Chapter 2

RIGHT TO RELIGIOUS FREEDOM AND GENDER

EQUALITY: A BACKGROUND

A. General perspective

The diversity of caste and religion defines Indian society. Each has a
long-standing historical influence on how society is organised and how
people spend their lives in the nation. Hindu culture has been strongly
influenced by the caste system, one of India's oldest and most
well-established social structures with roots dating back more than 3,500
years. It is made up of hierarchical social groups (Brahmans, Kshatriyas,
Vaishyas, Shudras, and Dalits, each with their own set of sub-castes) that
have served as hurdles to civil equality as well as social, economic, and
political divides amongst communities. Inter-caste marriage is typically
regarded as socially inappropriate because caste is largely hereditary,
closely related to occupation, and associated with expectations of
cleanliness and purity. Therefore, there is a wide social gap between the
upper and lower castes. Lower castes are frequently forced into menial,
manual, and jobs that include pollution and impurity. A further obstacle to
class mobility is the extent of gender discrimination and poverty that lower
caste women in particular endure, which frequently keeps them in
poverty.13.

Since the beginning of time, India has been a dynamic country

where many civilizations began, developed, and spread over the Indian
subcontinent as well as other countries on the map of the world. Many
groups from various religions and races migrated to India because of its

13
(Jain, 2005; Mitra, 2007; Parashar, 2008; Singh, 2005).

15
rich cultural, religious, and social ethos and strove to disseminate their
cultural ethos while also assimilating Indian culture and ethos. Numerous
groups, racist religions, and sects, including Muslims, Christians, Sikhism,
Parsis, Buddhists, Jains, and, foremost among them, Hindus, practised,
professed, and spread their respective religions, philosophies, ideologies,
etc. All of the aforementioned communities relocated to and found room in
India as a result of its geopolitical climate.

In order to improve societal functioning, many personal laws (laws

governing religious practise such as marriage, succession,
adoption/guardianship, inheritance, restitution of conjugal rights, and
divorce) were codified. All of these religious personal regulations
encountered obstacles when they were put into practise in society, such as
child marriage, patriarchal character, endowment, and the subjection of
women due to some unpleasant taboos. In certain ways, it may be stated
that gender equality began or was introduced in the name of religion, rites,
and practises. Although numerous reformers throughout history attempted
to eradicate gender inequity and put a stop to discrimination against men
and women, their efforts were mainly unsuccessful due to the inherited
propensity for male dominance in society.14

I. Hindu Law and Women

A. Vedic Period

The Vedic period is one of the glorious chapters in Indian History.

The early Aryan society was patriarchate and the father position was
supreme in the affairs of the family. But mother also enjoyed a high
position and she exercised supreme authority in the household affairs. The
Aryan sought co-operation of their women in almost every walk of life and

14
See S. Ganguly, “ The Crisis of Indian Secularism”, Journal of Democracy (2003), pg.
11-25.

16
they were give full freedom of their development like physical, intellectual
and moral. If the position of women in a society is the true index of its
civilization, the early Vedic society was slightly civilized. They even
participated in conversations with men without any hesitation. In religious
ceremonies and sacrifices also, men and women both took part on the basis
of equality. Women were not regarded as an impediment in religious
pursuits and they were treated at par with men in the eye of religion. No
ceremony was deemed to be complete without her participation15.

In matter of education also distinction was made between a son and

a daughter. Both had to go through the ceremony of upanayan16 and both
were entitled to receive education. Many women famous as seers, teachers,
philosophers, poetess and debaters17. Some of them had actually composed
Vedic hymns18. There were two types of women during the Vedic period:

1. Brahm Vadinis- who were lifelong students devoted to studies and

meditation;

2. Sandhyo Vadhus- who received education as long as they remained

unmarried.

In marriage girls also had freedom. Early marriage was unknown.

No reference to such a marriage is found in the whole of Rigveda Sanhita19.
Marriage took place when boys and girls become mature at sixteen or
seventeen at a fairly advanced age. There was nothing like forced marriage.
Girls and boys were given liberty to choose their partners. A widow could
remarry if she wish. Such a marriage widow was called punerabhu.

