SECULARISM AND RELIGION BASED POLITICS IN INDIA- EROSION

OF CONSTITUTIONAL AIMS
(Term paper towards partial fulfilment of the assessment in the subject of Constitutional
Governance-I)

SUBMITTED BY:

SUBMITTED TO:

UTTARA.P.V

Ms. AAKANAKSHA

KUMAR
SEMESTER I

FACULTY OF LAW

B. A.(Hons.), LLB(Hons.)
Word count: 3107

NATIONAL LAW UNIVERSITY, JODHPUR

SUMMER SESSION
(JULY-NOVEMBER 2014)

ACKNOWLEDGEMENTS

I hereby thank the faculty of National Law University, Jodhpur, and especially my Legal
Methods faculty, Ms. Aakankasha Kumar for giving me the opportunity and the resources
needed to complete this study. I also would like to express my gratitude to the library staff for
helping me whenever needed and also to my classmates who keep the spirit of competition
alive in me. This project has provided me with an ideal opportunity to express myself and I
profusely thank all those who have lent a helping hand.

RESEARCH METHODOLOGY

SUBJECT:
TOPIC:

Constitutional Governance
Secularism And Religion Based Politics In India- Erosion Of Constitutional

Aims

The method of research opted by me to complete this project was doctrinal research from
primary and secondary sources. Major part of the project has been researched Articles and
reports available in web databases on the topic by scholars on the subject. Books and
Commentries on Constitution have also been referred to.

TABLE OF CONTENTS

RESEARCH METHODOLOGY....................................................................................................
TABLE OF CONTENTS.................................................................................................................
INTRODUCTION...........................................................................................................................
Secularism in India..........................................................................................................................
What Is Not Secular:....................................................................................................................
Seculrism In Constituent Assembly Debates.................................................................................
Religion Based Politics..................................................................................................................
Conclusion.....................................................................................................................................
Bibliography..................................................................................................................................
Cases:.........................................................................................................................................
Books:........................................................................................................................................
Articles:......................................................................................................................................

INTRODUCTION
Secularism, i. e. the concept of the State being free from all religious influences and qualities
and is a basic feature of the Indian Constitution as is explicitly stated in the preamble of the
Constitution after the 42nd amendment and as is implicit from the article 25 and it supports the
practise of every form of religion. The State treats all religions equally, doesnt discriminate
on religious grounds and there is no State religion. This is further guaranteed by the
fundamental rights in articles 25-28. People are free to not just entertain religious beliefs of
their choice but are also allowed to express and profess them; subject to reasonable
restrictions, in a manner as not to infringe the religious rights and personal freedom of others.
This can be summed up as to get protection under article 25 the question is not whether a
particular practise appeals to our reason or sentiments, but whether the belief is consciently
held as part of the profession or practise of religion 1, but then freedom of religion doesnt
allow a man to commit human sacrifice2 , even though some religions sanction human
sacrifice. Religious tolerance is the great tradition of people and the Constitution practices
tolerance which is not to be diluted3. The founding fathers of the Constitution had envisaged a
nation where the concept of secular state would provide better standards of life for all
sections of the society. In the judiciary has observed through Ramaswamy, J. that secularism
represets faith borne out of exercise of national authorities. It enables people to see the
imperative requirements of human progress in all aspects and cultural and social
advancement and need for human survival itself. It not only improves the material contents of
human life but also liberates human spirit, futhurance from bondage of ignorsnce
suppression, irrationality, injustice, fraud, hyprocrity and oppressive exploitation. But today
1 Jamshedji v Soonabhai, ILR (1909) 33 Bom 122
2 Saifuddin v State of Bombay, AIR 1958 SC 255
3 Bijoe Emmanuel v State of Kerala, AIR 2000 SC 1650

secularism under the Constitution is fast assuming great significance in view of current
trendy rise of religious fundamentalism and the corresponding rise of political parties based
on religion or owing allegiance to fundamentalist organisations. Political parties in an attempt
to get power end up using all the means to meet the end without caring if it is in accordance
with the aims of the Constitution or no.

