"The only thing I know is that I know nothing"- Socrates

In 1976, at the height of the Emergency, the then Prime Minister Indira Gandhi introduced the 42nd Amendment to the Indian Constitution, introducing the words ‘secular’ and ‘socialist’ to the preamble. This has been recently challenged in the Supreme Court on the grounds that it goes against what the writers of India’s Constitution wanted.

However, this argument is flawed. Many of the laws that accord fundamental rights to India’s citizens can only work in the context of a secular state. This suggests that secularism as a principle is part and parcel of the ‘basic structure’ of the Constitution which, as defined by the Supreme Court in 1973, in the celebrated Kesavandanda Bharati case. This means that the idea of secularism is not open to any amendment or change by Parliament.

Further, the debates around secularism in the Constituent Assembly, 1946-50, and various pronouncements by leaders of the Indian national movement (including Sardar Patel) show that secularism was essential to the founding of India as an independent sovereign republic.

​

​

The word secular might have been added to the preamble of India’s constitution only during the Emergency, but the debates in the constituent assembly and the content of various laws that were introduced in the Constitution show that ‘secularism’ was always fundamental to the ‘basic structure’ of India’s Constitution.

​

​

​

I conducted a short survey with people of all ages to determine how many people know about when the term 'secular' was introduced in the Preamble, and whether or not they believe it should be there.

​

​

​

​

​

​

​

​

​

​

​

​

​

​

​

​

​

​

​

​

​

​

​

​

​

​

​

​

​

​

​

​

​

​

​

The preamble to the Constitution of India, which lays down the guiding principles of the nature of the State in independent India, says that we are “Sovereign, Socialist, Secular, Democratic Republic.” However, the words ‘Socialist’ and ‘Secular’ were not part of the preamble, when the Constitution came into effect in 1950. They were added in 1976, during the Emergency imposed by the Indira Gandhi government. This amendment to the Constitution was made through the notorious 42nd Amendment, which tried to curtail democratic rights and reduce the powers of the Judiciary. Most of the provisions of the 42nd Amendment were repealed by subsequent amendments passed by post-Emergency governments or overturned by the Supreme Court of India. However, the word ‘secular’ was untouched.

It is because of these two aspects – (a) the terms were not part of the original preamble and (b) the changes were pushed through without proper discussion in Parliament – that questions have been raised about both these terms. Some have argued that both ‘secular’ and ‘socialist’ should be removed from the preamble. A petition was moved in 2008, in the Supreme Court to remove

‘socialist’ from the Constitution, but it was withdrawn after the Supreme Court refused to entertain it, unless a political party takes it to the Election Commission. As of now, no major political party has challenged the term.

​

However, ‘secularism’ has been a hotly debated issue in India, especially since the early 1990s, after the demolition of the Babri Masjid. Those who oppose committing India to secularism as state policy, say that it is a violation of what the founders of India’s Constitution intended it to be. The objective of this paper is to investigate the validity of this criticism, through:

a. the debates about what the state’s attitude should be towards religion, that took place in the Constituent Assembly, between    1946-50,

and
b. the treatment of religion in the various articles of the Constitution.

​

​

​

 

The Constituent Assembly discussed the preamble just a few weeks before the Constitution was formally adopted in November 1949. The debates began with one member, HV Kamath, proposing that the preamble should begin with the phrase “In the name of god.” Several members opposed this saying that it goes against the spirit of religious freedom that was an integral part of the Constitution. Those who supported Kamath’s amendment pointed to the presence of similar statements in other modern constitutions. Kamath’s proposal was ultimately defeated by nearly two-thirds of the members voting against it.

​

Another member, Brajeshwar Prasad, moved an amendment to include the words ‘secular’ and ‘socialist’ in the preamble. His motion was rejected by the house, but not because he wanted the term ‘secular’ added to the preamble, but because he wanted the Constitution to be a socialist document, instead of a liberal-democratic one. [i]

​

But, this does not mean that the Constituent Assembly did not believe that India had to be a secular state. Every member, even those who wanted the Constitution to invoke the name of god, believed that India had to be a society where people from all religions would be treated equally. Even those, like Lokanath Mishra, who believed in giving religion a much wider role in independent India, did not question the fact that India would be a secular state. [ii]

The debates that took place in the Constituent Assembly took it for granted that India would be a secular nation. The only points of contention were:

a. What the relationship would be between the state and religion, and
b. Whether citizens have the right to worship or practice.

