CONSTITUTIONAL LAW

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Changing Perceptions of Secularism
by Vikramjit Banerjee*
by Sumeet Malik**

Cite as : (1998) 7 SCC (Jour) 3

From time to time the Supreme Court of India has been interpreting the concept of secularism in the Indian Constitution differently.

Early Judgments

The Supreme Court expressed its views on the secular nature of the Constitution for the first time in Sardar Taheruddin Syedna Saheb v. State of Bombay[1]  wherein Ayyangar, J., explained:

"Articles 25 and 26 embody the principle of religious toleration that has been the characteristic feature of Indian civilisation from the start of history. The instances and periods when this feature was absent being merely temporary aberrations. Besides, they serve to emphasise the secular nature of the Indian democracy which the founding fathers considered to be the very basis of the Constitution."

In Kesavananda Bharati v. State of Kerala[2]  the Supreme Court reiterated that secularism was a part of the basic structure of the Constitution. Enumerating the basic features of the Constitution, Sikri, C.J. named "secular character of the Constitution"[3]  as one of them. Shelat and Grover, JJ. stated that "secular and federal character of the Constitution" were among the main ingredients of the basic structure enumerated therein.[4]  Jaganmohan Reddy, J., stated clearly that "Liberty of thought, expression, belief, faith and worship"[5]  could not be amended at any cost as they are part of the basic features of the Constitution.

Though in Kesavananda[2] the Court in no uncertain terms laid down that secularism forms part of the basic structure of the Constitution, in Ahmedabad St. Xaviers College Society v. State of Gujarat[6]  it indicated that it was uncertain about its views on the subject. Matthew, J. and Chandrachud, JJ. (as he then was) felt that it was only by implication that the Constitution envisaged a secular State. They gave a new dimension to the concept in the constitutional context thus:

"The Constitution has not erected a rigid wall of separation between the Church and the State. It is only in a qualified sense that India can be said to be a secular State. There are provisions in the Constitution which make one hesitate to characterise our State as secular. Secularism in the context of our Constitution means only an attitude of live and let live developing into the attitude of live and help live."[7] 

Apparently this view implied a contradiction between the judicially constructed concept of secularism and the concept evident in the text of the Constitution. The judgment also went on to lay down a modern Indian concept of secularism.

In Ziyauddin Burhanuddin Bukhari v. Brijmohan Ram Das Mehra[8]  the Supreme Court went on to define the concept of secularism in the realm of philosophy and in utilitarian terms. The Court set the role of the State to be neutral or impartial in extending its benefit to citizens of all castes and creeds and cast a duty on the State to ensure through its laws that disabilities are not imposed based on persons practising or professing any particular religion. Some judges of the Supreme Court however seem to have followed this logic in Indra Sawhney case[9] . The opinion of Kuldip Singh, J. is indicative of this fact. According to him secularism envisages a cohesive unified and casteless society.[10]  Further, "caste poses a serious threat to secularism and a consequence to the integrity of the country". This view seems to be an enlargement of the concept of secularism beyond merely religious differentiation. This seems to indicate that the Court is still not decided as to what exactly the term means.

In the landmark judgment of S.R. Bommai v. Union of India[11]  the Court in no uncertain terms declared that secularism is part of the basic structure.[12]  But the complication arose in formulating a definition. Ahmadi, J., stated that secularism is based on the "principles of accommodation and tolerance". In other words, an espousal of a "soft secularism". He tended to agree with the broadened definition adopted by the Court in Indra Sawhney[9]. The Court in Bommai[11] ruled that religion and temporal activities do not mix. Freedom and tolerance of religion is only to the extent of permitting pursuit of spiritual life that is different from the secular life. The latter falls in the domain of the affairs of the State. The Court further said that "the encroachment of religion into secular activities is strictly prohibited."[13]  Ramaswamy, J., in his separate opinion declared that the State has the duty to ensure secularism by law or an executive order. He explained that programs or principles evolved by political parties based on religion amount to recognising religion as a part of political governance which the Constitution expressly prohibited.[14]  According to him it is the duty of the court to bring every errant political party in line if it goes against secular ideals like casteism and religious antagonisms. His opinion reiterates the view that secularism includes anti-casteism, and presents the rigid stance of the court.[15]  Jeevan Reddy and Agrawal, JJ., broadly agreed with Ramaswamy, J. In fact, the Judges went on to say that the concept of secularism in the Indian Constitution is in broad agreement with the U.S. Constitution's First Amendment. They also expressed the view that the State has the power to legislate on religion including personal laws under Art. 44 and secular affairs of temples, mosques, and other places of worship.[16]  They also went on to say that even if a political party indirectly espouses a religious cause it is acting in an unconstitutional manner. It may be noted that Verma, J. (as he then was) and Dayal, J., though part of the bench expressed no opinion on secularism.

