Introduction:

India is a multi-religious, multi-lingual, multi-racial, and multi-cultural society. Religious minorities constitute roughly 20% of India’s population, out of which Muslims account for 14.2%. No society can prosper or be at peace if its 20% of the population feels threatened, deprived, neglected and unwanted.

In multiple constitutional cases especially the S.R.Bommai case, Supreme Court has ruled that secularism forms the basic structure of the Indian Constitution. In the Ayodhya case also, the Court opined that the secular nature of India would form the basic structure of our Constitution, even if it hadn’t been specifically mentioned in the Constitution. With the 42nd Amendment of the Constitution of India enacted in 1976, the Preamble to the Constitution asserted that India is a secular nation.

Secularism is the first and foremost doctrine that opposes all forms of inter-religious domination. Religion has its own share of some deep-rooted problems. In religions such as Hinduism, some sections have been persistently discriminated. For example, Dalits have been barred from entering Hindu temples. In some part Hindu women cannot enter temples. When religion is organised, it is frequently taken over by its most conservative faction, which does not tolerate any dissent.

Many religions are fragmented into sects, which leads to frequent sectarian violence and persecution of dissenting minorities. This religious domination is known as inter- religious domination. As Secularism is opposed to all forms of institutionalised religious domination, it challenges not merely inter-religious domination but intra-religious dominations. It (Secularism) promotes freedom within religions and promotes equality between, as well as within religions.

Secularism in India:

More than sixty years after Independence, there has been no national consensus regarding what Indian secularism would entail. The Supreme Court verdict spells out secularism as divorcing state and religion. The verdict also exposes several contradictions.

Firstly, we have separate Hindu, Muslim and Christian family laws. Going by what the court has said, if secularism means divorcing state and religion, then we cannot be having separate family laws for different religions. The debate over triple talaq touched on this aspect of the discourse. The demand for a universal civil code is based on this very idea of secularism.

In this sense in a secular democratic country, one cannot have laws, which are derived from religious teachings. The second contradiction arises from the reservation system. Going by the Supreme Court verdict, along with religion, caste and creed should also be kept away from election campaigns. The reservation system, however, allocates a certain number of seats for SCs, STs and OBCs. This goes against the Supreme Court’s interpretation of secularism.

When drafting separate family laws for Hindus, Muslims and Christians, the idea of secularism was that the state would not divorce itself from religion totally, but would rather be impartial and give equal space to all religions.

The Supreme Court’s vision of secularism follows the American and French interpretation that a secular state has noting to do with religion. In France, the ban on burqa in public places stems from the idea that religion is something that is restricted to the private sphere. Since the burqa is seen as a religious symbol it cannot be worn in a public space like a beach or a shopping mall.

How is secularism in India different?

Deciding what Indian secularism means will require us to understand which of the two interpretations would be most suited for the Indian context. Compared to France or US, India is a far more diverse country with several layers of identity. In India’s cultural context, the division between the private and public sphere, on which French secularism is based on, is different.

In Indian culture there is very little distinction between the public and the private. The personal life of a person holding a public office is carefully scrutinised. Personal habits or behaviour impacts the social image of an individual. Social or group identities often are as important as individual identity. In a country where the line between private and public does not exist, the French model of secularism, which restricts religion to the private sphere, will not be feasible.

Further, the Supreme Court’s interpretation of totally segregating religion and politics poses several challenges. In a religiously heterogeneous state like India, the democratic system is what guards the rights and liberties of minority groups. By taking religion away from politics, the court is taking away an important tool in the hand of minority groups to ensure their rights are not trampled upon.

Democracy is about representation, in a multi-religious society like India, it will be difficult for a minority group to have a political voice if the state and religion are separated.

Development and economic prosperity has not been evenly distributed. Certain castes and communities have had enjoyed the benefits of India’s progress while others have not enjoyed their share.

