The word “secularism” has witnessed increasing discussion in recent times and the trend is likely to continue for, at least, some time to come
There seems to be a justification for such increasing debate on the worth and legitimacy of secularism given that the practice and meaning given to it under the working of law lacks clarity and, at times, conviction.
The United States Supreme Court, to start with, in laying down the meaning of secularism under the law insisted on a strict separation between the church and the state. Church here would mean all such entities as are devoted to organising matters of religion. The main reason given for such a strict separation of the church and the state was the view that whenever the church and the state merged or got associated; large scale of bloodshed and strife during history has been witnessed on such count. [“School Management of Abington Township, Pennsylvania vs. Edward Lewis Schempp 374 U.S. 203 (1963 )]
Though, in later stages of US Supreme Court history, continuing up to the present times, this doctrine of strict separation between the church and the state has been questioned and somewhat diluted; but still, in principle, the separation of the state from the church forms the bastion of constitutional law under the law laid down by the United States Supreme Court with respect to working of secularism in that country.
In India, the Supreme Court has had occasions to consider the working and meaning of secularism. While it has upheld secularism, defining it in substance to be the principle of not favouring any particular religion by the state; the Indian Supreme Court while considering issues of secularism often partakes in religious discourses and discussions; the context or relevance of which, as would be submitted below, is rather doubtful.
The difference in the interpretation of working of secularism, so far as the rulings of United States Supreme Court and the Indian Supreme Court are concerned, is that while United States Supreme Court would be insisting on separation between the church and the state as the basic mandates of the same; the Indian Supreme Court would prefer not to lay too much insistence on such separation and approach it more from the point of view of not showing any favour to any particular religion or religions by the state.
Objectively researched and reasoned works on the working of secularism in the Republic of India are not all that many. One work however which deserves attention, both on account of the impressive research comprised as well as the analytics offered, is that of Gary Jeffrey Jacobsohn titled “The Wheel of Law” in which Jacobsohn argues that the working of secularism would show differences depending upon differing socio-cultural setups and seeks to explain the not so identical approaches to defining and interpreting secularism by the Supreme Court of United States and India largely on such basis.
Another important advancement by Jacobsohn is that the interpretation and working of secularism under the law in India would have greater leanings to issues of social justice as compared to that in United States.
Or in other words, so far as the interpretation and working of secularism under the law is concerned; what goes into defining and interpreting the same in the two largest democracies are an amalgamation of the following;
1. There has to be a separation between the church and the state. (Insisted under the United States law and while not really questioned under the Indian law, the stress on such separation is markedly diluted under the Indian law)
2. The state has to be neutral towards all religions. It is required not to show favour to or bias against any particular religion. The state is to treat all religions equally. (Both under United States law and the Indian law)
3. Secularism is closely allied to bringing about social justice where the same otherwise may be prevented or restricted through religious principles, teachings or their scriptures or in the name of the same. (Both under the United States law and the Indian law)
The purpose of the present write up, it is submitted, is to examine the relevancy and validity of the above three planks which go into defining secularism and its working under the law in the two principal democracies of the world.
At the very outset, it is submitted that the above amalgamation of the three basic principles defining secularism under the law is not satisfactory.
All ideas in the progress and the working of the law, as the basic mandate, are required to ultimately derive from the aim and purpose of improving and adding to the principle of justice. Secularism is to be subject to the same.
The cardinal principle behind secularism, proceeding from the undisputed position that adding to and improving justice should be the aim of all law, stands to be on the same footing. Given the same, it is not difficult to see that the purpose and aim or indeed the justification of secularism is simply that it lays down a mandate for the administrative or governing organs to bring about or add to justice in the fields occupied by religious doctrines, practices or scriptures. Nothing less, nothing more. Seeing anything further or trying to add more than the aforesaid, so far as the meaning of secularism and it’s working under the law is concerned, is only to add to the confusion and to the debate.
In India’s partition, while there were definitely political issues involved; the killing of lakhs of innocents by members of two religious communities, one against the other, also had equally, if not more, religion-based ingredients and instigations. The hand of god could not prevent such unimaginable bloodshed as took place at the time of India’s partitioning. But the hand of man could have.
If the British had not abdicated their administrative and policing duties; much of this bloodshed would not have taken place.
The submission that the mandate of secularism is to address fields occupied by religions and what all purports to be in their name and to seek advancement of justice in such fields would immediately and fore-mostly prevent, or at least significantly lessen, the killing of innocents or their victimisation through or in the name of religion.
Secularism therefore is the hand of the human that can step in, in the name of paramount justice where the hand of god – read it to mean aspect and mandates operating through or in the ostensible name of religion – failed to do so as is often witnessed in the course of history.
The voice of human reason calling in for prevention of injustices where the same is brought about through or ostensibly in the name of religion is what is secularism all about and it takes little to see, when so put, that secularism is an absolute must in the interests of prevention of great injustices that have been perpetrated through or ostensibly in the name of various religions in the course of history.