SECULARISM IN INDIA
Secularism is a principle which basically has two propositions:
1. The complete separation of state and state affairs from religion and its institutions,
2. Equal treatment of all religions and no discrimination on such grounds.
Opposed to the rigid form of secularism practised in the west, where the state cannot make
any law regarding the church, in India, the state distances itself from religion, and at the same
time makes law concerned with the secular aspect of religious practises, 4 and rules in
honouring the rights of individuals, i. e. it is not complete non-interference in matters of
religion that the state practises. Every individual has the right to practise, propagate and
profess the religion of his choice and this is where the state dissociates itself from religion. In
India the first proposition is not applied in a very rigid basis and it is not that the state is in
any way anti-religious, but on the other hand the law requires that the state recognise and
accept all religions, and respect religious pluralism.
The second proposition is the one that has more relevance in the Indian context. In a land of
such vast diversity, the essence of secularism is non discrimination of people by the State on
the basis of religious differences5. Each person whatsoever be his religion, must get assurance
from the state that he has the protection of law to freely profess practise and propagate his
religion and freedom of consciences.6
There was no mention of the word secular in the preamble of the Constitution at the time of
the making of the Constitution, but the founding fathers wanted the nation to be having a

4 P. M. Bakshi, The Constitution of India, 62, 8th ed, 2007

5 Aruna Roy v Union of India, AIR 2002 SC 3176; M. Ismail Faruqui v Union of India, (1994) 6 SCC 360; R.
C. Pondayil v Union of India AIR 1993 SC 1804
6 State of Karnataka v Dr Praveen Bhai Thogadia, AIR 2004 SC 2081

secular nature which is clear from the constituent assembly debates and by virtue of articles
25-30. The propositions that emerge from articles 25-30 are as follows:
1. There is no state religion as a secular state is founded on the idea that the state is
concerned with the matter of man and man and not man and god which is a matter of
individual conscience. It does not extend its patronage to any religion or against any
religion.7 The state will not establish a religion of its own.8
2. Equality of treatment between all religions: This stems from the premise that the
state has no religion of its own. The attitude of state shall be one of neutrality towards
other religions. 9
WHAT IS NOT SECULAR:
Things that are contrary to enacting provisions of the Constitution cannot be committed in
the name of secularism, the foremost being article 14, which forbids discrimination by state
against any person and article 15-16 which prohibits the discrimination between a citizen and
another. Further, in case articles 19 (1) and 25(1) religious processions cant be stopped by
the state10 on the ground that it would offend the sentiments of another community, but then
the State cant allow a religious community to brandish weapons during a religious
procession, nor can it fail to take action against the same. Similarly, article 25 guarantees the
right to propagate ones religion, but then any state action which allure or upholds conversion
of people from one religion to another using fraud offends article 25 and so cant be justified
in the name of secularism. The expenditure of public revenue for promotion of any particular

7 S. R. Bommai v Union of India, (1994) 4 SCC 1

8 Indira v Raj Narain, In other words it shall not be a theocratic state, Hedge & Mukherjee, JJ. In Keshvananda
Bharati v State of Kerala, AIR 1973 SC 1461
9 Ismail Faruqui v union of India, (1994) 6 SCC 360
10 Cf. Gulam Abbas v State of UP, AIR 1981 SC 2198

religion is not justified by secularism as it contravenes article27 11. When a Hindu husband
converted to Islam and remarried without dissolution of the first marriage, then the second
marriage was declared void and he was stated to have committed the offence of bigamy under
section 494 of the Indian Penal Code 12 and not justified in terms of secularism. Most
importantly, as declared in S. R. Bommai v Union India, of any state govt. promoting or
opposing any particular religion is subject to the application of article 356 of the Constitution
and becomes anti secular.

11 Durga Das Basu, Commentary on the Constitution of India, Vol 1, 406-408, 8th ed, 2007
12 Sarla Mudgal v Union of India. AIR 1995 SC 1531

SECULRISM IN CONSTITUENT ASSEMBLY DEBATES

To understand the way in which the founders of the constitution had visions about a secular
India, it becomes imperative to look into the constitutional assembly debates concerning
secularism. All the members agreed unanimously on the need for Indian to be a secular state.
Most of them were of the view that the separtion of religion and state were irrevocably a part
of democratisation of the state. But the question was about the kind of secular state that
Indian ought to be, whether it ought to be state secular only when it stayed strictly away from
religion, and could such a secular state survive only if society was slowly secularised as well?
Or did a state that equally respected all religions best capture the meaning of secularism in
the Indian context?

