India is a secular state:

The concept of secularism is implicit in the Preamble of the Constitution which declares the resolve of the people to secure to all its citizen “liberty of thought, belief, faith, and worship”. The 42nd Amendment Act, 1976 has inserted the word secular in the preamble. This amendment is indented in yearly to spell out clearly the concept of secularism in the constitution. There is no mysticism in the secular character of the state. In India, a secular state was never considered as an irreligious or atheistic state. It only means that in matter of religion it is neutral. It is the ancient doctrine in India that the state protects all religion but interface with none. Explaining the secular character of the state the Indian constitution the Supreme Court said, “There is no mysticism in the secular character of the state. Secularism is neither anti god not pro god. From the matters of the state and ensures that no one shall be discriminated against on the ground of religion. The state can have no religion of its own. It should treat all religions equally. The state must extend similar treatment to the church, the mosque, and the temple. In a secular state, the state is only concerned with the relation between men and men. It is not concerned with the relation of men with god. It is left to the individual’s conscience. Men are not answerable to the state for the verity of its religious views”. The right of worship is granted by god for men to worship as he pleased. There can be no compulsion in law of any creed or practice of any form of worship.

The idea of guaranteed fundamental right itself was a device directed towards the avoidance of such a contingency. The right to freedom of speech and expression, and right to form association and unions. But the constituent Assembly was not satisfied with such previous alone in its bid to infuse3 complete confidence in the religious minorities. It went a step further and adopted a separate group of articles dealing solely with the right to freedom of religion.

The freedom provided under articles 25, 26, 27 and 28 are conceived in most generous term to the complete satisfaction of religious minorities. They were in fact the result of an agreement with the minorities, almost unanimously arrived at in the Minorities Committee constituted by the constituent Assembly. Such unanimity created an atmosphere of harmony and confidence in the minority community. Further, these provision embodied in detail one of the objective of the Constitution declared in the Preamble: “to secure to all its citizens... liberty of thoughts, expressions, belief, faith and worship.”

Secularism in India

A-Evolution

The movement of secularism began in Western Europe in 19th century. Initially, it started with the ideas breaking away from religion. Secularism entered Indian Politics for the first time in the later half of the 19th century when English educated people belonging to different religious community established The Indian National Congress.

The Congress on its session in Karachi in 1931 passed a resolution that the state should observes neutrality in regard to all religion. Constitution makers avoided the word of “secular”. Prof. K.T. Shah made two attempts to introduce the word by suggesting and an amendment. But on both occasion failed because the opposition from Dr. Ambedkar.

Perhaps Dr. Ambedkar felt that the use of the expression “liberty of faith, religion, belief or worship and equality of status and opportunity” in the Preamble and provisions of fundamental right are simply stated that Indian is a Secular State. However, 42nd amendment of the Constitution added the word “secular” into the Preamble of Constitution for further clarification.

B-Essence of Indian Secularism

Dr. Radhakirshna explains that secularism doesn’t mean irreligious. It means they respect all faith and religion. Secular state does not identified itself with any particular religion. In Indian context society, Dr. Henry Austin says that secularism means tolerance, generosity and understanding of majority community.

Indian Constitution has a standard as a secular state. India has not any official religion. Secularism pervades its provision which opportunity for all persons to profess, practice and propagate any religion of their belief.

Constitution not only guarantees the person’s freedom of religion and conscience, but also ensures freedom of person who has not a religion. Secularism is a basic feature in Indian Constitution. It was held in Kasvananda v. State of Kerala, 1973 and S.R. Bommai v. Union of India, 1994. The Court further held that religion cannot be mixed with the secular activity of state.

C-Related Provisions

1-Constitutional Provisions

Constitution of India definitely guarantee for all citizens in respect of freedom of religion and its practice. We can found those articles inArticle 25 to Article 28 and Article 30.

