The State and Religion: No State Religion

Why it matters. It is the sharpest instance of secularism operating as an operative legal rule rather than as a description. It also shows the reach of the principle: it governs not only what the State does but how power in the State may be sought.

And note the disagreement. The minority read "his" narrowly and warned that the wider reading would prevent a candidate from raising the grievances of a disadvantaged community at all. That objection is real and belongs in a critical answer.

The rule in the federal structure

Bommai supplies it. A State government that acts on a sectarian basis, or in a manner subversive of the secular character of the Constitution, may be dismissed under article 356, and the proclamation is justiciable. The case is worked in [Secularism].

The practical significance. Secularism is not merely a limit on legislation; it is a condition of holding executive office in a State.

What the State may still do, and why that is not inconsistent

Administer endowments and regulate religious property. Article 26(d).

Fund minority institutions. Article 30(2) forbids discrimination in granting aid, which presupposes that aid may be granted.

Provide for education about religions. Aruna Roy.

Declare public holidays on the festivals of several communities. Accommodation of all rather than preference for one.

Reform a religion's own law. Article 25(2)(b), which is the subject of a later chapter.

The principle that reconciles these with the rule. Non-establishment in India means non-preference rather than non-involvement. A State that deals with every religion on the same terms has not adopted one.

A worked example

A State proposes three measures: a compulsory levy on cinema tickets to fund the construction of temples; a scheme funding the repair of any place of worship damaged in the recent floods; and a rule that the Chief Minister shall take the oath of office in the name of one deity.

The levy. Article 27 in terms. A tax specifically appropriated for the promotion of a particular religion. Void.

The flood scheme. Available to every place of worship on the same terms and directed at the consequence of a natural disaster rather than at the promotion of a religion. It survives, and it is the positive model working.

The oath. The Third Schedule prescribes the forms of oath, which permit swearing in the name of God or solemnly affirming. A rule prescribing ONE deity for every holder of the office identifies the State with a religion and offends articles 14, 15(1) and 25(1). Void.

The line the example draws. Money and form both matter. The question is never whether the State has touched religion but whether it has preferred one.

What this does NOT mean

It does not mean India has an establishment clause. It does not, and the result is reached by combination.

It does not mean a public official may not be religious. The rule binds the State, not the person.

And it does not mean religion may play no part in politics. It means that an appeal to religion for votes is a corrupt practice under section 123(3), which is a narrower proposition and the one Abhiram Singh decides.

Quick revision

Three limbs: no adopted religion; no tax specifically appropriated for a religion, article 27; no religious instruction in a wholly State-funded institution, article 28(1). No establishment clause; the result comes from articles 14, 15(1), 16(2), 25, 27 and 28 with the Preamble. Abhiram Singh 2017, seven judges: "his" in section 123(3) of the Representation of the People Act covers the religion of the candidate, a rival, an agent or the VOTER; the election process is a secular activity; a strong minority warned about silencing the grievances of disadvantaged communities. Bommai: a sectarian State government may be dismissed under article 356. Non-establishment in India means non-preference, not non-involvement.

Test yourself

1. How does the Constitution establish that India has no State religion? Not by an establishment clause, which it does not have, but by the combination of articles 14, 15(1) and 16(2), article 25, article 27's prohibition on taxes appropriated for a religion, and article 28(1)'s prohibition on religious instruction in a wholly State-funded institution, with "Secular" in the Preamble since 1976.

2. What did Abhiram Singh decide? That the word "his" in section 123(3) of the Representation of the People Act 1951 is not confined to the candidate's own religion, race, caste, community or language: an appeal in the name of the religion of the candidate, of a rival, of an agent or of the voter is a corrupt practice, because the electoral process is a secular activity.

3. Give the minority's objection in that case. That reading "his" widely would prevent a candidate from raising the grievances of a disadvantaged community at an election at all, and so would silence exactly the constituencies whose exclusion the Constitution was written to remedy.

4. Distinguish non-preference from non-involvement. Non-involvement means the State stays out of religion altogether, which India does not do: it administers endowments, aids minority institutions and legislates on personal law. Non-preference means the State deals with religions on equal terms and adopts none, which is what the Indian rule requires.

5. Apply the rule to a State scheme funding the repair of places of worship damaged by a flood. It is valid, because the scheme is available to every place of worship on the same terms and is directed at the consequences of a natural disaster rather than at the promotion of a religion, so it involves the State with religion without preferring one.