ABSTRACT
Secularism is widely discussed and hotly debated topic modern democratic states. The religious basis of secularism, makes it a contested topic. Albeit, secularism is a very crucial aspect of a democratic state but, a democratic state may or may not be a secular state in its true sense. Also, a state can be a constitutional secular but it may not be a democratic secular state, as only the actions of the state is the true reflection of it.
This paper will try to explain whether democracy as a concept in itself incorporates the idea of secularism and religion tolerance. Also, it will try to find out what secularism in its true sense means and how it helps in the reconciliation of religion with state. Secularism is of two types based on the mode of practice of different states – first is negative secularism and the other is positive secularism.it will also explain the basic idea of religion in secularism and various democracies around the world
This paper will also try to explain various provisions which promotes secularism and protect religion in India and various judgment pronounced by the Honorable Supreme Court of India.
Keywords-secularism, democracy, positive and negative conception of secularism, and religion tolerance
INTRODUCTION
To understand the idea of secularism, democracy and religion and how these are intertwined with one another it is important to understand meaning of these terms. These are very vast and dynamic terms. And often misunderstood by the common people as a result some people used to radicalize masses and use them to fulfill their ill motive. So, these terms need elucidation.
The very nature of democracy is to provide personal freedom, and religion is the most intimate aspect of a human life so, the freedom of religion is as important as any other personal freedom.
“Democracy provides an environment that respects human rights and fundamental freedoms, and in which the freely expressed will of people is exercised. People have a say in decisions and can hold decision-makers to account. Women and men have equal rights and all people are free from discrimination.”[2]
Secularism endorses religion but, it mainly concerns with the management and control of it. There are two widely accepted notion of secularism. which can be understood by the following two definition: –
According to Merriam-webster, the meaning of secularism is ” indifference to rejection or exclusion of religion and religious considerations ” which is negative notion of secularism especially followed in western-nations. In this notion, the state remains indifferent to religion and follow complete separation from religion affairs.
Another, notion of secularism is positive notion of secularism which is followed by India, in which state gives equal means of protection and respect to all religion and used to treat every religion equally. So, it can be said that secularism is a principle which incorporates the vision of a state towards religion or its view concerning religion. In short, it’s a way of reconciliation between religion and state or in precise a democratic state. It is a societal term which means it is related to society as a whole. And when we talk about secularism, we used to see it from the point of view of the state. Also, it is very important to understand that only a democratic state can be secular because, in democratic state peoples are free to exercise their rights. A state can be constitutional secular i.e., the idea of secularism is embodied in the constitution of the state. “The Indian idea of Constitutional secularism has two features. First, respect for all religions, which should be based on rationality. It is next to impossible to distinguish religion from social life. And not every aspect it can be respected, it must be accompanied by critical analysis and rational thinking. The second feature, is that the Indian state does not maintain complete separation rather it maintains a balanced distance. Generally, it does not interfere with religion affairs but it intervenes whenever religion is used as a tool to create disharmony, dissatisfaction and discrimination in the society.”[3]
A Constitutional Secular state may not be a democratic secular state. Democratic Secular state allows people to freely profess their religion. In India we practice positive secularism and the concept of treating every religion equally is embodied in the Constitution from its very inception. But the term Secularism along with the term Socialist and Integrity were incorporated in the Preamble of our Constitution only with the enactment of 42nd Constitutional amendment Act, 1976. There are many provisions in the Indian Constitution and in various statute which are secular in nature and protects freedom of religion, which the author will discuss in the later part of this paper.
RESEARCH METHODOLOGY
The research methodology used in this research paper is non-doctrinal, non-empirical and case study material. The research is based on various case laws which are used to make the topic more comprehensible for readers to make it more informative, the researcher has taken help of various articles, online research papers, case laws, etc.
