Dissertation - SECULARISMS UNDER THE SHELL OF CONSTITUTION OF INDIA

profounder that only the essential practices of a faith would be protected, while then
on-essential features such as carrying lethal weapons and human skulls (by
AnandaMargis) was believed by the Court to be non-essential. 7

The subject of personal law brings out yet another feature of secularism i.e.
the protection of minorities in a plural state. Secularism sans protection to minority
religions and cultural groups creates majoritarianism. To protect minority interests
special protection measures need to be undertaken to cover need for different
identities and cultures. Opposition to reform 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 rights be governed by personal
laws, or have they precedence over the right to equality and legal pluralism in a
diverse society. 7

In Sarla Mudgal, President, Kalyani and others vs. Union of India, the Court
reiterated the need for a uniform civil code; Justice Kuldip Singh stated that the
uniform civil code was required for national integration. In the recent judgment of
July, 2003, John Vallomattom and Anr. S. vs. Union of India, Chief Justice
V.N.Khare observed that it was a matter of great regret that Art. 44 of the
Constitution has not been given effect. It was argued that the common civil code
helps national integration by removing contradictions based on ideologies. While in
the Shah Bano case the objective of Court was social reform and the Court took
upon itself this task. 7

India aspiring to become a developed nation in near future, need to achieve first
the internal harmony in the society. Swami Vivekananda told ‘to achieve religious
harmony we need acceptance rather than tolerance, because tolerance has limit but
once if you accepted and let live other fellow faith persons, you have no problem of
tolerance’. Moreover, as mentioned in our fundamental duties, one should try to
develop scientific temper. Science will provide some solutions to some of our basic
understanding of human evolution. Shared characters, genes etc. apart from our
judiciary will play important role of securing secularism in the country. The Court’s
jurisdiction to interpret the Constitution had given it considerable authority. In the

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absence of any rigid demarcation of the spheres of the secured and the secular the
Court has remarkable autonomy. A secular India is must for our future generations
to live in peace and to prosper. 7

1. In Church of God (Full Gospell) in India v. K.K.R. Majestic Colony
Welfare Association court was having a close look at religious freedom of
person provided by Article 25 of Indian constitution. It was the routine of
church that to sung prayers for that purpose they fixed a loudspeaker outside
the church so that people can understand that prayers are going on. It was
distributing to neighbours because it was residential area. Petitioners
claimed that it is the fundamental right of church to sung prayers and they
never crossed permissible level of noise pollution. The apex court of India
held that it is volition of right to sleep as part and parcel of Article 18 of
Indian constitution held that use of loudspeakers in not essential part of
freedom of religion guaranteed to persons. This kind of freedom of religion
is not expected to Article 25 of Indian constitution.2

2. In Acharya Jagdhishwaran and Avdhut v. Commissioner of Police,
Calcutta, the petitioners in this were restrained from conducting procession
on Public Street carrying sharp weapons in their hands. The petitioners in
this case claimed that freedom of religion is available them under Article 25
of constitution. The court held that freedom of religion exercised and same
is creating law and order situation then such practice of religion is not
permissible. The court evolved a very basic principle that freedom of
religion can be curtailed when it hampers the public order. 2

3. In Narendra v. State of Gujarat apex court was encountered with questions,
as per article 26 of constitution the religious denominations can establish
religious institutions. The movable and immovable property can be acquired
by the religious institutions. In this case Gujarat government passed ceiling
on holding of Agriculture land Act and property was acquired ad declared as
surplus. This Act was challenged as violative to freedom of religion. Apex
court of India held that Act is valid and ceiling on holding land is applicable
to religious institutions and freedom of religion is not available in is area. 2
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4. In Sarala Mudgal's case this case was trend setting decision of apex court
of India. A person was converted to Islam for taking the benefit of bigamy
i.e. A Muslim can marry up to four wives and protection is provided under
Muslim personal law. It was a colorable conversion to take undue advantage
of Muslim personal law. Section 494 of Indian Penal Code 1860 provided
that “Marrying again during lifetime of husband or wife. Whoever, having a
husband or wife living, marries in any case in which such marriages void by
reason of it taking place during the life of such husband or wife, shall be
punished with imprisonment of either description for a term which may
extend to seven years, and shall also be liable to fine. Supreme Court of India
held that he is guilty under section 494 of Indian constitution and very
important observation was made regarding Uniform Civil Code for all
without any discrimination. Justice Kuldeep Singh state that Article 44
remained as dead letters of law and directed central government to have fresh
look at Article 44 of Indian constitution. 2

