What Secularism Means Here

Two details in that footnote earn marks. The amendment is of 1976 but its commencement is 3 January 1977, so an answer that dates the change to 1976 is only half right. And what was substituted was the whole phrase, so "socialist" and "secular" arrived together in the same section of the same Act.

The four articles

The Preamble does not by itself confer a right. The working content of Indian secularism is in the four articles grouped under the heading Right to Freedom of Religion, and the differences between them are the substance of this part of the syllabus.

Article 25 opens: "Subject to public order, morality and health and to the other provisions of this Part, all persons are equally entitled to freedom of conscience and the right freely to profess, practice and propagate religion." It then preserves the State's power by clause (2) to regulate secular activity associated with religious practice, and to make laws for social welfare and reform or throwing open Hindu religious institutions of a public character to all classes and sections of Hindus.

Article 26 opens: "Subject to public order, morality and health, every religious denomination or any section thereof shall have the right", and then lists four rights, including to manage its own affairs in matters of religion and to administer property in accordance with law. Both articles are worked in [Articles 25 and 26].

Article 27 is the taxation guarantee: "No person shall be compelled to pay any taxes, the proceeds of which are specifically appropriated in payment of expenses for the promotion or maintenance of any particular religion or religious denomination."

Article 28(1) is the instruction guarantee: "No religious instruction shall be provided in any educational institution wholly maintained out of State funds." Clauses (2) and (3) carve out endowment institutions and give a consent right to a student in a recognised or aided institution. Both are worked in [Religious Taxation and Religious Instruction].

Read together they draw a shape. The individual and the denomination may believe, practise and propagate. The State may not fund one religion out of taxes and may not preach in its own schools. But the State is left free to regulate the secular side of religion and to reform it. That combination is the Indian model, and it is not either of the models students reach for first.

Not a wall, and not a church

Bommai contains the clearest statement of the point, in Sawant J.'s summary of Setalvad. Our Constitution "undoubtedly lacks a complete separation between the church and the State as in the United States and at the same time we have no established church as in Great Britain or some other countries. In our country, all religions are placed on the basis of equality". The same passage records that "the ideal of a Secular State in the sense of a State which treats all religions alike and displays benevolence towards them is in a way more suited to the Indian environment".

The positive formulation comes from Jeevan Reddy J. in Bommai, set out again in Faruqui: "Secularism is thus more than a passive attitude of religious tolerance. It is a positive concept of equal treatment of all religions." That is the sentence to write in an answer, because it captures both halves at once: the State is not indifferent to religion, and it is not partial to one.

The dismissal case

Facts. S.R. Bommai v. Union of India, AIR 1994 SC 1918, (1994) 3 SCC 1, decided 11 March 1994 by a Bench of nine. A group of appeals and transferred cases raised the validity of proclamations under article 356 dismissing State Governments. Two, Karnataka in 1989 and Meghalaya in 1991, had nothing to do with religion. Three others, Madhya Pradesh, Rajasthan and Himachal Pradesh, were dismissed on 15 January 1993, weeks after the demolition of the disputed structure at Ayodhya on 6 December 1992, on the ground that Governments committed to a religious programme could not be trusted to work the Constitution.

Held on secularism. "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. added the negative side: the provisions "by implication prohibit the establishment of a theocratic State and prevent the State either identifying itself with or favouring any particular religion or religious sect or denomination."

Held on the proclamations. The Karnataka and Meghalaya proclamations were unconstitutional, though no relief followed because fresh elections had intervened. The three proclamations of 15 January 1993 were "not unconstitutional".

Why it matters. Bommai turns secularism from a description into an operative constitutional standard with a sanction attached. Before it, one could argue that the Preamble was a preface. After it, a State Government's conduct towards religion is a ground on which the Union may act and a court may review. The consequences for article 356 belong to [President's Rule] and the basic structure point to [Secularism as a Basic Feature].

The acquisition case

Facts. Dr. M. Ismail Faruqui v. Union of India, AIR 1995 SUPREME COURT 605, 1994 (6) SCC 360, decided 24 October 1994 by a Bench of five. After the demolition, Parliament passed the Acquisition of Certain Area at Ayodhya Act, 1993, acquiring the disputed area and land around it, and the President made a reference under article 143(1) asking whether a Hindu temple had existed at the site. The Act's validity and the maintainability of the reference were both before the Court.