Article 25: It guarantees freedom of conscience and the right, freely to profess, practice and propagate religion.
Article 26: It guarantees to manage religious affairs. Without this article, it means article 25 would be an empty one.
Article 27: In order to ensure the secular character of the state and to proclaim that state has no religion of its own.
Article 28: It provides that “no religious instruction shall be provided in any educational institution wholly maintained out of state funds”.
Article 30: It conferred right on all minorities religion or linguistic, to establish and administer educational institutions of their choice.

2-Indian Penal Code (IPC) Provisions

Besides the Constitution, IPC also provides protection to religion, in the following:

Section 295: Protect the religion of a class of classes.
Section 296: Protect religious worship that takes place in an assembly from very kind of disturbance.
Section 297: Provides penal sanction against the trespass in any place of worship.
Section 298: Provides punishment for any utterances, gestures, etc. with the intention of wondering religious feelings.

3-Election Law

In election law, the use of religion in election constitutes a corrupt practice and entails penal consequences. Section 123(3) and 123(3A) provides that the Government should not act on religious basis. Religion should not be influenced through electrons.

D. Landmark Cases

Manohar Joshi’s case: Justice J.S. Verma gave controversial meaning to the term of “Hindutava” by stating that it means “a way of life” and pertaining to any specific religion.
Swamiar’s case: This was the first case before Supreme Court in which Art. 24 and Art 26 where relied on for invalidating the provision of state legislation.
Saifuddin’s case: The court stated that the main principles of Art. 25 and 26 is not limited to matters of doctrine or belief; they extend also to acts done in pursuance of religion.
Devaru’s case: The court observed that matters of religion in Art. 26(b) includes even practice which is regarded by the community as a part of its religion.
A secularism contemplated by framer of Indian Constitution was the product of Indian’s own social experience and genius. They did not contemplated state hostile to religion. The role of state in the religion is to eliminate social injustice and oppression and replacing social backwardness, superstition and cruelty by a rational enlightened liberation.
The true difficulty of the “Swamiar-Devaru-Saifuddin” case chain of decisions seems to have been the failure on the part of the Court to appreciate the relationship between the rights in Art. 25 and Art. 26 respectively.
The approach of judiciary was not appreciable and they did not catch the spirit of Constitution. From Swamiar decision to Hindutuva decision, the court seems to be confused in recognizing the true aspect of secularism.

LEGISLATION & STATE PRACTICE

There is a large body of legislative enactments in India dealing with, or having a bearing on, religious matters pertaining to various faith groups. All this legislation, as well as the established state practice, fully conforms to the Constitutional dictates relating to secularism and parameters of religious freedom.

The various sections in this Part illustrate how secularism is balanced with freedom of religion under India's legislative enactments and how religious matters are controlled by state practice, both in accordance with the basic Constitutional provisions in this context.

A. Religious Conversion and Renouncement

During the British rule in India, with a view to protecting the interests of converts to the rulers' religion (viz., Christianity) a law called the Caste Disabilities Removal Act was passed in 1850.30 The Act, of course, provided in general terms that:

So much of any law or usage now in force in India as inflicts on any person forfeiture of rights or property, or may be held in any way to impair or affect any right of inheritance by reason of his or her renouncing, or having been excluded from the communion of, any religion, or being deprived of caste, shall cease to be enforced as law in any court.[31]
This Act remains in force to date in the whole of India except the state of Jammu and Kashmir.[32]
On the other hand, also during the British rule, some princely states outside the boundaries of what was called "British India" had enacted certain laws meant to protect the local people against the evangelic activities of the foreign Christian missionaries.[33]
After independence from the British rule, although Parliament has never enacted any law on this subject, several states have introduced local laws imposing restrictions on religious activities (mainly on Christian missionary activities, although no law would expressly say it) that are believed to be aimed at converting people from one religion to another.
The first among these local laws was the Orissa Freedom of Religion Act of 1967, providing that no person shall "convert or attempt to convert, either directly or otherwise, any person from one religious faith to another by the use of force or by inducement or by any fraudulent means."[34]
Next came the Madhya Pradesh Freedom of Religion Act of 1968, also prohibiting conversion by "force or allurement or by fraudulent means" and requiring registration of every case of conversion with the local state authorities.[35]
Ten years later, the Arunachal Pradesh Freedom of Indigenous Faith Act of 1978 similarly prohibited conversions by force or threats, including "threat of . . . divine displeasure or social excommunication."[36] This Act also requires that every religious conversion must be duly registered with the local governmental authorities.[37]
In the current millennium, similar anti-conversion laws were enacted in the states of Tamil Nadu and Gujarat, but the former state repealed its law following a public outcry. The last state so far to enact an anti-conversion law is Rajasthan, where a Religious Freedom Bill was passed by the state legislature in March 2006.[38]

