An Open Access Publication from The Law Brigade Publishers 99 ANALYSIS OF THE CONCEPT OF SECULARISM IN INDIA Written by Aniruddha Shrivastava 3rd Year BA LLB Student, Guru Ghasidas Central University, Bilaspur, India 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.i -Dr S Radhakrishnan ABSTRACT Secularism in India is among most debated topic in the recent years. Secularism in general sense mean separation of religion from the state. The Concept of secularism in India is very much different from west or its general usage in English language, one of the distinctive features of secularism in India is that it does not draw a clear wall of separation between church and religion but it also does not promote any religion. Interestingly the world secularism is introduced to the constitution by 42nd Constitutional Amendment but the Framers of the constitution were crystal clear about the secular nature of the state. The constitutional assembly debates give a clear account of general agreement between the member about non establishment of any particular religion but also respecting religious sentiment of people. Thus, paper tries to investigate the different aspects of secularism in India and what makes India secular. This paper tries to understand the various meanings of secularism. The paper analyzes how the meaning of secularism has changed in different times in Indian history staring from Asoka to recent decisions of Supreme Court. Against a popular belief, secularism is not a foreign concept to India, rather it has always remained at the core of Indian culture, although it has been developed and influenced by the Western philosophy of secularism. This paper intends to focus ASIAN LAW & PUBLIC POLICY REVIEW ISSN 2581 6551 VOLUME 5 – 2020 © All Rights Reserved, The Law Brigade Publishers An Open Access Publication from The Law Brigade Publishers 100 on different definitions and perspective of secularism and tries to understand the concept of secularism and its relevance of the modern period. Keywords: Secularism, Separation, Philosophy INTRODUCTION The secularism is one of the most cardinal parts of Indian constitution and democracy. The term secularism is used differently in different context especially ‘secularism’ in Indian constitutional context denotes very different meaning than its usual meaning in English Language. Interestingly secularism term was added to the constitution in 42nd constitution amendment and before that there was no specific mention in the constitution however the spirit of secularism has inspired the Indian freedom struggle and that spirit has been reflected in draft of constitution and constitutional assembly debates. A close reading of proceedings of constitutional assembly shows that framers of the constitution were very much concerned about the scope of the secularism in India. Laws must be seen as ‘mirror of society’ii and reflection of society’s history customs and morals and hence Indian secularism is more inspired with the morals of Indian freedom struggle and less with the fantasizing principles of west. Religion has always remained in core of Indian society and it cannot be separated from it unlike western democracies where the wealth and power has remained fundamental objectives of the society whereas Indian society has given more significance to spiritual development over wealth and power. Hence Indian secularism must be seen in that context instead of superficially imposing western principles upon India, we must investigate and think according to our needs. Rajeev Bhargava has wonderfully remarked that Indian secularism forms ‘principled distance’ which does not establish any religion but also does not make steer clear separation between religion and stateiii. Seval Yildirim has described “Indian secularism” as “a discourse to reconstruct the political space so that religion and the state can co-exist.iv The present paper tries to examine the meaning of secularism at different times as the paper is distributed under three headings on how secularism developed in India and then how ASIAN LAW & PUBLIC POLICY REVIEW ISSN 2581 6551 VOLUME 5 – 2020 © All Rights Reserved, The Law Brigade Publishers An Open Access Publication from The Law Brigade Publishers 101 secularism has been seen in constituent assembly and how the courts have finally interpreted this concept of secularism. ORIGIN OF SECULARISM IN INDIA Religion and spirituality has always remained in the core of Indian society. Swami Vivekananda has wonderfully argued that in west whole goal is ‘Individual Independence’ where as in India the prime goal has always remained ‘Moksha’ which mean renunciation.v This is probably reason behind rise of several religions in India as the religion and spiritual development has always remained prime concern for Indian society. Perhaps the reason behind the rise of many religions in India is because religion and spiritual development have always been a major concern for Indian society. But even more strangely India has always provided every religion and spiritual idea to propagate freely there is no instance of religious war between Indian religionsvi. Indian religion