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grants immunity, privileges and guarantees to these communities, particularly to
smaller ones. Surely it cannot protect the good of small religious communities
unless they come into the political arena – there would be no one to be protected
and nothing to guarantee if the good was antecedently expelled from political
sphere. But the good of all communities must also be safeguarded against the whims
of their own members as well as the fancies of others. No religious community can
hope to bring its internal or external fancies into the political arena. 4
Furthermore, a minimally overlapping good exists, namely the ordinary but
dignified life for all that cannot be undermined in the name of any ultimate ideal.
When this is threatened, all ultimate ideals including those infused with religious
flavour, need to be expelled from public arena. In this sense, a right-based
secularism requires that political institutions keep a principled distance from
religious institutions and practices. 4
Right-based secularism does not foreclose the possibility of working out
a genuinely common good. Rights enter the political arena precisely when different
individuals and groups have abandoned deliberation once the common good;
currently, differences cannot be overcome. But adhere to of rights have not given
up hope that whenever favourable circumstances arise they will pick up the threads
from where they snapped. In other words, an implicit commitment to conduct a
dialogue in future exists within the discourse of rights. The discourse of rights
occupies the space where people have neither given up the hope of living together
not yet arrived at agreement once crucial substantive issues that could bind them
into a reasonable and vibrant unified existence. They abjure the use of force against
others, shun action in haste that snap whatever tenuous bonds exist between groups
and individuals and in full knowledge that common good is currently non-existent
remain committed to its existence in future. 4
Before a heterogeneous society such as ours, five options exist at any time.
By far the best option is to forever and only have the politics of common good. The
next best when conditions persist, is to have a politics of common good and deploy
a fall-back strategy, the politics of right. Next to make do exclusively with the
politics of right. The fourth to altogether abandon participation and rights. Here,
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individuals and groups are shut out from participatory democracy and are unable to
get courts to enforce their claim. Under such conditions, discrimination,
subordination and exploitation thrive. 4
Finally, a society may plunge into what Hobbes famously called the war of all
against all – in other words a Bosnian suicide. Most of the societies are stuck at
level-4.
India is fortunate to have a constitution that envisions and supports a society that
has raised itself to level-2.
The least we can do is to stay at level-3, continuing in the meanwhile to refurbish,
by critical interpretation of its article, our faith in the constitution. 4
What does secularism in India mean today?
A strong defence of minority rights, to be supplemented on the one hand by
deploying the resources of religious tolerance to isolate bigotry and encourage
internal reforms and on the other hand by consolidating whatever space of the
common good already exists.4
Secularism and Legal Distortions
Religious tolerance, which is the essence of Indian secularism, presupposes
mutual understanding. This mutual understanding is possible if we are aware of the
basic principles of our religion as well as religion of others. Secularism has been
accepted today as the guiding principle of state policy and action. Indian secularism
is the product of our cultural heritage, personal attitudes, historical circumstances
and domestic compulsions? All religions are given equal protection in the
constitution. Resultantly, there are religious endowment trusts, waqf boards etc.
established under the law. Secularism, in the positive sense, is the cornerstone of
egalitarian and forward-looking society, which the constitution purports to
establish. The point is that the Indian state is not supportive of any particular
religion or religious community. However, it may be stated that our aspirations for
a socialist and secular state have only been wishful thinking or just plain optimism.2
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Secularism Vs Individual Freedom
Freedom to individuals and religious groups can be granted by the State as
long as it does not interfere with the freedom of others and is not detrimental to the
maintenance of law and order, public health, morals, safety and sovereignty of the
State. At the same time, the State has the right to impose necessary restrictions on
this freedom of individuals for its security, sovereignty and the wellbeing of the
majority of its citizens. Besides giving this religious freedom, a secular State
refrains from making discrimination against any individual or group on religious
grounds. The rights of these citizens are decided in such a state irrespective of their
religious beliefs. Now if we take this concept as secularism, India can hardly be
categorized as secular state. This is because she is constitutionally bound to give
special protection and privileges to religious minorities with regard to their
education, employment and personal laws. Similarly, while making laws for its
citizens, the state refrains from making interference with the personal laws of
religious minorities. Some important changes have been made in the Hindu
religious laws but minority personal laws have been left untouched by the
lawmakers. 2
In this context, it is highly pertinent to discuss the two important milestone
cases of Sarla Mudgal and Lily Thomas. In the earlier case the decision of the
Supreme Court impinged on the issue of conversion when it was held that the
second marriage of the Hindu husband after conversion to Islam, without having
his first marriage dissolved under law, would be invalid and the apostate husband
would be guilty of the offence of bigamy u/s 494 of IPC. The Supreme Court
emphasized the need for having a uniform civil code because of the conflict faced
by the court due to conflict of personal laws. The conflict could be resolved only
through legislative intervention and the result of such an exercise would result in
the enactment of a uniform civil code.2
The dilution of the Sarla Mudgal case in the subsequent case of Lily
Thomas brings out a critical question as to whether the court is competent to draw
attention of the State or otherwise issue any direction to the State to make any
constitutional amendments to achieve this objective. In the earlier case, the
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Supreme Court tried to make the government aware about realization of the
directive and the pattern of debate put forward in the latter case is that the uniform
civil code though desirable, may be counter productive.2
The best cause in this matter would be reforming of the personal laws
through the process of rationalization before bringing about the code. The abolition
of polygamy and restraining the unilateral power of the Muslim husband to divorce
his wife can be the trendsetters in this direction. This may not hurt muslim
sentiments as this type of reform had already taken place in Islamic countries like
Syria, Morocco, Pakistan and Tunisia and the Islamic Republics of the erstwhile
Soviet Union. In the case of John Vallathom Vs. Union of India, the absence of a
uniform civil code led to discrimination of the Christians for more than fifty years.
A law that stood as an impediment to render justice in consonance with Article 14
of the Constitution was needed to be struck down.2
Traditionally, the personal laws regulating relationships in the realm of
marriage-divorce, inheritance-succession, minority-guardianship, adoption
maintenance are closely tied up with religious practices and any attempt against this
pattern will evoke susceptibilities. As discussed earlier the codification of Hindu
law and bringing of certain other religious communities like the Jains, Buddhists
and Sikhs within the definition of Hindu was achieved by a single stroke of pen and
practice of monogamy was implemented in all these religions instantly. Certain
reforms like equal property rights to women under Mitakshara law in all the States
and abolishing conversion as a ground for divorce under section 13 of the Hindu
Marriage Act could be introduced as envisaged under other minority personal laws.
However, the crucial question is how to go about this critical exercise. The
basic premise of the promised common civil code is that there is no necessary
connection between religious and personal laws in a civilized society. This indeed
is a profound statement. This simply means that in a civilized society which is
invariably multi religious, multi-racial, multi-lingual and multi-caste, the social
relations are required to be regulated on a basis that cuts across all such
considerations as of religion, race, caste, sex etc. More over envisaged common
civil code under Article 44 need not be taken as anti-religion, foreclosing all
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association of religious sentiments with the institution of marriage. In sum, in view
of the clear and categorical commandment of Article 13 of the constitution, the
State under article 44 should have no alibi to move in the direction of securing a
uniform civil code. The envisioned code would indeed be invaluable input for
augmenting human resource development at no expense of State resources. Else,
the principles so prudently prescribed by the founding fathers of our constitution
shall cease to be fundamental in the governance of the country.
Sixty years after independence women continue to be governed by religious
laws in matters of marriage, divorce, maintenance and inheritance. In the process
they get deeply enmeshed in deciphering religious texts and interpreting them as
happened in the Shah Bano case.
Is such excessive entanglement with religion by the State and its judiciary
constitutionally permissible?
Relegating matters of family law into the realm of private law as opposed
to public law and linking it up with religion ensures the hands-off policy of state to
the women’s issues and consigns them to the mercy of mullas and pandits.
Is there anything in the Indian Constitution that permits such State
sponsored support of religion and religious laws, even when they blatantly violate
other Fundamental Rights?
Essential Core Test:
The current judicial analysis of the scope of the right to freedom of religion,
its meaning, content and limitations is entirely wrong. While deciding whether a
particular law violates freedom of religion, judges have got hopelessly entangled in
finding out whether the law interferes with the essential core or practice of the
religion. If it does, the law is held to be bad; it does not, the law passes the test and
is held valid. This test for determination of the constitutional validity of a law
alleged to violate freedom of religion is hopelessly incorrect and leads to dangerous
conclusions.
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For example, a law is enacted abolishing polygamy or unilateral talaq
among Muslims or conferring equal rights to men and women on matters of
inheritance. Can it be argued that a law abolishing them is unconstitutional because
they form essential core of religion? Therefore the true test would be whether there
is compelling state interest in making the law and if the state’s interest is compelling
then the regulation stands or else it fails. To date this principle was followed in
National Anthem case where the judge proceeded to find out whether there is
compelling state interest to expel the children for not singing the National Anthem
on grounds of public order, health or decency. The answer was in the negative and
the children’s rights were upheld. The attitude of the Indian State to personal laws
reflects its inability to separate itself from the religious affairs, thus making religion
a convenient tool for the oppression of women.
Indian secularism is religion affirming and not religion negating. The
necessary corollary to the absence of state patronage to any religion is the freedom
of religion to all. The Constitution permits practicing and propagating religion. But
the right to propagate one’s religion does not give right to convert any person to
one’s own religion. The practices of conversions from Hinduism to Christianity,
Islam and Buddhism are against the secular provisions of the Constitution.