15
A. S. Altekar, ―The Position of Women in Hindu Civilisation‖, Delhi, Motilal Banarsidas, 3rd
Ed, 1962 p. 338.
16
Upanayan is a ritual (Sanskar) which was furnished before sending son or daughter to
Gurukul for the study. Manusmriti II, 67.
17
Lopa Mudra, Ghosa, Apala, Vak and Vsavara were renowned in this field.
18
Supra Note. 1.
19
B. S. Upadhyaya, Women in the Rigveda, Benaras, Nand Kishore and Bros., ed.1941, p. 130.

17
Niyogas20, was permissible only for pregnancy. Sati was not in practice.
Thus, the condition of widow was extremely satisfactory. Monogamy or
one man one wife was the general rule. The husband and the wife were
expected to be faithful to each other. Both were expected to co-operate in
all works, religious and secular21.

Women's right to property was limited. An unmarried daughter

usually had a right of maintenance in her father's house. The issueless
widow had a share in her deceased husband's property. But the married
women had no share in the property of her father or husband. She had
limited rights to hold or inherit property22. But she had complete control
over stridhan or her personal property.

During the later Vedic period men and women both were admitted to
the learned philosophical gatherings and the discourses by the women were
outstanding23. In the post Vedic period, the age of Sutras, Epics and early
Smrities extending from 500 B.C. to about 500 A.D., the cast system and
the priestly oligarchy came to be firmly established. Now there was
definite deterioration in the status of the women. In Manu's code a women
ceased to be man's equal in her own right. In man's world her position one
of subordination. Manu disapproved Niyoga, widow marriage and inter
caste marriage. He prohibited the practice of Upanayana for a girl. So she
was deprived of the right to secure education, denied right to study the

20
According to the custom of Niyoga, if a women's husband had died or even if she had a
husband but no children from him she could contact the husband but no children from him, she
could contact the husband's younger brother or his very close relation with a children..
21
Rigveda, V. 618, see also Modern Review, December, 1925 p. 6.
22
A.S. Altekar, op. cit., p. 339.
23
Gargi and Matreyi were famous philosophers - seers of truth - of this period. The conviction
between Matreyi and her husband Yagnavalkya, is one of the most thoughtful passages of the
Upanishad. She refused to share her husband's property in favour of her co-wife Katyayani
preferred knowledge of Brahman (Supreme being) to worldly possessions. A.S. Altekar, op. cit.,
p. 334.

18
scriptures. Manu denied freedom to a woman during any period of life24.
Manu approved early or pre-puberty marriage for a girl.

Manu put many limitations on women but man was kept free. A
women was always expected to be loyal to her husband, even if he was
devouched or devoid of all virtues but the latter was not bound to loyal to
her. A man could have more than one wife but the wife had no option to
have a second husband. She could neither earn nor own property except
Stridhan.

Despite of all restrictions and limitations put by Manu on women,

however, he had also a soft corner in his heart for women. He wanted a
worthy husband for a girl. He wished that due respect should be paid to a
women. He said that where women are honoured, there deities are pleased
but where women are not honoured, there all acts are of no avail25. The
arrival of Buddhism brought the happy days of women. Buddha believed
in social and religious equality. The women were assigned an honoured
place in society and were admitted to the Buddhist order. Buddha formed
the Bhikshuni-Sangh or the order of Nuns. It unfastened new avenue to
them.

"The Buddhist convents opened out to women opportunities for

education, self-culture and varied spheres of social services, in which they
made themselves the equal of men, supplementing their work in the spread
of their faith."26

B. Medieval and Modern Period:

24
A women is not entitled to independence; her father protects her in her maidenhood, husband
in her youth and her son in her old age. Manu Smriti (9:3) Edited by Har Govind Shastri.
25
Manusmriti III, 56. Also see III, 57.
26
Radhakumud Mukharjee, "Women in Ancient India," Ed. By Tara Ali Beg "Women of
India," ed., p. 8, quoted in R. K. Sharma, Nationalism, Social Reforms and Indian Women, p. 5.

