Recently, the Supreme Court of India opined that Secularism is an indelible and core part of the Basic Structure of the Constitution.

The court made the oral observation while hearing a batch of petitions filed by former Rajya Sabha member Subramanian Swamy and others challenging the inclusion of the words “socialist” and “secular” in the Preamble to the Constitution.

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Recent Supreme Court Observation on Secularism

• Core Constitutional Principle: Secularism is an indelible part of the Constitution’s Basic Structure.

• Judicial Precedents: Secularism is intrinsic to the Constitution, supported by the right to equality and fraternity.
  • Notable Cases: 
    • Kesavananda Bharati Vs State of Kerala (1973):  Supreme Court held that secularism was a part of the basic structure of the Constitution. 
    • Bommai Vs Union of India (1994): Supreme Court elaborated on the meaning of secularism. The Court said that secularism means equal treatment of all religions.
• Interpretation of Socialism: Socialism should promote equality of opportunity and equitable wealth distribution, rather than limit on individual liberty.
• Preamble’s Integrity: The Preamble is integral to the Constitution and can be amended without altering its basic structure.
• Secularism is the Basic Structure: Court has in a number of judgments held that secularism was always part of the Basic Structure of the Constitution. 
  • If one looks right to equality and the word ‘fraternity’ used in the Constitution, there is a clear indication that secularism has been held as the core feature of the Constitution
• Critique of the 42nd Amendment: The 42nd Amendment is labelled as “infamous” for attempting to diminish judicial power while retaining the declarations of secularism and socialism.

About Secularism

• Secularism as a concept entails the separation of religion from the political, economic, social, and cultural spheres of life, treating religion as a purely personal matter. 
• It has broadly two meanings:
  • Separation of religion from the state.
  • Equal respect to all religions by state.
• However, there is a difference between the Western and Indian Secularism. 

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Constitutional Provisions Pertaining to Secularism in India

• Article 14: Guarantees the right to equality before the law and prohibits discrimination on grounds of religion.
• Article 15: Prohibits discrimination on the basis of religion, race, caste, sex, or place of birth.
• Article 16: Ensures equal opportunity in matters of public employment, regardless of religion.
• Article 25: Guarantees the freedom of conscience and the right to freely profess, practice, and propagate religion.
• Article 26: Provides the right to manage religious affairs and establish and maintain institutions for religious and charitable purposes.
• Article 27: Prohibits the use of tax revenue for the promotion or maintenance of any religion.
• Article 28: Prohibits religious instruction in educational institutions wholly maintained by the state.
• Articles 29: Protects the interests of minority groups by providing them the right to conserve their culture, language and script.
• Article 30: Guarantees minorities the right to establish and administer educational institutions of their choice.
• Article 51A: Outlines Fundamental Duties which obligates all citizens to promote harmony and a spirit of brotherhood, as well as to value and preserve the rich heritage of India’s composite culture.

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Criticisms of the Indian Model of Secularism

• Ambiguous Definition: Lacks a clear definition, making it difficult to understand the boundaries between religion and state.

• Positive Discrimination: Policies favouring specific religious groups may undermine the principle of equality.
  • Categorising citizens by religion can promote divisions rather than unity.
• Vote Bank Politics: Critics suggest that secularism encourages vote bank politics. While politicians seeking votes is a democratic norm, the focus should be on whether these actions genuinely benefit the targeted groups. 
• State Intervention: The Government’s involvement in religious affairs, such as managing temples or personal laws for different communities, raises questions about the secular nature of the state. 
  • Critics argue that this intervention can infringe upon the autonomy of religious institutions.
• Minority vs. Majority Rights: Protecting minority rights may sometimes marginalise the majority community. This can lead to feelings of alienation among the majority.
• Lack of Uniform Civil Code: The absence of a Uniform Civil Code is often cited as a failure of Indian secularism. Critics argue that different personal laws for various communities can perpetuate discrimination and inequality, undermining the secular ethos.

