Secularism in the Constitution and the courts

Detail

1. The Preamble: the word "secular"

• Secular state: a state that has no official religion of its own. It treats people of every faith equally. It neither helps nor punishes anyone for following a religion.
• "Secular" was added in 1976. The Constitution (42nd Amendment) Act, 1976 put "secular", "socialist" and "integrity" into the Preamble [2].
• The ideal was there from 1950. The original Preamble already promised "liberty of thought, expression, belief, faith and worship".
• Why the word was left out in 1949. The Constituent Assembly did not add "secular". Some people then read the word as anti-religion, so it seemed unclear [2].
• 44th Amendment debate (1978): "secular" was explained as a republic that gives equal respect to all religions [2].
• Challenge to the 1976 words dismissed. In Dr Balram Singh v. Union of India (25 November 2024), the Supreme Court dismissed petitions against "socialist" and "secular" [2]. Its reasons:
• Parliament can amend the Preamble under Art. 368 (the power to amend the Constitution). The 1949 date of adoption does not limit that power [2].
• The Constitution is a "living document" [2].
• India has its own meaning of secularism: the State "neither supports any religion nor penalizes" the practice of any faith [2].
• The petitions came in 2020, about 44 years after the change. By then the words had wide acceptance [2].

2. Equality provisions

• Art. 14: equality before law and equal protection of the laws.
• Art. 15(1): the State shall not discriminate against citizens on grounds of religion (or race, caste, sex or place of birth).
• Art. 16(1)-(2): equal chance in public jobs, with no discrimination on grounds of religion.
• Art. 16(5): an exception. A law may say that an office in a religious or denominational institution must go to a person of that religion.

• Example: a temple trust may require its office-holder to be a Hindu.

• Art. 325: there is one general electoral roll for each constituency. No one can be left off it, or put on a separate roll, because of religion.

• This ended the colonial system of separate electorates (voters of one community choosing their own representatives).

3. Freedom of religion: Arts. 25-28

Article	What it gives	Who gets it
25	Freedom of conscience; the right to profess, practise and propagate religion	All persons, including non-citizens
26	A religious group can manage its own religious affairs	Every religious denomination
27	No one can be forced to pay a tax that is used to promote a particular religion	All persons
28	No religious instruction in schools wholly funded by the State	Students in such schools

• Art. 25(1): all persons have an equal right to freedom of conscience (the inner freedom to believe or not believe). They also have the right to:
• profess (declare one's faith openly)
• practise (follow its rituals)

• propagate (spread it by explaining it to others) [5].

• Limits on this right. It is subject to public order, morality and health and to the other provisions of Part III [5].

• Art. 25(2)(a): the State may regulate secular activities linked to religion, such as economic, financial or political activities [2].
• Art. 25(2)(b): the State may make laws for social welfare and reform. It may also open Hindu religious institutions of a public character to all classes and sections of Hindus (temple entry) [5].
• Explanation I: wearing and carrying a kirpan counts as part of practising the Sikh religion [5].
• Explanation II: in Art. 25(2)(b), "Hindus" includes people who follow the Sikh, Jaina or Buddhist religion [5].

• This applies only to this clause, i.e. to temple entry and reform laws. It does not merge these religions for other purposes.

• Art. 26: every religious denomination has the right to:

• set up and maintain institutions for religious and charitable purposes
• manage its own affairs in matters of religion
• own and acquire property
• run that property according to law [2].

4. Minority rights: Arts. 29-30

• Minority rights: special protections for groups that are smaller in number. They protect the group's core interests, which ordinary majority voting must not override.

• Reason: in a democracy the majority usually wins. Some basic interests of small groups therefore have to be kept out of reach of a vote.

• Art. 29(1): any section of citizens with its own language, script or culture has the right to conserve it.