19
 The heyday of Buddhism was brief in grandeur. By the time Islam
arrived in India, the Manu code began to dominate every aspect of
women's existence. Movements outside were prohibited for security
reasons, which prevented opportunities in local affairs. They were treated
like chattels because they lacked education and position. Female
infanticide, child marriage, and "Sati," three social ills, emerged. Women
also experienced significant legal disadvantages.

Even during the Mughal era, the societal ills that existed during the
Turko-Afghan era persisted. The main vices that both Hindus and Muslims
experienced were early marriage, the dowry system, sati, pardah, and
kulinism. Akbar had made attempts to improve society, but he was
unsuccessful. John Stuart Mill made the following intriguing observation:

―If a Hindu principality is powerfully, vigilantly, and economically

managed; if order is maintained without tyranny; if cultivation is
expanding, and the people are prosperous, in three out of four situations
that principality is under women's control. This information, which I have
learned through my extensive official knowledge of the Hindu
Government, came as a complete surprise to me‖.27

Although there were restrictions on women's rights and

independence, no nation on earth has ever documented a more edifying or
magnificent example of female allegiance than the Rajput ladies. However,
notwithstanding the occasional great woman here and there, from 200 B.C.
to 1800 A.D., there was a consistent decline in their position and stature in
society. A.S. Altekar's succinct summary of the status of women during
this time was as follows;

27
John Stuart Mill, ―The Subjection of Women, essay on sex equality‖ Alien S. Rossi, ed. 1970,
p. 187.

20
 ―The typical woman continued to live a contented and joyful life,
being pampered by her parents, adored by her husband, and respected by
her kids. However, it must be acknowledged that at this time, factors such
as the ban on widow remarriage, the resurgence of Sati tradition, the spread
of the Purdah, and the increased prevalence of polygamy and succession
caused her cup of pleasure to be broken more often than at any other time.
Her treatment by society was similarly characterised by patronising
condescension. She should, without a doubt, be well cared for and attended
to, but no meaningful action was taken to stop the rising propensity for
people to make insulting comments about her character and value.‖28

When the British ultimately take control of all of India, they

establish a new style of government. In other words, British control, which
aimed to reduce Indians to servitude, really had the exact opposite effect.
Indians became painfully conscious of their lowly status as a result of the
democratic ideas that were imported with the British educational system.
This has an indirect impact on women's emancipation.

India started to recognise her long-cherished ideals and cultural

self-consciousness in the 19th century. In India, this became known as the
renaissance era. Here is where the transformation of her traditional
practises and indigenous values starts. It denotes a process of rediscovery,
a reawakening, and a reformation of the self. The reformers who favoured
women's freedom hoped to bring back the favourable and healthy
conditions that were present during the early Vedic era. Indian women's
renaissance is accompanied by "renewed awareness of India's glorious
past."

However, unlike suffragette movements in the west, the campaign

for the emancipation of Indian women was started by male leadership. At a

28
A.S. Altekar; op. Cit. Pp. 360-361.

21
time when political awareness was only emerging, during the national
struggle for independence, the desire of women for equality and more
freedom of movement was accelerated. To participate in Prabhat Pheris,
Satyagrahas, and other associated actions, Mahatma Gandhi urged women
to leave their homes. One of the first attempts was made to bring Indian
women out of the initial home life and into roles that were equivalent to
those of males. Mahatma Gandhi believed that ―women is a companion of
man, gifted with equal mental capacities, she has right to participate in the
minutest details of activities of man and she has the same right of freedom
and liberty as he had. Even the most worthless and ignorant males have
been enjoying a superiority over women that they neither deserve nor
should have due to the sheer weight of nasty habit.‖29

C. Post-Independence :

Following her independence, she was exposed to the contemporary

democratic influences of the western countries through a new economic,
political, and legal framework, which profoundly altered the perspective of
women's lives. Men's attitudes towards women are likewise altered by it.
Many notable relics of the past vanished as a result.

Indian citizens, including women, are granted a number of rights

under the Indian Constitution. The Fundamental Rights are a set of
fundamental human rights that the Indian Constitution grants to both
citizens and non-citizens.30.

