CONTENTS

1. Introduction Page 2
2. Religion and Secularism in India Page 4
3. Freedom of Religion in India Page 6
4. What is Religion Page 8
5. Religious Freedom Subject to the Rights of Others Page 13
6. Sanskrit Language not Anti-Secular Page 15
7. Jehovah's Witnesses Page 16
8. Regulation of Secular Activities [Article 25 (2) (a)] Page 18
9. National Education Policy 2002 Page 20
10.Freedom from taxes for the promotion of any religion Page 23
11.Changing Perception of Secularism Page 25
12.Conclusion Page 30
13.Bibliography Page 31

1
 Introduction

India is a pluralistic society and a country of religions. It is inhabited by people of

many religions. The framers of the Constitution thus desired to introduce the concept
of secularism, meaning state neutrality in matters of religion. They also wanted to
confer religious freedom on various religious groups. Religion has been a very
volatile subject in India both before and after independence. The Constitution
therefore, seeks to ensure state neutrality in this area.

Religious tolerance and equal treatment of all religious groups are essential parts of
secularism. Secularism in India does not mean irreligion. It means respect for all
faiths and religions. The State does not identify itself with any particular religion. 1
India being a secular state, there is no state or preferred religion as such and all
religious groups enjoy the same constitutional protection without any favour or
discrimination.2

The term "secularism" was first used by the British writer George Holyoake in
1851.Although the term was new, the general notions of freethought on which it was
based had existed throughout history. In particular, early secular ideas involving the
separation of philosophy and religion can be traced back to Ibn Rushd (Averroes)
(1126-1198) and the Averroism school of philosophy. Holyoake invented the term
"secularism" to describe his views of promoting a social order separate from religion,
without actively dismissing or criticizing religious belief. An agnostic himself,
Holyoake argued that "Secularism is not an argument against Christianity, it is one
independent of it. It does not question the pretensions of Christianity; it advances
others. Secularism does not say there is no light or guidance elsewhere, but maintains
that there is light and guidance in secular truth, whose conditions and sanctions exist
independently, and act forever. Secular knowledge is manifestly that kind of
knowledge which is founded in this life, which relates to the conduct of this life,
conduces to the welfare of this life, and is capable of being tested by the experience
of this life."

The concept of secularism was not expressly incorporated in the Constitution at the
stage of beginning. However, its operation was visible in the Fundamental Rights and
Directive Principles. The concept of Secularism, though not expressly stated in the
Constitution, was, nevertheless, deeply embedded in the Constitutional philosophy. In
1976, through the 42nd Amendment of the Constitution, the concept of secularism was
made explicit by amending the Preamble.The word "secular" was added along with
the word "socialist". But the Preamble from inception expresses the resolve to
guarantee to all citizens "liberty of thought, expression, belief, faith and worship".
Hence, the forty-second Amendment Act by adding the word "secular", merely makes
1 Dr. Radhakrishnan in 'Secularism in India (ed. V.K.Sinha) 127 (1968)
2 Supra, Chapter 1.

2
explicit what was implicit and embedded in the Constitutional philosophy. Secularism
is a basic constitutional goal and is a part of the Basic Structure of the Indian
Constitution.3

The Constitution does not define the term "secular" as it is a very elastic term and not
capable of any precise definition and so it is best left undefined. 4 The term
"secularism" has several shades of meaning. A secular State means, first of all, that
there is no official religion. Here, "secular State" is in contradiction to "theocratic
State", which professes official support to a given religion. A secular State may
actively promote non-religiosity or it may treat all prevailing religions with equal
respect. Indian Constitution has not envisaged secularism as equivalent to promoting
non-religiosity and has confined Article 28(1) to institutions wholly maintained out of
State funds. It has proclaimed respect for all religions(Sarva Dharma Sambhav) as
representing its secular credentials. "Secularism, therefore, is susceptible to a positive
meaning that is, developing understandingand respect towards different relligions.
The essence of secularism is non discrimination of people on the basis of religious
differences."5

A secular state does not extend patronage to any particular religion. The State is
neither pro any particular religion nor anti any religion. The State maintains
neutrality in matters of religion and provides equal protection to all religions
subject to regulation of secular parts.

The State guarantees to individual and corporates religious freedom. It deals with an
individual as a citizen irrespective of his faith or religious belief. The State neither
promotes nor prefers any one specific religion. For successful functioning of the
democratic system, the concept of secular State is very essential. There can be no
democracy if anti secular forces are allowed to have play as they will divide
followers of different religious faiths who will then be fighting with each other.
Therefore, the Constitution leaves the purely religious matters to the individual and
permits the State to take charge of the secular matters.

In the recent case of National Human Rights Commission v. State of Gujarat and
others6, Justice Pasayat, Justice Santhasivam and Justice Aftab Alam, in their erudite
judgement held, "Communal harmony is the hallmark of a democracy. No religion
teaches hatred. If in the name of religion people are killed that is essentially a slur
and blot on the society governed by rule of law. The Constitution of India in its
preamble refers to Secularism. Religious fanatics really do not belong to any
religion. They are no better than terrorists who kill innocent people for no reason, in
a society which, as noted above, is governed by rule of law."
3 S.R. Bomnai v. Union of India, AIR 1994 SC 1918
4 'Indian Constitutional Law', M.P. Jain, 6th Edition, Lexis Nexis Butterworth Wadhwa Publishers, Nagpur.
5 Aruna Roy v. Union of India, (2002) 7 SCC 368, para 86 (Dharmadhikari , J.)
6 (2009) 6 SCC 342.

3
 Religion and Secularism in India

The above version of secularism has deep roots in Indian history. India is a land of
many religions. Out of 8 major religions – Hinduism, Budhism, Islam, Sikhism,
Jainism, Christianity. Judaism and Zoroastrianism, 4 have originated in India. Some
of the earliest churches of Christianity and Synagogues are in India. Followers of
Islam constitute 11.4% of the population. Zoroastrians who had to flee from Persia in
the 8th Century found shelter in India. The more recent Bahai faith has its largest
population in India. The tradtition of respect for all faiths has thus a long history.
Hinduism, the religion of the majority has no single organized or structured priestly
order. Not being a proselytising, it has nurtured this tradition.

In contrast, the concept of secularism emerged in Europe by the 16 th Century out of a

continuous struggle between the Church and the State for temporal supermacy. The
American colonists who fled UK to escape religious persecution were also acutely
aware of religious intolerance. Nevertheless not all who fled were tolerant of other
Chruches or beliefs. The First amendment to the United State's Constitution therefore
was found necessary in order to provide that the "Congress shall make no law
respecting an establishment of religion or prohibiting the free exercise thereof; or
abridging the freedom of speech, or of the press......". The Fourteenth amendment
covered the States as well.