Furthermore, unlike in India, the constitutions of many countries in the world that
provide freedom to religion do not guarantee the right to propagate as a fundamental
right. The Swiss Constitution simply declares through Article 49 “freedom of
creed and conscience is inviolable”. The Constitution of Ireland and Japan says
that the freedom of religion is guaranteed to all and so is the case of China but it is
the hitch that nowhere religious propaganda is a fundamental right. (Art. 20 and
Art. 44). The spirit of this right available in our country is in consonance with the
provisions of the Universal Declaration of Human Rights.13
The decision arrived at by the judges in the S.R. Bommai’s case and Ismail
Faruqui’s case reemphasized the concept of secularism being the basic feature of
the Constitution. There was no dissent by any judges in this regard and the
proposition laid down by the court can be hardly regarded as Obiter Dicta but the
law of the land. The only issue relating to the basic feature was whether secularism
is a basic feature of the Constitution, which was answered in the affirmative. It
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would be thus clear that Constitution made clear demarcation between religious part
personal to the individual and secular part thereof. The State does not extend
patronage to any religion; State is neither pro-any particular religion nor anti-any
particular religion. It stands aloof, in other words, it maintains neutrality in matters
of religion and provides equal protection to all religions subject to regulation and
actively act on secular part. Acquisition of certain land under Ayodhaya Act, 1693
was held to be negation of law and therefore invalid and the court held that the
greatest religious tensions are not those between any one religion and another; they
rather are the tensions between the fundamentalist and pluralist in each and every
religious tradition. 13
The intention of the constitutional guarantee on minority rights, as we
understand it is to promote and to protect the distinctiveness of religious and
linguistic minorities in the country. Over the years, various court judgments have
done much to clarify the gray area lying between minority rights on the one hand
and the larger social good on the other. The question on reservation also becomes
another hotly debated issue. Should minority groups be excluded from reservations
merely on the basis of their religion? Such question needs to be answered clearly
after further discussion until a national consensus is reached. To use minority
defensively to resist the requirements imposed at times, be it running the
educational institutions or other institutions in the long run, undermines the very
legitimacy of minority rights themselves.
In conclusion, it is religious communalism that undermines minority rights,
often with attacks from the outside by religious communalists from the majority
community, but also with mis-adventures from the inside by extremists from the
minority itself.
From a nationalist perspective we must be ashamed that the Indian tryst with
the secular destiny of wiping every tear from every eye is making head way steadily
backwards in law and much more in life. Why not ban at least the religious symbols
in the elections, forbid political parties with communal labels from the hustling,
plead with Gandhi salesman and Marx merchants to avoid coalition with caste and
religion oriented groups? Can’t we begin the battle for a secular political culture
107
and public life? Can’t we mass-vaccinate, through a big movement and people’s
mobilization, every Indian against anti-secular disease? Blush, if you can, in a
higher dimension than the author meant, I conclude with a quote from VICTOR
HUGO: “I am for Religion against Religions”.2
Before looking at the relation between secularism and law, it is important
to consider what secularism in India means. This concept in India is very different
from what is practiced in the West. According to Encyclopedia Britannica I means:
'Nonspiritual, having no concern with religious or spiritual matters... anything
which is distinct, opposed to, or not connected with religion'. Thus, a secular state
is one, which is not connected with and not devoted to religion. It means separation
of religion and state in the West i.e. state shall not involve in any religious activity.
This is, however, not true in India. The Indian Constitution does not envisage an
irreligious or non-religious state. It only tells that all religions shall be trea equally
and there shall be no discrimination among the citizens 'only' on the basis of their
religion in any form or manner (Art. 15). The difference lies, therefore, in the fact
that whereas in the case of western states the discrimination by state is absolutely
banned, the constitution of India permits discrimination on condition that the
religious ground is accompanied by another reasonable ground. By virtue of this
the state is empowered to legislate different laws applicable to different
communities. This further means that the state can accord legal recognition to its
people not only as citizens but also as members of different communities i.e. as
Hindus, Muslims, etc. The Constituent Assembly also discussed the prospects of
banning religious legislation but ultimately the state was left free to enact such kind
of legislation as part of unique secular polity of India. Thus, the concept of
secularism in India has been defined in accordance with multi-religious, multi-
cultural and multi-lingual identity, and the ancient religious tradition of the country.
13
After the 42nd Amendment, India came to be characterized as a 'Sovereign,
Socialist, Secular and Democratic Republic'. The precise sense in which the word
secular is used is clarified by the corresponding term 'pantha nirpeksha'
(denominationally neutral) in the Hindi version of the document. Besides Preamble,
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the Constitution contains many provisions to establish the secular character of the
Indian polity. Article 15 of the Indian Constitution prohibits discrimination on
grounds of religion, caste, sex, or place of birth; Article 16 guarantees equality of
opportunity in matters of public employment irrespective of one's religious identity;
and Article 17 abolishes the practice of untouchability. Articles 25 to 30 deal
specifically with the freedom of religion which are as follows: "Freedom of
conscience and free profession, practice and propagation of religion" (Article 25);
"Freedom to manage religious affairs", which includes the right "to establish and
maintain institutions for religious and charitable purposes" (Article 26); "Freedom
as to payment of taxes for promotion of any particular religion" (Article 27);
"Freedom as to attendance at religious instruction or religious worship in certain
educational institutions", with the clarification that "No religious instruction shall
be provided in any educational institution wholly maintained out of state funds"
(Article 28); "Protection of interests of minorities" (Article 29); and the "Right of
minorities to establish and administer educational institutions" (Article 30).
However, all the freedoms and rights conferred by Articles 25-30 are "subject to
public order, morality and health". Not only that they are to be exercised in a manner
that is progressive in spirit. Clause 2(b) of Article 25 provides for state intervention
within the framework of the said article to promote 'social welfare and reform', for
example, throwing open the Hindu religious institutions of a public character to all
classes and sections of Hindus. 13
Article 44 of the constitution is an important stone in the Indian secular
fabric. It requires the state to 'endeavour to secure for the citizens a uniform civil
code' throughout India. It is, however, included in the chapter of Directive
Principles of State Policy, which has no legal enforceability. The spine of
controversy revolving around UCC has been secularism and the freedom of religion
enumerated in the Constitution of India. Article 44 is based on the concept that there
is no necessary connection between religion and personal law in a civilized society.
Marriage, succession and like matters are of secular nature and, therefore, law can
regulate them. The UCC will not and shall not result in interference of one's
religious beliefs relating, mainly to maintenance, succession and inheritance. This
means that under the UCC a Hindu will not be compelled to perform a nikah or a
Muslim not to be forced to carry out sindur-daan.4
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The issue of Uniform Civil Code opens discussion on the nature and working
of Personal Laws in India. The subject of personal law is related to a very important
feature of secularism, i.e; the protection of minorities in a plural setting. Secularism
sans protection to minority religious and cultural groups creates majoritarianism.
To protect minority interests, special protection measures need to be undertaken to
cover the need for different identities and cultures and this is at odds with strict
secular principles. The Constitution is ambiguous on the issue of personal laws, as
arguments in favour and against are both based on provisions laid in the
Constitution. Opposition to reform of personal laws is based on the freedom of
religion and conscience, whereas the guarantee to citizens of equal protection from
the law and before the law supports a uniform civil code. This issue also raises
questions concerning the hierarchy of rights - can the right to be governed by
personal laws (a component part of the right to freedom of conscience) have
precedence over the right to equality - and legal pluralism in a diverse society. 4
In the Constituent Assembly debates, there were wide differences amongst
the members on the issue of personal laws. On the one hand, there were demands
to protect religious freedom, especially minority interests and on the other, to have
a uniform civil code for all, based on a notion of homogenized citizenship. Unable
to arrive at an agreement, a uniform civil code was seen as a goal to be implemented
and was included in the directive principles. Personal laws of minorities were
maintained and thus, the whole gamut of family, property, marriage, divorce and
adoption rights were left within the fold of religious legislation. 8
Judicial pronouncements are important in determining the essence of the
implications in our Constitution. As early as 1654, in the State of Bombay vs
‘Narasu Appa Mali’ case, it was held that personal laws do not fall within the ambit
of laws in force and therefore, are not void even if they conflict with fundamental
rights. Religious denominations had autonomy and personal laws were recognized
as extra constitutional laws. The judicial perception was that personal laws did not
fall within its purview; scriptures and religious texts were not subject to judicial
review. 8
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However, the Shah Bano judgment of 1685 overturned this view and the
Supreme Court took up the role of bringing in reform. The Shah Bano case concerns
an old Muslim woman who went to court against the way her husband had divorced
her. In 1678, 65-year old Shah Bano filed a petition demanding alimony from her
husband, who had abandoned her for another woman after over 40 years of
marriage. According to Muslim law, Shah Bano was entitled to three months
maintenance. The Supreme Court heard the matter years later and upheld her right
to maintenance. It ruled that Section 125 of the Criminal Procedure Code overrides
Muslim Personal Law (shariat) in matters of divorce. While doing so, the court also
referred to the need to enact a uniform civil code to promote social justice. It held
that no community is likely to bell the cat by making concessions on this issue; it is
the state that is charged with the duty to do so. The political aftermath of this
judgment - protest by patriarchal sections of the Muslim community - inverted the
efforts of the court. The Rajiv Gandhi government, giving in to pressure, adopted
legislation that abrogated the right of the Muslim woman divorcee to maintenance
under section 125 of the Criminal Procedure Code by passing the Muslim Women's
Protection Bill. 8
The judiciary has been very vocal in giving its opinion on the need of uniform
civil code in the country. Justice Kuldip Singh stated in a case that the uniform civil
code was required for national integration. It was stated that minorities should give
up their commitment to the two-nation theory and accept reforms in a similar
manner at the Hindus and thus promote national unity. In the recent judgment of
July 2003, the chief justice V N Khare observed that it was a matter of great regret
that Article 44 of the Constitution has not been given effect. It was argued that the
common civil code will help national integration by removing contradictions based
on ideologies. 8
The issue of religious personal laws reflects yet another aspect of secularism,
i.e., it is limited secularism. In principle, secularism means equal respect and
freedom of all religions, non-discrimination, and the separation of the sacred and
secular but without special protection to minorities, it is a form of majoritarianism.
