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INTRODUCTION – Secularism
India is the birthplace of four major world religions: Hinduism, Jainism, Buddhism, and Sikhism. Yet, India is one of the most diverse nations in terms of religion and secularism. Many scholars and intellectuals believe that India’s predominant religion, Hinduism has long been a most tolerant religion. India is a country built on the foundations of a civilization that is fundamentally non-religious.||Secularism means a State which does not recognize any religion as a State religion.
The Preamble of Indian Constitution aims to constitute India a Sovereign, Socialist, Democratic Republic. The terms socialist and secular were added to it by the 42nd amendment, 1976.The whole Constitution is summarized in the preamble. It is the mirror to the spirit of the Constitution.
The term religion has not been defined in the Constitution but the meaning given by the S.C. of India to the religion can be referred here, the S.C. in Commissioner H.R.E vs. L.T. Swammiar held, Religion is a matter of faith with individuals or communities and it is not necessarily theistic. A religion has its basis in a system of beliefs or doctrines, which are regarded by those who prefer that religion as conducive to their lay down a code 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 observance might extend even to matters of food and dress.
The freedom of religion guaranteed under Indian Constitution is not confined to its citizen but extends to all persons including an alien. This point was underlined by the Supreme Court in Ratilal Panchand vs. State of Bombay as it is very important because a substantial number of foreign Christian missionaries in India were engaged at that time in propagating their faith among the adherents of other religions.
On two different occasions, attempts were made to amend the Constitution with a view to further strengthening and clarifying its provisions on secularism, but the Bills moved for this purpose could not be enacted for technical reasons. Among these Bills were:
- Constitution (Forty-fifth) Amendment Bill 1978 – It proposed to define the expression ‘Secular Republic’ as ‘a Republic in which there is equal respect for all religions’.
- Constitution (Eightieth Amendment) Bill 1993 – It proposed to empower Parliament to ban parties and associations if they promote religious disharmony and disqualify members who indulge in such misconduct.
SECULARISM AND CONSTITUTION OF INDIA
Secularism means a State which does not recognize any religion as a State religion. It treats all religions equally. Secularism, as contemplated by the Constitution of India, has the following distinguishing features:
- The state guarantees to everyone the right to profess whatever religion one chooses to follow, it will not accord any preferential treatment to any of them.
- No discrimination will be shown by the state against any person on account of his religion or faith.
- The right of every citizen, subject to any general condition, to enter any offices under the state and religious tolerance form the heart and soul of secularism as envisaged by the Constitution. It secures the conditions of creating a fraternity of the Indian people which assures both the dignity of the individual and the unity of the nation.
In Bal Patil vs. Union of India S.C. held that the State has no religion and State has to treat all religions and religious people equally and with equal respect without in any manner interfering with their Individual rights of religion, faith and worship.
In St. Xavier College vs. State of Gujarat, the SC said that “although the word ‘secular state’ is not expressly mentioned in the Constitution there can be no doubt that constitution makers wanted to establish such a state.”
In Aruna Roy vs. Union of India SC held that secularism has a positive meaning that is developing, understanding and respect towards different religions.
In the S.R. Bommai vs. Union of India, various judges of the SC of India individually explained the significance and place of secularism under the Constitution in very meaningful words sampled below:
- The Constitution has chosen secularism as its vehicle to establish an egalitarian social order. Secularism is part of the fundamental law and basic structure of the Indian political system.
- Notwithstanding the fact that the words ‘Socialist’ and ‘Secular’ were added in the Preamble of the Constitution, the concept of secularism was very much embedded in our constitutional philosophy from the very beginning. By this amendment what was implicit was made explicit.
- Constitutional provisions prohibit the establishment of a theocratic State and prevent the State from identifying itself with or otherwise favoring any particular religion.
- Secularism is more than a passive attitude of religious tolerance. It is a positive concept of equal treatment of all religions.
- When the State allows citizens to practice and profess their religion, it does not either explicitly or implicitly allow them to introduce religion into non-religious and secular activities of the State. The freedom and tolerance of religion are only to the extent of permitting pursuit of spiritual life which is different from the secular life. The latter falls in the exclusive domain of the affairs of the State.