Secularism in India is not just a negation of a State religion. It means that a citizen
has a positive right to profess, practice or propogate the religion of his choice or to
have no religion if he or she so chooses (Article 25 to 28). It also means that there
will be no discrimination between citizen and citizen on the ground of religion
(Article 14, 15 and 16). It means freedom of speech and expression for all citizen
(Article 19). Therefore, a study of different religions and their philosophy is
permissible though imparting religious instructions in a State-funded institutions is
not.7

There are two interesting Articles in Chapter IV of the Constitution which have a
bearing on secular character of the Indian polity. Article 44 enjoins a uniform civil
code for all in order to provide equality before the law and equal protection of the
laws to all citizens as against personal laws conferring diverse rights on different
religous groups. Article 25 expressly permits the State to regulate secular activities
associated with religious practice as also to provide for social welfare and reform,
thus making it possible to modernize family laws or to reform them or unify them. 8
Article 48 is another interesting article. It places any steops taken by the State for
prohibition of slaughter of cows and calfs and other milch and draught cattle in the
scientific context of preserving and improving breeds and organizing agriculture and
7 Aruna Roy v. Union of India, (2002) 7 SCC 368.
8 Javed c. State of Haryana, (2003) 8 SCC 369; John vallamattom v. Union of India, (2003) 6 SCC 611.

4
animal husbandry on modern and scientific lines.

Explaining the secular character of Indian Constitution the Supreme Court has said,
"There is no misticism in the secular character of the State. Secularism is neither anti-
God nor pro-God, it treats alike the devout, the antagonistc and athiest. It eliminates
God from the matters of State and ensures that no one shall be discriminated against
on the grounds of religion.9 The State can have no religion of its own. It should treat
all religions equally. The State must extent similar treatment to the Church the
Mosque and the Temple. In a secular state, the State is only concerned with the
relation between man and man. It is not concerned with the relation of man with God.
It is left to the individual conscience. Every man should be allowed to go to Heaven
in his own way. Worshipping God should be according to dictates of one's own
conscience.10 Man is not answerable to the State for variety of his religious views." 11
The right of worship was granted by God for man to workship as he pleased. There
can be no compulsion of any creed or practice of any form of worship.12

9 Saint Xaviers College v. State of Gujrat, AIR 1974 SC 1389 @ 1414

10 Downes v. Bidwell (1901) 182 US 244
11 United States v. Ballard, (1944) 322 US 78.
12 Cantwall v.Connecticut, (1931) 310 US 295.

5
 Freedom of Religion in India

Article 25(1) of the Indian Constitution guarantees to every person, not only to the
citizens of India, the "freedom of conscience" and "the right to freely profess, practice
and propogate religion". This, however, is subject to public order, health, morality,
and other provisions relating to Fundamental Rights. Article 25 is reproduced below:
25. Freedom of conscience and free profession, practice and propagation of
religion.--
(1) Subject to public order, morality and health and to the other provisions of
this Part, all persons are equally entitled to freedom of conscience and the right
freely to profess, practise and propagate religion.
(2) Nothing in this article shall affect the operation of any existing law or
prevent the State from making any law-
(a) regulating or restricting any economic, financial, political or other secular
activity which may be associated with religious practice;
(b) providing for social welfare and reform or the throwing open of Hindu
religious institutions of a public character to all classes and sections of Hindus.
Explanation I- The wearing and carrying of kirpans shall be deemed to be
included in the profession of the Sikh religion.
Explanation II- In sub clause (b) of clause (2), reference to Hindus shall be
construed as including a reference to persons professing the Sikh, Jaina or
Buddhist religion, and the reference to Hindu religious institutions shall be
construed accordingly.

It will thus be seen that the rights conferred on persons and religious denominations
by Article 25 are not absolute. Their exercise is subject to public order, morality and
health and to other provisions relating to Fundamental Rights. Article 26 further deals
with the right to freedom of religion:
26. Freedom to manage religious affairs- Subject to public order, morality and
health, every religious denomination or any section thereof shall have the
right--
(a) to establish and maintain institutions for religious and charitable purposes;
(b) to manage its own affairs in matters of religion;
(c) to own and acquire movable and immovable property; and
(d) to administer such property in accordance with law.

There was a long standing dispute between two Muslim sects- Shia and Sunnis. The
Sunnis had two graves on Shia property and disputes arose frequently between the
two sects as to the performance of religious rites, practices and observances leading
to law and order problems. Accordingly, the Supreme Court ordered shifting of the
graves to some other place as it was in the larger public interest and for maintainig

6
public order. Religious freedom is subject to public order. The proposal does not
destroy any of the fundamental rights of the Sunnis. 13 The Court reiterated later14 that
it had ample powers to direct the shifting of any graves in the larger public interest
and no bar to such shifting could be spelt out legally, constitutionally, or in the name
of religion. However, the Court suspended its order to shift the graves for 10 years,
and put an alternative scheme in practice as an experimental measure.

H.M. Seervai validly raises a question15: "It may be asked-Why elevate Religious
freedom to a fundamental right? Why not leave it to ordinary law? In my view, the
Constitution has wisely raised the freedom of conscience and religion to the level of a
fundamental right. For, after Hitler's rule and Hitler's war, it was found necessary to
do so. The Universal Declaration of Human Rights and the European Convention of
Human Rights and Freedoms ave treated freedom of religion as a basic human
freedom......Finally, the freedom of religion guaranteed by our Constitution is part of
a scheme which embodies valuable human rights, broadly called civil liberties,
conferred by Articles 14,17,19 to 22, 23, 25 to 28, 29-30, free and fair elections, and
an independent Supreme Court and High Court judiciary. So when we speak of
freedom of religion and social reform, we are not talking merely of law and legality,
but we are talking of morality and civil liberties as well, because they are at the heart
of the Constitution."

13 Gulam Abbbas v. State of Uttar Pradesh, AIR 1983 SC 1268: (1984) 1 SCC 81.
14 Gulam Abbbas v. State of Uttar Pradesh, AIR 1986 SC 1017: 1986 Supp SCC 487.
15 'Constitutional Law of India', H.M. Seervai, 4th Edition, Volume II, pp.1271-1272.

7
  What is Religion?

The term "Religion" has not been defined in the Constitution, and it is a term which
is not susceptible of any precise definition. The Supreme Court has, however, given
the term an expansive content through broad interpretation.

The Supreme Court has observed in The Commissioner, Hindu Religious

Endowments, Madras v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt. 16,
"Religion is certainly a matter of faith with individuals or communities and it is not
necessarily theistic. There are well known religions in India like Buddhism and
Jainism which do not believe in God or in any Intelligent First Cause. A religion
undoubtedly has its basis in a system of beliefs or doctrines which are regarded by
those who profess that religion as conducive to their spiritual well being, but it would
not be correct to say that religion is nothing else but a doctrine of belief. A religion
may not only lay down a code of ethical rules for its followers to accept, it might
prescribe rituals and observances, ceremonies and modes of worship which are
regarded as integral parts of religion, and these forms and observances might extend
even to matters of food and dress. "

Mukherjea J. observed, "...what constitutes the essential part of a religion is

primarily to be ascertained with reference to the doctrines of that religion itself. If the
tenets of any religious sect of the Hindus prescribe that offerings of food should be
given to the idol at particular hours of the day, that periodical ceremonies should be
performed in a certain way at certain periods of the year or that there should be
daily recital of sacred texts or oblations to the sacred fire, all these would be
regarded as parts of religion and the mere fact that they involve expenditure of money
or employment of priests and servants or the use of marketable commodities would
not make them secular activities partaking of a commercial or economic character;
all of them are religious practices and should be regarded as matters of religion
within the meaning of article 26 (b).17" The Supreme Court reaffirmed this view in
the later case of Sri Venkataramana Devaru v. State of Mysore18.

