Secularism

Introduction

The term ‘secular’ means that there is no official State religion. The State does not favour or promote any particular religion. It is not identified by any religion, but that all religions hold the same place, same respect in its structure. A secular State does not interfere with man’s relationship with God. It does not promote one religion at the expense of another, nor are people belonging to any particular religious faith subjected to persecution or hardships because of the religion they follow.

Constitution of India

The Constitution of India declares that India is a secular country. The Apex Court has observed in the case of S.R. Bommai v Union of Indi[1]a, that secularism is the basic structure of the Constitution. In Bal Patil v Union of India[2], it was observed that the concept of secularism means that the State will have no religion.

Preamble to the Constitution

WE, THE PEOPLE OF INDIA, having solemnly resolved to constitute India into a SOVEREIGN SOCIALIST SECULAR DEMOCRATIC REPUBLIC and to secure to all its citizens:

JUSTICE, social, economic and political;

LIBERTY of thought, expression, belief, faith and worship;

EQUALITY of status and of opportunity;

and to promote among them all

FRATERNITY assuring the dignity of the individual and the unity and integrity of the Nation;

IN OUR CONSTITUENT ASSEMBLY this twenty-sixth day of November, 1949, do HEREBY ADOPT, ENACT AND GIVE TO OURSELVES THIS CONSTITUTION

THE Preamble defines India to be a secular country. It states that all the citizens have got the liberty to follow their own faith and worship.

The concept of secularism is further expressed under the chapter on fundamental rights wherein the right to equality clearly stresses that there shall be no discrimination on the ground of religion. Articles 14 to 17 of the Constitution clearly point out that religion cannot be made a determining factor in establishing any rule or policy. Equality in all wakes of life is promoted.

Article 51(A)(e) further provides that it is the duty of every citizen of India to promote harmony and the spirit of common brotherhood amongst all the people of India transcending religious, linguistic and regional or sectional diversities.

Chapter III: Fundamental rights

Right to religion:: Articles 25 to 28

Article 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 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

Article 25 guarantees the freedom to profess, practice and propagate religion. However, this is subject to the conditions of public order, morality and health. Thus, the usage of loudspeakers for religious ceremonies is not considered to be an essential part of practice of religion.[3]

Similarly, forceful conversions cannot be a part of propagation of religion.[4]

Article 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

State can make law to regulate the administration of property of any religious endowment, but that law cannot take away the right of administration.

Article 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 religious denomination

Article 28: Freedom as to attendance at religious instruction or religious worship in certain educational institutions

 (1) No religion instruction shall be provided in any educational institution wholly maintained out of State funds

 (2) Nothing in clause ( 1 ) shall apply to an educational institution which is administered by the State but has been established under any endowment or trust which requires that religious instruction shall be imparted in such institution

 (3) No person attending any educational institution recognised by the State or receiving aid out of State funds shall be required to take part in any religious instruction that may be imparted in such institution or to attend any religious worship that may be conducted in such institution or in any premises attached thereto unless such person or, if such person is a minor, his guardian has given his consent thereto Cultural and Educational Rights

In the case of Aruna Roy v Union of India[5], the Court observed that recommending that students be made acquainted with the basic tenets of all religions does not go against the provisions of Article 28.

Offences under the Indian Penal Code, 1860

CHAPTER XV: OF OFFENCES RELATING TO RELIGION

Sections 295 to 298 of the Indian Penal Code deal with the various offences relating to religion. These offences comprise of insulting or defiling any place of worship or any place or object that is held sacred by any religious community. It also makes it an offence to deliberately or maliciously hurt the sentiments of any religious community.

Section 295: Injuring or defiling place of worship, with intent to insult the religion of any class.--Whoever destroys, damages or defiles any place of worship, or any object held sacred by any class

of persons with the intention of thereby insulting the religion of any class of persons or with the knowledge that any class of persons is likely to consider such destruction, damage or defilement as an insult to their religion, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.