13

Finally they after long winding sessions of debating decided against

the view put in by S. H. Kamath to put in the name of god in the Preamble and that all
religions equally respected encapsulates the meaning of secularism in the Indian context.
They were successful in getting well defined provisions put into the constitution which are
immensely valuable to the safeguard of freedom of religion. Their decisions as to the topic
was so good that it has well stood the test of time, but then it as anything else is not perfect, it
too has become a victim of political misuse, though the judiciary has time and again tried get
it to the track that the framers wanted the constitution to envisage.

13 Shafali Jha, Secularism in the Constituent Assembly Debates, vol 37(30), J. E&PW 3175-3180 (July 27August 28, 2002)

10

RELIGION BASED POLITICS

The makers of the Constitution had envisaged to make the country a place where all person
would be free to profess practise and propagate their religion and receive and give respect for
the religion they practise. When they said that the state and the govt. would be separated from
religion, it was implicit for the political parties as well because it was the political parties that
finally represented people and formed the govt. after they elected. But today, political lines
are often being drawn along caste lines. When they made clauses that the state would not be
promoting any particular religion they would not have imagined a situation, when political
parties whom the people vote to power to govern them would use religion as a tool to explore
the vote bank where the political parties ask for vote in the name of religion(illegal under
section 125 of Representation of Peoples Act), give

incentive, like reservations and

backward community status particular sects or cast with an intention to secure more votes for
the party, which are in actuality meant for the upbringing of the backward sections of the
society. Further, political parties, who are the authority for forming the govt. after they have
been elected to power, letting themselves be associated with conflict between religions or
castes, deepening the conflict and creating enemity and hatred between groups so much as to
create riots and tensions in the name of religion, act aggressively in a way as supporting one
of the conflicting religions, as in the context of Babri Masjid demolition, were not ideas that
the Constitution makers had when they were liberalising the idea of secularism to fit into the
Indian context. The Babri Masjid demolition and the turn of events in relation was one huge
blow to secularism, the most pathetic part of it being that the it happened with Supreme Court
only able to stand as mute spectators.

14

In addition, these political parties framing their

Constitution on religious lines, owing allegiance to a particular religion, or associating itself

with religious fundamental groups, like the BJP with the RSS is not in concurrence with the
14 O Chinnappa Reddy, The Courts And The Constitution Of India Summit A Shallows, 62

11

secular views of the makers of the Constitution. They would have had in mind the picture
political party that has or had criminal cases against itself or its members for commiting
crimes against concept of secularism and thereby violating a set of fundamental rights of the
citizens along with violating the supreme law of the land ruling the land. As righty pointed
out by Justice Reddy, no political party can simultaneously be a religious party because if a
political party expounding religion came to power, then that religion tends to become in
practice become the official religion and all other religions would get a secondary status
which is plainly unethical to the whole scheme of the Constitution.

15

Similarly, the

administration of justice prevailed over the decision of the Supreme Court when it justly
ordered for the divorced Muslim husband to give maintenance to his old wife, in view of the
Muslim votes in the upcoming elections16. It even went to such a high that the BJP led
government was planning to set up a commission to removing the term secular from the
Constitution of India, which is a basic feature of the same.
The judiciary has tried to come up with valuable points of law whenever there has been a
mixing up of religion with politics so as not to deviate the State off from the Constitutional
aims and uphold them. The most important judgement delivered in this regard was in the S.
R. Bommai v Union of India. The 9 judge bench looked into the matter of religion being
mixed up with politics in a very stringent manner.
In S. R . Bommai v Union of India, a new meaning was added to the word secularism. It was
observed that the neutrality of the State would be violated if religion is used for political
purposes and advocated by political parties for their political ends. An appeal to the electorate
on the grounds of religion offends secular democracy. Politics and religion cant be mixed. If

15 S.R. Bommai v Union of India, AIR 1994 SC 1918,

16 Mohd. Ahmed Khan v Shah Bano Begum, AIR 1985 SC 945

12

a state govt indulges in this, it is a fit case for application of Article 356 and it is in this sense
that secularism is to be regarded as a basic feature of the Constitution.17
It can be very well understood that the cause of both will be ruined if one is used for the
purpose of the other. Secularism be a basic feature of the Constitution would be impaired if
freedom of religion is subverted to achieve political purposes. More importantly, it declared
the state government mixing up religion with politics as anti secular and hence militates
against the basic structure of the Constitution. The court did not say that the state could not
outlaw a political party on the grounds of mixing religion with politics was because a
political party is an association with the protection of article 19(1) (c) whose integrity could
not be demolished except on grounds specified in article 19(4)

