Concept of Secularism in Indian Context

Secularism is a foundational principle of the Indian Constitution, signifying the relationship between the State and religion. While the term 'Secular' was added to the Preamble by the 42nd Amendment Act, 1976, the spirit of secularism was embedded in various provisions from the beginning.

Secularism as per the Preamble

The Preamble declares India to be a Sovereign, Socialist, Secular, Democratic Republic. The inclusion of 'Secular' explicitly affirms the State's commitment to secular principles.

Indian Model vs. Western Model:

The Indian model of secularism is distinct from the Western concept (especially the US model), which advocates a strict separation of church and state, implying non-interference of the state in religious affairs and vice-versa.

The Indian model is often described as 'Sarva Dharma Sama Bhava' (equal respect for all religions) or principled distance. It signifies:

• The State does not have an official religion.

• The State treats all religions equally and does not discriminate on the basis of religion.

• The State can intervene in religious affairs to abolish social evils or to ensure equality within religious communities (e.g., banning untouchability, Sati, regulating Hindu religious institutions to ensure entry for all sections of Hindus).

• Citizens are guaranteed freedom of religion (Articles 25-28).

Thus, Indian secularism is not a wall of separation but a positive concept of equal treatment and non-interference, with the state having the power to intervene for social reform.

State Neutrality vs. State Patronage

The Indian model aims for State neutrality towards all religions. It does not mean the state is anti-religious or promotes atheism. Rather, it means the state neither favours nor disfavours any religion. All religions are treated equally.

However, the state is not entirely detached from religion. It may provide State support or patronage to all religions equally, for instance, by facilitating pilgrimages (Haj subsidy, Kanyadaan Yojana), managing religious endowments (Temple Boards, Waqf Boards), or providing grants to educational institutions run by religious communities (subject to non-discrimination). The state can also provide religious instruction in institutions established under trusts/endowments, even if administered by the state.

This aspect of State support to all religions, alongside the power to intervene for social reform, distinguishes Indian secularism from stricter separation models. The debate often arises when state intervention or support is seen as favouring one community over others or infringing upon religious freedom.

Judicial Pronouncements on Secularism

The Supreme Court has consistently upheld secularism as a core principle of the Indian Constitution and has interpreted its various dimensions through landmark judgments.

Secularism as a Basic Feature:

In the Kesavananda Bharati case (1973), secularism was included in the list of basic features of the Constitution, which cannot be altered or destroyed by Parliament through constitutional amendment.

S.R. Bommai Case (1994)

This judgment is particularly significant for reinforcing secularism as a basic feature in the context of Centre-State relations and President's Rule (Article 356).

• The Supreme Court held that secularism is a basic feature of the Constitution.

• It ruled that any state government that acts in a manner contrary to the secular principles or promotes a particular religion violates the basic structure and is liable to be dismissed under Article 356 (President's Rule).

• The Court stated that politics and religion cannot be mixed, and if a party uses religion for political purposes, it violates the secular character of the state.

This judgment explicitly made secularism a ground for imposing President's Rule, highlighting its fundamental importance in the constitutional scheme.

Aruna Roy Case (2002)

This case dealt with the introduction of value-based education, including religious texts, in schools. The challenge was that it violated the secular character of education.

• The Supreme Court upheld the introduction of religious education (study of religious texts) in schools, provided it is part of a study of religions and is not confined to one religion, and is optional.

• The Court distinguished between 'religious instruction' (which is prohibited in wholly state-funded institutions under Article 28) and 'religious education' (study of religions).

• The Court observed that secularism in India does not mean irreligion. It means equal respect for all religions.

This judgment reiterated the positive aspect of Indian secularism, where the state can engage with religion in a way that promotes understanding and respect for all faiths, within the constitutional framework.

Ongoing debates on Uniform Civil Code (Article 44) and issues like religious conversions continue to test and shape the interpretation and application of secularism in India.

Impact of GST on Fiscal Federalism

Fiscal federalism, dealing with the financial relations between the Centre and the States, is a critical aspect of India's federal system. Recent developments, particularly the introduction of GST, have significantly impacted this relationship.

Before GST:

Before GST, the division of indirect taxing powers was clearer, with the Centre levying excise duties, service tax, etc., and states levying VAT/Sales Tax, entertainment tax, luxury tax, etc. This often led to cascading effects of taxes and complexities in inter-state trade.

