You can also listen to the content of this blog, in the below podcast.
This blog (and the podcast above) relies almost entirely on the information presented in the fourth Chapter of the insightful book “Republic of Religion” by Abhinav Chandrachud.
Broadly speaking, two factors go into making a secular state (at least from a broad legal point of view):
- no religion should be established by law as the official state religion; and
- all citizens should have the freedom to practice their own religious beliefs.
India has never really been a fully secular country in this sense. I will illustrate this claim by focusing only on one aspect of governance – administration of religious institutions (mainly temples).
Pre-colonial rulers were pretty much involved in the administration of religious institutions like temples and mosques.
In 1790, Tipu Sultan for example issued an order to his officials that Hindu temples were under their management – “the offerings to the god and temple illumination are duly regulated… out of the govt. grants”. Tipu Sultan was just following ‘a pattern imposed by centuries of history’ in India.
When East India company took over the control of India, it continued administering religious institutions. There were two main reasons – one, it was a good source of revenue and two, this lent legitimacy to their rule itself.
- 1796 – the British collector of Madras takes over the administration of Hindu temples at Conjeevaram (Kanchipuram).
- 1806 – the Indian government issues regulations for the ‘superintendence and management’ of the Jagannath Temple in Orissa, introducing a pre-colonial tax on pilgrims
- 1810 – a law is enacted for Bangal – “the general superintendence of all lands granted for the support of mosques, Hindoo temples.. and for other pious and beneficial purposes.. vested in the colonial government”
- 1833 – Madras Govt. reports it is in charge of the administration of 7600 Hindu temples.
So when did the “secularism” move take place?
Common perception is that revolt of 1857 has to do with it – which is true, no doubt. But the effort seems to have started more than a decade before the revolt. For example the pilgrim tax at the temple of Jagannath was revoked in 1840 itself.
What happened is that, with the increasing entanglement of the British East India company with mostly Hindu religious administration, Christian missionaries and members of the Christian clergy in Britain and India, started to get annoyed. And it was discouragement from them that the East India company moved to a ‘secular’ way of governing.
“Pilgrim tax gave the government an incentive to promote and encourage the superstition out of which the tax is derived”, the Court of Directors (CoD) wrote in a letter. CoD is equivalent to the modern day Board of Directors (East India Company was a ‘company’ after all).
The move towards secular administration certainly picked up post 1857.
For example in 1862, a bill was introduced in the legislative council of the Viceroy to “enable the Govt. to divest itself of the management of Religious Endowments”. The bill was soon enacted.
Section 22 of the Act said “it would no longer be lawful for any Government in India, or for any Officer of any Government in his official capacity to take over the superintendence of any land or other property belonging to a Mosque, Temple or other religious establishment… ”
It’s interesting how the native Indians reacted to this withdrawal of the govt. from the management of religious endowments.
Such a move was bitterly criticized by many Indians – mostly because the involvement of the British Govt. was not considered ‘anti-secular’ as much as it was seen as an effective means to reduce corruption in the functioning of many of these trusts.
Anyway so from this point onward, it was left to the courts to exercise limited power of superintendence over religious endowments. They could do so under section 539 of the Code of Civil Procedure, 1877 that stated that whenever there was a breach of trust ‘created for public charitable purposes’ then the advocate general or any two (or more) persons having a direct interest in the trust could institute a suit. In fact this provision, slightly modified, still stands as of today in the form of Code of Civil Procedure 1908.
Thereafter some cases were indeed decided by courts as per this law (eg: Manohar Ganhesh Tambekar case of 1887). But things began to change in 1915 when Indian political leaders finally came to power at the provincial (state) level in British India.
The Indian leaders in the provinces started demanding the right to decide how to carry out administration of the religious endowments. And the GoI Act 1919 finally did transfer that power to the Indians (which until then had remained with the Governor General of India).
So soon the provinces got into action. Madras Hindu Religious Endowments Act 1926 for example, established boards of Hindus to be appointed by the government and the trustee of all the temples under the jurisdiction were bound to obey instructions issued by the boards. For example the surplus funds of temples could now be spent by the boards and other such changes. Net, net, these govt. appointed boards were provided with enough powers that in effect, it was the provincial govt. running things.
And then of course India got Independence in 1947.
What was our constitution – being drafted – going to do about the then existing state interference in the operation of religious institutions?
In March 1947, Ambedkar prepared a draft on fundamental rights that contained something called an Establishment Clause (EC), that stated “the State shall not recognize any religion as State religion”.
Another draft prepared by K. T. Shah also said that the sate would be entirely a secular institution which would maintain no official religion and would observe absolute neutrality in matters of religious belief, worship or observance.
