Law, Religion and State


INTER-RELATIONSHIP BETWEEN STATE AND RELIGION IN INDIA

I. BASIC CONCEPTION

A. Secular State

Secular state is the state which guarantees the individual and corporate frame of religion. It deals with the individual as a citizen irrespective of his or her religion. It is also not constitutionally connected with any particular religion nor does it seek to promote interfere with religion.

It will be seen that the conception of secular state involves three distinct features, but related as a set of relationship concerning with state, religion and individual.

The three sets of relationship are:

  1. Individual and Religion (Freedom of Religion)
  2. State and Individual (Citizenship)
  3. State and Religion (Separation of State and Religion)

There many types of secular state in this present. They have their own characteristics as secular state. Some of them are in the following.

  1. Russia: In this country, besides abstaining from supporting and favouring any religion, the state also actively favors and encourage for anti-religious belief. There is no freedom of prorogate religion.
  2. United State of America: U.S. Constitution guarantees not only for ‘free exercise’ of religion, but also enjoins Congress not to make any law establish the religion. For example in Everson v. Board of Education (1947).
  3. Canada: Section 2(a) of the Charter of Rights, guarantees to everyone of ‘fundamental freedom’ of freedom of conscience and relgion.
  4. French: Separation of religion in this country can be clearly seen. There is a prohibition to using or showing any religious symbols in public or educational institution.

B. Secularism

Oxford dictionary defines secularism as morality which should be based in the ground of the well being of mankind in the present life to the exclusion from all consideration drawn in the belief of God and future study.

The concept of ‘secular state’ is different from ‘secularism’ which does not refer to relationship between state and religion.

C. Religion

Religion can be defined as a particular system of faith or worship of super-natural force with ordinance, regulates and controls the destinies of human kind. In Commissioner of Hindu Religious Endowment, Madrash v. Sri Laksmi Swamiar, the Court defined religious as reference to one’s view of his belief to the Creator and to the obligation they imposed for reverence for this being and character and obedience to this will.

II. SECULARISM IN INDIA

A. Evolution

The movement of secularism began in Western Europe in 19th century. Initially, it started with the ideas breaking away from religion. Secularism entered Indian Politics for the first time in the later half of the 19th century when English educated people belonging to different religious community established The Indian National Congress.

The Congress on its session in Karachi in 1931 passed a resolution that the state should observes neutrality in regard to all religion. Constitution makers avoided the word of “secular”. Prof. K.T. Shah made two attempts to introduce the word by suggesting and an amendment. But on both occasion failed because the opposition from Dr. Ambedkar.

Perhaps Dr. Ambedkar felt that the use of the expression “liberty of faith, religion, belief or worship and equality of status and opportunity” in the Preamble and provisions of fundamental right are simply stated that Indian is a Secular State. However, 42nd amendment of the Constitution added the word “secular” into the Preamble of Constitution for further clarification.

B. Essence of Indian Secularism

Dr. Radhakirshna explains that secularism doesn’t mean irreligious. It means they respect all faith and religion. Secular state does not identified itself with any particular religion. In Indian context society, Dr. Henry Austin says that secularism means tolerance, generosity and understanding of majority community.

Indian Constitution has a standard as a secular state. India has not any official religion. Secularism pervades its provision which opportunity for all persons to profess, practice and propagate any religion of their belief.

Constitution not only guarantees the person’s freedom of religion and conscience, but also ensures freedom of person who has not a religion. Secularism is a basic feature in Indian Constitution. It was held in Kasvananda v. State of Kerala, 1973 and S.R. Bommai v. Union of India, 1994. The Court further held that religion cannot be mixed with the secular activity of state.

C. Related Provisions

1. Constitutional Provisions

Constitution of India definitely guarantee for all citizens in respect of freedom of religion and its practice. We can found those articles in Article 25 to Article 28 and Article 30.

  • Article 25: It guarantees freedom of conscience and the right, freely to profess, practice and propagate religion.
  • Article 26: It guarantees to manage religious affairs. Without this article, it means article 25 would be an empty one.
  • Article 27: In order to ensure the secular character of the state and to proclaim that state has no religion of its own.
  • Article 28: It provides that “no religious instruction shall be provided in any educational institution wholly maintained out of state funds”.
  • Article 30: It conferred right on all minorities religion or linguistic, to establish and administer educational institutions of their choice.

2. Indian Penal Code (IPC) Provisions.

Besides the Constitution, IPC also provides protection to religion, in the following:

  • Section 295: Protect the religion of a class of classes.
  • Section 296: Protect religious worship that takes place in an assembly from very kind of disturbance.
  • Section 297: Provides penal sanction against the trespass in any place of worship.
  • Section 298: Provides punishment for any utterances, gestures, etc. with the intention of wondering religious feelings.

3. Election Law

In election law, the use of religion in election constitutes a corrupt practice and entails penal consequences. Section 123(3) and 123(3A) provides that the Government should not act on religious basis. Religion should not be influenced through electrons.

D. Landmark Cases

  • Manohar Joshi’s case: Justice J.S. Verma gave controversial meaning to the term of “Hindutava” by stating that it means “a way of life” and pertaining to any specific religion.
  • Swamiar’s case: This was the first case before Supreme Court in which Art. 24 and Art 26 where relied on for invalidating the provision of state legislation.
  • Saifuddin’s case: The court stated that the main principles of Art. 25 and 26 is not limited to matters of doctrine or belief, they extend also to acts done in pursuance of religion.
  • Devaru’s case: The court observed that matters of religion in Art. 26(b) includes even practice which is regarded by the community as a part of its religion.

III. CONCLUSION

A secularism contemplated by framer of Indian Constitution was the product of Indian’s own social experience and genius. They did not contemplated state hostile to religion. The role of state in the religion is to eliminate social injustice and oppression and replacing social backwardness, superstition and cruelty by a rational enlightened liberation.

The true difficulty of the “Swamiar-Devaru-Saifuddin” case chain of decisions seems to have been the failure on the part of the Court to appreciate the relationship between the rights in Art. 25 and Art. 26 respectively.

The approach of judiciary was not appreciable and they did not catch the spirit of Constitution. From Swamiar decision to Hindutuva decision, the court seems to be confused in recognizing the true aspect of secularism.

But this picture itself is not evident for the conclusions. The Court also, with passage of time, gradually resides the past and inducted the ideal of secular state of the founding fathers of the Constitution in some recent judgements.

***

References:

  • Derrett, J.D.M. “Religion Law and the State in India”. Ch. 13 (1968).
  • D.A. Desai. “Relevance of Secularism Today”. 14 Indian Bar Review 333 (1987).
  • John. H. Mansfled. “Religious Speech under Indian Law” in M.P. Sing (ed) Comparative Constitutional Law.
  • Blackshield, A.R. “Secularism and Social Control in the West. The Material and Ethereal” in G.S. Sharma (ed), Secularsm, Its Implications for Law & Life in India 3 (1966).
  • Tripathi P.K. “Secularism Constitutional Provision and Judicial Review” in G.S. Sharma (ed) Secularism, Its Implication for Law & Life in India 165 (1966).
  • etc.

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