Secularism in India

Overview of secularism in India

India since its independence in 1947 has been a secular state. The secular values were enshrined in the constitution of India. India's first prime minister Jawaharlal Nehru is credited with the formation of the secular republic in the modern history of the country. With the Forty second Amendment of the Constitution of India enacted in 1976, the Preamble to the Constitution asserted that India is a secular nation. However, the Supreme Court of India in the 1994 case S. R. Bommai v. Union of India established the fact that India was secular since the formation of the republic. The judgement established that there is separation of state and religion. It stated "In matters of State, religion has no place. Any State government which pursues nonsecular on policies or nonsecular course of action acts contrary to the constitutional mandate and renders itself amenable to action under Article 356". Furthermore, constitutionally, state owned educational institutions are prohibited from imparting religious instructions, and Article 27 of the constitution prohibits using tax payers money for the promotion of any religion. Officially, secularism has always inspired modern India. In matters of law in modern India, personal laws – on matters such as marriage, divorce, inheritance, alimony – varies if one is a Muslim or not (Muslims have an option to marry under secular law if they wish). The attempt to respect religious law has created a number of issues in India, such as acceptability of polygamy, unequal inheritance rights, extra judicial unilateral divorce rights favorable to some males, and conflicting interpretations of religious books. Supporters state that any attempt to introduce a uniform civil code, that is equal laws for every citizen irrespective of his or her religion, would not impose majoritarian Hindu sensibilities and ideals.]] Ashoka about 2200 years ago, Harsha about 1400 years ago accepted and patronised different religions. The people in ancient India had freedom of religion, and the state granted citizenship to each individual regardless of whether someone's religion was Hinduism, Buddhism, Jainism or any other. There should not be honour of one's own (religious) sect and condemnation of others without any grounds.|Ashoka, Rock Edicts XII, about 250 BC|

This approach to interfaith relations changed with the arrival of Islam and establishment of Delhi Sultanate in North India by the 12th century, but it was not the only cause the enmity in minds of Hindu lower caste had risen to the top because of the discimination by Brahmins followed by Deccan Sultanate in Central India. New temples and monasteries were not allowed. As with Levant, Southeast Europe and Spain, Islamic rulers in India treated Hindus as dhimmis in exchange of annual payment of jizya taxes, in a sharia based state jurisprudence. With the arrival of Mughal era, Sharia was imposed with continued zeal, with Akbar – the Mughal Emperor – as the first significant exception. However, the descendants of Akbar, particularly Aurangzeb, reverted to treating Islam as the primary state religion, destruction of temples, and reimposed religion based discriminatory jizya taxes. After Aurangzeb, India came into control of East India Company and the British Raj. The colonial administrators did not separate religion from state, but marked the end of equal hierarchy between Islam and Hinduism, and reintroduced the notion of equality before the law for Hindus, Christians and Muslims. The British Empire sought commerce and trade, with a policy of neutrality to all of India's diverse religions. By the mid 19th century, the British Raj administered India, in matters related to marriage, inheritance of property and divorces, according to personal laws based on each Indian subject's religion, according to interpretations of respective religious documents by Islamic jurists, Hindu pundits and other religious scholars. In 1864, the Raj eliminated all religious jurists, pandits and scholars because the interpretations of the same verse or religious document varied, the scholars and jurists disagreed with each other, and the process of justice had become inconsistent and suspiciously corrupt. The late 19th century marked the arrival of Anglo Hindu and Anglo Muslim personal laws to divide adjacent communities by British, where the governance did not separate the state and religion, but continued to differentiate and administer people based on their personal religion. The British Raj provided the Indian Christians, Indian Zoroastrians and others with their own personal laws, such as the Indian Succession Act of 1850, Special Marriage Act of 1872 and other laws that were similar to Common Laws in Europe. Although the British administration provided India with a common law, its divide and rule policy contributed to promoting discord between communities. The Morley Minto reforms provided separate electorate to Muslims, justifying the demands of the Muslim league. In the first half of 20th century, the British Raj faced increasing amounts of social activism for self rule by a disparate groups such as those led by Hindu Gandhi and Muslim Jinnah; the colonial administration, under pressure, enacted a number of laws before India's independence in 1947, that continue to be the laws of India in 2013. One such law enacted during the colonial era was the 1937 Indian Muslim Personal Law (Shariat) Application Act, which instead of separating state and religion for Western secularism, did the reverse. It, along with additional laws such as Dissolution of Muslim Marriages Act of 1939 that followed, established the principle that religious laws of Indian Muslims can be their personal laws. It also set the precedent that religious law, such as sharia, can overlap and supersede common and civil laws, that elected legislators may not revise or enact laws that supersede religious laws, that people of one nation need not live under the same laws, and that law enforcement process for different individuals shall depend on their religion. The Indian Muslim Personal Law (Shariat) Application Act of 1937 continues to be the law of land of modern India for Indian Muslims, while parliament based, non religious uniform civil code passed in mid 1950s applies to Indians who are Hindus (which includes Buddhists, Jains, Sikhs, Parsees), as well as to Indian Christians and Jews.

