Secularism or freedom to practice any religion is mentioned in the part III of our constitution. Right to freedom of religion is one of the fundamental rights, Indian citizens enjoy. In the 42nd amendment, the meaning of secularism was added in our constitution, particularly in the preamble. Liberty of thought, expression, belief, faith and worship, was the meaning of secularism we, as Indians, wanted to associate with and put it upfront for other countries to look forward to.
I have come across two sides of secularism, much like two sides of a coin. One would be positive secularism- an assertion that all religions are equal, and are equally recognized and equal protection to all religions with zero interference by the state. And then there is negative secularism- where state does not recognize any religion and no special provisions for religion are available.
For instance, France, on paper, is secular. The constitution of France claims it to be secular. However, one is not allowed to profess, practice or propagate one’s religion in public. The country believes in Dharma Nirpekshta. On the other hand, India is positively secular. We believe in Sarva Dharma Sadhbhavana. Where India has no state religion and neither it is anti-religion. The moment a person interferes in somebody else’s religion or forces the person to convert, the state will open its eyes and be vigilant and throw the phrase ‘Watchful Ambivalence’ as to keep a check on the infringement of other’s religion.
Since Preamble is non-justifiable and non-enforceable and hence, Article 25 and 26 help people to get remedy in court. Article 25 of the Indian constitution guarantees rights to an individual and Article 26 guarantees such rights to an organized body of individuals like religious denominations. Both these protect matters of religious doctrine or belief as well as act done in pursuance of religion. These articles embody the principles of religious tolerance that has been one of the characteristic features of Indian civilization from the start of its history and also emphasize the secular nature of the Indian polity.
Article 25 includes:
Freedom of conscience- freedom of thought, belief, faith and worship
Freedom of free profession- declaration of one’s belief and faith openly and freely
Freedom of practice- religious ceremonies, rituals can be publicized
Freedom of propagation- propagate one’s religious to others individually or on behalf of an institution.
However, religious freedom cannot be used, as a protection against acts inimical to the public order, health, morality and other fundamental rights. The right to freely profess, practice and propagate religion does not extend to creating hatred amongst persons practicing different religions. If a person purposely and forcefully make another person convert into his religion, that would impinge on the freedom of conscience guaranteed to all the citizens.
Clause (2)(a) – no protection to activities, which are economic, commercial or political in their character, though they are associated with religious practice. [i]Court had to determine whether the prohibition of cow slaughter violated the freedom of religion of the Mohammedans. The petitioner contended that the Koran enjoined the sacrifice of cow on Bakra Eid day, and therefore, the practice was an integral part of the religion. The Court held that the practice was not an essential part of the Mohammedan religion and could, therefore, be regulated under clause (2)(a) of article 25.
Article 26 of Indian Constitution – deals with the rights of religious denominations – guarantees every religious denomination, the right to establish and maintain institutions for religious and charitable purposes and to manage all affairs of religion in its own way without any interference. A religious denomination is a collection of individuals, classed together under the same name. It must satisfy three conditions: common faith, common organization and designation by distinctive name[ii].
The rights of a denomination to manage its affairs is only in regard to religious matters. Secular functions are still within the purview of the State. Determining non-secular matter is up to the courts and they must determine this by evaluating whether the part in question is an essential and integral part of the religion. In order to determine whether it is essential and integral, they must evaluate the evidence regarding the conscience of the community[iii] and the doctrines of the religion[iv] (objective fact finding/sociological study).
As it was held in the case of Sabrimala[v] in 2018, just because the protection of one’s fundamental rights is not applicable to Article 26, doesn’t mean it has to be given hierarchal position. Courts now are restricting the freedom of religious denominations to be under constitutional rights.
Even though the title of Article 25 and 26 are freedom of religion and the understanding is that they mean religious autonomy for Indian citizens. I feel the practical life of these articles is more to do with religious regulation. They provide the state with expansive power to regulate religions and religious institutions. I think that the state taking a stand away from religion and mentioning that state won’t interfere in the matters of religion; it was just a smart way of actually taking the matters into its hand. In some areas, the state appoints the pujaris in temples. I genuinely feel that the state and religion are not two separate institutions. Rather they are intermingled into each other with much complications.
[i] Mohd Hanif Quareshi vs State of Bihar
[ii] SP Mittal v UoI (1983) and Jagdishwaranand v. Polic Commr. (1983)
[iii] Seshammal v State of T.N (1972)
[iv] Syedna Taher Saifuddin Saheb v State of Bombay (1962)
[v] Indian Young Lawyer’s Association vs. The State of Kerala (Sabrimala) (2018)
Aishwarya Says:
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