NATIONAL LAW SCHOOL OF
INDIA UNIVERSITY, NAGARBHAVI, BANGALORE
FREEDOM OF RELIGION IN SECULAR STATE
KISHOR KUNAL
INTRODUCTION
State plays a vital role as an initiator and enforcer of values of
human rights and welfare in the society. It exercises its distinct power that
indirectly influences the pattern of religious life. It resolves
inter-religious conflicts by ensuring communal harmony and by facilitating
religious acts, it plays crucial paternal role in the society. Religion plays
an important role on the social and individual life in traditional societies as
that of India, because it overemphasises on customs and usages, and therefore
sometimes it hinders modernisation of the society. Social transformation with
the help of law creates practical problem. Therefore, it is the society which
prepare itself for an orderly development by respecting paramount human values.
State’s decision to keep distance from all religions and an approach of
impartiality in treatment provide soberness and legitimacy for state action.
This policy encourages multiculturalism and this approach sets ways and limits
to regulate the attitude and mindset amidst different religious communities.[1]
The vision of the founding fathers was that of a nation transcending
all diversities of religion, caste and creed. They were not against any
religion and they hoped that religious differences would not affect nation’s
integrity. The Constitution of India envisages a new social order free from
communal conflicts and based on justice, social, economic and political.
The Indian State continues to recognise various religions and
religious organisations. But, at present religion and society have become more
interlocked. The working of the Constitution during the last four decades and
more has shown that there is increasingly greater emphasis on religion,
community and caste than ever before. Maulana Azad had said that :
“The palm of almost every politician
bears the blood stains of a bleeding secularism. With the process of
deideologisation nearing completion, casteism and communalism are bound to step
in as successors, no matter how illegitimate they are ....Now no party can
think of setting up a candidate without any caste and communal considerations.
In fact the spirit of nationalism has waned so precipitously under the impact
of competitive politics of elections that all kinds of particularistic trends
are on the rise and Indians without denominational labels are a dying species”.
i) MEANING AND CONCEPT
OF RELIGION :-
The constitution does not define “religion” anywhere, but the
Supreme Court gave a comprehensive definition of religion in Commr. HRE v. L.T. Lakshmindra Thirtha
Swamiar of Sri Shirur Mutt[2]
in the following words :
“Religion is
certainly a matter of faith with individuals or communities and it is not
necessarily theistic. There are well known religions in India like Buddhism and
Jainism which do not believe in God or in any intelligent First cause. A
religion undoubtedly has it bases in a system of beliefs or doctrines spiritual
well being, but it would not be correct to say that religion is nothing else
but a doctrine or belief. A religion may not only lay down a code of ethical
ceremonies and modes of worship which are regarded as integral parts of
religion, and these forms and observations might extend even to matters of food
and dress.”[3]
Religion means that human behaviour which is based on the concept of
supernatural power and is considered beneficial. Some religions conceive the
idea of only one supernatural power, while others based on of may such powers.
The religious behaviour can be both social as well as individual .Similarly, it
may be of mental or physical. For eg:- the concept of Lord Vishnu or Shiva is
the same of supernatural power. Therefore, the love, affection, fear, feeling
of bonding, agony of separation are mental act of religious behaviour whereas
building temples, offering pooja, pilgrimage, singing devotional songs,
obeisance, ecstatic dancing are physical acts.[4]
The characteristics and validation or testimony of religion are
mutually dependent, therefore, it is necessary to reflect on the nature of the
testimony of religion. The validation of religion implies a procedure or method
by which one can decide whether a particular principle or aspect of religion is
true. There are two ways of validating religion :-
a)
By Emperical knowledge
b)
By transcendental method
There are two views of religious validation.
According to the first, religion can be discerned with human intellect. A
religious or irreligious act can be decided only by human intellect. Every
religion has originated out of the human experience and thought. The Vedas, the
Avesta, the Bible,the Koran and all othr religious books are the fruition of
human mind. All religion is the outcome of a man’s mental effort, just as all
other product like- agriculture, commerce, sculptureetc.
