Diversity, group rights and Indian secularism

Detail

1. The challenge: many communities, none to dominate

• How communities stood at Independence. Indian communities related to each other in two ways:
• Hierarchical (caste): groups ranked above and below one another.

• Rivals (religion): groups competing with and suspicious of each other.

• The framers' task had two parts:

• make each community more liberal, meaning open and respectful of its own members' freedom;

• build equal respect between communities.

• Why not ignore communities? Western liberal constitutions see only the individual citizen. They give communities no legal place. In India this would have been:

• unworkable, because communities were a real force in people's lives;

• undesirable, because a person's dignity was tied to how their community was treated.

• India was not unusual in having communities. Indians are not more attached to their communities than other people. France and Germany also have linguistic communities. The difference is the number of communities. India has many linguistic and religious groups, and none must dominate the rest.

• The result: community-based rights, built into the Constitution from the start.

2. Group rights

• Group rights are rights held by a community as a whole, not only by each individual member. Example: the right of a minority to run its own college.
• Article 30: minority educational institutions
• Art. 30(1): all minorities, "whether based on religion or language," may "establish and administer educational institutions of their choice" [4].
• Art. 30(2): when the state gives aid to schools, it cannot discriminate against a school because a religious or linguistic minority manages it [4].
• Art. 30(1A): if the state takes over (compulsorily acquires) a minority institution's property, the compensation must be high enough that it does not "restrict or abrogate" the Art. 30(1) right [4].
• Draft Article 23A, which became Art. 30, was debated on 8 December 1948. The Constituent Assembly rejected amendments that would have demanded "a substantial number of such students" before minority-language teaching was required. It adopted the draft unchanged [4].

• Meaning: the state can fund a religious community's schools, so religion is not a purely "private" matter in India.

• Article 29: culture, language and script. Any section of citizens with a distinct language, script or culture has the right to conserve it. In Balram Singh v. Union of India (2024), the Supreme Court read Art. 29 as protecting the distinct culture of every section of citizens [5].

• Article 26: rights of religious denominations. Every religious denomination may:
• set up and maintain religious and charitable institutions;
• manage its own religious affairs;

• own, acquire and administer property according to law [5].

• Article 350A: mother tongue at primary level

• Every state and local authority shall try to ("endeavour to") provide teaching in the mother tongue at the primary stage for children of linguistic minority groups.
• The President may issue directions to any state to secure this [2].

• It was inserted by the Constitution (Seventh Amendment) Act, 1956. It carried out a recommendation of the States Reorganisation Commission on protecting linguistic minorities after states were redrawn [2].

• Article 350B: Special Officer for Linguistic Minorities

• The President appoints the officer.
• The officer investigates all matters about the safeguards for linguistic minorities and reports to the President.
• The President has the report laid before each House of Parliament and sent to the state governments concerned [3].
• It was also inserted by the Seventh Amendment, 1956 [3].

3. Multiculturalism

• Multiculturalism means the state recognises and makes room for its many cultural communities. It does not force them to merge into one majority culture (assimilation).
• NCERT (Class 11, Ch 10) says the framers took up multiculturalism more than four decades before the term became common in political theory.
• The standing critique. Group rights can clash with the rights of individuals inside the group.
• Example: women under personal laws, the religion-based family laws on marriage, divorce and inheritance.
• Protecting the community's law may mean leaving inequality inside the community in place.
• Article 44, a Directive Principle, asks the state to try to secure a Uniform Civil Code. The Supreme Court noted in 2024 that this sits alongside Arts. 25, 26, 29 and 30 [5].

4. Western model vs Indian model of secularism

• Secularism here means how the state relates to religion. It is not hostility to religion.

Point	Western model (mutual exclusion)	Indian model (principled distance)
Core idea	State and religion stay out of each other's internal affairs	State keeps a distance from all religions, but that distance can vary
Help to religion	None; the state neither helps nor hinders	May help, e.g. aid to minority schools (Art. 30(2))
Intervention in religion	Not allowed	Allowed for reform, e.g. Art. 17, Art. 25(2)(b)
Whose freedom	Individuals, protected from organised religion	Individuals and communities (Arts. 25, 26, 30)
Aim	Individual liberty	Liberty, equality and social justice, both within and between groups

5. Departure (a): rights of religious groups

• Equality between communities matters as much as equality between individuals.
• A person's dignity depends partly on the status of their community.

• If a community is looked down on, its members cannot be truly equal.

• So freedom of religion belongs to:

• individuals: Art. 25 gives every person freedom of conscience and the right to freely profess, practise and propagate religion, subject to public order, morality, health and the other fundamental rights [5];
• communities: Art. 26 (denominations) and Art. 30 (minority institutions) [5].

6. Departure (b): the state's power of intervention

• Why the state had to step in. Some unjust practices had religious approval, such as untouchability. They could not end without action by the state.
• Article 17 abolishes untouchability and forbids its practice in any form.

• Article 25(2)(b) lets the state open Hindu religious institutions of a public character to all classes and sections of Hindus (temple entry). It also allows laws for social welfare and reform.