When introducing the system of reservation, the goal was to ensure groups that had previously not had a chance to gain access to education and government jobs get a chance. While there are challenges faced with the reservation system, there is no doubt that some element of positive discrimination is going to be key to ensure that all groups of people enjoy the benefits of India’s progress.

If religion, caste and creed is divorced from the state, then it is will be difficult to ensure equitable progress. For this the government will have to introduce policies, which are targeted at specific regions or communities.

Features of Western concept of secularism

• State and religion has a separate sphere of its own, with independent jurisdiction i.e. Mutual exclusion of state and religion, principled distance of state from religion and no illegitimate intrusion of religion in the state.
• The state cannot aid any religious institutions.
• State cannot hinder the activities of religious communities as long as they are within the broad limits setup by the law of the land.

For example, if religion forbids a woman from becoming a priest, then the states cannot do anything. Like this, if a particular religion forbids the entry of some of its members in the sanctum of its temple, then the states have no option but to let the matter rest exactly where it is.

So here the religion is private matter, not a matter of state policy or law. This model interprets freedom and equality in an individualist manner. Liberty is the liberty of individual. Equality is the equality between individuals. There is little scope for community based rights or minority rights.

On the other hand, drawbacks of this model can be seen as, such states focus on intra-religious domination by strict separation of state from church to realise among other things individual freedoms, issues of inter-religious (and therefore minority rights) equality are often neglected. This model leaves no scope for the idea of the state supported religious reforms.

Differences in Indian secularism

• Indian Secularism opposed oppression of Dalits and women within Hinduism. It also opposes the discrimination against women within Indian Islam or Christianity and the possible threats that a majority community might pose to the rights of the minority religious communities.
• Indian Secularism deals not only with religious freedom of individuals but also with religious freedom of minority communities. Every individual has the right to profess religion of his /her choice. Likewise, religious minority also have a right to exist and to maintain their own culture and educational institutions.
• Indian Secularism has made room for and is compatible with the idea of state supported religious reform. For example, Indian constitution bans untouchability under Article 17. There is also abolition of child marriage and lifting the taboo on inter-caste marriage sanctioned by Hinduism.
• The Indian state may engage with religion negatively to oppose religious tyranny. It may also choose a positive mode of engagement. Thus, the Indian Constitution grants all religious minorities, the rights to establish and maintain their own educational institutions, which may receive assistance from the state.

Secularism as philosophy of the constitution

The Preamble of the Indian Constitution states:

WE THE PEOPLE OF INDIA, having solemnly resolved to constitute India into a SOVEREIGN, SOCIALIST, SECULAR DEMOCRATIC REPUBLIC and to secure all its citizen…………………………

Though the term ‘secular’ was not initially mentioned in original constitution, but the Indian constitution has always been secular. As, we have already discussed how Indian secularism differs from western concept.

So, in India, it is not mutual exclusion, rather it is principled distance, a complex idea that allows state to be distant from all religions so that it can intervene or abstain from interference, depending upon which of these two would better promote liberty, equality and social justice.

Constitution reinforces and reinvents forms of liberal individualism through Article- 26, 28, 19, etc. Constitution upholds the principle of social justice without compromising on individual liberties. The constitutional commitment to caste based affirmative action program, shows how much ahead India was compared to the other nations (as in US it began after 1964 civil rights movements)

Against the background of inter-communal strife, the constitution upholds its commitment to group rights (the right to the expression of cultural particularity). So, our forefathers/ framers of the constitution were more than willing to face the challenges of what has to be known as multiculturalism.

The question of secularism is not one of sentiments, but one of laws. The secular objective of the state was expressed by inserting the word ‘Secular’ in the preamble by the 42nd constitutional amendment act, 1976. Secularism is basic structure of the constitution.

Fundamental rights (Article 12 to 35) guarantees and promotes secularism. Right to equality, right to freedom, right against exploitation, right to freedom of religion, cultural and educational rights, and right to constitutional remedies are such six fundamental rights.