​

​

​

There were three key positions that were debated in the Constituent Assembly on the issue of the relationship between the State and Religion.

1. Members like KT Shah, Tajamul Husain and Minoo Masani believed that the State should have nothing to do with religion, and religion should be restricted to the private domain. Shah wanted the Constitution to include an article which would explicitly prohibit representatives and institutions of the State from publicly associating with any religion. In fact, Shah and Husain believed that the State should have greater power than religion in a modern secular state and have the right to prohibit certain religious practices and customs.

​

2. Other members like KM Munshi, HV Kamath and LK Maitra believed that while the State had to be equidistant from all religions, but in a deeply religious society like India, it could not be dissociated from it. Proponents of this position believed that the State should be actively involved in the religious and spiritual life of the people, but ensure that it does it with equal respect towards all religions. HV Kamath argued that a “secular state is neither a God-less State nor an irreligious nor an anti-religious State.” Kamath proposed an amendment saying “nothing shall prevent the State from imparting spiritual training or instruction to the citizens of the Union.” [iii]

 

3. The third position demanded a complete separation of the State and Religion not because the State should be seen to be equal towards all religions, but because Religion was too lofty a system for it to be brought within the jurisdiction of the State.

The third position was held by a very few members, and the key debates took place between those who believed in the ‘no concern’ relationship between State and Religion and those who believed in the ‘equal respect’ position. These two positions also reflected two different approaches to the rights of the Citizen in following their religion.

​

​

Many amongst those who believed that the State should stay away from all religions also believed that the citizen’s right to follow their own religion should be restricted to the private domain. They distinguished between the right to religious worship and the right to religious practice. While the right to worship allowed people to follow their rituals and beliefs within the private space of their home or place of worship, the right to religious practice involved allowing citizens to extend their religion to everyday life, customs, marriage rules, laws of inheritance and other ‘cultural’ practices, which were influenced by their religion.

​

Among those who pushed for allowing citizens to practice their religion, as opposed to merely worship, were those who wanted to protect personal laws of minorities. This showed up in the debates over the imposition of a Common Civil Code for all citizens. Amendments were moved to ensure that such a code would not require any community to give up their personal laws. This position was not only opposed by those who supported the ‘no concern’ view of the State, but also by some amongst those who backed the ‘equal respect’ position.

​

Those who wanted a complete separation of State and Religion argued that citizens should not have the right to display their religious affiliation in the public sphere. Tajamul Husain went so far as to propose a clause that “no person shall have any visible mark or name, and no person shall wear any dress whereby his religion may be recognised.” When he was challenged by members to change his own name, since it revealed his religious identity, he said he would change his name when “the whole country adopts my resolution”. [iv] Others, like Rajkumari Amrit Kaur, argued that if religious practices and customs were allowed as a fundamental right, these could lead to the perpetuation of pernicious practices like child marriage, polygamy, prevention of inter-caste marriages or even untouchability.[v]

 

However, none of the members questioned that secularism would be fundamental to the sovereign Indian State. From the more religious and sectarian-minded members like Lokanath Mishra and Mohammad Ismail Khan, to the more rigid secularists like KT Shah and Tajamul Hussain, all members referred to India as a secular country and believed that the State would be secular.

​

​

Although the word ‘Secular’ was not explicitly added to the Constitution or the preamble till 1976, its acts and provisions only make sense if secularism is accepted as a founding principle. It begins right from Article 5, which outlines eligibility criteria for Indian citizenship. Religion is not mentioned in any of the clauses. Many of the ‘secular’ provisions are made in the articles pertaining to the Fundamental Rights of Citizens. For instance, Article 15 states that “The State shall not discriminate against any citizen on the grounds of any religion, race, caste, sex, place of birth or any of them.” It also ensures that no citizens can be stopped from entering any public place or accessing any utility maintained by the State. The Constitution, therefore, clearly ensures that no private or public institution could privilege any particular religious community.