5. In S.R. Bommai v. State of Kerala Supreme Court of India held that
secularism is a basic structure of Indian constitution. It means neutrality in
the matters of religion will remain as stance of state. The state cannot declare
official religion of India as a state sponsor religion, now it is part and parcel
of Indian constitution hence out of reach of parliament. 2 It was held that
Religious tolerance and equal treatment of all religious group and protection
of their life and property and the places of their worship are an essential part
of secularism enshrined in our constitution. while the citizen of this country
are free to profess, practice and prorogate such religion, faith or belief as
they choose, so for as the state is concerned i.e. from the point of view of the
state, the religion, faith or belief of a person is immaterial to it, all are equal
and all are entitled to be treated equally.” Further the Court while
emphasizing upon the significance of Secularism declared it as the basic
structure of the Constitution.13

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6. Acquisition of Certain Area of Ayodha Act 1693: After the demolition of
Babri mosque at Ayodha in 1692, the violence broke out through the. The
civil cases are pending before the courts. It was necessary to interfere in the
matter to maintain status quo in the matter. The parliament of India enacted
this law and acquired the land till final judgment will not come out.
Definitely it was state interfere in the matter of Hindu and Islam religion.
This interfere was challenged in Ismail Farooqui case where Supreme Court
of India upheld the constitutional validity of Act. Public order is exception
to freedom of religion in this incident there was a great threat to public order,
unity and integrity of nation. 2

7. The Dargah Khwaja Saheb Act 1 955: Ajmer is a district in Rajastan there
is a Khwaja Garib Nawaz Saheb Dargah. It is very famous among all the
religion people in India. It is symbol of unity and integrity of nation. The
state government of Rajastan passed this law to regulate secular
administration of Dargah. It was declared as valid and constitutional, court
held that though interfere in religious matter but till secularism is basic
structure of Indian constitution hence it is the duty of state to protect it and
can interfere in secular activities of Dargah. In Dargah Committee, Ajmer v.
Syed Husain Ali Supreme Court of India held that the Act cannot be
challenged as violation of Article 26 of Indian constitution as the object of
the Act is to administer the property which is secular activity of the religion.

2

8. Andhra Pradesh Devdasi Protection Act 1688: The custom of sati was
heinous tradition followed in the state of Andhara Pradesh. Where married
women after the death of her husband use to or compel to go sati her
husband. It was treated as most sacrosanct on earth. After her death temple
is built in that village. All these things were done as a part and parcel of
Hindu religion. This Act given challenge as infringement of freedom of
religion under constitution. The Supreme Court of India held that Act is valid
and constitutional as health of women is in danger, to protect the health of
women and ensure her dignified life this law was passed and upheld by the
judiciary. 2

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9. Nikhil Soni v. union of India & ors, - The human activities have effect on
health. Health is most important aspect of for people of the country. State is
under obligation to protect and improve health of citizens. If the state is
intervening in religious matters which have effect human health then it is not
violation of Article 25 of Indian constitution. In this case of dated 10.8.2015,
areligious custom or traditions of Jaina named Santhara or Sallekhana was
declared as violation of right to life and personal liberty guaranteed under
constitution. Jaina religion is one of the ancient faith traditions of India. It is
distinct religion having its own identity. Health was considered as at most
importance than religious freedom, religion may prescribe certain acts or
customs but it should be examined by judiciary. The judiciary will decide
the fate of such customs and traditions. 2

