The word “secularism” is nearly always in vogue in our country. It has become particularly so in recent times.
In a bid to see the meaning or meanings that may have been ascribed to “secularism” in law; judgements of the US Supreme Court regarding the same need to be seen given their thought provoking quality; and given further that the Indian Supreme Court – having regard to good number of common constitutional causes and the common role of both the Supreme Courts as custodian of their respective constitutions; in the backdrop of the much greater experience and history of the US Supreme Court in respect therewith – relies heavily on thought process of US Supreme Court as regards interpretation and enunciation of Indian constitutional law.
[An illustrative judgement of the US Supreme Court, citing a number of other decisions of the same Court, is SCHOOL MANAGEMENT OF ABINGTON TOWNSHIP, PENNSYLVANIA VS. EDWARD LEWIS SCHEMPP 374 U.S. 203 (1963 )]
What would secularism mean as a matter of working of law?
The first and simple view, so far as such meaning is concerned, is that secularism as a matter of working of constitutional law would mean that the State in all its activities shall be free from being subject to principles & practices of any religion and shall not discriminate in favor of any particular religion.
The United States Supreme Court, probing the history of thought behind the idea of secularism and in working out the legal implications of the same, has laid down in a number of its decisions that the root idea behind secularism as a matter of State practice is that there needs to be a separation between the organ of the State and the organs attempting to base themselves on religion and the said separation is required on account of the bloodshed, killings, massacres and wars that have been witnessed in human history when governing powers and purported religious authorities and affairs have either merged or joined with each other.
The US Supreme Court would insist that the working of secularism as a matter of constitutional law would not only require a separation between the organ of the State and the organs/entities attempting to base themselves on religion; but that such separation has to be clear and strict.
Based on the mandate of such clear and the strict separation between the State and the organs/entities attempting to base themselves on religion; the US Supreme Court proposes, as may be seen in a number of its decisions interpreting the First Amendment together with the Fourteenth Amendment of US Federal Constitution, that the idea of secularism would accordingly then imply that the State shall not aid or assist any religion. In keeping with the same – that the separation between the State and the organs/entities attempting to base themselves on religion shall be on clear and strict terms; – the State shall not interfere with the practice of any religion or the holding of any thought, belief as a matter of conscience or religious practice unless and until the same is compelled on grounds of justice or propriety as in a secular sense defined or held.
As a fallout of the above enunciation; the State is enjoined from giving any manner of aid or assistance to any institution, organisation or like which carries out any act, program or curriculum that can be said to be associated with the propagation or promotion of any particular religion. Public schools, accordingly, are to be restricted from carrying out religiously devoted prayer sessions and no state aid is available to any private school, college or institution which includes even prayer sessions devoted to any particular religion.
“Secularism”, ipso facto, is not to become “Corrosive Secularism”; that is, the practice of “secularism” itself is not to become the “religion of secularism”; in the sense that – in the name of secularism – it unnecessarily erodes into matters of religious affairs and practices.
Behind such warning against corrosive secularism lie basic mandates of justice; – that is the degree of neutrality towards matters of religious practice and affairs has to be couched and shaped – where interference is called forth by the State in matters of religious affairs and practices as a matter of constitutional implication of secularism – by the degree of objection that a particular religious practice or affair invites having regard to the concepts of justice or propriety as in a secular sense defined or held. If this is so with weight and justification; it may be seen that the idea of a uniform civil code for all would be counter to the very idea of secularism; given that secularism itself mandates, as noted, an aloofness from matters of religion; which aloofness, amongst others, translates into non-interference with matters of religious practices unless and until interference is called forth on clear grounds of justice or propriety as defined or held in a secular sense.
Or in other words, interference with matters of religious practice forming arguably the subject matter of a civil code by the State has to be SELECTIVE AND NOT UNIFORM; to be couched and shaped by the degree of objection that any such particular religious practice may invite having regard to secular concepts of justice or propriety.
If this is so and if “secularism” has been held to be a basic feature of the Constitution of India by the Supreme Court of India; it would appear that the idea of uniform civil code stated in article 44 of the Constitution of India cannot be literally interpreted and would translate into state interference, through statutory law, in matters of religious affairs that potentially can be said to be subject matter of a civil code;
(A). on the basis of degree of objection that any such particular religious practice may invite having regard to the secular grounds of justice and propriety, and
(B). by identification, on the basis of degree of need & necessity, of SELECTIVE components of the entire area theoretically capable of a civil code; where statutory law grounded in justice and propriety – as in secular sense defined or held – may be imposed on all across the board.
In cases both of (A) & (B) above; it shall be seen that the idea of a comprehensive civil code universally & uniformly applicable to all – as stated under article 44 of the Constitution of India – is refuted and negated by dominant arguments against such idea based on secularism as interpreted in the framework of constitutional law and held to be a basic feature of the Constitution of India.
To reiterate and submit therefore; – the idea of uniform civil code, in reference to article 44 of the Constitution of India, cannot be literally interpreted and – in application – shall have to be necessarily pruned and modified on the touchstone of constitutional implications of secularism that is held as a basic feature of the Constitution of India.