Impact of GST (Goods and Services Tax):

The 101st Constitutional Amendment Act, 2016, introduced GST, subsuming many of these indirect taxes into a single tax with components of Central GST (CGST), State GST (SGST), and Integrated GST (IGST).

• Simultaneous Taxing Power: Article 246A gives both Parliament and State Legislatures the simultaneous power to make laws with respect to GST. This is a unique feature in India's federal financial structure.

• GST Council: The establishment of the GST Council (Article 279A) is a major institutional change. It is a joint body of the Centre and States that makes recommendations on crucial GST matters (rates, exemptions, thresholds, etc.). This requires consensus-building and negotiation between the Centre and States for decision-making, promoting cooperative fiscal federalism.

• Revenue Sharing: The revenue collected from GST (CGST and SGST) is shared between the Centre and States. IGST (on inter-state trade) is collected by the Centre and apportioned between the Union and the States. The distribution is based on the destination principle.

• Compensation to States: The GST Act provides for compensation to states for loss of revenue arising on account of implementation of GST for a period of five years (initially up to 2022, though compensation cess collection continued). This addresses states' concerns about revenue loss during the transition.

• Centralisation Concerns: While the GST Council promotes cooperation, some argue that the centralised tax structure and the dependence on the Council's recommendations potentially reduce the independent taxing powers of states compared to the pre-GST era.

Overall, GST has fundamentally reshaped fiscal federalism in India, moving towards a more integrated and collaborative system, albeit with ongoing discussions about revenue autonomy and distribution.

Role of Inter-State Council

The Inter-State Council (Article 263) is a constitutional body intended to improve coordination and cooperation between the Centre and States and among the States themselves. Its role has gained importance in the context of complex Centre-State relations.

Purpose:

The Council is a forum for dialogue and consultation on matters of common interest. It can inquire into and advise on inter-state disputes, discuss policies, and make recommendations for better coordination.

Significance in Contemporary Federalism:

• Platform for Dialogue: In a diverse federal system, the Council provides a crucial platform for the political executives of the Centre and states to sit together, discuss issues, and find solutions through consensus.

• Addressing Centre-State Friction: It can help in diffusing tensions and resolving disagreements between the Centre and states, reducing the reliance on judicial intervention for every dispute.

• Policy Coordination: It facilitates the coordination of policy and action on subjects of common interest, leading to more effective governance and implementation of programmes.

While the recommendations of the Inter-State Council are only advisory, its significance lies in its potential to promote cooperative federalism through regular interactions and consultations. Issues such as the frequency of its meetings and the implementation of its recommendations are ongoing points of discussion regarding its effectiveness.

Contemporary Issues in Centre-State Relations

Centre-State relations in India are dynamic and constantly evolving, marked by both cooperation and occasional friction. Several contemporary issues continue to shape this relationship.

Key Contemporary Issues:

• Role of Governor: The office of the Governor continues to be a source of controversy, particularly concerning the appointment and dismissal of Chief Ministers, summoning/proroguing/dissolving the Assembly, and reserving bills for the President's consideration. Allegations of the Governor acting as an agent of the Centre for political purposes persist.

• Use of Article 356: Despite the S.R. Bommai judgment, the imposition of President's Rule remains a sensitive issue, with concerns about its misuse for political ends.

• Fiscal Relations and Devolution of Funds: States often demand greater financial autonomy and a larger share in central taxes. The role of the Finance Commission and the quantum of grants-in-aid are always subjects of discussion. Issues related to tied grants (grants for specific schemes) vs. untied grants also arise.

• Impact of Central Schemes: The implementation of centrally sponsored schemes often involves a financial burden on states and concerns about insufficient flexibility to adapt schemes to local needs.

• Sharing of Resources: Disputes over shared resources like river waters remain a persistent challenge.

• Law and Order: Although 'Police' and 'Public Order' are State subjects, the Centre sometimes intervenes through central forces or legislation, leading to debates about state autonomy.

• Uniformity vs. Diversity: Balancing the need for national uniformity in certain areas (e.g., education policy, environmental standards) with the autonomy of states to cater to their local conditions is an ongoing challenge.

• Role of Regional Parties: The rise of strong regional parties has increased the assertiveness of states and added complexity to Centre-State negotiations.

• Disaster Management: Coordination and sharing of resources between the Centre and States during natural disasters.

