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Published : August 07, 2015 | Author : Manmeet Singh
Category : Constitutional Law | Total Views : 2234 | Unrated

Manmeet Singh
I am B.A.LL.B (Hon's) final year of LL.M at Himachal Pradesh University

The concept of secularism is implicit in the Preamble of the Constitution which declares the resolve of the people to secure to all its citizens “liberty to thought, belief, faith, and worship”. The 42nd Amendment Act, 1976, has inserted the world ‘Secular’ in the Preamble. This amendment is intended merely 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 matters of religion it is neutral. It is the ancient doctrine in India that the State protects all religions but interferes with none. Explaining the secular character of the Indian Constitution the Supreme Court said, “There is no mysticism in the secular character of the State. Secularism is neither anti-God nor pro-God, it treats alike the devout, the antagonistic and the atheist. It eliminates God from the matters of the State and ensures that no 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 Mocque and the Temple. In a Secular State, the State is only concerned with the relation between man and man. It is not concerned with the relation of man with God. It is left to the individual’s conscience. Every man should be allowed to go to Heaven in his own way. Worshipping God should be according to the dictates of one’s own conscience. Man is not answerable to the State for the variety of his religious views”.

In S.R. Bommai v. Union of India, the Supreme Court has held that “secularism is a basic feature of the Constitution”. The State treats equally all religions and religious denominations. Religion is a matter of individual faith and cannot be mixed with secular activities. Secular activities can be regulated by the State by enacting a law. Justice Ramaswami observed that secularism is not anti-God. In the Indian context secularism has a positive content. The Indian Constitution embodies the positive concept of secularism and has not accepted the American doctrine of secularism, i.e., the concept of erecting “a wall of separation between Religion and State”. The concept of positive secularism separates spiritualism with individual faith. The State is neither anti-religion nor pro-religion. In the matter of religion, the State is neutral and treats every religion equality.


“Secular” means, not connected with religious or spiritual matters‖. In this sense it is probably right to say that many of us live in secular states, in countries in which the origin and justification of the political power is totally secular, states in which religion is present but, as Charles Taylor points out, religion «occupies a different place in social life, compatible with the sense that all social action take place in profane time» «Put in another way, in our "secular" societies, you can engage fully in politics without ever encountering God»

Along with the term secular, immediately it appears the term - secularization. Strictly speaking, - secularization‖ means «to transfer from ecclesiastical to civil or lay use, possession, or control». As Professor Casanova has pointed out, secularization as a concept refers to the actual historical process whereby this dualist system within "this world" and the sacramental structures of mediation between this world and the other world progressively break down until the entire medieval system of classification disappears, to be replaced by new systems of spatial structuration of the spheres. Max Weber's expressive image of the breaking of the monastery walls remains perhaps the best graphic expression of this radical spatial restructuration. The wall separating the religious and the secular realms within "this world" breaks down. The separation between "this world" and "the other world," for the time being at least, remains. But from now on, there will be only one single "this world," the secular one, within which religion will have to find its own place». Secularization is process in which religion ceases to be the central factor of social cohesion, of collective world explanation, to become a choice among other choices.

Secularization, according to Olivier Roy, «is a social phenomenon that requires no political implementation». It would be proper to say that religion has been tamed‖ or domesticated‖ and rendered under the legal scheme of the civil rights as freedom of religion of belief‖. The understanding of religion as a matter of choice leads to the understanding of religion as a matter of freedom. However, this perspective may lead also to privatization of religion (a private choice) and also to the detriment of the link between culture, religion and identity.

Concept of Religion

One is tempted to agree with Pannam that religion as a word conveys an air of elusive certainty; and as he stresses this very suggestion of form camouflages a complete inner vagueness. yet no one can deny the importance of attempting a workable definition, for such definition would determine the question of the application of Article 25(1).

As far back as 1889, Field J. said;

The term “Religion” has reference to one’s view of his relation to his Creator, and to the obligations they impose of reverence for his being and character, and of obedience to his will.

This theistic approach was later approved by Hughes J. in a slight different way;

The essence of religion is belief in a relation to God involving duties superior to those arising from any human relation….. One cannot speak of religious liberty with proper appreciation of its essential and historic significance, without assuming the existance of a belief in a supreme allegiance to the will of God.


Karl Marx says;

Man makes religion, religion does not make man. In other distinction, that no one religion should be accorded special privileges in national life or international relations for that would be a violation of the basic principles of democracy and contrary to the best interests of religion and government.

