Jucularism In India

RESPONSE OF INDIAN JUDICIARY TO THE CONCEPT OF SECULARISM

The whole essence of the Indian freedom movement had been to establish a pluralistic Indian society which would with open arms accommodate and enhance India’s multi-cultural, multi linguistic and multi religious identity. Even during the period when political antagonism between the Congress and Muslim League where gaining concrete grounds and the storm clouds of partition of the Indian state were hovering heavy over the Indian motherland, what the framers of the constitution could only ensure as solace to the weeping mother of the parting sons was that the new India would essentially be a secular state but with a notion of secularism different from the western model of secularism which

The Indian theory of secularism is one of equal respect to all religions. This means that while the Indian State is secular, it is not irreligious, and maintains a principled distance from all religious groups. Looked at another way, the antonym of “secular” in Indian society is not “religious” but is “communal”. The three strands of religious freedom, celebratory neutrality and reformatory justice are the core elements of Indian secularism. The idea of social reform is deeply entrenched in Indian society, and the separation between state and religion is not enough to secure this end. Removal of inequalities between religious groups implies that the state has broad powers to assist, financially or otherwise, in the celebration of all religious groups, to allow them to stand by not just religious beliefs, but also practices and rituals. It implies reform wherever it is

One of the earliest cases in this regard is the case of Narsu Appa Malli AIR 1952 Bom 84 wherein the statutory prohibition on polygamy among the Hindus was questioned as contravening the right to freedom of religion. The Bombay High Court ruled that this was a constitutional measure of reform and upheld the impugned provision as valid. The Court went on to add that even though this was valid as a reform measure (and hence not violative of the freedom of religion enshrined in Article 25) personal law does not have to comply with Part III of the Constitution at all. Even though “customs” are a part of the laws that are required to comply with the fundamental rights provisions of the Constitution, personal law is distinct from custom and falls beyond the pale of constitutional rights review. As an aside, the Court added that since polygamy had economic, religious and social justifications, it could not be regarded as discrimination “only” on the grounds of sex (as is required by the Indian Constitution) and if reviewed, could not be held to be unconstitutional. This case is important because several judgments from Supreme Court of India have used it as a point of reference subsequently. The Narsu Appa Malli case illustrates two important tendencies that have been reflected in judicial discourse in the following years. The