The second view which is known as
materealist doctrines of religion or Laukikapramanavad is based on the theory
that the understanding of religion and irreligion is possible only by an
extraordinary supernatural intellectual or mental operation. This supernatural
means of understanding is given may names such as insight, spiritual
revelation, the yogic manifestation reaching beyond senses etc.
ii) MEANING OF SECULARISM
:-
According to Webster's dictionary the word 'secularism' means a
sprit or tendency especially a system of political or social philosophy that
rejects all forms of religious faiths or worship or the view that the matters
of civil policy should be conducted without the influence of religious beliefs:
Oxford dictionary defines the word 'secular' as concerned with the affairs of
this world, worldly not sacred, not monastic, not ecclesiastical. The main
object of secularism may be stated as: “Let the state and religion not get
mixed together, otherwise the policies of the state would be based upon
theocratic values and the persons in power may favour or disfavour one religion
or the other.” There is an apprehension that prejudice may be caused to one
religious community vis-à-vis the other. Secularism implies non-interference of
state in the affairs of religion and at the same time also of religion in the
affairs of the state. Secularism under the law means that state shall not have
loyalty towards any religion and it has no religion of its own. It protects all
religion viz, Hindu, muslim, Christian, parsi etc. Every person has a right to
relate himself with god according to his own conscience.
According to Ananthasayanam
Ayyangar Secularism did not mean
irreligion. He said, “I do not, by the woed ‘secular’, mean that we do not
believe in any religion, and that we have nothing to do in our day-to day life.
It only means that the State or Government cannot aid one religion or give
preference to one religion as against another. Therefore it is obliged to be
absolutely secular in character, not that it has lost faith in all religions”[6].
Jawaharlal Nehru not only ruled out the concept of communal or religious state,
and said, “We are building a free secular state, where every religion and
belief has full freedom and equal honour, where every citizen has equal liberty
and equal opportunity”.[7]
VIEWS
OF APEX COURT:
In S.R Bommai V. Union of
India[8]
the Honourable Supreme Court held that “Secularism” is the basic feature of the
constitution and declared the dismissal of the BJP government in Madhyapradesh,
Rajasthan and Himachal Pradesh in the wake of the Ayodhya incident of December
6, 1992 was valid. The Honourable Court held the imposition of President’s rule
in these states as constitutional. The court obsereved that ‘Secularism’ is the
basic feature of the Constitution and any state government which acts against
that ideal can be dismissed by the President. It was held that in matters of
State religion has no place.
Secularism means – (a) reduction of religious
complexities particularly when such complexities adversely affects the other
religion.
(b) controlling the non-religious activities associated with a
particular religious practice. Eg :- In Bhuri Nath V. State of Jammu and Kashmir[9]
the Honourable Supreme court held that the appointment of the head priest of
the Vesno Devi Shrine can be controlled or done by the State. Because, how to
perform the puja is a religious matter but who will perform the puja is a
secular or a religious matter associated with the religious practice.
(c) promoting the secular values in the society. For example- In Lata singh v. State of Uttar Pradesh[10]
the Honourable Supreme court has gone to the extent upholding that caste
barriers in the societal interaction is anti secular. Inter-caste marriages
shall be promoted, protected and conserved by the state to promote greater
secular values.
Explaining the secular character of the Indian Constitution the
Supreme Court said, “There is no mysticism in the secular character of the
State. Secularism eliminates God from the matters of the State and ensures that
no one shall be discriminated against on the ground of religion.[11]The
church, mosque or temple should have been equally treated by the state.
Worshipping God should be according to the dictates of one’s own conscience.[12]
The man has right to worship in whatever manner he pleases. There can not be
compulsion in law of any creed or practice of any form of worship.[13]
Therefore, we can see that the courts first declared secularism to be part of
the unamendable basic structure of the Indian Constitution in the Keshavananda
Bharthi case. However it was not until the Bommai case that the court
comprehensively argued for and defended secularism’s place in the Constitution.