• Art. 29(2): no citizen can be denied admission to a State-run or State-aided institution because of religion, race, caste or language.
• Art. 30(1): religious and linguistic minorities have the right to establish and administer educational institutions of their choice.
• Art. 30(2): when the State gives aid, it must not discriminate against an institution because a minority runs it.
• St. Xavier's College (1974): secularism is "neither anti-God nor pro-God". The State keeps an equal distance from all religions.
• T.M.A. Pai (2002, eleven judges): minority status is decided state by state. Whether a group is a minority depends on its share of the population in that State, not across India.
• AMU v. Naresh Agarwal (8 November 2024, seven judges, 4:3): this case decided whether Aligarh Muslim University (AMU) can be a minority institution [3].
• Old rule overruled. S. Azeez Basha (1967) had said that an institution created by a statute is not "established" by a minority. The Court overruled this [3].
• New test for "established": check three things, called the indicia (signs) [3]:
  • idea — the idea came from a member or group of the minority community
  • purpose — the institution was set up mainly for the minority's benefit
  • implementation — members of the minority took the steps to set it up
• Who runs it also matters. The way the institution is managed must confirm its minority character [3].

• AMU's own status was not decided. It was sent to a regular bench to apply the new test [3].

• National Commission for Minorities (NCM) Act, 1992: the Centre notifies minority communities under s. 2(c) [4].

• Muslims, Christians, Sikhs, Buddhists and Parsis (Zoroastrians) were already notified [4].
• The Union Cabinet approved adding Jains in January 2014 [4].
• That makes six notified minorities today [4].

5. Duties, directives and elections

• Art. 44 (Directive Principle): the State shall try to secure a Uniform Civil Code (UCC) for all citizens (see §8). A UCC means one set of personal laws on marriage, divorce and inheritance for people of every religion.
• Art. 51A(e) (Fundamental Duty): every citizen must promote harmony and the spirit of common brotherhood across religious, language, regional and sectional differences. Citizens must also give up practices that insult the dignity of women.
• RPA 1951 s. 123(3): asking for votes, or asking people not to vote for someone, because of religion, race, caste, community or language is a corrupt practice.

• A corrupt practice is an illegal campaign act. If it is proved, the court can cancel the winner's election.

• Abhiram Singh (2017, seven judges, 4:3): "his religion" in s. 123(3) means the religion of the candidate, the voter or the agent, not only the candidate's own religion.

6. The courts on secularism

Case (year)	Bench	Principle
Kesavananda Bharati (1973)	13 judges	Sikri CJ listed the secular character of the Constitution among its basic features
St. Xavier's College (1974)	—	Secularism is "neither anti-God nor pro-God"
Rev. Stainislaus (1977)	—	The right to propagate is not a right to convert others
Bijoe Emmanuel (1986)	—	Standing in respectful silence during the national anthem is protected
S.R. Bommai (1994)	9 judges	Secularism is part of the basic structure; can justify Art. 356
Aruna Roy (2002)	—	Teaching about religions is not religious instruction
T.M.A. Pai (2002)	11 judges	Minority status is decided state by state
Abhiram Singh (2017)	7 judges, 4:3	Votes cannot be sought on religion (anyone's religion)
M. Siddiq (2019)	5 judges	The Places of Worship Act protects secular features (§10)
AMU (2024)	7 judges, 4:3	A new test for minority "establishment"; Azeez Basha overruled [3]
Balram Singh (2024)	—	The 42nd Amendment's "secular" and "socialist" upheld [2]

• Rev. Stainislaus (1977):
• The Court upheld the Madhya Pradesh and Odisha freedom-of-religion Acts. These Acts punish conversion by force, fraud or inducement.
• It held that "propagate" means spreading one's faith by explaining it. It does not include a right to convert another person.

• This is the base for today's anti-conversion laws in several States. Challenges to these laws are pending in the Supreme Court (verify current).

• Bijoe Emmanuel (1986):

• Three Jehovah's Witness students stood silently but did not sing the anthem.

• The Court held that freedom of conscience protects this.