B. Religious Endowments in General

During the British rule in India, three general laws were enacted one after the other to regulate the working of the endowments and trusts of a religious or charitable nature. These were the Religious Endowments Act of 1863, the Charitable Endowments Act of 1890, and the Charitable and Religious Trusts Act of 1920.[39]
The Religious Societies Act of 1880 was enacted during the British rule "to simplify the manner in which certain bodies of persons, associated for the purpose of maintaining religious worship, may hold property acquired for such purpose."[40] Providing guidelines for the management of property held in trust by religious societies, this law was enacted mainly for the benefit of the Christians and was not applied to the Hindus, Buddhists, and Sikhs.[41]
Also during the British rule, the provincial legislature in the Sikhdominated state of Punjab had enacted a law to regulate the management of the Sikh shrines (called gurdwaras). Known as the Sikh Gurdwaras Act of 1925, this law has remained in force after independence subject to certain amendments.[42]
Since the advent of independence, a large body of local legislation has grown to regulate the management and working of Hindu religious endowments and trusts. Among these local laws are the Bihar Hindu Religious Trusts Act of 1950, Orissa Hindu Religious Endowments Act of 1969, and Tamil Nadu Hindu Religious and Charitable Endowments Act of 1959.[43] No central law has yet been enacted to regulate the Hindu religious places in general.
For regulating the management of the Muslim religious endowments (called wakfs) a brief central law known as the Wakf Act of 1923 was enacted during the British rule.[44] After independence, several states including Delhi, Bihar, West Bengal, Uttar Pradesh, and Jammu and Kashmir, enacted local laws for regulating the wakfs located in their respective territories.[45] Then, in 1954, Parliament enacted the first central law on the subject, called the Wakf Act, which was replaced four decades later with the new comprehensive Wakf Act of 1995 now in force.[46]

C. Particular Shrines

Several legislative enactments-both central and local-impose state surveillance on the management of particular shrines belonging to various religious communities. The Bodh Gaya Temple Act of 1949, relating to the largest Buddhist shrine in India, provides for the "upkeep and repair" of "the great temple built by the site of the Mahabodhi Tree near the village of Bodh Gaya" in Bihar State.[47]
There are similar special laws for several Hindu shrines situated in different parts of the country, including the famous Nathwara Temple of Rajasthan, the Jagannath Temple of Orissa, and the Mahabaleshwar Temple of Madhya Pradesh.[48]
The only special law for a Muslim shrine is the Dargah Khwaja Saheb Act of 1955, relating to the Dargah of Khwaja Moinuddin Chishti at Ajmer in Rajasthan.[49]

D. Protection of Religious Places in General

Two central Acts enacted in the recent past relate to the protection of religious places in general. The first of these, the Religious Institutions (Prevention of Misuse) Act of 1988, makes it an offence to use religious sites to harbor an accused or convicted criminal, or for any political purpose.[50]
The second statute, the Places of Worship (Special Provisions) Act of 1991, prohibits forcible conversion of any place of worship of any religious denomination into a place of worship of a different religious denomination, and requires preservation of the religious character of all places of worship-except the disputed mosque site in Ayodhya-as they existed on August 15, 1947, the date of India's independence.[51]
The first of these laws was enacted with a view of curbing the Sikh insurgency in Punjab, which was at its height in the 1980s, while the second law was meant to prevent the occurrence of communal incidents like the one in which an old mosque in the holy city of Ayodhya was forcibly demolished and converted into a makeshift Hindu temple in an act of mob frenzy.