Bommai case elaborate the interventionist structure of the Indian Constitution
to define secularism as allowing the court to intervene and deal with situations
where communal harmony and tolerance are under imminent threat.[14]
iii) Meaning of Secular
State :-
Secular State :- A secular state does not mean an irreligious state rather it
means that in the matters of religion it will remain neutral. The state will
not have any religion of its own i.e it will not promote any religion and at
the same time it interfere with none. Secularism oreflects a policy of
religious non- discrimination and equal liberty for all, including believers
and non- believers. Although it connotes irrelevance of, and indifference to
religions and exclusion of religious consideration and suggests for rigid wall
of separation between state and religion. Its logical delineation in the
religion-ridden world does not necessarily require such wall of separation. A
Secular state is a state which guarantees individual and corporate freedom of
religion. It considers individual as a citizen irrespective of his religion i.e
it is not constitutionally connected to a particular religion nor does it seek
either to promote or interfere with religion.[15]This
proposition contemplates guarantee of religious freedom to all both individual
and groups subjects to legitimate restrictions in the interests of safety,
public order and morality. P.K Tripathi recognises three important features of
secularism envisaged in the Constitution :
i)
Giving primacy to the
individual by placing him before and above religion;
ii)
Recognising freedom of religion
and religious denomination as incidental only to his well being and
iii)
to a general scheme of his
liberty and enunciation of the principle of tolerance. [16]
The irrelevance of religion or dharmanirapekshata approach is vital
and consists in equal respect and treatment of all religions and commitment to
tolerance, which is also known as sarvadharma sambhava[17]
along with other basic values of the Constitution.
SECULARISM UNDER INDIAN CONSTITUTION
Art.
25-28 of the Indian Constitution lays down the provisions relating to ‘freedom
of religion’. The word ‘religion’ is not defined in the Indian Constitution.
The word ‘Secular’ was inserted in
the preamble of the Indian
constitution by the 42nd
amendment Act-1976. The purpose of this Amendment was intended merely to
spell out clearly the concept of ‘Secularism’ in the Constitution. Indian
Secularism does not considers a secular state as irreligious or atheistic
State. India has ancient doctrine that state protects all religion but
interferes with none.[18]
i)
CONSTITUTIONAL PROVISIONS :-
Various provisions of Indian Constitution
contemplate the secular nature of India. Article 14,15,16,17 along with Article
25-28 and 44 sufficiently provides intention of the framers of the
Constitution. Article 15(1) provides that the State shall not discriminate
against any citizen on grounds only of religion, race, caste, sex, place of
birth or any of them. Article 15(2) provides that “no citizen on the ground
only of religion, race, caste, sex, place of birth or any of
them.............”. Thus, Article 15 promotes the notion of Secularism.
Similarly, Article 16 prohibits discrimination on the ground religion in public
employment. Article 17 prohibits untouchability and provides bedrock of
secularism.
Under Art.25 of the Indian
Constitution “.........all persons are
equally entitled to freedom of conscience and the right freely to profess,
practice and propagate religion”. However state can impose restrictions on this
freedom on the following grounds[19]-
(i) public order, morality and health; (ii) other provisions of the
constitution; (iii) regulation of non-religious activity associated with
religious practice; (iv) social welfare and reform; (v) throwing open of Hindu
religious institutions of public character
to all classes of Hindus. In Stainislaus
Rev. V. State of M.P[20]
it was observed the freedom of one cannot encroach upon a similar freedom
belonging to other persons. Freedom of religion does not mean forcible or
fraudulent conversion and any such conversion would be violative of this
article[21].
The provision of this Article is not limited only to citizens of India but it
is also available to the aliens,[22]
and individuals exercising their rights individually or through institutions.