also does not support the Idea that one will have to convert his religion to get renunciation instead they have suggested that there can be many ways of liberation or renunciation. Indian philosophy system has always adopted many different viewpoints over same things and these view points are ‘mutually complementary not contradictory’vii The traces of secularism can be traced throughout the Indian History. Ashoka and Harshahad accepted and patronized various religions about 2200 years ago.viii Elora caves are one such example of co-existence of different religion and philosophy. The Indic religions have co-existed for long without any conflict. Dr. Radhakrishan has given an instance in his book where Buddha restricts his followers from engaging in religious conflicts.ix Religious fundamentalism emerged in India with the advent of Islam. But looking closely at the history, it seems that this religious intolerance is not for religious reasons but for political reasons. After the Muslim invasion gradually the ruling rulers feel the need for tolerance in the government to accommodate the majority Hindu community. Akbar's policies were a great example of this, for the first time Akbar attempted to create a secular state, in which he decided to give equal importance to every religious community.x Akbar’s policy on religion ASIAN LAW & PUBLIC POLICY REVIEW ISSN 2581 6551 VOLUME 5 – 2020 © All Rights Reserved, The Law Brigade Publishers An Open Access Publication from The Law Brigade Publishers 102 were based on four pillars called, amity, equity kindness and tolerance.xi Dr Shankar Dayal Sharma had detailed analysis of Akbar’s tolerance where he highlighted that Dine-illahi was a result of synthesis of different religions.xii The early presence of Abrahamic religion i.e. Christianity Islam and Zoroastrianism in India and later their establishment in the Indian subcontinent was not due to any military conquest. This religion got a place there due to the spirit and feeling of co-existence displayed by the local authorities.xiii SECULARISM IN CONSTITUENT ASSEMBLY Thus the Indian system has remained pluralistic from its beginning which is based on the principle of universal tolerance and acceptance.xiv Thus the Indian society accepted the principle of free propagation of ideas based on different philosophy or ‘darshan’ however this propagation of religion was not drawn by the money or power but was based on the philosophy or different ideas of religion. This lead to the culture of free propagation of religion in the Indian society which was later recognized by the constituent assembly. Indian constitution is one of the few constitutions which recognizes right to free propagation of religion. Similar contentions about interpretation of propagation of religion had been discussed in the debate of constituent assembly on 6th December where some of the members opposed the constitutional safeguard to propagation of religion on which Pt. Laxmikant Maitra answered crucially, where he pointed out that the great Indian culture highly values that we should be able to promote whatever we feel honestly and believe in.xv He also puts emphasis on the interpretation of word ‘propagation’ where he highlighted that propagation does not include conversion by swords arms or coercion.xvi Diversity of India has certainly given rise to the problems and conflict which was solved by the universal accommodation and tolerance, this approach has been taken by Sufi saints and later by eminent leaders like Mahatma Gandhi and Jawaharlal Nehru.xvii It is also prominent here to mention that express motion was moved in the constituent assembly to include word ‘secular’ and ‘socialist’ which was rejected by the constituent assembly even when most of the members were committed towards the secular nature of the state ASIAN LAW & PUBLIC POLICY REVIEW ISSN 2581 6551 VOLUME 5 – 2020 © All Rights Reserved, The Law Brigade Publishers An Open Access Publication from The Law Brigade Publishers 103 hence we must remember that the secular nature of the Indian state does not come from the preamble but from the collective reading of the constitution. In 1945 Nehru has written that India will not associate it ‘directly with any religious faith’.xviii In 1946 Gandhi ji has expressed similar opinion where he wrote that he may die for his religion but it’s his personal affair and state has nothing to do with that the duty of state is to look ‘secular welfare’ of its people.xix A reading of the December 15 constituent assembly debatexx also shows that Professor KT Shah had proposed an amendment, where he said that the words secular and socialist should be added to Article 1 of the Constitution.xxi I think HV Kamth has spoken minds of most of the member in his words that India must neither be a god-less state, nor an irreligious nor an antireligious state”.xxii Dr Ambedkar has made very significant observation about Concept of secularism according to him Indian secularism doesn’t denies religious sentiment of peoples the only limitation which constitution recognizes is that the state will not able impose any religion to the its citizen.xxiii The basic idea