Addressing these issues requires continuous dialogue, institutional reforms (like strengthening the Inter-State Council), and adherence to the spirit of cooperative federalism, respecting the autonomy of both the Centre and the States within their respective spheres.

The Basic Structure Doctrine: Ongoing Debates

Constitutionalism means governance according to the Constitution and implies limitations on governmental power. Judicial review is a key tool for enforcing constitutionalism. The Basic Structure Doctrine is the most significant contribution of the Indian judiciary to constitutionalism.

Recap of Basic Structure Doctrine:

Established in the Kesavananda Bharati case (1973), it holds that Parliament's power to amend the Constitution is limited; it cannot alter or destroy the basic structure of the Constitution. Judicial review is a component of the basic structure.

Ongoing Debates:

Despite being a settled principle, the Basic Structure Doctrine is a subject of ongoing debate and discussion:

• Uncertainty: Critics argue that the doctrine introduces uncertainty because the 'basic structure' is not defined exhaustively in the Constitution and is left to be interpreted by the judiciary on a case-by-case basis. This gives considerable power to the judiciary.

• Judicial Supremacy vs. Parliamentary Supremacy: The doctrine represents a tension between judicial supremacy (judiciary as final interpreter) and parliamentary supremacy (Parliament's power to amend). Critics argue it encroaches upon the sovereignty of Parliament.

• Enforcement of the Doctrine: Applying the doctrine requires balancing competing constitutional values and principles, which can be complex and subjective.

• Judicial Restraint vs. Activism: The application of the doctrine often involves the judiciary in evaluating the substance of amendments, leading to accusations of judicial overreach.

Supporters argue that the doctrine is essential for preserving the fundamental character and values of the Constitution, preventing its transformation into something entirely different by a simple parliamentary majority. They view it as a necessary safeguard against potential legislative excesses and a pillar of Indian constitutionalism.

The debate surrounding the basic structure doctrine reflects the fundamental questions about the limits of power, the role of institutions, and the interpretation of constitutional principles in a democratic state.

Judicial Activism vs. Judicial Restraint

Judicial activism and judicial restraint represent different approaches that the judiciary can take in exercising its power of judicial review. This debate is central to understanding the role of the judiciary in contemporary India.

Judicial Activism:

As discussed earlier, Judicial Activism is when the judiciary plays a proactive role in enforcing rights and ensuring justice, often by creatively interpreting the law or issuing directions to the executive/legislature. It emerged strongly in India in the late 1970s and 80s, driven by PIL and the liberal interpretation of Article 21.

Judicial Restraint:

Judicial Restraint is the opposite approach, where the judiciary exercises caution and self-control, limiting its intervention in the domains of the executive and legislature. It emphasizes deference to the wisdom of the elected branches and avoids entering into policy-making or day-to-day administration.

Landmark Cases and their Impact

The history of the Indian judiciary is marked by periods and instances of both activism and restraint.

Cases showing Judicial Activism:

• Maneka Gandhi v. Union of India (1978): Expansive interpretation of 'personal liberty' in Article 21, introducing 'due process' and paving the way for inclusion of numerous rights.

• Shiva Rao Pingle v. Union of India (1982) (Public Interest Litigation): Relaxation of locus standi rules, allowing public-spirited individuals to file PILs on behalf of others, opening up access to justice and leading to judicial intervention in social issues like bonded labour, child labour, prison reforms, etc.

• M.C. Mehta cases (on Environment): Series of judgments using PIL to enforce environmental laws and read the right to a clean environment into Article 21, leading to executive action and new regulations.

Cases showing Judicial Restraint/Limits on Activism:

• S.P. Gupta v. Union of India (1981) (Judges Case): While expanding the scope of judicial review, the court initially gave primacy to the executive in judicial appointments. (This was later changed by subsequent judges' cases leading to the Collegium system).

• Divisional Manager, Aravali Golf Club v. Chander Haas (2008): The Supreme Court cautioned against judicial interference in policy matters and administrative decisions unless they are clearly arbitrary, illegal, or irrational.

The debate between activism and restraint reflects the inherent tension in a democracy with separation of powers. While activism is credited with upholding rights and filling governance gaps, overreach can undermine the accountability of elected bodies. The appropriate balance is crucial for the healthy functioning of the constitutional system.

Right to Privacy (Justice K.S. Puttaswamy v. Union of India)

The interpretation and expansion of Fundamental Rights, particularly Article 21, is an ongoing process through judicial pronouncements. The recognition of the Right to Privacy as a fundamental right is a recent landmark development.