Subject to the other Provisions
of this Part – The freedom of religion under Art.25
is subject to the interest of the public order, so that it could not authorise
the outrage of the religious feelings of another class, with a deliberate
intent.[23]
Similarly, the word morality and health gives the power to the competent
legislature to prohibit deleterious practices. Eg:- sacrifice of human beings
in the name of religion; or to direct the exhumation or removal of graves or
interred corpses for the purpose of detection of crime or for preventing breach
of the peace between fighting communities;[24]
or tandav dance performed by anandmargis on the public street.[25]
Restrictions on freedom of
religion under Art.25 :-
1)
Religious freedom subject to
public order, morality and health –
2)
Regulation of economic,
financial, political and secular activities associated with religious practices
(Art.25 Clause (2) (a)) – The freedom to practice religion extends to only
those activities which are the essence of religion. It is difficult to decide
which activities actually fall under religious practice or which are of secular
or commercialor political nature. Each case must be judged by its own facts and
circumstances. In Mohd. Hanif Quareshi v. State of Bihar[26]
the petitioner claimed that the sacrifice of cows on the occasion of Bakrid was
an essential part of his religion and therefore the State law forbidding the
slaughter of cows was violative of his right to practise religion. The court
rejected this argument and held that the sacrifice of cow on the Bakrid day was
not an essential part of Mohammedan religion and hence could be prohibited by
State under clause (2) (a) of Article 25.
Following this decision in State
of W.B v. Ashutosh Lahiri[27],
the honourable high court held that the slaughter of cows by members of muslim
community on Bakrid day was not an essential tenets of muslim religion.
Therefore, the exemption of slaughter of cows from the operation of the West
Bengal Animal Slaughter Control Act, 1950, on Bakrid day is valid.
3)
Social welfare and Social Reforms clause (2)(b) – Under clause (2) (b) of Art. 25 the State is empowered to make
laws for social welfare and social reform. Therefore, under this clause the
state has power to eradicate social practices and dogmas which stand in the path
of the country’s future progress. Such law does not affect the essence of any
religion. In other words, when there is conflict between the need of social
reform and welfare on one side and religious practice on the other , religion
must yield. An Act which prohibited bigamy was held valid in State of Bombay v. Varasu Bopamali[28],
polygamy is not an essential part of the Hindu religion. Under this clause
state has power to throw open all Hindu religious institutions of a public
character, to all classes and sections of Hindus.
State can not discriminate among any
person for the purpose of entering into a temple on the ground of caste,
untouchability etc. Therefore, temple, gurudwara, jain temples and budh bihars
can be thrown open to all sections of hindus. However, right protected under this clause is
not absolute. For example, no person can claim that he has a right to visit
temple or gurudwara for worship at all hours of the day; or that he has a right
to perform puja which is generally [29]done
by the acharya of the temple[30].
Similarly, the wearing and carrying of
kirpan in the sikh religion does not mean that they can keep any number of
kirpans as they wish. He is entitled to keep only one. Therefore, we can say
that freedom of religion under Art.25 of the Indian Constitution is a
significant feature of secularism but it does not provide absolute right. State
is empowered to impose reasonable restrictions if the act done on the name of
right of freedom of religion is not in the interest of society.
Article 28 guarantees- i) certain degree
of religion-state separation in the field of education, ii) right to endowment
or trust educational institutions to impart religious education, and iii) right
to option to every person with regard to receiving religious instruction or
participating in religious worship in any state recognised or aided educational
institution. Article 29 and 30 guarantees ‘cultural and educational rights to
i) every linguistic, scriptorial or cultural section of the citizens of India,
ii) every citizen of any religion, race, casete or language,iii) every
religious or linguistic minority, and every religious or linguistic minority
educational institution[31].
ii) CONSTITUTIONALITY OF ANTI-CONVERSION LAWS
For a long time, Hindus of higher caste discriminated and dominated
against the Dalits. This discrimination of such a serious in nature that the
framer of the Constitution of India incorporated Article 17 and abolished the
untouchability. Inspite of several laws the discrimination still exists in the
society. This discrimination and bad economical and social condition of Dalits
gave an opportunity to the people of other religion to make them convert in
their own religion and this lead to Anti- conversion laws in India.
