Secularism and Religion Based Politics - Erosion of Constitutional Aims

 SECULARISM AND RELIGION BASED POLITICS IN INDIA- EROSION OF CONSTITUTIONAL AIMS

(Term paper towards partial fulfilment of the assessment in the subject of Constitutional Governance-I)

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NATIONAL LAW UNIVERSITY, JODHPUR  SUMMER  S  SESSION (JULY-NOVEMBER  2014)  2014)

ACNOWLE ACN OWLEDGEME DGEMENTS NTS

I hereb6 than7 the facult6 of ,ational /aw Universit61 8odhpur1 and especiall6 m6 /e9al ethods facult61 s &a7an7asha +umar for 9ivin9 me the opportunit6 and the resources needed to complete this stud6 I also would li7e to e:press m6 9ratitude to the librar6 staff for  helpin9 me whenever needed and also to m6 classmates who 7eep the spirit of competition alive in me This project has provided me with an ideal opportunit6 to e:press m6self and I  profusel6 than7 all those who have lent a helpin9 hand

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RESEARCH METHODOLOGY

SUB8!CT$ T%IC$

Constitutional Governance

Secularism &nd 'eli9ion Based olitics In India- !rosion %f Constitutional

&ims

The method of research opted b6 me to complete this project was doctrinal research from  primar6 and secondar6 sources ajor part of the project has been researched &rticles and reports available in web databases on the topic b6 scholars on the subject Boo7s and Commentries on Constitution have also been referred to

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TABLE OF CONTENTS

'!S!&'C !T%"%/%G#  T&B/! %. C%,T!,TS  I,T'%"UCTI%,  Secularism in India  0hat Is ,ot Secular$  Seculrism In Constituent &ssembl6 "ebates  'eli9ion Based olitics  Conclusion  Biblio9raph6  Cases$  Boo7s$  &rticles$ 

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INTRODUCTION

Secularism1 i e the concept of the State bein9 free from all reli9ious influences and =ualities and is a basic feature of the Indian Constitution as is e:plicitl6 stated in the preamble of the Constitution after the and it supports the  practise of ever6 form of reli9ion The State treats all reli9ions e=uall61 doesn?t discriminate on reli9ious 9rounds and there is no State reli9ion This is further 9uaranteed b6 the fundamental ri9hts in articles ;>-;@ eople are free to not just entertain reli9ious beliefs of  their choice but are also allowed to e:press and profess themA subject to reasonable restrictions1 in a manner as not to infrin9e the reli9ious ri9hts and personal freedom of others This can be summed up as to 9et protection under article ;> the =uestion is not whether a  particular practise appeals to our reason or sentiments1 but whether the belief is conscientl6 held as part of the profession or practise of reli9ion 31 but then freedom of reli9ion doesn?t allow a man to commit human sacrifice ;  1 even thou9h some reli9ions sanction human sacrifice 'eli9ious tolerance is the 9reat tradition of people and the Constitution practices tolerance which is not to be diluted 2 The foundin9 fathers of the Constitution had envisa9ed a nation where the concept of secular state would provide better standards of life for all sections of the societ6 In the judiciar6 has observed throu9h 'amaswam61 8 that secularism represets faith borne out of e:ercise of national authorities It enables people to see the imperative re=uirements of human pro9ress in all aspects and cultural and social advancement and need for human survival itself It not onl6 improves the material contents of  human life but also liberates human spirit1 futhurance from bonda9e of i9norsnce suppression1 irrationalit61 injustice1 fraud1 h6procrit6 and oppressive e:ploitation But toda6 3 8amshedji v Soonabhai1 I/' (3D4D) 22 Bom 3;; ; Saifuddin v State of Bomba61 &I' 3D>@ SC ;>> 2 Bijoe !mmanuel v State of +erala1 &I' ;444 SC 3E>4

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secularism under the Constitution is fast assumin9 9reat si9nificance in view of current trend6 rise of reli9ious fundamentalism and the correspondin9 rise of political parties based on reli9ion or owin9 alle9iance to fundamentalist or9anisations olitical parties in an attempt to 9et power end up usin9 all the means to meet the end without carin9 if it is in accordance with the aims of the Constitution or no

E

SECULARISM IN INDIA

Secularism is a principle which basicall6 has two propositions$ 3 The complete separation of state and state affairs from reli9ion and its institutions1 ; !=ual treatment of all reli9ions and no discrimination on such 9rounds %pposed to the ri9id form of secularism practised in the west1 where the state cannot ma7e an6 law re9ardin9 the church1 in India1 the state distances itself from reli9ion1 and at the same time ma7es law concerned with the secular aspect of reli9ious practises1< and rules in honourin9 the ri9hts of individuals1 i e it is not complete non-interference in matters of  reli9ion that the state practises !ver6 individual has the ri9ht to practise1 propa9ate and  profess the reli9ion of his choice and this is where the state dissociates itself from reli9ion In India the first proposition is not applied in a ver6 ri9id basis and it is not that the state is in an6 wa6 anti-reli9ious1 but on the other hand the law re=uires that the state reco9nise and accept all reli9ions1 and respect reli9ious pluralism The second proposition is the one that has more relevance in the Indian conte:t In a land of  such vast diversit61 the essence of secularism is non discrimination of people b6 the State on the basis of reli9ious differences> !ach person whatsoever be his reli9ion1 must 9et assurance from the state that he has the protection of law to freel6 profess practise and propa9ate his reli9ion and freedom of consciences E There was no mention of the word secular in the preamble of the Constitution at the time of  the ma7in9 of the Constitution1 but the foundin9 fathers wanted the nation to be havin9 a

