The Preamble of the Indian Constitution declares India to be a ‘secular’ country. The term ‘secular’ has been added by the 42^nd Constitutional (Amendment) Act, 1976. Even before the addition of this term in the Preamble of the Indian Constitution, India was a secular country. In the case of SR Bommai v. Union of India (1994), ‘Secularism’ has been declared as the basic structure of the Constitution, which cannot be altered by the Parliament through the amendment.

What is secularism?

The term ‘secularism’ means separation of religion from state affairs. It means that state neither favors any specific religion nor discriminate amongst any religion. Religion is considered as a private affair of an individual and state has nothing to do with it.  

Concept of positive and negative secularism

There can be two important dimensions of secularism based on the extent of intervention of states in the religious matters: Positive and Negative secularism.

In the positive secularism, although state does not have any particular religion, however, in certain matters of religion it does interfere to uphold freedom of religion of the individuals. On the other hand, in the case of negative secularism, there exist a strict separation between the religion (Church) and the state. State does not interfere in the matters of religion.

A secular state may have a various approach towards the expression of religion in public. Some secular states may allow freedom of religion and allow its expression in public. It includes states like India, France, US and Germany. Some states, however, does not allow freedom of religion and prohibits its expression in public. Such states include China and North Korea. These two countries impose a severe restriction on the freedom of religion.

Roots of Indian secularism

India follows the concept of positive secularism, where state has no religion, however, the state may intervene in some matters of religion in order to uphold the secularism and prevent religious clashes.

Preamble, Article 14 (which provides for the equality before law and equal protection of law irrespective of the religion), Article 15 (which explicitly prohibits discrimination on only on the ground of religion, race, caste, sex and place of birth), and Article 25 to 28 (which provides for freedom of religion) of the Constitution of India ensures religious freedom of an individual.

One of the questions that arises here is why India chose a positive form of secularism rather than a strict form of separation between the state and the religion. The answer lies in the history of the Indian culture and the period of freedom struggle. India has been a multireligious country. This multireligious nature of the Country, was however, weaponized by the British government to divide the spirit of unity among Indians thus weakening the freedom struggle against British Government. Revolt of 1857 was the epitome of unity of Indians against an exploitative government, where people fought for freedom keeping their religious beliefs and faith aside.

However, observing this unity among the Indians, British government found it necessary to divide Indians on the ground of religion, and that is exactly what they did. Through their filthy religion politics, a divide was created between two major religions in India, Hindu and Muslim religion by granting separate electorate to Muslims (Morley-Minto Reforms, 1909), to which Indian National Congress including Mahatma Gandhi never agreed. This divide further got widen due to spread of a feeling among the Muslims that they are being sidelined in the politics and freedom struggle and that their cause is being ignored by the Indian National Congress. It ultimately led Muslims, under the leadership of Md. Ali Jinnah, to demand a new State ‘Pakistan’.

Therefore, due to such experiences India realized that positive secularism can be the only way to uphold fraternity (feeling of brotherhood) and unity among the people of India. Everybody can exercise his/her freedom of religion. However, the state can intervene in the religious matters when such freedom has an adverse impact on other fundamental rights of the individual.

For instance, Muslim Women (Protection of Rights on Divorce) Act, 1986 to ensure maintenance rights of Muslim women after divorce which were not there in their personal laws, Muslim Women (Protection of Rights on Marriage) Act, 2019 which was passed by the Parliament as a consequence of the decision of the Supreme Court in the case of Shayara Bano v. Union of India (2017)  which declared talaq-i-biddat under Muslim law as unconstitutional. The Indian Judiciary has also played a vital role in creating a fair balance between religion and other fundamental rights thus upholding the positive secularism, through its decisions in the cases like Sabrimala case, Shah Bano, and Shayara Bano.

Conclusion

It can be concluded that Indian secularism is difference from western secularism which is based on the concept of negative secularism. India adopted positive secularism to ensure unity and fraternity among the people of India. Further, the state, time to time by interfering in the religious matters uphold secularism and prevents clashes between religious freedom and other fundamental rights of the people.

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This article is authored by Astha Priya.