10. In Jagdhishwaranand Avaduth’s case apex court of India struck down the
custom of Tandava dance on Public Street, which carries lethal sharp
weapons. It is pivotal to have a close scrutiny by judiciary of each and every
custom, tradition or mode of worship. Freedom of is most essential liberty
to individual to profess, practice and propagate any religion. It is a liberty of
individual’s conscience, but it shall not infringe the fundamental rights of
public at large. Secularism is followed in India to keep sate distance for all
religions. Whichever of the models is the better one, the constitution of India
seems to have elected to follow the model of neutrality. Article 15 forbids
discrimination on the ground of religion, race, caste, sex, or place of birth,
while Article 44 seems to be clear as it calls for a uniform civil code, thus
proclaiming, one rule forall54. Indian Supreme Court has nicely and
strategically shaped the freedom of religion in India. It was very super
human task to shape Indian secularism and protects the freedom of religion.
Plethora of verdict of top court of India has directed states to mold their
actions or change the policy to ensure the freedom of religion and in certain
cases allowed state interference as and when necessary. A constitution
cannot secure fundamental rights by merely making pious declarations. To
make the promises of fundamental rights enforceable a measure of judicial
review is essential and indispensable. Hence it is ample clear that Supreme

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Court of India is protector of freedom of religion and maintenance of
secularism in India.2

11. In M Ismail faruqui vs. UOI,” - It was held that it is clear from the
constitutional scheme that it guarantees equality in the matters of religion to
all individuals and groups irrespective of their faith emphasizing that there
is no religion of the state itself. The preamble of the constitution read in
particular with articles 25 to 28 emphasis this aspect and indicates that it is
in this manner this concept of secularism embodied in the constitutional
scheme as a creed adopted by the Indian people has to be understood while
examining the constitutional validity of any legislation on the touch stone of
the constitution.13

12. In Aruna Roy vs. UOI ,” The court held that concept of secularism is not
endangered if the basic tenets of all religions all over the world are studied
and learned. Value based education will help the nation to fight against
fanaticism, ill-will, violence, dishonesty and corruption. These values can be
inculcated if the basic tenets of all religions are learned. The Hon’ble
Supreme court has held in lata Singh vs. state of U.P ,” that caste barriers in
societal interactions are anti – secular. Inter caste marriage shall be
promoted, protected and conserved by the state to promote greater secular
values. This is also a part of secularization process. The concept of
secularism is not merely a positive attitude of religion tolerance. It is also a
positive concept of equal treatment of all religions.13

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CHAPTER 5
QUESTIONNAIRES

 What are the aspects of secularism?
Even though the political parties criticizing or influencing the religions, the
moral values which Indians we gained from the ancient times have been
remained still date, and it would be continuing still the ashes of last citizen.

The moral values are much stronger than the political agenda, even though
some groups criticizing on each other on the basis of religions, but at the end
of the day, everyone know there is nothing in the useless religion-based
criticisms.

 Introduction of Secularism on Indian context Hindrance on Secularisms and
how to overcomes from it?
As much as the hindrance on the secularism’s context, the state and the
church should be separates from each other, state should not be based on the
any religious affairs, even though the state has vote bank of religious based.
But if states want to make it clear that all the governmental bodies smoothly,
then the concept of separation of church and state should be implemented in
the country, that benefiting for the long term, rather than vote bank politics
on religion.

Data Analysis on The Questions of The Secularism

By consider the survey done by the google form, following questions were asked to the public,
and collected the data accordingly.

1. No of People Participated in the survey – 50
2. No of questions – 10
3. Type of questions – Objective (simple Yes/No)
4. Survey done on online medium

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Sr Answer
Question
(No of people answered)
No
1 Is India is a Secular Country? Yes No
2 Do you believe in Secularism? 45 5
3 Is India having Secular Culture? 48 2
43 7
Do you believe in the concept of “Vasudev 49 1
4
50 0
Kutumbkam”?
Do you Favour the concept of freedom of 20 30
5 25 25
30 20
practice religion?
Did you participate in any debate on 45 5
6
48 2
Secularism?
7 Do you think India is on right path?

Do you thing young generation is not even
8

granting the role of secularism?
Do you think, politics defame the
9

secularism?
Do you think secularism is in danger in the
10

country?