• S.R. Bommai v. Union of India (1994, nine judges):

• Basic structure: the core of the Constitution. Parliament can amend any part of the Constitution but cannot destroy these core features. The Court held that secularism is part of the basic structure [2].
• Religion and politics must not be mixed. A party programme based on religion treats religion as part of governing. The Constitution forbids this.
• President's rule (Art. 356): the Centre takes over a State's government when it "cannot be carried on" according to the Constitution. Under Bommai:
  • a State government acts against secularism →
  • this counts as a valid ground for President's rule →
  • the State government can be dismissed and its assembly suspended or dissolved.
• The dismissals of the BJP governments in Madhya Pradesh, Rajasthan and Himachal Pradesh after the Babri Masjid demolition (December 1992) were upheld.

• Judicial review: the power of courts to check whether a government action is legal. The Court held that an Art. 356 proclamation is open to judicial review. This checks misuse of President's rule.

• Aruna Roy (2002): teaching about religions (their ideas, history and values) is different from religious instruction (teaching one faith's worship). So it does not violate Art. 28.

• M. Siddiq (2019, Ayodhya case): the Court said the Places of Worship (Special Provisions) Act, 1991 protects the secular features of the Constitution. The Act freezes the religious character of places of worship as it was on 15 August 1947 (§10).
• Other cases listed in Balram Singh: R.C. Poudyal and M. Ismail Faruqui [2].
• Secularism means treating people of all faiths equally [2].
• It does not stop the State from removing religious practices that block development or equality [2].

Prelims Hooks

• "Secular", "socialist" and "integrity" were added to the Preamble by the 42nd Amendment, 1976. The Supreme Court upheld this in Balram Singh (2024).
• Art. 25 Explanation I: kirpan. Explanation II: Sikhs, Jains and Buddhists count as "Hindus" only for Art. 25(2)(b). Trap: this does not apply to the whole Constitution.
• Art. 25 applies to all persons. Arts. 29-30 apply to citizens and minorities. Trap: foreigners also have Art. 25 rights.
• Art. 27 bars a tax used to promote a particular religion. Art. 28 bars religious instruction in wholly State-funded institutions.
• Art. 16(5): offices in religious institutions can be kept for followers of that religion. Art. 325: one electoral roll, with no exclusion on religion.
• Rev. Stainislaus (1977): propagate ≠ convert. Bijoe Emmanuel (1986): respectful silence during the anthem is protected. Aruna Roy (2002): teaching about religions is allowed.
• S.R. Bommai (1994, 9 judges): secularism is part of the basic structure, and acting against it can justify Art. 356. Kesavananda (1973) had already listed it among the basic features.
• Abhiram Singh (2017, 7 judges, 4:3): RPA s. 123(3) covers the religion of the candidate, voter or agent.
• NCM Act 1992, s. 2(c): six notified minorities. Jains were added in 2014. T.M.A. Pai (2002): minority status is decided state by state.
• AMU (2024, 7 judges, 4:3): Azeez Basha (1967) was overruled. Creation by a statute does not end minority character.

Mains Points

• Indian model vs Western model. Western separation means "the State stays out of religion". India keeps a principled distance instead. The State may reform religion (Art. 25(2)(b), temple entry) and also protect group rights (Arts. 26, 29-30). St. Xavier's ("neither anti-God nor pro-God") and Balram Singh (equal respect, no State religion) state this idea.
• Bommai as a check on both sides. Making secularism part of the basic structure stops communal State governments. But tying it to Art. 356 could invite political misuse. Bommai answered this by allowing judicial review of proclamations. This links secularism with federalism and the Sarkaria/Punchhi debates on Art. 356.
• Minority rights vs majority rule. Arts. 29-30 keep minorities' core interests out of reach of majority votes. T.M.A. Pai's state-wise test and the 2024 AMU test try to balance this protection with State regulation of education. Open questions include AMU's final status and whether Hindus who are a minority in some States can be notified as minorities.
• Freedom to propagate vs anti-conversion laws. Stainislaus allows States to restrict conversion. Critics say these laws burden personal choice and freedom of conscience. Supporters say they stop forced or fraudulent conversion. Constitutional challenges are pending. The UCC (Art. 44) and the Places of Worship Act are related tests of secularism.