Secularism in India and the Basic Structure Doctrine

The Indian understanding of secularism is distinctly different from the western world’s understanding of the same, even though the underlying spirit remains the same.  The reason for this divergence is attributable to the evolution of the concept of ‘secularism’ in the west and in India. While secularism was evolved as a mode to end the conflict between the Church and State in the west, it arose as a response to the pluralistic nature of society in India.

Constitutional Status

India was declared a secular state by an amendment to the Preamble of the Constitution in 1976 by the 42^nd Constitutional Amendment.

The Constitution specifically addresses the issue of the state’s influence over religious bodies. The Seventh Schedule to the Indian Constitution clarifies that both the central and the state governments can exercise control over religious institutions, charities and trusts. Of course, in the event of an overlap, the legislation passed by the central government prevails over the one of the state government.

Part III of the Constitution enumerating the fundamental rights specifically counts the following as rights:-

• Right to not be discriminated on the basis of one’s religion
• Right to profess, practise and propagate any religion
• Right to establish and maintain institutions for religious and charitable purposes including the institution’s right to manage its own affairs, own and acquire moveable and immovable property and administer the property in any way it deems fits, within the bounds of the law
• Right of the state to regulate or restrict any activity associated with religious practice, be it economic, financial, political or secular
• Right to not be compelled to pay taxes where the funds so raised will be used to promote or maintain any religion
• Right to not be denied admittance from any educational institution, maintained wholly out of state funds or partially through aid from the state, on the grounds of religion
• Right of religious minorities to establish and administer educational institutions

No religious instruction will be provided in an educational institution wholly funded by the state. Institutions established by a trust or under an endowment which stipulates religious learning are exempt from the above stated rule. Also, no individual in an institution recognised or partially funded or aided by the state will be mandatorily required to attend any religious worship conducted in or by the institution
Thus, in India, the state is not required to stay away from religious affairs, but to show no bias towards one particular religion.

India also has broad-based personal laws that take into consideration the stipulations of different religions. However, the goal is to establish a uniform civil code as evidenced by Article 44 of the Constitution of India which enumerates the establishment of a uniform civil code as a Directive Principle of State Policy.

Basic structure

The doctrine of basic structure as upheld in the Kesavananda Bharati case, identified certain constitutional principles and values which composed the basic foundation and structure of the Constitution, and held that such aspects cannot be altered through constitutional amendments. Multiple constitutional cases especially the S.R.Bommai case have since ruled that secularism forms the basic structure of the Indian Constitution. In the Ayodhya case, the Court opined that the secular nature of India would form the basic structure of our Constitution, even if it hadn’t been specifically mentioned in the Constitution

However, despite all this, there is a need to define what secularism means to India and Indians, and how it translates in implementation.