The genesis of secularism III
After the schism, it was only a matter of time, before religion and governance got intermingled. In fact, a constituent assembly debate centred around the preamble of the constitution, during which, Mr. M. V. Kamath moved to add a sentence to the preamble:
‘In the name of God, We, the people of India, Having solemnly resolved to constitute India into a Sovereign democratic republic, and to secure to all her citizens [..]'
This move and others like them were rejected. But the notion of religion as an inherent part of a non-theocratic state stood. As a writ petition to the Supreme Court of India noted as recently as 2002, reproduced here verbatim since it is very insightful:
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Article 30 and Secularism
The word 'secular' is commonly understood in contradistinction to the word 'religious'. The political philosophy of a secular Government has been developed in the west in the historical context of the pre-eminence of the established church and the exercise of power by it over society and its institutions. With the burgeoning presence of diverse religious groups and the growth of liberal and democratic ideas, religious intolerance and the attendant violence and persecution of "non-believers" was replaced by a growing awareness of the right of the individual to profession of faith, or non-profession of any faith. The democratic State gradually replaced and marginalised the influence of the church. But the meaning of the word 'secular State' in its political context can and has assumed different meanings in different countries, depending broadly on historical and social circumstances, the political philosophy and the felt needs of a particular country. In one country, secularism may mean an actively negative attitude to all religions and religious institutions; in another it may mean a strict "wall of separation" between the State and religion and religious institutions. In India the State is secular in that there is no official religion. India is not a theocratic State. However the Constitution does envisage the involvement of the State in matters associated with religion and religious institutions, and even indeed with the practice, profession and propagation of religion in its most limited and distilled meaning.
Although the idea of secularism may have been borrowed in the Indian Constitution from the west, It has adopted its own unique brand of secularism based on its particular history and exigencies which are far removed in many ways from secularism as it is defined and followed in European countries, the United States of America and Australia.
The First Amendment to the American Constitution is as follows:
"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof."
In the words of Jefferson, the clause against establishment of religion by law was intended to erect 'a wall of separation between Church and State'. 'Reynolds v. United States', (1878) 98 U S 145 at p.164. The Australian Constitution has adopted the First Amendment in S.116 which is based on that Amendment. It reads: "The Commonwealth shall not make any laws for establishing any religion, or for imposing any religious observance, or for prohibiting the free exercise of any religion, and no religious test shall be required as a qualification for any office or public trust under the Commonwealth".
Under the Indian Constitution there is no such "wall of separation" between the State and religious institutions. Article 16 (5) recognises the validity of laws relating to management of religious and denominational institutions. Art. 28 (2) contemplates the State itself managing educational institutions wherein religious instructions are to be imparted. And among the subjects over which both the Union and the States have legislative competence as set out in List No. III of the Seventh Schedule to the Constitution Entry No.28 are:
"Charitable and charitable institutions, charitable and religious endowments and religious institutions".
Although like other secular Governments, the Indian Constitution in Article 25(1) provides for freedom of conscience and the individual's right freely to profess, practice and propagate religion, the right is expressly subject to public order, morality and health and to the other provisions in Part III of the Constitution. The involvement of the State with even the individual's right under Article 25(1) is exemplified by Article 25(2) by which the State is empowered to make any law.
"a) regulating or restricting any economic, financial, political or other secular activity which may be associated with religious practice;
(b) providing for social welfare and reform or the throwing open of Hindu religious institutions of a public character to all classes and sections of Hindus.
As a result the courts have upheld laws which may regulate or restrict matters associated with religious practices if such practice does not form an integral part of the particular religion .
Freedom of religious groups or collective religious rights are provided for under Article 26 which says that: "Subject to public order, morality and health, every religious denomination or any section thereof shall have the right
(a) to establish and maintain institutions for religious and charitable purposes.
(b) To manage its own affairs in matters of religion;
(c) To own and acquire movable and immovable property; and
(d) To administer such property in accordance with law.