Anti- conversion laws were
enacted to prevent people from being unethically converted from one religion to
another. It has long history in India and some princely states enacted them as
early as the 1930s.[32]Some
states enforced anti-conversion laws mainly against Muslims in early of 1980s.[33]
These states also begin to enforce these laws against Christian since 1990s.
Basically, the Indian Constitution provides for freedom of religion, therefore
advocates of anti conversion laws believe that they can promote religious freedom by protecting
people from forced conversions.[34]
However, those against anti-conversion law believes
and argues that the anti-conversion laws infringe the fundamental right of
freedom of religion of convert the religion of their own choice.
The first post-colonial anti-conversion laws were passed in the states of Orissa and
Madhya Pradesh in the 1960s.[35] Later on, other states used them as a starting point for their own
anti-conversion law. Since 2002, Indian States passed various anti-conversion laws.
For eg:- State of Tamilnadu passed the
Prohibition of Forcible Conversion of
Religion Ordinance on October 5, 2002.
However, the state government had to revoke it due to public outcry.
Similarly, the State of Himachal Pradesh passed the Himachal Pradesh Freedom of
Religion Act 2006 in December 2006. A similar law was passed in Rajasthan in
April of 2006 and Gujarat was the latest state to propose an anti conversion
law when it did so in August of 2007. The Constitutionality of these laws have
been challenged before the court various times, and the Supreme Court of India
held most of them valid within the purview of Entry I of List II as they were
meant to avoid disturbances to the public order by prohibiting conversion from
one’s religion to another in a manner reprehensible to the conscience of the
community.
iii) NEED
OF UNIFORM CIVIL CODE AS A PART OF
SECULARISM :-
Uniform
Civil Code can be a good step on the part of the State for promoting Secularism
in the Society. Article 44 of the
Constitution says: “The State shall endeavor
to secure for the citizens a uniform civil code throughout the territory
of India”[36].
Article
44 is included in part IV of the Constitution
which is Directive Principles of State Policy(hereinafter DPSP).
However, if we consider the later part of Art.37 it says that the principles
therein laid down are nevertheless fundamental in the governance of the country
and it shall be duty of the state to apply these principles in making laws[37].
Therefore the non justiciability clause
only provides that the infant State shall not be immediately called upon to
account for not fulfilling new obligations laid upon it.
The
fathers of the Constitution had witnessed the baneful effects of a claim for
separate identity of the Muslim community on the ground that their religion
prescribed a separate Personal Law,-resulting in the lamentable Partition of
India on the footing of the theory of ‘two nations’, founded on two religion.
Hence, in the Constituent Assembly it was made clear that in a secular state
personal laws relating to such matters as marriage, succession and inheritance
could not depend upon religion, but must rest on the law of the land. A uniform
Civil Code was accordingly necessary for achieving the unity and solidarity[38]
of the nation, which was envisaged by the very Preamble to the Constitution of
divided India. As Justice Chandrachud has said Indian Constitution is founded
on the bed rock of balance between Part III and IV, to give absolute primacy to
one over other is to disturb the harmony of Constitution. Bhim Rao Ambedkar supported the inclusion of the uniform civil code
in the directive principles but he said that the code would only apply to those
who wanted it to apply to them.[39]
An
Uniform Civil Code can bring uniformity and equality in the society which would
result in promoting secularism. If
Uniform Civil Code is implemented it will bring uniformity to the Indian legal
system also. The uniformity not only in respect of different religion, but also
within a religion. As we can see in many religions there are different schools
of thought e.g. in Muslims two schools are dominant Shia and Sunni,
they differ in their respective rules ,at the time of marriage Sunni
requires two witnesses but at the time of talaq no witness is necessary,
in case of Shia at the time of marriage no witness is necessary but for talaq
it is necessary. Uniformity and equality
promotes certainty in the society.