No person should suffer any form of disability or discrimination because of his religion but all alike should be free to share to the fullest degree in the common life.

What is Religion?

The Constitution uses but does not define the term/expression religion and religious denomination and therefore the Court have found it necessary to explain the meaning and connotation of their word’s, the Supreme Court has observed that;

In the background of the provisions of the constitution and the light shed by judicial precedent we may say that religion is a matter of faith. It is a matter of belief and doctrine. It concerns the conscience, i.e., the spirit of man. It must be capable of expression in world and dead, such as worship or ritual.

Definition of Religion
1. Ambros Bierce;
Religion: a daughter of Hope and Fear, explaning to ignorance the nature of the unknown.

2. Clifford Geertz;
Religion is a system of symbols which act’s to establish powerful, pervasive and long-lasting moods and motivations in men by formulating conceptions at a general order of existence and clothing these conceptions seems uniquely realistic.

3. William James;
Religion…..shall means for us the feelings, acts and experiences of individual men in their solitude, so far as they apprehend themselves to stand in relation to whatever they may consider the divine. Since the relation may be either moral, physical or ritual, it is evident that out of religion in the sense in which we take it, theologies, philosophies and ecclesiastical organizations may secondarily grow.

4. Karl Marx;
“Religion is the sigh of oppressed creature, the heart of a heartless world, just as it is the spirit of a spiritless situation. It is opiate of the people.”

5. Sigmund Freud;
“Religion is an illusion and derives its strength from the fact that it falls in with our instinctual desires”

6. In General sense;
A general term used….to designate all concepts concerning the belief in god(s) and goddess(es) as well as other spiritual beings or transcendental ultimate concerns”

Religion Under Indian Constitution

The Constitution of India contains in its Chapter on Fundamental Rights several provisions that emphasize complete legal equality of its citizens irrespective of their religion and creed and prohibit and kind of religion-based discrimination between them. Among these provisions are as follows;

1. The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.

2. The State shall not discriminate against any citizen on grounds only of religion, race, cast, sex, place of birth, or any of them, either in general or in the matter of access to or use of general and public place and conveniences.

3. There shall be equality of opportunity for all the citizens in the matter of employment or appointments under the State and no citizens shall, on grounds only of religion be ineligible for, or discriminated against, in respect of any employment or office under the State.

4. The traditional religious concept of ‘untouchability’ stands abolished and its practice in any form is strictly forbidden.

5. If the State imposes compulsory service on citizens for public purposes no discrimination shall be made in this regard on the ground of religion only.

To meet the demands of Article 17 noted above, soon after the commencement of the Constitution Parliament had enacted an Untouchability (Offences) Act, which was later amended and renamed as the Protection of Civil Right Act, 1955. The Act prescribes penalties for the practice of untouchability in various specified forms. A second law enacted in this respect is the Scheduled Cast and Scheduled Tribe (Prevention of Atrocities) Act, 1989.

A. Freedom of Religion
a) Individual’s Right;
Religious freedom as an individual’s right is guaranteed by the Constitution to ‘all persons’ within the following parameters;

1. All persons are equally entitled to freedom of conscience and the right freely to profess, practice and propogatereligion.

2. There shall be freedom as to payment of taxes for promoting of any particular religion by virtue of which no person shall be compelled to pay any taxes the proceeds of which are specifically appropriated in payment of expenses for the promotion or maintenance of any particular religion denomination,

3. No religious instruction is to be provided in the schools wholly maintained by State funding; and those attending any State-recognized or state-aided school cannot be required to take part in any religious instruction or services without their (or if they are minor their guardian’s) consent.

b) Group Rights
Freedom of religion is guaranteed by the Constitution of India as a group right in the following ways;

1. Every religious denomination or any section thereof has the right to manage its religious affairs; establish and maintain institutions for religious and charitable purposes; and own, acquire and administer properties of all kinds.

2. Any section of the citizens having a distinct language, script or culture of its own shall have the right to conserve the same.

3. Religious and linguistic minorities are free to establish and administer educational institutions of their choice, which shall not be discriminated against by the State in the matter of giving aid or compensation in the event of acquisition.

B. Fundamental Duties
The Chapter on Fundamental Duties, inserted into the Constitution by the Constitution (Forty-Second Amendment) Act, 1976, includes the following among the basic national obligations of all the citizens:

1. To promote harmony and the spirit of common brotherhood amongst all the people of India transcending religious, linguistic and regional or sectional diversities.
2. To value and preserve the rich heritage of our composite culture.

