The guarantee of fundamental rights relating to religion constitutes the sheet anchor of the Indian secular state. Article 25 grants individuals freedom to practise and propagate any religion. Article 26 gives every religious denomination freedom to establish and maintain institutions for religious and charitable purposes. Article 27 stipulates no person shall be Compelled to pay any tax whose proceeds are used to pay any expenses for promoting and maintaining any particular religion or religious groups. Article 28 prohibits the introduction of religious instruction in educational institutions maintained by the state.
What underlies these provisions is the Principle of deliberate dissociation of politics from religion. When the Constitution accepts such a principle in the form of enforceable rights, it helps create a secular state. In such a state, there can be no discrimination on grounds of religion. In other words, a secular state does not in any way identify itself with any religion, rather it helps the individual keep to his chosen faith. At the same time, the Constitution does not permit any official discrimination on religious grounds. As B.R. Ambedkar said, "This Parliament shall not be competent to impose a particular religion on the rest of the people."
But secularism does not mean the state should be irreligious or anti-religion. S. Radhakrishnan said, "When India is said to be a secular state, it does not mean that we reject the reality of an unseen spirit or the relevance of religion to life." Secularism in India has some special features. While guaranteeing religious freedom, the Constitution also empowers the state to impose necessary restrictions, primarily for social security and national unity.
Secularism in India differs from the accepted notion of the term in three days.
- First, it is truly liberal. Although India's population is predominantly Hindu, the Constitution not only ensures religious equality, it also protects the essential rights and privileges of religious minorities, as is evident from Article 26. The term "propagate" in the article is seldom found in other written constitutions. It is to the advantage of Christianity, which expands on the basis of proselytization.
Moreover, the prohibition of the use of tax proceeds for a particular religion's benefit is an example of the religious liberalism enshrined in the Constitution.
- Second, Indian secularism is not absolute. It is legally qualified and conditional, because religious freedom under the Constitution has to be in consonance with "public order, morality and health". The state may interfere in an individual's religious rights when they go beyond the determined limit. Under Article 25 (2a), it can regulate activities associated with religious practice.
Under Article 25 (2b), it can interfere with religious affairs for social welfare and reform. Article 26 stipulates that the right of religious institutions to own and administer property must be enjoyed "in accordance with law". This is why the state may, if it deems necessary, pass a restrictive law for land reform or village reconstruction.
As regards social welfare, the state may prohibit a prevailing religious convention. For example, bigamy among Hindu men on the ground that the first wife was unable to beget a son can be prohibited because the practice is not; an essence of the Hindu religion. Practices such as sati or the devadasi system may be prohibited for the welfare of society. Thus social welfare in the constitutional system can prevail over religious sentiments. The state may adopt necessary legislations for the people's good, such as changing a community's personal laws or prohibiting an old practice which is traditionally thought of as an essential part of a religion.
- Third, Indian secularism is dynamic. Some reasonable restrictions may be imposed on the right. It has been left to the judiciary to determine whether these restrictions have been consistent with the idea of secularism adopted in the Constitution.
But the nature of the judicial verdict may change over time. Consistency with the constitutional principles may ultimately ensure that secularism become a matter of social dynamism.
Thus, Indian secularism differs from the orthodox model which desires the state simply observe neutrality towards all religions. However, when the circumstances warrant, the state can impose necessary restrictions on religious activities. Ambedkar had said, "Let no one be in a state of mind that they are immune from the sovereign authority of this Parliament."
Muslims may claim their personal laws should be retained as a part of their religion. However, the Supreme Court has recently ruled the government should implement a uniform civil code in order to implement one of the directive principles enshrined in Article 44. Although the verdict has alienated a section of citizens, the judges have wisely sought to separate social rules from religious injunctions.
Some decades ago, the Indian government made necessary legislations with regard to the marriage, divorce and succession of Hindus. Although the controversial Hindu code bill was ultimately withdrawn under pressure, the traditional system, said to have emanated from the sastras, was largely modified.
Muslim laws, though, remain unaltered. It has been felt the needed modification cannot be made unless the demand is raised within the community itself. This is a delicate issue and a hasty step may be misinterpreted as undue interference into minorities' religious rights. The government has accepted the 1967 Supreme Court verdict that, unless both the majority and the minority agreed such a legislative step was necessary for social welfare, it would be unwise to impose a law upon a section of the community.
Nevertheless, it can still be said the Constitution has adopted a new type of secularism. It has sought to effect a compromise between two opposite considerations - dissociating religion from politics, and permitting politics to prevail over religion in times of need. Its framers did bear in mind how religious fanaticism divided the country, but they also recognized the importance of religion in the moral and cultural life of Indians.
In addition, the judiciary is vested with power to interfere in a group's internal affairs. It has to decide whether a specific act is an essential part of a particular religion. It can classify religious practices into those which are of religious character and those which are not. For example, in 1959, the Supreme Court decided that cow sacrifice is not enjoined by Islam.
India's Constitution is also more secular than other constitutions. In 1961, for instance, the then Burmese parliament passed a bill to make Buddhism the state religion. The Roman Catholic religion is Ireland's official religion. The United Kingdom inclines towards Church of England and Protestantism.
However in India, both citizens and aliens are guaranteed religious freedom. The majority faith, Hinduism, is not accorded special treatment, though Pakistan, ceded on the basis of the two nation theory, adopted Islam as a state religion. This was a laudable achievement on the Constitution makers' part because when the Constitution was being drafted, communal frenzy was sweeping across the subcontinent.