E. Foreign Pilgrimages

Parliamentary legislation regulates arrangements for the Muslims of India to participate in the great Haj pilgrimage annually taking place in the holy city of Makkah in Saudi Arabia to which Muslims throng from all parts of the world. During the British rule, local "Haj committees" were set up in the three major port cities of India to organize the Haj pilgrimage in accordance with the Port Haj Committees Act of 1936. After independence this law was replaced with a new Haj Committee Act enacted in 1959.[52]
The Indian government similarly organizes the annual Hindu pilgrimage to the holy Mansarovar site, situated outside India in and around Tibet. Delegated legislation exists for it in the form of executive regulations.
Both the Haj and the Mansarovar pilgrimages are subsidized by the state and are managed by separate special departments in the Union Ministry for External Affairs.

F. Religious Laws of Family Relations

Side by side with the secular laws of marital relations and property, India has retained the system of religion-based and community-specific "personal laws," offering individuals a choice between their respective personal laws and the parallel secular laws. The personal laws applicable to various communities have been codified and reformed to varying extents. Given below is an account of the religious elements found in the codified personal laws currently in force.

1. Personal laws of the Christians and Parsis

In 1866, during the British rule in India, the Native Converts' Marriage Dissolution Act was enacted and enabled married Indians converting to Christianity to seek divorce from their non-converting spouses who might have deserted them on account of the change of religion.
In 1869, the British rulers enacted for the Christians an Indian Divorce Act, and three years later a Christian Marriage Act, both based on ecclesiastical law. Both these Acts have remained in force in independent India but have been subjected to certain amendments. The Indian Succession Act of 1865, enacted mainly for the Christians, was later incorporated as one of the chapters into the Indian Succession Act of 1925, which remains applicable to the Christians in independent India.
The British rulers had enacted an inheritance law for the tiny Parsi Zoroastrian community of India. Known as the Parsi Succession Act of 1865, this law was also later incorporated as a special chapter into the Indian Succession Act of 1925, which is still in force. The old Parsi Marriage and Divorce Act, also enacted in 1865, was replaced in 1936 by a new Act.58 Both the special chapter on inheritance for the Parsis under the Indian Succession Act of 1925 and the Parsi Marriage and Divorce Act of 1936 were retained in force after independence but have now been subjected to some amendments.

2. Personal laws of the Hindus, Buddhists, Jains, and Sikhs

In 1955-56 Parliament enacted four religion-based personal laws applicable to the Hindus, Buddhists, Jains, and Sikhs-viz., the Hindu Marriage Act of 1955, and the Hindu Succession Act, the Hindu Adoption and Maintenance Act, and the Hindu Minority and Guardianship Act, all three enacted in 1956. It was only for the sake of brevity that the word "Hindu"-denoting the largest of the four communities to be governed by these laws-was used in the titles of these Acts; this certainly had no reflection on the independent religious status of the other three communities. Side by side with their provisions commonly applicable to the four communities, these Acts in fact protected quite a few of their different customs and usages.
Under the Hindu Marriage Act 1955, both parties to a marriage must be Hindu, Buddhist, Jain, or Sikh, and conversion by either spouse from any of these to any other religion after marriage would be a ground for divorce available to the spouse who retains his or her faith.
Conversion to any religion other than Hinduism, Buddhism, Jainism, or Sikkhism is seen as a civil offense also under each of the other three Hindu-law enactments of 1956, resulting in loss of succession, guardianship, maintenance, and adoption rights. Thus, parents ceasing to be Hindu, Buddhist, Jain, or Sikh lose guardianship of their minor children, while convert wives and children are deprived of their right to be provided maintenance by their husbands and parents, respectively.
While only a Hindu, Buddhist, Jain, or Sikh child can be adopted; abandoned children and those of unknown parentage are presumed to belong to any one of these religions so as to facilitate their adoption. If a Hindu converts to Christianity or Islam, children born to him or her after his or her conversion cannot inherit from any of their Hindu relatives unless they reconvert to Hinduism before the opening of succession.