Within a year the Court in Ismael Faruqui v. Union of India[17]  started diluting the active, positive concept of secularism based on scientific thinking it had advocated in the Bommai case[11]. An indication of this trend had been laid in R.C. Podayal[18] . Subsequently, in the Ram Janambhoomi case[19] , the Court justified its concept of secularism by quoting extensively from Indian scriptures. Verma, J. (as he then was) (speaking for Venkatachaliah, C.J. and Ray, J.) quoted from the Yajur Veda, Atharva Veda and Rig Veda to justify its concept of secularism: 'Sarwa Dharma Sambhava'[20] , i.e., tolerance of all religions. This reasoning seems to be odd: of justifying secularism by religious scriptures. The Court seems to have rejected the western concept of secularism based on separation of the Church and the State as explained in S.R. Bommai[11] and went back[21]  to equating secularism with tolerance. The Court also noted that the State has the power to take over any religious place including a mosque. Though dissenting, Bharucha, J., supported the concept of absolute, positive and active secularism[22] , more in tune with that spelt out in S.R. Bommai[11]. Yet even he accepts that secularism in India exists because of the tolerance of the Hindus who are the majority religion.[23] 

The confusion stood confounded with the three cases known as the 'Hindutva Judgments'[24] , the major and crucial one being Prabhoo's case[25] . The opinion of Verma, J. (as he then was) (as in the other two cases) indicates the shift made by the Court from its stance on secularism advocated in S.R. Bommai[11].

Verma, J. made the Court shift its earlier position and take a different stand on three major grounds:

1. The Court enunciated that a speech with a secular stance alleging discrimination against any particular religion and promising the removal of the imbalance cannot be treated as an appeal on the ground of religion, as its thrust is for promoting secularism.[26] 

2. The Court again seemed to have turned away from the Bommai case[11] and the 'constitutional duty' of the Court to get political parties in line with secularism, advising leaders to be only "more circumspect and careful in the kind of language they use."[27]  The Court further explained by stating that the statement that "(T)he first Hindu State will be established in Maharashtra" is by itself not an appeal for votes based on religious grounds, "(b)ut the expression, at best, of such hope...."[28] 

3. The Court equated Hinduism and Hindutva with Indianisation:

"The words 'Hinduism' or 'Hindutva' are not necessarily to be understood and construed narrowly, confined only to the strict Hindu religious practices, unrelated to the culture and ethos of the people of India, depicting the way of life of the Indian people."[29] 

The Court went on the explain clearly what it had held in the Hindutva Judgments[24] in a series of cases.[30]  The Court speaking through Verma, N.P. Singh and Venkataswami, JJ. in Mohd. Aslam v. Union of India[31] , further tried to explain that there was no contradiction between the ratio of S.R. Bommai[11] and that of the Hindutva Judgments[24], both being on different planes.

In this context it must be noted that the Court is not unanimous in its own stance. This is evident from the different stands taken by some Judges in a number of cases. In Abhiram Singh v. C.D. Conmachen[32] , Ramaswamy J., recommended that the question be sent to a larger bench for consideration but refrained from taking a different meaning of secularism.[33]  In fact, Ramaswamy, J. in Valsamma Paul (Mrs) v. Cochin University[34]  seems to have gone back to the old soft stance on secularism equating it with tolerance, while stressing the need for an 'integrated Bharat'[35] . Yet in Bansilal v. State of A.P.[36]  he seems to rely on the S.R. Bommai[11] dictum that the State can regulate personal laws citing the threat to the unity and integrity of the nation.[37]  Interestingly, the Judge in another part of the judgment accepts Hinduism as the major religion and Hindus as the majority, and that the right of freedom of religion is available to Hindus also[38] . One fails to find consistency in these cases. Finally in A.S. Narayana Deekshitulu v. State of A.P.[39]  Ramaswamy, J. quoting extensively from the scriptures states:

"The word 'Dharma' or 'Hindu Dharma' denotes upholding, supporting, nourishing that which upholds, nourishes or supports the stability of the society, maintaining social order and general well being and progress of mankind; whatever conduces to the fulfilment of these objects is Dharma, it is Hindu Dharma and ultimately 'Sarwa Dharma Sambhava'. Dharma is that which approves oneself or good consciousness or springs from due deliberation for one's own happiness and also for welfare of all beings free from fear, desire, disease, cherishing good feelings and sense of brotherhood, unity and friendship for integration of Bharat."

With this explanation the circle is complete.

