Authored by Shashank Pandey, 2nd Year Student at WB-NUJS, Kolkata. The author has secured 7th Rank in Article Writing Competition organised by The Society For Constitutional Law Discussion
The evolution of the Basic Structure concept in India has witnessed a longstanding conflict between the Judiciary and the Executive. The constitutional amendments related to land reform faced legal challenges through a series of Supreme Court cases, ultimately culminating in the 1973 Kesavananda Bharati v. State of Kerala case. This landmark ruling established the principle that every Constitutional amendment must undergo scrutiny against the fundamental tenets of the Constitution, known as the 'basic structure.'
The Basic Structure Doctrine is a legal principle in some countries, most notably India, that considers certain fundamental aspects of the constitution to be immutable and beyond the legislature's amendment powers. These fundamental features form the foundation of the Constitution and cannot be changed even through formal amendment procedures.
While the Kesavananda Bharati case didn't directly address secularism, it set a significant precedent for evaluating Indian Constitutional amendments. Notably, the Basic Structure doctrine has been invoked in cases beyond constitutional amendments, and the courts have acknowledged its relevance. Even in cases unrelated to Constitutional Amendments, the courts frequently reference the Basic Structure doctrine. The inclusion of 'Secularism' as part of the Basic Structure is a prime example.
'Secularism' is just one of several principles that have been considered integral to the Basic Structure over the years. Interestingly, the concept of secularism is as open to interpretation as the Basic Structure doctrine itself, with different court cases offering varying interpretations without a fixed Sprecedent or rule. This article offers an analysis of the judgments affirming the inclusion of secularism in the Basic Structure up to the landmark case of S.R. Bommai v. Union of India, which formally held Secularism to be a part of the Basic Structure. It also endeavours to outline the key characteristics of 'Secularism' within this constitutional framework.
Many Shades of Secularism
According to D.E. Smith, a secular state is traditionally defined as one that guarantees religious freedom for individuals and organisations, treats citizens equally regardless of their faith, is not officially tied to any specific religion, and refrains from endorsing or hindering religious practices. This concept, commonly understood as the separation of State and Religion, has been a prevailing notion of secularism globally. However, India, often described as an “unnatural” and complex nation, has embraced a unique interpretation of secularism.
In India, known for its rich cultural diversity, secularism doesn't imply the state's indifference towards religions but rather signifies impartial treatment of all faiths, ensuring that no Indian is subjected to religious discrimination. This distinctive approach has given Indian secularism a positive connotation, emphasising the state's equal respect for and distance from all religions.
Moreover, as Science and the Scientific Temper, whose development happens to be a Fundamental Duty, gain prominence, a significant shift is occurring. Modern secularism in India now encompasses the process of emancipating social and cultural institutions from the influence of religious bodies and symbols. This evolving perspective reflects a broader movement toward liberating society from the dominance of religious institutions, marking a departure from the traditional understanding of secularism.
Secularism & Basic Structure
The Very Beginnings
Secularism was a topic of discussion within the Kesavananda Bharati judgment itself. Several judges, including Sikri, Shelat, and Grover J., enumerated a set of characteristics of the Basic Structure, with secularism being one of them. They also expressed their viewpoints on secularism.
Sikri J., in addition to emphasising democracy and individual freedom, contended that 'secularism' constitutes one of India's foundational constitutional principles. In their joint verdict, Shelat and Grover J. highlighted that India is a secular state without an official religion, and the Constitution safeguards citizens' rights to religious freedom, the practice of religion, the administration of religious affairs, and the protection of minority rights. Furthermore, H.R. Khanna J. ruled that the state's secular nature, which prevents discriminatory treatment based solely on an individual's religious beliefs, is an inherent and unalterable aspect of the Constitution.
It is interesting to note that Justice Sikri, in his stance on secularism within the Basic Structure, simply mentioned its inclusion. However, Justices Shelat and Grover, as well as H.R. Khanna, provided more detailed insights into their understanding of this concept. Shelat and Grover underlined the essential division between the State and Religion, emphasising the absence of an official state religion, and championed religious freedom and minority protection, reflecting a positive approach that calls for equitable treatment of all religions. In contrast, H.R. Khanna's interpretation of the State's secular nature focused on the prohibition of religious discrimination, suggesting that actions not solely motivated by religion would not breach the principles of secularism or the Basic Structure. This more stringent perspective was reiterated in the Indira Nehru Gandhi v. Raj Narain case judgement as well which was delivered by Khanna himself.
An Aberration
The Indra Sawhney v. Union of India case had its roots in a highly contentious context. During Prime Minister V.P. Singh's tenure, the government implemented the recommendations of the Mandal Commission, releasing an Office Memorandum that introduced reservations for backward castes in government employment. This move triggered significant opposition, sparking widespread protests, law and order issues, and numerous legal challenges against the memorandum. The culmination of these events was the landmark Indra Sawhney verdict, which featured a noteworthy interpretation of secularism by one of the dissenting judges.
In his dissenting judgment in the Indra Sawhney case, Justice Kuldip Singh firmly asserted that secularism is an integral 'basic feature' of the Indian Constitution. In his view, secularism aimed at fostering a united and caste-free society. He went on to condemn the caste system as a menace to secularism and, consequently, as a threat to the nation's unity and integrity. Ultimately, he contended that applying caste-based criteria was contrary to the principles of secularism and ran counter to the basic features of the Constitution.
