December 9, 2022

Secularism under the Constitution According to Justice Ahmadi

India can rightly be described as the world’s most heterogeneous society. It is a country with a rich heritage. Several races have converged in this sub- continent. They brought with them their own cultures, languages, religions and customs. These diversities threw up their own problems but the early leadership showed wisdom and sagacity in tackling them by preaching the philosophy of accommodation and tolerance. This is the message which saints and sufis spread in olden days and which Mahatma Gandhi and other leaders of modem times advocated to maintain national unity and integrity.

Notion of Secularism in Pre-Independence Era

The British policy of divide and rule, aggravated by separate electorates based on religion, had added a new dimension of mixing religion with politics which had to be countered and which could be countered only if the people realised the need for national unity and integrity. It was with the weapons of secularism and non-violence that Mahatma Gandhi fought the battle for independence against the mighty colonial rulers. As early as 1908, Gandhiji wrote in Hind Swaraj:

“India cannot cease to be one nation, because people belonging to different religions live in it. … In no part of the world are one nationality and one religion synonymous terms; nor has it ever been so in India.”

Gandhiji was ably assisted by leaders like Pandit Jawaharlal Nehru, Maulana Abul Kalam Azad and others in the task of fighting a peaceful battle for securing independence by uniting the people of India against separatist forces. In 1945 Pandit Nehru wrote:

“I am convinced that the future government of free India must be secular in the sense that government will not associate itself directly with any religious faith but will give freedom to all religious functions.”

And this was followed up by Gandhiji when in 1946 he wrote in Harijan,

“I swear by my religion. I will die for it. But it is my personal affair. The State has nothing to do with it. The State will look after your secular welfare, health, communication, foreign relations, currency and so on, but not my religion. That is everybody’s personal concern.”

The great statesman-philosopher Dr Rahdakrishnan said,

 “When India is said to be a secular State, it does not mean that we reject reality of an unseen spirit or the relevance of religion to life or that we exalt irreligion. It does not mean that secularism itself becomes a positive religion or that the State assumes divine prerogatives. Though faith in the Supreme is the basic principle of the Indian tradition, the Indian State will not identify itself with or be controlled by any particular religion. We hold that no one religion should be given preferential status, or unique distinction, that no 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.

This view of religious impartiality, of comprehension and forbearance, has a prophetic role to play within the national and international life. No group of citizens shall arrogate to itself rights and privileges which it denies to others. 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.”

Immediately after we attained independence, the Constituent Assembly, aware of the danger of communalism, passed the following resolution on April 3, 1948,

“Whereas it is essential for the proper functioning of democracy and growth of national unity and solidarity that communalism should be eliminated from Indian life, this Assembly is of the opinion that no communal Organisation which by its constitution or by exercise of discretionary power vested in any of its officers and organs admits to, or excludes from, its membership persons on grounds of religion, race and caste, or any of them should be permitted to engage in any activities other than those essential for the bona fide religious, cultural, social and educational needs of the community, and that all steps, legislative and administrative, necessary to prevent such activities should be taken.”

The steps which were taken to upheld the spirit of secularism

Since it was felt that separate electorates for minorities were responsible for communal and separatist tendencies, the Advisory Committee resolved that the system of reservation for minorities. excluding SC/ST, should be done away with. Pursuant to the goal of secularism, the Constituent Assembly adopted clauses 13, 14 and 15 roughly corresponding to the present Articles 25, 26 and 27.

During the debates Prime Minister Jawaharlal Nehru declared that secularism was an ideal to be achieved and that establishment of a Secular State was an act of faith, an act of faith above all for the majority community because they will have to show that they can behave towards others in a enerous, fair and just way. When objection was sought to be voiced from certain quarters, Pandit Laxmikantha Mitra explained:

“By Secular State, as I understand, it is meant that the State is not going to make any discrimination whatsoever on the ground of religion or community against any person professing any particular form of religious faith. This means in essence that no particular religion in the State will receive any State patronage whatsoever. The State is not going to establish, patronize or endow any particular religion to the exclusion of or in preference to others and that no citizen in the State will have any preferential treatment or will be discriminated against simply on tile ground that he professed a particular form of religion. In other words, in the affairs of the State the preferring of any particular religion will not be taken into consideration at all.