SECULARISM AND DEMOCRACY
Every person’s end goal in this world is to attain salvation and religion is the helping hand for the same. It is one the most important and essential part of human life. But, since we live in a collective and organized society so, there are some cost-of-living here. And this cost is paid by trading-off some rights with the state i.e., the reasonable restrictions imposed by the state on personal freedom. Sometimes democracy is called self-rule or self -government which, implies that people have freedom to act according to their choice with some restrictions. So, democracy allows people to practice and profess their religion and faith also. Different democracies around the world profess secularism, based on their very nature, core values and demography.” Based on the practice of ‘public visibility’, there are two types of secularism (a) assertive secularism where, there is a complete ban on public visibility of any types of religion symbol, sign etc., (b) passive secularism allows the public visibility of religion at some extent in public domain. In recent years there is a global shift towards assertive secularism”.[4] Different countries have different concerns and views regarding religion and this led them to choose practice of secularism.
The USA’s constitution doesn’t define secularism but “the First Amendment provides that the Congress can make no law, respecting an establishment of religion or prohibiting its free exercise.”[5]
The US Supreme Court ruled that in public schools, sponsored prayer violates the Establishment Clause of the First Amendment whose purpose is to prevent the government from interfering with religion.[6]
India follows positive secularism, which means that it takes neutral stance on religion. State do not promote any religion but it protects every individual’s liberty to practice profess their religion.
The supreme court of India observed that equal treatment to all religion, protection of the same and tolerance towards it, is an essential part of our constitution.[7]
The principle of laïcité in the France makes it a negative secular country, where the religion is completely separated from the state.
And European court of human right in Dogru v. France[8] observed that the secularism is one of the fundamental values of the state which should be in pace with the law of the state and with regards to human rights and democracy.
The UK follows open secularism and it promotes freedom of thought and expression, unlike France it does not ban the showcase of religion in public places. New Zealand also practices secularism where the state remains separated from religion.
Almost every Democratic state around the world practices secularism in one way or the other. Because religion is the way to achieve emancipation the end goal of human life so, it is crucial. Countries feel uncomfortable and vulnerable on religion issues due to the differences in the belief, faith, way of practice, etc. are different for different religion.
SECULARISM IN INDIA
In India, the term secularism is added only after 42nd Constitutional Amendment Act, 1972 but as a concept it is enshrine in various provisions of our constitution from its very inception. And it gets protection by sections of Indian Penal Code,1860, various personal laws which govern different religion and Constitution. Supreme court in the S.R. Bommai case held that secularism is the basic feature of our constitution.[9]It means that the parliament cannot amend it, same notion was held in Indira Gandhi v. raj Narain[10] and Keshavananda Bharti v. state of Kerala.[11]
Article 15 & 16 of Part 3 of the Indian constitution, prohibits any kind of discrimination only on the ground of religion, class, race, sex and place of birth[12]. Article 25-28 of Part 3 of the Indian constitution provides Right to Freedom of Religion within the territory of India to both foreigner and citizens.[13] Article 29-30 of Part 3 of the Indian Constitution provides Cultural and Educational Right where, Article 29 talks about Protection of interests of minorities and Article 30 talks about Rights of minorities to establish and administer educational institutions.[14]
Article 25[15]
This article talks about freedom of concise and free profession, practice and propagation of religion subsequently, Clause (1) of Article 25 says that this freedom is subject to public order, morality and health and to the other provision of Part III. Clause (2) of Article 25 discusses about states power (a) of making laws for regulating secular activities associated with religion (b) of making any law or reforming existing law for providing social welfare and reform would not be invalidated.
Article 26[16]
This article lays down the rights of every religious denomination or any section with respect to maintenance and establishment of institution, its own affairs, to own and acquire property, and the administration of the same in accordance with law in matter of religion.
Article 27[17]
Article 27 gives every person freedom of promotion of any particular religion by giving taxes and prohibits compulsion of the same.
Article 28[18]
It lays down freedom to attend any religious instruction and worship in certain educational institution. Clause (1) of article 28 prohibits any religious activity in such institutions which are wholly maintained by state funds. Clause (2) allows such activities, if the institution administered by state but has been established under any endowment or trust. Clause (3) allows such activities but, there shall be no compulsion for attending the same, if the institution recognized by the state or receiving aid out of state funds.