As it is apparent, the Indra Sawhney judgment primarily revolved around the issue of caste-based reservations, and as with any legal decision, it was influenced by the specific facts of the case. Therefore, the interpretation of secularism in this context was primarily related to the caste issue. However, Justice Kuldip Singh's dissenting opinion in the case extended the scope of the secularism doctrine to encompass caste, an area that had traditionally been largely associated with the relationship between the State and religions. This expansion of the secularism concept can be viewed as an instance of judicial activism, as it broadened the legal understanding of secularism.
It's worth noting that while dissenting opinions are not legally binding, they can often lay the groundwork for future binding judgments. This was exemplified by the dissenting opinion of Justice H.R. Khanna in the ADM Jabalpur v. Shivakant Shukla case, which eventually became a foundational basis for subsequent legal decisions.
The Landmark
S.R. Bommai v. Union of India is frequently cited as a precedent to assert that secularism is an integral element of the Basic Structure of the Indian Constitution. This case holds significance because, for the first time, the judgment formally recognised 'Secularism' as a fundamental component of the Basic Structure. This case centred on the contentious issue of the arbitrary dismissal of several State Governments between 1988 and 1991. Although the specific facts of the case did not directly pertain to secularism, the judgment heavily relied on secularism as a crucial factor in arriving at its ultimate decision.
Secularism received a resounding endorsement as a "basic feature" of the Constitution from multiple judges. Justice Ahmadi highlighted its flexible, non-rigid nature by deliberately leaving the term "Secular" undefined. Likewise, Justices Reddy and Agrawal acknowledged secularism as a "basic feature" while recognizing its inherent inability to be precisely defined. They emphasized that secularism transcended mere neutrality and instead represented a positive principle requiring equal treatment for all religions.
Justice Sawant, in conjunction with Kuldip Singh, robustly upheld secularism as an integral part of the Basic Structure. He asserted that constitutional secularism was indispensable for safeguarding religious freedom, equality, and protection. His vision entailed a strict demarcation between secular and religious activities, staunchly preventing religious encroachment into secular matters. He also contended that any government actively undermining secular principles should not be permitted to continue in cases involving the dismissal of State Governments.
Justice Ramaswamy emphasized that the Constitution's secularism was not "anti-god." He underscored the State's non-interference in purely religious concerns unless a threat to public interest existed. Notably, he introduced the concept of Positive Secularism, which focused on keeping religious beliefs private and concentrating on the temporal, material aspects of life.
In the S.R. Bommai case, although the central issue pertained to the dissolution of State Governments, the judgment delved extensively into the concept of secularism. This extensive discussion stemmed partly from the perception that the dismissals of the governments of Madhya Pradesh, Rajasthan, and Himachal Pradesh were linked to the demolition of the Babri Masjid and the subsequent riots. The judges expressed a range of viewpoints on what constitutes a secular state.
Justices Sawant and Kuldip Singh advocated a strict separation of Religion and State, emphasizing the importance of maintaining this division. In contrast, Justice Ramaswamy viewed secularism as not inherently opposed to religion and introduced the idea of Positive Secularism. Despite these differences in opinion, all the judges unanimously agreed that secularism was an integral component of the Basic Structure of the Indian Constitution.
Key Takeaways
A comprehensive examination of these legal judgments sheds light on the judiciary's reluctance to impose an objective and precisely defined standard for secularism. This reluctance stems from the widely acknowledged notion that secularism is inherently elusive and resists precise encapsulation within rigid definitions. While the flexibility associated with secularism may seem reasonable on the surface, it raises a crucial concern. The absence of clear boundaries for secularism, akin to the Basic Structure doctrine, leaves room for judicial interpretation that aligns with individual preferences. This is clearly exemplified by the dissenting opinion put forth by Justice Singh in the Indra Sawhney case.
However, when the focus shifts towards the Basic Structure doctrine, it becomes apparent that the various judgments converge on several fundamental aspects of secularism. These aspects predominantly include the demarcation between individuals' private and public religious affairs. This demarcation underscores the significance of ensuring a clear separation between personal beliefs and public governance, a core tenet of a secular state.
Furthermore, these judgments emphasise the principle of equal treatment for all religions. A secular state is expected to maintain impartiality and fairness towards all religious beliefs, preventing the favouritism of one religion over others. This commitment to religious equality underpins the essence of secularism.
Additionally, the judgments underscore the importance of safeguarding the rights of disadvantaged groups. This dimension of secularism aims to protect marginalised or minority communities from discrimination or prejudice based on their religious identity.
It's essential to acknowledge that the components of secularism extend beyond these fundamental features. The concept of secularism encompasses a broad range of principles, but the issue lies in the lack of clear demarcation and specific guidelines. Considering the profound and far-reaching impact of secularism on the functioning of the state and its interactions with diverse religious communities, there arises a pressing need to establish certain boundaries. Such boundaries would provide a more structured framework for interpreting and applying secularism, ensuring that it harmonises with the broader principles of the Indian Constitution while maintaining fairness and equity for all citizens.