In Indra vs. Rajnarayan the basic feature of the secularism was explained by the Hon’ble SC which held, “Secularism means that 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 freely to profess, practice and have the right freely to profess, practice and propagate any religion”.
In S.R.Bommai vs. Union of India, The Hon’ble SC held that secularism is the basic feature of the Constitution.
What is Religion?
The Constitution uses but does not define the expressions ‘religion’ and ‘religious denomination’ and therefore the courts have found it necessary to explain the meaning and connotation of these words.
In S.P. Mittal vs. Union of India, the SC has observed “In the background of the provisions of the Constitution and the light shed by judicial precedent we may say that religion is a matter of faith. It is a matter of belief and doctrine. It concerns the conscience, i.e., the spirit of man. It must be capable of expression in word and deed, such as worship or ritual.”
GENERAL CONSTITUTIONAL PROVISIONS ON RELIGIONS
Equality & Non-Discrimination
The Constitution of India contains in its Chapter on Fundamental Rights several provisions that emphasize the complete legal equality of its citizens irrespective of their religion and creed and prohibit any kind of religion-based discrimination between them. Among these provisions are the following:
- According to Article 14, “The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.”
- According to Article 15, “The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth, or any of them, either in general or in the matter of access to or use of general and public places and conveniences.”
- According to Article 16, “There shall be equality of opportunity for all citizens in the matter of employment or appointments under the State and no citizen shall, on grounds only of religion be ineligible for, or discriminated against, in respect of any employment or office under the State.”
- According to Article 17, “The traditional religious concept of ‘untouchability’ stands abolished find its practice in any form is strictly forbidden.”
- According to Article 32 clause (2), “If the State imposes compulsory service on citizens for public purposes no discrimination shall be made in this regard on the ground of religion only.”
To meet the demands of Article 17 noted above, soon after the commencement of the Constitution Parliament had enacted an Untouchability (Offenses) Act, which was later amended and renamed as the Protection of Civil Rights Act 1955. The Act prescribes penalties for the practice of untouchability in various specified forms. A second law enacted in this respect is the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act 1989.
FREEDOM OF RELIGION
Religious freedom as an individual’s right is guaranteed by the Constitution to ‘all persons’ within the following parameters:
- According to Article 25 clause (1), “All persons are equally entitled to freedom of conscience and the right freely to profess, practice and propagate religion.”
- According to Article 27, “There shall be freedom as to payment of taxes for promotion of any particular religion by virtue of which 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 religious denomination.”
- According to Article 28, “No religious instruction is to be provided in the schools wholly maintained by State funding; and those attending any State- recognized or State-aided school cannot be required to take part in any religious instruction or services without their (or if they are minor their guardian’s) consent.”
Freedom of religion is guaranteed by the Constitution of India as a group right in the following ways:
- According to Article 26, “Every religious denomination or any section thereof has the right to manage its religious affairs; establish and maintain institutions for religious and charitable purposes; and own, acquire and administer properties of all kinds.”
- According to Article 29, “Any section of the citizens having a distinct language, script or culture of its own shall have the right to conserve the same.”
- According to Article 30, “Religious and linguistic minorities are free to establish and administer educational institutions of their choice, which shall not be discriminated against by the State in the matter of giving aid or compensation in the event of an acquisition.”
In Punjab Rao vs. DP Meshram the SC observed, “To profess a religion means the right to declare freely and openly one’s faith.”
In Ismail Paruqi vs. Union of India, the SC held, “The right to profess, practice and propagate religion does not extend to the right of worship at any or every place of worship so that any hindrance to worship at a particular place per se will infringe religious freedom.”
In SK Mittal v Union of India, “To claim to be a religious denomination a group has to satisfy three conditions: common faith, common organization, and designation by a distinctive name.”
