On a recent discussion on Facebook, a friend raised the question of whether India was intended to be a secular country since independence or not, given that (i) the word ‘secular’ was never part of the original constitution; (ii) this omission was a deliberate choice by the framers of the constitution, and (iii) the word only found its way into the constitution in the 42nd Amendment promulgated by the Indira Gandhi government in 1976, a time when her government was a dictatorship and constitutional rights were effectively under suspension.
To understand this issue, you have to go back to the early history of the Constituent Assembly of India, particularly the reformed assembly established in August 1947 after a separate Constituent Assembly was created in Pakistan. If you follow the debates of this assembly, there is a very nuanced appreciation of the term ‘secular’, with a fairly strong consensus at the time that this word should not find its way into the Constitution.
This was not a rejection of the principle of secularism to claim that India should be constituted on religious grounds (the route that Pakistan adopted). The rejection of the word ‘secular’ came from an appreciation of the term’s history, coming from a European tradition that emerged from the Protestant Reformation in the 16th century which rebelled against the corruption of the church and its interference in daily affairs. This led to the claim of secularism that church and state should be separated. Under this claim, religion is to be treated as belonging solely to the private sphere, and therefore to be kept out of public life, specifically the deliberations and decisions of governance.
The founding fathers of independent India realised that a clear separation of religion and state is far more difficult in a complex multi-religious society like India. The concern about an applicability of the term ‘secular’ came from different fronts. There was a line of thought that had been articulated for years by Gandhi, arguing that swaraj is a sacred quality, and a division of society as per a simplistic binary of sacred/secular is an artificial division. Ambedkar had different reasons. On the one hand, he realised that enforcement of this simplistic binary was complex in the Indian context, and to apply terms such as ‘secular’ or ‘socialist’ could be taken as an intent of the Constitution to intrude into matters of social organisation, and these matters should be reserved for subsequent policy of the state, because to pre-empt them in a constitution is not healthy for a democracy. Ambedkar might also have been concerned that caste discrimination was often justified as having religious sanction, and to formally consign religion to the private realm as a constitutional matter could create complications in subsequent policy and law to fight caste discrimination and protect and support oppressed castes.
However, the rejection of the word ‘secular’ in those early years does not mean a rejection of a key underlying principle of secularism, namely that the state should not discriminate between persons on the criterion of religion. This broader principle is enshrined in Article 14 which states that “The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India” (and it should be noted that this article says ‘person’ and not ‘citizen’). Once this broader principle is articulated and enshrined in constitutional law, semantic quibbles about whether we fit the label ‘secular’ or not are reduced to relative irrelevance. When the 42nd Amendment was passed in 1976 to formally insert the word ‘secular’ into the constitution, it became a formality that did not change much, since by that time Article 14 had been in place for over two-and-a-half decades, and had been confirmed by a body of case law.
Of course, that opens the debate on whether Article 14 should be interpreted as necessitating a Uniform Civil Code. But that would be too much to take on now, and I will keep that discussion for another day.