If
we look at another dimension, India has already taken a step towards Uniform
Civil Code. As we know that there are few legislation like Special Marriage
Act, Indian Succession Act which are applicable to all citizens of India
irrespective of their religion, race, caste, creed, colour etc. But these are
not the mandatory legislations. They are voluntary in nature in a sense that
the parties to marriage are at liberty to choose between Special Marriage Act
and their personal law, the law by which they want themselves to be governed.
iv)
PERSONAL
LAWS :-
Reform
in Personal laws by the State to meet the demand of time and evil practises on
the name of religion is one of the delectated issues. Since people are vary
much sentimental about their religion and personal laws. Any step of the State
towards any change in personal law to remove anachronisms and evils may affect
the sentiment of people and result in chaos in the society. Eg:- the decision
of Shah Bano[40] case
created a lot of hue and cry among Muslims. The very first test of the
constitutionality of State reforms affecting personal laws was conducted in State of Bombay v. Narasu Appamali[41].
The crucial question in this case before the then CJI Chagla was to decide
whether the woeds ‘all laws in force’ in Article 13(1) would include ‘personal
laws’ or not. The learned Chief Justice relied on the recognised distinction
between custom and personal laws and held that the former did not include the
latter and, therefore, the latter was not covered by Article 13(1)[42].
It
is very difficult to say that how much personal law is personal and immutable?
Some jurists like Mohammad Ghouse considers the Muslim personal law as
unconstitutional particularly in the matter of polygamy and divorce
institutions. So, they advocate for the enactment of Uniform Civil Code but the
Ulama and other redicalists considers the mandate of Article 44 as the sword of
Democles hanging over the noble Sharia of this country. Therefore, the
legislator cannot deny the basic fundamental notion of any personal law because
it is fundamentally related to the heriditacal conceptions of feelings by which
the society is regulated. The duty of the legislator and judiciary is to make
positive reform in the society and remove evil practices in the society but it
is also the duty of them to look whether the society is ready to accept such
reform or not.
SECULARISM IN OTHER
COUNTRIES (BRIEF COMPARISION)[43]
The Concept of Indian Secularism can be understood in the backdrop
of the indigenous conditions of the Indian society. It can be compared with the
western secularism to understand the real content. The idea of western
secularism was based upon the idea of emancipation of state from religious control
to separate governance from religion. Towards the end of the dark ages it was
realised that the religion is one aspect of individual personality. But it can
not itself all dimension of individual life. Grotius gave the concept of
Secularism and such secularism could be attained that a mere fact that the
state and religion were separated. No further conditions is required to be
fulfilled as state was a irreligious society.
On the other hand in the Indian society the emancipation of religion
was never the need for state because the situation of the dark ages does not
exist. The freedom of state from religious clutches was not requirement. The
religion rather deep rooted in the Indian Society and it was recognised as the
way of life. There was never any attempt to free the individual from the
control of religion. To understand the true meaning of secularism it is also
essential to make a comparative study of it with other countries :-
i)
England – According to Maitland in
England “religious liberty and religious equality are complete”. It can be
summarised in four points :-
a)
The profession of any religion
or no religion is no offence, subject to ‘blasphemy’ which is a common law
misdemeanour in England;
b)
Every form of public worship is
permitted, places of worship have to registered ;
c)
The profession of any form of
religious belief is not a condition for the existence or exercise of civil
right;
d)
Nor is religious belief a
condition for political rights, subject to the exceptions of Crownship of
England, Lord Chancellorship of England and Lord Lieutenantship of Ireland, who
can not be Roman Catholics.[44]
ii)
U.S.A - The first constitution amendment
in the Constitution of the U.S guaranteed the ‘Constitutional right’ of
religious freedom to citizens of U.S. The first amendment religion clause
prescribes three constitutional principles : freedom to believe, freedom to
worship and a “wall of separation between Church and State”. The U.S constitution nowhere uses
the term secular but the U.S constitution is the most ‘secular’ state.
Infact, american Secularism is based upon the absence of state
sponsored or favoured religion. The first amendment of US Constitution states
that , 'American Congress shall not make any law regarding the establishment of
a religion or restricting the free exercise thereof.' In Everson v. Board of Education[45],
the American Supreme Court interpreted this amendment and observed : “ The
establishment of religion clause of the First Amendment means at least this.
