Secular means not connected with spiritual or religious matters. The Cambridge dictionary defines secularism the belief that religion should not be involved with the ordinary social and political activities of a country. How far is this true in India and the world at large? Sanatana Dharma is possibly the only civilisation that has exhortations like Vasudeva kutumbakam (the world is one family) or loka samastha sukhino bhavantho (let the whole world enjoy comfort and happiness). Atheism is not taboo in Sanatana Dharma.

The Constitution adopted in 1950 declared a Sovereign Democratic Republic. So where did things go wrong between 1950 and 1976 when the terms ‘Secular’ and ‘Socialist’ were included in the Preamble through the 42nd Amendment?

The flowery Preamble promised the citizens utopia: JUSTICE, social, economic and political; LIBERTY of thought, expression, belief, faith and worship; EQUALITY of status and of opportunity; and to promote among them all FRATERNITY assuring the dignity of the individual and the unity and integrity of the Nation. Yet, initially, the apex court wouldn’t even accept it as part of the Constitution.

The Directive Principles of State Policy are just there on paper, except possibly Article 50 which states that ‘The State shall take steps to separate the judiciary from the executive in the public services of the State’. They cannot be legally enforced. Of the 395 articles, only 24 deal with fundamental rights of citizens that can be enforced through courts, at least theoretically.

The fundamental rights go against the letter and spirit of the Preamble which lays the framework for the interpretation of the provisions of the Constitution. On laws inconsistent with or in derogation of fundamental rights, Art 13(2) lays down that The State shall not make any law which takes away or abridges the rights conferred by this Part and any law made in contravention of this clause shall, to the extent of the contravention, be void.

However, in 1971, on the eve of the war with Pakistan, the 24th Amendment inserted Art 13(4): Nothing in this article shall apply to any amendment of this Constitution made under article 368.

Article 368 pertains to amendments to the Constitution. By the 24th Amendment, Parliament assumed powers to add, vary or repeal any provision of the Constitution, dealing a blow to Article 13(2). The power of the President was curtailed. Originally, a Bill passed by Parliament had to be presented to the President for his assent and upon such assent being given to the Bill, it would become law. Now, a Bill presented to the President had to be given assent. He was left with no discretion.

The 42nd amendment made even the fundamental rights amendable. Section 55 of this amendment stated: there shall be no limitation whatever on the constituent power of Parliament to amend by way of addition, variation or repeal the provisions of this Constitution under this article (368). It added that No amendment under this article shall be called in question in any court on any ground. Thus, in ADM Jabalpur case, April 28, 1976, the Supreme Court declared that the right to life was not a fundamental right during the Emergency. In 1980, these amendments were held invalid by the same court.

Regarding secularism, Articles 25 to 28 which deal with the Right to Freedom of Religion, are pertinent. Article 25(1) provides that all persons are equally entitled to freedom of conscience and the right freely to profess, practise and propagate religion. There are no reasonable restrictions on propagating religion and its consequences are there to see. The basic premise of any right - your liberty ends where my nose begins - was ignored. Yet proselytization has been one of the greatest curses of mankind and the root of much of the disharmony in the world.

Article 25(2) provides for regulating or restricting any economic, financial, political or other secular activity which may be associated with religious practice and throwing open of Hindu religious institutions of a public character to all classes and sections of Hindus. In the first part, the problem is with implementation. Except for Hindu religious or religion-related institutions, successive governments did not see need to regulate or restrict any economic, financial, political or other secular activity which may be associated with religious practices of other religions. This is bigotry.

Article 26 provides the freedom to manage religious affairs, to establish and maintain institutions for religious and charitable purposes; to manage its own affairs in matters of religion; to own and acquire movable and immovable property; and to administer such property in accordance with law. This freedom was denied to the Sabarimala temple authorities in 2018.

Article 27 provides for tax exemption on expenses for the promotion or maintenance of any particular religion or religious denomination. Here, there are reports of misappropriation of Hindu temple funds by government agencies entrusted with the management of the funds and institutions. Resources like land owned by temples are encroached upon and these agencies do not take any action to retrieve it. Recently the local media in Kerala reported that Devaswom Boards were interfering even with the rituals of temples under their charge. These Boards take over and administer only temples with high income from donations by devotees.  

