Secularism Is A Core Part of the Constitution: Supreme Court

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.