8
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The right to Freedom of conscience and free profession, practice and
propagation of religion under Article 25 is subject to public order, morality and
health, which has generated enough controversy in the past. The Supreme Court
decreed in a case that Muslims of India couldn’t be given the freedom to kill cows
by way of 'Qurbani' as part of Id VI Adha. The court contended that the killing of
cows could not be regarded as essential practice of Muslims. Also, under Article 48
of the Constitution, which sought to promote animal husbandry, the court has a
reason to ban cow slaughter - an unacknowledged recognition of Hindu belief in
the sanctity of the cow. Thus, Indian legal system has to make a compromise
between the conflicting interests of different religious groups. 8
Similarly, the court has intervened in the affairs of Anand Margis by
restricting their religious right to practice Tandav on the grounds of maintenance of
public order. The court in one case allowed the believers of Jehovah faith the right
not to sing the national anthem on grounds of genuine conscientious religious
objection as there was no provision of the law that obliged anyone to sing the
national anthem. This has resulted in the transformation of the laws regarding
religious freedom into an over assimilationist mould, to pave the way for an
extensive control of religion and religious affairs by the state. It has been pointed
out that in the name of national culture and a homogenized notion of citizenship,
the state has overridden the toleration of religious, ethnic and cultural differences.
In fact, even the decision of what is religion and what is not lies no longer with the
religious group/individual; the court determines it. Also, the legitimacy of a secular
state to control religious institutions, even if the denominations agree, is
questionable and so, what should be the extent of intervention. While it is argued
that the secular state should be kept out of interfering with religious denominations,
and the maximum interference that can be allowed is supervision only, social
reforms necessitate state intervention. The difficulty of restricting the state,
separating religion from the secular and the inconsistency of the judiciary has
undermined secularism. The legal issues related to secularism went to courts very
frequently. In a major judgment the Supreme Court three-judge bench held that Bal
Thackeray's speech in the election campaign in 1690 asking Hindu voters to vote
for Ramesh Prabhu, a Hindu, and making derogatory remarks against Muslims,
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amounted to corrupt practice. This was a bright spot in free and fair conduct of
elections and in restricting the role of religion in election speeches. 8
In another case, the Supreme Court held that Hindutva should be understood
as a way of life or a state of mind and was not to be equated with or seen as religious
Hindu fundamentalism. It held: "The words 'Hinduism' or 'Hindutva' are not
necessarily to be understood and construed narrowly, confined only to the strict
Hindu religious practices, unrelated to the culture and ethos of the people of India,
depicting the way of life of the Indian people".8
The endorsement of the decision of Union of India to dismiss four BJP-ruled
governments after demolition of Babri Mosque was the high point of the Supreme
Court's protection of secular ideals. The court here justified the dismissal of the
Bharatiya Janata Party (BJP)-led state governments of Uttar Pradesh, Rajasthan,
Madhya Pradesh, and Himachal Pradesh in the aftermath of the Babri Masjid
demolition. It was further added that the use of religion and caste to mobilized votes
in the elections by any recognized political party would amount to corrupt practice
and was unconstitutional. 8
In the landmark judgment of S R Bommai vs Union of India, in 1694, a nine
judge bench again reiterated that secularism is a part of the basic structure of the
polity. More importantly, here the court strongly held the opinion that secularism
undeniably sought to separate the religions from the politics. 8
The issue of conversions of poor and illiterate people in remote and tribal
areas especially in Orissa, Madhya Pradesh and Tamil Nadu has been a major area
of controversy in last few years. The state governments have reacted in different
ways to counter this problem under the pressure of majority religious groups. The
constitution allows freedom of choice of religion to every person in India, which
means that a person is free to make his/her choice of religion/sect and hence
conversion is per se legal. However, a person can change his religion/sect only on
his own wish without coming under influence of allurement, force or threat.
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Under the cloak of social service and charitable activities, the missionaries
in the areas of education and health were seen linked to the objective of conversion.
They became the basis of new legislation on the issue of freedom of religion in
Orissa (1667) and Madhya Pradesh (1668). When challenged in court it was ruled
that "what is freedom for one, is freedom for the other, in equal measure, and there
can, therefore, be no such thing as a fundamental right to convert another person to
one's own religion", because doing so "would impinge on the 'freedom of
conscience'" guaranteed to all the citizens of the country alike. The latest attempt in
this direction, the Tamil Nadu Prevention of Forcible Conversion of Religion Act
(2002), goes well beyond the Madhya Pradesh and Orissa Acts to render
conversions, particularly of or by the dalits, virtually impossible. This is so because
of the stringent reporting obligations imposed upon the converts and the converted,
the discretionary powers conferred upon law enforcement officers. Thus it is
evident that law has encroached a bit far into the secular principle of freedom of
religion guaranteed to the citizens. 8
The preventive detention laws like TADA, POTO and POTA were
although enacted without any religious colour in the beginning but their functioning
has not been communally unbiased. It is alleged that these laws were targeted
against certain communities, which made specific community sceptical towards
such laws.
The relation between religion and law is complex. Sometime the
governments fail to protect the ideals of secularism enshrined in the constitution.
The legal enforcement agencies themselves connive with the miscreants to shake
the foundations of Indian democracy. Such instances indicate that despite fifty odd
years of working of the constitution for bringing secularism in a natural way, the
country has lost its way somewhere and religious discrimination by state still
remains a bitter truth. It appears that all hard work done in the past has gone waste
and a deep chasm has been created between the two largest communities posing a
big danger to the secular framework. Several questions crop up in the mind: What
is the future of secularism in India? Will fundamentalism go down or go up? How
will law protect minority rights? What is the future of UCC? Do we need another
model of secularism? 8
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The fundamental limitation in our quest of answers to the above
questions is very clear: we have no other option. We as a nation must adhere to the
idea of secularism in the present context only i.e. giving equal treatment by the state
to all religions. We are a multi-cultural, multi-lingual and multi-religious society.
We have to respect the differences without compromising on national integration.
We have to consolidate opinion on secular issues. The issue of uniform civil code
is deeply associated with maturity of secular idea. Uniform code on maintenance,
heritance etc. is secular in nature and hence requires immediate consensus through
debate and active participation by all political parties. In democracy, the political
parties play a key role in smooth functioning of system. Every party has its own
tailor-made definition of secularism and, when in power, follows suitable
appeasement policy without giving any real benefits to people. It is high time that
they rise above petty political considerations. The media and judiciary have critical
role to play without any bias. Despite some dark spots we have been able to keep
our country on secular path and with more education and awareness we will be able
to fulfil the dream of our forefathers. 8
Secularism is the doctrine that the spheres of politics / state and religion
must be separate. According to D.E. Smith, one of the finest scholars of Indian
secularism, “a secular state is one that guarantees individual and corporate freedom
of religion; deals with individuals as citizens irrespective of their religion; is not
institutionally connected to a particular religion; nor seeks either to promote or
interfere with religion.” From Smith’s definition, it follows that a secular order has
three components:
(1) individual and corporate freedom of religion;
(2) citizenship that has no religious association; and
(3) separation of state and religion.
Secularism is a concept that defies easy summarization. There are
contending ideas about what secularism is and should be. Nevertheless, Smith’s
definition is useful and has the advantage of clarity and wide acceptability. We shall
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use it as a reference point while exploring the theory and praxis of Indian secularism.
19
If Indian society is stridently religious, why should we have a secular polity?
Several arguments may be put forth in defence of secularism:
(i) Political institutions and religious institutions are both extremely powerful;
hence, mixing the two would, therefore, undermine individual liberty. So,
any society that values individual autonomy has to be secular.
(ii) In a religiously plural society, people of all faiths must have equal say in
matters of state, which affect all citizens. Hence, state should be an arena
where one’s religious identity has no significance.
(iii) If religion and politics are not separated, political decisions will favour
religious majorities and democracy will deteriorate into majoritarianism.
(iv) Religion and politics work on fundamentally different premises, viz., faith
and reason. It is not wise to mix the two.
(v) Finally, in a society of many religions, the co-existence of different religious
communities’ demand that in matters that concern everyone, religion be
kept away.
In brief, pragmatic considerations (such as co-existence of diverse religious
communities) as well as commitment to ideals such as individual autonomy,
equality and democracy – ideals that all modern societies hold dear – demand a
secular order. 19
In the Constituent Assembly debate, there was a tussle on the issue of
secularism between those who wanted a strict separation between state and religion
(no links theory) and those who wanted India’s centuries old religious traditions to
be reflected in its polity. The latter group proposed an ‘equal respect theory’ of
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secularism which respected all religions and granted religious liberty to all. What
came out of the deliberations was a compromise that leaned towards the latter group.
The thinking of the Constituent Assembly on the issue is well brought out by a
statement made by Shri K.M. Munshi in the Assembly, “We are a people with
deeply religious moorings. At the same time, we have a living tradition of religious
tolerance- the result of the broad outlook of Hinduism that all religions lead to the
same God… In view of this situation, our state could not possibly have a state
religion, nor could a rigid line be drawn between the state and the church as in the
U.S.” 19
An examination of the provisions of the constitution relating to secularism
shows that while they fulfil the three criteria for a secular state laid down by D.E.