In our view, the Court clearly has not moved an inch from its original perspective on secularism as enunciated in the early cases of the 1950's and 1960's. The Court has with minor deviations, stuck to its original stance of 'secularism' not being a wall between the Church and the State, but a sense of toleration between people of different religions through 'Sarva Dharma Sambhava'. The Court deviated from this position for a while in S.R. Bommai[11] where it espoused secularism to mean "a wall between the Church and the State". The line of thinking the Court seems to be best portrayed by the majority in the Ram Janambhoomi case[19] - 'Secularism' is toleration based on tradition. The Hindutva Judgments[24] are a logical conclusion from it, that is, recognition of the essential Hindu identity of tradition. Yet it seems, the Court has stopped short in taking the line to its ultimate conclusion - that of Hindutva being synonymous with Nationalism. After all if Hindutva is nothing but pride in being Indian (as per the courts very own logic) then is not Nationalism exactly the same?

* Former Student, National Law School of India University. Return to Return to Text

** Vth Year, LL.B. (Hons), National Law School of India University. Return to Text

1. AIR 1962 SC 853, 871. It is known as 'the Ex-communication case'. The genesis of such views can be traced to earlier decisions like Nain Sukh Das v. State of U.P., AIR 1953 SC 384 wherein it was held that constitutional mandate against religious discrimination extends to political rights. Return to Text
2. (1973) 4 SCC 225. Return to Text
3. Id., para 292.Return to Text
4. Id., para 582. Return to Text
5. Id., para 1159. Return to Text
6. (1974) 1 SCC 717. Return to Text
7. Id., para 139. Return to Text
8. (1976) 2 SCC 17. Return to Text
9. Indra Sawhney v. Union of India, (1992) Supp (3) SCC 217. Return to Text
10. Id., para 569. Return to Text
11. (1994) 3 SCC 1. Return to Text
12. Id., per Ahmadi, J., para 29: per Sawant and Kuldip Singh, JJ., para 146: per Ramaswamy, J., para 178: per Jeevan Reddy and Agrawal, JJ., para 304. Return to Text
13. Supra n. 10 para 148. Return to Text
14. Id., para 252. Return to Text
15. This rigid stance of Ramaswamy, J. was to be diluted in later cases. Return to Text
16. It is interesting to note that the Court withdrew from both these commitments later. Return to Text
17. (1994) 6 SCC 360. Return to Text
18. 1994 Supp (1) SCC 324 [Coram: Per Venkatachaliah, C.J., Verma and Jayachandra Reddy, JJ.] Return to Text
19. Supra, n. 16. Return to Text
20. Id., para 31. Return to Text
21. Refer to the Ex-communication case and Nain Sukh Das v. State of U.P. (supra). Return to Text
22. Supra n. 16 para 143. Return to Text
23. Supra n. 16 para 156. Return to Text
24. Ramesh Yashwant Prabhoo (Dr.) v. Prabhakar K. Kuntel, (1996) 1 SCC 130; Manohar Joshi v. Nitin Bhau Rao Patil, (1996) 1 SCC 169; Ramchandra K. Kapse v. Haribansh R. Singh, (1996) 1 SCC 206. Return to Text
25. Ramesh Yashwant Prabhoo (Dr.) v. Prabhakar K. Kunte, (1996) 1 SCC 130. Return to Text
26. Supra n. 24, para 16. The Court's stand in Bommai decision was different. Return to Text
27. Supra n. 24 para 62. Return to Text
28. Manohar Joshi v. Nitin Bhau Rao Patil, (1996) 1 SCC 169, para 62. This position is also different from the one the Court took in S.R. Bommai. Return to Text
29. Supra n. 24, paras 39, 42. The redefinition of secularism different from the one given in Bommai, was thus complete. Return to Text
30. Mahadik v. Bhosale, (1996) 1 SCC 384; Mayekar v. Celine D'silva, (1996) 1 SCC 399; Goyal v. Kohli, (1996) 1 SCC 378; Kapse v. Rambakal Singh, (1996) 1 SCC 206; Save v. Pathrikar, (1996) 1 SCC 394. Return to Text
31. (1996) 2 SCC 749. Return to Text
32. (1996) 3 SCC 665. This case was heard by a bench consisting of Ramaswamy, J. and Bharucha, J. who dissented in Ram Janam Bhoomi case. Return to Text
33. Supra n. 10, para 14. Return to Text
34. (1996) 3 SCC 545. Return to Text
35. Id., para 16. Return to Text
36. (1996) 2 SCC 4 Return to Text
37. Id., para 12. Return to Text
38. Id. Return to Text
39. (1996) 9 SCC 548. Return to Text