Secularism

And the absence of an establishment clause. The Indian Constitution nowhere forbids the State from administering a religious institution, which is why the endowment legislation in [Freedom of Religion: Articles 25 to 28] is constitutional at all.

Secularism as a basic feature

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 judges. Proclamations under article 356 dismissing several State governments were challenged, including those made after the demolition of the Babri Masjid on 6 December 1992.

Held. Among much else, that secularism is a basic feature of the Constitution. The judges recorded that Kesavananda Bharati and Indira Nehru Gandhi v. Raj Narain had already so held, and that by the Forty-second Amendment what was implicit was made explicit. A State government that acts on a sectarian basis or in a manner subversive of the secular character of the Constitution may properly be dismissed under article 356, and a proclamation under that article is subject to judicial review.

Why it matters. Three separate consequences. An amendment destroying secularism would be invalid. A State government may lose office for acting against it. And the concept is justiciable rather than merely aspirational, which is what makes MU's question about a secular State a legal question.

The judgment also states the positive conception. The Court connected secularism with the principles of accommodation and tolerance and with India's composite culture, which is the sarva dharma sambhava conception given judicial form.

What secularism permits the State to do, and this is where students go wrong

Regulate the secular activity associated with religion. Article 25(2)(a).

Legislate for social welfare and reform. Article 25(2)(b), which is the whole of [Religious Freedom against Social Reform].

Throw open Hindu religious institutions of a public character. The same clause.

Administer religious endowments and regulate the administration of religious property. Article 26(d), as read in Ratilal.

Fund minority educational institutions. Article 30(2) forbids discrimination against a minority institution in granting aid, which assumes that aid is given.

Provide for education about religions. Aruna Roy, worked in the previous chapter.

What it may NOT do. Have a religion of its own; discriminate on the ground of religion; compel payment of a tax for a religion; provide religious instruction in a wholly State-funded school; or identify itself with, or allow itself to be controlled by, any religion.

The criticisms

That positive secularism is unprincipled. If the State may administer temples and fund madrasas, the difference between a secular State and a religious one becomes a matter of degree.

That it is applied unevenly. Reform has gone further in the majority community's law than elsewhere, because codification happened there, which is the argument in [The Uniform Civil Code].

That the essential practices doctrine is inconsistent with it. A secular court deciding what a religion essentially requires is doing the opposite of standing back, which is the criticism in the previous chapter.

And that it is fragile in practice. Bommai itself arose out of the demolition of a mosque, and the case is a reminder that the concept is tested by events rather than by argument.

A worked example

A State government declares a religious festival a public holiday, funds the repair of a temple damaged in a flood, and pays a stipend to the priests of one faith.

The holiday. A public holiday on a festival of any community is administratively neutral in form; India declares holidays for the festivals of several faiths, and the practice is defended as accommodation rather than establishment.

The repair. Funding the restoration of a building of historical or public importance, or of a place damaged by a natural disaster on the same terms as other buildings, is not a tax appropriated for the promotion of a religion under article 27, and article 49 directs the protection of monuments of national importance.

The stipend. A payment to the clergy of ONE faith, and only that faith, is the case that fails: it is the State favouring a religion, contrary to the equality articles, and if funded by an earmarked tax it also offends article 27.

The distinction to state in the answer. Positive secularism permits the State to deal with religion; it does not permit the State to prefer one.

What this does NOT mean

It does not mean the State is anti-religious. The Indian model is equal respect rather than indifference.

It does not mean religion is confined to private life. It is not, and the personal law system is the proof.

And it does not mean the word entered the Constitution in 1976. The Court's position is that it was there from the beginning and that 1976 made it explicit.

Quick revision

Positive secularism, sarva dharma sambhava, equal respect, against the negative wall-of-separation model. Textual base: Preamble; articles 14, 15(1), 16(2), 25, 26, 27, 28, 29 and 30. No establishment clause, which is why State administration of endowments is possible. Bommai 1994, nine judges: secularism is a basic feature; a State government acting on a sectarian basis may be dismissed under article 356; the proclamation is justiciable. Permitted: regulation of secular activity, social welfare and reform, temple entry, administration of property, aid to minority institutions, education about religions. Forbidden: a State religion, discrimination on religion, taxes for a religion, religious instruction in a wholly State-funded school.

Test yourself

1. Define Indian secularism and contrast it with the American model. That the State has no religion of its own, treats all religions equally and neither favours nor penalises anyone for their faith, while remaining free to regulate the secular activity associated with religion and to legislate for social welfare and reform. The American model is separation, under which the State withdraws from religion altogether; the Indian model is equal respect, under which it does not.

2. Which case held secularism to be a basic feature, and what else did it decide? S.R. Bommai v. Union of India, (1994) 3 SCC 1, a Bench of nine. It also held that a State government acting on a sectarian basis or subversively of the secular character of the Constitution may be dismissed under article 356, and that a proclamation under that article is subject to judicial review.

3. Give four things a secular State in India may lawfully do in relation to religion. Regulate secular activity associated with religious practice; legislate for social welfare and reform, including throwing open Hindu religious institutions of a public character; regulate the administration of religious property; and grant aid to minority educational institutions without discrimination.

4. Why did India not adopt the separation model? Because religion in India supplies family law, controls very large endowments and was the site of the exclusions the Constitution set out to end. A State that had withdrawn from religion could not have abolished untouchability in temples, reformed personal law, or protected a minority's schools.

5. State the strongest criticism of positive secularism. That it is unprincipled: once the State may administer temples, fund minority institutions and legislate on personal law, the line between a secular State and a religious one is a matter of degree, and the choice of which religion to regulate how far becomes a political question rather than a constitutional one.