Siddhant Gupta
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 interferes with none. Secularism reflects 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 does not consider 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.
It was in the case of S.R Bommaiv. Union of India the Honorable Supreme Court for the very first time held that:
“Secularism” is the basic feature of the constitution and any State Government which acts against that ideal can be dismissed by the President. In matters of State, religion has no place. Secularism means –
(a) reduction of religious complexities particularly when such complexities adversely affect the other religion.
(b) controlling the non-religious activities associated with a particular religious practice.
(c) promoting the secular values in the society.”
Explaining the secular character of the Indian Constitution the Supreme Court further observed, “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. 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.”
Therefore, it was not until the Bommai’s case that the court comprehensively argued for and defended Secularism’s place in the Constitution. Bommai’s case elaborates 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.
Anti-Conversion Laws
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. Some states enforced anti-conversion laws mainly against Muslims in early of 1980s. These states also begin to enforce these laws against Christian since 1990s. 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. However, those against anti-conversion law argue 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. 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 e.g.:- 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.
Advent of Uniform Civil Code
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”
Article 44 is included in part IV of the Constitution which is Directive Principles of State Policy which unlike, fundamental rights is not enforceable. However, if we consider the later part of Article 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. Therefore, the non-obstante clause only provides that the infant State shall not be immediately called upon to account for not fulfilling new obligations laid upon it.
The founding 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 religions. 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 of the nation, which was envisaged by the very Preamble to the Constitution of divided India.
Dr. B.R. 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. A 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. Uniformity and equality promotes certainty in the society. If we look at another dimension, India has already taken a step towards Uniform Civil Code. There are legislations like Special Marriage Act, Indian Succession Act which are applicable to all citizens of India irrespective of their religion, race, caste, creed, color etc. But these are not 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.
Hence the duty of the legislature and judiciary is to make positive reforms in the society and remove evil practices in the society but at the same time, it is also expected of them to analyze and introspect as to whether the society is ready to accept such reforms or not.
(The author is an advocate)
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