of secularism is to distinguish the state from the religion and this fundamental concept is similar in almost all the secular states but Indian secularism does not throw out the concept of religion rather it pays respect towards it but it does restrict itself from influence of any particular religion. Western secularism is designed for single religion society and there is a serious doubt in its success in multi religion society what Rajeev Bhargava has called “threatening to throw western secularism into turmoil”.xxiv INTERPRETATION THROUGH COURTS The Supreme Court expressed its view first time in the case of Sardar Taheruddin Syedna Saheb v. State of Bombayxxv, where court had opined that religious toleration is fundamental principle of the constitution which 25 and has been embodied in Article 26. In Keshvananda Bharati Casexxvi, Supreme Court expressed the view that secularism is a part of basic structure of the constitution. ASIAN LAW & PUBLIC POLICY REVIEW ISSN 2581 6551 VOLUME 5 – 2020 © All Rights Reserved, The Law Brigade Publishers An Open Access Publication from The Law Brigade Publishers 104 However it was in Ahmedabad St. Xaviers College Society v. State of Gujaratxxvii, that Supreme Court tried to investigate into the Indian model of secularism where the Supreme Court expressed that Indian secularism does not draw a clear wall between the church and state. In Indian context secularism only mean ‘live and let live’.xxviii In ZiyauddinBurhanuddin Bukhari v. Brijmohan Ram Das Mehraxxix, the Supreme Court illuminates the role of state in secularism. The role of state in secularism must be neutral and impartial and it must extend benefits to the all caste creed. It is the duty of States through their laws to ensure that conditions are not imposed merely on the basis of someone’s caste or religion. In Indira Sawhney casexxx, Supreme Court extends its ambit of secularism in equality before religion to equality before caste. Kuldeep, J. ruled that Secularism propose a united and casteless society. He had gone further stating that ‘Secularism envisages a united and casteless society.’xxxi In landmark judgement of SR Bomai v. Union of Indiaxxxii, court expressly declared that secularism is a part of basic structure of the constitution. However there seems some ambiguity in the definition of secularism. Ahmadi, J. stated that secularism is based on the principle of accommodation and tolerance"xxxiii whereas Jeevan Reddy and Agrawal, JJ., in their judgment went further stating that Indian secularism is in agreement with the first amendment of U.S constitutionxxxiv which shows that there is certain ambiguity in exact definition of secularism. However, in Dr. M Ismail Faruqqi casexxxv, there seems some shift from the older view previously expressed in SR Bomai case. Verma, J. (speaking for Venkatachaliah, C.J. and Ray, J.) the supreme court expressed the view that Indian secularism is based on the principle of ‘sarva dharma sambhava’.xxxvi The court seems to have again rejected the concept of a clear separation of church and state that was confirmed by the SR Bomai case and went back with the doctrine of secularism with tolerance.xxxvii This view in Ayodhya case seems in agreement with its older view in Ex-communication case and Nain Sukh Das v. State of U.P.xxxviii However the dissenting opinion of Bharucha, J. seems more consistent with SR Bomai case where he advocated absolute positive and active secularism.xxxix ASIAN LAW & PUBLIC POLICY REVIEW ISSN 2581 6551 VOLUME 5 – 2020 © All Rights Reserved, The Law Brigade Publishers An Open Access Publication from The Law Brigade Publishers 105 The Hindutva judgmentxl was again a change from the previous judicial decisions of the court. Where the court has gone further equating hindutva and Hinduism which ‘depicts the way of life of the Indian people’.xli Hindutva judgments may be criticized for the fact that court failed to consider the long essays written by VD Savarkar where he proposes hindutva as political ideology. This must be understood clearly that constitution or law of the land cannot be interpreted in light of any political ideology or it must not be influenced by any political ideology. However, N.P. Singh and Venkataswami, JJ. in Mohd. Aslam v. Union of Indiaxlii clarified that there is no contradiction between Hindutva judgement and S.R Bomai.xliii There is no consensus in various decisions; therefore a unanimous interpretation of secularism is critically needed. In Abhiram Singh v. C.D. Conmachenxliv, court recommended the question to larger bench for consideration. In Valsamma Paul (Mrs) v. Cochin Universityxlv, restored to its earlier view of equating secularism with tolrence while stressing on the need of ‘integrated India/Bharat’ Again Bansi Lal Casexlvi seems in agreement with the S.R Bomai case where The court ruled that the state could regulate personal laws citing threats to the unity and integrity of the nationxlvii whereas in A.S. Narayana Deekshitulu v. State of A.Pxlviii, court commented that word ‘Dharma’ in Hinduism denotes upholding, supporting, nourishing that which upholds, nourishes or supports the stability of the