Secularism as a Basic Feature

Article 25 supplies the content. It guarantees freedom of conscience and the right freely to profess, practise and propagate religion, subject to public order, morality and health and to the other provisions of Part III. Bommai's reasoning runs through it: the fundamental rights in articles 15, 16 and 25 to 30, the Court said, "leave no manner of doubt that they form part of the basic structure of the Constitution".

The doctrine

Facts. Kesavananda Bharati v. State of Kerala, AIR 1973 SC 1461, (1973) 4 SCC 225, decided 24 April 1973. The petitioner, the head of a mutt, moved the Supreme Court under article 32 for the enforcement of his rights under articles 25, 26, 14, 19(1)(f) and 31, seeking a declaration that the Kerala Land Reforms Act 1963 as amended was unconstitutional. The writ petitions came to raise the validity of the Twenty-fourth, Twenty-fifth and Twenty-ninth Amendments, and so the extent of the amending power itself.

Held. The power conferred by article 368 is a power to amend, and an amendment must leave the Constitution in existence with its identity intact. Sikri C.J. put it that "every provision of the Constitution can be amended provided in the result the basic foundation and structure of the Constitution remains the same", and listed the features: "(1) Supremacy of the Constitution; (2) Republican and Democratic form of Government. (3) Secular character of the Constitution; (4) Separation of powers between the Legislature, the executive and the judiciary; (5) Federal character of the Constitution." Khanna J. reached the same place by a different route: the words "amendment of the Constitution" "cannot have the effect of destroying or abrogating the basic structure or framework of the Constitution", and "The secular character of the state according to which the state shall not discriminate against any citizen on the ground of religion only cannot likewise be done away with."

Why it matters. The secular character of the Constitution is named in the doctrine's founding statement, by two judges, on the day the doctrine was created. That is why nobody has had to argue since 1973 that secularism might be an ordinary provision. Note that the petitioner's own case was a religious one: the head of a mutt asserting articles 25 and 26 against a land reform law.

Secularism named, and made enforceable

Facts. S.R. Bommai v. Union of India, AIR 1994 SC 1918, (1994) 3 SCC 1, decided 11 March 1994 by nine judges. A group of appeals and transferred cases about Proclamations under article 356 dismissing the governments of Karnataka on 21 April 1989, of Nagaland, of Meghalaya on 11 October 1991, and of Madhya Pradesh, Rajasthan and Himachal Pradesh on 15 January 1993, the last three following the demolition of the disputed structure at Ayodhya on 6 December 1992.

Held on review. "The Proclamation under Article 356(1) is not immune from judicial review", and a court may strike it down "if it is found to be mala fide or based on wholly irrelevant or extraneous grounds". The enquiry is limited to whether the material was relevant, not to its correctness or adequacy.

Held on secularism. Conclusion (10) of the Court's twelve: "Secularism is one of the basic features of the Constitution. While freedom of religion is guaranteed to all persons in India, from the point of view of the State, the religion, faith or belief of a person is immaterial. To the State, all are equal and are entitled to be treated equally. In matters of State, religion has no place. No political party can simultaneously be a religious party. Politics and religion cannot be mixed. Any State Government which pursues unsecular policies or unsecular course of action acts contrary to the constitutional mandate and renders itself amenable to action under Article 356." Sawant J. put the same point in the form the article 356 question requires: acts of a State Government "calculated to subvert or sabotage secularism as enshrined in our Constitution, can lawfully be deemed to give rise to a situation in which the Government of the State cannot be carried on in accordance with the provisions of the Constitution".

Held on the appeals. The Karnataka and Meghalaya Proclamations were unconstitutional; those of January 1993 for Madhya Pradesh, Rajasthan and Himachal Pradesh were not.

Why it matters. Bommai is where secularism stops being a value and becomes a ground of action. It supplies the operative sentence for every answer on this topic, and it also supplies the discipline: because a Proclamation is reviewable, the Union cannot simply assert that a State has behaved unsecularly. It must produce the material, and a court will ask whether that material was relevant.

The two consequences, kept apart

Against Parliament. An amendment under article 368 that abrogated the secular character of the Constitution would be void, however large the majority and however correct the procedure. This is a limit on constituent power and it is enforced by judicial review of the amendment.

Against a State government. A State government that pursues unsecular policies renders itself amenable to article 356. This is not a limit on legislative power; it is a ground on which the President's satisfaction may be formed. It operates on the executive, and its remedy is dismissal, not invalidity.

And the discipline that binds them. In each case the question is justiciable. Article 368(4), which purported to put an amendment beyond challenge in any court, cannot survive the doctrine; and clause (5) of article 356, which had barred review of a Proclamation, was deleted by the Forty-fourth Amendment, which Bommai treats as removing "the cloud on the reviewability of the action".