The guarantee under Article 25, subject to the exceptions mentioned, confers a
fundamental right on every person not merely--
i. to entertain such religious beliefs as are allowed to him by his judgement or
conscience, but also
ii. to exibit his beliefs and ideas in such overt or outward acts and practices as are
sanctioned or enjoyed by his religion, and further
iii. to propogate or disseminate his religious beliefs, ideas and views for the
benefit of and edification of others.
16 AIR 1954 SC 282.
17 The Commissioner, Hindu Religious Endowments, Madras v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt,
AIR 1954 SC 282.
18 AIR 1958 SC 255.

8
As the Supreme Court has observed 19, "Religion is the belief which binds spiritual
nature of men to supernatural being. It includes worship, belief, faith, devotion, etc.
And extends to rituals. Religious right is the right of a person believing in a particular
faith to practice it, preach it and profess it."

Explaining the scope of Article 25, the Supreme Court has observed in Sri
Lakshamana Yatendrulu v. State of Andhra Pradesh20:
"Article 25, as its language amplifies, assures to every person subject to public order,
health and morality, freedom not only to ascertain his religious belifs, as may be
approved of by his judgement and conscience, but also to exibit his belief in such
outwardly acts as he thinks proper and to propogate or disseminate his ideas for the
edification of others."

As has been recently stated by the Supreme Court, "...the protection under articles 25
and 26 extends a guarantee for rituals and observances, ceremonies and modes of
worship which are integral parts of religion and as to what really constitutes an
essential part of religion or religious practice has to be decided by the corts with
reference to the doctrine of a particular religion or practices regarded as a part of
religion.21"

In order, however, that a practice should be treated as a paprt of religion, it is

necessary that it be regarded by the said religion as its essential and integral part. This
caution is necessary otherwise even purely secular practices, not essential to religion,
will be cloathed with religious sanction and may claim to be treated as religious
practices within the meaning of Article 25. It means that purely secular practices
which may not be an essential and integral part of a religion, are not protected and
can be abrogated by legislation subject to other Fundamental Rights.

Certain practices, even though regarded as religious, may have sprung from merely
superstitious beliefs and may, in that sense, be only extraneous and unessential
accretions to religion itself. Such practices are also not to be protected and can be
abrogated. Therefore, the norm that only such practices, as are essential and integral
part of a religion need to be protected. It, therefore, falls upon the courts to decide, on
the basis of evidence adduced before them concerning the conscience of the
community, and the tenets of the religion concerned, whether a practice for which
protection is climed is "religious in character", and if so, whether it is an essential and

19 P.M.A. Metropolitan v. Moran Mar Marthoma, AIR 1995 SC 2001,2026.

20 AIR 1996 SC 1414, 1421-1427.
21 N. Adithyan v. Travancore Devaswom Board, (2002) 8 SCC 106.

9
integral part of the said religion, or is merely 'secular' or 'superstitious' in nature. 22The
judicial role in this area has been described by the Supreme Court as follows:
"The Court, therefore, while interpreting Articles 25 and 26 strikes a careful balance
between the freedom of the individual or the group in regard to religion, matters of
religion, religious belief, faith or worship, religious practice or custom which are
essential and integral part and those which are not essential and integral and the
need for the State to regulate or control in the interest of the community.23"
As early as 1963, the Supreme Court observed in this connection in Tilkayat Shri
Govindlalji Maharaj v. State of Rajasthan24:
"In deciding the question as to whether a given religious practice is an integral part
of the religion or not, the test always would be whether it is regarded as such by the
community following the religion or not....This question will always have to be
decided by the Court and in doing so, the Court may have to enquire whether the
practice in question is religious in character and if it is, whether it can be regarded
as an integral or essential part of the religion, and the finding of the Court on such
an issue will always depend upon the evidence adduced before it as to the conscience
of the community and the tenets of its religion."

Non-Brahmins can be appointed as Pujari in temple: In a judgement of far

reaching consequence- N. Adithyan v. Travancore Devaswom Board25, the Supreme
Court has said that Brahmins do not have monopoly over performing Puja in a temple
and said that a non-Brahmin can be appointed as a pujari if he is properly trained and
well versed with rituals. This ruling was given by a bench comprising Justice S.
Rajendra Babu and Justice Doraiswamy Raju, while upholding the appointment of a
non-Brahmin as a pujari in Kongoopilly Neerikoda Siva Temple, at Alangad Village
in Ernakulum, Kerala. In this case, the petitioner, the Chief Priest in the Ancient and
renowed Hindu Temple at Thirumala Thirupathi, called Balaji Temple in North India,
had challenged the validity of the Andhra Pradesh Charitable and Hindu Religious
and Endowments Act abolishing hereditary rights of archaka and other office holders
on the ground that it violates his right to freedom of religion under Articles 25 and 26
of the Constitution. It was contended that abolition of hereditary rights created by the
founders in rendering services to the temple by archaka etc. in charitable and
religious institutions and endowments interfered with religious practices and customs
which were essential parts of religion.The Court held that the Act is not violative of
of Articles 25 and 26 of the Constitution and is valid.
Justice Raju said, " It therefore goes without saying, that what is required and
expected of one to perform the rituals and conduct pujas is to know the rituals to be
22 The Commissioner, Hindu Religious Endowments, Madras v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt,
AIR 1954 SC 282.
23 A.S. Narayana Deekshitulu v. State of Andhra Pradesh and Others, AIR 1996 SC 1765, 1792.
24 AIR 1963 SC 1638.
25 (2002) 8 SCC 106.

10
performed and mantras, as necessary to be recited for a particular deity."

The Court said that if traditionally or conventionally in any temple, all along a
Brahmin alone was conducting puja or performing the job of Santikaran (pujari), it
might not be because a person other than Brahmin was prohibited from doing so
because he was not a Brahmin. It might be bacause others were not in a position, and
as a matter of fact, were prohibited from learning rituals or mastering vedic literature,
rites or performance of rituals, and wearing sacred thread by getting initiated into the
order. So, there is no justification in insisting that a Brahmin or Malayali Brahmin in
this case, alone can perform rites and rituals in the temple as a part of the rights and
freeodoms guaranteed under Art. 25 of the Constitution of India.

After delving deep into the Hindu religious literature, the Supreme Court has ruled in
T.V. Narayana v. Venkat Subbamma26, that while performance of religious service
according to the tenets, customs and usages in a temple is an integral part of the
religious faith and belief, the person who performs the service is another matter. The
system of hereditary archakas is not an essential and interal part of the Hindu
religion. Therefore, appointment of an archaka being a secular act, the legislature can
abolish the hereditary right to appointment as an archaka and such a law is not
violative of Articles 25(1) and 26(b). Merely because after appointment the archaka
performs worship cannot be a ground for holding that his appointment is a religious
practice.
Cow Sacrifice has been held to be not an obligatory overt act for a Muslim to exibit
his religious beliefs and ideas on Bakr Id day in the case of Mohd. Hanif Quareshi v.
State of Bihar27. According to the Hedaya, it is optional for a Muslim to sacrifice a
goat and that for seven goats a cow or a camel. " The very fact of an option seems to
run counter to the notion of obligation or duty." 28 This ruling hass been reiterated by
the Supreme Court in State of West Bengal v. Ashutosh Lahiri29. There is no
Fundamental Right of a Muslim to insist on slaughter of a healthy cow on Bakr Id
day. The Court has observed, "slaughtering of healthy cows on Bakr Id is not
essential or required for religious purpose of Muslims or in other words it is not a part
of religious requirement for a Muslim that a cow must be necessarily sacrificed for
earning religious merit on Bakri Id day."