18

It was explicitly stated by Justice Sawant that appealing to any religion or seeking votes in
the name of any religion is punishable and violative of the Constitution. In furtherance Justice
Ramaswamy observed that to permit a programme based on religion by political parties
would be to recognise religion as a part of political governance which the Constitution
expressly prohibited.19
A year later the supreme court held that the usage of religion for electioneering (through
speeches, etc.) has been made punishable 20.
But, notwithstanding the voluminous judgement of the 9 judge bench that decided the S. R.
Bommai v Union of India case, there are still questions have been left unanswered and is
open for controversy. The protection to political parties from being banned even if they get

17 S.R. Bommai v Union of India, AIR 1994 SC 1918

18 Durga Das Basu, Commentary on the Constitution of India, Vol 1, 410, 8th ed, 2007
19 S.R. Bommai v Union of India, AIR 1994 SC 1918
20 Durga Das Basu, Commentary on the Constitution of India, Vol 1, 410, 8th ed, 2007

13

anti secular by virtue of article 19 (1) (c) on the ground that they are an association is the
most important one among them.

14

CONCLUSION
India is a land of diversity. There are in total 8 religions that are practised in India and there
are innumerable castes and sub castes in these. Our Constitution makers had envisaged a land
were everyone colud live with dignity irrespective of the religion, caste, creed or class . With
repesct to achieving this goal they made the Constitution a secular one by guaranteeing the
right to religion. Later this was made explicit by the addition of the word secular in the
preamble through the 42nd amendments.

The concept of Indian secularism has stood the test of time, India has been together with the
feeling of togetherness and by there never once has been there a huge political uncertainty in
terms of the different religions practiced the by people as in case of neighbouring Pakistan
and Bangladesh. But then that doesnt mean that the concept has always worked perfectly, it
has had its own fair share of problems to which the judiciary has most of the time come up
with a good solution. The most relevant among the problems that have propped up is religion
based politics. When religious sentiments are exploited to cause gain from politics, it is not
just that it is unethical, but it also violates the Constitutional aims and is undesired. It was
Machiavelli who first brought up the idea of separation of religion from politics. Bangladesh
and Pakisthan provides ample examples to how there can be beakdown of Constitutional
mechanism when the two are intermixed.

Even inspite of all this, there is a wonderful mechanism of checks that exist in India.
Secularism is not a view that was imposed on to Indians, but instead it was a conscious
choice. Religious tolarace is something that is practiced by every religion. It is a fact to be
proud of that inspite of all the huge diversity, we continue to live as one happy nation, in
coordination with people of all the religions.
15

BIBLIOGRAPHY
CASES:

1. S.R. Bommai v Union of India, AIR 1994 SC 1918

2. Mohd. Ahmed Khan v Shah Bano Begum, AIR 1985 SC 945

3. Jamshedji v Soonabhai, ILR (1909) 33 Bom 122

4. Saifuddin v State of Bombay, AIR 1958 SC 255
5. Bijoe Emmanuel v State of Kerala, AIR 2000 SC 1650

6. Aruna Roy v Union of India, AIR 2002 SC 3176; M. Ismail Faruqui v Union of India,
(1994) 6 SCC 360; R. C. Pondayil v Union of India AIR 1993 SC 1804
7. State of Karnataka v Dr Praveen Bhai Thogadia, AIR 2004 SC 2081

8. Indira v Raj Narain, In other words it shall not be a theocratic state, Hedge &
Mukherjee, JJ. In Keshvananda Bharati v State of Kerala, AIR 1973 SC 1461
9. Ismail Faruqui v union of India, (1994) 6 SCC 360
10. Cf. Gulam Abbas v State of UP, AIR 1981 SC 2198
11. Sarla Mudgal v Union of India. AIR 1995 SC 1531

BOOKS:

1.
2.
3.
4.

Commentary on the Constitution of India, Durga Das Basu

Shorter Constitution of India, Durga Das Basu
The Courts And The Constitution Of India Summit A Shallows, O Chinnappa Reddy
The Constitution of India, P.M. Bakshi

ARTICLES:

1. Secularism in the Constituent Assembly Debates, Shefali Jha, Economic and Political
Weekly
16

2. Bangladesh Ban On Religion-Based Politics: Reviving The Secular Character Of The

Constitution, Arshi Saleem Hashmi

Weblinks:

1. www.manupatrafast.com
2. www.jstor.org
3. www.wikepedia.com

17