The Chapter on Fundamental Duties, inserted into the Constitution by the Constitution (Forty-second Amendment) Act 1976, includes the following among the basic national obligations of all the citizens:
- According to Article 51 clause a subclause (e), “To promote harmony and the spirit of common brotherhood amongst all the people of India transcending religious, linguistic and regional or sectional diversities.”
- According to Article 51 clause a subclause (f), “To value and preserve the rich heritage of our composite culture.”
LIMITS TO FREEDOM OF RELIGION
The Fundamental Right to religious freedom cannot be enjoyed in an absolutely unrestricted way. There are limitations within which these rights can be exercised, as also lawful restrictions which can be imposed by the State on such rights, as detailed below:
- According to Article 25, “The right to freedom of religion is, in general, subject to public order, morality, health and the other provisions of the Constitution.”
- According to Article 25 clause (2), “ Despite the right to religious freedom, the State can pass laws providing for social welfare and reform and also regulate or restrict any secular activity – economic, financial, and political, etc. – even though it may be traditionally associated with religion.”
- According to Article 29 clause(2), “Despite the minorities’ right to establish and maintain educational institutions, no citizen can be kept away from any State-aided or State- maintained educational institution only on religious grounds.”
ROLE IN ELECTIONS
By a dictate of the constitution, religion has no role to play in elections to Parliament and State Assemblies and Councils. For all elections to central and state legislatures, the electoral rolls for every constituency shall be general and common and no person can either be excluded from or included in, any such roll only on the basis of his or her religion – Article 225.
To implement this provision of the Constitution the election law contained in the Representation of the People Act 1951 incorporates provisions declaring the use of religion during electioneering both a ‘corrupt practice’ that will vitiate the election of the winning candidate and also a punishable offense.
Scenario in India
The political parties in India have tended to use religion and caste factors for the promotion of their political interests and thus greatly undermined the secular values.
The growing communalism has also greatly hampered the growth of genuine secularism in India. Despite the abandonment of communal electorates and a ban on the use of religion for soliciting votes, the various political parties and groups have frequently made use of communal factors to get into power. In this regard, both the minorities as well as the majority communities are equally to blame. Unless this feeling of communalism is shunned, secularism cannot take firm roots in the Indian soil.
COMMUNITY SPECIFIC CONSTITUTIONAL PROVISIONS
Nature of Special Provisions
Side by side with the foretasted general provisions relating to religious neutrality of the State and religious liberties of the people, we find within the Constitution of India a number of religion-based and religion-related provisions for certain communities who can be classified as follows:
- The Hindus, Buddhists, Jains and Sikhs, who are mentioned in the Constitution by their denominational names; and
- Certain groups who are mostly Christian by religion but the special provisions do not mention them as denominational groups.
Provisions for Hindus, Buddhists, Jains & Sikhs
The Constitution includes the following special provisions for the Hindu, Buddhist, and Jain and Sikh communities:
- Declaration of the abolition of untouchability (mainly a Hindu religious custom) and prohibition of its practice in any form – Article 17.
- A Directive Principle of State Policy requiring the State to take steps to prohibit the slaughter of cows and calves (reverence for whom is customary among the Hindus) – Article 48.
- Declaration of the validity of pre-existing and future laws made to throw open Hindu places of worship to all sects and sections of the Hindus (with a supplementary provision giving the power for the Buddhist, Jain and Sikh shrines) – Article 25, Explanation I.
- A special provision for the grant of specified annual maintenance- allowances to be given from the State exchequer for the upkeep of Hindu temples of a certain denomination in two South Indian states, Kerala and Tamil Nadu – Article 290 clause(a).
- Declaration of wearing and carrying a kirpan (sword) a Fundamental Right for the Sikhs – Article 25, Explanation II.
Provisions for mainly Christian Groups
The following special provisions were included in the Constitution for certain communities which are mainly Christian by religion:
- Some special provisions of a transitory nature for the Anglo- Indian community – Articles 331, 333, 336,337, 366 clause (2).
- A provision for the protection of the customary law and its administration among the Nagas in the Christian-dominated State of Nagaland – Article 370 clause (a).
- A similar provision for the Mizos in the Christian- dominated State of Mizoram – Article 370 clause (g).
