Live and let live: the soul of the Constitution

Abha Singhal Joshi

“In short, secularism in the context of our Constitution means only an attitude of live and let live developing into the attitude of live and help live.”

Of the many words and phrases embedded in the soul of the Constitution of India, ‘secular’ or ‘secularism’ is one that, for a long time, was given a go-by by most people who tried to recount on their fingers what the Constitution stands for. In times to come, this word quickly escalated up the charts to become one of the most talked about topics amongst people. Somewhere in between, it was used by a variety of citizens to assert a number of wholesome and essential rights.

What is this peculiarity called ‘secularism’ that evokes reactions from apathy to rejection to devotion? Is it a peculiarity of the Constitution of India or is it a universal concept? Is it thrust upon us or is it just a manifestation of what we are and what we aspire to be? These are questions which we must examine if we want to bring it into the classroom in a way that not only enhances the students’ understanding of the precepts of the Constitution, but also engenders a long-term engagement with the social and the political fabric of the country. All concepts related to the Constitution must facilitate young people to start the process of making choices in everyday life, and this will ultimately affect the kind of polity, politics and governance we bring into our country.

‘Secular’ and ‘secularism’ – what do they mean?
A word search on Google indicates that ‘secular’ means ‘not having any connection with religion’ (The Cambridge Advanced Learner’s Dictionary and Thesaurus https://dictionary.cambridge.org/dictionary/english/secular) and ‘not connected with religious or spiritual matters’ (Oxford Dictionaries https://en.oxforddictionaries.com/definition/secular). For our purpose, this definition will suffice.

So when the Preamble to the Constitution proclaims that we have adopted a ‘secular’ form of governance, is it to be understood as meaning that all of us have given up our religion? Certainly not. On the contrary, it means that our freedom to practice, propagate and follow our religion, whatever it may be, will not be interfered with by the State because the State will not have allegiance to any particular religion. Importantly, it also means the freedom to not adhere to any religious or spiritual beliefs whatsoever.

One could, of course, debate whether the State not having a religion of its own is desirable or not. However, history has shown that mixing of religion in the political space has most often resulted in disastrous consequences. Worldwide, therefore, the proximity of religion (specifically, the Church, which was extremely powerful) and the political agency of the State was gradually shunned in favour of a ‘secular’ order.

In reference to the Constitution of India, ‘secular’ or ‘secularism’ is a guarantee to the citizen, combined of several rights.

Firstly, the right is embedded in Articles 14 and 15, which mandate that the state shall not deny to any person, equality before law or the equal protection of the laws within the territory of India. Article 15 further prohibits discrimination on the grounds of religion, race, caste, sex or place of birth. This clearly means that the State shall not promote nor ignore people on the basis of their religious affiliation, or even lack of it.

Secondly, secularism is embedded in the guarantee of the right to life and personal liberty under Article 21. For, if the life of a person or citizen is not secure and protected per se and is at threat because of the religion he or she follows and the State looks the other way or fails to protect the person, it would be a gross failure to protect the most crucial fundamental right and that would lead to anarchy.

It can also be found to be a component of the right to privacy, recently declared by the Supreme Court to be a fundamental right and part and parcel of the right to life and personal liberty –
“The right of privacy is a fundamental right. It is a right which protects the inner sphere of the individual from interference from both State, and non-State actors and allows the individuals to make autonomous life choices.”*

The third and the most obvious is the right to freedom of conscience and free profession, practice and promulgation of religion, guaranteed by Article 25.

Myths about the word ‘secular’
Unfortunately, in the mind of the lay person, the word ‘secular’ has taken a negative slant. Some myths therefore need to be resolved before we go deeper into understanding it.

Myth One: Many believe that the word or concept ‘secular’ is an ‘afterthought’ or ‘addition’. Though the word itself was added (along with some others) to the Preamble through an amendment in 1977, the Constitution of India has always been ‘secular’ and was always meant to be secular. The insertion of the word in the Preamble only serves to highlight an important existing characteristic.

Long before the word ‘secular’ itself appeared in the Preamble, the concept was discussed and analyzed in the context of the rights claimed to management of temples and religious trusts. It was consistently upheld that while all these had a right to function freely and manage their own affairs, there was a difference between the religious activities which are an integral part of religion and therefore beyond the scope of being interfered with or regulated by the state and those ‘secular’ activities which could be regulated by the state.

Therefore, in a case related to the revered and well-known Nathdwara temple of Rajasthan, the Court said in 1963,

“………the Legislature has provided for the appointment of a Board to look after the administration of the property of the temple and manage its secular affairs as well as the religious affairs of the temple, but in regard to these religious affairs consisting of the worship, services, festivals and other ceremonies, the custom prevailing in the temple consistently with the tenets of Vallabha philosophy are to be respected.”

