The preamble to the Constitution enshrines the declaration to constitute India into a sovereign, socialist, secular, democratic, republic. The 42nd Amendment to the Constitution incorporated the expression ‘secular’ in the preamble. However, the constitutional amendment merely made explicit what is implicit according to the scheme of the Constitution.
Articles 14, 15, and 16 mandate the State to treat all people equally irrespective of their religion, faith, or belief. Article 14 provides that the State shall not deny to any person equality before the law or equal protection of laws within the territory of India. Article 15 provides that the State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them.
Article 16 mandates that there shall be equality of opportunity for all citizens in matters relating to public employment or appointment to any office under the State. Article 16(2) further provides that no citizen shall be discriminated against in respect of any employment or office under the State on the grounds of religion, race, caste, sex, descent, place of birth, residence, or any of them.
Secularism is one of the facets of the right to equality. The equality code outlined in Articles 14, 15, and 16 is based on the principle that all persons, irrespective of their religion, should have equal access to participate in society. The State cannot give preference to persons belonging to a particular religion in matters of public employment. As a corollary, the equality code prohibits the State from mixing religion with any secular activity of the State. However, the Constitution recognizes that equal treatment of persons is illusionary unless the State takes active steps in that regard. Therefore, the equality code imposes certain positive obligations on the State to provide equal treatment to all persons irrespective of their religion, faith, or beliefs.
Articles 25 to 30 contain the other facet of secularism, that is, the practice of religious tolerance by the State. Article 25 provides that all persons are equally entitled to freedom of conscience and the right to freely profess, practise, and propagate religion subject to public order, morality, health, and other provisions of Part III. The provision allows the State to make any law to regulate or restrict any economic, financial, political or other secular activity associated with religious practice. The Constitution distinguishes between religious and secular activities, permitting the State to regulate the latter.
Article 26 guarantees every religious denomination the right to establish and maintain institutions for religious and charitable purposes. It further guarantees religious and charitable institutions the right to manage their own affairs in matters of religion; own and acquire movable and immovable property; and administer the property in accordance with law. The right of management given to a religious body is a fundamental right that cannot be abridged by any legislation. On the other hand, the State can regulate the administration of property owned or acquired by a religious denomination through validly enacted laws.
Article 27 provides that no person shall be compelled to pay any taxes, the proceeds of which are specifically appropriated in payment of expenses for the promotion or maintenance of any particular religion or religious denomination. The rationale underlying Article 27 is that public funds should not be utilized for the promotion or maintenance of any particular religion or religious denomination.
Article 28 prohibits the imparting of “religious instruction” in any educational institutions wholly maintained out of State funds. The provision further provides that no person attending any educational institution recognised by the State or receiving aid from the State funds should be compelled to take part in any religious instruction without their consent. Religious instruction is the inculcation of tenets, rituals, observances, ceremonies, and modes of worship of a particular sect or denomination.
Article 28 does not prohibit educational institutions maintained out of State funds from imparting religious education. Religious education is imparted to children “to make them aware of thoughts and philosophies in religions without indoctrinating them and without curbing their free-thinking, right to make choices for conducting their own life and deciding upon their course of action according to their individual inclinations.”
Article 28 does not prohibit educational institutions from teaching about the philosophy and culture of a particular religion or a saint associated with thatreligion.39 Article 28 does not prohibit the State from granting recognition to educational institutions imparting religious instruction in addition to secular education.
Articles 29 and 30 deal with the cultural and educational rights of minorities. Article 29(1) provides that Indian citizens have a right to conserve their distinct language, script, or culture. Article 29(2) guarantees that no citizen shall be denied admission into any educational institution maintained by the State or receiving aid out of State funds on grounds only of religion, race, caste, language or any of them. A citizen who has requisite academic qualifications cannot be denied admission into any educational institution funded by the State on grounds of religion.
Article 30 pertains to the right of minorities to establish and administer educational institutions. It provides that all minorities, whether based on religion or language, have the right to establish and administer educational institutions of their choice. Article 30(2) enjoins the State not to discriminate against any educational institution in granting aid on the ground that it is under the management of a minority, whether based on religion or language.
Article 30 confers a special right on religious and linguistic minorities to instill in them a sense of security and confidence. It secures equal treatment of majority and minority institutions and preserves secularism by allaying all apprehensions of interference by the executive and legislature in matters of religion. The constitutional scheme under Articles 25 to 30 distinguishes between the right of an individual to practice religion and the secular part of religion, which is amenable to State regulation.