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The Question Of A Secular Indian State In Preamble: A Jurisprudential Answer

As time passed, people's point of view in understanding the societal functioning took a drastic change. This change started questioning every fundamental order of nature, religion, law, science, art, culture, and customs around the world. This nature of questioning started to fulfil the quenching thirst to knowledge where humans preyed upon the unimaginable reasoning capacity of our thoughts.

This thoughtfulness brought answers to many questions and these answers structured a conditioned way of life in society and built history along time. When there emerged a question on a legal plane, jurisprudence has always acted as a tool to answer it. This jurisprudential view on history, answered many contemporary questions, and one question among the many is the question of secularism in the Indian history.

The word secular has been through a great debate in the Indian history. These debates led to the removal and acceptance of the term secular in the preamble of the Indian constitution. So, starting from the ancient Era to the present cases the term secular has been through many opinions.

This paper contains many opinions about the word secular in the preamble of the Indian constitution. This paper uses jurisprudence as a tool to analyse and to answer the question of secular character of democratic India.

In this independent India, the Indian nation-state has seen multiple changes, leaders come and go, many amendments being implemented and stripped off, many topics concerning legal, social, political and economics being debated on. One among these topics which has been on the spotlight for many years and has become an important topic in recent years is the concept of secularism in the Indian state.

The question of secularism in a multi-religious and multi-cultural India has always stayed a question of never-ending answer in the societal plane, even when the legal plane through constitution tried its best to ensure it in many instances. This paper uses jurisprudential view as a scope to find the answer to the rejection of secularism in the constitutional debates, and for its proposal and acceptance in the 42nd amendment act,1976 by referring and understanding the history of the secular Indian state long before the arrival of the colonisers.

In this paper the term 'secular' is analysed in the jurisprudential aspect. Jurisprudence means knowledge of law or skill in law. In secularism, jurisprudence means discussing about the historical aspect, the growth, and the contribution of many throughout history which has led to the current scenario.

Historical Background:
The philosophical thought started to grow in a fast pace during the same time it started to grow in the western world i.e., during the fifth B.C. Gautama and Mahavira are some in many who would be the best examples to quotes when talking about secularism in the Indian context, because during their period the societal concept of cast held a powerful place.

Being born in one of the highest castes of the time the Kshatriya i.e., the royal warrior group, they strongly opposed the concept of racial based discrimination and caste-based discrimination, which forms a basis to prove that the Indian society had the concept of secularism long before the term or concept of secularism emerged in the west[1].

Then comes in the line the great emperor Ashoka who had a humanitarian approach towards religion. After converting to Buddhism, he grew a very high religious tolerance and had only one thought and principle that the people should follow Ahimsa, the concept of non-violence. There also prevailed philosophical schools of thought which are of two mother chains namely astik and nastik schools, one among the six nastik school was charvaka, the school of materialism which rejected any belief and concept regarding the body of God and religion.[2]

The concept of secularism is a trademark of the medieval Indian nation. 'There is no Hindu and no Musselman, as there is no distinction between man and man' by guru Nanak is a one in many exemplars statement to get a glimpse on the secular Indian past. Akbar who promoted religious unity and his propagation of 'Din-e-Illahi' and 'Sulh-Kul' respectively meaning divine faith and peace with all adds to the fact of secular Indian history.[3]

British Colonial Era:

During the British rule in India, it is observed that Secularism was artificially imposed by the colonial government. In England the only religion which existed was Christianity but in India there were both Hinduism and Islam. So, it was difficult for the colonizers to officiate a particular religion in India. Both Hinduism and Islam were heathen. The British were unable to force Christianity because it will make the colony ungovernable. Churches administered the officials and the government back in Britain.

After arriving in India, they felt uncomfortable in associating themselves with worship houses like mosques and temples to which they assigned Indian trustees and it decided to separate the religion from the state. They adopted the policy which was called colonial secularism. There are three things which was followed by the British government, First the colonial government would not endorse with the local religion.

Second the colonial government would protect minority religions and Third the British government tacitly encouraged Christian missionaries to preach Christianity and to convert people from Hinduism or Islam to Christianity. Therefore, this was the situation of secularism during the colonial British era in India.

Constitution Assembly Debate:

The concept of secularism existed in the India constitution before the 42nd amendment act. It was first brought into limelight when the draft preamble was debated in CAD on November 15, K.T. Shah was a graduate from London school of economics and a professor of economics at Mysore university. He was member of the congress experts committee set up in 1946 to prepare preliminary materials for the constituent assembly.

Prof. K.T. Shah was the member of CAD who proposed the word 'secular' to be added in the preamble and added that the term 'union' stands for aggregate of states and states should be federal, secular, and socialist. He wanted the character of the state to be secular because of the past bitter experience.

And he wanted the state to ensure the citizens of the nation that the governance of the country and disputes between man and man or citizen and government will not be influenced by those considerations which will result in injustice or inequality as between the citizens of India. [4] There was difference in view of opinion about the word 'secular' in the constitution assembly debate.

B.R. Ambedkar stated that Shah's amendment cannot be added. He stated that the citizens of the state should decide the policy followed by the state in social and economic matters and it should not be mentioned in the constitution if mentioned it will destroy the democracy together. And he stated that the amendment is purely superfluous.[5] V.K. Krishna Menon drafted the preamble before it was debated in the CAD.

Jawaharlal Nehru who was the first prime minister of India, had asked Menon to "go a little slow" on ''socialist'' and ''secular'', but that does not mean India is not socialist and secular.[6] Nehru did not want the concept nor the word secular in the Preamble of the Indian constitution because he felt that there are divergent points of view and also there was not enough of a consensus on these issues.