Article 28 bans religious instructions in schools. This applies only to fully state-funded schools and not to state-administered or state-aided schools. Why should there be religious teachings in regular schools where students from all religious faiths study? And if there are exclusive schools for teaching religion, why should they be aided by the state?  

If this is the state with rights provided exclusively under freedom of religion, religion-based biases are available elsewhere also.

For instance, the Right to Equality. Article 15(1) states, The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them. But Article 15(3) creates an exception: Nothing in this article shall prevent the State from making any special provision for women and children. Wasn’t it simpler to omit ‘sex’ in Article 15(1)?

In less than a year of promulgation, the 1st amendment was made to make special provisions for the advancement of Scheduled Castes and Scheduled Tribes.

Similarly, Article 16(2) states, No citizen shall, on grounds only of religion, race, caste, sex, descent, place of birth, residence or any of them, be ineligible for, or discriminated against in respect of, any employment or office under the State. Article 16(4) goes on to create an exception, Nothing in this article shall prevent the State from making any provision for the reservation of appointments or posts in favour of any backward class of citizens which, in the opinion of the State, is not adequately represented in the services under the State.

With the success of the political demand for ‘sons of the soil’, do these articles have any relevance? Reservation is allowed only for backward classes, so everyone is vying to be backward. And how is backward defined? And there is the continuing challenge of defining a creamy layer among the backward classes. Then, the backward among the forward classes are striving for a foothold.

Why, even after 70 years, have we failed to define backwardness and evolve a formula for its quantification? It need not be to continue with reservations but to provide training to develop competence to those in need of it.

Article 16 was further amended in 1995 (77th Amendment) to extend the reservation to promotions also for SC and ST. The 81st Amendment of 2000 provided for carrying forward vacancies of reserved seats and the 85th Amendment of 2002 provided for protecting seniority of such promotees also (with retrospective effect from 17 Jun 1995).

Coming to Cultural and Educational Rights, Article 29(2) states that No citizen shall be denied admission into any educational institution maintained by the State or receiving aid out of State funds on grounds only of religion, race, caste, language or any of them. We must presume that these educational institutions are teaching subjects as per syllabi approved by the competent authority and, presumably, they do not include institutions purely teaching religion.

The question arises can the state interfere with the religious beliefs of the students studying in regular educational institutions? Kerala recently witnessed the case of the Director of Medical Education, Remla Beevi, banning tying of raakhi on Raksha Bandhan in Medical Colleges in the State. However, all schools have extended lunch breaks on Fridays to enable some students to pray. This privilege extends to employees in government offices, for the same purpose.

Article 30 is a bundle of discriminations based only on religion and language. It gives minorities, based on religion or language, the right to establish and administer educational institutions of their choice, restriction on acquiring their property by the State and right to get grants from the State. It does not differentiate between regular education and religious education.

According to media reports, quoting the Minority Welfare Minister of Kerala in the Legislative Assembly, there are 2,04,683 teachers spread over 21,683 madrassas in Kerala and they are being paid salary from public money. Now they are also eligible for pension after 60 years of age. In Kerala, almost 80 percent of the educational and health care institutions, including professional colleges, are owned and managed by minorities.

The Central Government also has schemes for minorities exclusively, including Scheme for Providing Quality Education in Madrasas and Infrastructure Development (of) Minority Institutions.

A query under the RTI Act some years ago revealed that Malayalam, English, Arabic and Urdu are taught at lower primary schools; there are 33 lower primary schools (22 of government and 11 aided by government) within its jurisdiction, having between them 16 teachers for Arabic/Urdu. Their authorization is 1 part time teacher for less than 15 students, 1 full time teacher for 15 to 28 students and 1 additional full-time teacher for every additional 25 students. English and Malayalam are taught by teachers who are teaching other subjects too. The three language formula is implemented only from upper primary stage.

Recently, the Assam government decided to convert all government funded madrassas into regular schools and no religious teaching would be imparted from the state exchequer. While religious groups can establish and manage their own institutions for teaching religion, there will not be equivalence of degrees from such institutions with those acquired through regular educational institutions.

Hopefully this will dent the politics of religion at the cost to secularism in public life.