How India Interprets Secularism Legally
The word "secular" was not in the original text of the Indian Constitution adopted in 1950 — it was added to the Preamble by the 42nd Constitutional Amendment in 1976, during the Emergency. The addition confirmed in text what was already present in practice: the Constitution's elaborate architecture of religious freedom, minority rights, and prohibition on state-sponsored religion had constituted a form of secularism from the beginning, even without the explicit word.
The Supreme Court in Kesavananda Bharati v. State of Kerala (1973) had identified secularism as a basic structure feature before the word appeared in the Preamble, and confirmed this in S.R. Bommai v. Union of India (1994) — where it held that any use of religion for electoral purposes by a political party would justify President's Rule in that state, given that secularism was itself a constitutional commitment the state was bound to uphold.
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| Representational Image: How India Interprets Secularism Legally |
Articles 25–28 guarantee freedom of religion to individuals and groups while simultaneously permitting the state to regulate religious practices, reform Hindu religious institutions, and throw open temples to all classes of citizens. The state may grant financial aid to educational institutions managed by religious minorities.
The
Union and states have authority over pilgrimage management and religious
endowments through specific statutes. India's is a model of "principled
distance" — not separation — where the state neither endorses nor
persecutes any religion, but may intervene in religious practices when they
violate constitutional values such as equality, dignity, and public order.
What You Need to Know
- The
word "secular" was inserted in the Preamble by the 42nd
Amendment (1976); Articles 25–28 guarantee individual and institutional
religious freedom; Article 15 prohibits discrimination on grounds of
religion; Article 27 prohibits compulsion to pay taxes for promotion of
any particular religion; Article 28 prohibits religious instruction in
state-funded schools.
- S.R.
Bommai v. Union of India (1994) confirmed secularism as basic structure of
the Constitution; the court held that political parties which use religion
for electoral advantage violate the Constitution's secular character; the
majority opinion contains significant judicial exposition of what
secularism requires of the state.
- The
"essential practices test" — developed in the Commissioner,
Hindu Religious Endowments v. Sri Lakshmindra Thirtha Swamiar of Sri
Shirur Mutt (1954) — holds that only practices "essential and
integral" to a religion receive constitutional protection under
Article 25; non-essential or ceremonial practices may be regulated by the
state; courts determine what is "essential" to a religion.
- The
Supreme Court in Indian Young Lawyers Association v. State of Kerala
(Sabarimala, 2018) held by a 4:1 majority that the exclusion of women of
menstruating age (10–50 years) from Sabarimala temple was not an
"essential practice" of the Ayyappa faith and violated
constitutional equality; a three-judge bench subsequently referred
questions to a larger bench; a nine-judge bench is currently examining
foundational questions about religious freedom and constitutional
morality.
- Article
44 directs the state to secure a Uniform Civil Code — a directive that, if
implemented, would replace personal laws of different religious
communities (Hindu, Muslim, Christian, Parsi) with a single civil code; as
of 2025 it remains unimplemented at the Union level; Uttarakhand enacted a
state-level UCC in 2024.
How It Works in Practice
1. State regulation of religious institutions: The
state may regulate, and has regulated, Hindu religious endowments and temples
through state-level acts — the Tamil Nadu, Andhra Pradesh, Odisha, and
Maharashtra temple management acts are examples. The court has upheld such
regulation on the ground that the administration of temple property is a
"secular" function — as opposed to the performance of religious rites
— even where the institution is religious in character.
2. The essential practices test as judicial gatekeeping:
When a practice or institution claims constitutional protection under Article
25 or 26, courts ask whether it is "essential and integral" to the
religion — not merely associated with it. This test has been applied to decide
whether: animal sacrifice is essential to Islam or Hinduism in specific
contexts; triple talaq is essential to Muslim personal law (held not essential
in Shayara Bano, 2017); entry rights at Sabarimala are essential to the Ayyappa
tradition (contested in the current nine-judge bench reference).