Factors Threatening The Secular Character Of The State

• Mingling of Religion and Politics: Mobilisation of votes based on religious, caste, or ethnic identities undermines the neutrality of the state and threatens secularism.
• Economic Inequality: Failure to address economic disparities can lead to social unrest, which may be exploited by religious groups to gain support.
  • The Sachar Committee reported that although Muslims make up 14% of India’s population, they account for only 2.5% of the Indian bureaucracy.
• Communal Politics: The communalisation of social spaces through myths, stereotypes, and divisive ideological propaganda targets minority groups and erodes rational values.
• Inter-Religious Conflicts: When one religious group is politicised, it often triggers similar actions by other groups, increasing inter-religious tensions.
• Communal Violence: Communal riots remain a significant threat to India’s secular fabric, with recent incidents of communalism sparking violence. Example: Delhi riots 2020.
• Rise of Hindu Nationalism: Hindu nationalism has led to mob lynching incidents, the forced closure of slaughterhouses, and campaigns against practices like ‘love jihad’ and ghar wapsi, intensifying communal tendencies.
• Discriminatory Legislations: Laws like the Citizenship Amendment Act (CAA) are perceived as discriminatory, specifically targeting certain religious groups, which exacerbates feelings of insecurity among religious minorities.
• Islamic Fundamentalism: Movements pushing for an Islamic State based on sharia law conflicts with India’s secular and democratic ideals, creating tension.
• Radicalisation: Instances of Muslim youth being radicalised by groups like ISIS, though rare, pose a serious challenge to both India’s secularism and global peace.

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Judiciary’s Intervention in Religious Matters Judiciary’s To Strengthen Secularism in India

• Doctrine of Essentiality: The doctrine of essentiality was established by a seven-judge Bench of the Supreme Court in the Shirur Mutt case of 1954 (The Shirur Mutt case arose from a dispute regarding the management of the Shirur Mutt, a religious institution of the Lingayat community in Karnataka) 
  • This ruling placed the responsibility on the judiciary to distinguish between essential and non-essential religious practices, aiming to protect only those deemed essential to a religion.
  • The Essential Religious Practice Test aims to protect only those religious practices deemed essential and integral to a religion, thereby limiting the scope of protection for non-essential practices.
  • This doctrine plays a significant role in striving to balance community beliefs with constitutional principles. 
  • Example: The Sabarimala Case (2018), where the Supreme Court upheld the right of women of all ages to enter the Sabarimala temple, reinforcing gender equality over traditional religious customs.
• Ensuring Non-Discrimination: Courts have intervened to protect individuals from discrimination on the basis of religion, caste, or gender, ensuring secularism by upholding the principle of equality before the law.
  • Example: The Shah Bano Case (1985), where the Supreme Court granted alimony to a divorced Muslim woman under secular law, overriding personal religious law to ensure justice.
• Curbing Practices that Violate Fundamental Rights: In the Triple Talaq Case (2017), the Supreme Court declared instant triple talaq unconstitutional, protecting Muslim women from arbitrary divorce.
• Balancing Religious Freedom and Social Reform: The Shani Shingnapur Case (2016), where the Bombay High Court upheld women’s right to enter temple sanctums, ensuring gender equality in religious spaces.
• Intervention in Temple Management: The Padmanabhaswamy Temple Case (2020), where the Supreme Court intervened to resolve disputes over temple administration and protect the temple’s wealth for public welfare.

Measures to Strengthen Secularism in India

• Uniform Civil Code (UCC): Implementing a UCC will ensure that all citizens, regardless of their religious backgrounds, are governed by a common set of secular laws, promoting equality and eliminating religious-based legal differences. Secular Education: Promote secular education that emphasises tolerance, diversity, and the importance of separating religion from state affairs, fostering a mindset that respects all beliefs.

• Judicial Consistency: Ensure judicial consistency in the interpretation of secularism, with courts protecting individual rights and equality to uphold the secular spirit of the Constitution.
• Interfaith Dialogue: Facilitate interfaith dialogue and community engagement to promote mutual understanding among various religious groups, reducing communal tensions and fostering harmony.
• Anti-discrimination Laws: Strengthen anti-discrimination laws to combat hate speech, communal violence, and any form of religious discrimination, thereby safeguarding secularism.
• Autonomy of Religious Institutions: Maintain the autonomy of religious institutions while ensuring they adhere to secular principles, without undue state interference or favouritism.
• Media Responsibility: Promote media responsibility by encouraging fair, unbiased coverage of religious issues, and discouraging sensationalism that can stoke communal disharmony.

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Conclusion

Politicising religion can escalate conflicts between groups, undermining social harmony. Strengthening secularism is essential to maintaining unity in a diverse society like India.

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