Article by Dr. Olav Albuquerque & Mrs. Deborah Albuquerque

INTRODUCTION: Secularism is a keyword in the preamble to the Indian Constitution which was introduced by Indira Gandhi through the 42^nd Amendment after proclamation of a state of Emergency within the country. Unlike in the U.S.A where secularism is identified with the “non-establishment” clause which prohibits the Congress from promoting or establishing any religion, in India, secularism is conditioned by the social milieu created by Hinduism which enunciates “sarva dharma sambhava” or treatment of all religions equally.

We have to acknowledge our indebtedness to our late Prime Minister Indira Gandhi for doing that which her illustrious father refrained from doing. That was to introduce the word “secularism” in the preamble to the Indian Constitution vide the 42^nd Amendment.  Despite the Emergency excesses, we have never acknowledged her foresight for introducing the two words : “socialist and secular” in the preamble to the Constitution.

Secularism is the cement which binds diverse ethnic groups professing different languages and cultures into a heterogeneous nation with one Flag, one Prime Minister, one President and one Parliament. Sovereignty and secularism from an Indian perception go hand-in-hand, forming the basic structure of the Constitution which cannot be tampered with.

This was laid down by a 13-judge bench of the Supreme Court in the landmark Kesavananda Bharati versus State of Kerala.[1]  The Chief Justice of India (CJI) S.M. Sikri, speaking for the majority,  held the fundamental importance of individual freedom has to be preserved for all times to come and that it could not be amended out of existence. The Chief Justice declared the fundamental rights conferred by Part III of the Constitution of India cannot be abrogated, though a reasonable abridgment of those rights could be effected in public interest.

So, the preamble was there to stay – permanently. Thankfully, the words “secular” or “socialist” with the concomitant words, “democratic, republic” can never be deleted by any majoritarian government. There is a limitation on the power of amendment by necessary implication which was apparent from a reading of the preamble.

According to the learned Chief Justice, the expression ‘amendment of this Constitution,’ in Article 368, would imply any addition or change in any of the provisions of the Constitution within the broad contours of the preamble, made in order to carry out the basic objectives of the Constitution. It followed that every provision of the Constitution was open to amendment provided the basic structure or foundation of the Constitution was not damaged or destroyed. So, the word “secular” was to stay forever in the preamble to the Indian Constitution. Though our great statesmen like Jawaharlal Nehru, Morarji Desai or Narendra Modi may have felt differently. 

Significantly, the Uttar Pradesh chief minister Yogi Adityanath has publicly declared that secularism is the biggest lie being told to the people of India since independence.[2] Conversely, former Vice President of India Hamid Ansari has said the opposite. He declared that secularism and pluralism are vital for Indian democracy to survive.

DISCUSSION: On November 15, 1948, during a heated debate in the Constituent Assembly, on the nature of the Constitution, Prof K T Shah intervened in the proceedings to demand the inclusion of the word ‘secular’ in the preamble.  “Sir, I beg to move, that in clause (1) of article 1, after the words ‘shall be a’ the words ‘Secular, Federalist, Socialist’ be included. The amended article or clause shall read as follows: ‘India shall be a Secular, Federalist, Socialist, Union of States’,” he said.

During the ensuing debate, while the members agreed on the nature of the Indian state adhering to secular principles, the word ‘secular’ was dropped from the preamble. It resurfaced nearly 30 years later, when the Indira Gandhi-led government included it in the preamble, as part of the 42nd Amendment to the constitution.

With the rise of the Sangh Parivar in India, secularism in the Indian constitution has been criticized by those who have repeatedly pointed to the foreign origins of the words, the inapplicability of it in the Indian context and the problematic ways in which it has been applied in India as well.

The Indian government implemented secularism by refusing to recognise the religious past of Indian nationalism, whether Hindu or Muslim and at the same time (inconsistently) by retaining Muslim ‘personal law’,” wrote historian Ronald Inden in his seminal work, “Imagining India.”[3]

He dealt with Brahminism and Vedic mysticism by tracing their roots before dissecting what we understand as secularism from an Indic perspective.

This is why Indira Gandhi understood India as comprising multifarious cultures from various religions and thousands of sub-castes communicating in divergent dialects which are spoken throughout this vast sub-continent. The only thread which keeps us together is – secularism. From the western model, this implies that the state should not identify itself with any single religion.