The Representation of People Act, 1951, makes it a corrupt practice to seek votes in
the name of religion. This provision has been held to be not inconsistent with Art. 25.
The Supreme Court has stated that Article 25 does not extend to creating hatred

26 AIR 1996 SC 1765, at at pp. 1799-1801.

27 AIR 1958 SC 731.
28 Ibid.,740.
29 AIR 1995 SC 464, at pp. 468-69.

11
amongst groups of people practising different religions. The Act in question only
puports to curb the appeal forvotes on the ground of religion or propogating a religion
for creating feelings of enmity or hatred between different classes of citizens of India
during the election campaign.30

30 Subhash Desai v. Sharad J. Rao, AIR 1994 SC 2277,2284.

12
  Religious Freedom Subject to the Rights of Others

Though every person has a right to profess any religious belief, he must do so in a
manner that does not infringe the religious rights and personal freedoms of others.31
Protection under Articles 25 and 26 is also available to those profesing the faith of the
majority, namely, Hindus.32In Acharya Maharajshri Narendra Prasadji Anand
Prasadji Maharaj v. State of Gujarat,33 the Supreme Court observed that, " no rights
in an organised society can be absolute. Enjoyment of one's rights must be consistent
with the enjoyment of rights also by others. Where in a free play of social forces, it is
not possible to bring about a voluntary harmony, the state has to help in to set right
the imbalance between competing interests." The Court has further observed that " a
particular Fundamental Right cannot exist in isolation in a water tight compartment.
One Fundamental Right of a person may have to co-exist in harmony with the
exercise of another fundamental right by others also with reasonable and valid
exercise of powerss by the State in the light of the Directive Principles in the interests
of social welfare as a whole."
This judicial approach has manifested itself in some cases. According to the Supreme
Court in Rev. Stainislaus v. State of Madhya Pradesh34 [referring to the word
'propogate' in Art. 25(1)], what Article 25(1) grants "is not the right to convert
another person to 'one's own religion' but to transmit or spread one's religion by an
exposition of its tenets." Article 25(1) guarantees "freedom of conscience" to every
citizen and not to the followers of any particular religion. That means that there is no
Fundamental Right to convert another person to one's own religion because if a
person purposefully undertakes to convert another person to his religion, as
distinguished from his effort to transmit or spread tenets of his religion, that would
impinge on the " freedom of conscience" guaranteed to all citizens in a country alike.
It can properly be enjoyed by a person if he exercises his right in a manner
commensurate with thelike freedom for others following other religions. " What is
freedom for one, is freedom for others, in equal measure, and there can therefore, be
no such thing as a fundamental right to convert people to one's own religion." The
Court laid down these principles while examining the constitutionality of the Orissa
Freedom of Religion Act, 1967 and Madhya Pradesh Dharam Swatantraya
Adhiniyam, 1968. These Acts prohibited forcible conversion and provided
punishment therefor. The Court pointed out that these Acts did not provide for the
regulation of religion, but provided for avoidance of disturbance to the public order
by prohibiting conversion from one religion to another in a manner reprehensible to
31 Lily Thomas v. Union of India, (2000) 6 SCC 224, affirming Sarla Mudgal v. Union of India, (1995) 3 SCC 635
where it was held that the seecond marriage of a Hindu man after converting to Islam, without divorcing his first
wife was void. The husband was guilty of bigamy. This decision, it was held, did not result, in the deprivation of the
Right to Freedom of Religion.
32 Pannalal Bansilal Pitti v. State of Andhra Pradesh, (1996) 2 SCC 498.
33 AIR 1974 SC 2098.
34 AIR 1977 SC 908.

13
the conscience of the community. Thus, the Supreme Court upheld as valid under
Article 25(1) the Acts prohibiting the conversion of a person by force, fraud or
allurement.

14
  Sanskrit Language not Anti-Secular

In a landmark judgement in Santosh Kumar v. Secretary, Ministry of Human

Resources Development35, the Supreme Court has held that the introduction of
Sanskrit language as a subject in the CBSE is not against Secularism as it is the
"mother of all Aryan languages". The Court directed the CBSE to make necessary
amendments in the syllabus within 3 months to make Sanskrit an elective subject for
nurturing our cultural heritage.

The two judge bench of the Court comprising Kuldip Singh and B.L. Hansaria, JJ.,
rejected the government's contention that "by conceding to Sanskrit alone as an
elective subject, it would act against secularism." It also rejected the argument that if
Sanskrit was introduced then Arabic and Persian would also have to be given similar
status. The Court said that without learning Sanskrit language it is not possible to
"decipher" Indian Philosophy, culture and heritage. All the classics of Hindu religion
such as Vedas, Puranas and Upanishads are written in Sanskrit. The teachings of
Shankracharya, Ramanuja, Madhawacharya, etc would not have been possible
without this language. This is the historical relevance of the ancient language.

The Court said that, "State tolerance of religion does not make it either a religious or
a theocratic State. Secularism represents faith born out of the rational faculties and it
enables to see the imperative requirements for human progress in all aspects.
Secularism is neither ante- God nor pro-God, as it treats alike the devout, the
agnostic and the atheist."

35 AIR 1995 SC 293.

15
  Jehovah's Witnesses

In 1986, a two judge bench of the Supreme Court of India ruled in Bijoe Emmanuel
v. State of Kerala (National Anthem Case)36, that Jehovah's Witnesses constitute a
religious denomination. Compelling a student belonging to Jehovah's witnesses to
join in the singing of the National Anthem despite his "genuine, conscientious
religious objection", would contravene the rights guaranteed by Articles 19(1) (a) and
25(1). In the instant case, 3 children belonging to the Jehovah`s witnesses of the
christian community were expelled from the school from refusing to sing the
National Anthem. They challenged the validity of their expulsion on the ground that
it wasviolative of their right to freedom of religion under Article 25(1). A circular
issued by the Directorate of Public Instructions had made it compulsary for all
children in schools to sing the national anthem, but they refused to sing it as
according to them, it was against the tenets of their religious faith which did not
permit them to join in any rituals except if it be in their prayer to Jehova, their God.
The Kerala High Court held that it was their fundamental duty under the Constitution
to sing the national anthem. It held that if a pupil belonging to the religious group
refused to participate in the singing of the National Anthem, it would have a very bad
influence on the other pupils and the Head Mistress was, therefore, within her right
not to permit them to attend the class until they gave in writing that they`ll participate
in the singing of the national anthem in the school. Conduct on the lines of the
childrens' acts would develop among citizens a tendency to ignore the mandates of
the Constitution thereby defeating the object (discernible from the preamble and other
provisions) to accomplish which people gave the Constitution themselves. Such
religious practices running counter to the public order, morality and integrity and
unity of the nation must give way for the benefit of the people and the nation as a
whole.