The 7th schedule of Indian constitution places religious institutions, charities and trusts into so called Concurrent List, which means that both the central government of India, and various state governments in India can make their own laws about religious institutions, charities and trusts. If there is a conflict between central government enacted law and state government law, then the central government law prevails. This principle of overlap, rather than separation of religion and state in India was further recognised in a series of constitutional amendments starting with Article 290 in 1956, to the addition of word 'secular' to the Preamble of Indian Constitution in 1975. The overlap of religion and state, through Concurrent List structure, has given various religions in India, state support to religious schools and personal laws. This state intervention while resonant with the dictates of each religion, are unequal and conflicting. For example, a 1951 Religious and Charitable Endowment Indian law allows state governments to forcibly take over, own and operate Hindu temples, and collect revenue from offerings and redistribute that revenue to any non temple purposes including maintenance of religious institutions opposed to the temple; Indian law also allows Islamic and other minority religious schools to receive partial financial support from state and central government of India, to offer religious indoctrination, if the school agrees that the student has an option to opt out from religious indoctrination if he or she so asks, and that the school will not discriminate any student based on religion, race or any other grounds. Educational institutions wholly owned and operated by government are prohibited from imparting religious indoctrination, but religious sects and endowments may open their own school, impart religious indoctrination and have a right to partial state financial assistance. In terms of religions of India with significant populations, only Islam has religious laws in form of sharia which India allows as Muslim Personal Law. to declare that India is not a secular state, as the word secularism is widely understood in the West and elsewhere; rather it is a strategy for political goals in a nation with a complex history, and one that achieves the opposite of its stated intentions. The attempt to have a Uniform Civil Code has long been discussed as a means to realize a secular Indian state. They characterize secularism as practiced in India as "pseudo secularism", a camouflaged hypocrisy for the political "appeasement of minorities". As of 28 July 2020, there were pleas going on Supreme court of India to remove the words secular and socialist from the Preamble to the Constitution of India.

Most Right Wing Hindu organisations like RSS, Bajrang Dal, Vishwa Hindu Parishad have demanded that India should be declared a "Hindu nation" by constitution to safeguard the rights and life of Hindus in this largest democracy. As far citizens concerned, only 7/20th Indian Hindus are in the favour of making India as Hindu Rashtra. Nearly two thirds of Indian Hindus (64% of the population) say that it is very important to be Hindu to be truly Indian or citizen of India. As of 28 July 2020, there were pleas going on Supreme Court of India to remove the words secular and socialist from the Preamble to the Constitution of India. Recently ex Rajya Sabha MP Subramanian Swamy appealed to the Supreme Court of India for deletion of "Socialist" & "Secular" words from Preamble to the Constitution of India.