Smith, they fail to establish a clear-cut separation between the spheres of state and
religion. 19
Individual freedom of religion is assured by Article 25 (1). It provides that
‘subject to public order, morality and health and all the provisions of this part, all
persons are equally entitled to freedom of religion and the right to profess, practice
and propagate the religion of one’s choice.’ However, clause (2) of Article 25
imposes limitations on the right guaranteed by clause (1) and reflects the peculiar
needs of Indian society. Clause (2) provides that, ‘nothing in this Article shall affect
the operation of any existing law or prevent the state from making any law –
(a)regulating or restricting any economic, financial, political or other secular
activity which may be associated with religious practice; (b) providing for social
welfare and reform or throwing open of Hindu religious institutions of a public
character to all classes and sections of Hindus.’ 19
Thus, clause (2) of Article 25 appears to have allowed the state to interfere in
the sphere of religion subject to public order. Making use of Article 25 (2) (a), state
manages temples and other religious institutions. In fact, several state governments
have full-fledged department for temple administration. By virtue of Article 25 (2)
(b), State has enacted temple entry laws and affected changes in the personal laws
of communities. 19
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Article 26 provides collective freedom of religion. It provides that ‘subject to
public order, morality and health, every religious denomination or any section
thereof shall have the right – (a) to establish and maintain institutions of religious
and charitable purposes; (b) to manage its own affairs in matters of religion; (c) to
own and acquire movable and immovable property; and (d) to administer such
property in accordance with law.’ However, this Article also affords considerable
scope for state intervention in matters of religion. The question that which practices
can be regarded as part of religion so as to merit protection under Article 26 as
matters of religion has often been decided by the Supreme Court. The position it has
taken is that a practice must be an essential attribute of religion to merit protection;
otherwise the state is entitled to regulate and restrict such practices. Thus, ironically,
Supreme Court in secular India has become the arbiter of what constitutes the
essentials of a religion. 19
Article 30 is another Article that seeks to protect corporate freedom of
religion. Clause (1) of this Article, provides that ‘All minorities whether based on
religion or language, shall have the right to establish and administer educational
institutions of their choice.’ Clause (2) provides that ‘state shall not, while giving
grants in aid to educational institutions discriminate against any educational
institution on the ground that it is under the management of a minority whether based
on religion or language.’ 19
The second criterion laid down by D.E. Smith for a secular state, viz.,
citizenship that is free of ties with religion, has been provided for in the India
Constitution. Articles 15 (1), 16 (1) and Article 326, which provides that election
shall be on the basis of universal adult suffrage, ensure this. 19
The third aspect of Smith’s concept of secular state, viz., separation of
religion and state is imperfectly realized in India. In India, there is no explicit
provision in the constitution, which provides that the state shall not have an official
religion. Article 27 is an important article for separating state and religion. It
provides that “no person shall be compelled to pay any tax the proceeds of which
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are specifically appropriated in payment of expenses for the promotion or
maintenance of any particular religion or religious denomination.” But this article
only forbids taxation for the benefit of any particular religion. Non-discriminatory
taxes for the benefit of all religions would be constitutional. Even if there is no
religious tax, legislature can appropriate funds for the promotion of religion out of
the revenue of the state. This would be in order. As per Article 30, state can extend
grants in aid to schools run by religious bodies. Although Article 28 places some
limits to religious instruction in state schools, it provides for religious instruction in
state funded schools in certain circumstances. 19
What this analysis shows is that Indian constitution provides for a wall of
separation between state and religion that is extremely perforated. The Constitution
makers knew the value of secularism, but they could not make a wholehearted
commitment to it. Indian Constitution does not contain a straightforward separation
between state and religion as provided by the 1st Amendment of the US
Constitution. The relevant part of the First Amendment reads, “Congress shall make
no law respecting establishment of religion or prohibiting the free exercise there
of”19
Our constitution clearly reveals the limits of law in the face of intransigent
tradition. Secularism as it emerges from our constitution is unique. As Rajiv
Bhargava points out, Indian secularism is ‘contextual secularism’ - a pragmatic
secularism whose object is not so much the realization of ultimate ideals but to create
a livable polity. The imperfect buttress of law has not managed to hold together the
edifice of secularism. It has been steadily crumbling. 19
Indian secularism, as we have seen, is the outcome of a compromise between
modernists and traditionalists. But like all compromises, it has not found favour with
either camp. The imperfect (porous or perforated) wall of separation between state
and religion has resulted in the state interfering too much in the sphere of religion.
D.E. Smith points out that the state has emerged as the church so far as Hindu
religion is concerned. 19
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With political parties, whose commitment to secularism is weak,
increasingly coming to power, the imperfect wall of separation has allowed them to
change the character of the state in favour of the majority religious community. 19
The Supreme Court has unfortunately played second fiddle to the
majoritarian deviation of secularism. In Ismail Faruqui Vs Union of India (1694),
the Ram Janma Bhoomi case, the court endorsed a version of secularism that has its
rationale in Hindu scriptures. The court accepted the claim that secularism in India
exists because of Hindu tolerance. In Suryakant Venkat Rao Mahadhik Vs Smt.
Saroj Naik (SC,1696), an election case, appeal to Hindu sentiments and promise of
‘Hindu Rashtra’ were tolerated by the Supreme Court. It held that Hindutva was to
be understood as away of life or state of mind and not to be equated with Hindu
fundamentalism. Hindutva, the court held was the way of life of Indian people and
a synonym for Indianization. 19
In Manohar Joshi’s case (Manohar Joshi Vs Nitin Bhanu Pate 1696),
Supreme Court ruled that the defendants promise during election campaign to
establish the first Hindu state in Maharashtra did not amount to appealing for votes
in the name of religion. In case such as S.R.Bommai Vs Union of India (1694),
Supreme Court has affirmed secularism as a basic feature of the constitution,
however, its recent judgments are deeply disturbing. Supreme Court has, it seems,
brought the argument that symbols of Hindu India stands for Indian culture and
history as a whole. Is the Supreme Court, the guardian of the constitution, becoming
a willing accomplice in the majoritarian project? On the other hand, the emphasis
on minority rights, an essential aspect of our version of secularism has come under
increasing attack. Critics describe it as ‘pseudo secularism’, ‘appeasement of
minorities’ and such like. The Supreme Court seems to share this view as evidenced
by its repeated strictures to implement the uniform civil code. (Sarla Mudgal and
others Vs Union of India, 1695; John Vallamattom and others Vs Union of India,
2003). 19
Secularism is meant to allow people of different faiths as well as non-
believers not merely to co-exist, but to live together as well. However, secularism is
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increasingly no guarantee for peaceful co-existence of religious communities in
today’s India. Communal riots are breaking out frequently and its perpetrators go
scot-free. This should make us wonder if the legal buttresses that we have created
to hold together the edifice of secularism are any good. Indian secularism is based
allegedly on ‘sarva dharma sambhav’ and ‘religious tolerance’. What we need is
true secularism. The need of the hour is to insist that the law applies equally to
everybody and that even the high and mighty should be answerable to crimes against
citizens. We have a whole gamut of laws such as sections 153, 153 (A), 153 (B),
155, 295 of the IPC to prevent incitement of communal hatred. There are also the
laws against murder, mayhem and arson. These constitute our secular foundations,
not ‘Hindu tolerance’. Secular ethnic can be strengthened only if we respect the
rights of citizens and stick to the due process of law. 19
Perhaps the truest indication of the erosion of secularism is that the doctrine
has come under an intellectual onslaught. Secularism in no longer the common sense
of India. Secularism has truly become a beleaguered doctrine in India. Two of the
most influential intellectual attacks on secularism were launched by sociologists,
T.N.Madan and Ashis Nandy. Madan argues that there is no civilizational niche for
secularism in India. He suggests that institutions of secularism are linked to the
dualistic conception of Christianity. Since Christian doctrine recognizes the
distinction between spiritual and mundane, it facilitates the development of secular
ideas about the division of church and state. He argues that a secular constitution
which denies any role for religion in public affairs is at odds with popular common
sense in a deeply religious society. Secularism, therefore, is an ideal of highly
westernized elite and sits uncomfortably in Indian society. Ashis Nandy argues that
by forcing religion out of the public arena, secularists have deeply offended the
religious people. They in turn have turned religion from faith to ideology. Only in
its latter version can religion find a place in public arena. It is the transformation of
religion from faith to ideology that is the cause of religious discord and violence.
Nandy wants the resources of tolerance inherent in traditional religion to be revived.
An engagement with or rebuttal of these two well-known arguments is not in order
at this place. Suffice it to say that 55 years after the introduction of the constitution,
secularism, one of its cardinal principles, has not won universal acceptance. There
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must be something fundamentally wrong with the secular order that we have created.
19
Trying to build secularism through law is a project that is bound to fail. So
long as Indian society remains intransigently religious, secular polity will remain
vulnerable. As of now, there is a wide gap between constitutional norms of religious
neutrality and civic equality and the religion inspired hierarchical values by which
people order their lives. If we need to move from an uneasy secularism to secularism
of conviction, Indian society itself must get secularized. That is to say, science and
reason must regulate social life and religion must become at best a private
consolation. What India needs is nothing short of cultural revolution inspired by the
values of enlightenment. In the initial years of independence, the state actually
promoted these ideas. Pandit Nehru’s call to develop a ‘scientific temper’ must be
seen in this context. But we abandoned the project soon enough.19
Secularization is not the eclipsing of God. It is a demand for God to vacate
those areas of life where she/he does not belong. Secularization is a matter of
delimiting, not eliminating the province of God. If a secular polity is desirable - and
I have tried to argue that it indeed is – we should go the whole way and try to create
a truly modern and secular society as well.19
If Indian society is stridently religious, why should we have a secular polity?
Several arguments may be put forth in defense of secularism:2
(i) Political institutions and religious institutions are both extremely powerful;
hence, mixing the two would, therefore, undermine individual liberty. So,
any society that values individual autonomy has to be secular.
(ii) In a religiously plural society, people of all faiths must have equal say in
matters of state, which affect all citizens. Hence, state should be an arena
where one’s religious identity has no significance.
(iii) If religion and politics are not separated, political decisions will favour
religious majorities and democracy will deteriorate into majoritarianism.
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(iv) Religion and politics work on fundamentally different premises, viz., faith
and reason. It is not wise to mix the two.
(v) Finally, in a society of many religions, the co-existence of different religious
communities’ demand that in matters that concern everyone, religion be
kept away. 22
Situations when feel bad about a part of minority
Even though the politicians are babbled around the political meetings and public
scenario, the news coming from the several regions from the country does not suits
to the constitutional frame, because people belong to the minorities are not always
getting the rights which are essential to be get.
Minorities which are belongs to the tribal community always be on the air, in many
cases they were discriminated on the basis of their community customs and also on
caste base factor.
The Situation better experienced by the recently incidence of the Mumbai’s Medical
Student, Dr. Payal Tadvi, where she discriminated on the ground of backward
community, and given her mental torture by her colleague lady doctors of upper
caste, and finally due to afraid of their violence and mental torture she attempted
suicide and now in rest in peace, the situation despond to everyone. Even in 18st
century the discrimination on the ground of caste base system is still going on.
Move on the recent incidence of the India, where secularism where in endangered
and the vote politics on hierarchy, and the situation of the electronic media on
covering the news, in pro government manner harmed the core structure of
constitution and continued till date.
If we focus on the points of the In India, political unrest continues, after a citizenship
law passed Parliament earlier this month. It expedites a path to citizenship for
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religious minorities living in India, but excludes Muslims, thousands turned out
nationwide to protest the new law.