society, maintaining social order and general well being and progress of mankind.xlix In conclusion there is ambiguity in interpretation of concept but the court seems to have been restored to its earlier view which was equating secularism with tolerance. It can be deducted from most of the cases that court has rejected the view of clear separation of concept of Church and State and concept of secularism in India is mostly based upon the concept of ‘Sarva dharma Sambhava’. The concept of active and absolute secularism even though accepted in some cases has been rejected in most of the cases. ASIAN LAW & PUBLIC POLICY REVIEW ISSN 2581 6551 VOLUME 5 – 2020 © All Rights Reserved, The Law Brigade Publishers An Open Access Publication from The Law Brigade Publishers 106 CONCLUSION Indian secularism is a subject of constant debate in the public sphere, no one can define it in absolute terms nor should it be defined in full. The concept of secularism is so widespread in India that it accepts and encompasses different philosophies and ideologies and is not defensible in the light of any single ideology or philosophy. However, if the debate of constituent assembly and the views of various philosophers are taken into consideration, it can be concluded that Indian secularism is definitely different from secularism of the West due to its multi-religious society. Secularism is largely interpreted as tolerance between different religions which is a deep rooted concept in Indian society. Indian secularism doesn’t deny religious sentiment of peoples, the only thing which Indian secularism provides is that the state will not be able to impose any religion to the citizen. ENDNOTES i DR S RADHAKRISHNAN, RECOVERY OF FAITH (Harper Brothers) (1955)(page 202) Introduction]. (2010). In 921927900 723723887 B. Z. Tamanaha (Author), A general jurisprudence of law and society. Oxford: Oxford University Press. iii UNDERSTANDING SECULARISM IN THE INDIAN CONTEXT THE HINDU, https://www.thehindu.com/opinion/lead/the- secular-condition/article22347527.ece (last visited Sep 28, 2020) iv Seval Yildirim, Expanding Secularism's Scope: An Indian Case Study, 52 THE AMERICAN JOURNAL OF COMPARATIVE LAW , 901 (2004) v Vivekananda. The Complete Works of Swami Vivekananda. Calcutta : Advaita Ashrama, 1989, vol. IV, p. 476 vi Radhakrishnan, S. (2012). Conflict of religion. In The Hindu view of life (pp. 36-37). New Delhi: Element, an imprint of HarperCollins vii Radhakrishna, S. (2010). The Bhagavadgita/with an Introductory Essay,Sanskrit Text,English Translation and Notes. Harper Collins Publishers India. viii inCHRISTIANS IN SECULAR INDIA , 26–27 (A.V Thomas). ix Radhakrishnan, S. (2012). Conflict of religion. In The Hindu view of life (pp. 36-37). New Delhi: Element, an imprint of HarperCollins x AKBAR'S RELIGIOUS VIEWS AND HIS POLICY TOWARDS HINDUS, https://www.historydiscussion.net/history-of- india/akbars-religious-views-and-his-policy-towards-hindus/2792 (last visited Sep 28, 2020) xi Ibid xii Secularism in Endian Ethos, in TOWARDS NEW INDIA (Dr shankar dayal sharma). xiii Ibid xiv SHASHI THAROOR, WHY I AM A HINDU (Hurst & Company) (2018) xv CONSTITUTION OF INDIA, https://www.constitutionofindia.net/ (last visited Sep 14, 2020) xvi Ibid xvii S.R. Bommai vs Union Of India 1994 AIR 1918, 1994 SCC (3) 1 xviii Ibid ii ASIAN LAW & PUBLIC POLICY REVIEW ISSN 2581 6551 VOLUME 5 – 2020 © All Rights Reserved, The Law Brigade Publishers An Open Access Publication from The Law Brigade Publishers xix 107 Ibid SECULARISM: WHY NEHRU DROPPED AND INDIRA INSERTED THE S-WORD IN THE CONSTITUTIONTHE INDIAN EXPRESS, https://indianexpress.com/article/research/anant-kumar-hegde-secularism-constitution-india-bjpjawaharlal-nehru-indira-gandhi-5001085/ (last visited Sep 16, 2020) xxi P. R. Lele, Constituent Assembly Debates On 15 November, 1948 , inCONSTITUENT ASSEMBLY xxii CONSTITUENT ASSEMBLY OF INDIA DEBATES (PROCEEDINGS ..., http://164.100.47.194/loksabha/writereaddata/cadebatefiles/C10121948.pdf (last visited Sep 20, 2020) xxiii M. V.PYLEE, OUR CONSTITUTION, GOVERNMENT AND POLITICS, (2000), Universal Law Books, Delhi, at p. 52 xxiv THE DISTINCTIVENESS OF INDIAN SECULARISM, http://www.chereum.umontreal.ca/activites_pdf/session%202/Barghava_Distinctiveness%20of%20Indian.pd f (last visited Sep 21, 2020) xxv AIR 1962 SC 853, 871 xxvi (1973) 4 SCC 225 xxvii (1974) 1 SCC 717 xxviii Id., para 139 xxix (1976) 2 SCC 17 xxx (1992) Supp (3) SCC 217 xxxi (1998) 7 SCC (Jour) 3 xxxii (1994) 3 SCC 1 xxxiii (1998) 7 SCC (Jour) 3 xxxiv Ibid xxxv 1994 Supp (1) SCC 324 xxxvi Id para 31 xxxvii (1998) 7 SCC (Jour) 3 xxxviii Ex-communication case and Nain Sukh Das v. State of U.P. (supra xxxix Supra 28 xl Ramesh Yashwant Prabhoo (Dr.) v. Prabhakar K. Kuntel, (1996) 1 SCC 130; Manohar Joshi v. Nitin Bhau Rao Patil, (1996) 1 SCC 169; Ramchandra K. Kapse v. Haribansh R. Singh, (1996) 1 SCC 206 xli Id para 39,42 xlii (1996) 2 SCC 749 xliii Supra 28 xliv (1996) 3 SCC 665 xlv (1996) 3 SCC 545 xlvi (1996) 2 SCC 4 xlvii Id., para 12 xlviii (1996) 9 SCC 548 xlix Supra 28 xx ASIAN LAW & PUBLIC POLICY REVIEW ISSN 2581 6551 VOLUME 5 – 2020 © All Rights Reserved, The Law Brigade Publishers