Context:

The issue of the Right to Privacy came to prominence in the context of the government's Aadhaar scheme, which involved the collection and use of biometric and demographic data.

Justice K.S. Puttaswamy (Retd.) and Anr. v. Union of India and Ors. (2017):

A nine-judge bench of the Supreme Court unanimously held that the Right to Privacy is a Fundamental Right.

• The Court ruled that privacy is an intrinsic part of life and personal liberty under Article 21. It also found elements of privacy in other Fundamental Rights, particularly Article 19 (freedoms) and Article 14 (equality).

• The Court overruled earlier judgments (like M.P. Sharma case, 1954 and Kharak Singh case, 1962) that had held that privacy was not a Fundamental Right.

• The Court clarified that the Right to Privacy is not absolute and is subject to reasonable restrictions. Any infringement on privacy must satisfy a three-fold test: (1) must be backed by a law; (2) must serve a legitimate state interest; and (3) must be proportionate to the object sought to be achieved.

This judgment is a landmark in Indian rights jurisprudence, giving constitutional protection to privacy and requiring the state to justify any intrusion on this right based on the principles of legality, legitimacy, and proportionality. It has significant implications for data protection, surveillance, and personal autonomy in the digital age.

Environmental Protection and Constitutional Mandates

The Constitution of India, through various provisions, mandates the protection and improvement of the environment. The judiciary has also played a key role in interpreting these mandates.

Constitutional Provisions:

• Directive Principle (Article 48A): Added by the 42nd Amendment, it states that the State shall endeavour to protect and improve the environment and to safeguard the forests and wild life of the country.

• Fundamental Duty (Article 51A(g)): Also added by the 42nd Amendment, it enjoins every citizen to protect and improve the natural environment, including forests, lakes, rivers, and wild life, and to have compassion for living creatures.

Right to Clean Environment

Although not explicitly mentioned as a Fundamental Right, the Supreme Court has interpreted the Right to Life and Personal Liberty (Article 21) to include the right to a clean, pollution-free environment.

• Through numerous PILs (e.g., M.C. Mehta cases), the Court has issued directions to governments and industries to control pollution, protect forests, manage waste, etc.

• The Court has enforced the 'Polluter Pays Principle', the 'Precautionary Principle', and the 'Public Trust Doctrine' in environmental matters, making environmental protection a legal obligation.

This judicially created 'Right to Clean Environment' under Article 21, combined with the state's duty (Article 48A) and citizen's duty (Article 51A(g)), provides a strong constitutional basis for environmental governance and protection in India.

Socio-Economic Justice and Constitutional Mandates

The Indian Constitution is not merely a political document; it is also committed to achieving socio-economic justice, which is enshrined in the Preamble and elaborated in various parts, particularly the Directive Principles.

Constitutional Vision:

• Preamble: Secures to all citizens justice—social, economic, and political—and equality of status and opportunity.

• Fundamental Rights: Articles like 14, 15, 16, 17, 21, 23, 24 directly address social and economic inequalities and exploitation, providing legally enforceable rights.

• Directive Principles of State Policy (DPSPs): Part IV lays down the framework for a welfare state, aiming to achieve social and economic democracy through non-justiciable principles (e.g., equitable distribution of wealth, right to work, living wage, public health, welfare of weaker sections).

Implementation and Judicial Role:

• Legislation: Parliament and State Legislatures have enacted numerous laws to implement the vision of socio-economic justice and the principles laid down in DPSPs (e.g., land reforms, labour laws, minimum wage laws, social security schemes, reservation policies, Right to Education Act, food security laws).

• Judicial Interpretation: The Supreme Court and High Courts have played a significant role in interpreting Fundamental Rights (especially Article 21) in light of DPSPs, expanding the scope of rights to include aspects of socio-economic justice (e.g., right to livelihood, right to shelter, right to health, right to education). Through PILs, courts have directed the State to implement policies and schemes related to social welfare.

• Harmony between FRs and DPSPs: As seen in cases like Minerva Mills, the judiciary emphasizes the need for a harmonious construction, recognising that achieving the goals of socio-economic justice (DPSPs) is essential for the full realisation of political and civil rights (FRs).

Achieving socio-economic justice remains an ongoing process in India, requiring continuous efforts in policy-making, legislative action, and judicial oversight to bridge the gap between constitutional aspirations and reality, particularly for the marginalised and disadvantaged sections of society.