Had these clauses found their way into the Constitution, India could have been a truly secular state. That never happened.
When in April, the subcommittee on fundamental rights presented its report to the Advisory Committee – the Establishment Clause (EC) was not there in the report any more. And surprisingly, Ambedkar didn’t even protest.
Later in 1948, after the draft constitution was prepared, comments were again received – this time from B. Pattabhi Sitaramayya and others who did want the reintroduction of EC. But still, nothing happened.
Later, H. V. Kamath tried introducing EC in the Constituent Assembly via a proposed amendment. But his amendment was put to vote and eventually rejected!
Finally it was K M Munshi‘s draft that was used as the template for what eventually became Article 25 of the Indian Constitution.
His 1947 draft “gave all citizens the freedom of conscience and the right to freely profess and practice religion though in a manner compatible with public order, morality or health”. There is no mention of even the word secular in there.
The draft also contained an exception that “economic, financial or political activities associated with religious worship would not be included in the freedom to religion”.
Later an additional explanation was added to the draft – “freedom of religion would not debar the State from enacting laws for the purpose of social welfare and reform and that the government could enact laws to open Hindu religious institutions of a public character to any class or section of Hindus”. This was later broadened to Sikhs, Jain & Buddhists.
The Constitution also contained another related Article – no. 26 that gave to every religious denomination or section of it, subject to public order, morality and health, the right to establish and maintain institutions for religious and charitable purposes.
Once the constitution came into effect, several states enacted laws which would allow the state government to regulate religious institutions – usually Hindu temples. And over the years SC has permitted a lot of government interference.
Most recently, a religious rule that excluded women between the ages of ten and fifty from entry into the Sabarimala Temple in Kerala was found to be unconstitutional.
At this point it’s important that we understand how judiciary typically decides…
when Govt. interference is constitutional and when it’s not.
SC’s decision primarily rests upon one fundamental question – does the right of the trustees to manage and administer temples amount to a practice that’s “integral” to the religion?
If not, government can intervene because the issue is then in a secular realm.
“Religion” itself means two things, as far as the SC is concerned:
- liberty of religious opinion and belief; and
- acts done in pursuance of religious belief – these are protected only as long as they are “integral” or essential to the religion.
But then who decides what is essential and what is not? The answer to this is interesting.
Up until the Ayodhya verdict (2019), the onus to decide the above question, rested on Judiciary itself. For example, SC has earlier held that a mosque is not an essential part of the practice of the religion of Islam and namaaz by Muslims can be offered anywhere, even in the open.
In another case, SC held that followers of Sri Aurobindo were not a religious denomination since his teachings were a philosophy not a religion.
What changed via the Ayodhya verdict?
It was argued in the court that many theologically prescribed principles of Islamic law (for example no grave should be situated close to the mosque) were not observed there, so Babri Masjid was technically not a mosque – in the manner that mosques are known to exist by the religious laws of Islam.
But the SC rejected the above argument stating it would be inappropriate for the court to “enter upon an area of theology and to assume the role of the interpreter of the Hadees. …. The true test is whether those who believe and worship have faith in the religious efficacy of the place where they pray.”
The 5 judge bench was hearing to resolve only the “title” dispute – and not any “fundamental right” related provision, but this judgment does set up a new precedent on who decides what is essential and what is not.
As of this writing, a bigger 7 judge bench has yet to decide if courts have the power to investigate whether a practice is essential to religion. We will get more clarity on this – whenever this bench arrives at a decision.
Do we have examples where SC did not let the state intervene in certain aspects of religious institutions? We do actually.
Government cannot interfere with the personal property of the head of a temple or a math, like a mahant or shebait. In the Shirur Math case, the Madras law mandated ‘pathakanikas’ (personal gifts) made to the mahant to be spent only for the purposes of the math, and required the mahant to maintain accounts for those gifts. But the SC struck down that provision.
To be clear, unlike a Mahant, a priest cannot have any such propitiatory rights over offerings made by devotees to the temple, since those offerings are technically for the temple, not the priest.
Anyway, so I hope with these examples it is now clear that it is just a myth that India is a secular country. This is in much contrast with US for example, where the entanglement of state governments with religious institutions would simply be impermissible. The first amendment to the US Constitution, prohibits the Congress from making any law ‘respecting an establishment of religion’ or ‘prohibiting the free exercise thereof’.
I hope you found these insights useful. If you are aware of any important context / perspective that I may have missed, do let me know.
And once again, if this subject fascinates you, “Republic of Religion” by Abhinav Chandrachud is highly recommended. It has six chapters (‘Temple and State’ being just one of them) that take upon different aspects of governance to illustrate how secularism in its true sense is a myth.
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