India is a diverse country, the world's second most populated country which comprises rich cultural history . India comprises of various religion with Hindu being the highest with 79.8 of the total population , Islam being followed by 14.2% and other like Christianity, Sikhism, Buddhism and Jainism having 1.72%, 0.7% and 0.37% respectively .The constitution makers realised the diversity of the country and thereby laid down a basic foundation where no individual was suppressed on the ground of religion or belief that they choose to follow . The constitutional marker there declared India as a secular country and laid down various provisions pertaining to it .
Secularism means that the state doesn’t associate itself with any particular religion.The English word ‘secular’ comes from the Latin ‘saeculum’, which means ‘an age’ or ‘the spirit of an age’.The concept of secularism is a modern concept which is made for an ideal world. In India the word secular also derives the concept that the state doesn’t have any religion. It has based its foundation on the concept of respecting all the regions . It also gives its citizens the freedom of conscience and the freedom to profess any religion .The concept of secularism is a modern concept which is made for an ideal world .
India’s Secularism was first brought into fruition by Jawaharlal Nehru who devised a means to form a relation between the state and the religion . Jawaharlal Nehru described secularism as an honour for the state to serve all the faiths equally and provide them with equal opportunity . The concept of secularism was however first realised by Mahatma Gandhi . However, Mahatma Gandhi was of the belief that there can not be a religion without politics .He described the relationship between politics and the religion and how they are inseparable entities stating it is due to the sheer dominance of religion .
The aspects of secularism were added to the preamble of the Indian Constitution in the 42nd amendment in the year 1976 . The following has been enshrined on the line “We, the people of India , having solemnly resolved to constitute India into Sovereign ,Socialist ,Secular ,Democratic, Republic and to secure to all its citizens”.
The fundamental right also lays down the rights to freedom of religion within Article 25 and Article 28 . These rights allow one to freely profess their religion and promote their religion. The state doesn’t force the citizen to hold belief in a certain manner. The following have been laid down under the concept of conscience which allows the citizen to mould the law in whatever manner they deem to be fit . Under the Constitution of India it provides for the right to equality under Article 15 and Article 16 which states that no person should be discriminated against on the basis of their beliefs . Article 29 and 30 allows the citizen with the right to promote the cultural and education of Minorities .Article 51A provides for fundamental duties which states that it is an obligation of every citizen to promote harmony among the brotherhood and preserve its rich heritage.
The government aims to not intervene into the practises of the religion however wherever it is of the belief that there has been infringement of any second individuals rights , the practise is discriminative or against the public interest it takes into consideration. The following has led to development in the scope of religion but also opened a floodgate of criticism .
The major interventions by the government have been seen on the topic of marriage by establishment of various laws and ordinances such as the U.P. Unlawful Religious Conversion Prohibition Ordinance 2020. The government is also trying to implement the Uniform Civil Code (UCC ) to provide provisions which might be applicable on all religions.It is aset of common rules or provisions which are set to be utilized instead of the personal laws that exist in the land . A prime example of the Uniform Civil Code is the Special Marriage Act .
Laws have also been formed based on ancient text which prescribes the source of the law . Hindu law has been derived from the Shruti ,Smritis , digest and customs which has given birth to acts such as Hindu marriage act and Hindu Succession Act to name a few . The Hindu Law is further subjected to the two major schools which are The Mitakshara School and The Dayabhaga School or Bengal School .
The source of Muslim law has been derived from sources such as The Quran, The Sunnah, Ijma and Qiyas however unlike Hindu Law Muslim Law is an uncodified law. The Muslim Law is divided further in two categories Suni and Shiya . The Sunni Law has the four schools of law which are The Hanafi School , The Maliki School , The Shafi School and The Hanbali school
These laws were further enhanced by the modern sources of law Equity, justice, and good conscience. The laws are also greatly impacted by the legislations of the country and the precedents i.e. Judicial pronouncements .The concept of freedom of religion has also been greatly affected by the judicial pronouncement over the course of several years. These have led to both empowering and restricting religious practice for the purpose of benefiting the public at large .
A custom is a valid custom if it has complied with all the necessary grounds which are essential .The custom should have been in practice for a long duration i.e. ancient . It must be continuous, which means there shouldn't be a period where the continuity of it has been affected. It should comply with the rules of other customs as well as the law of the land .It must have a legal ground backing it up and must not be arbitrary . There shouldn't be any grey area i.e. there must be clarity in how the customs are to be performed .The custom may be given legality either by legislation or by judicial pronouncement .
In Rev Stanislaus v State of MP it was held that the individual's right is limited to choosing one's own belief but one can’t force their belief on another individual the following has been guaranteed under the Right to conscience .
In Mohammad Ahmed Khan v. Shah Bano Begum The Supreme Court gave verdict in favour of Shah Bano by applying section 125 of Indian Criminal Code and it is applied to all citizens irrespective of religion.
In Sarla Mudgal v Union of India , it was held that conversion of religion can’t take place for the sole purpose of wrongful gain and invalidating marriage .