In the West, the word secular implies three things: freedom of religion, equal citizenship to each citizen regardless of their religion, and the separation of religion and state (polity). One of the core principles in the constitution of Western democracies has been this separation, with the state asserting its political authority in matters of law, while accepting every individual's right to pursue his or her own religion and the right of religion to shape its own concepts of spirituality. Everyone is equal under law, and subject to the same laws irrespective of his or her religion, in the West. In contrast, in India, the word secular means thorough going separation of religion and state. According to the Constitution of India, states Smith, there is no official state religion in India, schools that are wholly owned by the state can not mandate religious instruction (Article 28), and tax payers money cannot be used to support any religion (Article 27). Overlap is permitted, whereby institutions that are not entirely financed by the state can mandate religious instruction, and state can provide financial aid to maintain religious buildings or infrastructure in accordance with law. Furthermore, India's constitutional framework allows "extensive state interference in religious affairs". According to R. A. Jahagirdar, in the Indian context, secularism has been interpreted as the equality before law, including of all religions, while the state is neutral. Article 44 of the Directive Principles of State Policy adds, "the state shall endeavor to secure for the citizens a uniform civil code throughout the territory of India." This intent for secular personal laws has been unsettling especially to Indian Muslims, states Smith, in part because they view the alteration of Muslim personal law to be a "grave violation of their freedom of religion". The term secularism in India also differs from the French concept for secularity, namely laïcité. While the French concept demands absence of governmental institutions in religion, as well as absence of religion in governmental institutions and schools; the Indian concept, in contrast, provides financial support to religious schools. The Indian structure has created incentives for various religious denominations to start and maintain schools, impart religious education (optionally), and receive partial but significant financial support from the Indian government. Similarly, the Indian government has established statutory institutions to regulate and financially administer the historic Islamic Central Wakf Council, historic Hindu temples, Buddhist monasteries, and certain Christian religious institutions.

Indian concept of secularism, where religious laws are applicable to certain minorities and the state is expected to even handedly involve itself in religion, is a controversial subject.

In 1978, the Shah Bano case brought the secularism debate along with a demand for uniform civil code in India to the forefront. Shah Bano was a 62 year old Muslim Indian who was divorced from her husband of 44 years in 1978. Indian Muslim Personal Law required her husband to pay no alimony. Shah Bano sued for regular maintenance payments under Section 125 of the Criminal Procedure Code, 1978. The Shah Bano ruling immediately triggered controversy and mass demonstrations by Muslim men. The Islamic Clergy and the Muslim Personal Law Board of India argued against the ruling. enacted a new law which deprived all Muslim women, and only Muslim women, of the right of maintenance guaranteed to women of Hindu, Christian, Parsees, Jews and other religions. Indian Muslims consider the new 1986 law, which selectively exempts them from maintenance payment to ex wife because of their religion, as secular because it respects Muslim men's religious rights and recognises that they are culturally different from Indian men and women of other religions. Muslim opponents argue that any attempt to introduce Uniform Civil Code, that is equal laws for every human being independent of his or her religion, would reflect majoritarian Hindu sensibilities and ideals.

The controversy is not limited to Hindu versus Muslim populations in India. The Islamic feminists movement in India, for example, claim that the issue with Muslim Personal Law in India is a historic and ongoing misinterpretation of the Quran. The feminists claim that the Quran grants Muslim women rights that in practice are routinely denied to them by male Muslim ulema in India. They claim that the 'patriarchal' interpretations of the Quran on the illiterate Muslim Indian masses is abusive, and they demand that they have a right to read the Quran for themselves and interpret it in a woman friendly way. India has no legal mechanism to accept or enforce the demands of these Islamic feminists over religious law.

Some religious rights granted by Indian concept of secularism, which are claimed as abusive against Indian women, include child marriage, Triple Talaq was banned in India, following a historic bill being passed on 30 July 2019.

India continued offering liberal subsidies for religious pilgrimage after 1950, under its polymorphous interpretation of secularism. The largest and most controversial has been the Haj subsidy program for the Islamic pilgrimage to Mecca, which was criticized as benefitting affluent Muslims and discriminatory against Hindus and Christians who did not get similar subsidy for trips to their own holy places. In 2012, the Supreme Court of India ordered an end to the religious subsidies program within 10 years. According to a Wall Street Journal article, Indian Muslim leaders supported an end to the Hajj subsidies, because "hajj must be performed with money righteously earned by a Muslim, and not on money from charity or borrowings. ." This system is derived from Portuguese colonization and is maintained until today. The Goa Civil Code, also called the Goa Family Law, is the set of civil laws that governs the residents of the Indian state of Goa. In India, as a whole, there are religion specific civil codes that separately govern adherents of different religions. Goa is an exception to that rule, in that a single secular code/law governs all Goans, irrespective of religion, ethnicity or linguistic affiliation. It suggests the possibility to establish uniform civil code within a country having rich religious diversity like India.