This I consider to be the essence of a Secular State. At the same time, we must be very careful to see that in this land of ours we do not deny to anybody the right not only to profess or practice but also propagate any particular religion.”

Provision of the Constitution

Secularism in Preamble

Notwithstanding the fact that the words ‘Socialist’ and ‘Secular’ were added in the Preamble of the Constitution in 1976 by the 42nd Amendment, the concept of Secularism was very much embedded in our constitutional philosophy. 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.

By this amendment what was implicit was made explicit. The Preamble itself spoke of liberty of thought, expression, belief, faith and worship.

Article 25, 26, 27, 28, 29

While granting this liberty the Preamble promised equality of status and opportunity. It also spoke of promoting fraternity, thereby assuring the dignity of the individual and the unity and integrity of the nation. While granting to its citizens liberty of belief, faith and worship, the Constitution abhorred discrimination on grounds of religion, etc., but permitted special treatment for Scheduled Castes and Tribes, vide Articles 15 and 16.

Article 25 next provided, subject to public order, morality and health, that all persons shall be entitled to freedom of conscience and the right to profess, practice and propagate religion.

Article 26 grants to every religious denomination or any section thereof, the right to establish and maintain institutions for religious purposes and to manage its own affairs in matters of religion. These two articles clearly confer a right to freedom of religion.

Article 27 provides that no person shall be compelled to pay any taxes, the proceeds whereof are specifically appropriated in payment of expenses for the promotion or maintenance of any particular religion or religious denomination. This is an important article which prohibits the exercise of State’s taxation power if tile proceeds thereof are intended to be appropriated in payment of expenses for the promotion and maintenance of any particular religion or religious denomination. That means that State’s revenue cannot be utilised for the promotion and maintenance of any religion or religious group.

Article 28 relates to attendance at religious instructions or religious worship in certain educational institutions.

Then come Articles 29 and 30 which refer to the cultural and educational rights.

Article 29 inter alia provides that no citizen will be denied admission to an educational institution maintained wholly or partly from State funds on grounds only of religion, etc.

Article 30 permits all minorities, whether based on religion or language, to establish and administer educational institutions of their choice and further prohibits the State from discriminating against such institutions in the matter of granting and.

These fundamental rights enshrined in Articles 15, 16, and 25 to 30 leave no manner of doubt that they form part of the basic structure of the Constitution.

‘Fundamental Duties’

Besides, by the 42nd Amendment, Part IV-A entitled ‘Fundamental Duties’ was introduced which inter alia casts a duty on every citizen to cherish and follow the noble ideals which inspired our national struggle for freedom, to uphold and protect the sovereignty, unity and integrity of India, to promote harmony and the spirit of common brotherhood amongst all the people of India transcending religious, linguistic and regional or sectional diversities, and to value and preserve the rich heritage of our composite culture.

Secularism after Independence

After the demise of Gandhiji national leaders like Pandit Nehru, Maulana Azad, Dr Ambedkar and others tried their best to see that the secular character of the nation, as bequeathed by Gandhiji, was not jeopardised. Dr Ambedkar, Chairman of the Drafting Committee, aware of the undercurrents cautioned that India was not yet a consolidated and integrated nation but had to become one.

This anxiety was also reflected in his speeches in the Constituent Assembly. He was, therefore, careful while drafting the Constitution to ensure that adequate safeguards were provided in the Constitution to protect the secular character of the country and to keep divisive forces in check so that the interests of religious, linguistic and ethnic groups were not prejudiced. He carefully weaved Gandhiji’s concept of secularism and democracy into the constitutional fabric. This becomes evident from a cursory look at the provisions of the Constitution referred to earlier.

Reference

Views as expressed by justice Ahmadi in his judgment in S.R. Bommai vs Union Of India; 1994 AIR 1918