The phrase "matters of religion" has been strictly construed so that matters not falling strictly within that phrase may be subject to control and regulation by the State. The phrase 'subject to public order, morality and health' and "in accordance with law" also envisages extensive State control over religious institutions. Article 26 (a) allows all persons of any religious denomination to set up an institution for a charitable purpose, and undisputedly the advancement of education is a charitable purpose. Further, the right to practise, profess and propagate religion under Article 25 if read with Article 26(a) would allow all citizens to exercise such rights through an educational institution. These rights are not limited to minorities and are available to 'all persons'. Therefore, the Constitution does not consider the setting up of educational institutions by religious denominations or sects to impart the theology of that particular denomination as anti- secular. Having regard to the structure of the Constitution and its approach to 'Secularism', the observation in St. Stephens noted earlier is clearly not in keeping with 'Secularism' as provided under the Indian Constitution. The Constitution as it stands does not proceed on the 'melting pot' theory. The Indian Constitution, rather represents a 'salad bowl' where there is homogeneity without an obliteration of identity.
The ostensible separation of religion and the State in the field of the States' revenue provided by Article 27 (which prohibits compulsion of an individual to pay any taxes which are specifically appropriated for the expenses for promoting or maintaining any particular religious or religious denomination) does not, however, in terms prevent the State from making payment out of the proceeds of taxes generally collected towards the promotion or maintenance of any particular religious or religious denomination. Indeed, Article 290(A) of the Constitution provides for annual payment to certain Devaswom funds in the following terms: "A sum of forty-six lakhs and fifty thousand rupees shall be charged on, and paid out of the Consolidated Fund of the State of Kerala every year to the Travancore Devaswom fund; and a sum of thirteen lakhs and fifty thousand rupees shall be charged on, and paid out of the Consolidated Fund of the State of Tamil Nadu every year to the Devaswom Fund established in that State for the maintenance of Hindu temples and shrines in the territories transferred to that State on the 1st day of November, 1956, from the State of Travancore- Cochin." This may be compared with the decision of the U.S. Supreme Court in Everson V. Board of Education (330 IUS 1) where it was held that the State could not reimburse transportation charges of children attending a Roman Catholic School.
Article 28 in fact brings to the fore the nature of the word 'secular' used in the preamble to the Constitution and indicates clearly that there is no wall of separation between the State and religious institutions under the Indian Constitution. No doubt Article 28(1) provides that if the institution is an educational one and it is wholly maintained by the State funds, religious instruction cannot be provided in such institution. However, Article 28(1) does not forbid the setting up of an institution for charitable purposes by any religious denomination nor does it prohibit the running of such institution even though it may be wholly maintained by the State. What it prohibits is the giving of religious instruction. Even, this prohibition is not absolute. It is subject to the extent of sub-Article (2) of Article 28 which provides that if the educational institution has been established under any endowment or trust which requires that religious instruction shall be imparted in such institution, then despite the prohibition in Article 28(1) and despite the fact that the education institution is in fact administered by the State, religious instruction can be imparted in such institution. Article 28(2) thus in no uncertain terms envisages that an educational institution administered by the State and wholly maintained by the State can impart religious instruction. It recognises in Article 28(3) that there may be educational institutions imparting religious instruction according to whichever faith and conducting religious worship which can be recognised by the State and which can also receive aid out of State funds. Similarly, Article 28(3) provides that no individual attending any educational institution which may have been recognised by the State or is receiving State aid can be compelled to take part in any religious instruction that may be imparted in such institution or to attend any religious worship that may be conducted in such institution without such person's consent. Implicit in this prohibition is the acknowledgement that the State can recognize and aid an educational institution giving religious instruction or conducting religious worship. In the United States, on the other hand it has been held that State maintained institutions cannot give religious instruction even if such instruction is not compulsory. (See. Tllinois V. Board of Education 1947 (82) Law Ed.649).
In the ultimate analysis the Indian Constitution does not unlike the United States, subscribe to the principle of non- interference of the State in religious organisations but it remains secular in that it strives to respect all religions equally, the equality being understood in its substantive sense as is discussed in the subsequent paragraphs.