29
―Women's Right; Myth and Reality‖ by Sachchdanand and Ramesh P. Sinha, Young India
(1918)
30
For example, Article 14 of the Constitution of India guaranteed every person equality before
law and equal protection of law within India. Article 15 prohibits discrimination against any
person on grounds of religion, race, caste, sex, place of birth or any of these. Article 15(3)
stated that nothing in this Article shall prevent the State from making any special provision for
women and children. Article 16(1), guaranteed equality of opportunity in matters of public
employment for all citizens. According to Article 16(2), no citizen shall on grounds of sex,
among other grounds, be ineligible for or discriminated in respect of employment or office

22
 Generally speaking, a Hindu woman is not subject to any legal
discrimination under Hindu personal law. 31.

Since marriage is viewed as a secular and social institution under the

Special Marriage Act of 1954, as opposed to a religious union under the
Hindu Marriage Act of 1955, there is no requirement for a religious
blessing. As a result, while maintaining distinct personal laws, civil
marriage has been made available under the Special Marriage Act. Consent
is required for divorce, which is a remedy for broken marriages. Both
section 21 of the Special Marriage Act of 1954 and the federal provisions
of the Indian Succession Act of 1925 treat inheritance as secular.The
equality of women in educational and occupational fields brought about
the feelings that property rules should also be changed as discrimination in
the rights of inheritance could not be tolerated32.

under the State. Under Article 19 of the Constitution this Fundamental Right ensures that every
citizen of India would be allowed to live, speak, write, work and travel, all over India, provided
that these activities do not amount to criminal activity. It may be thought that these rights
coupled with Article 15 and 16, would fully protects the rights of women. However, Article 25
of the Constitution which allows freedom of religion, has been interpreted to mean that
religious custom, even if bluntly discriminating against women, will take precedence over the
civil laws, particularly in two areas:
i. Marriage and Family Structure
ii. Ownership of Property.
31
Under the Hindu Marriage Act, 1955, Hindu Succession Act, 1956, Hindu Adoption and
Maintenance, 1956 and subsequent amendments, these social legislation's have promoted
emancipation of women to a large extent.. Among other reforms, the Hindu Marriage Act, 1955
has enforced strict monogamy and has expressly prohibited bigamy which is punishable under
the Indian Penal Code. The Concept of marriage as a sacrament and as an indissoluble link has
been modified in the light of social values and equality of sexes. The Act permits divorce to
both parties on certain specified grounds on a equal terms, and women are going in for divorce.
The ancient law had given more rights to males, now both males and females have been given
equal rights. In this respect, judiciary has played magnificent role and process of judicial
interpretation, many of the rules of the Hindu law based on ancient religious and social notions
have been changed in such a way so as to be in tune with equality of sexes and facts of life in
modern society. Some previously prohibited marital alliances are now recognised in law. Inter
caste marriage is now valid. Sagotra and Sapravara marriages are also allowed under the Act.
32
To remove this disparity, Hindu Law of Inheritance Amendment II of 1929 and Hindu
Women's Right to Property Act, 1937, were superseded by the Hindu Succession Act, 1956,

23
 The right of adoption to a women under the Hindu Adoption and
Maintenance Act, 1956 is another change which has benefited Hindu
women emancipated status, at least legally.

Another change that has helped Hindu women achieve emancipated

status, at least legally, is the right to adoption granted to them by the Hindu
Adoption and Maintenance Act of 1956.

They now have equality in family life, marriage, succession, and

adoption thanks to legislation taking into account constitutional provisions.
In general, the differences between men and women's rights and
disabilities based on sex and custom have been abolished. Hindu law, as it
is currently revised, supports contemporary notions of fairness and
women's status equality in society.

