CONSTITUTIONAL CONCEPTION OF SECULARISM1
The Conception of Secularism with reference to Constitution, roots from the inception of our Constitution. A valid source of it being the Constitutional Debates that occurred around the term ‘Secularism’. The members were very clear on the fact that the movement for the separation of a religion and state was an irrevocable part of the project(constitution) for democratization of the latter2. But the question that remained being, to what extent should the State be Secular. Primarily, they had taken two positions about what ought to be the stance of the state with religion.
NO-CONCERN THEORY OF SECULARISM (DHARMA NIRPEKSHTA)
There exist an unequivocal line of distinction between State and Religion considering the latter to be private affair of individuals with no public recognition from the former. The intended purpose was to strengthen the institution of Nation by making it the sole identity of its members while simultaneously weakening all the associations with other institutions such as Religion. This position, in extremist sense disallows the status of Religious Rights as Fundamental Rights and in moderate sense, restricts the same to Religious Worship in private as a fundamental right.
EQUAL-RESPECT THEORY OF SECULARISM (SARV DHARMA SADHBAVNA)
The makers perceiving Religion to be an essential part of Indian population, in consonance with the objective of State-Religion separation, decided that the State shall distance itself from all Religions equally while respecting and recognizing all religions equally. This theory recognises Religious Rights under Fundamental Rights of Indian Constitution. This stance was adopted by the makers thus implicitly recognizing ‘secularism’ as an essence of our basic structure while incorporating religious rights under Art 25,26 of part III.
UNDERSTANDING THE SCOPE OF RIGHT TO RELIGION UNDER ART.25,26
Art.25 and 26 are provisions that provide citizens with the right to religion, while essentially restricting the religious rights through state action on various grounds such as Public order, Morality and Health. Art.25 deals with individual religious rights whereas Art.26 deals with group rights. Literal construction of the Art.25, particularly Art.25(2)(b), reveals that these rights do not extend to financial, political, economic, and secular activities that surround a religion. That is to say, a practice to be protected under Art.25 shall have to pass a two-prong test.
- The practice shall be a ‘religious’ activity and not a nonreligious activity that is circumstantially attached to a religion
- It shall not be violative of any grounds such as public order, morality, and health.
On the other hand, Art 26 merely assures the Religious Denominations the rights to establish institutions; acquire, own, and administer property; manage its own religious affairs with no mention of any power of the state to regulate. The point of conflict arises when state tries to regulate the activities organized by Religious Denominations as a part of their religious affairs through the power given to the former under Art.25. This way, SC was able to interpret the scope of ‘Religious Affairs’ – That is
- Does the term ‘religious affairs’ under Art.26 include nonreligious activities circumstantially attached to a religion?
- If they are, then are they subject to state regulation under Art.25?
THE DOCTRINE OF ESSENTIAL PRACTICES
SC in the Shirur Mutt case3 has held firstly ‘denominations’ are merely collection of individuals classed together under a same sect or a body, therefore can be restricted under Art.25 “even though by so doing it might interfere with religious practices”.
Secondly, ‘religion’ is a generic term that includes beliefs, rituals, ceremonies, modes of worship, code of ethical rules and observances that might extend to food and dress. Therefore
“What constitutes essential part of religion is primarily to be ascertained with emergence to the doctrines of that religion itself”
Following this, held even activities that are circumstantially attached to religion, shall at the discretion of the Denomination come under the scope of ‘religious affairs’.
Here from, started an array of jurisprudence trying to determine the scope of Religion under Art.25,26. Excommunication case4 reinforced the view established in Shirur Mutt. But subsequently, Gajendra Gadkar.J through Dargah committee case reinterpreted5 the view of the right. He held
- The right shall extend only to the essential parts of the Religion – while disallowing superstitions and accretions
- While transferring the onus on deciding what is essential, to the Court from the Religion.
In words of Gadkar.J in Nathdwara temple case6
“The task of disengaging the secular from religious practices protected under Art25(1),26(b) … will always be decided by the court”
Gadkar.J’s interpretation laid the basis for today’s understanding of Religious Rights under Art25,26.
“While the views of a religious denomination are to be taken into consideration in determining what is or is not essential to religious belief those view are not determinative of its essentiality. The court has assumed a central role in determining the same” – Chandrachud.J in Sabarimala Judgement
Critique of this Doctrine is, the essentiality of practice to a religion while striking down such a practice for secular purposes is irrelevant, especially in absence of any mention about such essentiality requirement in the constitution.
1 Shefali Jha; Secularism in the Constituent Assembly Debates, 1946-1950; Economic and Political Weekly , Jul. 27 - Aug. 2, 2002, Vol. 37, No. 30 (Jul. 27 - Aug. 2, 2002), pp. 3175-3180
2 Aijaz Ahmad, Lineages of the Present, Tullika, New Delhi, 1996, p 313.
3 Commissioner, Hindu Religious Endowments vs Sri Lakshmindra Thirtha Swaminathan of Sri Shirur Mutt - AIR 1954 SC 282
4 Sardar Syedna Taher Saifuddin ... vs The State Of Bombay – 1962 AIR 853
5 The Durgah Committee, Ajmer ... vs Syed Hussain Ali And Others – 1962 SCR(1) 383 - Para 33
5 Tilkayat Shri Govindlalji ... vs The State Of Rajasthan - 1963 AIR 1638