But this has proved to be a fallacy. It has proved to be a fallacy simply because the state does identify itself with Hinduism which is the religion practised by the majority within this sub-continent. Judgment after judgment has declared that it is easier to say who is a Muslim, Christian, Sikh or Parsi than it is to define a Hindu. For Hindus can believe in 33 crore Gods or Goddesses or they can deny the existence of God. Even an atheist is a Hindu. There is no doubt about that.[4]

But an atheist cannot call himself or herself a Muslim, Christian, Sikh or Jew. For that, they need to believe in a God. Buddhism and Jainism are different because they believe in the concept of reincarnation but not in a personal God the way Muslims, Christians or Jews do. These are the Abrahamic religions.

What then does secularism have to do with all these religions? Does it bind them together or divide those who profess different religions? This will be easy to understand if we accept the western concept of secularism is different from the Indic model. The western concept evolved by separation of church and state whereas the Indic model formulated in the Constitution Assembly (Proceedings) Debates in Volume VII and upheld by the Indian Supreme Court states that “sarva dharma sambhava” or treating all religions equally. However, successive governments at the Centre and states have identified themselves with Hinduism.[5]

Indian secularism is necessarily the anti-thesis of communalism or and caste-related policy; which in reality is ‘India’s national political philosophy.’ Any commitment to inculcating a scientific temper by ushering in modernisation must necessarily be linked to secularism.  The application of the modern nation-state model to India with ideas of sovereignty, power, and state violence; and, finally, queries on legitimacy, law, legal obligation (duty), rights, and disobedience to state power such as the farmers’ agitation against the three legislations enacted by Parliament necessarily weaves within its ambit questions of secularism.

There is no dearth of monographs or anthologies available on Nehruvian  secularism which enveloped traditional wisdom as enshrined in the Vedas, Upanishads, Vedangas and other holy texts.  There is no shortage of work on Raja Rammohan Roy, M. K. Gandhi, Maulana Azad, B. R. Ambedkar.  Their writings have been anthologized, serialized, canonized, sacralized.

Raja Rammohan Roy, Mahatama Gandhi,[6] B.R. Ambedkar, Sardar Vallabhai Patel, Rabindrananth Tagore and their contemporaries whether in unison with Jawaharlal Nehru or not, contributed to the development of secularism in India which culminated in Indira Gandhi importing it into the Preamble of the Indian Constitution together with the word “socialism.” Ipso facto, secularism and socialism have become intertwined so that one is associated with the other.

The Jaina theory of syadavada, or the multi-faceted nature of truth is as relevant to secularism as an individual’s moral journey defines his pursuit of truth and creates a common ground for discourse. Truth, however, remains partial; one can never access it in its entirety. This creates sensitivity towards other religions and at the same time allows one to bracket suspicions.

An essential element of Mahatma Gandhi’s concept of Satyagraha was to generate solutions to the problems facing the plurality found in Indian democracy through negotiations, akin to the Jaina concept of truth. This is why secularism homogenizes Indian plurality found among diverse ethnic groups, languages, castes, religions and their sects, to unify them using nationalism and patriotism.

Secularism therefore creates unity out of diversity by homogenizing disparate cultures which have nothing in common. It is the ultimate ideology to ensure unity out of diversity.

The Sangh Parivar has also formulated the concept of ghar wapasi which, it may be argued, is the antagonistic to secularism as it rests on the erroneous premise (= home coming) that religion is the binding factor for a state to evolve. Religion can never be a binding factor as seen from the break-up of Pakistan in 1971.   

CONSTITUENT ASSEMBLY DEBATES ON SEULARISM AS RECORDED IN VOLUME VII : [7]It is worth reproducing a part of the Constituent Assembly Debates which deal specifically with secularism to expostulate and elaborate on Indian secularism as a cementing matrix which brings about unity in diversity of several hundred cultures which are the exact opposite of each other when an Indian traverses from north India to south or from the western megalopolis of Mumbai to its eastern counterpart in Kolkata.

Hence, on November 15, 1948, the members met at 10 a.m. and the debate with reference to secularism proceeded as follows (abridged version) :

Shri Lokanath Misra (Orissa: General): Sir, it has been repeated to our ears that ours is a secular State. I accepted this secularism in the sense that our State shall remain unconcerned with religion, and I thought that the secular State of partitioned India was the maximum of generosity of a Hindu dominated territory for its non-Hindu population. I did not of course know what exactly this secularism meant and how far the State intends to cover the life and manners of our people. It seems to have dawned on  me that our `secular State’ is a slippery phrase, a device to by-pass the ancient culture of the land.