3. Personal law of the Muslims

The Muslim Personal Law (Sbariat) Application Act of 1937 directs the civil courts to apply Muslim religious law to Muslims in all matters relating to family relations, property, and succession.
The Dissolution of Muslim Marriages Act of 1939 specifies the grounds on which a woman married under Muslim law can seek a judicial divorce, including obstruction by a husband of his wife's religious practices. Contrary to the provision of Hindu marriage law of 1955, which recognizes post-marriage conversion by a spouse to an alien religion as a ground for divorce, this Act declares that the renunciation of Islam by a woman married under Muslim law would not ipso facto dissolve her marriage.
The Muslim Women (Protection of Rights on Divorce) Act of 1986 has codified the traditional Islamic law on divorced women's rights to dower, maintenance, and marital properties to be speedily implemented by the lower criminal courts.

JUDICIAL RULINGS AND ATTITUDES

All the constitutional provisions and legislative enactments relating to religion and religious rights and freedoms have been applied and interpreted in various ways by the higher courts in the country. Read together, these judicial decisions define the role of religion in state affairs and the role of the state in religious affairs, in addition to laying down the contours of religious rights and freedoms of the individuals and communities.

The judiciary in India has been actively involved in adjudicating religious affairs. In the process of reviewing these affairs, it has resolved many religious disputes between the people and the state on one hand, and between various communities, sects, and groups on the other. Among the major judicial rulings on religion and religious matters, those listed below in the nine sections of this Part deserve a special notice.

A. The Concept of Hindutva

Certain political parties who give the Hindu religion a central place in their ideology and programs have been using the vernacular term "Hindutva" claiming that it has "national" and "patriotic" connotations and is not just an equivalent of "Hinduism." From the late 1980s through the early 1990s, some politicians sought a judicial pronouncement on the legal permissibility of using Hindutva in political speeches.
In December, 1995, the Supreme Court of India pronounced seven judgments together making some pronouncements on the concept of Hindutva and the legal validity of its use in elections. The main thrust of these judgments was that the Hindu religion was indeed not merely one of the religions of India but was identifiable with the "culture and heritage of India, the Indian social ethos and the way of life of the people in the subcontinent."
As India's top legal minds criticized these judgments for their apparent effect of giving a free hand to votaries of communal politics, disposing of a review petition, the court quickly issued a clarification of its earlier judgments, stating it did not mean for its ruling to have such an effect and that it had no intention of diluting the constitutional principle of secularism.

B. Status of Some Religious Groups

In a very recent case the Supreme Court has decided that the Jains-although mentioned in the Constitution and also enumerated in the Census Reports of India as an independent religious community-are not a religious minority, as their religion, in the opinion of the court, is merely "a reformist movement amongst Hindus."
In an earlier case the Kerala High Court ruled that the Ahmadi Qadianis-although they recognize another prophet living long after the age of Prophet Muhammad, generally regarded by the Muslims as the Last Prophet-was part and parcel of the Muslim community.

C. Right to Convert Others

In Stainislaus v. Madhya Pradesh & Ors, considering the constitutional validity of the anti-conversion laws of Orissa and Madhya Pradesh, the Supreme Court held that the right to propagate religion, guaranteed by Article 25 of the Constitution, should be interpreted as "not the right to convert another person to one's own religion, but to transmit or spread one's religion by an exposition of its tenets."

D. Singing the National Anthem

India's National Anthem-a Bengali-language song composed by the late Rabindra Nath Tagore-is believed by some people to be in conflict with monotheistic religious beliefs. A group of school students in the state of Kerala belonging to the Jehovah's Witnesses used to stand up in respect when the National Anthem was sung in their morning assembly, but did not participate in singing the anthem. The school took disciplinary action against them, which the students challenged in court. The Supreme Court decided that the National Anthem of India is to be duly respected by all but need not necessarily be sung by those objecting to it on religious grounds.