Likewise, the Bombay High Court ruled in 2016, that women must be allowed access to the sanctum sanctorum of the Haji Ali Dargah, managed by a public charitable trust, in view of upholding articles 14, 15 and 25 of the Constitution of India.

Myth Two: To be secular is to be ‘anti religion’. This is neither an intention of the Constitution of India nor has it any base in the very concept of secularism. The fact that several religions thrive and several strands of beliefs and spiritual activities spring up now and then, point to the fact that the State is not ‘against’ religion in any way. On the contrary, it has played a facilitative role for people and communities to equally follow and enjoy their religious practices.

Individuals, may, of course, be opposed to the idea of religion itself or may have views rejecting any particular religion. A secular state will not force an alternative view on individuals or groups like these, unless they resort to actions which pose a threat to law and order, public morality, etc. Even here, the state is bound to act under and within the bounds of a law of the legislature. The secular state is expected to distance itself from participating in any viewpoint and concern itself with the promotion of secular activities such as good governance, law and order, health, education and recreation for all.

Myth three: Secularism is ‘pro-minority’. This is clearly an idea promoted by any segment that would wish the minority religions to have ‘lesser’ rights. The Constitution does not provide either for wrongful support or ‘appeasement’ of minorities, not for their neglect or rejection. The lessons from history tell us that religions, cultures, languages of a fewer numbers definitely have a tendency to get subjugated or altogether obliterated. That is why some special protection for these is required for them to survive. This is what is guaranteed by the Constitution of India. The fact that religious minorities and denominations have a fundamental right under Article 30 to establish and administer educational institutions does not take away any right from the majority or other communities to do the same. ALL religious denominations have a right to manage their own religious affairs without State interference. The only restriction is that they must all do these activities subject to public order, morality and health.

Myth four: Finally, there is a feeling that ‘secularism’ promotes a society devoid of morals. This debate has to be looked at from various angles, specially whether ‘morality’ is located only in religion or in any particular religion. Whether to be non-religious is synonymous with being ‘immoral’ or devoid of values. One might recall that in most Christian Missionary schools, ‘moral science’ was taught as a separate subject, however, in the prescribed books, there were very few references to Christianity as such and most stories only related to the ‘good’ and ‘bad’ of everyday life. The same subject later came to be taught as ‘value education’.

A discussion on constitutional issues must open up the individual’s mind to discerning between what they pick up from the social and political environment created through use of social media, etc., and think things out for themselves. ‘Taking sides’ should be actively encouraged in the discussion and no view should be concluded as being right or wrong. That is how we become truly secular without even realizing it!

Some of these stories can be put to the students for a discussion on what it means to be ‘secular’

  • A boy and his siblings belong to a sect called Jehovah’s Witnesses. There is a practice in that sect that no songs in praise of any other entity other than God are to be sung by its members. They are well-behaved children and stand straight and respectfully when the National Anthem plays in the assembly, which they attend regularly. On a complaint by a politician, these children are expelled from the school. Is it proper for the government to intervene in this manner?
  • Two sects of Muslims are constantly fighting over a particular piece of land where a graveyard exists. It becomes a constant law and order problem. The government orders relocation of the graveyard of one of the sects. Is it proper for the government to intervene in this manner?
  • A sect of Hindu Sadhus follows nudity and insist that they will congregate in any part of the town, even those which are frequented by the public. Is it proper for the government to intervene in this matter?
  • A certain religious place is suspected of criminal activities such as drug abuse, sexual abuse of minors and women. Is it proper for the government to intervene in this matter?
  • Many deaths are happening due to road accidents involving two-wheelers. Mostly, it is because of head injuries as people do not wear helmets. The government makes it compulsory to wear helmets. One sect of Sikhs say that they will not follow this rule as it is against the tenets of their religion. Should the government enforce this rule?
  • Many religious denominations use loudspeakers during prayers and religious occasions. The decibel levels are often beyond the limit prescribed under the Noise Pollution (Regulation and Control) Rules 2000 made under the Environment Protection Act. Should the government enforce the rules against noise pollution in such situations?

The author is a lawyer since 1983. Her interest lies in popularizing the understanding and positive use of law. Her work includes legal aid, legal training and simplification of a variety of laws for common people, government departments and other organizations and institutions. She can be reached at [email protected].

*(The Supreme Court of India in Justice K.Puttaswamy & Another Vs Union of India and Others, 2017, better known as ‘the Right to Privacy Case’)

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