Elsewhere, mass demonstrations, like this one in Kolkata, were largely peaceful,
though communications are spotty. The government clamped down all mobile
Internet services in several cities, all of this a clash over the identity and a
citizenship law, the government says protects non-Muslim immigrants. It’s was total
miscommunication and chaos made by the government for the vote bank politics to
favour one community over the other.
But, to opponents, the law is a thinly veiled attack on Muslims and a move toward
making India a religious Hindu state. ABHIJIT MUKHERJEE, Indian Parliament
Member said “Until they withdraw the Citizenship Amendment Act, the rallies will
continue to take place. These protests will continue. This is our right. The
constitution of the country is impartial. There is tolerance.
The new law focuses on India's Muslim neighbours, Afghanistan, Bangladesh and
Pakistan, and non-Muslim immigrants from those countries. It protects six religious’
groups. Importantly, this comes as India is undergoing a national registration, asking
every person to prove citizenship. That means non-Muslims without paperwork can
get citizenship, but Muslims without documents may be in legal trouble. The
resulting protests have left at least 15 people dead, thousands arrested, and now more
charges of police violence.
In Northern India, the BBC reported that Muslim families in several towns say
police attacked their homes, destroying cars, smashing property and beating teenage
boys. Security video in that region shows Indian police smashing cameras during
protests, that indicates that how policemen are also the part of behind the camera
political rival. On the point of Hindu nationalist, and defends the law as protecting
our country, but actually it rips India's multicultural fabric.12
India, home to 8 billion, is wrestling with its own power and people. I think what
we have seen happen with the protests that have taken place across the country, in
many different cities across the country, very peaceful protests, as we seen on many
124
platforms, we are really seeing Indians, in fact, largely young Indians, stand up and
say, here's who we are and here's who we don't want to be.
People are standing up for a constitutional principle of secularism. In some of the
protests that we have seen in India, people are reading out parts of the constitution.
That's an incredible thing. We see crowds of tens of thousands of people all together
focusing on the constitutional principle of secularism and equality before the law.
So there are tensions in India. There have been longstanding tensions in India
between Hindus and Muslims. But I think what this particular issue has highlighted
is that there are a large number of people in India who want to see their country
retain its secularism.
I think this is the history of the present at the moment, right? But maybe we will
know more about the scale once we have passed through this moment. But it does
seem that these protests are being located in universities, being student-led, student-
organized in many cases. And it's quite an inspirational thing to see young Indians
standing up and saying that they want to see their country evolve in a particular
direction, and they want to see it remain true to its constitution.13
Even in the amid of the COVID16 situation the primary coverage of the electronic
media on the month of March to May on the corona virus and the coverage on the
Markaz Tablighi Jamat was the propaganda politics, recently Bombay High Court
also comment as blot on the media coverage of the unwanted rivals to the particular
community.
Role of Nehru in Moulding of Modern Concept of Secularism
In views on how to lay a foundation for modern India and how that foundation
should not be guided by any religious, regional, linguistic or any sect… such as
caste, ethnicity, race etc. So, we wanted to mould India or lay the foundation of
modern India on a solid base of philosophy of liberalism, he should get or she should
get certain rights and privileges which should not be on the basis of his or her
membership to a particular community.
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So, the relationship between individual and the state and the rights and privileges
that is given on the basis of that relationship is given on the basis of individual
membership to the state and the citizenship has and its rights has nothing to do with
his or her membership to a particular caste, community, religious or otherwise.
Jawaharlal Nehru articulated such thoughts in his tryst with destiny much before
that during the national movement also, he along with Gandhi and Congress tried to
mould national movement towards his secular politics and not a kind of revivalist
religious politics as it was being argued by Muslim League or Hindu Mahasabha
and many other religious organizations and certainly, after the independence Nehru
tried to give it a official status and that we will discuss on his views on religion,
secularism and critique to Nehruvian ideals and how for his notion of secularism is
relevant in contemporary India.
In the speech of ‘Tryst with destiny’, there he expresses some of the cherished ideals
of freedom fighters and what should be the basis of future India. So, in this text on
the eve of India’s independence towards the midnight of 14 August 1647, Nehru
delivered a speech which is titled ‘Tryst with Destiny’ to the Indian Constituent
Assembly in the parliament, where he stated and I quote,
“Long years ago, we made a tryst with destiny, and now the time comes when we
shall redeem our pledge, not wholly or in full measure, but very substantially. It is
fitting that at this solemn moment, we take the place of dedication to the service of
India and her people and to the still larger cause of humanity”.
So, this text or this speech of Jawaharlal Nehru which is widely read and perhaps,
one of the most influential political public speeches in modern India. Here, he
substantiated the pledge or the ambitions, the ideals of nationalist movement and
how one’s the freedom is achieved not completely, as there were many challenges
that had to overcome and there was partition of the country as well which nobody
desired and yet the circumstances compelled the leaders to compromise on that issue
and there were the communal strikes, communal polarization and socio-economic
challenges.
126
So, Nehru was very clear even when there was the solemn occasion of
independence. He realized the challenges or how that freedom was not complete.
But very substantial and that freedom was to dedicate the state, its resources and
policy to the service of India and her people and there were also the universal
strengths of thought in many of the Indian political thinkers, including Gandhi or
Nehru and he goes on to… and to the still larger cause of humanity which
transcended the geographical, national boundary of India. So, through this text with
Tryst with Destiny, he virtually led the foundation for modern India and played a
significant role in determining the basic features of Indian society and polity.
So, during his long years of 17 years as the prime minister, he had the defining
influence in shaping the polity and state, and society in India. And how he influenced
the institutions and how he led the foundation of certain prominent institutions and
developing the scientific rational temper as we have discussed in the previous
lecture. So, these key tenets of democracy, socialism and secularism were his
greatest contribution in the making of modern India and his views on secularism.
So, his views on democracy, socialism and secularism were his greatest contribution
in the making of modern India. He gave a particular mould or direction to the polity
in free India and three of the major tenets of such direction was democracy socialism
and secularism. Nehru favoured a strong and secular state which was very different
from Gandhian conception of decentralized state, where he wanted power to flow
from bottom to up.
Nehru had a vision of a very strong and secular state or interventionist state for social
and economic transformation. So, Nehru, favored a strong secular state in order to
maintain social stability and religious harmony among the diverse groups and
communities in India. So, Nehru, realized the role of state and its nature as a secular
state not a theocratic state as Pakistan or some other countries where it is difficult,
when a state declares a religion as a state religion and then to maintain a society
which is deeply plural or there are different religions and believers of different faith,
to maintain harmony and peace in such a society.14
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Nehru believed that a state which should be a strong state must have a secular
character. But his understanding of secularism was very different. Many of you may
come across this conception that in opposition to Gandhi who talked about Sarva
Dharma Sambhava that is equal respect to every religion or all religion, Nehru’s was
a western conception, where he wanted a kind of separation of politics from the
religion. But Nehruvian understanding of religion and also, secularism was far more
complex than this simplistic differentiation of Nehruvian notion of secularism which
was a kind of separation of state and religion, to Gandhian notion of secularism
which was equal respect for all religions. That we will discuss in a minute. But
nonetheless, Nehruvian understanding of state which should be a secular state was
essential for maintaining harmony and peace in a society which was diverse in terms
of its religious practices and belief systems.
But, before discussing about Nehru’s notion of secularism, it is also necessary or
desirable, perhaps, to understand his views on religion. So to look at religion and
especially in India, where religion has been and continued to be a defining feature
of Indian life and society. So much of religiosity which governs all spheres of
individual and collective life in India. So, it is almost inevitable that all the thinkers
and public intellectuals or the leaders, political leaders have to engage with this
notion of religion.11
And, in some of the thinkers, we have discussed Raja Ram Mohan Roy to Tagore to
Vivekananda to Aurobindo Ghosh and Gandhi, we have seen how they engaged
with the question of religion and role of religion in the public, political life. And, for
many of them the religion is the basis for the morality or a particular worldview and
of course, there are differences in their interpretation of religion. But they all
engaged with the issue of religion and role of religion in India’s public political life.
So, and this we see in our contemporary times also, here there is invocation of
religion and religion as the basis of formation of nationhood or giving certain rights
to certain communities, protection of certain communities and a lot of debate that is
going on in our contemporary India as well.10
So, religion continues to have a kind of defining power in Indian life and society.
However, the traditional character of society with pluralistic, medieval, feudalistic
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and caste-ridden base has left India divided, hierarchized and without a strong
unifying force. So, for many of these modern political thinkers, their task was how
to unite India which is divided on so many lines like caste lines, linguistic lines,
regional lines, religious lines. Now, they thought of unifying this India on the basis
of nationalism. But what should be the characteristic of that nationalism. So, that
nationalism be based on certain religion or it should have a secular character. So,
Nehru along with congress and Gandhi, despite of using the religion certainly in
Gandhian vocabulary or terminology, he used a lot of words and concepts which
derived from a particular religious tradition. But Nehru’s had a different articulation
of religion and its role in public political life. So, they were also trying to constitute
or to imagine a nation or nationalism which should be able to unite India and
therefore, Nehru, Congress and many other leaders tried to construct a nation
without any attachment to a particular religion and religious tradition.
However, there have been many as we have discussed in Savarkar, certainly, the
Hinduism or Hindutva for him as the basis of Indian nationalism. Certainly, Muslim
League for Jinnah and Iqbal who thought about Muslim or Muslim religious
tradition as the basis of Pakistan. So, there were those who argued about unifying
India on the basis of religion and caste which leads to hierarchy and social divisions
that needs to be overcome. But how that can be overcome becomes a greatest
concern of modern Indian thinkers.
So, despite of the religiosity in India, we also had a strong tradition of toleration or
what we call accommodation of religious differences. But the question for these
thinkers then was should that tolerance which has a negative connotation of it. It is
like we do not agree with you, but we tolerate you, it is a kind of certain patronizing
approach towards the other or the different. So, we have this strong tradition of
toleration or accommodation of religious differences. but the question for these
thinkers said that should religion be a guide of morality and ethics in modern
politics.14
So, for them, the politics is not just an end in itself. politics for them or acquiring
power through politics is for larger good of India or still the humanity. but for that
there is a need to connect politics or political programs with the question of morality
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and ethics. For many, like Gandhi and others thought about religion as the source of
such morality and ethics. and therefore, certainly in the logic of Gandhi, the
conception of religion is very different from say, in Savarkar or in Iqbal, where there
is a kind of belief in one’s religion but accommodation or mutual co-existence with
other or different religions.
