Secularism and Religion Based Politics - Erosion of Constitutional Aims

8/9/2019 Secularism and Religion Based Politics - Erosion of Constitutional Aims

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SECULARISM AND RELIGION BASED POLITICS IN INDIA- EROSION

OF CONSTITUTIONAL AIMS

(Term paper towards partial fulfilment of the assessment in the subject of Constitutional

Governance-I)

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NATIONALLAWUNIVERSITY, JODHPUR

SUMMERSESSION

(JULY-NOVEMBER2014)

ACNOWLEDGEMENTS


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I hereb6 than7 the facult6 of ,ational /aw Universit61 8odhpur1 and especiall6 m6 /e9al

ethods facult61 s &a7an7asha +umar for 9ivin9 me the opportunit6 and the resources

needed to complete this stud6 I also would li7e to e:press m6 9ratitude to the librar6 staff for

helpin9 me whenever needed and also to m6 classmates who 7eep the spirit of competition

alive in me This project has provided me with an ideal opportunit6 to e:press m6self and I

profusel6 than7 all those who have lent a helpin9 hand

;


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RESEARCH METHODOLOGY

SUB8!CT$ Constitutional Governance

T%IC$ Secularism &nd 'eli9ion Based olitics In India- !rosion %f Constitutional

&ims

The method of research opted b6 me to complete this project was doctrinal research from

primar6 and secondar6 sources ajor part of the project has been researched &rticles and

reports available in web databases on the topic b6 scholars on the subject Boo7s and

Commentries on Constitution have also been referred to

2


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TABLE OF CONTENTS

'!S!&'C !T%"%/%G#

T&B/! %. C%,T!,TS

I,T'%"UCTI%,

Secularism in India

0hat Is ,ot Secular$

Seculrism In Constituent &ssembl6 "ebates

'eli9ion Based olitics

Conclusion

Biblio9raph6

Cases$

Boo7s$

&rticles$


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INTRODUCTION

Secularism1 i e the concept of the State bein9 free from all reli9ious influences and =ualities

and is a basic feature of the Indian Constitution as is e:plicitl6 stated in the preamble of the

Constitution after the and it supports the

practise of ever6 form of reli9ion The State treats all reli9ions e=uall61 doesn?t discriminate

on reli9ious 9rounds and there is no State reli9ion This is further 9uaranteed b6 the

fundamental ri9hts in articles ;>-;@ eople are free to not just entertain reli9ious beliefs of

their choice but are also allowed to e:press and profess themA subject to reasonable

restrictions1 in a manner as not to infrin9e the reli9ious ri9hts and personal freedom of others

This can be summed up as to 9et protection under article ;> the =uestion is not whether a

particular practise appeals to our reason or sentiments1 but whether the belief is conscientl6

held as part of the profession or practise of reli9ion31 but then freedom of reli9ion doesn?t

allow a man to commit human sacrifice

;

1 even thou9h some reli9ions sanction human

sacrifice 'eli9ious tolerance is the 9reat tradition of people and the Constitution practices

tolerance which is not to be diluted2The foundin9 fathers of the Constitution had envisa9ed a

nation where the concept of secular state would provide better standards of life for all

sections of the societ6 In the judiciar6 has observed throu9h 'amaswam61 8 that secularism

represets faith borne out of e:ercise of national authorities It enables people to see the

imperative re=uirements of human pro9ress in all aspects and cultural and social

advancement and need for human survival itself It not onl6 improves the material contents of

human life but also liberates human spirit1 futhurance from bonda9e of i9norsnce

suppression1 irrationalit61 injustice1 fraud1 h6procrit6 and oppressive e:ploitation But toda6

3 8amshedji v Soonabhai1 I/' (3D4D) 22 Bom 3;;