Neither a State nor the Federal Government can set up a church. Neither can
they pass laws which aid one religion, aid all religions or prefer one religion
over another ......No tax, in amount of large or small, can believed to support
any religious activities or institutions whatever form they may adopt to teach
or practise religion. Neither a State nor the Federal Government can openly or
secretly participate in the affairs of any religious organizations or groups
and vice versa”. Therefore, American Constitution on the one hand guarantees the
free exercise of religion and on the other it also enjoins Congress not to make
any laws establishing religion.
iii)
COMMUNIST PERCEPTION OF SECULARISM
:-
Karl Marx said, “Religion is opium of the masses. It is spirit of
spiritless and heart of heartless.” According to him, “Man makes religion;
religion does not make man. Moreover, no one religion should be accorded
special privilege in national life or international relations; for that would
be a violation of the basic principles of democracy.” The Communist view of
religion is based upon more or less the same statement of the Karl Marx. In
fact, Communist professes negative secularism
i.e. communism disfavours religious activities and has an apathetic attitude
towards religion in public domain.
CONCLUSION
In the light of above discussion we can conclude that in an ideal secular state
there should be respect for all religion and state’s interference should
be minimum in the matter of religion except when there is question of public
order, morality or health. Secular nature
of the State have been embodied
under the Constitution of India. In the modern Indian State citizens are equal
and free, irrespective of caste colour, sex, language, religion, or status. But
the circumstances after independence have changed and many time the secular
status of India was challenged for example at times of Godhara riot in Gujarat.
Anti-conversion laws or implementation of Uniform Civil Code is being taken as
a threat to the identities of minorities and therefore a uniform consensus has
not been formed in this regard. However, inspite of all these issues India has
balanced the multiculturalism of the society and managed to retain the secular
character of its polity. While in many countries especially from the third
world, a secular authority has crumbled in face of conflicting traditions. Judiciary in India has also played a vital
role by balancing in a harmonious way
the matter of religion. Moreover,
the citizen of India should not forget
the dream of framers of the constitution and the ancient philosophy of “Sarva
Dharma Sambhavah”.
A
Secular State must strive to achieve a balance between the freedom of religion
and the right to practice religion and therefore it should reform the religion
as per the provision of the constitution. However, it is very complicated and
difficult for the State to reform the religion particularly when personal law
is in question. The State makes the law or interfere with religious norms of
the persons only when the existing religious norms seem to have unjustified and
have done a lot of cruelty to the section of citizens. Sati, Child marriage, female foeticide,
untouchability, suppression of Scheduled castes and Scheduled tribes etc could
be conceived as epitome of this phenomenon. From the above mentioned analysis
and discussion, the author reaches at the conclusion that hypothesis framed at the beginning of the project is correct.
[1] Bhatt, P. Ishwar, Law and Social Transformation in India, First
edition Eastern Book and company, Lucknow,2009,p..225-227.
[4], Tarkteerth Laxmanshastri Joshi, Critique of Hinduism and other Religions,
Popular Prakashan Bombay, , Bombay, 1996, p.43.
[7] Jawaharlal Nehru’s
Speeches, Vol. I, 2-10-1948 at p. 28; Shariful Hasan, “Nehru’s Secularism” in
Rajeev Dhavan and Thomas Paul (Eds.), Nehru and the Constitution(ILI, New delhi
19920 AT P.182-83.
[8] Pandey, J.N, C onstitutional Law of India,
forty first edition, Central Law Agency, Allahabad, 2004 p..290, AIR 1994 SC 1918.
[10] Case no: Writ
Petition (crl.) 208 of 2004
[12] Downes v. Ballard, (1944) 322 U.S 78.
[13] Cantwall v. Connecticut, (1931) 310 U.S 295
[14] John, Mathew Decoding secularism : Comparative study of legal
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[16] P.K Tripathy,
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