The concept of modern constitutionalism has evolved through a very long phase wherein many concepts were created and adopted in order to govern a society or a nation in the most efficient manner. The process aimed at creating a governance system which can be implicated in a society to prevent everyone from any kind of injustice and can also provide for an optimal structure which can lead to the most efficient form of governance in a society for its own development. The process initiated when people realised that establishing a governance would benefit the needs of society at large. From ancient roman era when states used to be ruled by a ruler/king to the modern era where people realised that power can corrupt a king therefore democracy should be adopted where people would choose their governance which led to development of the modern constitutional era wherein states are governed by a Constitution in which people give rights and obligations to themselves in order to create a system for their optimal governance.
But an important role in this system is played by the beliefs of people, i.e., their religion. This is because people wants to be governed in accordance to their religious beliefs and not otherwise. In western countries, churches used to reflect the religious opinions of the people and they did play a crucial role in such structures for governance of the society. A problem arose here as to what and how much should be the role of religion, if any, in the governance/constitutional structure of a society/state? There are different religions existing in our society which are themselves having different views on various cultural and moral aspects. So which religion should be given priority in the governance system in order to cater to the optimal development of the society?
In today’s world, there are a few countries which claims to have a national religion for their nation and in such countries their religious institution plays a vital role in the governance structure as well. However, if true democracy is to be achieved by a nation, then people should be given a freedom of Religion in which they have freedom to follow any religion or none at all if they want.
A highly adopted solution to this problem in many modern constitutional states, is the concept of Secularism, in which states claim themselves to be religiously neutral in nature. It generally means that the states cannot discriminate in their policies and laws on the basis of religion and the state itself does not prefer any religion or its beliefs over the others. This may lead to a conflict with the freedom of religion of the people living in the society. However, this concept is adopted in various forms and to differentiable extents in different constitutional countries.
In terms of defining the position of the concept of Secularism in America, author Mark Douglas McGarvie points out that this right of conscience is a matter of individual right free from intervention by the government.[1] It does not necessarily separate the church and the state, but it merely provides an ideological framework which considers this separation inevitable. The churches now play a role in society which is very much different from its earlier role as a public institution where the members of the church used to have a direct influence in the state polity and affairs to being a more private institution which is concerned with influencing people’s lives on individual levels.
Although, in the constitution of America, there is no strict separation of state and religion as religion still plays an important role in shaping public policy in America and their national motto is “In god we trust” which has often held as being a civil religion. However, it is secular in nature as it does not pledge allegiance to any specific god or religion and all Americans follow it irrespective of their personal beliefs. The courts have also maintained a practice of not interfering with the religious act of people as has been held in the case of Watson v. Jones.[2] In this country the free right to entertain any religious belief, to practice any religious principle, and to teach any religious doctrine which does not violate the laws of morality and property, and which does not infringe personal rights, is conceded to all.
A very different meaning is interpreted in the Republic of France when it comes to the concept of Secularism. In the constitutional structure of France, the laïcité (or secularism) was introduced through a 1905 law which separated the Church and the State. The law was introduced in order to enable the political institutions of France to reject or contradict the opinions of the Catholic Church. The concept of Secularism was adopted in order to implement the supremacy of the state over all the religious beliefs. This concept is very strictly followed in France as it does not even allow the freedom to its people to follow their religious practices and cultural ethnicity if it is a symbol of promotion of any religion. In 2004, French government banned all the cultural and religious clothing to be worn by anyone in public spaces which was further enhanced by a ban on Niqab (a clothing used to cover face in Muslim religion) in the year 2011. People following Sikhism are required to remove their turban, which is an essential practice of their religion, in the process of clicking picture for their photo id. France give full freedom to everyone to criticise every religion even if it hurts the sentiments of others in terms of giving absolute freedom of expression to its citizens. This can be said to be an extreme form of Secularism where the state completely ignores and avoids the existence of all the religions. This is primarily believed to be because of the reason that majority population of France is considered to be following atheism.
India, having the largest written constitution in the world, on one hand accepts the concept of Secularism however does not provide absolute Freedom of Religion to its citizens. Though, Secularism was very much present in essence of the Constitution since the very beginning of its formation, the term Secular was added further in the Preamble of the Constitution by the 42nd amendment of the Constitution in the year 1976. India on one hand is not having any religion as a nation and each and every religion is aimed to be respected in equal sense. However, certain restrictions are also present in India in terms of Freedom of Expression as well as in terms of Freedom of Religion to the citizens of India. Such restrictions prohibits the citizens to hurt the religious sentiments of others and thus creates a reasonable restriction on criticism of any religion by anyone. Such restrictions also prohibits people to engage in religious practices which are violative of the fundamental rights of the people. Thus Constitution has been given a supremacy over the Freedom of Religion in case of Conflict. This is evident from ban on religious practices of triple talaq by Muslims[3] and entry of women in Sabrimala Temple[4] by Hinduism followers.
Though the state does not acknowledge any religion as its official religion, certain discriminatory laws are being made in the recent times in India which involves the recent amendment in the Citizenship Act[5] which specifically excludes Muslims from getting the benefits of the amendment. This further led to various protests in the nation. Therefore, India cannot be said to be following the ideology of Secularism fully in the recent times.
It is evident from the experiences of the human civilisation that extreme ideologies are never good for achieving optimal and best results. But a similar interpretation of Secularism is also not ideal for all the nations at a particular time. The states have to evolve their ideologies with time otherwise the ideologies lead to protests and distress in the people of that nation. Therefore, Secularism is a very nice ideology in theory but Freedom of Religion must also be given equal importance in a democratic Constitutional Structure and both these concepts must be implemented in harmony to each other.
[1] Mark Douglas Mcgarvie, Law and Religion in American History: Public Values and Private Conscience (New Histories of American Law).
[2] Watson v. Jones, 80 U.S. 679 (1872), 728.
[3] Shayara Bano vs. Union of India and others, (2017) 9 SCC 1.
[4] Indian Young Lawyer Association & Ors. Vs. State of Kerala & Ors., 2018 SCC OnLine SC 1690.
[5] The Citizenship (Amendment) Act, 2019.