But, for Nehru, the role of religion or scientific temperament and others became the
basis for such questions of morality and ethics. So, he also tried to then,
conceptualize morality and ethics beyond the resources of religion which turned out
to be more religious or which is turned out to be more dogmatic, superstitious and
based on organized ritualistic kind of propagation and it suppresses its own follower.
So, there is a hierarchy within a religion.
So, intra-hierarchy, intra-religious hierarchy or domination is something Jawaharlal
Nehru was trying to grapple with and he thought reason or constantly thinking or
pondering upon such issues of ethics or spirituality which remained a vital force in
his thinking and thought, and in many of his speeches and writings, he drew upon
this question of spirituality, ethics and morality. But what should be the basis of
such morality, ethics and spirituality or the human needs that should be the work of
constant use of mind or constant reasoning and for what purpose that should be. So,
Jawaharlal Nehru was trying to base his conception of ethics and morality on the
basis of reason and not religion.
So, Nehru’s general outlook towards life was not controlled by religious beliefs and
practices. He developed a kind of scepticism towards all forms of organized religion
from the very beginning and this was clearly manifested in his numerous writings
and speech, including his autobiography and also, the Discovery of India. So, it was
rather difficult for him with all his rational and scientific training and temperament
to adhere to superstitions and dogmas of religion. Whether Hinduism, Islam,
Christianity and other religions.15
So, Nehru considered reason or science as the sure basis for conception of morality
and ethics than superstitious belief or dogmatic belief in any practices or organized
form of religion. So much so, even he subjected Gandhian ideals of non-violence
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and satyagraha to this rational inquiry and critique, and realized that as a viable or
appropriate method of achieving independence in India. So, he did not have a blind
or uncritical acceptance of any ideals or any forms of practices or belief systems.
So, Nehruvian understanding of religion was not a kind of rejection or complete
rejection of religion. He accepted some tenets of religion as self-inquiry which
allowed one to think about the larger questions which science or rationality failed
and there was a kind of dialogue between Gandhi, Nehru and Tagore also. And all
of them were trying to conceptualize a notion of ethics and morality which should
be appropriate for the modern life or the modern individual and there we also find
in Nehruvian conception, he came closer to Tagore in his rationalistic or scientific
outlook then to Gandhi and yet intuitively, he was also follower of Gandhi and
perhaps, he shared a closer or intimate relationship with Gandhi and his thought and
ideals. But he subjected even that to the critical or rational inquiry and that became
a matter of his criteria, a heuristic principle for him, to subject his decision and look
at the world more objectively, rather than through the prism of any dogma or
superstitions or belief systems.
So, Nehru’s agnosticism which was like not complete rejection but not also
complete belief in something. So, he developed an agnostic approach to religion or
any form of organized religion. So, Nehru’s agnosticism and scientific temper could
not but make him a non-religious man and he claims himself as not as a Hindu, not
as a Muslim or as a Christian, but he developed a kind of indifference or agnostic
approach to the religion and yet he was deeply engaged with the spiritual question,
the question of humanity or humaneness in him also forced him to engage with the
question of religion at the deeper level, at the fundamental level.17
So, his secular spirit inspired him to establish a secular society based on the notion
of justice, liberty and equality and he said our ardent desire was to see people of
India united together and not divided on religious lines, caste lines, linguistic lines
or any other lines. So that, we might frame a constitution which would be
acceptable to the masses of Indian people and this acceptability of constitution, if it
was based on a particular religion or a particular tradition or it caters to the need of
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a particular community, then it would not be acceptable to the masses of the Indian
people or every section of Indian society.
So, therefore, the task of constitution was something which should be acceptable to
every section of Indian society and through that, he envisioned a kind of unity or
Indian’s could be united together only on the basis of a secular constitution or a
secular state and secularism. Therefore, for Nehru was a creed, as a basis for the
establishment or for the shaping the polity and state, and its institution in modern
India.
So, for him, secularism was not only a political doctrine or a belief in the political
nature of political aspect of this question about secularism. But a social one of
revolutionary character which embraced all religions. So, there is no rejection, there
is no undermining of religion. But a kind of critical approach to religion, where
certain dogmas, certain superstitions and irrational practices and beliefs need to be
criticized or challenged. And yet he wanted a state which should stand itself from
all forms of religion and should not prefer or promote any particular religion or
creed.
So, for him, secularism was not only a political doctrine, but a social one of
evolutionary character. So, to think of a society which was deeply religious and he
wanted that society to develop a kind of united force or a kind of solidarity which
should be based on complete freedom of equality, liberty and justice. So,
opportunity should be given to everyone without any consideration to their
belonging or their membership to a particular caste or community or religion. So,
and that he wanted not just to be limited to the state and polity.18
But it should encompass all spheres of society as well. So, therefore, the secularism
for him, it was evolutionary in character which embraced all religions and
communities in India. It meant a social structure where individual should not be
subjected to some hierarchical position in society on the basis of one’s faith or
religion. It meant a certain mental attitude on the part of individual and groups
towards the members of other religious groups and communities, inter-group and
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inter-personal relations were not supposed to be affected by religion and religious
consideration.
So, he wanted to construct a society not just a state and polity on the basis of
secularism. For him, secularism should be the basis which would bring egalitarian
society into existence from a deeply, hierarchical, feudal, caste ridden society in
India. And for Nehru, secularism was not just about religious domination and
countering religious domination of one community over the other. But it also
entailed removing all kinds of hierarchy, be it between men, women or be it on the
basis of caste. However, his own conception of secularism took different shape,
when many of his followers which we can also called Nehruvian, their
understanding of Nehru’s secularism was reduced to protection of minorities which
led to a lot of criticism of his model. But, for Nehru, secularism was also about
bringing radical transformations in society, to remove any kind of hierarchy or
divide which was on the basis of religion or caste or gender and inter-faith or inter-
personal relationships that individuals should share in society and should not be
guided by any religious belief or irreligious belief or the space for those who did not
believe in religion.
So, for Nehru, the role of religion in society or the secularism was towards
transforming a society into a more egalitarian society devoid of any hierarchy on the
basis of caste or religion. So, now if you look at his conception of secularism, we
find according to Nehru, secular philosophy neither meant irreligion right,
something we need to emphasize and for in contemporary debates, the usual critique
and very often, you hear that secularism is automatically mean or seen as anti-
religion or anti-religion or irreligion.
But for Nehru, secular philosophy meant neither religion nor material wellbeing or
just the scientific outlook to life and society. It contained spiritual elements also and
his concept of secularism had many fold aspects that we will discuss one by one.
But most important thing that we need to keep in mind here is that for Nehruvian
conception of secularism, it did not mean irreligion or absence of religion. But it
engaged with religion and create a state which was not guided by any of them and
yet engaged with those who required state interventions to prevent domination of
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one religious community by the other, be it majority or minority. But it had of
course, different nuances which somewhat got left out in the post-Nehru or what is
called his followers conception or articulation of secularism.19
So, in his conception of secularism, the question of spiritual as we were discussing,
what morality and ethics was also deeply embedded there and characterized his
understanding of secularism and that is why, he was not an atheist. But agnostic. He
dwelt with spiritual questions, the question of ethics and morality and yet did not
want to be guided by any particular religion, certainly, its organized form of religion.
So, if religion is about religiosity or about developing a better self or about self-
inquiry or about developing an ethical outlook to society, to community, towards
self or towards other, then perhaps, Nehru will agree to such conception of religion.
But, if it is about a kind of routine, organized, dogmatic structure of religion which
creates hierarchy between one religion and the other, or between within one religion,
between the priest, the ulemas or the maulavis or pundits and the followers, Nehru
had deep problem with such conception of religion.
So, in his understanding of secularism, there was no absence or irreligiosity in the
conception of secularism. Now, to discuss these four aspects of secularism in
Nehruvian conception of secularism, the most essential feature of secularism,
according to Nehru was the granting of equal status to the religion. In other words,
the question of equality in all religion or all forms of belief systems or practices are
regarded equal in the eyes of state. So, he believed that the right to perform religious
ceremonies should certainly be guaranteed to all communities and no preference or
no preferential treatment in terms of organizing or believing or performing certain
ceremonies or in certain beliefs and practices. So, no religion should have any
special privilege and no community should be deprived of its legitimate rights on
the basis of religion.
So, in other words, the state and it rights, it sanctions to the citizen are independent
of their membership to a particular religion or not. So, state treats all religion
equally. In other words, it does not make any discrimination only on the basis of
their membership or to a particular religious community. So, unlike, Savarkar,
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where we have seen the Hindutva, the question of who is Hindu and therefore, the
basis of Hindu Rashtra and their status in such a Hindu Rashtra. Because they belong
to a particular community which is very different from Nehruvian conception of
individual or the role of religion. So, the question of equality becomes crucial in his
conception of religion.
So, he writes, ‘I find it difficult to appreciate why political or economic rights should
depend on the membership of a religious group or community. It can fully
understand the right to freedom in religion’. So, the freedom, right to freedom in
religion was something which he wanted to guarantee to every member or
community without any consideration of their beliefs or faith. So, to him, it meant
equal respect for all faiths and equal opportunity for those who professed any faith
or did not profess at all.
So, the question of equality was the crucial one in his conception of secularism. So,
in modern plural society, the concept of personal faith and personal conduct must
be respected. Secularism is a federal principle applied to a federal society for the
welfare of the whole and not few or a particular group. But the whole section or the
whole community.
So, Nehru declared, we were building a free secular state, where every religion and
belief had full freedom and equal honour whose every citizen had equal liberty and
equal opportunity. So, that was his conception of secularism. Here, the personal
conduct and personal belief is something which is respected or guaranteed by the
state and the constitution and there is a no discrimination on the basis of any
particular religion and religious community and the membership thereof. Now, to
look at the second feature of secularism, according to Nehru, was that a state should
follow a policy of neutrality or we can also say, a kind of distance from the affairs
of religion or religious affairs. This is related to a western conception of secularism.