The Supreme Court, however, reversed the High Court's decision and noted that
Jehova's witnesses wherever they are (England, U.S.A, etc.) do not sing the National
Anthem, though they stand respectfully whenever it is sung. They truely and
conscientiously believe that there religion does not permit them to sing the National
Anthem. The Court has said:
"......the question is not whether a particular religious belief or practice appeals to our
reason or sentiment but whether the belief is genuinely and conscientiously held as a
part of profession or practice of the religion. If the belief is genuinly and
conscientiously held, it attracts the protection of Article 25 but subject, of course, to
the inhibitions contained therein."

36 (1986) 3 SCC 615.

16
The Court referred to a number of foreign judgements to testify to the belief of the
Jehovah's witnesses.37 The Court has thus concluded that it is because of their
conscientiously held faith that they do not join to sing the National Anthem. This is
protected by Art. 25(1). The Court has also held it a violation of Article 19 (1) (a) to
punish a student for not singing the national anthem. Thus, the negative right, the
right to remain silent, has been implied in the freedom of speech guaranteed by the
Article 19(1)(a).

This pronouncement raised a controversy. Fears were expressed that other religious
groups would take advantage of the ruling and refused to participate in the singing of
the National Anthem and this would ultimately affect national integrity. On December
2, 1986, the Prime Minister declared in Lok Sabha that the Government would use
legal and constitutional means to set right the situation. The Prime minister said that
the Government would not allow the National Anthem and National Flag "to be
reduced in value, or pulled down and destroyed" as they embody the "soul and spirit
of the nation and hence they are sacred to us".

The Central Government had moved a writ petition in the Supreme Court seeking
reconsideration of the above decision. The government sought a declaration from the
Court that " the Fundamental Duty of every citizen to respect the National Anthem
not only includes the duty to stand up respectfully when the NationalAnthem is sung,
but also to sing it." The fundamental duties of citizens are contained in Article 51A. It
was stated in the Writ-petition that the matter involving a question of interpretation of
the Constitution should have been decided by a five-judge bench instead of only two
judges.

37 West Virginia State Board of Education v. Barnette, 319 U.S. 624; Donald v. Board of Education for the City
Hamilton, 1945 Ontario Reports, 518.

17
  Regulation of Secular Activities [Article 25 (2) (a)]

The State is empowered to regulate secular activities associated with religious

practices. The State is not entitled to regulate religious practices as such. What the
State can regulate under Article 25(2)(a) are the activities which are really of an
economic, commercial or political character though these may be associated with
religious practices.38

A question would, however, arise whether the activity sought to be regulatedis

'religious' or 'secular'. This distinction is important for what is religious cannot
beregulated. This again raises the question whether the activity sought to be regulated
is regarded as an essential and integral part of religion in questio. If so, it is religious
in nature.

Management of property attached to a religious institution or endowment is a secular

activity which can be regulated by the State. 39 In Sardar Sarup Singh v. State of
Punjab40 the Supreme Court ruled that the administration of the property by the
religious denomination is placed on a different footing from the right to manage its
own affairs in the matters of religion. The latter is a Fundamental Right which no
legislature can take away, whereas the former can be regulated by law.

Article 25 (2)(a) contemplates state regulation not of religious practices, as such, but
of activities which are economic, political or commercial in character though these
may be associated with religious practices. In Tilakayat Shri Govindlalji Maharaj v.
State of Rajasthan,41 the Supreme Court again ruled that the right to manage the
properties of a temple was a purely secular matter and could not be regarded as a
religious practice under Article 25(1), or as amounting to "matters of religion" under
Article 26(b).

The Apex Court has summed up the relevant law as follows in Sri Jagannath Temple
Puri Management Committee v. Chintamani42 :
"....although the State cannot interfere with freedom of a person to profess, practice
and propagate his religion, the State, however, can control the secular matters
connected with religion. All the activities in or connected with a temple are not
religious activities. The management of a temple or maintenance of discipline and
38 Ratilal Panachand Gandhi v. State of Bombay, AIR 1954 SC 388.
39 Avtar Singh v. State of Jammu and Kashmir, AIR 1977 J&K 4.
40 AIR 1959 S 860, 865.
41 AIR 1963 SC 1638.
42 AIR 1997 SC 3839, 3853.

18
order inside the temple can be controlled by the State. If any law is passed for taking
over the management of a temple it cannot be struck down as violative of Article 25
or Article 26 of the Constitution. The management of the temple is a secular act."

If the tenets of any religious sect of the Hindus precribe that offerings of food should
be given to the idol at particular hours of the day, that periodical ceremonies should
be performed in a certain way at certain periods of the year, or that there should be a
daily recital of the sacred text, or oblations should be offered to the sacred fire, then
these are religious practices being regarded as an essential part of the religion, and, as
such, are beyond state regulation. The mere fact that these activities involve
expenditure, or employment of priests and servants, or use of marketable
commodities, would not make them secular activities partaking of a commercial or
economic character.43

43 Commr. HRE v. Lakshmindra Swamiar, AIR 1954 SC 282.

19
  National Education Policy, 2002

In Aruna Rai v. Union of India44, the Supreme Court has upheld the National
Curricular Framework for Secondary Education (NCFSE) rejecting the contention
that it was an attemp to saffronise education by B.J.P led NDA Government.

In this case, the petitioners had challenged the validity of the National Curricular
Framework for school children through a public interest litigation under Article 32 of
the Constitution. They contended that NCFSE is against the constitutional mandate,
anti secular ad without consultation with the Central Advisory Board of Education
and therefore requires to be set aside.

A three judge bench comprising of Justice M.B. Shah, Justice D.M.

Dharmadhikari(concurring judgement) and Justice J.H.K Saroj (dissenting on the
aspect of consultation with the CABE) held that non-consultation with CABE cannot
be a ground for setting aside the new curricullum as it was not a statutory body. It has
been constituted as by the exercise of the executive function of the Government. Its
function is limited. It nowhere mandates that before framing national curricullar
framework for school children the government shall consult the CABE and act as per
its advice. Regarding the contention that the NEP 2002 is violative of Article 28 of
the Constitution and is anti secular, the court held that the National Curricullum for
Secondary Education pertaining to education for value devvelopment is neither
violative of Article 28, nor runs counter to the concept of secularism. Article 28
prohibits the imparting of religious instructions in any educational institutions wholly
maintained out of State funds. The National Curricullum was prepared on the basis of
report submitted to the Parliament in 1999 by the S.B. Chavan committee which was
appointed by the Parliament in 1996. The report of the committee is based on earlier
reports submitted by various committees. It was approved by the Parliament. NCERT
was asked to implement this report. None can dispute that past five decades have
witnessed constant erosion of the essential social, moral and spiritual values and
increase in cynicism at all levels. We are heading for a materialistic society
disregarding the entire value based social system. None can also dispute that in a
secular society, moral values are of utmost importance. Society where there is no
moral values, there would neither be social order, nor secularism. Emphasizing the
importance of study of religion in school education, the Court said, that for
controlling wild animal instinct in human beings and for having civilized cultural
society religions have come into existence. Religion is the foundation for valuable
survival of human beings in civilized society. Philosophy of co-existence and and to
co-exist is thought over by 8the saints all over the world which is revealed by various

44 AIR 2002 SC 2773.

20
philosophers. Justice Shah held that if that is taught, it cannot be objected as it is
neither violative of constitutional or legal rights, nor it offends moral values. He
further said that no one can dispute that truth (Satya), religious conduct(Dharma),
peace(Shanti), Love(Prem), and non-violence(Ahimsa) are the core universal values
accepted by all religions. He said that it appeared to be a totally wrong presumption
and contention that knowledge of different religions would bring disharmony in the
society. On the other hand, his Lordship said, knowledge of different religious
philosophies is for bringing communal harmony as ignorance breeds hatred because
of wrong notions, assumptions, preaching and propaganda by misguided, interested
persons.