There are in India various official establishments for religion, statutory and non-statutory, set up both by the Central and State Governments. Among these are:
- Departments of Religious Affairs in some States including Jammu and Kashmir and Uttar Pradesh;
- Minority Welfare Departments in most States;
- Union Ministry of Minority Welfare;
- Special bodies to manage certain religious matters of particular communities.
Among the bodies mentioned in clause (iv) above there are Hindu Religious Endowment Boards, Muslim Wakf Boards, Sikh Gurdwara Committees, State-appointed boards or committees to manage particular shrines, Central Hajj Committee, etc.
IS INDIA STILL A SECULAR STATE?
India is diversified when it comes to religions, for which the constitution stands for a secular India.
- Multiple religions like Hindu’s, Christians, Muslims, and Buddhists exist in our country making it secular. There is no one particular religion which is being followed.
- The roots of the Indian constitution ricochets that all citizens are equal and this asserts that the religion of a native is not applicable especially when it comes to his fundamental rights.
- The secular state is usually defined as a state where people have the right to make independent choices, which is very much prevalent in India.
- None of the public funds are allotted especially for any particular religion.
- In spite of India being a secular state, Caste system still rubrics the ancestries, not only at the time of politics but while choosing a groom/ bride, making companions, hiring workers.
- The main purpose of not following any religion in India was to keep the state secular, which is not being followed.
- The recent riots in Muzaffarnagar, U.P. the main reason was that of the Hindu – Muslim fights, especially where both the religions exist.
The entire human race is considered to be one large clan, secularism leads to a modern and a reformist approach. India has constantly believed in oneness and does not rift humanity into incontrovertible partitions on the basis of religion, race, country or nation.
SECULARISM IN SAUDI ARABIA
Saudi Arabia’s Constitution enshrines Sunni Islam as the foundation for its governance and law, opening with the clause: “The Kingdom of Saudi Arabia is a sovereign Arab Islamic state with Islam as its religion; God’s Book and the Sunnah of His Prophet, God’s prayers and peace are upon him, are its Constitution.”
It states that Saudis must be brought upon the basis of Islamic faith and that the state will accordingly strive to maintain the country’s Arab and Islamic values and “protect Islam.”
The Constitution stipulates that education will “aim at instilling the Islamic faith in the younger generation” and mould children to be “useful” in society. It does not tolerate public worship by non-Muslims and systematically discriminates against Islamic religious minorities, including Shinas and Ismailis.
Islamic law considers Hindus to be polytheists; identification with polytheism is used to justify discrimination against Hindus in calculating accidental death or injury compensation, unlike Muslims, Christians, or Jews, who are classified as “People of the Book.”
According to the country’s “Hanbali” interpretation of Shari’a, once fault is determined by a court, a Muslim male receives 100 percent of the amount of compensation determined, a male Jew or Christian receives 50 percent, and all others (including Hindus and Sikhs) receive 1/16 of the amount a male Muslim may receive.
Proselytizing by non-Muslims, including the distribution of non-Muslim religious materials such as Bibles, is illegal, and the promotion of non-Salafi Islam is restricted.
The Ministry of Islamic Affairs sponsors approximately 50 “Call and Guidance” centers employing approximately 500 persons to convert foreigners to Islam. Some non-Muslim foreigners convert to Islam during their stay in the country.
RELIGION AND WORSHIP IN SAUDI ARABIA
Saudi Arabia is a Muslim country governed by a strict interpretation of Sharia law. This governs virtually all facets of life, with customs and traditions in Saudi based on the tenets mentioned in the Quran. This means that freedom of religion and worship in Saudi Arabia is severely limited, with Islam being the only religion allowed to be practiced in public.
Shia and Sunni Islam
The ruling House of Saud is a Sunni Muslim family, and Sunni Islam is the state religion of Islam. Sunnis comprise the vast majority of Muslims in Saudi Arabia, while Shiite Muslims make up a minority. Practices in contradiction of Sunni beliefs such as the celebration of the Prophet Mohammed’s birthday are heavily discouraged. Shiite Muslims have been targeted by the Religious Police, at times barred from taking part in the Hajj, or religious pilgrimage.