• Court's view. In M. Ismail Faruqui v. Union of India (1994):

• the state has no religion of its own;
• but being secular does not stop the state from removing practices linked to religion when they hold back development and the right to equality;

• secularism is "one of the facets of the right to equality" [5].

• The state may also help. It can aid schools run by religious communities (Art. 30(2)), which a strictly Western state would not do.

7. Principled distance

• Principled distance means the state keeps a distance from all religions. For each issue it then decides whether to step in or stay out, choosing whatever better promotes liberty, equality and social justice.
• "Distance": no official religion and no favouring one faith.

• "Principled": any closeness or intervention must be justified by constitutional values, not by vote-bank or majority pressure.

• In Class 11 Ch 10, exercise 5, options (d) and (e) are the ones the Indian Constitution adopts (state help and state intervention). Exercise 1(c) and exercise 4(a) test the same ideas.

8. The word "secular": from Constituent Assembly to 42nd Amendment

• The Constituent Assembly did not put the word "secular" in the Preamble. In 1949 the term was seen as imprecise, because some read it as being against religion [5].
• Constitution (42nd Amendment) Act, 1976 (passed during the Emergency, 2 November 1976):

• added "socialist", "secular" and "integrity" to the Preamble [5].

• The 1978 attempt to define "secular"

• The Constitution (Forty-fifth Amendment) Bill, 1978, which later became the 44th Amendment Act, 1978, proposed amending Art. 366.
• It would have defined "secular" as a republic that upholds equal respect for all religions.

• The Rajya Sabha (Council of States) did not accept this change. So "secular" is still not defined in the Constitution [5].

• Secularism is part of the basic structure. Basic structure means the core features that Parliament cannot destroy, even by amendment.

• Courts have said secularism is such a feature in Kesavananda Bharati v. State of Kerala (1973, 13 judges) and S.R. Bommai v. Union of India (1994, 9 judges) [5][6].

• R.C. Poudyal v. Union of India (1994): even before 1976, secularism meant the nation's commitment to treat people of all faiths equally and without discrimination [5].

• Dr Balram Singh v. Union of India, 25 November 2024 (CJI Sanjiv Khanna and Justice Sanjay Kumar)

• What was claimed: the words were added "retrospectively" to a Constitution adopted on 26 November 1949. They were also passed by a Lok Sabha whose normal term had ended on 18 March 1976.
• What the Court decided:
  • Art. 368, the power to amend the Constitution, extends to the Preamble.
  • The date of adoption does not limit that power.
  • India has developed its own form of secularism, in which the state "neither supports any religion nor penalizes" any faith. This is rooted in Arts. 14, 15 and 16.
  • The petitions were dismissed [5].

Prelims Hooks

• Art. 30(1): right of religious and linguistic minorities to set up and run educational institutions. Art. 30(2): no discrimination in state aid against minority-managed institutions [4].
• Arts. 350A and 350B were both inserted by the 7th Amendment, 1956, following the States Reorganisation Commission. They are in Part XVII, not Part III [2][3].
• The Special Officer for Linguistic Minorities (Art. 350B) is appointed by the President and reports to the President, who has the reports laid before both Houses [3].
• Trap: Art. 350A says the state "shall endeavour" to provide mother-tongue teaching. It is a directive, not a fundamental right [2].
• "Secular", "socialist" and "integrity" were added by the 42nd Amendment, 1976. "Secular" is not defined anywhere in the Constitution, because the 1978 attempt to define it via Art. 366 failed in the Rajya Sabha [5].
• Secularism as basic structure: S.R. Bommai (1994, 9 judges). It was also observed in Kesavananda Bharati (1973) [5].
• Dr Balram Singh v. UoI (2024) upheld "socialist" and "secular" in the Preamble: the Art. 368 amending power covers the Preamble [5].
• Art. 17 (abolition of untouchability) and Art. 25(2)(b) (temple entry and social reform) are examples of the state's power of intervention.
• The Indian model is principled distance, not mutual exclusion (the Western model).

Mains Points

• Group rights vs individual rights. Arts. 26, 29 and 30 protect communities. But personal laws can leave women unequal inside those communities. The Art. 44 Uniform Civil Code debate is how this trade-off plays out. A good answer weighs multicultural accommodation against gender justice.
• Why India rejected mutual exclusion. Because caste was a hierarchy and religious untouchability had religious sanction, a "hands-off" state would have frozen injustice. Art. 17, Art. 25(2)(b) and Ismail Faruqui (1994) show that intervention for equality is part of secularism, not a breach of it [5].
• Principled distance is open to criticism. The test of "liberty, equality and justice" is decided case by case. Critics call it inconsistent, saying it reforms some communities' practices but not others', or appeases minorities. Defenders say the flexibility suits a society with many faiths. The fact that "secular" is undefined (the 1978 attempt failed) leaves its meaning to the courts [5].
• Legitimacy of the 1976 additions. The words "secular" and "socialist" were added during the Emergency, but in 2024 the Court treated them as accepted by "We, the people". It held that secular values were already present in the original Preamble (liberty of belief, faith and worship; equality; fraternity) and in Arts. 14-16 and 25-30 [5].