Held. Section 4(3), which abated all pending suits about the site without providing any alternative means of resolving the dispute, was "an extinction of the judicial remedy for resolution of the dispute amounting to negation of rule of law" and was unconstitutional; it was severable, and the rest of the Act stood. The pending suits revived, and the Central Government held the disputed area "as a statutory receiver". The Court declined to answer the Presidential reference and returned it. On acquisition of a place of worship it held that the status of a mosque "is the same and equal to that of any other place of worship of any religion" and that it does not enjoy any greater immunity from acquisition, adding the sentence that has been criticised ever since, that "a mosque is not an essential part of the practice of the religion of Islam". Bharucha J., for himself and Ahmadi J., dissented.

Why it matters. It supplies the definition this chapter needs: the constitutional scheme "guarantees equality in the matter of religion to all individuals and groups irrespective of their faith emphasising that there is no religion of the State itself". It also shows the cost of the doctrine that lets courts decide what is essential to a religion, dealt with in [Essential Religious Practices], because equality of treatment there produced a finding about Islam that no court was equipped to make.

Three models

A worked example

A State Government sanctions a grant from general revenues for the annual festival of one temple, appoints a Minister to lead the procession, and announces that a compulsory hour of instruction in that faith will be taught in State-run schools. A taxpayer challenges all three.

Step one, the grant. Article 27. The question is whether the proceeds of a tax are "specifically appropriated in payment of expenses for the promotion or maintenance of any particular religion". A specific appropriation for one temple's festival is the paradigm case.

Step two, the Minister. Not article 27, and not article 25, since nobody's worship is being restricted. It is Bommai: the State may not identify itself with or favour a particular religion, and "in matters of State, religion has no place".

Step three, the school hour. Article 28(1), if the school is wholly maintained out of State funds, and the prohibition there is absolute. If the school is only aided or recognised, the position moves to article 28(3) and the student's consent.

Step four, does the State have any answer? It may say it is regulating the secular administration of a temple, which article 25(2)(a) permits, or acting for social welfare and reform under article 25(2)(b). Neither covers paying for one faith's festival out of taxes.

Step five, the consequence. On Bommai, persistent conduct of this kind is not merely invalid; it is material on which the Union may act under article 356 and on which a court may review that action.

What it does NOT mean

It does not mean the State must ignore religion. Article 25(2) expressly allows regulation of secular activity connected with religious practice and legislation for social welfare and reform. An Indian secular State runs temple endowment boards. An American one could not.

It does not mean the word "secular" created the concept. The Forty-second Amendment made explicit what was implicit. A candidate who says India became secular in 1976 has misread both the Preamble and Bommai.

It does not mean religion is banished from politics. What Bommai forbids is the mixing of religion with the business of the State, and it says a political party cannot simultaneously be a religious party. The election law questions are in [Religious Fanaticism].

It does not mean equal treatment is the same as identical treatment. Articles 29 and 30 give minorities protections the majority does not have, and Faruqui itself insists that a place of worship of any religion stands on the same footing as any other.

Quick revision

• "SECULAR" entered the Preamble by the Forty-second Amendment 1976, section 2, with effect from 3 January 1977, replacing "SOVEREIGN DEMOCRATIC REPUBLIC". Two attempts in the Constituent Assembly had failed.
• The concept was there from the start: what was implicit was made explicit.
• Content: no religion of the State's own, equal treatment of all religions, no theocratic State, no identification with or favour to any religion.
• Articles 25 and 26 give the freedoms; article 27 bars taxes appropriated for one religion; article 28 bars religious instruction in wholly State-funded institutions.
• Bommai (1994, nine judges): secularism is a basic feature; in matters of State religion has no place; a State Government pursuing unsecular policies is amenable to article 356. Karnataka and Meghalaya proclamations bad; the three of January 1993 good.
• Ismail Faruqui (1994, five judges): section 4(3) of the Ayodhya Act void as a negation of the rule of law, severed; suits revived; reference returned unanswered; a place of worship of any religion has no greater immunity from acquisition. Bharucha and Ahmadi JJ. dissenting.

Test yourself

1. When did the word "secular" enter the Preamble, and why is it wrong to say India became secular then?

2. State the Indian model of secularism by contrasting it with the American and English models, using the passage in Bommai.

3. What did Bommai hold about the relationship between a State Government's conduct towards religion and article 356?

4. Which provision of the Ayodhya Act was struck down in Ismail Faruqui, and on what principle?

5. Why does article 25(2) show that Indian secularism is not a wall of separation?