Mens rea is an important aspect under this section. Thus, any individual who maliciously does an act to offend the sentiments of any community is held liable.

Section 295A: Deliberate and malicious acts intended to outrage religious feelings of any class by insulting its religion or religious beliefs.--Whoever, with deliberate and malicious intention of outraging the religious feelings of any class of citizens of India, by words, either spoken or written, or by signs or by visible representations or otherwise  insults or attempts to insult the religion or the religious beliefs of that class, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.

While in Rajpaul’s case[6] (also known as the Rangila Rasool case), the court had observed the lacuna in law and not punished the offender, the same court in the case of Devi Sharan Sharma v Emperor[7], it was held that an offensive attack on any religion or its founder is an offence.

In Ramji Lal Modi v State of Uttar Pradesh[8], section 295 A was held to be constitutionally valid and not infringing the freedom of expression guaranteed under Article 19(1)(a).

In Baba Khalil Ahmad v State of Uttar Pradesh[9], it was held that the writing must be with deliberate and malicious intention of outraging the religious feelings of a class of citizens of India.

Section 296: Disturbing religious assembly.--Whoever voluntarily causes disturbance to any assembly lawfully engaged in the performance of religious worship, or religious ceremonies, shall be punished with imprisonment of either description for a term which may extend to one year, or with fine, or with both.

In Ata Ullah v Azim Ullah[10], it was observed that disturbance means that the peace or quiet of a peaceful and lawful assembly should not be interfered with noise or otherwise. It does not mean that the assembly should actually be stopped.

Section 297: Trespassing on burial places, etc.--Whoever, with the intention of wounding the feelings of any person, or of insulting the religion of any person, or with the knowledge that the feelings of any person are likely to be wounded, or that the religion of any person is likely to be insulted thereby, commits any trespass in any place of worship or on any place of sepulture, or any place set apart for the performance of funeral rites or as a depository for the remains of the dead, or offers any indignity to any human corpse, or causes disturbance to any persons assembled for the performance of funeral ceremonies, shall be punished with imprisonment of either description for a

term which may extend to one year, or with fine, or with both.

The provisions of this section are attracted only if an act is done with a deliberate intention to wound the feelings or with the knowledge that the feelings are likely to be wounded or the religion of a person is likely to be insulted.

Section 298: Uttering words, etc., with deliberate intent to wound religious feelings.--Whoever, with the deliberate intention of wounding the religious feelings of any person, utters any word or makes any sound in the hearing of that person or makes any gesture in the sight of that person or places any object in the sight of that person, shall be punished with imprisonment of either description for

a term which may extend to one year, or with fine, or with both.

There must be a deliberate intention to wound the feelings and the same can be judged from the usage of words as well as the acts of the accused. An act that is done with premeditation and realisation of the fact that it would hurt the feelings comes under the purview of this section.

Election laws

Under the provisions of Section 123 of the Representation of People Act, 1951, both the acts of asking votes on the ground of religion as well as promoting enmity on the ground of religion, race, etc are electoral offences.

Conclusion

India is a secular nation and does it does not promote any particular religion nor does it tax the other. The State provides a peaceful environment for the citizens to follow their own respective faith and beliefs. The law aims at providing freedom of practicing and propagating religion while laying down certain restrictions based on public order, morality or health. The law prohibits any act that aims at creating disharmony between classes of citizen on the ground of religion.

---

[1] AIR 1994 SC 1918

[2] AIR 2005 SC 3172

[3] Church of God (full Gospel) in India v  K K R Majestic Colony Welfare Association, AIR 2000 SC 2773

[4] Stainislaus v State of Madhya Pradesh, AIR 1977 SC 908

[5] AIR 2002 SC 3176

[6] Rajpaul v Emperor, AIR 1927 Lah 590

[7] AIR 1927 Lah 504

[8] AIR 1927 SC 620

[9] AIR 1960 All 715

[10] (1890) ILR 12 All 494 (FB)