Secular attitude or attitude of impartiality towards all religion is secured by the constitution under several provisions. (Article 25 to 28).

• Firstly, there shall be no ‘state religion’ in India. The state will neither establish a religion nor confer any special patronage upon any particular religion. It follows from this, that-

1. The state will not compel any citizen to pay taxes for the promotion or maintenance of any particular religion or religious institution, mentioned under Article-27 of the Fundamental rights.
2. It should be noted that government of India provides Hajj Subsidy for pilgrimage and this issue was contested in Supreme Court for alleged violation of Article 14 (equality), Article 15 (non-discrimination), Article 27. SC upheld constitutionality of Hajj subsidy saying that Article 27 would be violated if a substantial part of the entire income tax collected in India, or a substantial part of the entire central excise or the customs duties or sales tax or a substantial part of any other tax collected in India, were to be utilized for promotion or maintenance of any particular religion or religious denomination.
3. In other words, suppose 25% of the entire income tax collected in India was utilized for promoting or maintaining any particular religion or religious denomination that would be violation of Article 27 of the Constitution.
4. No religious instruction shall be provided in any educational institution wholly provided by state funds.
5. Even though religious instruction is totally banned in state-owned educational institutions, in other denominational institutions (as recognised by or receiving aid from the state) it is not fully prohibited but it must not be imposed upon people of other religions without their consent (Article 28).

• Secondly, every person is guaranteed the freedom of conscience and the freedom to profess, practise and propagated his own religion, subject only-
• To restrictions imposed by the state in the interests of public order, morality and health. So, that the freedom of religion may not be abused to commit crimes or anti-social acts. For example- to commit the practise of infanticide, etc.
• To regulations or restrictions made by the state relating to any economic, financial, political or other secular activity which may be associated with religious practise, but do not really concerned to the freedom of conscience.
• To measure for social reform and for throwing open of Hindu religious institutions of a public character to all classes and sections of Hindus.
• Subject to above limitations, a person in India shall have the right not only to entertain any religious but also to practise the observances dedicated by such belief and to preach his views to others (Article 25)
• Thirdly, not only is there the freedom of the individual to profess practise and propagate his religion, there is also the right guaranteed to every religious group or domination –

1. To establish and maintain institution for religious and charitable purposes;
2. To manage its own affairs in matters of religion;
3. To own and acquire movable and immoveable property; and
4. To administer such property in accordance with the law (Article 26)

It is to be noted that this guarantee is available not only to the citizens of India but to all persons including aliens.

Some current issues

Some of the recent incidents have made some to question India’s credentials as a secular nation. Secularism, instead of being a cementing force as envisaged in the constitution has brought forth the opposite results.

• Shah Bano Case: In 1978, the Shah Bano case brought the secularism debate along with a demand for uniform civil code in India to the forefront.

Shah Bano was a 62-year-old Muslim Indian who was divorced by her husband of 44 years in 1978. Indian Muslim Personal Law required her husband to pay no alimony. Shah Bano sued for regular maintenance payments under Section 125 of the Criminal Procedure Code, 1978.

Shah Bano won her case, as well appeals to the highest court. Along with alimony, the Chief Justice of the Supreme Court of India wrote in his opinion just how unfairly Islamic personal laws treated women and thus how necessary it was for the nation to adopt a Uniform Civil Code. The Chief Justice further ruled that no authoritative text of Islam forbade the payment of regular maintenance to ex-wives. The Shah Bano ruling immediately triggered a controversy and mass demonstrations by Muslim men. The Islamic Clergy and the Muslim Personal Law Board of India, argued against the ruling.

Shortly after the Supreme Court’s ruling, the Indian government with Rajiv Gandhi as Prime Minister, enacted a new law which deprived all Muslim women, and only Muslim women, of the right of maintenance guaranteed to women of Hindu, Christian, Parsees, Jews and other religions.