Erosion of Constitutional Values

Constitutionalism implies adherence to the spirit and principles of the Constitution, beyond just the letter of the law. Contemporary India faces several challenges that are perceived as potentially eroding constitutional values.

Manifestations of Erosion:

• Politicisation of Institutions: Allegations of political interference in the functioning of independent constitutional bodies (like Election Commission, CBI, ED) and statutory bodies, potentially undermining their autonomy and impartiality.

• Decline in Parliamentary Functioning: Frequent disruptions, lack of meaningful debate, bypassing parliamentary scrutiny through ordinances or Money Bills for ordinary legislation, and limited role of standing committees can weaken the legislative and accountability functions of Parliament.

• Issues with Federalism: Increased centralisation, misuse of powers under Article 356, disputes over revenue sharing, and the Governor's role sometimes strain Centre-State relations and undermine federal principles.

• Challenges to Rule of Law: Concerns about selective enforcement of laws, executive overreach, and potential weakening of accountability mechanisms.

• Secularism under Strain: Debates and controversies surrounding issues like communalism, cow vigilantism, religious conversions, and personal laws sometimes pose challenges to the principle of secularism and equal treatment of all religions.

• Executive Dominance: Concerns about the executive becoming overly powerful, potentially at the expense of the legislature and judiciary, raising questions about the balance of powers.

Addressing these challenges requires strengthening constitutional institutions, promoting democratic practices, fostering a culture of constitutionalism among citizens and functionaries, and ensuring robust checks and balances.

Role of Constitutional Morality

Constitutional morality refers to the adherence to the core principles and values underlying the Constitution, even if they are not explicitly codified as rigid rules. It is a crucial concept for upholding constitutionalism.

Meaning:

Constitutional morality means commitment to the principles enshrined in the Constitution, such as democracy, rule of law, secularism, equality, liberty, and fraternity. It requires public functionaries and citizens to act in a manner that promotes and protects these values. It is about the spirit of the Constitution.

Judicial Emphasis:

The Supreme Court has increasingly referred to constitutional morality in its judgments, especially in recent years, to interpret constitutional provisions and evaluate the legality of actions.

• In the Navtej Singh Johar v. Union of India (2018) judgment decriminalizing consensual homosexual relations, the Court explicitly relied on constitutional morality, stating that popular morality or societal views cannot override constitutional morality.

• In the Sabarimala Temple case (Indian Young Lawyers Association v. State of Kerala, 2018), the Court again invoked constitutional morality to allow entry of women of all ages into the temple, upholding equality and non-discrimination over traditional practices based on popular morality.

Constitutional morality serves as a higher standard for evaluating actions and laws, ensuring that they are in tune with the fundamental ethos of the Constitution and preventing regression to practices that violate core constitutional values like equality, dignity, and liberty.

Impact of Technology on Rights and Governance

Rapid advancements in technology pose new and complex challenges to constitutional rights and the principles of governance.

Challenges and Issues:

• Right to Privacy: Issues related to data collection, surveillance, data security, and the use of personal information by the state and private entities. The recognition of the Right to Privacy as a Fundamental Right is a response, but challenges in its implementation (e.g., enacting a robust data protection law) remain.

• Freedom of Speech and Expression: Challenges related to online speech, spread of misinformation/disinformation, regulation of social media platforms, online censorship, and balancing free speech with restrictions like public order and defamation.

• Democracy and Elections: Use of technology in elections (e.g., EVMs, VVPATs), challenges related to electoral integrity in the digital age, use of social media for political campaigning and potential manipulation.

• Governance and Accountability: Use of technology in public service delivery (e-governance), potential for increased efficiency but also concerns about digital divide, exclusion, and algorithmic bias. Transparency and accountability in the age of complex digital systems.

• Rule of Law: Challenges in regulating cyberspace, enforcing laws in the digital realm, cybercrimes, and ensuring online safety.

• Access to Justice: Use of technology in courts (e-courts), potential for improving access and efficiency, but also concerns about digital literacy and infrastructure access, particularly in rural areas.

Addressing these challenges requires adapting legal frameworks, developing digital rights jurisprudence, strengthening cyber security, ensuring digital literacy and inclusion, and constantly balancing technological advancement with the protection of fundamental rights and democratic principles. The courts play a crucial role in interpreting constitutional provisions in the context of new technologies.