The American model is about a wall of separation between a state, polity and the
church and both should not interfere with each other.6
So, it is said that American legislation cannot or is not supposed to pass a legislation
on the matters related to church or vice versa. Church is not supposed to interfere in
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the matters of state or politics. So, give… but however, in Nehruvian conception of
secularism, the idea of neutrality was a little different or somewhat unique in the
context of India with a diverse religion majority on the other hand or minority on
the other hand. So, he was also aware of the threat or the sense of insecurity among
the minority communities and there the role of neutrality or absolute neutrality is
something, he was trying to modify or trying to put it in such a way which would
help in developing self- confidence or ensuring equality of opportunity to every
religion without any consideration to their numerical strength.
So, however, the question of state and its neutrality that state does not patronize or
prefer one religion over the other or a state does not have its own religion. It does
not mean state is irreligious. But it means that a state does not have any official
religion. But it does engage with the affairs of religion, when there is a domination
of one religion over the other or there is a sense of insecurity among the minority
communities. So, there state goes to give them protection from any religious
domination by the other communities.
So, the question of neutrality remained a crucial aspect of his conception of
secularism. In a letter to Ghanshyam Singh Gupta in October 1645, before the
independence Nehru clarified his point of view. So, ‘I am convinced that the future
government of free India must be secular, in the sense that government we will not
associate itself directly with any religious faith’. Earlier in 1631, in Karachi
congress, also Nehru drafted the resolution on fundamental rights. It also stated that
a state should observe neutrality in regard to all religions.
So, it would maintain a distance in neutrality from any particular faith or all religious
practices. So, therefore, Nehru always condemned in strong words and he was very
critical of any conception of Hindu Raj or Muslim Raj or Hindu Rashtra or Muslim
Rashtra. He believed in the people’s Raj or in a democratic, secular nation rather
than a Hindu nation or a Muslim nation and the conceptualization of nation on the
basis of any religious practices. So, he believed in people’s raj and for that state was
expected to follow a policy of coexistence.
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So, far as various religions were concerned, if the state tried to infringe upon
religious freedom, then that approach would be not only wrong in itself, but would
inevitably led to frictions and troubles. Moreover, any such attempts according to
Nehru would be thoroughly anti-democratic.
So, here, one can also understand the different mobilizations which were unfolding
during the anti-colonial struggle and for a very long time, there was mobilization on
the basis of religious lines also which deeply disturbed Gandhian and Nehruvian
conceptions of India or Indian nationalism which were based on secular principle.
Of course, Gandhi and Nehru differed in their conception of secularism. But
nonetheless, they wanted India to be a secular India without any consideration to
any particular religious community. And therefore, Nehru was a very strong critic
or he was a vocal critic of any conception of Hindu Rashtra or Muslim Rashtra. And
he wanted India to be free from any religious influence or religious character to
provide opportunity or equal opportunity for different religions without interfering
in any particular religion which he thought may lead to further disharmony or riot.
So, the religious violence and rights are not something unheard of. It was more
frequent and the social structure which was deeply hierarchical or violent are
something which he wanted to eradicate and only way to eradicate such social
divisions on the basis of religion was possible through a state which should be a
secular state and which should maintain neutrality from any forms of religious
practices or any particular religion. Now, thirdly, Nehru secularism also meant a
certain mental attitude and this was not just about the political aspect of secularism
or as we have discussed just about a state. But he wanted every community or every
individual or every Indian to develop a particular mental attitude towards other.
Here, other, within quote, means ‘different committees or religious differences.
So, to Nehru, secularism, also meant a certain mental attitude on the part of various
communities, particularly in India with the variety of religious groups it becomes
most essential that this would develop an attitude which could bring about harmony
and feeling of fraternity towards one another. So, how to deal with other, how to
engage with other? If one so, one of the strength of religion is it give a particular
worldview with certainties about religion and with certainties about morality and
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ethics. How he should live the life? How we should deal with others? And we have
seen certainly, in European experiences, where other is seen as a threat or an
existential threat. So, if one is guided by one’s religious beliefs and faith, then his
or their encounter with the other or different one who is following or believing in
different faiths is somewhat violent, somewhat based on mistrust or kind of seen as
existential threat and which leads to perpetual violence as European countries have
experienced such religious violence. So, Gandhi, Nehru and congress wanted to
avoid such path of religious violence, where each see other as an existential threat
and then, therefore, a kind of suppression and religion. So, partition is a result of
such things.8
But the future India or the modern India that Nehru wanted to build or give a
dominating shape or a kind of very effective institutions and somewhat he had been
successful in giving a secular character to Indian a state and secularism became an
article of faith for many or millions of Indians which is certainly now, under
somewhat revision or somewhat re-articulation.
But, the secular characteristic of Indian state is by and large, result of Nehruvian
understanding of the state and its role, where he wanted secularism to be accepted
by the state, by different communities and where they see each other and the inter-
relationship between them should be governed by the secular belief rather than by
their own particular religious’ faiths and beliefs. And that will lead to a stable
society, harmonious society and develop a kind of fraternity which is desirable for
India’s progress and development.
So, to Nehru, it was quite clear from the beginning that the realization of secular
ideal depended largely upon the attitude adopted by the majority community, the
Hindus towards other minority communities. So, there is a kind of neutrality. But at
the same time, some kind of protection to the vulnerable communities or the
minorities. So, he repeatedly, emphasized that the ‘Hindus must always remember
that the interest and the well-being of the minorities are their sacred-trust. If they
fail in their trust, then they injure not only the country but themselves’.6
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So, any narrow and aggressive attitude on the part of the majority community would
create a feeling of apprehension in the minds of minority communities. And he
opined that it was much better to displease a few persons, to lose an election rather
than fail in the ideal of secularism. So, he had such a strong faith in secularism and
secular ideals that he was prepared to subject himself to critique or displease his
enemy and Gandhi certainly from 1630s developed a lot of enemies.
Because of his views on religious matters and the role of secularism in Indian polity
or Indian nation and the kind of relationship, he wanted to develop between Hindus
and Muslims. So, for Nehru, also the protection of religious minority is the
responsibility or developing a sense of confidence among those who are the
minorities was something which he wanted majority community or Hindus to
shoulder and if it is not done or if such sense did not prevail among the minorities,
then it would lead to a kind of harm to the communities and also, to the social
harmony which was required.
So, finally, he wanted secularization of all areas of social life as we have discussed
and Nehru recognized how deeply religions like Hinduism and Islam penetrated into
the social life of India. Therefore, he wanted to secularize every sphere of Indian
society. So, here, one can also make a distinction between secularism which is a
belief, which is a theory, which is an article of faith and then, a process of secularism
which would enter every sphere of individual and community life and the
interpersonal relationship should not be governed by religion which is the case
even today or the caste or any other form of hierarchical relationships.
So, Nehru also talked about the role of secular state in the process of secularization.
So, his concept of secular state was based on this following assumption that no
matter how great one religion might be in the first sense, the state cannot identify
with it or with any other religion. It cannot attach itself to any one religion and
declare it as the state religion. So, the state may be nourished by all or by none. So,
there may be the existence of many religions or one religion. But a state cannot
identify itself with that religion no matter how much great that religion might be.
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So, in the conception of many leaders who thought about a theocratic state as in the
form of Hindu Rashtra or Muslim Rashtra, Nehru conceptualized Indian state or
modern Indian state on the secular lines, where a state does not have its own religion
and do not affiliate itself with any religion no matter how great that religion is.
Second in Nehru’s views, a secular state cannot be anti-religious state. It is not a
state, where religion as such is discouraged. He argued that a secular state must
accept the public presence of all religions, also to foster cooperation between
different religious communities which should be a constitutive objective of a secular
state. So, there the question of neutrality somewhat tricked here, in the sense that a
state does not affiliate itself with any religion and yet it does not prohibit any
religious groups or it does not discourage any religion. So, it acknowledges, the
public presence of religion and it tries to develop among them a kind of harmony or
fraternity. And that is the objective of modern, secular state which does not mean
anti-religious state or irreligious state.
So, it is the duty of a secular state to protect religious diversity that is there in India
and to undermine inter-religious dominations or to counter any kind of religious
domination of one community by the other. So, in a religiously diverse society,
where the prospects of inter-religious dominations loom large, a secular state should
have respect for all religions and manifest itself as a commitment to minority rights.
And therefore, the minority rights and protection of minority rights becomes
necessary for a secular state, where there are always have the possibilities of
dominating one religious community by the other.
So, in that case Nehru justifies state’s interventions in the majoritarian acts of a
religious community. So, therefore, he understood the role of a state and its forces
in maintaining at times, the religious domination of one group over the other. So, he
believed at the state’s use of that use of force violence and coercion, while necessary
for the functioning apparatus of the state. It protects in the instances of external
aggressions, armed rebellions and internal disputes such as riots and others.
However, it should not be used in the evil spirit of hatred and cruelty.
So, these forces which may be helpful in the times of you know, crisis or existential
threat to the state which he acknowledged. But he did not want it to use for in a
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negative sense or with the spirit of hatred and cruelty towards the other or any
particular community. So, in collaboration with this, the state requires to formulate
coercive laws and regulation for the maintenance of peace, harmony and unity
within its territorial jurisdiction. So, a state can regulate the religious violence or
control that violence, regulate certain organizations which may lead to law and order
problem or pose a threat to the state.
So, in such context, he wanted… and therefore, in Nehru, we have a strong
conception of state capable of enforcing its will on the society or in the society which
is deeply hierarchical, feudalistic or believes in domination of one group over the
other. Be it on the basis of caste or religion or gender and therefore, in his conception
a strong or interventionist state is desirable to create an India which should be a
secular India and where there is non-discrimination on the basis of religion, caste
and gender. However, the use of such force or violence or regulation is not in ill fate
or an evil spirit of hatred or cruelty towards other or any particular religion. So, the
idea is to develop social harmony or a society or inter-personal relationship in the
society which should develop a true or mutual respect or true faith or solidarity
which will help in transforming India, socially and economically.
