Secularism as a Basic Feature

In one line

Secularism is not merely one policy among others that a majority may reverse: Parliament cannot amend it out of the Constitution, and a State government that abandons it can be dismissed.

In the wording a student can write in an exam: in Kesavananda Bharati the Supreme Court held that the power to amend under article 368 does not extend to damaging or destroying the basic structure of the Constitution, and Sikri C.J. listed among that structure the "Secular character of the Constitution". In S.R. Bommai a nine-judge Bench applied that holding to article 356 and concluded that "Secularism is one of the basic features of the Constitution", that "In matters of State, religion has no place", and that "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". Two consequences follow, one for Parliament and one for a State government, and an answer that gives only the first has given half the topic.

Why the law has this at all

Every constitutional guarantee is worth exactly as much as the difficulty of removing it. Articles 25 to 28 could in principle be amended away by the majorities article 368 requires, and if that were so, the freedom of religion would last only as long as the political will to keep it. The basic structure doctrine is the answer to that problem, and this chapter is about what happens when the doctrine is applied to secularism in particular.

The second half of the topic is different and is often missed. The doctrine restrains Parliament. It says nothing, by itself, about a State government that stays within the law but governs on religious lines. Article 356 is the provision that reaches that case, and Bommai is the decision that connected the two.

The provisions

Article 368(1) provides: "Notwithstanding anything in this Constitution, Parliament may in exercise of its constituent power amend by way of addition, variation or repeal any provision of this Constitution in accordance with the procedure laid down in this article." On its face the power has no subject-matter limit at all. The basic structure doctrine is a limit the Court found in the word "amend", and the reasoning belongs to [The Amending Power] and [The Basic Structure].

Article 356(1) provides that if the President, "on receipt of a report from the Governor of a State or otherwise, is satisfied that a situation has arisen in which the Government of the State cannot be carried on in accordance with the provisions of this Constitution", he may by Proclamation assume the functions of the State Government, declare that the powers of the State Legislature shall be exercisable by Parliament, and make incidental provisions. The mechanics are in [President's Rule].