C. Religious Matters under Distribution of Powers
Under Article 246 of the Constitution read with Schedule VIII various religious matters noted below fall in the jurisdiction of the State – and both Parliament and the State Legislatures, or either of them, can legislate on such matters;
i) Pilgrimage outside India – Union List, entry 20;
ii) Pilgrimage within India – State List, entry 7;
iii) Burials & Burial grounds, cremations & cremation grounds – State List, entry 10;
iv) Family relations, succession & all other personal-law matters – Concurrent List, entry 5;
v) Charities, charitable institutions & endowments – Concurrent List, entry 28;
vi) Religious endowments & religious institutions – Concurrent List, entry 28.

Noise Pollution in name of Religion not allowed
In a significant judgment in Church of God (Full Gospel) in India v. K.K.R.M.C. Welfare Association, the Supreme Court has held that in the exercise of the right to religious freedom under Article 25 and 26, no person can be allowed to create noise pollution or disturb the peace of others. The custom of religious prayer through the use of loudspeaker is not an essential element of any religion. In that the appellant is the Church of God (Full Gospel) located at K.K.R. Nagar, Madhavaram, High Road, Chennai. It has a prayer hall for the Pentecostal Christians and provided with musical instrument such as drums set, triple bango, guitar etc. The K.K.R. Majestic Colony welfare association made a complaint to the Tamil Pollution Control Board starting therein that praying in the Church were recited by using loudspeakers, drums, and other sound producing instrument causing noise pollution and nuisance to the normal life of the resident of the colony. The Madras High court directed the police authority to take action to stop noise pollution. On behalf of the Church it was contended that the petition was filed with a view to prevent a religious minority institution from persuing its religious activities and the Court cannot prevent the Church from practicing its religious beliefs. It was also said that the noise pollution was due to playing of vehiclesand not due to loudspeakers etc. The Supreme Court held that a person’s religious freedom is subject to “public order, morality and health”. Even if there is any such religious practice it cannot be used to violate right to others or to disturb their peace. The Court said that, “no rights in an organized society can be absolute”. In view of this the order of the authority under the Madras Town Nuisance Act, 1889 and the Noise Pollution (Regulation and Control) Rules, 2000 is valid and constitutional. The direction given by the High Court to authorities to follow guidelines for control of noise pollution issued in 1995 AIHC 4168 and to make Church to keep speakers of lower level are legal in view of the pollution control provision.

Limits of Religious Freedom
The Fundamental Right to religious freedom cannot be enjoyed in an absolutely unrestricted way. There are limitations within which these rights can bu exercised, as also lawful restrictions which can be imposed by the State on such rights, as detailed below:

1. The right to freedom of religion is, in general, subject to public order, morality, health and the other provisions of the Constitution - Article 25.

2. Despite the right to religious freedom, the State can pass laws providing for social welfare and reform and also to regulate or restrict any secular activity - economic, financial, and political, etc. - even though it may be traditionally associated with religion - Article 25(2).

3. Despite the minorities' right to establish and maintain educational institutions, no citizen can be kept away from any State-aided or State- maintained educational institution only on religious grounds - Article 29(2).

No role of Religion in Election
By a dictate of the Constitution religion has no role to play in elections to Parliament and State Assemblies and Councils. For all elections to central and state legislatures the electoral rolls for every constituency shall be general and common and no person can either be excluded from, or included in, any such roll only on the basis of his or her religion - Article 225.

To implement this provision of the Constitution the election law contained ii the Representation of the People Act 1951 incorporates provisions declaring the use of religion during electioneering both a 'corrupt practice' that will vitiate the election of the winning candidate and also a punishable offence

Religious Establishment
There are in India various official establishments for religion, statutory and non-statutory, set up both by the Central and State Governments. Among these are:
(i) Departments of Religious Affairs in some States including Jammu and Kashmir and Uttar Pradesh;
(ii) Minority Welfare Departments in most States;
(iii) Union Ministry of Minority Welfare (set up recently)
(iv) Special bodies to manage certain religious matters of particular communities.

Among the bodies mentioned in clause (iv) above there are Hindu Religious Endowment Boards, Muslim Wakf Boards, Sikh Gurdwara Committees, State-appointed boards or committees to manage particular shrines, Central Haj Committee, etc. These will be considered at length in the last Chapter dealing with the laws for various religious communities.

At the end it can be concluded that, Religio-cultural pluralism is India’s past, present and future; indeed her heart and soul. No religion is foreign to India; nor is India a foreign land for any religion.

