Constitutional Provisions Regarding Secularism and related issues

The founding fathers of our country had a deep conviction that India should be established as a secular country given the diverse religious beliefs of its people. Thus, while framing the constitution, they made several provisions which unequivocally affirmed India as a secular country. Even though initially not written in the original constitution, the preamble of our constitution was amended in 1976 to explicitly proclaim India as a secular country. Various other provisions are as follows:

• Under the chapter on fundamental rights, Article 15 prohibits the state from discriminating between citizens on the ground of religion.
• Article 16 prohibits the state from discriminating between citizens in matters of public employment on the basis of religion.
• Under the “Right to Freedom of Religion” from Article 25 to 28, various provisions can be seen which again reinforce the ideal of secularism.
• Article 25 gives all persons in the country freedom of conscience and free profession, practice and propagation of religion.
• Article 26 provides freedom to all religious denominations to establish and maintain institutions for religious purposes, manage its own religious affairs, acquire and administer movable or immovable property.
• Under Article 27, no person can be compelled by the government to pay taxes for promotion of any particular religion.
• Finally, under Article 28, religious instruction is banned from being given in educational institutions maintained wholly out of state funds.
• Last but not the least, under Part 15 relating to conduct of elections, Article 325 provides that no person can be ineligible for inclusion in an electoral roll or can claim inclusion in a special roll on the grounds of religion.

Questions for Analysis

• Secularism was not found in the preamble of Constitution; and it was included by 42nd Constitution Amendment Act, 1976. Did the framers of constitution obviate the communal violence at the time of framing the constitution?
• May say that secularism’ in preamble has divided country into pigeon-holes of different ‘isms’. To what extent, this is correct?

Secularism was not found in the preamble of Constitution; and it was included by 42nd Constitution Amendment Act, 1976. Did the framers of constitution obviate the communal violence at the time of framing the constitution?

It wouldn’t be correct to say that our founding fathers obviated communal violence while framing the constitution. Communal violence in India had already raised its ugly head in 1946 before the Constituent Assembly began its work. So the constitution makers were aware of the need to contain it by providing enabling constitutional provisions. Thus, “public order” and “police” were listed in the State List in Schedule 7 of the Constitution, which gives state governments the exclusive right to legislate on these subjects. The State governments also exercise administrative control over the police force. Public order and police are state subjects because states are in a better position to legislate over them considering the widespread diversity in the country and the resultant difference in causes of public disorders in various states. For example, a state such as UP might face public disorder due to communal tensions while a northeast state may experience disruption of law and order due to insurgency. Also, the Union government would find it extremely difficult to manage the police force for entire country because of purely administrative reasons. Dividing the management of police forces between all states makes it administratively convenient and efficient. In addition, the founding fathers could also foresee situations when state government would be unable to maintain public order and protect people from harm. Thus, Article 355 was provided under “Emergency Provisions” of the Constitution. It imposes a duty on the Union government to protect every state from external aggression and internal disturbance and make sure that the state government is carried on in accordance with provisions of the constitution. Communal violence was very much in their mind when they used the words “internal disturbance” in this Article. Under this article, during incidents of communal violence when the state government has been unable to stop the killing of minorities, the centre has deployed armed forces and paramilitary forces to quickly bring about public order and save citizens, especially the vulnerable minorities. In fact, these powers of the centre were made explicit when entry 2A was added in the Union List through 42^ndAmendment in 1976. It reads as follows: “deployment of any armed force of the Union….in any State in aid of the civil power; powers, jurisdiction, privileges and liabilities of the members of such forces while on such deputation.” Thus, in addition to the implicit powers granted by Article 355, the union govt can now deploy armed forces in any state to control communal violence under a law made to give effect to entry 2A. Thus, considering all of the above evidences, it would be appropriate to remark that our founding fathers did not obviate the communal violence while framing the constitution.

 ‘Secularism’ in Preamble has divided country into pigeon-holes of different ‘isms’. To what extent is this correct?

In our constitutional scheme, a citizen of India is only an Indian. No person can claim himself to be a Hindu nationalist, Muslim nationalist, Sikh nationalist, Buddhist nationalist or Christian nationalist. These expressions denote that there is a ‘Hindu nation, Muslim nation, Sikh nation, Buddhist nation or Christian nation”. These expressions or thoughts are antithesis and abhorrent to the Constitution of India.  If India has to survive then only “Indianism” has to be there and all other “isms” have to disappear from the firmament of the country. However, there was no need to bring in the term “secularism in the Preamble of Constitution, as this expression had evoked a sharp reaction and “divided the people of India into “pigeonholes” of different “isms”. The constitutional provisions, in “loud and clear terms” forbid the use of such expressions. Any person “persisting” with their use had to be dealt with and proceeded against in accordance with the mandate contained in the Constitution and other laws of the land.

If India, which is created by its Constitution, which ‘we the people’ have given to ourselves, has to survive, then it is only “Indianism” which has to be there and all other “isms” have to disappear from the firmament of the country called India.”