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CHAPTER 6
CONCLUSION

The one statement which concludes my research and what I have understood
through my research is that – India is a secular nation. Though as stated above in the
research questions, there are challenges to our secular nature, but in no way does it
show that our country has not been able to overcome these challenges and maintain
its secular nature. Development of the nation not only depends on economic
development but also in preserving the secular nature of this nation. Democracy is
a continuous process with no final objective but the very process of maintaining a
democratic nature is the objective itself. Hence maintenance of secular nature is the
objective and not the distant goal of a secular nation without any sectarian violence.
Amid its long improvement the expression "secularization" has frequently served
the partisans of contention and has always gone up against new implications without
totally losing old ones, Thus, it is swollen with hints and suggestions, particularly
those related with apathy or threatening vibe to whatever considered "religious".
There is change in secularism idea. The elective theory is demonstrated. The various
beginnings of Indian secularism ascend as a legitimating vocabulary of political talk,
as highlighted by this article. Dependent upon the significance attributed to "being
normal", the association among religion and administrative issues can be imagined
similar to separation or closeness, forbiddance or consolidation. In the occasion that
Article 371F of the Indian Constitution that appreciates one of a kind game for the
blend of a religious Sikkim and declared its change into a fame based state reveals
the serious significance of secularism, by then the dynamic redoing of Sikkim as a
blessed scene in the contemporary setting of state-facilitated headway and the state
governments tries to change Sikkim into a point of convergence of trip indicates
both the commodification of religion and the reconstitution of its standard
inspiration.

From the above question, it might be avowed that everybody has the chance
to advance any religion, to get any religion or build up any religious building. No
particular religion will be thought in school course books as Religious Freedom is
our key right. As it might be seen that the word 'Standard' was incorporated the

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prelude of the Indian constitution by 42nd Amendment in 1676. At the period of
Independence various pioneers were in the help of procuring Secularism the
country, anyway due to shared viciousness, it winds up vast. The regular character
of the Indian prominent government is reflected to be under peril because of the
annihilating of the Babri Mosque in Ayodhya (Uttar Pradesh) provoked hordes and
killings by Muslims and by Hindus. The butchers of legit Hindus in Godhra
(Gujarat, etc. At the point when stood out from various countries like USA, Russia,
France, etc. Secularism isn't sought after truly by India.10

It is a matter of great concern that secularism is struggling for survival in
our country now. The anti-thesis of secularism is communalism, which is gaining
momentum in our society at an alarming pace. The mixing of religion with politics
and the dangerous growth of communal parties pose a major threat of the secular
framework of our country. India is a secular state and yet communalism continues
to shape its policies. The Indian concept of secularism is full of contradictions and
therefore, is unable to provide a clear, un-ambiguous guidelines either to the
individual or to the state. As a consequence, the religious values continue to
dominate the day-to-day affairs and, in the process, generate tension because of
plurality of religious views. In such circumstances, it is imperative that serious
attention is paid to revive secularism and curb communalism. A secular state in
India is not only necessary from the point of view of the religious minorities by is
in the interest of all the people in India including the majority community. In order
to permanently banish the recurrence of communal riots, it is necessary to advance
the concept of secularism. We need to progress to a stage where politics is
completely free of religion and religious freedom of an individual is allowed only
to the extent that is does not interfere with the personal freedom of others and
betterment of the society in general.22

If, as this article has argued, what lies at the heart of secular governance is the
desire to separate religion and state rather than the fact or manner of separation, it is
clear that the Indian state is not secular. Nevertheless, I have also tried to suggest
that the non-secular actions of the Indian state are reasonable, though not for the

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reasons most commonly cited. My argument requires us to acknowledge that a
liberal democratic state may still have reasonable non-secular aims.17

This perspective is in vivid contrast to the conclusions drawn by other critics of
secularism in India who are also neither Hindu nationalists nor antimodernists.
Subrata Mitra has argued that the Nehruvian desire to oust dharma and introduce
legal rationalism as the governing principle of Indian society undermined religion
and eventually led to a struggle for authority between politicized religion and the
secular state (Mitra1691). To some extent like myself, Mitra holds that the state
enlarged its jurisdiction at the expense of religion while simultaneously seeking to
establish itself as paramount even within the religious sphere. However, I do not
agree with Mitra’s conclusion that trying to establish a state with no formal role for
religion within a deeply religious society is paradoxical. As I showed in the last part
of the second section of this article, no establishment and separation frequently come
about precisely because of religion’s influence in a society. Nor do I feel that this
supposed paradox can be easily identified as the determining factor behind rising
communal conflicts in India. 17