Women now have a number of rights thanks to the Constitution. The

Constitution guarantees equality before the law, prohibits sex-based
discrimination, etc. according to the freedoms guaranteed by the Indian
Constitution, a number of legislation were passed by the government to
protect the women's rights and to remove disparities, if any. Side by side
with the advancement of education in women, they also become more
conscious about their rights. Now, they are at par with men. Socially,
economically, educationally, religiously, they may not, but they are very
rapidly moving towards that direction. Another change that has helped
Hindu women achieve emancipated status, at least legally, is the right to
adoption granted to them by the Hindu Adoption and Maintenance Act of
1956.

which conferred more rights on women in respect of property. Now they have rights in their
father's property, subject to certain clauses giving preferential rights to male heirs if the
property is maintained as joint household. These clauses serves a very good purpose because if
the girls are to inherit equally then the girls would have to forgo dowry to obviate the risk of
enjoying a double advantage.

24
 They now have equality in family life, marriage, succession, and
adoption thanks to legislation taking into account constitutional provisions.
In general, the differences between men and women's rights and
disabilities based on sex and custom have been abolished. Hindu law, as it
is currently revised, supports contemporary notions of fairness and
women's status equality in society.

Women now have a number of rights within the Constitution. The

Constitution guarantees equality before the law, prohibits sex-based
discrimination, etc. according to the freedoms guaranteed under Part III of
the Constitution.

D. Concept of Religious Personal Laws

The common law system, a holdover from British colonisation, has

an influence on the legal system in India. This examination severely
disrupted the normal, natural relationship that exists between a legal
system and its populace throughout colonisation. Indians eventually had a
legal system established in accordance with the demands of an entirely
other society, that of England. However, although English law has
abandoned or modified the majority of these legal concepts, Indian law
upholds the "convention" of the original laws. One of those notions is that
of private religious laws. Legislative reforms were gradually made as well,
but despite these modifications, the notion that religion personal laws are
unchangeable still prevails. Due in part to the rhetoric used, the practise of
applying religious regulations to private concerns was seen as the "saving"
of religious laws. It's amazing that British laws dictated what qualifies as a
personal affair. Women have fewer rights than men, which is a defining
characteristic of the majority of religiously specific regulations. The state
has expressly used the argument that these rules are sacrosanct to some
religions, but it has also on many occasions provided official amendments.

25
The majority of the advancements have been incorporated into Hindu law,
but the changes to the laws of minority networks have been even more
restrictive. For instance, the Hindu Succession Act was proposed in 2005
with the intention of raising daughters to the level of their parents;
nevertheless, the law's implementation still gives women fewer rights than
men. In these particular circumstances, it is likely that gender inequity for
Indian women will be achieved by presenting a common family law
administration that would cause people to view the principle of gender
equality as the distinguishing feature of the law.

Despite having a predominantly Hindu population, India also has

residents who follow Islam, Sikhism, Christianity, and numerous other
faiths. Along with this diversity has come a long history of religious strife,
most notably between Muslims and Hindus. While there have been social
and legal initiatives promoting religious tolerance, there is a growing body
of literature that recognises and explores the subtleties of gender inequality
based on religion. 33 Despite the fact that caste, gender, and religious
intolerance are deeply ingrained in history, India's post-independence
leaders promised its diverse constituents citizenship rights that cut across
caste, gender, and religion. In contrast to the country's former British
administration, India's constitutional legislation secured citizens' rights to
religious freedom and the expression of their own cultures, as well as
outlawed caste- and gender-based discrimination. However, academics
contend that by protecting religious freedom, the constitution also served
to legitimise gender discrimination by maintaining patriarchal religious
and cultural practises as well as religious personal law.34.

33
(Jain, 2005; MacKinnon, 2006; Mitra, 2007; Parashar, 2008).
34
(Mukhopadhyay, 2003; Parashar, 2008; Sundar, 2011; Williams, 2011).

26
 This research35 is based on interdisciplinary literature to provide an
overview of citizenship, secularism, religious freedom, and religious
personal law in India in order to properly contextualize the research
subject..