Triple talaq is one instance of such injustice perpetrated if not through a religious teaching then in the ostensible name of a religious teaching. The perpetuation of caste system again is another instance where done through religious scriptures or whether in the name ostensibly of religious scriptures.
Secularism, therefore, is an absolute must and it simply means giving mandate to administrative order to step in as a matter of duty to prevent injustices perpetrated through or in the name of religions, where the scale of the injustice in question calls to be interfered with.
Naturally then, the question would arise what this scale would be of any perceived injustice through or in the name of religion that would call for interference on part of a secular state?
Freedom of religion, conscience and practice is a matter of human will. Behind the coming about of such will may be different reasons. But that human will, overwhelmingly and often, lays great store on their professed and held religious matters, beliefs and practices is an undisputed reality. That being so, in order to give full allowance to human will in order to achieve the potential of human life – as in keeping with the principles of natural justice; freedom to practice one’s religion is a basic human right; to be interfered with only as a matter of absolute necessity.
One can ask as to what is the difference between “necessity” and “absolute necessity”? The submission in answer to this query is that “absolute necessity” would mean when there is no reasonable doubt any regarding the “necessity” in question.
Following from this, what the meaning and practice of secularism under law would amount to is this. Secularism means interfering with fields occupied by religions or in the name of religions where such interference is mandated in the interests of justice as absolute necessity.
The reader, at this stage, would mark the differentiation between the words “by religions” and “in the name of religion”. What this differentiation means is that when the state or the organs of the state – such as the executive, the legislature or the judiciary – are called upon to adjudicate whether a practice is to be struck down or not, it is not required for them to enter into discourses or discussions of the religious teachings, scriptures related to the same; but simply to decide whether the practice in question is severe enough to be struck down, despite the religious freedom otherwise allowed, and it is immaterial for such purposes whether the said practice indeed has its real moorings in any religious teaching or not. Thus the irrelevancy of entering into religious discourses as is often witnessed in decisions and judgements related to secularism by the Indian Supreme Court.
The reader would also have noticed that the present submission on secularism, as a matter of its working under the law, has avoided giving weight or relevancy to otherwise a time established refrain which is behind such interpretation and working; namely “that the state shall show neutrality towards all religions.” And this is because this time honoured refrain associated with working of secularism under law is amenable to serious confusion with respect to basic duties of the state.
It is very much possible that a particular religion or religious following has much more issues to be interfered with on the principle of preventing injustices in the sense defined above, whether such injustices are through or in the name of such religion; with the result being that such religion, or that sought in its name, would call for greater interference on part of the state and its organs.
Again, a particular religion or religious following may be doing much more towards charitable or socio-productive efforts and undertakings and may call upon the state to assist it in doing so. Assisting then such socio-constructive programmes, efforts and undertakings would be a matter of duty on part of the state to the extent possible and that has nothing to do with secularism. Doing so on part of the administrative organ does not mean favouring any particular religion. It simply means giving assistance to socio-constructive programmes, efforts and undertakings deserving to be so as a matter of the basic concept and function of the state.
If a particular religion is much more energetic and involved in social constructive programmes and efforts; it shall be the duty of the state then as part of its very justification and meaning to aid and promote such activities even if it means giving, as per such aid and assistance, greater aid and assistance to the projects and undertakings of any particular religion-based entity or entities. It is a matter of duty on part of the state to aid and assist, to the extent possible, all such constructive programmes of any or whatever religion and if the scale and magnitude of such programs and efforts on part of any religion-based entity or organisation is more than the others; then such greater aid and assistance to such entities or bodies does not infringe into the meaning of secularism, for the state cannot keep itself aloof in so far as aiding and assisting social constructive programmes are concerned.
True, the state should not as a matter of prior policy favour or disfavour any particular religion as a matter of working of principles of justice; – which would result in the infringement of secularism in the sense submitted; but if the state, as a matter of its basic duty, aids and assists socio constructive programs of a religion based entity simply because such activities of such entity are on a wider scale, then that does not infringe secularism which simply calls for justice in the fields occupied by religion. And such greater aid and assistance compelled by greater scale of socio constructive programs would be objectively just and fair in fields occupied by religions. Thus the taking away the emphasis from the words “the state shall be neutral towards all religions” as the same is bound to create ambiguity as regards the called upon functions of the state and not required otherwise in understand the working of secularism in the sense submitted.
The meaning of secularism is confined to addressing issues of justice where the same are prevented or restricted through religious teachings or in the name ostensibly of religious teachings.
And in so far as the linking of social justice to secularism is concerned; it is submitted that it is not only social justice but the entire gamut of justice, whatever it entails, that is the propelling force behind secularism in so far as dealing with issues of injustices through religions or in the ostensible name of religions is concerned.
And laying stress on different socio-cultural contexts and settings is counter-productive. Different sociocultural settings do not change the meaning and purpose of the working of secularism under the law. Whether it is the United States or India; secularism retains its basic purpose and meaning; which is to deal with injustices being perpetrated through or in the ostensible name of any religion or religious following.