It is also pointed out that "there is a specific caution that all steps should be taken in
advance to ensure that personal prejudices are not allowed to distort the real purpose,
dogmas and superstition should not be propogated in the name of education about
religions". What is sought to be imparted is incorporated in Article 51(A)(E) which
provides "to promote harmony and the spirit of common brotherhood amongst all the
people of India transcending religious, linguistic and regional or sectional diversities,
to renounce practices derogatory to the dignity of women". In our view, the word
'religion' should not be misunderstood nor the contention could be raised that as it is
used in the National Policy of Education secularism would be at a peril. Value based
education is likely to help the nation to fight against all kinds of prevailing
fanaticism, ill will, violence, dishonesty, corruption, exploitation, and drug abbuses,"
the Court said.
"The new curricullum was designed to enable the learner to acquire knowledge and
was aimed at self discipline, courage love for social justice, etc. truth, righteous
conduct, peace non-violence which are the core values which can become the
foundation for building the value based education. These high vallues cannot be
achieved without knowledge of moral sanction bwhind it."

The Court observed, " Let knowledge, like the sunshine for all and that there should
not be any room for narrow mindednes, blind faith and dogmas. Iif basic tenets of all
religions over the world are learnt it cannot be said that secularism will not survive."

Justice Dharmadhikari held that the expression "religious instructions" used in Art. 28
(1) has a restricted meaning. It conveyes that teaching of customs, ways of worship,
practices or rituals cannot be allowed in educational institutions wholly maintained
out of state-funds. But Article 28 (1) cannot be read as prohibiting study of different
religions existing in India and outside. If such a prohibition is read in the words,
study of philosophies which is necessarily based on religions would be
impermissible. Study of religions therefore, is not prohibited by the Constitution and

21
the constitutional provisions should not be read so, otherwise the chances of spiritual
growth of human beings, which is considered to be the highest goal of human
existence, would be totally frustrated. Education, he said, should not be for the
purpose of making a child merely literate and intelligent. The real education is one in
which a child gradually realises that he is not only made of body and mind, but also
of some inner elemental qualities. His Lordship said, "Democracy cannot survive and
the Constitution cannot work unless Indian Citizens are not only learned and
intelligent, but they are also of moral character and imbibe the inherent virtues of
human being, such as truth, love and compassion."

22
  Freedom from Taxes for Promotion of any Particular Religion:

Article 27 provides:
27. Freedom as to payment of taxes for promotion of any particular
religion -No person shall be compelled to pay any taxes, the proceeds of which
are specifically appropriated in payment of expenses for the promotion or
maintenance of any particular religion or religions denomination.

The reason underlying this provision is that India being a secular state and there
being freedom of religion guaranteed by the Constitution to both individuals and
groups, it is against the policy of the Constitution to pay out of public funds any
money for the promotion or maintenance of the particular religion or religious
denomination.45 It is to be noted here that what this Article prohibits is the levying of
tax and not of fee. In Rati lal v. State of Bombay 46the Supreme Court has held that a
tax is in the nature of a compulsary exaction of money by a public authority for
public purposes. The imposition is made for public purpose to meet the general
expenses of the state without reference to any advantage to be conferred upon the tax
payer. Tax is a common burden and the only return which the tax payer gets is a
participation in the common benefits of the State. Fees are, on the other hand,
payments primarily in public interest but for some special service rendered or some
special work done for the benefit of those from whom the payments are demanded. In
determining whether a levy is a fee, the true test must be whether its primary and
essential purpose is to render specific services to a specified are or class; it may not
by consequence that the State may ultimately and indirectly be benefited by it. The
traditional view that there must be actual quid pro quo for a fee has undergone a great
change. The element of quid pro quo in the strict sense is not always a sine qua non
for a fee. The co-relationship between the levy and the services rendered or expected
is one of general character and not of mathematical exactitude. All that is necessary is
that there should be 'reasonable relationship' between the levy and the services
rendered.47

On the basis of distinction between tax and fee, the Supreme Court in Sri Jagannath
v. State of Orissa48 held that the levy under the Orissa Hindu Religious
EndowmentsAct,1939, was in nature of a fee and not a tax. The payment was
demanded only for the purpose of meeting the expenses of the Commissioner and his
offece which was the machinery set up for due administration of the affairs of the
religious institution.The object of contribution was not of fostering or preservation of
45 Commr., H.R.E. v. L.T. Swamiar, AIR 1961 SC 282.
46 AIR 1954 SC 388.
47 Sreenivasa General Traders v. State of AP, (1983) 4 SCC 354.
48 AIR 1954 SC 400.

23
indu religion or the denomination within it, but to see that religious institutions were
properly administered.

The prohibition is against giving aid to any particular religion. This means that if
State aid is extended to all religious institutions along with secular ones alike, without
any discrimination, Article 27 will not be applicable.

24
 Changing Perceptions of Secularism

From time to time the Supreme Court of India has been interpreting the concept of
secularism in the Indian Constitution differently.
Early Judgments49
The Supreme Court expressed its views on the secular nature of the Constitution for
the first time in Sardar Taheruddin Syedna Saheb v. State of Bombay50 wherein
Ayyangar, J., explained:
"Articles 25 and 26 embody the principle of religious toleration that has been the
characteristic feature of Indian civilisation from the start of history. The instances
and periods when this feature was absent being merely temporary aberrations.
Besides, they serve to emphasise the secular nature of the Indian democracy which
the founding fathers considered to be the very basis of the Constitution."

In Kesavananda Bharati v. State of Kerala51 the Supreme Court reiterated that

secularism was a part of the basic structure of the Constitution. Enumerating the basic
features of the Constitution, Sikri, C.J. named "secular character of the
Constitution"52 as one of them. Shelat and Grover, JJ. stated that "secular and federal
character of the Constitution" were among the main ingredients of the basic structure
enumerated therein.53 Jaganmohan Reddy, J., stated clearly that "Liberty of thought,
expression, belief, faith and worship"54 could not be amended at any cost as they are
part of the basic features of the Constitution.

Though in Kesavananda the Court in no uncertain terms laid down that secularism
forms part of the basic structure of the Constitution, in The Ahmedabad St. Xaviers
College Society v. State of Gujarat55 it indicated that it was uncertain about its views
on the subject. Matthew, J. and Chandrachud, J. (as he then was) felt that it was only
by implication that the Constitution envisaged a secular State. They gave a new
dimension to the concept in the constitutional context thus:
"The Constitution has not erected a rigid wall of separation between the Church and
the State. It is only in a qualified sense that India can be said to be a secular State.
There are provisions in the Constitution which make one hesitate to characterise our
State as secular.... Secularism in the context of our Constitution means only an
49 'Changing Perceptions of Secularism', by Vikramjeet Bannerjee and Sumeet Malik, (1998) 7 SCC (Jour) 3.
50AIR 1962 SC 853, 871. It is known as 'the Ex-communication case'. The genesis of such views can be traced to
earlier decisions like Nain Sukh Das v. State of U.P., AIR 1953 SC 384 wherein it was held that constitutional mandate
against religious discrimination extends to political rights.
51 (1973) 4 SCC 225.
52 Ibid, para 292.
53 Ibid., para 582.
54 Ibid., para 1159.
55 (1974) 1 SCC 717.