; Saifuddin v State of Bomba61 &I' 3D>@ SC ;>>

2 Bijoe !mmanuel v State of +erala1 &I' ;444 SC 3E>4

>


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secularism under the Constitution is fast assumin9 9reat si9nificance in view of current

trend6 rise of reli9ious fundamentalism and the correspondin9 rise of political parties based

on reli9ion or owin9 alle9iance to fundamentalist or9anisations olitical parties in an attempt

to 9et power end up usin9 all the means to meet the end without carin9 if it is in accordance

with the aims of the Constitution or no

E


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SECULARISM IN INDIA

Secularism is a principle which basicall6 has two propositions$

3 The complete separation of state and state affairs from reli9ion and its institutions1

; !=ual treatment of all reli9ions and no discrimination on such 9rounds

%pposed to the ri9id form of secularism practised in the west1 where the state cannot ma7e

an6 law re9ardin9 the church1 in India1 the state distances itself from reli9ion1 and at the same

time ma7es law concerned with the secular aspect of reli9ious practises1 !ach person whatsoever be his reli9ion1 must 9et assurance

from the state that he has the protection of law to freel6 profess practise and propa9ate his

reli9ion and freedom of consciencesE

There was no mention of the word secular in the preamble of the Constitution at the time of

the ma7in9 of the Constitution1 but the foundin9 fathers wanted the nation to be havin9 a

&runa 'o6 v Union of India1 &I' ;44; SC 235EA Ismail .aru=ui v Union of India1 (3DD


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secular nature which is clear from the constituent assembl6 debates and b6 virtue of articles

;>-24 The propositions that emer9e from articles ;>-24 are as follows$

1! T"#$# %& ' &*# $#+%%'as a secular state is founded on the idea that "# &*# is

concerned with the matter of man and man and not man and 9od which is a matter of

individual conscience It does not e:tend its patrona9e to an6 reli9ion or a9ainst an6

reli9ion5The state will not establish a reli9ion of its own@

2! E.*+%/ $#*#' #3##' *++ $#+%%'& This stems from the premise that the

state has no reli9ion of its own The attitude of state shall be one of neutralit6 towards

other reli9ions D

0&TIS,%TS!CU/&'$

Thin9s that are contrar6 to enactin9 provisions of the Constitution cannot be committed in

the name of secularism1 the foremost bein9 article 3-3E which prohibits the discrimination between a citiFen and

another .urther1 in case articles 3D (3) and ;>(3) reli9ious processions can?t be stopped b6

the state34on the 9round that it would offend the sentiments of another communit61 but then

the State can?t allow a reli9ious communit6 to brandish weapons durin9 a reli9ious

procession1 nor can it fail to ta7e action a9ainst the same Similarl61 article ;> 9uarantees the

ri9ht to propa9ate one?s reli9ion1 but then an6 state action which allure or upholds conversion

of people from one reli9ion to another usin9 fraud offends article ;> and so can?t be justified

in the name of secularism The e:penditure of public revenue for promotion of an6 particular

5 S ' Bommai v Union of India1 (3DD


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reli9ion is not justified b6 secularism as it contravenes article;533 0hen a indu husband

converted to Islam and remarried without dissolution of the first marria9e1 then the second

marria9e was declared void and he was stated to have committed the offence of bi9am6 under

section SC 3>23

D


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SECULRISM IN CONSTITUENT ASSEMBLY DEBATES

To understand the wa6 in which the founders of the constitution had visions about a secular

India1 it becomes imperative to loo7 into the constitutional assembl6 debates concernin9

secularism &ll the members a9reed unanimousl6 on the need for Indian to be a secular state

ost of them were of the view that the separtion of reli9ion and state were irrevocabl6 a part

of democratisation of the state But the =uestion was about the 7ind of secular state that

Indian ou9ht to be1 whether it ou9ht to be state secular onl6 when it sta6ed strictl6 awa6 from

reli9ion1 and could such a secular state survive onl6 if societ6 was slowl6 secularised as well

%r did a state that e=uall6 respected all reli9ions best capture the meanin9 of secularism in

the Indian conte:t 32.inall6 the6 after lon9 windin9 sessions of debatin9 decided a9ainst

the view put in b6 S +amath to put in the name of 9od in the reamble and that all

reli9ions e=uall6 respected encapsulates the meanin9 of secularism in the Indian conte:t