3. Personal law and secular courts: India has
separate personal laws for Hindus, Muslims, Christians, and Parsis governing
marriage, divorce, inheritance, and adoption. These personal laws are
administered by civil courts — not religious courts — making them statutory
civil law even when they derive from religious sources. Personal laws are
subject to constitutional scrutiny for fundamental rights violations; Shayara
Bano (2017) struck down triple talaq as violating Article 14.
4. State aid and minority institutions: Article 30
guarantees minorities the right to establish and administer educational
institutions, and Article 30(2) prohibits discrimination against minority
institutions in granting state aid. The state may fund minority religious
educational institutions; it may also impose reasonable conditions on their
administration. TMA Pai Foundation v. State of Karnataka (2003) clarified the
scope of these rights in an eleven-judge bench decision.
5. Communal politics and legal challenges: The places
of worship question — whether the character of a religious site as it existed
on August 15, 1947 can be legally changed — is governed by the Places of
Worship (Special Provisions) Act, 1991, which froze the religious character of
all places of worship except the Ram Janmabhoomi site. Multiple petitions
challenging this Act are pending before the Supreme Court, raising foundational
questions about the relationship between historical religious claims and the
constitutional secular settlement.
What People Often Misunderstand
- Indian
secularism is not separation of church and state: The state may and
does engage with religious institutions, fund religious minority
educational bodies, regulate temples, and administer pilgrimage sites;
strict separation is not the Indian constitutional model.
- The
essential practices test is judicially controversial: Critics argue
that courts — not religious communities — should not be the arbiters of
what is "essential" to a religion; the test has been applied
inconsistently and the nine-judge bench is partly examining whether it
should be reconsidered.
- The
Uniform Civil Code is a constitutional directive, not existing law:
Article 44 is aspirational; no UCC has been enacted at the Union level;
personal laws of different communities continue to govern civil matters
for their members; Uttarakhand's state UCC (2024) is the only current
state-level implementation.
- Secularism
does not mean the state is anti-religion: Indian constitutional
secularism requires the state to treat all religions equally, not to
exclude religion from public life; the state may express respect for
religious diversity without endorsing any particular religion.
- The
Sabarimala judgment is not the last word: The Sabarimala majority
judgment (2018) was referred to a nine-judge bench by a three-judge bench
in 2019; the nine-judge bench assembled in 2023–24 is examining
foundational questions about the scope of religious freedom, the essential
practices test, and constitutional morality in the context of religious
institutions; its ruling will be definitive on these questions.
What Changes Over Time
The nine-judge Constitution Bench currently examining the Sabarimala reference and related questions about women's entry into religious places, the Dawoodi Bohra female genital cutting case, and Parsi women's rights in fire temples will produce the most significant constitutional ruling on Indian secularism in decades.
The Law Trend reporting from April 2026 notes the
Centre's Solicitor General challenging the "constitutional morality"
doctrine before this bench — a challenge that goes to the heart of how the
court has approached religious freedom versus constitutional values. The Places
of Worship Act cases, and the wider jurisprudence around historical religious
claims and the 1947 freeze, will also be significant in the next several years.
Sources and Further Reading
- Bhatt
& Joshi Associates — India's Secular Framework: https://bhattandjoshiassociates.com/indias-secular-framework-the-intersection-of-law-and-religion/
- LegalServiceIndia
— Secularism in India: Judicial and Constitutional Perspective: https://www.legalserviceindia.com/legal/article-6954-secularism-in-india-judicial-and-constitutional-perspective.html
- Supreme
Court Observer — Sabarimala case background: https://www.scobserver.in
- Law
Trend — Centre Challenges Constitutional Morality Doctrine: https://lawtrend.in/centre-challenges-constitutional-morality-doctrine-in-supreme-court-calls-adultery-section-377-rulings-not-good-law/
- Naya
Legal — Secularism and Freedom of Religion: https://www.nayalegal.com/secularism-and-freedom-of-religion