The absurdity of this position is now manifest in articles 19 to 22 of the Draft Constitution. Do we really believe that religion can be divorced from life, or is it our belief that in the midst of many religions we cannot decide which one to accept? If yes, let us clearly delete all reference to rights relating to religion. Let us say what it should be.

But this unjust generosity of tabooing religion and yet making propagation of religion a fundamental right is uncanny and dangerous. Justice demands that the ancient faith and culture of the land should be given a fair deal, if not restored to its legitimate place after a thousand years of suppression.

We have no quarrel with Christ or Mohammad or what they saw and said. We have all respect for them. To my mind, Vedic culture excludes nothing. Every philosophy and culture has its place but now the cry of religion divides people. In the present context what can this word `propagation’ (of religion) in article 19 mean? It can only mean paving the way for the complete annihilation of Hindu culture, the Hindu way of life and manners. Islam has declared its hostility to Hindu thought. Christianity has worked out the policy of peaceful penetration by the back-door on the outskirts of our social life.

This is because Hinduism did not barricade itself for protection. Hinduism is an integrated philosophy of life but Hindu generosity has been misused and politics has over run Hindu culture. Today, fanaticism exploits ignorance, poverty and ambition under the guise of religion.

The aim is political, for in the modern world all is power-politics. Let everybody live as he thinks best but let him not try to swell his number to demand the spoils of political warfare. The question of communal minorities is a device to swallow the majority in the long run. This is intolerable.

Indeed in no constitution of the world right to propagate religion is a fundamental right and justiciable. The Irish Free State Constitution recognises the special position of the faith professed by the majority of its citizens while the U.S.S.R. guarantees freedom of religious worship and freedom of anti-religious propaganda. Our Constitution gives the right to propagate religion but not the right to propagate anti-religious propaganda.

Allow people to propagate their religion but do not insert this as a fundamental right in the Constitution and encourage it because fundamental rights are inalienable. I therefore say, let us say nothing about rights relating to religion. Religion will take care of itself. Drop the word `propagate’ in article 19.  

Mr. Vice-President: There are two amendments in my list, i.e., 592 and 593. They are of similar import and may be considered together. Of these two, amendment No. 593 standing in the name of Mr. Kamath is more comprehensive and I allow it to be moved.

Shri H. V. Kamath (C. P. & Berar: General): Mr. Vice-President, Sir, I move:–

That after clause (1) of article 19, the following new sub-clause be added:–

*[“(2) The State shall not establish, endow, or patronize any particular religion. Nothing shall however prevent the State from imparting spiritual training or instruction to the citizens of the Union.”] The amendment consists of two parts, the first relating to the disestablishment or the separation of what you may call in Western parlance the Church from the State, and the second relates to the deeper import of religion, namely, the eternal values of the spirit.

As regards the first part of the amendment, I need only observe that the bloody history of Europe and of England during the middle ages bears witness to the pernicious effects that flowed from the union of Church and State. It is true that in India during the reign of Asoka, when the State identified itself with Buddhism, there was no `civil’ strife, but you will have to remember that at that time in India, the only other religion  was Hinduism. I believe that because Asoka adopted Buddhism as the State religion, there developed some sort of feud between the Hindus and Buddhists, which culminated in banishing Buddhism from India.

Hence, if a State identifies itself with any particular religion, there will be a rift within the State because the State represents all those who live within its territories. So, it cannot identify itself with any single religion. But I do not mean a State should be anti-religious or irreligious. To my mind, a secular state like India is neither a God-less State nor an irreligious entity nor an anti-religious state. The real meaning of this word ‘religion’, is `Dharma’ which alone should be interpreted as the true religious values of the spirit.

We have adopted the word ‘dharma’ in the crest or the seal of our Constituent Assembly and which you will find on the printed proceedings of our debates: (“Dharma Chakra pravartanaya”). Just outside this Assembly hall on the dome above, there is a shloka in Sanskrit:

“Na sa Sabha yatra na santi vriddha Vriddha na te ye na vadanti dharmam.”

That `Dharma’, Sir, must be our religion. .

If we wish to unite disunited nations, if we have got to convert this Insecurity Council into a real Security Council, we have to return to God in spirit and truth for which India has always stood. My Amendment reads:

 “Nothing shall however prevent the State from imparting spiritual training or instruction to the citizens of the Union”, I attach great importance to the same. India has stood through the ages for a certain system of spiritual discipline, spiritual instruction, which has been known throughout the world by the name of “Yoga”; and Sri Aurobindo, the MahaYogi, has said again and again, that the greatest need today is a transformation of consciousness, the upliftment of humanity to a higher level through the discipline of Yoga.