The6 were successful in 9ettin9 well defined provisions put into the constitution which are

immensel6 valuable to the safe9uard of freedom of reli9ion Their decisions as to the topic

was so 9ood that it has well stood the test of time1 but then it as an6thin9 else is not perfect1 it

too has become a victim of political misuse1 thou9h the judiciar6 has time and a9ain tried 9et

it to the trac7 that the framers wanted the constitution to envisa9e

32 Shafali 8ha1 Secularism in the Constituent &ssembl6 "ebates1 vol 25(24)1 8 !H0 235>-23@4 (8ul6 ;5-&u9ust ;@1 ;44;)

34


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RELIGION BASED POLITICS

The ma7ers of the Constitution had envisa9ed to ma7e the countr6 a place where all person

would be free to profess practise and propa9ate their reli9ion and receive and 9ive respect for

the reli9ion the6 practise 0hen the6 said that the state and the 9ovt would be separated from

reli9ion1 it was implicit for the political parties as well because it was the political parties that

finall6 represented people and formed the 9ovt after the6 elected But toda61 political lines

are often bein9 drawn alon9 caste lines 0hen the6 made clauses that the state would not be

promotin9 an6 particular reli9ion the6 would not have ima9ined a situation1 when political

parties whom the people vote to power to 9overn them would use reli9ion as a tool to e:plore

the vote ban7 where the political parties as7 for vote in the name of reli9ion(ille9al under

section 3;> of 'epresentation of eople?s &ct)1 9ive incentive1 li7e reservations and

bac7ward communit6 status particular sects or cast with an intention to secure more votes for

the part61 which are in actualit6 meant for the upbrin9in9 of the bac7ward sections of the

societ6 .urther1 political parties1 who are the authorit6 for formin9 the 9ovt after the6 have

been elected to power1 lettin9 themselves be associated with conflict between reli9ions or

castes1 deepenin9 the conflict and creatin9 enemit6 and hatred between 9roups so much as to

create riots and tensions in the name of reli9ion1 act a99ressivel6 in a wa6 as supportin9 one

of the conflictin9 reli9ions1 as in the conte:t of Babri asjid demolition1 were not ideas that

the Constitution ma7ers had when the6 were liberalisin9 the idea of secularism to fit into the

Indian conte:t The Babri asjid demolition and the turn of events in relation was one hu9e

blow to secularism1 the most pathetic part of it bein9 that the it happened with Supreme Court

onl6 able to stand as mute spectators 3


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a state 9ovt indul9es in this1 it is a fit case for application of &rticle 2>E and it is in this sense

that secularism is to be re9arded as a basic feature of the Constitution35

It can be ver6 well understood that the cause of both will be ruined if one is used for the

purpose of the other Secularism be a basic feature of the Constitution would be impaired if

freedom of reli9ion is subverted to achieve political purposes ore importantl61 it declared

the state 9overnment mi:in9 up reli9ion with politics as anti secular and hence militates

a9ainst the basic structure of the Constitution The court did not sa6 that the state could not

outlaw a political part6 on the 9rounds of mi:in9 reli9ion with politics was because a

political part6 is an association with the protection of article 3D(3) (c) whose inte9rit6 could

not be demolished e:cept on 9rounds specified in article 3D(


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anti secular b6 virtue of article 3D (3) (c) on the 9round that the6 are an association is the

most important one amon9 them

3


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CONCLUSION

India is a land of diversit6 There are in total @ reli9ions that are practised in India and there

are innumerable castes and sub castes in these %ur Constitution ma7ers had envisa9ed a land

were ever6one colud live with di9nit6 irrespective of the reli9ion1 caste1 creed or class 0ith

repesct to achievin9 this 9oal the6 made the Constitution a secular one b6 9uaranteein9 the

ri9ht to reli9ion /ater this was made e:plicit b6 the addition of the word secular in the

preamble throu9h the


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BIBLIOGRAPHY

C&S!S$

3 S' Bommai v Union of India1 &I' 3DD< SC 3D3@; ohd &hmed +han v Shah Bano Be9um1 &I' 3D@> SC D

2 8amshedji v Soonabhai1 I/' (3D4D) 22 Bom 3;;

4

E &runa 'o6 v Union of India1 &I' ;44; SC 235EA Ismail .aru=ui v Union of India1

(3DD


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; Ban9ladesh Ban %n 'eli9ion-Based olitics$ 'evivin9 The Secular Character %f The

Constitution1 &rshi Saleem ashmi

0eblin7s$

3 www*'.5*$*fastcom

; wwwjstoror9

2 wwwwi7epediacom

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Secularism and Religion Based Politics - Erosion of Constitutional Aims

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