Equality before Law and Equal Protection of Law
|Are you Secular?|
|Written by Hanumant's Law Journal|
|Wednesday, 17 November 2010 18:27|
X Party is secular...no, it is pseudo secular....Y party is fundamentalist....no, Y is really secular, you are pseudo-secular. No, I am not...India is secular... no India is pseudo secular, US is secular. Whenever I am in the middle of this kind of a discussion, it turns out that both the parties have similar beliefs, yet they are don't agree on who is and who is not secular. Further, everybody claims that they are secular even though their beliefs may well amount to being unsecular.
After all, what does Secularism mean? What does being Secular entail? I think these are important questions that we need to understand before we pass a judgment on who is and who is not Secular and this is what I am trying to address in this article.
Let's see the dictionary meaning of Secular first:- of or pertaining to worldly things or to things that are not regarded as religious, spiritual, or sacred; - not pertaining to or connected with religion, concerned with nonreligious subjects.- not belonging to a religious order
These seem to be fairly straightforward definitions. Anything that is driven by religion or religious edicts is not secular. Thus, a state that is governed by religious rules is not secular. States such as Iran, Pakistan, and Saudi Arabia are not secular because they are governed by religious beliefs. That's simple, right?
Well, consider this - one can practice and propagate any religion in France, US, and India, are they all Secular? France recently banned head scarfs in public, is it being unsecular? US allows Muslims to build a mosque near 9/11 site, is it being too secular? India pays money to Indian Muslims to travel to another country for religious purpose (Haj subsidy), yet no such money is given to Christians to go to vatican, is India being unsecular?
As you can see, it is easy to identify extreme cases of non-secularism (Iran, Pakistan, Saudi Arabia, etc.) but nearly impossible to identify a perfectly secular entity or State. What one considers secular in one part of the world is totally unsecular in other parts of the world and vice-versa.
In this respect, I wanted to learn what the legal systems of leading democratic countries that claim to be secular consider as secular. In other words, what do various countries mean by secularism.
The majority in US is Christian. However, as per US Constitution Article 6, Section 3, "No religious test shall ever be required as a qualification to any office or public trust under the United States;' Further, the First Amendment guarantees that Congress shall make no law respecting an establishment of religion.
The implications of these provisions are that the state is separate from any religion. The state has no relation to the religion. It doesn't take religion into consideration while making any decision. It doesn't favor any religion over another. Thus, public schools in US are prohibited from teaching any religion, employers are prohibited from discriminating against individuals for their religious beliefs. Not only that but the Govt. is actually prohibited from funding any religious activity. Public money cannot be used for furtherance of any religion.
At the same time, the Government is prohibited from banning religious or non-religious speech and assembly. Indeed, one can see overzealous preachers reading bible aloud and ISKCON folks chanting "Hare Rama Hare Krishna" in downtown.
Many European countries such as England, Denmark, and Finland, recognize an official state church. This means that the State believes in a religion. The State has a religion. Countries Western Europe allows the governments to fund religious organizations, teach religion in public schools, and officially prefer one religion to another. This is in stark contrast to the concept of Secularism in US. Yet, these countries are still broadly categorized as "Secular" because people are free to practice and propagate their own religion. People are not, in civil service, discriminated based on their religion.
Indian concept of Secularism takes is colour from Article 15 (Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth), Article 25 (Freedom of conscience and free profession, practice and propagation of religion), and Article 26 (Freedom to manage religious affairs).
These articles are part of Fundamental rights that are inalienable. It is clear from these rights that a person in India is free to practice and propagate his own religion and that the State will not discriminate based on religion.
The devil, as they say, is in the details. Notice the difference between the provisions of US constitution and Indian constitution. US constitution pretty much defines the intrinsic character of the State. It clearly says that State shall not recognize any religion. Thus, the state has no religion. Indian constitution, on the other hand, makes no such attempt. It merely states the behaviour of the State in terms of what it will not do (i.e. not discriminate based on religion). It does not say that the State has or has not a religion. It does not say whether State can or cannot participate in religion. It does not say whether State can or cannot spend public money on religious activities.
It is precisely because of this ambiguity that India is able to recognize laws based on religion. Hindus, Muslims, and Christians are governed by their own religious laws. Law is state business and by recognizing separate laws based on religion, it is clear that the State recognizes religions. Because of this, India does not really fit into any definition of Secularism. It has, in fact, created its own definition of Secularism. Indeed, Supreme Court of India observed the same thing in the case of Aruna Roy vs. Union of India (SC AIR 2002), when it said Indian Secularism means ”sarva dhrama samabhav” and not “sarva dharma abhav”.
Whether it is a good thing or a bad thing is a topic for another discussion.
|Last Updated on Sunday, 27 May 2012 16:32|
CFA, LLB (Hons)