The word arrived in 1976, the idea did not

The Preamble did not contain the word "secular" until the Constitution (Forty-second Amendment) Act 1976. That fact is often used to argue that Indian secularism dates from 1976, and Bommai rejects the argument in terms: notwithstanding the addition of the words in 1976, "the concept of Secularism was very much embedded in our constitutional philosophy", and "By this amendment what was implicit was made explicit."

The evidence is in the text as it stood in 1950: liberty of belief, faith and worship in the Preamble; the prohibitions on discrimination on the ground of religion in articles 15 and 16; the freedoms in articles 25 and 26; article 27 forbidding taxation for the promotion of a religion; article 28 forbidding religious instruction in wholly State-funded schools; and articles 29 and 30 protecting minorities. Kesavananda, decided three years before the amendment, had already named the secular character of the Constitution a basic feature. See [What Secularism Means Here].

A worked example

Parliament passes a constitutional amendment, correctly under article 368, inserting a new article declaring one named religion the religion of the Union and directing the State to promote it. In the same month, the government of the State of Y adopts a resolution that public employment in the State shall be reserved for adherents of that religion, and its Chief Minister announces that places of worship of other faiths will not be protected by the State police. The Union issues a Proclamation under article 356 dismissing that government.

Step one, the amendment. It is challenged as violating the basic structure. On Kesavananda the enquiry is not whether the procedure in article 368 was followed but whether the amendment damages a basic feature. The secular character of the Constitution is on Sikri C.J.'s list, and on Bommai it is a basic feature. The amendment is void.

Step two, why the majority does not save it. Article 368(1) says Parliament may amend "any provision", and the doctrine reads that as a power to amend and not to destroy. Size of majority is irrelevant to a limit on the nature of the power.

Step three, the State resolution. Reserving public employment by religion offends article 16(2) directly. But the article 356 question is different: is this a situation in which the government of the State cannot be carried on in accordance with the Constitution? On Bommai conclusion (10) it is, because the State is pursuing an unsecular course of action.

Step four, is the Proclamation safe from challenge? No. It is reviewable. The Union must produce the material on which the satisfaction was formed. Here the material is the resolution and the announcement, both of which are plainly relevant, so the Proclamation would stand.

Step five, what would change the answer. If the material were only that the ruling party had campaigned on a religious platform, the Union would be in the position it was in for Madhya Pradesh, Rajasthan and Himachal Pradesh, where the Court divided on whether the material went far enough. A candidate should say that the line is drawn at acts of the government, not at the beliefs of the party that formed it.

What it does NOT mean

It does not mean the State may not deal with religion at all. Article 25(2) expressly preserves the power to regulate secular activity associated with religious practice and to legislate for social welfare and reform.

It does not mean a Proclamation is valid because the Union says secularism was in danger. Bommai makes the Proclamation reviewable and requires the material to be produced.

It does not mean secularism entered the Constitution in 1976. The Forty-second Amendment made explicit what Kesavananda had already found in the text three years earlier.

And it does not mean a party with a religious appeal is unconstitutional. Bommai speaks of a State Government pursuing an unsecular course of action. What an election candidate may and may not say is a separate question, dealt with in [Religious Fanaticism].

Quick revision

• Kesavananda Bharati (1973): article 368 confers a power to amend, not to destroy. Sikri C.J.'s list of basic features includes the "Secular character of the Constitution"; Khanna J. said the secular character of the State "cannot likewise be done away with".
• S.R. Bommai (1994), nine judges: "Secularism is one of the basic features of the Constitution." "In matters of State, religion has no place." "No political party can simultaneously be a religious party."
• The operative sentence: a State Government which pursues unsecular policies "renders itself amenable to action under Article 356".
• Sawant J.: acts calculated to subvert or sabotage secularism can be deemed to give rise to the article 356 situation.
• A Proclamation under article 356 is reviewable for mala fides or wholly irrelevant grounds; the Union must produce the material; the court tests relevance, not adequacy.
• Outcome in Bommai: the Karnataka and Meghalaya Proclamations were unconstitutional, those of January 1993 for Madhya Pradesh, Rajasthan and Himachal Pradesh were not.
• The word "secular" entered the Preamble by the Forty-second Amendment 1976, but "By this amendment what was implicit was made explicit".

Test yourself

1. What did Kesavananda decide about article 368, and where does secularism appear in that decision?

2. State conclusion (10) in S.R. Bommai as nearly as you can in the Court's own words.

3. Distinguish the consequence for Parliament from the consequence for a State government, and say which power each restrains.

4. What must the Union produce to defend a Proclamation, and what will the court examine?

5. Did secularism enter the Constitution in 1976? Give the answer and the authority for it.