25
attitude of live and let live developing into the attitude of live and help live.... Dr.
Radhakrishnan has said :-The religious impartiality of the Indian State is not to be
confused with secularism or atheism. Secularism as here defined is in accordance
with the ancient religious tradition of India. It tries to build up a fellowship of
believers, not by subordinating individual qualities to the group mind but by bringing
them into harmony with each other. This dynamic fellowship is based on the principle
of diversity in unity which alone has the quality of creativeness. Secularism here does
not mean irreligion or atheism or even stress on material comforts. It proclaims that
it lays stress on the universality of spiritual values which may be attained by a
variety of ways"56

Apparently this view implied a contradiction between the judicially constructed

concept of secularism and the concept evident in the text of the Constitution. The
judgment also went on to lay down a modern Indian concept of secularism.

In Ziyauddin Burhanuddin Bukhari v. Brijmohan Ram Das Mehra57 the Supreme

Court went on to define the concept of secularism in the realm of philosophy and in
utilitarian terms. The Court set the role of the State to be neutral or impartial in
extending its benefit to citizens of all castes and creeds and cast a duty on the State to
ensure through its laws that disabilities are not imposed based on persons practising
or professing any particular religion. Some judges of the Supreme Court however
seem to have followed this logic in Indra Sawhney case58. The opinion of Kuldip
Singh, J. is indicative of this fact. According to him secularism envisages a cohesive
unified and casteless society59. Further, "caste poses a serious threat to secularism and
a consequence to the integrity of the country". This view seems to be an enlargement
of the concept of secularism beyond merely religious differentiation. This seems to
indicate that the Court is still not decided as to what exactly the term means.
In the landmark judgment of S.R. Bomnai v. Union of India60, hearing an appeal from
the judgement of the Allahabad High Court a nine member Constitution Bench of the
Supreme Court held that the dismissal of the BJP Governments in Madhya Pradesh,
Rajasthan and Himachal Pradesh in the wake of the Ayodhya incident of December
6th, 1992, was valid and imposition of President's rule in these states was
constitutional. The Court held that secularism is a part of the Basic Structure of the
Constitution and any State-Government acting against that ideal can be dismissed by
the President. Also, no Political Party can simultaneously be both a religious and a
political party. The Court in no uncertain terms declared that secularism is part of the
basic structure. But the complication arose in formulating a definition. Ahmadi, J.,

56 Ibid., para 139.

57 (1976) 2 SCC 17.
58 Indra Sawhney v. Union of India, (1992) Supp (3) SCC 217.
59 Id., para 569.
60 (1994) 3 SCC 1.

26
stated that secularism is based on the "principles of accommodation and tolerance".
In other words, an espousal of a "soft secularism". He tended to agree with the
broadened definition adopted by the Court in Indra Sawhney21. The Court in Bommai
case ruled that religion and temporal activities do not mix. Freedom and tolerance of
religion is only to the extent of permitting pursuit of spiritual life that is different
from the secular life. The latter falls in the domain of the affairs of the State. The
Court further said that "the encroachment of religion into secular activities is strictly
prohibited." Ramaswamy, J., in his separate opinion declared that the State has the
duty to ensure secularism by law or an executive order. He explained that programs
or principles evolved by political parties based on religion amount to recognising
religion as a part of political governance which the Constitution expressly prohibited.
According to him it is the duty of the court to bring every errant political party in line
if it goes against secular ideals like casteism and religious antagonisms. His opinion
reiterates the view that secularism includes anti-casteism, and presents the rigid
stance of the court.61 Jeevan Reddy and Agrawal, JJ., broadly agreed with
Ramaswamy, J. In fact, the Judges went on to say that the concept of secularism in
the Indian Constitution is in broad agreement with the U.S. Constitution's First
Amendment. They also expressed the view that the State has the power to legislate on
religion including personal laws under Art. 44 and secular affairs of temples,
mosques, and other places of worship.62 They also went on to say that even if a
political party indirectly espouses a religious cause it is acting in an unconstitutional
manner. It may be noted that Verma, J. (as he then was) and Dayal, J., though part of
the bench expressed no opinion on secularism.
Within a year the Court in Ismael Faruqui v. Union of India63 started diluting the
active, positive concept of secularism based on scientific thinking it had advocated in
the Bommai case64. An indication of this trend had been laid in R.C. Poudayal v.
Union of India and others65. Subsequently, in the Ram Janambhoomi case, the Court
justified its concept of secularism by quoting extensively from Indian
scriptures.Verma, J. (as he then was) (speaking forVenkatachaliah, C.J. and Ray, J.)
quoted from the Yajur Veda, Atharva Veda and Rig Veda to justify its concept of
secularism: 'Sarwa Dharma Sambhava', i.e., tolerance of all religions. This reasoning
of justifying secularism by religious scriptures seems to be odd. The Court seems to
have rejected the western concept of secularism based on separation of the Church
and the State as explained in S.R. Bommai and gone back66 to equating secularism
with tolerance. The Court also noted that the State has the power to take over any
religious place including a mosque. Though dissenting, Bharucha, J., supported the
concept of absolute, positive and active secularism, more in tune with that spelt out

61 This rigid stance of Ramaswamy, J. was to be diluted in later cases.

62 It is interesting to note that the Court withdrew from both these commitments later.
63 (1994) 6 SCC 360.
64 (1994) 3 SCC 1.
65 1994 Supp (1) SCC 324 [Coram: Per Venkatachaliah, C.J., Verma and Jayachandra Reddy, JJ.]
66 Refer to the Ex-communication case and Nain Sukh Das v. State of U.P., AIR 1953 SC 384.

27
in S.R. Bommai. Yet even he accepts that secularism in India exists because of the
tolerance of the Hindus who are the majority religion.
The confusion stood confounded with the three cases known as the 'Hindutva
Judgments'67, the major and crucial one being Prabhoo's case68. The opinion of
Verma, J. (as he then was; as in the other two cases) indicates the shift made by the
Court from its stance on secularism advocated in S.R. Bommai69.
Verma, J. made the Court shift its earlier position and take a different stand on three
major grounds:
1. The Court enunciated that a speech with a secular stance alleging discrimination
against any particular religion and promising the removal of the imbalance cannot be
treated as an appeal on the ground of religion, as its thrust is for promoting
secularism.70
2. The Court again seemed to have turned away from the Bommai case and the
'constitutional duty' of the Court to get political parties in line with secularism,
advising leaders to be only "more circumspect and careful in the kind of language
they use."71 The Court further explained by stating that the statement that "(T)he first
Hindu State will be established in Maharashtra" is by itself not an appeal for votes
based on religious grounds, "(b)ut the expression, at best, of such hope...."72
3. The Court equated Hinduism and Hindutva with Indianisation:
"The words 'Hinduism' or 'Hindutva' are not necessarily to be understood
and construed narrowly, confined only to the strict Hindu religious practices,
unrelated to the culture and ethos of the people of India, depicting the way of
life of the Indian people."73

The Court went on the explain clearly what it had held in the Hindutva Judgments in
a series of cases.74 The Court speaking through Verma, N.P. Singh and Venkataswami,
JJ. In Mohd. Aslam v. Union of India75, further tried to explain that there was no
contradiction between the ratio of S.R. Bommai and that of the Hindutva Judgments,
both being on different planes.

