Religion, Law, and Judiciary in Modern India

Abstract

I. INTRODUCTION Among the seven nations of South Asia forming the South Asian Association for Regional Cooperation (SAARC),1 India stands out as the only country that has declared itself a secular State. In each of the remaining six nations, one or another spiritual faith has the status of the officially adopted or legally promoted religion-Buddhism in Bhutan2 and Sri Lanka;3 Hinduism in Nepal;4 and Islam in Bangladesh,5 Maldives,6 and Pakistan.7 Constitutionally, India is a secular country and therefore has no State religion. However, it has developed over the years its own unique concept of secularism that is fundamentally different from the parallel American concept of secularism requiring complete separation of church and state, as also from the French ideal of laicite.8 Despite the clear incorporation of all the basic principles of secularism into various provisions of the Constitution when originally enacted, its preamble did not then include the word secular in the short description of the country, which it called a "Sovereign Democratic Republic." This was, of course, not an inadvertent omission but a well-calculated decision meant to avoid any misgiving that India was to adopt any of the western notions of a secular state. Twenty-five years later-by which time India's peculiar concept of secularism had been fully established through its own judicial decisions and state practice, the preamble to the Constitution was amended to include the word "secular" (along with "socialist") to declare India to be a "Sovereign Socialist Secular Democratic Republic."9 This Article briefly states and explains the constitutional, statutory, and judicial framework of India's religion-state relations, and the unique balance that is found in that framework between secularism and freedom of religion-namely that, in India, the law of the land determines the scope of religion in society; it is not religion that determines the scope of the law. Part II below explains the foundational role India's Constitution plays in its religion-state relations. Part III briefly looks into the legislative enactments and governmental mechanisms relating to or having a bearing on religious matters. Part IV illustrates how the courts have interpreted India's concept and principle of secularism and religious freedom. II. CONSTITUTIONAL FOUNDATIONS Constitutionally, India is a secular nation, but any "wall of separation" between religion and state exists neither in law nor in practice-the two can, and often do, interact and intervene in each other's affairs within the legally prescribed and judicially settled parameters. Indian secularism does not require a total banishment of religion from the societal or even state affairs. The only demand of secularism, as mandated by the Indian Constitution, is that the state must treat all religious creeds and their respective adherents absolutely equally and without any discrimination in all matters under its direct or indirect control. In this Part, Section A below describes the constitutional mandates that apply to all religions, and Section B discusses the provisions that relate to certain religious communities and their faiths. A. General Provisions The Constitution of India contains in its chapter on Fundamental Rights several provisions that emphasize complete legal equality of its citizens and prohibit any kind of religion-based discrimination between them. Among these provisions are the following: "The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India."10 "The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth, or any of them."11 "No citizen shall, on grounds only of religion . . . be subjected to any disability, liability, restriction or condition with regard to access to or use of various public places. …