So, Nehru, also tried without much success to evolve a Uniform Civil Code for the
whole of Indian people, irrespective of the distinction of religion and caste by
introducing many measures of social legislations and to some extent, his support
for Hindu Code Bill as proposed by Ambedkar was also because of his belief in
reforming the society within or religious groups or community within. So, many
measures he undertook. But there was also his acute sense of the time, the
circumstances which also enabled him to understand the limitation of his time or his
context. So, he tried these measures. But remained compromised in his success or
in his objectives. So, he once wrote that the word secular conveyed to him much
more than its mere dictionary meaning, especially, in the context of the social
conditions prevailing in this country.
According to D. E. Smith, the definition of the secular state in Nehru was of a
religiously neutral body. For example, a state protects all religion but does not favor
one at the expense of other and does not itself adopt any religion as the state religion.
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It is not a theocratic state. It does not favor a particular state over the other and yet
it protects all the religions, especially, when there is a domination of one religious
community over the other.13
So, secondly, the process of secularization should extend to the social realms of day
to day life which includes the social codes and rules of marriage, inheritance, civil
and criminal law, political organization and indeed almost everything else. So,
Nehruvian conception of secularism was not limited to the state laws and
constitution. But also, to transform or to influence everyday life in this society and
the way society govern itself through the marriages law, inheritance laws, civil and
criminal law etc. So, lastly, the inclusion of provision of fundamental rights and the
Articles of 15, 25, 26, 28 and 325 further, reinforced the secular agenda of
Nehruvian state in India which is distinct from the Gandhian idea which provided
equal amount of consideration and respect to all religious faith.
Now, to look at some of the critiques of Nehruvian model of secularism, we find as
a liberal democrat, Nehru was mainly instrumental for inculcating into our
constitution some of the prominent liberal trends. However, Nehru’s model of
secularism was not free from criticism and many scholars and political theorists have
criticized secularism on the following rules: first, they criticized Nehru for his
identification of secularism with a defence of minority rights, as if only purpose of
secularism is to equally respect all religions and to provide support to all of them.
So, here again, one needs to make a distinction between Nehru’s own conception of
secularism or a secular state and what is termed as the Nehruvian model of secular
state. So, as I was saying that Nehru himself want to use secularism much beyond
the political sphere or the affair of the state, to encompass all aspects of social life
or individual community life, to eradicate or to remove all kind of hierarchy, be it
on the basis of caste, gender or religion. So, his understanding of religion or
secularism is very different from the Nehruvian conception of secularism which
came to be regarded merely as a protection of minority rights or many argued about
the minority appeasement.
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But Nehruvian conception is much broader and complex than this conception. But,
however, as many of his followers came to believe or the practices of state came to
be understood or perceived as merely as a protection of minority rights. Hence, there
is a critique to his conception of secularism. Second, Nehruvian model of
secularism, hardly helped in countering intra-religious dominations. Rather its main
focus was on fighting inter-religious dominations. So, for this reason, the strength
of Nehruvian secularism or its defense of minority becomes its weakness and
became only a pro minority secularism.
So, as we have discussed that the question of hierarchy within a religion. So, Nehru
did understand the intra-religious domination of one group over the other group
within the same belief or belief system or same religious tradition. However, the
conception of secularism as being practiced, hardly encountered or encountered this
hierarchy. So, within Hinduism, we see the upper caste dominating the lower caste
or Dalit reassertion or self-dignity movements and similarly, in Islam, we see such
kind of intra-religious domination which hardly got resolved by this Nehruvian
model of secularism and that remains one of the critique of Nehruvian model of
secularism.
So, to conclude, however, we find that Nehru regarded secularism as the most
essential feature of a modern democratic society and modern India could not go back
to the narrow medieval concept of a theocratic state. And he said, if she were to
develop like a modern state, then how could she believe in the religious, theocratic
conception of a state which considers people of other faiths as something beyond
the pale… something which should be discarded or something which should be
subjugated or controlled or regulated. So, Nehru’s secularism was a practical
necessity in India as a solution to the problem of religious diversity which was a
challenge to her unity, harmony and social stability.14
So, Nehruvian conception of secularism is much beyond the philosophical or
theoretical articulation of the term. But it was to give a proper effect in the everyday
functioning of Indian state or developing a society which should be peaceful and
harmonious, despite of, the presence of diverse religions or plurality in terms of
religious faiths and belief systems. So, there is a practical concern or pragmatic
143
approach to secularism in Nehruvian conception as well. So, it is a practical
necessity or the pragmatic approach which also defines his conception of secularism
and not just merely theoretical or intellectual interest in this question of secularism.
So, Chester Bowles writes of Nehru as, “One of his greatest achievements is the
creation of his secular state in which the 45 millions of Muslims who chose not to
go to Pakistan may live peacefully and worship as they please”.
So, one of the achievements of Nehruvian state is also considering the fragile nature
or the effect or aftermath of partition, the polarization of community on the basis of
religion. In such a context, Nehru by and large was successful in giving a secular
direction to Indian state without any consideration to the religious groups and
communities. Of course, that is now somewhat again, revisited in the context of
post-Babri politics or post-Babri Masjid demolition politics in India. But, certainly
for a very long time, India despite of so many riots and communal tensions
maintained a secular path and the credit for that must be or should be given to
Nehruvian conception of secularism and Nehruvian ideals of secularism.
So, it was due to Nehru’s efforts that India emerged and developed as a secular state
in mid-20th century and where there are great many organizations working towards
revivalism of different religious varieties. So, much before independence, he played
a heroic role in development of a secular basis for Indian polity and he was
instrumental along with Gandhi and others to give a decisive secular turn to anti-
colonial struggle differentiating himself for the Hindu revivalist movement on the
one hand and Muslim separatist on the other.
So, Nehru did play a very significant role much before the independence in giving
the secular base to Indian polity, Indian freedom struggle, defining Indian
nationalism in a more secular sense, than in a narrow revivalist sense of religious
nationalism. So, in the post-independent India, certainly, when he was prime
minister for 17 years, he had decisive impact in shaping Indian state as a secular
state. And he did succeed in developing a sense of confidence among the minorities
or different communities in India and for state, the membership of a particular
community does not entitle him for a preferential treatment or a special treatment.14
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CHAPTER 4
LANDMARK JUDGMENTS ON SECULARISMS
In Keshavananda Bharti, the full court inscribed secularism as an essential
feature of the basic structure of the Indian Constitution; in 1657 Justice Khanna, in
Indira Gandhi vs. Raj Narain reinforced this view. Both these momentous
decisions signify that even Parliament may not modify, by constitutional
amendment, these nine features. By this time, the nine features of secularism had
marshalled behind them a quarter century of national constitutional consensus. To
these features has been now added, a fundamental duty of all citizens under Article
51 A to preserve the rich heritage of our composite culture. Clearly, the redefiners
of secularism have not asked for abolition of Article 17 or Article 25(2) (a) or (b)
or Article 26, 30 and 290-A. Equally they are not saying that the Supreme Court
should not have the power to interpret the scope of rights enshrined under Articles
25 and 26; certainly they are not unhappy with Hanif Qureshi vs. State of Bihar,
a decision which held that sacrifice of a cow is not an obligatory act enjoined by
Muslim religion nor with the result upholding both Orissa and Madhya Pradesh
legislations forbidding proselytization by Christian missionaries which involved
force or fraud and they were not unduly upset by Mary Roy’s judgment striking
down Christian laws of inheritance on grounds of gender justice. Nor was public
dissatisfaction voiced on prohibition on Anand Margi’s Tandavnritya accompanied
by sharp weapons and human skulls. 2
No outrage was expressed when prohibition of bigamy was upheld by the
Supreme Court in 1666. Further, the redefines, as well as their brethren pseudo
secularists, were one in rejoicing at Supreme Court verdict on Shah Bano and acted
in wholesome concert in denouncing its Parliamentary reversal. Clearly, at one
glorious historical moment, secularism had a translucent and compelling meaning.
Manifestly, what the re-definers of secularism were directing their energies on what
they perceived as unequal exercise of power of the state providing for social welfare
and reform of religious practices. And this is, so despite Article 13, which declares
that all laws in force in the territory of India immediately before the commencement
of the Constitution, in so far as they are inconsistent with the provisions of
145
fundamental rights, shall to the extent of such inconsistency be void. They consider
the inability and the reluctance of the Indian state to subject laws other than Hindu
personal law to the constitution as appeasement to minority fundamentalism.
Moreover, the post Shah Bano discourse is viewed as tainted by violation of
directive principles enjoining the state to endeavour to secure for the citizens a
uniform civil code throughout the territory of India.2
In the landmark judgment of S.R. Bommai vs. Union of India 1694, a nine-
judge bench again reiterated that secularism is a part of the basic structure of the
polity. This case was the high point of the Supreme Court’s protection of secular
ideals. This judgment also stated that secularism in India is based on tolerance.7
Further, in a recent judgment on the NCERT text book case, the Supreme
Court decreed that all the faiths are equal. The majority view was that the essence
of every religion is common, only the practice differs. This is against the faith of
tolerance because it is assimilative in its intent and does not give an individual the
autonomy of self. There are different beliefs, cultures, viewpoints and groups in our
country and these differences need to be respected so that they do not loose their
identity. 7
Interestingly it is the judiciary in India that tells us what constitutes religion.
Itis of the view that the problem with secularism in India is the demarcation between
‘what are matters of religion and what are not’. Religion is not defined in the
Constitution and it is a term that is hardly susceptible of any rigid definition. While
in principle the Court seeks to protect the religious beliefs of all, they are subject to
limitations imposed by the state on grounds of social welfare, public order, morality,
health and any other provision of the fundamental rights of the individuals. The
judiciary evolved the doctrine of essentiality of religious practices to be the basis of
protection of the freedom of conscience and profession, practice and propagation of
religion to manage religious affairs. While in the early cases, Sirus Math Jagannath
temple and Bombay trust cases of Justice B.K. Mukherjee, the Court assured all
religions protection of their belief. Practice and management of their religious
institution, in the later years, like in the Nathdwara temple cases, the Court
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Dissertation - SECULARISMS UNDER THE SHELL OF CONSTITUTION OF INDIA
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