E. Indian Secularism

Every religion has an ethical aspect as well. In this form, the religion
provides value oriented system for individual, society and the state. It is the
soul of every religion. There is a universalistic element in it. Most of the
ethical values are common to all religions. So far as individual is
concerned, the religion provides value oriented system, thereby enabling
him to infuse meaning in life and world-around36. In this respect it infuses
in the individual the capacity for self-governance. Self-governance
requires that the individual should respect the rights and interests of others.
Promises should be kept, personal and bodily integrity should be
respected37. At the social organizational level, it is a powerful force of
integration, insofar as the in-group is concerned. True religion also
supplies theoretical foundation to two values which are essential for the
modern state-liberty and equality. The dignity of a person requires liberty
from arbitrary and capricious actions by other persons or government,
liberty of conscience and liberty of expression are promised upon the
free-will. If one has no free-will, he has neither conscience nor reason.
Likewise, equality arises from the notion that persons are created in the
image of God38.

Secularism seeks to attain these objectives through the same values.

The ethics of religion, thus, provide foundation to the secular values. J.S.

35
―Universal Declaration of Religious Freedom Implications and Issues”, R.K. Misra , Paper
presented in the Seminar held in Banaras Hindu University in 1980
36

37
―Meaning of Religious Clause‖, Jonathan K. Van Patten, 27, Saint Louis University Law
Journal (1983); 80.
38
Id. at 7

27
Mill39pointed out: Every society derives its cohesion from a set of beliefs
and values which have, until recent times, been supplied by super-natural
religion. But with the decline of religion, however, a secular vision of life
must become the source of these values and beliefs40. Secularism, thus,
seeks to promote and integrate this form of religion in the social and
individual life of a human being.

1. General Problems

Secularism, in India, has been adopted to solve problems different

from those of the West. Secularism in India, therefore, It has been adopted
has acquired an altogether different meaning to answer problems generated
by the religious pervasiveness of the people which has created, amongst
others, following problems

a) Orthodoxy and superstitions

Religion has been playing all pervasive role in the life of the people.
It regulates the actions, behavior and feelings of the people. The
particularistic aspect of religion creates the feelings of exclusiveness and
prejudices amongst its followers. In a society like India, it fragmented the
society order and developed, in course of time, stagnancy, communalism,
orthodoxy and superstitions. The religious pervasiveness has also led its
followers to rely more on religion as a means to attain materialistic
achievements. This perpetuated economic backwardness in the society.

(b) Socio-economic backwardness

Every religion has erected a fixed social order for its community. It
has also prescribed norms for the regulation of such social order. Hinduism
has established a traditional social structure based on caste, endogamous

39
International Encyclopedia of Social Sciences, V.W. Balden, John Stuart Mills (1968); Vol.
X., ed. David L. Sills (1970); 342.
40
―Caste, Prejudice and the Individual‖, A.C. Prajape, (1970); 8.

28
groups and family. Such society seeks to preserve the social heritage
unchanged and is, thus, static. Accordingly, the traditional social structure
continues to exist without any change. The social structure based on caste
has been ‗group-oriented non-egalitarian41 and inscriptive‘. Individualism
and egalitarianism, the fundamental modern values, have been foreign to
this system. The norms,42 which regulate the social system, lay emphasis
on ritual status rather than on secular status of an individual 43. Thus, the
caste provides the individual member with a fixed milieu, a permanent
body of association which controls all his behaviors and contracts. The
hierarchical order of the caste has also laid down non-egalitarian norms for
the social system worst-type of inequalities have been practiced with the
untouchables. Religious, social and political disabilities have been 44
attached with them. The notions of individualism and freedom have been
absent from family system as well. The family, not the individual, has been
recognized as the unit of social actions, interactions and participations.
With the hierarchy of caste. The occupations have also been associated.
The people of higher caste were, generally, land-owners and the people of
the lower castes were either manual labors or tenants. Consequently, it has
perpetuated economic inequalities in the society. The role of secularism in
India is to root out these evils and modernize the society.

(c) National Solidarity

The multiplicity of religions, sects and castes have fragmented the

society which has posed problems for national unity. The problem became
more acute when the British rulers began to exploit this phenomenon in

41
Yogendra Singh, ―Modernisation of Indian Traditions” (1986); 96.
42
Ibid.
43
Ibid
44
―Race and Culture in India‖, D. N. Majumdar (1961); 337.