Section 153A of the Indian Penal Code provides that promotion of any kind of hostility between different groups on grounds of religion, race, place of birth, residence, language, etc., and doing any act which is detrimental to harmony of the society is punishable with 3 years of imprisonment, fine or both.[19] Section 295A of The Indian Penal Code states that any kind of acts, deliberate and malicious, which intends to outrage religious feeling of any class by insulting its religion or religious belief is punishable with imprisonment at an extent of period 3 years or fine or both.[20] Many personal laws are there in India which govern different groups such as the Hindus are governed under Hindu Marriage Act,1955, The Hindu Succession Act,1956, Muslims under Muslim Personal Law (Shariat) Application Act,1937 The Muslim Women (Protection of Rights on Divorce) Act,1986, etc. In Krishna Singh v. Mathura Ahir[21], the Supreme Court of India held that the personal law of the parties remains untouched by the Fundamental rights. Also, Supreme Court from time to time through its judgments has broadened the meaning and significance of the term religion. For example, in The Commissioner, Hindu Religious Endowments v. Sri Lakshmindra Thritha Swamiar of Sri Shirur[22] Supreme Court observed that “Religion does not include only set of beliefs or doctrines it is much more than that. Religion is also about the ethical rules which it lay down for its believer to follow, and it also prescribes the rites and observances, ceremonies and the mode of worship which are regarded as integral part of religion.”
In Mrs. Valsamma Paul v. Cochin University and others [23] Supreme Court held that the word secularism is brought in the preamble to realize that political democracy will not last unless all sections of the society had given opportunity to participation in it irrespective of their religion, cast, and sex.
In Ziyauddin Burhanuddin Bukhari v. Brijmohan Ramdas Mehra & Ors.[24] Court emphasized on the use of the term secularism, court observed that all religious activity could not describe as secular because it takes place in this world, it is desirable to distinguished all that is happens in this world without seeking the intervention of divine power. Its prime goal is to maximize human happiness or welfare independent of religion.
SECULARISM AS PEACEKEEPER
The complete seclusion of religion is not possible but, a balance can be created by secularism. And this balance eventually led us towards a peaceful and prosperous society. Secularism is an exclusive term and it submerge in itself every religion and promote egalitarianism amongst the Communotoes.it is the most crucial tool to maintain peace in country. People used to see religion emotionally and the intimacy of religion with people’s life can be seen all around the world there are many religious groups, cult and dominations which have their own sets of belief, faith and ideal. And every religion’s core value is to promote peace. But, the perversion of religion is also not new. The examples of radicalization of religion and the increase in intolerance towards it can be seen around the world and no country is untouched by it. The controversy emerged in France, which practices assertive secularism, after the republishing of Charlie Hebdo’s caricature on Prophet Mohamad which led to 3-days of terror in France. The Conflict between Israel and Palestine is also religion driven. In many parts of Asia as well we have seen violence based on religion like in Myanmar the prosecution on the Rohingya Muslims. In India as well we witness such incidence, most recent is the hijab row which emerged has created an environment of terror in the educational institution in Karnataka. But the most disturbing trend is that every time an event happens where religion is directly or indirectly involved people see this with a lens of crime. Rather by inquiring as to how religion combine and relate with human nature, we can get a detail understanding of its role in peacebuilding. The extreme of, either of secularism or of religion, is bad and have a potential to disturb the peace of the society. Practically may be the religion is not the cause of a conflict, but it has potential to obstacle peace. In history as well whenever someone attack a region first thing they do is to attack and destruct the religious sites. Somnath temple in India, Buddhist site at Bamiyan in Afghanistan are such sites.
The importance of religion in one’s life is there but to maintain the harmony of the society the harmony among the religion is also necessary.