42nd Amendment:

The word which was omitted by CAD while framing the constitution was added to the preamble by the 42nd amendment act, 1976. This amendment is also known as the Mini-Constitution. And this is also known as the most important amendment in the history of Indian constitution. This amendment was brought by the Indira Gandhi's government during emergency in the year of 1976.

This act is the most contradictory act against the CAD i.e., Constitutional assembly debate. This amendment added the word 'secular' in the preamble stating that India is a secular state and there is no influence of any religion in the governance of the state. Many important amendments of the constitution were a part of 42nd amendment act, 1976.

Case Laws:
  1. Indira Gandhi V. Raj Narayan
    The basic feature of the secularism was stated by the supreme court that the state shall have no religion of its own and all persons of the country shall be equally entitled to the freedom of their conscience and have the right to freely profess, practice and propagate any religion.[7]
  2. St. Xaviers college V. State of Gujrat
    The supreme court in this case stated that India is neither anti -God, nor pro-God; it treats alike the devout, the antagonistic and the atheist.[8]
  3. Sardar Syedna Taher Saifuddin Saheb V. State of Bombay
    According to the supreme court, the founding fathers built Indian constitution on the concept of secularism and emphasized the secular nature of the Indian democracy.[9]
  4. Kesavananda Bharathi V. State of Kerala
    The supreme court stated that secularism is the basic structure of the Indian constitution. Secularism is the character of the Indian constitution and a basic ingredient of the basic structure.[10]
  5. Aruna Roy V. Union of India
    The supreme court stated that secularism under the Indian constitution should be understood with a positive meaning that is developing, understanding, and respect towards different religions.[11]
  6. Abhiram Singh V. C.D. Commachem
    The Court held that secularism does not say that the State should stay away from religion instead it should give equal treatment to every religion. Religion and caste are vital aspects of our society, and it is not possible to separate them completely from politics.[12]
  7. S.R. Bommai V. Union of India
    The supreme court stated that secularism means equal treatment of all religions. It held that the word 'secular' which was inserted in the Preamble by the 42nd Amendment, highlights the fundamental rights guaranteed in Articies25-28.[13]

Recent Issues:
India after the recent change in its political leadership, has seen a surge in religious oriented issues. It has questioned the secular nature of the society of the independent Indian state. There have been several issues recently and to name a few they include:
  • The famous and recent hijab issue/controversy that emerged in a school in Karnataka, which the supreme court passed a split verdict imposing a ban on wearing a hijab in educational institutions in Karnataka.[14]
  • The Sabari Malia issue in 2018 where the supreme court stated that "any exception placed on women because of biological differences violates the Constitution." Specifically, the court held that the ban violated the right to equality under Article 14 and the right to freedom of religion under Article 25.[15]
  • The CAA,2019 has failed to pass the test of classification under article 14 which leads to violation of secularism by being discriminative and unreasonable.[16]
  • On a recent note, MP Dr. Subramaniya swamy filed a plea to remove the terms secular and socialist from the preamble of the Indian constitution. This questions the integral nature of the society and promotes modern religious view on the state.[17]

The evidences might seem to be very least in numbers, but has a firm place in the history of India, to quote a statement that India is a secular state. This history answers the question of secularism in India and reveals that India remains as an example of a secular state. The predecessors of India held concepts that was inclusive in nature and which was fundamentally built on the concept of equality and humanity.

They passed down these ideas as building them as different schools of thought or as a separate religion namely like Buddhism or Jainism. The formation of new religion or the concept of religious tolerance can be viewed as a product i) of many societal problems that prevailed at that point of time and ii) when humanity was used as a scope to view these problems. Then came the post-colonial era i.e., the independent era where we, the people of India for ourselves built a nation. A nation that would allow the free movement of region and religious ideas through and an inclusive nation.

This concept of equality and inclusiveness was proposed and accepted by framing the constitution to which preamble was used as the fundamental document, even when there emerged many questions on the fundamental structure of our legal construct i.e., the Preamble and on the history of India we find ample of evidences to prove the secular nature and secular history of India. Nayantara Sahgal a Indian writer, in her recent interview stated that "We are unique in the world that we are enriched by so many cultures, religions. Now they want to squash us into one culture. So, it is a dangerous time.

We do not want to lose our richness. We do not want to lose anything . . . all that Islam has brought us, what Christianity has brought us, what Sikhism has brought us. Why should we lose all this? We are not all Hindus but we are all Hindustani."[18] Thus we would like to conclude our paper that India is a secular state and will be a secular state in future.

  1. Domenic Marbaniang ,Secularism in India: A Historical Analysis, Lulu Press, Inc - History ,18th august 2017.
  2. IBID.
  3. Md. Mahtab Alam Rizvi, Secularism In India: Retrospect And Prospects: The Indian Journal of Political Science, Oct.-Dec., 2005, Vol. 66, No. 4 (Oct.-Dec., 2005), pp. 901-914
  5. IBID
  6. Ramesh, Chequered Brilliance: The Many Lives of Krishna Menon
  7. 1975 AIR, S.C 2299
  8. AIR 1974 SC 1389
  9. 1958 AIR 253,1958 SCR 1010
  10. AIR 1973 SC 1461
  11. Writ Petition (Civil) No. 98 OF 2002
  12. 1996 SCC (3) 665, JT 1996 (4) 194
  13. 1994 AIR 1918, 1994 SCC
  14. Aishat Shifa V. The State Of Karnataka & Ors.
  15. Writ Petition (Civil) No. 373 OF 2006
  16. WP (C) 1470/2019
  17. Writ Petition (C) No. 645 of 2022

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