​

Article 16 ensures that there would be equality of opportunity in public employment. It states that “No citizen shall, on grounds only of religion, race, caste, sex, descent, place of birth, residence or any of them, be ineligible for, or discriminated against in respect of, any employment or office under the State.” Again, this shows that the State aimed to explicitly maintain neutrality in matters under its domain.

​

Similarly, several articles of the Constitution ensure that citizens would have full freedom to follow and manage their own religious affairs. Article 25 gives all citizens the right “freely to profess, practice and propagate” their religion. Article 26 explicitly lays out every ‘religious denomination’s’ right to maintain religious institutions and manage their own affairs in matters of religion, without intervention by the State.

​

Article 28 gives people the right to get religious instruction or participate in religious worship in certain institutions. However, religious instruction cannot be provided in any educational institution that is wholly funded by the State, unless it is “administered by the State but has been established under any endowment or trust which requires that religious instruction shall be imparted in such institution.” However, the article states that no one can be forced to participate in religious worship or instruction without their consent. Once again, we see that the Constitution caters to both approaches to secularism as debated in the Constituent Assembly, where it both distances itself from religion, but also provides for religious instruction as long as it has been set up independently of the State.

​

Article 325 can be seen as the most fundamental secular provision in the Constitution since it goes to the core of electoral democracy. It states that “no person shall be ineligible for inclusion in any such roll or claim to be included in any special electoral roll for any such constituency on grounds only of religion, race, caste, sex or any of them.” This article ensures that India cannot be turned into a State that turns members of any religious community into second-class citizens, by taking away or modifying their voting rights.

​

​

​

It is true that the word ‘secular’ was not included in the Constitution by its original framers. That would hold true for many other provisions in the current Constitution which have come into existence through successive amendments and addition of new articles. The Supreme Court has held in repeated judgments, beginning with the celebrated Kesavananda Bharati case, that the ‘basic structure’ of the Constitution cannot be altered through any act of Parliament, whether through a Constitutional amendment or by promulgating a new law. In the SR Bommai case of 1994, the Supreme Court held that “secularism is a part of the basic structure of the Constitution.” This means it is as unalterable as another fundamental principle of the Constitution, which has not been explicitly mentioned in the preamble - ‘democracy’.

​

​

​

​

​

​

1.Constituent Assembly Debates. Vol 5 & 7. https://www.constitutionofindia.net/constitution_assembly_debates

2. Constitution of India, 1950. https://www.constitutionofindia.net/constitution_of_india

3. Noorani, A.G., ‘Constitution and Secularism’, Frontline, Jan 22, 2016. https://frontline.thehindu.com/the-nation/constitution-and- secularism/article23593716.ece. Accessed 7 August 2022.

4. Bhatia, Gautam, The Transformative Constitution: A Radical Biography in Nine Acts. Harper Collins, 2019.

5. Tripathi, Salil. ‘Why Secularism and Socialism are Integral to the Indian Constitution’, Mint, Feb 05, 2015, https://www.livemint.com/Opinion/XKcwMBM2WpKX7TM20yPBBP/Why- secularism-and-socialism-are-integral-to-the-Indian-cons.html. Accessed 7 August 2022.

6. Jha, Shefali, ‘Secularism in the Constituent Assembly Debates, 1946-50’ Economic & Political Weekly, Vol.37, No.30 (Jul 27- Aug 2, 2002); Pp. 3175- 3180

7. “Secularism and the Preamble.” Youtube, Uploaded by Gautam Bhatia, 23 Dec, 2019. https://www.youtube.com/watch?v=ADob-MU0BzA. Accessed 7 August 2022.

8. Sarkar, Lotika, ‘Constutional Guarantees: The Unequal Sex’ in Khullar, Mala (ed) Writing the Women’s Movement: A Reader. Kali for Women, 2005. Pp.102-112.

​