<   Ba7shi1 The Constitution of India1 E;1 @th ed1 ;445 > &runa 'o6 v Union of India1 &I' ;44; SC 235EA  Ismail .aru=ui v Union of India1 (3DD-23@4 (8ul6 ;5&u9ust ;@1 ;44;)

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RELIGION BASED POLITICS

The ma7ers of the Constitution had envisa9ed to ma7e the countr6 a place where all person would be free to profess practise and propa9ate their reli9ion and receive and 9ive respect for  the reli9ion the6 practise 0hen the6 said that the state and the 9ovt would be separated from reli9ion1 it was implicit for the political parties as well because it was the political parties that finall6 represented people and formed the 9ovt after the6 elected But toda61 political lines are often bein9 drawn alon9 caste lines 0hen the6 made clauses that the state would not be  promotin9 an6 particular reli9ion the6 would not have ima9ined a situation1 when political  parties whom the people vote to power to 9overn them would use reli9ion as a tool to e:plore the vote ban7 where the political parties as7 for vote in the name of reli9ion(ille9al under  section 3;> of 'epresentation of eople?s &ct)1 9ive

incentive1 li7e reservations and

 bac7ward communit6 status particular sects or cast with an intention to secure more votes for  the part61 which are in actualit6 meant for the upbrin9in9 of the bac7ward sections of the societ6 .urther1 political parties1 who are the authorit6 for formin9 the 9ovt after the6 have  been elected to power1 lettin9 themselves be associated with conflict between reli9ions or  castes1 deepenin9 the conflict and creatin9 enemit6 and hatred between 9roups so much as to create riots and tensions in the name of reli9ion1 act a99ressivel6 in a wa6 as supportin9 one of the conflictin9 reli9ions1 as in the conte:t of Babri asjid demolition1 were not ideas that the Constitution ma7ers had when the6 were liberalisin9 the idea of secularism to fit into the Indian conte:t The Babri asjid demolition and the turn of events in relation was one hu9e  blow to secularism1 the most pathetic part of it bein9 that the it happened with Supreme Court onl6 able to stand as mute spectators

3<

In addition1 these political parties framin9 their 

Constitution on reli9ious lines1 owin9 alle9iance to a particular reli9ion1 or associatin9 itself  with reli9ious fundamental 9roups1 li7e the B8 with the 'SS is not in concurrence with the 3< % Chinnappa 'edd61 The Courts &nd The Constitution %f India Summit & Shallows1 E;

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secular views of the ma7ers of the Constitution The6 would have had in mind the picture  political part6 that has or had criminal cases a9ainst itself or its members for commitin9 crimes a9ainst concept of secularism and thereb6 violatin9 a set of fundamental ri9hts of the citiFens alon9 with violatin9 the supreme law of the land rulin9 the land &s ri9ht6 pointed out b6 8ustice 'edd61 no political part6 can simultaneousl6 be a reli9ious part6 because if a  political part6 e:poundin9 reli9ion came to power1 then that reli9ion tends to become in  practice become the official reli9ion and all other reli9ions would 9et a secondar6 status which is plainl6 unethical to the whole scheme of the Constitution

3>

Similarl61 the

administration of justice prevailed over the decision of the Supreme Court when it justl6 ordered for the divorced uslim husband to 9ive maintenance to his old wife1 in view of the uslim votes in the upcomin9 elections 3E It even went to such a hi9h that the B8 led 9overnment was plannin9 to set up a commission to removin9 the term secular from the Constitution of India1 which is a basic feature of the same The judiciar6 has tried to come up with valuable points of law whenever there has been a mi:in9 up of reli9ion with politics so as not to deviate the State off from the Constitutional aims and uphold them The most important jud9ement delivered in this re9ard was in the S ' Bommai v Union of India The D jud9e bench loo7ed into the matter of reli9ion bein9 mi:ed up with politics in a ver6 strin9ent manner In S '  Bommai v Union of India1 a new meanin9 was added to the word secularism It was observed that the neutralit6 of the State would be violated if reli9ion is used for political  purposes and advocated b6 political parties for their political ends &n appeal to the electorate on the 9rounds of reli9ion offends secular democrac6 olitics and reli9ion can?t be mi:ed If 

3> S' Bommai v Union of India1 &I' 3DD< SC 3D3@1 3E ohd &hmed +han v Shah Bano Be9um1 &I' 3D@> SC D

3;

a state 9ovt indul9es in this1 it is a fit case for application of &rticle 2>E and it is in this sense that secularism is to be re9arded as a basic feature of the Constitution35 It can be ver6 well understood that the cause of both will be ruined if one is used for the  purpose of the other Secularism be a basic feature of the Constitution would be impaired if  freedom of reli9ion is subverted to achieve political purposes ore importantl61 it declared the state 9overnment mi:in9 up reli9ion with politics as anti secular and hence militates a9ainst the basic structure of the Constitution The court did not sa6 that the state could not outlaw a political part6 on the 9rounds of mi:in9 reli9ion with politics was because a  political part6 is an association with the protection of article 3D(3) (c) whose inte9rit6 could not be demolished e:cept on 9rounds specified in article 3D(>

> Bijoe !mmanuel v State of +erala1 &I' ;444 SC 3E>4

E &runa 'o6 v Union of India1 &I' ;44; SC 235EA  Ismail .aru=ui v Union of India1 (3DD