29
order to strengthen their rule. The Britishers created the minorities problem
by guaranteeing communal representation to Muslims and to certain
groups of Hindus. The problem was further aggravated when they infused
a fear among the Muslims, that in the Hindu dominated country, their
religion and culture would be dominated by the religion and culture of
Hindus. Secularism has been adopted to forge national unity through the
integration of the people of all communities.

(d) Influence and basis of our Secularism

Evidently, secularism has been accepted as a sub-process of

modernization and also as force in promoting nationalism. In achieving
this objective, it has been influenced by the following forces:

On achieving independence, the framers of the Constitution adopted

secularism as an ideology for the country, most of these framers were those
who had been active in nationalist movement. Naturally, their thinking
contributed to the shaping of ideology of our secularism. Besides, the
Hindu idea of tolerance of plurality of religious forms, and the traditional
concept of the role of the state determined the state and religion
relationship in our secular framework.

The idea of secular state found its expression in the Nehru Report
which recommended such state for the country in order to contain
communalism. Its object was that the state should neither develop any kind
of religious nationalism nor would permit the development of such
nationalism if it would disturb the public order.

The framers of our Constitution were guided by the

recommendations of the Nehru Report in adopting secularism as an answer
to the problem of minorities. Nehru observed that in a country like India
which had many religions, no real nationalism could be built up, except on

30
the basis of secularity. One cannot think of any state which might be called
a communal or religious state. We can only think of a secular,
non-communal democratic state in which every individual to whatever
religion he may belong, has equal rights and opportunities.

Our modern secularism, thus, seeks to establish nondiscriminatory

state, which would respect all religions. It would be non-communal.

The ideology of liberalism assumes that the individual is an

autonomous entity and, therefore, no inter-individual arrangements
whether social, political or economic or cultural are valid unless the same
can protect his autonomy. It led to the development of the 'individual'
socially in a manner as to enable him to relate to the community at large'
represented by the nation. The liberalism, thus, recognizes individual as a
unit of social, economic, political and cultural actions and participations.
In this regard, Nehru adopted scientific secularism which wanted the
Indians to develop the 'spirit of enquiry and the acceptance of the right to
question and be questioned'.' Naturally this world-view did not accept
blind faith. In essence, it sought to develop among individuals the capacity
of inquiry and reason. All these ideologies formed the constituents of our
modern secularism.

Secularism, thus, seeks to develop a culture in the society which is

based on humanism, liberalism and rationalism. It does not follow that it is
anti-religion. In fact, it is against that religion which promotes bigotry,
orthodoxy superstition and conservatism among the people and militates
against the individual development. Dogmas, ceremonies and rituals have
the tendency of inculcating these attitudes among the people and are,
therefore, not patronized by it. But a faith in a worthwhile ideal is essential

31
to give substance to our lives and to hold us together. Therefore,
secularism subscribes to that religion which satisfies the needs of the
society and promotes all-round developments of an individual.

To Nehru, such religion is that which consists of the inner

development of the individual, the evolution of his conscious ness in a
certain direction which is good. Gandhi‘s religion signifies belief in the
ordered moral the world. It consists of ethical values. The ethical values
derived from all religions form the basis of our secularism. These values
comprehend humanism and liberalism. On the basis of these values, the
Indian secularism also seeks to evolve a composite culture for the
promotion of emotional national integration.

F. Derivatives:

The derivative of the aforesaid discussion is primarily to discuss

the secular character of the Indian Constitution and the society per se.
Since the historical background of Indian society had witnessed
fragmentation, consequently, leading to a concept of inclusiveness. It
implies that a society which has such diversified background, it is essential
to maintain a sound cohesiveness, binding all sects, race, communities, and
religions. The framers of the Constitution ensured equality in all kinds of
rights and as far as the personal rights were concerned it was untouched,
giving full freedom and liberty to persons, citizens and religious
denominations.45

45
Art. 25, which ensures individual freedom to practice, profess and propagate its religion
Art 26 ensures group rights to religious denominations, but both Art. 25 & 26 are subject to
reasonable restrictions, i.e, health, morality and public order.

32