Pritam Singh (2005) has taken a very different perspective, declaring not
only that the Indian state is not secular, but that the Indian Constitution has a strong
and persistent bias toward Hinduism. Singh’s position is in one respect unusual,
given the common Hindu nationalist assertion that India disadvantages Hindus and
Hinduism. In another sense, Singh is right on the mark—but to arguably
unremarkable effect. Just as predominantly Christian nations, regardless of their
desires, can be expected to enact constitutions and governments based on values in
keeping with the qualities of Christianity, it stands to reason that the Constitution of
India will reflect a broadly Hindu ethos. While this tendency need not in itself
constitute a bias, it must be said that several aspects of the Constitution represent
policy stances clearly grounded in Hinduism—Article 48 discouraging cow
slaughter, for example. But even if Singh’s points on the Constitution’s approaches
to language (Sanskritized Hindi in Devanagariscript), political framework
(center/Hindu-dominated “union” instead of more culturally autonomous
“federation”), and religious reform (only for Hinduism) are valid, these observations

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are nevertheless decidedly unnuanced, while other criticisms regarding Article 48
and the name “Bharat” seem simply overstated. 17

Although their views are unusual in several respects, Mitra and Singh share
with a diverse array of other critics common concerns about the constitutional vision
for religion in India, as well as about the ways successive governments have sought
to execute that vision. Since the late 1680s, such worries have grown more common,
and understandably so in view of such developments as the Mandal riots, the Shah
Bano controversy, the destruction of Babri Masjid, the Bombay riots, and the
Godhra massacres. But although religion-state relations in India might quite
plausibly have taken other forms, I have tried to show that there were adequate
grounds for the form they did take—namely, construction of a state committed to
reforming religion and supporting religious practice. Along the way I have also
contended that neither these aims nor the forms of governance to which they give
rise can be credibly termed secular. But I would suggest that debates over the term
“secularism” reflect a more foundational concern about the compatibility of diverse
however, is a matter for further discussion. 17

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BIBLIOGRAPHY/REFERENCES/LAW/REPORTS/WEB MATERIALS

1. Secularism is a concept vitalises the integrated values in the modern society
but the trends of Multi-pluralistic society by the new phraseology of pseudo-
secularism (Watson) (Ajith Kumar, 2014).

2. A Last and more controversial reason to forego secularism as a descriptor
has to do with the perineal concern of Indian secularism, Hindu nationalism,
Hindu nationalist support for true secularism (Nandy) (Deepa Das, 2013).

3. The real education can grow only in secular environment of country. Indian
constitution is based on concept of political philosophy under which all
forms of faith and worship are of equal importance (Giddy).

4. Secularism plays a major role for the protection of the state order. There is
an inseparable linkage between democracy and secularism in India. In India
secularism has emerged in our struggle for freedom as a complimentary
value of democracy and nationalism (Moyn).

5. At the very best, let us face up to a point that will be invariably made in any
discussion on “secularism‟ in India, viz, that in the Indian context has
different meanings from its standards use in the English language (Gledhill).

6. Constitutional and Administrative Law, by Dr. S. A. Karandikar, Aarati
Publication.

7. The status of “secularism‟ in the Indian constitution after the 42nd
amendment has been hugely contested. The term “secular” has advisedly not
been defined presumably because it is a very elastic term not capable of a
precise definition and perhaps best left undefined (Levey and Modood).

8. Research articles from the – en.wikipedia.org,

9. Research articles from the www.thehindu.com,

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10. Research articles from the https://www.jstor.org,
11. Research articles from the http://www.legalservicesindia.com,
12. Research articles from the https://economictimes.indiatimes.com,
13. Research articles from the www.supremecourtcases.com
14. Research articles from the www.truthofsociety.in
15. Introduction to Research Methodology handbook, by www.truthofsociety.in
16. Introduction to Secularism and Plantation by Nehru – www.truthofsociety.in
17. The Myth of Indian Secularism – by Yugbhartiya
18. International Journal of Pure and Applied Mathematics, Volume 12 No. 5

2018, 389-401, ISSN: 1314-3395 (on-line version)- url:
http://www.acadpubl.eu/hub/
19. Secularism in India: Why is it Imperiled? By Jagdish Bhagwati, The author
is University Professor, Economics and Law, at Columbia University.

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