In Church of God (Full Gospel) in India v K.K.R.M.C Welfare Association , it was held that one's right to profess their religion does not provide the power to create noise pollution.
In SR Bommai v. Union of India , it was held that India as a country is secular as it allows the citizens to take part in any religion without stating any particular religion.
In Ass Kaur v. Kartar Singh , it was held where the court has time and time again declared a certain custom that there is no necessity to prove the Custom by producing evidence .
In Shafin Jahan v. Ashokan K.M , the court held that one has the right to marry whoever they may seem fit irrespective of the religion of that individual .
In Ahmedabad St. Xavier’s College v. State of Gujarat, the supreme court held that the term secularism doesn’t mean anti-god nor pro-god . It means that no one is discriminate on the grounds of religion.
The State acts for the welfare of the country when it chooses to make changes to the manner in which one's religion is guided by law . The state is required to always act in benefit of its people and to remove arbitrary practises or any other practise which is unnecessary and affects the public morals .
The state being acting for the safety of its citizens is not a new concept as the following was evident in the year 1829 during which due to the efforts by Dr.Raja Ram Mohan Roy that the culture of Sati was abolished by Lord William Bentick . In recent times such restrictions are visible in the instances where the government restricts activities such as usage of microphone and speakers as they arent hurting the sentiments of any community .
The state has made various efforts to curb the concept of Unlawful Conversion which has been defined as a conversion made either by force , fraud , undue influence or allurement . Each state has implemented its own provisions to curb such conversion .
The establishment of the Uniform Civil Code has allowed the individuals to have a ground for obtaining justice in the areas where they might be exploited under their personal laws . The Uniform Civil Code allows such individuals to have protection of law under their fundamental right and other constitutional rights .
The law has also empowered its citizens to marry whomever they seem fit irrespective of religion or caste, a fundamental right that has been enshrined to its citizens under Article 21 of the Indian Constitution . This has been achieved by the provisions under the Special Marriage Act .
Secularism as a concept that revolves around the state not intervening with matters pertaining to religion . It allows the individuals to mould their religion in whatever form they see fit . However despite the following it is imperative for the state to implement some restrictions in order to prevent an uproar .
The laws lay balance between the practises of the various communities and it is bound to deem some activities as invalid on the grounds of not being an essential practise of the committee . This leads to the belief in the minds of the people that there is a manner of bias and one community in favour in the eyes of the state .This leads to civil unrest in the country .
The restrictions laid down by the state are often vague with no specificity towards it .It often lacks the provision to explain in detail and expand upon limitations and rather consist of broad definitions . The act lays down procedures for various circumstances which are long and tedious.
The introduction to the Uniform Civil Code has also been met with several criticisms as it serves the purpose of negating the Religious practises of a community in favour of a law that is applicable to all citizens . It is a belief that it is not ideal for all the religions as different religions may have different circumstances and one law is not sufficient to curb the demand for the diversity of all the communities .
Alterations to the religious practises are often made by those who do not profess it . This leads to a lot of controversy as it is often criticised how an individual not part of a religious committee can determine the essential nature of the practise.
India is an extremely diverse country which has inherited rich cultures from various parts of history. Its citizens have the privilege to practise their belief in peace without any pressure from the state. However with such a wide variety of religions and beliefs that exist in India it is imperative that the authorities have an oversight into the various aspects of the religion to prevent any second individuals rights being violated and to ensure the maintenance of peace throughout the country . There are various downsides to the intervention of law in the matters of religion however those are essential for the purpose of maintaining law and order . It also ensures that no individual is exploited either within the religious community or outside of it .
India is a developing country which follows common law .This allows the law of the land to be ever evolving to be able to adapt to the changes of the society and other environmental factors . It embrasses the growing norms to ensure empowerment of every individual and to prevent any individual from being oppressed under the past mindset .
Ahmedabad St. Xavier’s College v. State of Gujarat 1975 SCR (1) 173
Ass Kaur v. Kartar Singh
Church of God (Full Gospel) in India v K.K.R.M.C Welfare Association AIR 2000 SC 2773.
Constitution of India
Erja Marjut Hänninen. (n.d.). THE CONTEST OF INDIAN SECULARISM.
India, legal S. (n.d.). Secularism under the Constitutional Framework of India - Secular India. Legal Service India. http://www.legalserviceindia.com/articles/ct.htm.
Mohammad Ahmed Khan v. Shah Bano Begum 1985 SCR 844
Rev Stanislaus vs Madhya Pradesh, 1977 SCR (2) 611
Sarla Mudgal v Union of India AIR 1995 SC 1531
Shafin Jahan v. Ashokan K.M (2018) 16 SCC 368
SR Bommai v. Union of India 1994 AIR 1918
-Srijan Jeevesh Jha from Amity University , Noida
NAME - Srijan Jeevesh Jha
Course - BBA.LL.B(H)2018-2023
University - Amity University , Noida
Email - firstname.lastname@example.org
May Group 2