E. Ascertaining Essential Religious Practices

In several cases, the courts have assumed and exercised the power to ascertain if a religious practice followed by any community is indeed an "essential practice" of its religion, holding that only such "essential" practices are entitled to protection under Article 25 of the Constitution that guarantees freedom of both belief and practice of religion. In a recent case, the Supreme Court held that offering prayers in a mosque is not necessarily an "essential practice" in Islam. The ruling was given in a case in which the Muslims had challenged, on religious grounds, the validity of a law enacted for state acquisition of the land on which had stood the mosque in Ayodhya that had been demolished in a communal frenzy. In another case, the Supreme Court held that the so-called "tandav" dance (worshippers dancing with human skulls in their hands) is not an essential practice of the Anandmargi Hindu faith, notwithstanding the contrary claim of religious leaders of the community.

F. Teaching Vedic Astrology

In a 2004 ruling, the Supreme Court decided that Vedic astrology-although associated with the Hindu religion-could be lawfully taught in the State institutions of higher learning. The University Grants Commission (UGC), which is charged with introducing courses and curriculums into public universities and providing funding for new courses, decided to introduce "jyotir vigyan" (the science of astrology) as a course of study in several Indian universities.
The UGC decision was challenged by various university professors and other interested parties seeking to prevent the state from funding courses in astrology. The Supreme Court sided with the UGC and held that there was no infringement of state secularism by allowing astrology to be taught in the universities.

G. Residential Colonies for Particular Communities

In a recent case involving the Parsi Zoroastrian community, the Supreme Court held that a particular religious community can lawfully build and maintain a residential colony restricted to its own members.

H. Protecting the Sacred Cow

Notwithstanding the citizen's constitutionally assured fundamental right to adopt and carry on any profession or trade of their choice, in order to respect the religious sensitivities of the Hindus, the slaughtering of the cows and other bovines can be prohibited even for religious purposes and on non-Hindu religious occasions. The Supreme Court of India has upheld this legal position in several cases, including one decided in 2005.

I. Sanctity of Scriptures

Several judicial decisions have established the rule that religious scriptures and holy books shall not be subjected to judicial construction to test the conformity of their tenets with the principles and provisions of the Indian Constitution and legislation.
In a 1979 case, it was disputed whether certain individuals belonging to the Hindu "lower castes" had been legitimately ordained. The lower court opined that some of the rules for eligibility to be so ordained were no longer valid as they contradicted fundamental rights guaranteed in the Indian Constitution. The Supreme Court criticized this approach, stating that those constitutional rights did not touch upon the "personal laws" of the parties. The Court assertively said that in interpreting Hindu religious law, courts were not to introduce their "own concepts of modern times," but are to enforce the law "as derived from recognized and authoritative sources of Hindu law." A 1986 petition asked the Calcutta High Court to determine the validity of the Holy Qur'an on the touchstone of the Indian Penal Code. Rejecting the petition, the court observed that like the Holy Vedas and the Bible, the Qur'an too was above judicial scrutiny and could not be "examined" to check its conformity with the modern laws of the country.
There was a time in Indian history when religion provided, regulated, and fully controlled the legal and judicial system of the country. Today the situation is the other way round. In the secular India of our times, it is the law of the land that determines the scope of religion in the society, and it is the judiciary that determines what the laws relating to the scope of religion say, mean, and require.
However even today, religious values and traditions continue to have a strong influence on Indian society. This religious aspect remains duly reflected in the Constitution and the quickly growing body of national laws. It has also not remained outside the ambit of judicial activism generally witnessed in India.
The practice and interpretation of secularism in India have from the very beginning been, and remain, sensitive to and reconciled with the ground realities. This sensitivity and reconciliation make India's religion-state relations both unique and fascinating. A study of India's particular models of secularism and religious liberty reveals an appreciable balance of religious and secular interests.
Judicial decisions of the higher courts in religious cases of various nature and kinds generally reflect an attitude of objectivity and impartiality. There have been some aberrations, few and far between, at times pointing to the presence of committed judges or those influenced by particular religio-political ideologies. Such aberrations can of course be, and have often been, freely criticized by conscientious objectors and legal critics.

*************************************************** 

Prof. (Dr) Hiren Patel
LL.M. (Gold Medalist) Ph.D.
Assist. Professor
Maneklal Nanavati Law College
Ahmedabad.