Religion and the Indian Constitution


What does the Indian Constitution say specifically about religion and its practice in India? How does secularism work in practice? Irfan Engineer explains.

Religion wields great influence in South Asia. It has not only served as a force bonding people into a community, but is also a carrier of customs and traditions. This growing influence is evident in celebration of festivals and observation of rituals. Religion enters every sphere of life from birth to death – the conception of ideal society, how one lives and interacts with other human beings, how one relates to one’s creator, what one eats and wears, what are one’s duties in life and towards others, procreation, life hereafter and numerous other aspects are determined by religion.

Can religion and politics be separated?
If religion influences so many spheres, separation of religion and politics is a tough call in South Asia. Politics is expected to attain religious outlook. Religious leaders have been adopting and embracing new technologies while sustaining their core beliefs. Mahatma Gandhi and Maulana Abul Kalam Azad engaged with religion in order to mobilise followers in the struggle for Independence. Religion gave spirit to the freedom fighters to face hardships inflicted on them by the mighty British Empire to attain freedom. It made people fearless and motivated them to make sacrifices for liberation.

Religious spirituality inspires one to love the creator, and in the process annihilate one’s ego. To be lost in love of God means love all creations of God. The Sufi and Bhakti movements, Mother Teresa’s Missionaries of Charity are examples of religious spirituality. However, religion can also be divisive when it is used to promote sectarian and fundamentalist outlook. Religion can also be perceived as commanding the followers to live an ideal religious life and either cut themselves off from those who do not share notion of this ideal society, and even struggle against them. There are supremacists within every religion who call upon their followers to achieve this ideal community and be at war with others. Hindu nationalists, Muslim nationalists, the jihad-ist, Zionists, all fall within this category.

India is home to many religions and diverse religious tendencies. Liberty, equality and fraternity were the calls of freedom movement, and a vision to build a new nation on these values. This meant struggle against patriarchal feudal culture and caste-based hierarchical structure. These feudal-patriarchal values had good appeal among those who propounded religious nationalism. Emerging from Partition along religious lines, the Constituent Assembly had a job on hand to draft a secular Constitution acceptable to people of India.

Secularism in Indian context did not mean decline of influence of religion and religious observances. It meant that while all persons would have the freedom to practice their religion, the state would not discriminate between citizens on grounds of religion. Ideally, citizens would respect all religions equally. This non-discrimination by state and equal respect for all religions by citizens collectively, came to be known as sarva dharma sambhav.

The Constitution of India
The Constitution grants freedom to every person to profess, practice and even propagate their religion subject to some reasonable restrictions – viz., public order, health and morality (Art. 25). While every individual has the right to profess, practice and propagate his or her religion, religion is observed collectively and needs space for social functions. The space for collective observance is ensured by Article 26 which provides that religious denominations or sections thereof have the right to establish and maintain institutions for religious and charitable purposes and to own and acquire movable and immovable properties and to manage its own religious affairs.

The Constitution of US also allows freedom to its citizens to practice any religion. The First Amendment to the United States Constitution prohibits the making of any law respecting an establishment of religion and ensuring that there is no prohibition on the free exercise of religion. This has been termed as a ‘wall of separation between Church and the State’ by Thomas Jefferson, and cited by the Supreme Court of the US in its numerous judgements. Article 25 of the Indian Constitution however, empowers the state to enact laws to regulate or restrict any economic, financial, political or other secular activity which may be associated with religious practice. The State in India can also enact laws for social welfare and reform or the throwing open of Hindu religious institutions of a public character to all classes and sections of Hindus.

Drawing from these provisions of the Constitution, India has enacted legislations to ensure progressive march towards gender equality giving rights to Hindu women to inherit equal share in ancestral property, temple entry for all sections of Hindu community, banning sati, right to divorce to Hindu women and regulated endowments in popular shrines, including Tirupati Tirumala and Ajmer Sharif Dargah. These legislations were fiercely resisted and contested on streets as well as in the Supreme Court. The apex court upheld most of these legislations. However, the Supreme Court drew a fine line between reforming Hindu religion and reforming religion out of existence. It evolved the test of retaining ‘essential religious practices’. Those reforms that obliterated essential religious practices were struck down as violating freedom of religion.

In order to ensure secularism, there are laws that make hate speeches and outraging religious feelings of a community a punishable offence (S. 153-A 153-B and 295A of IPC). It is also an offence to assert that a particular religious community were not loyal citizens or to demand that right to vote of any religious community be taken away (S. 153-B of IPC). Similarly, canvassing for votes on the basis of religion is deemed to be corrupt electoral practice and election of a candidate can be set aside (S. 123 of Representation of Peoples Act).

On the whole, democracy and secularism has worked well in India nudging the society towards equality of caste and gender. Among progressive changes brought about by the state include temple entry legislations, Atrocities Act to ensure justice to victims of caste based oppression, legislative reforms to ensure justice to victims of sexual assaults and domestic violence, prohibition of child marriages, legislations for affirmative action for the benefits of women, children, SCs, STs and OBCs, reform of Hindu family laws.

Yet, many challenges remain. Aggressive ‘cow nationalism’ is threatening the secular fabric of the country. Reform of Muslim Personal Law to ensure gender justice for Muslim women also remains a challenge.

Irfan Engineer

Irfan Engineer is Director, Centre for Study of Society and Secularism.