Sir, I would like to draw the attention of the House to the value and the importance that all our teachers,from time immemorial, from the Rishis and the Seers of the Upanishads down to Mahatma Gandhi and Netaji Subhas ChandraBose have attached to spiritual training and spiritual instruction.

This is why when I say the State shall not establish or endow or patronise any particular religion, I mean the formal religions of the word; I do not mean religion in the widest and in the deepest sense, and that meaning of religion as the highest value of the spirit,

The State shall do all in its power to impart spiritual training and spiritual instruction to the citizens of the Union. In the end, I would only say this. We are living in a war-torn, war-weary world, where  nemesis has overtaken it. Unless the world returns to the values of the Spirit, to God in spirit and in truth, it is doomed. Sir, I commend my amendment to the acceptance of the House.

Mr. Vice-President: Amendment Nos. 594 and 595 are identical. I can allow amendment No. 595 to be moved.

(Amendments Nos. 595 and 594 were not moved.) Mr. Vice-President: Amendment No. 596, Dr. Ambedkar.

The Honourable Dr. B. R. Ambedkar (Bombay: General): Sir, I beg to move:

“That in clause (2) of article 19, for the word “preclude” the word “prevent” be substituted.”

This is only for the purpose of keeping symmetry in the language that we have used in the other articles. Mr. Vice-President: There are a number of amendments to this amendment. The first is amendment No. 11 of list I ,standing in the name of Pandit Thakur Dass Bhargava.

(Amendments Nos. 11 and 12 in list I were not moved.) Amendment No. 13 standing in the name of Mr. Naziruddin Ahmad is disallowed. For the words “the State” he wants the words “any State” to be substituted.

(Amendments Nos. 597, 598, 599 and 600 were not moved.) Amendment No. 601, Prof. K. T. Shah.

Prof. K. T. Shah (Bihar: General): Mr. Vice-President, Sir, I beg to move:

“That in sub-clause (a) of clause (2) of article 19, for the words “regulating or restricting any economic, financial, political or other secular activity” the words “regulating. restricting or prohibiting any economic, financial political or other secular activity’ be substituted.”

The clause as amended would read:

“Nothing in this article shall affect the operation of any existing law or preclude the State from making any law–

(a) regulating, restricting or prohibiting any economic, financial, political or other secular activity which may be associated with religious practice;.”

These are the words that I have ventured to add, and I think they are necessary. If the State has to have its supreme authority asserted as against, or in relation to,any Religion, which, merely in the name of religion, carries on practices of a secular kind whether it is financial, economic or political, it is necessary) that those words be added and form part of the article.

I am not content with merely “regulating or restricting” them; I should like the State also to have the power positively and absolutely “to prohibit” any such practice. Such practices in my opinion, only degrade thevery name of religion. Nothing has caused more the popular disfavour of some of the most well-known and most widely spread religions in the world than the association of those religions with secular activities, and with excesses that are connected with those activities. [8]

COMMENT: It is obvious from a perusal of the above record why the word “secular” was omitted from the preamble to the Constitution.

JUDGMENTS ON SECULARISM: From the discussion above, it is obvious that the founding fathers never intended the Indian government to refrain from promoting religion but to adhere to the concept of dharma or duty which is to treat all religions equally. Several judgments of the Supreme Court have reiterated that secularism is a basic feature of the Indian Constitution so that Parliament cannot delete it from the preamble.

In Dr M. Ismail Farooqui versus Union of India,[9] a three-judge bench wrote the dastardly act of demolishing the disputed Babri Masjid structure violated the spirit of secularism enshrined in the preamble of the Constitution. In particular Articles 25 to 28 emphasised that secularism embodied in the Constitutional scheme was a creed adopted by the Indian people which is a test of constitutional validity of any legislation. Secularism is a facet of the right to equality woven as the central golden thread in the fabric of the Constitution.

But in Ramesh Yeshwant Prabhoo versus Kashinath Kunte,[10] Justice Verma equated Hindutva with secularism by declaring it was an error of law to assume any reference to Hindutva or Hinduism in a speech made it automatically a speech based on Hindu religion as opposed to other religions or the use of the word Hindutva or Hinduism per se depicted  an attitude hostile to all other religions……. “It may well be that these words are used in a speech to emphasize the way of life of the Indian people and the Indian cultural ethos.”

The bench said  the expressions “Hindu,” “Hinduism” and “Hindutva” are very wide terms so they cannot be subjected to a blanket ban during all elections speeches. Rather, the context and meaning has to be gauged as mentioned in the individual speeches delivered during electioneering.