CONCLUSION
Secularism is very important for a nation to sustain peacefully and grow rapidly. As discussed above it is followed by almost all developed nations around the world and this is one of the reasons of their growth. States which do not follow secularism in one way or the other always remains busy in cooling down the religious tensions within the state and these things impede the development of these countries. Democracy in its real sense is the rule of majority, but it does not mean that democracy Favours majorities’ religion, in contrast the democracy always tries to accommodate in itself the multi-culturalism, religion tolerance and idea protection for every religion.
A country can be secular or can strengthen its values of secularism by taking some sociological measures such as- establishing museums for historic records, preservation of historical monuments and religious places, by preserving and promoting its culture, by academic education, by giving progressive means of employment among its masses, by moral and technological advancement of the masses, by making strict law on religion related offences, by improving standard of living of the masses and by promoting Moral education .
In the constitution of India some of these principles can be seen clearly, that is why, the country of approximately one and half billion population, where diversity in religion, language, way of living, eating changes with each and every step, is sustain the time period of 75 years successfully. The deep scars of Partition of India based on religion still afresh in every Indian’s heart. For removing the backlog of religion and inter-religion discrimination reservation is there. The idea of Universal Civil Code[25] is there to deals with the complexities of various Personal Laws. One uniform measure for all is impossible in countries like India but uniformity with diversity can be attained. The idea of uniform civil code, socialism, fraternity, integrity, equality, liberty enshrined in our constitution are the measures to strengthen the principle of secularism.
Author thinks that rather than, preventing religion to become radical we should try to promote harmony among them, rather than religion teachings, we should try to promote moral education. A constant effort should be made to preserve and promote and secularism, to make this world more tolerant and peaceful place to live.
Name: Priti Kumari
College name: Jogesh Chandra Chaudhuri Law College, Kolkata
[1] 2nd year Law Student, B.A.LL. B (5 years) from Jogesh Chandra Chaudhuri Law College, Calcutta University
[2] [United Nations], [https://www.un.org/en/global-issues/democracy] (last visited Mar. 11, 2022)]
[3] [Rajeev Bhargava], [The future of Indian secularism], [The Hindu] [(August 12,2020, 14:21 IST)], [https://www.thehindu.com/opinion/lead/the-future-of-indian-secularism/article32329223.ece].
[4] Kuru, A. (2007). Passive and Assertive Secularism: Historical Conditions, Ideological Struggles, and State Policies toward Religion. World Politics, 59(4), 568-594. doi:10.1353/wp.2008.0005
[5] [The White House], [https://origins.osu.edu/review/secularism-past-and-future?language_content_entity=en ] (last visited Mar. 12,2022)]
[6] Engle v. Vitale, 370 U.S. 421 (1962)
[7] S.R. Bommai v. Union of India, AIR 1994 SC 1918
[8] (Application no 27058/05)
[9] Supra note 5.
[10] Indira Gandhi v. Raj Narain, (1975) A.I.R. 865, 1975 S.C.R. (3) 333.
[11] Keshavananda Bharti v. State of Kerala, (1973) 4 S.C.C. 225
[12] Article 15 & 16 of The Indian Constitution,1950.
[13] Article 25-28 of The Indian Constitution,1950.
[14] Article 29 & 30 of the Indian Constitution ,1950.
[15] Article 25 of The Indian constitution, 1950.
[16] Article 26 of The Indian Constitution, 1950.
[17] Article 27 of The Indian constitution, 1950.
[18] Article 28 of The Indian Constitution, 1950.
[19] Section 153A of The Indian Penal Code, 1860.
[20] Section 295A of The Indian Penal Code, 1860.
[21] Krishna Singh v. Mathur Ahir, A.I.R. 1980 SC 707
[22] The Commissioner, Hindu Religious Endowment v. Sri Lakshmindra Thritha Swamiar of Sri Shiur, A.I.R. 1954 SC 282 r
[23] Mrs. Valsamma Paul v. Cochin University and others, A.I.R. 1996 SC 1011
[24] 1975 A.I.R. 1778, 1957 SCR 453.
[25] Article 44 of The Indian Constitution, 1950