Freedom of religion in Saudi Arabia
Islam is the only religion that is allowed to be practiced publically in Saudi Arabia, and the freedom to practice any other religion in public is non-existent. However, the private practice of other religions in Saudi Arabia is allowed, and expats are therefore able to practice their own religion in the privacy of their home or compound. However, the conversion by Muslims to another religion (apostasy) is not allowed, and non-Islamic proselytizing, including the distribution of non-Muslim materials such as Bibles, is illegal.
Churches in Saudi Arabia
There is a very small community of Saudi Arabian Christians, and they practice their religion discreetly, as there are no official Christian churches in Saudi Arabia. Expat Christians may meet at private church meetings arranged at one of several embassies, while other small groups meet in school halls or at private houses inside expat compounds.
Saudi Christians can only celebrate Christmas and Easter in the privacy of their own homes. All Christians are officially foreign workers, as Christianity is forbidden to Saudi citizens. All outward displays of Christian symbols or of Christian celebration are banned in Saudi Arabia.
Preaching to non-Christians or attempting to convert Muslims to the Christian faith is punished severely under Sharia Law in Saudi Arabia.
Muslims call to prayer in Saudi Arabia
Something that may take a while for expats in Saudi Arabia to get used to is the Muslim call to prayer, which rings out five times a day across towns and cities. Prayer can determine the rhythm of the entire day and could be something that non-Muslim expats may find frustrating if wanting to make appointments or arrange meetings. Be prepared to have meetings interrupted and have the patience to wait for prayer time to finish before trying to close the deal.
Prayer (salah) forms an integral part of Islam, and for Muslims, this is a demonstration of respect to God and a way of showing one’s devotion to Him. Muslims believe that prayer purifies their hearts and helps them stand firm against moral wrongdoing.
The call to prayer, known as adhan, can be heard from the minarets of mosques and echoes over loudspeakers every day before dawn, at noon, mid-afternoon, sunset, and between sunset and midnight. The call can also be heard in other buildings, such as shopping malls, schools, hospitals, and universities.
All businesses, including shops and restaurants, will close during prayer time in Saudi Arabia. When the call to prayer is sounded, the faithful will drop to their knees facing Mecca to worship. Most buildings have prayer rooms where Muslims can go to pray, while some will pray in their shop or office, or go to the nearest mosque.
Mosques are plentiful throughout Saudi Arabia and expats will find one within walking distance in most neighborhoods.
Religious police in Saudi Arabia
The Mutaween, also known as the “religious police” or Committee for the Protection of Virtue and Prevention of Vice, enforces the prohibition on the public practice of non-Muslim religions. The role of the Mutaween is to keep both citizens and visitors acting in line with Saudi Arabia’s strict moral codes.
The one statement which concludes my research and what I have understood through my research is that – India is a secular nation. Though as stated above in the research questions, there are challenges to our secular nature, but in no way does it show that our country has not been able to overcome these challenges and maintain its secular nature. Development of the nation not only depends on economic development but also in preserving the secular nature of this nation. Democracy is a continuous process with no final objective but the very process of maintaining a democratic nature is the objective itself. Hence maintenance of secular nature is the objective and not the distant goal of a secular nation without any sectarian violence.
– Nancy Garg
Campus Amicus at Legal Bites
ARTICLE 21: PROTECTION OF PERSONAL LIFE AND LIBERTY
 AIR 1954, Constitution of India by PM Bakshi
 AIR 1954, refer www.the-laws.com
 AIR 2005
 AIR 1974, the Indian Constitution: Cornerstone of a nation by Granville Austin
 AIR 2003, refer www.lawyerservices.in
 AIR 1994
 AIR 1975
 AIR 1994, the Constitution of India by P.M. Bakshi
 AIR 1983
 AIR 1965,
 AIR 1994, refer www.gktoday.in
 AIR 1983, introduction to the constitution of India by Dr. Durga Das Basu
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