But while revisiting the two-decade old Hindutva judgment delivered by the late Justice Verma, the Supreme Court has clarified in Abhiram Singh versus C.D. Commachen (Dead)[11] that religion is a very private relationship between man and his God. A seven-judge bench of the Supreme Court declared in a majority judgment that any appeal for votes during elections on the ground of religion, caste, race, community or language spoken by the voters is a corrupt electoral practice. This will result in disqualification of a candidate.

“Elections are secular exercises whereas the relationship between man and God is an individual choice and the state should bear this in mind,” the Supreme Court declared in 2017 in a majority judgment of four judges while three others dissented. They were interpreting a provision of The Representation of People Act.

Finally, the five-judge unanimous verdict on the Ram Janmabhoomi-Babri Masjid dispute settled the title suit in favour of Hindus, but ordered that land would be allotted for the Muslims to build their mosque, thereby allowing India to honour its commitment to secularism in the wake of the December 6, 1992 mob vandalism. The Ranjan Gogoi judgment was an attempt at judicial statesmanship. However, it can be argued that this judgment has opened the doors for a Hindu Raj to be imposed perniciously and invidiously. This would render farcical the Constitutional guarantee of India being a ‘secular’ state. 

CONCLUSION: Secularism is undoubtedly a basic feature of the Constitution of India which cannot be tampered with by any majoritarian government. Though the Supreme Court has mistakenly held that the words “Hindu” “Hinduism” and “Hindutva” are too wide to be banned in every election speech, this opinion has been corrected by the majority judgment in 2017. Undoubtedly, the Supreme Court has upheld the view that the Indian view of “sarva dharma sambhava” as laid down by our founding fathers expostulates the Indian ethos of secularism. This version of secularism is a facet of the right to equality which ensures unity within diversity

                               **************Ends************

                      (COMPILATION OF LIST OF REFENCES GIVEN BELOW)

                                              LIST OF REFERENCES

1. Kesavananda Bharati versus State of Kerala Air 1973 SC 1461
2. Indian Express, November 14, 2017.
3. Inden, B. Ronald- Imagining India- (Indiana University Press, 2000 edition)
4. Carman, J.B. The Theology of Ramanuja (New Haven, 1974)
5. Baird, Robert D –Religion in Modern India (2^nd edition, New Delhi, 1989)
6. Gandhi, M.K.-The Story of My Experiments With Truth (2^nd edition, Ahmedabad, 1940)
7. Constitution of India (Proceedings) Debates, Volume VII – 7.53.1 to 7.53.100 – ( Secularism)
8.  Supra (as above).
9. Dr M. Ismail Farooqui versus Union of India AIR 1995 SC 605 A
10. Abhiram Singh versus C.D. Commachen (Dead) Through his LRs. Majoirty judgment written by Justice Madan Lokur in Civil Appeals 37/1993 and Civil Appeal 8339/1995

      Additional Readings :

1. Andhyarujina, T.R. –Judicial Activism and Constitutional Democracy in India. (Published by N.M. Tripathi Pvt Ltd, 1992)
2. Brockington, J.L. –The Sacred Thread – A Short History of Hinduism. (Oxford University Press, 1997)
3. Radhakrishnan, Sarvepalli-Indian Philosophy, 2 volumes 2^nd ed, London 1931 available in the Asiatic Society of Bombay

[1] Kesavananda Bharati versus State of Kerala Air 1973 SC 1461

[2] Indian Express, November 14, 2017.

[3] Inden, B. Ronald- Imagining India- (Indiana University Press, 2000 edition)

[4] Carman, J.B. The Theology of Ramanuja (New Haven, 1974)

[5] Baird, Robert D –Religion in Modern India (2^nd edition, New Delhi, 1989)

[6] Gandhi, M.K.-The Story of My Experiments With Truth (2^nd edition, Ahmedabad, 1940)

[7] Constitution of India (Proceedings) Debates, Volume VII – 7.53.1 to 7.53.100 – ( Secularism)

[8] Constitution of India (Proceedings) Debates, Volume VII – 7.53.1 to 7.53.100 – ( Secularism)

[9] Dr M.Ismail Farooqui versus Union of India AIR 1995 SC 605 A

[10] Ramesh Yeshwant Prabhoo versus Kashinath Kunte AIR 1996 SC 1113

[11] Abhiram Singh v C.D. Commachen (Dead) Majority judgment by Madan Lokur J. in Civil Appeals 37/1993 and 8339/1995.