Throughout its history India has observed the principle of equality of all religions and of their followers. Even when hereditary rulers belonged to a dynasty professing a perticular religion – Hinus, Budhists, Muslims or Sikh – they did not impose their religion on others and allow the followers of all religion to freely profess and practice their own respective faiths.

India is a home state of the largest number of Hindus, and the second largest numbers of Muslims, in the entire world. Being home also to the millions of Budhists and Christians, this country indeed qualifies to be called th only adobe of all the four world religions together. Among the citizens of India there are sizable numbers of followers also of several other religions including the Jain, Sikh, Jew and Bahai faiths. In the pluralistic and multi-religious society in India religious tolerance and religious values have always had, and continue to have, a strong influence.

As stated above, in all other South Asian countries surrounding India one or another religion has the status of the official or otherwise privileged status. In all the nations India stands out as the only secular state having no state religion and no single officially patronized religion. Religion-State relations in this country are in fact unique in every sense of the term.

# Vasudes v. Vamanji, ILR 1881 Bom. 80
# St. Xavier’s College v. State of Gujarat, AIR 1974 SC 1389 at 1414.
# Downes v. Bidwell, (1901) 182 US 244
# United States v. Ballard, (1994) 322 US 78.
# AIR 1994 SC 1918
# Charles Taylor, Modern social imaginaries Duke University Press, Durham, 2004, p. 194.
# Charles Taylor, A secular age, Harvard University Press, Cambridge, Mass., 2007, p. 2.
# José Casanova, Public religions in the modern world, University of Chicago Press, Chicago, 1994, p. 15.
# Olivier Roy, Secularism confronts Islam, Columbia University Press, New York, 2007, p. 7.
# Michael J. Sandel, Liberalism and the limits of justice, Cambridge University Press, 1998, pp. xvii-xiv.
# Karl-Heinz Ladeur, ―The Myth of the Neutral State and the Individualization of Religion: The Relationship Between State and Religion in the Face of Fundamentalism‖, Cardozo Law Review, 30, 2009, p. p. 2460.
# L. Pannam, ‘Travelling Section 116 with a U.S. Road Map’ (1963) M.U.L.R. 56-57. (This work is hereafter cited as Pannam).
# Davis v. Beson (1889) 133 U.S. 333, 342. See also The Oxford English Dictionary (Oxford U.P.: London, 1961) vol. 8, p. 410, wherein the word religion has been defined in similar terms.
# U.S v.D.C. Macintosh (1931) 283 U.S. 605.
# “The Contribution to the Critique of Hegel’s Philosophy of Right” in Karl Marx and Friedrich Engel ‘On Religion’, Foreign Languages Publishing House, Moscow, pages 41-42.
# S.P. Mittal V. Union of India, AIR 1983 SC 1 see also, Prof. Tahir Mahmood(Member, Law Commission of India), Laws of India on Religion and Religious Affairs, Universal Law Publishing Co., ed. 2007, p. 28
# The Devils Dictionary
# Sigmund Freud, New introductory Lecture on Psychoanalysis.
# Penguin Dictionary of Religions (1997).
# Article 14 of the Constitution of India, 1950.
# Article 15 of the Constitution of India, 1950
# Article 16 of the Constitution of India, 1950.
# Article 17 of the Constitution of India, 1950.
# Article 23(2) of the Constitution of India, 1950.
# Prof. Tahir Mahmood(Member, Law Commission of India), Laws of India on Religion and Religious Affairs, Universal Law Publishing Co., ed. 2007, p. 24 – 25.
# Article 25(1) of the Constitution of India, 1950
# Article 27 of the Constitution of India, 1950.
# Article 28 of the Constitution of India, 1950.
# Article 26 of the Constitution of India, 1950.
# Article 29 of the Constitution of India, 1950.
# Article 30 of the Constitution of India, 1950.
# Article 51A (e) of the Constitution of India, 1950.
# Article 51A (f) of the Constitution of India, 1950.
# AIR 2000 SC 2773
# Pandey, J.N., Constitutional Law of India, Central Law Agency, 44th Edition (2007), p 311
# http://shodhganga.inflibnet.ac.in:8080/jspui/bitstream/10603/1936/8/08_chapter 3.pdf
# Prof. Tahir Mahmood (Member, Law Commission of India), Laws of India on Religion and Religious Affairs, Universal Law Publishing Co., ed. 2007, p. 8
# Ibid, p 8 – 9.

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