JUSTICE VIKRAMJIT SEN, A RETIRED JUDGE of the Supreme Court, once observed during the hearing of a case in 2015: “India is a secular country, but I don’t know how long it will remain so.” A sense of exasperation might have been behind his observation, but events since then could make one wonder whether the judge’s remark was meant to shake up those who are complacent about the future of secularism in India.
There is no denying the fact that India’s unique brand of secularism, despite being subjected to various stresses and strains, has proved resilient. India’s brand of secularism is a complex mix of constitutional provisions that guarantee all persons freedom of conscience and the right to free profession, practice and propagation of religion; the freedom to manage religious affairs; the freedom from being compelled to pay taxes to promote a particular religion; and protection of the interests of minorities. But the enforcement of these provisions, in practice, has given rise to a number of challenges from both the state and non-state actors. One only needs to read contemporary news headlines to understand the severity of these challenges to secularism. They appear insurmountable partly because India’s unique brand of secularism has not been sufficiently understood either by its contemporary rulers or by civil society.
India’s Constitution-makers did not feel the need to explain the unique brand, leaving it to lawmakers and the courts to make sense of it through constitutional provisions. Therefore, it is not surprising that the word “secularism” does not find mention in the original Constitution. As secularism finds expression in a number of constitutional provisions, the Constitution-makers rightly thought it unnecessary to proclaim India a secular Republic even in the Preamble. Besides, secularism being a complex term defied easy definition; therefore, putting it in the Preamble without defining it elsewhere would lend the term to various interpretations not originally envisaged by the Constitution-makers. So it was believed at the time of the making of the Constitution. But Parliament’s insertion of the word “secular” along with the word “socialist” to describe the Indian Republic in the Preamble during the Emergency (1975-77) was, to infer from the debates, aimed at emphasising the “larger objective”. That it was conceived by the rulers as just an objective in the mid 1970s showed that the country was still far from realising it fully.
A.R. Antulay, a Congress Member of the Rajya Sabha who participated in the debate then, explained why the Constitution-makers had not included the word secularism in the original Constitution: “Maybe, the conditions and circumstances, then prevailing, were not favourable. The split in the Congress in the wake of Partition and immediately after Independence, the country could not have afforded, perhaps the newly won independence would have been lost. Pandit Nehru, himself a personification of secularism and himself of socialist conviction must have sensed that…. [a] split within the Congress over socialistic and secular lines immediately after Partition, immediately after Independence, would have meant the loss of independence, perhaps.”
S.A. Khaja Mohideen, a Muslim League Member of Parliament, appealed to the government to include a definition of the term secularism in the Constitution to make it clear that Indian secularism meant non-interference by anyone, including the state or any other public authority in the religion, religious rights and religious affairs of any citizen. He said: “When we declare our country to be secular and socialist, it becomes essentially obligatory on the part of Parliament to see that equal opportunities are afforded to the minorities so that they may develop equally and thus enable us to establish a welfare society in this country.” Another Member believed that the inclusion of the word secularism in the Preamble would create the right atmosphere to urge minorities to play a positive role in the development and progress of the nation.
The then Prime Minister, Indira Gandhi, making an intervention during the debate, gave an interesting twist when she said: “The [British] historian [and biographer Hugh] Brogan describes the U.S. Constitution as having ‘acquired a patina of age that discouraged the irreverent hands of the renovator. Almost from the start, it was put into the care of a priesthood, the lawyers, who from time to time, have opened the Sibylline Book, and told the multitude what was the judgment of the ancestors on situations, which it is highly improbable that the ancestors had ever foreseen.’ Is this what we want for ourselves?” Reading the Constituent Assembly Debates to make sense of what the founders meant when they enacted a particular provision of the Constitution is a ritual for those seeking to interpret the Constitution. Originalism, as this is called, has often been criticised for its failure to admit that what the founders said may not be relevant for all time, and therefore, as an interpretative tool, it has its own limitations. Indira Gandhi’s attack on the originalists while trying to justify the 42nd Amendment (which was enacted during the Emergency) meant that she did not want the terms “socialism” and “secularism”, which were the sacred goals of the Constitution, to be left to the interpretation of judges. Endless debate on the meaning of these words would come in the way of their full realisation, and therefore, their insertion in the Preamble to the Constitution would give them a degree of certainty and emphasis, which the courts were unlikely to remove.
In the period following the Emergency, the Janata Party government reversed most of the features of the 42nd Amendment, which were inconsistent with democracy. But its attempt to provide a definition of the words socialism and secularism did not fructify (see “Preamble politics”, Frontline , March 6, 2015). It was felt that the then government’s move to confine the meaning of secularism to “equal respect for all religions” could actually limit the steps envisaged in the Constitution to ensure the freedom and protection of minorities. The government abandoned its move to define the term, conceding the reservations expressed by the Members of Parliament during the debate on the subject.
The controversy over the Goa conclave in June 2017 on Hindu Rashtra, organised by non-state actors with the connivance of the state, is sure to make observers question the motives of the present government, which two years ago saw nothing wrong in debating on the insertion of the word “secularism” in the Preamble. That debate, like the attempt to define the word in the Constitution, proved to be a non-starter.
As the Supreme Court has held in a number of cases, secularism not only is a basic feature of the Constitution beyond the amending power of Parliament but is its priceless jewel, which deserves to be jealously protected at all costs. In S.R.Bommai vs Union of India (1994), the Supreme Court emphasised that constitutional provisions by implication prohibit the establishment of a theocratic state and further prevent the state from either identifying itself with or favouring any particular religion or religious sect or denomination as it has been enjoined to accord equal treatment to all religions and religious sects and denominations.
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