67 Ramesh Yashwant Prabhoo (Dr.) v. Prabhakar K. Kuntel, (1996) 1 SCC 130; Manohar Joshi v. Nitin Bhau Rao
Patil, (1996) 1 SCC 169; Ramchandra K. Kapse v. Haribansh R. Singh, (1996) 1 SCC 206.
68 (1996) 1 SCC 130
69 (1994) 3 SCC 1.
70 (1996) 1 SCC 130, para 16.
71 Ibid., para 63.
72 Manohar Joshi v. Nitin Bhau Rao Patil, (1996) 1 SCC 169, para 62. This position is also different from the one the
Court took in S.R. Bommai.
73 The redefinition of secularism different from the one given in Bommai, was thus complete.
74 Mahadik v. Bhosale, (1996) 1 SCC 384; Mayekar v.Celine D'silva, (1996) 1 SCC 399; Goyal v. Kohli, (1996) 1 SCC
378; Kapse v. Rambakal Singh, (1996) 1 SCC 206; Save v. Pathrikar, (1996) 1 SCC 394.
75 (1996) 2 SCC 749.

28
In this context it must be noted that the Court is not unanimous in its own stance.
This is evident from the different stands taken by some Judges in a number of cases.
In Abhiram Singh v. C.D. Conmachen76, Ramaswamy J., recommended that the
question be sent to a larger bench for consideration but refrained from taking a
different meaning of secularism. In fact, Ramaswamy, J. in Valsamma Paul (Mrs) v.
Cochin University77 seems to have gone back to the old soft stance on secularism
equating it with tolerance, while stressing the need for an 'integrated Bharat'. Yet in
Bansilal v. State of A.P.78 he seems to rely on the S.R. Bommai dictum that the State
can regulate personal laws citing the threat to the unity and integrity of the nation.
Interestingly, the Judge in another part of the judgment accepts Hinduism as the
major religion and Hindus as the majority, and that the right of freedom of religion is
available to Hindus also. One fails to find consistency in these cases. Finally in A.S.
Narayana Deekshitulu v. State of A.P.79 Ramaswamy, J. quoting extensively from the
scriptures states:
"The word 'Dharma' or 'Hindu Dharma' denotes upholding, supporting, nourishing
that which upholds, nourishes or supports the stability of the society, maintaining
social order and general well being and progress of mankind; whatever conduces to
the fulfilment of these objects is Dharma, it is Hindu Dharma and ultimately 'Sarwa
Dharma Sambhava'. Dharma is that which approves oneself or good consciousness
or springs from due deliberation for one's own happiness and also for welfare of all
beings free from fear, desire, disease, cherishing good feelings and sense of
brotherhood, unity and friendship for integration of Bharat."
With this explanation the circle is complete.
In our view80, the Court clearly has not moved an inch from its original perspective
on secularism as enunciated in the early cases of the 1950's and 1960's. The Court has
with minor deviations, stuck to its original stance of 'secularism' not being a wall
between the Church and the State, but a sense of toleration between people of
different religions through 'Sarva Dharma Sambhava'. The Court deviated from this
position for a while in S.R. Bommai81 where it espoused secularism to mean "a wall
between the Church and the State". The line of thinking the Court seems to be best
portrayed by the majority in the Ram Janambhoomi case - 'Secularism' is toleration
based on tradition. The Hindutva Judgments are a logical conclusion from it, that is,
recognition of the essential Hindu identity of tradition. Yet it seems, the Court has
stopped short in taking the line to its ultimate conclusion - that of Hindutva being
synonymous with Nationalism. After all if Hindutva is nothing but pride in being
Indian (as per the courts very own logic) then is not Nationalism exactly the same?

76 (1996) 3 SCC 665. This case was heard by a bench consisting of Ramaswamy, J. and Bharucha, J. who dissented in
Ram Janam Bhoomi case.
77 (1996) 3 SCC 545.
78 (1996) 2 SCC 4.
79 (1996) 9 SCC 548.
80 'Changing Perceptions of Secularism', by Vikramjeet Bannerjee and Sumeet Malik, (1998) 7 SCC (Jour) 3.
81 S. R. Bomnai v. Union of India, (1994) 3 SCC 1.

29
 Conclusion

The author would like to conclude on the note that as various Supreme Court
pronouncements have established, India is certainly a Secular nation. There is no
question that secularism could be a myth; it is a reality enshrined as a part of the basic
structure of the Constitution of India. The State is neutral to matters of religion and
God- the State is neither pro-God nor anti-God. But when religious institutions or
public safety are affected by communal violence, the State is duty bound to maintain
public order82. The Fundamental Right of religion of any individual cannot work
against the Fundamental Rights of other citizens; it is on par with other Fundamental
Rights.

Inspite of the above conclusion that Secularism is a glaring reality in India, there are
certain communal forces which try to negate this at every instance and instill
religious fanaticism in India, eg. Babri Masjid episode, Godhra incident, and
Terrorism by organisations like Lashkar-e-Taeba, Al- Qaeda, etc. Religious
fanaticism is not covered under Freedom of Religion, in fact, fanatics are said to
belong to no religion. It can only be encouraged, that the citizens do not listen to the
heinous propoganda of militants and separatists who try to divide the country on the
basis of religion, and constantly adhere to the secular values enshrined in the very
basic structure of our Constitution.

82 Shyamlal Ranjan Mukherjee v. Nirmal Ranjan Mukherjee,AIR 2008 (NOC) 568 (All).

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 BIBLIOGRAPHY

Books Referred:
✔ 'Constitutional Law of India ', H.M. Seervai, Volume II, Fourth Edition (Silver
Jubilee Edition), Universal Book Traders, Delhi.

✔ 'Indian Constitutional Law ', M.P. Jain, 6th Edition, Lexis Nexis Butterworth
Wadhwa Publishers, Nagpur.

✔ 'Introduction to the Constitution of India ', Dr. D.D. Basu, 20th Edition, Lexis
Nexis Butterworth Wadhwa Publishers, Nagpur.
✔ 'The Constitutional Law of India ', Dr. J.N. Pandey, 47th Edition, Central Law
Agency, Allahabad.
✔ 'The Constitution of India', P.M.Bakshi, 10th Edition, Universal Law Publishing
Company Private Limited.

Articles Referred:
✔ 'Constitutional Law-I (Fundamental Rights)', by Paranjit S. Jaiswal, Annual
Survey of Indian Law, 2003, Volume XXXIX, ILI Publications.
✔ 'Constitutional Law-I (Fundamental Rights and Directive Principles)', by S.P.
Sathe, Annual Survey of Indian Law, 1993, Volume XXIX, ILI Publications.
✔ 'Changing Perceptions of Secularism', by Vikramjeet Bannerjee and Sumeet
Malik, (1998) 7 SCC (Jour) 3. [taken from http://www.ebc-india.com/ lawyer/
articles/9807a1.htm]

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