Indian Muslims consider the new 1986 law, which selectively exempts them from maintenance payment to ex-wife because of their religion, as secular because it respects Muslim men’s religious rights and recognises that they are culturally different from Indian men and women of other religions. Muslim opponents argue that any attempt to introduce Uniform Civil Code, that is equal laws for every human being independent of his or her religion, would reflect majoritarian Hindu sensibilities and ideals.

• Islamic feminists: Islamic Feminists Movement in India claim that the issue with Muslim Personal Law in India is a historic and ongoing misinterpretation of Quran. The feminists claim Quran grants Muslim women rights that in practice are routinely denied to them by male Muslim ulema in India. Like any other religion, even in Islam there are ‘patriarchal’ interpretations of the religious book, Quran. The effect of these interpretations on the illiterate Muslim Indian masses is abusive. The feminists demand that they have a right to read the Quran for themselves and interpret it in a woman-friendly way. India has no legal mechanism to accept or enforce the demands of these Islamic feminists over religious law.

• Women’s rights: Some religious rights granted by Indian concept of secularism, which are claimed as abusive against Indian women, include child marriage, polygamy, unequal inheritance rights of women and men, extrajudicial unilateral divorce rights of Muslim man that are not allowed to a Muslim woman, and subjective nature of shariat courts, jamaats, dar-ul quzat and religious qazis who preside over Islamic family law matters.

• Goa: Goa is the only state in India which has Uniform Civil Code. The Goa Civil Code, also called the Goa Family Law, is the set of civil laws that governs the residents of the Indian state of Goa. In India, as a whole, there are religion-specific civil codes that separately govern adherents of different religions. Goa is an exception to that rule, in that a single secular code/law governs all Goans, irrespective of religion, ethnicity or linguistic affiliation.
• Article 25(2) (b): of the Indian constitution clubs Sikhs, Buddhists and Jains along with Hindus, a position contested by some of these community leaders.
• Triple Talaq Debate: Triple Talaq is a form of divorce practiced in India, whereby a Muslim man can legally divorce his wife by pronouncing talaq (the Arabic word for divorce) three times. The pronouncement can be oral or written, or, in recent times, delivered by electronic means such as telephone, SMS, email or social media. The man need not cite any cause for the divorce and the wife need not be present at the time of pronouncement.
• In the recommended practice, a waiting period is required before each pronouncement of talaq, during which reconciliation is attempted. However, it has become common to make all three pronouncements in one sitting.
• While the practice is frowned upon, it is not prohibited. A divorced woman may not remarry her divorced husband unless she first marries another man, a practice called Nikah Halala. The All India Muslim Personal Law Board (AIMPLB), has told the Supreme Court that women can also pronounce triple talaq, and can execute nikahnamas that stipulate conditions so that the husbands cannot pronounce triple talaq.

Criticism of Indian Secularism

Sometimes, Indian secularism is also criticized for being anti-religious, but that is actually not true, as it is against institutionalised religious domination. It is also said that it promotes Minoritism, but it only advocates minority rights as long as those rights protect their fundamental interests. It is also criticized for being Interventionist, which means that secularism is coercive and it interferes excessively with the religious freedom of communities.

But again, this is misread because Indian secularism permits state-supported religious reforms. Personal laws can be reformed in such a way that they continue to exemplify both minority’s rights and equality between men and women. But such reform should neither be brought about by state or group coercion nor should the state adopt a policy of total distance from it. The state must act as a facilitator by supporting liberal and democratic voices within every religion.

It was also criticized as an Impossible project by other nations, but India claimed this false. In fact, migration is increasing due to globalisation and it is creating situation where Indian model is very much desired. Europe, America, and some parts of Middle East are beginning to resemble India in the diversity of cultures and religions which are present in their societies. These societies are watching the future of the Indian experiment with keen interest as a solution for their society.