Secularism and equality compared

The first principle

A constitution that promises equal citizenship has to decide two things: how the state should treat religion, and what it means to treat people equally. Both questions have a formal answer (keep the state away from religion, treat everyone alike) and a substantive one (engage with religion where needed for freedom and equality, treat unequals differently to make them equal). The United States (US) and France lean towards the formal answers in different ways; India, facing deep religious diversity and caste hierarchy, chose the substantive ones. This note compares the constitutional designs; the social side of secularism is in the GS1 Society notes.

The core

Indian secularism

• Text and status. The word "secular" was added to the Preamble by the Forty second Amendment (1976), but the idea was already in the text: equality and non discrimination (Articles 14, 15, 16), freedom of conscience and religion (Article 25), autonomy of religious denominations (Article 26), no tax for promoting a religion (Article 27), no religious instruction in wholly state funded schools (Article 28), and cultural and educational rights of minorities (Articles 29 and 30). In S. R. Bommai v Union of India (1994) the Supreme Court held secularism to be part of the basic structure.
• Principled distance. The political theorist Rajeev Bhargava describes the Indian model as principled distance: the state may keep away from religion or engage with it, depending on which better advances freedom and equality. It is often summed up as sarva dharma sambhava, equal respect for all religions, rather than the indifference of a strict wall.
• The state can reform religion. Article 25(2) lets the state regulate the economic, financial, political or other secular activity associated with religious practice and make laws for social welfare and reform, including opening Hindu temples of a public character to all classes. States administer Hindu temples through endowment laws, and Article 17 abolishes untouchability outright.
• The essential practices test. In the Shirur Mutt case (1954) the Court held that religion includes its rituals and observances, but only practices essential to a religion get protection. In Indian Young Lawyers Association v State of Kerala (2018) the Court struck down the exclusion of women aged ten to fifty from the Sabarimala temple; in 2019 a review bench referred wider questions on religious freedom to a larger bench.
• Diversity in law. Personal laws of different communities continue, with a uniform civil code left as a Directive Principle (Article 44), and minorities may run their own educational institutions under Article 30.

The American and French models

• United States. The First Amendment (1791) says Congress "shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof". Thomas Jefferson described this in 1802 as a "wall of separation between Church and State", a phrase the Supreme Court adopted in Everson v Board of Education (1947), which applied the Establishment Clause to the states. Lemon v Kurtzman (1971) asked whether a law has a secular purpose, whether its main effect advances or inhibits religion, and whether it causes excessive entanglement. In Kennedy v Bremerton School District (2022) the Court set the Lemon test aside in favour of reading the clause by historical practice and understanding, upholding a public school coach's right to pray on the field.
• France. Laïcité rests on the law of 9 December 1905 on the separation of the Churches and the State, under which the Republic neither recognises, pays nor subsidises any religion, while guaranteeing free exercise subject to public order. Article 1 of the 1958 Constitution calls France an indivisible, secular, democratic and social Republic. The state has since pushed religion out of public institutions: a 2004 law bans conspicuous religious symbols in public schools, a 2010 law bans covering the face in public, and a 2021 law reinforcing respect for the principles of the Republic tightened control over associations and places of worship. Alsace and Moselle, German territory in 1905, still keep an older system under which the state pays the clergy of recognised religions.

Dimensions

What France can learn from India

• Accommodation of dress and identity. Article 25 expressly treats the wearing and carrying of the kirpan as part of the Sikh religion, and religious dress is generally allowed in schools and public offices. France's bans on headscarves, turbans and veils in public schools fall hardest on minorities and can push them out of state institutions.
• Minority rights as group rights. Article 30 recognises religious and linguistic minorities as groups with rights, while French republicanism recognises only individual citizens. India's approach gives minorities a stake in the Republic rather than asking them to leave their identity at the door.
• Equal respect, not exclusion. Public holidays mark festivals of many faiths, and Article 30(2) bars discrimination in state aid to minority schools, so neutrality is achieved by including all rather than excluding all.
• The limits of the Indian model. The same openness invites communal mobilisation, unequal state interference (Hindu temples are administered by the state while other institutions mostly are not), and long delay on reform of personal laws. Courts have also divided on dress questions, as the split verdict on the hijab in Karnataka schools in 2022 showed.

The US establishment clause over time

In practice

The right to equality: US and India

• The US guarantee. The Fourteenth Amendment (1868) forbids any state to "deny to any person within its jurisdiction the equal protection of the laws". Plessy v Ferguson (1896) allowed "separate but equal", and Brown v Board of Education (1954) overruled it in public education. Courts test a classification by tiers: strict scrutiny for race and national origin, intermediate scrutiny for sex, and rational basis review for the rest.
• Affirmative action in the US. Race conscious admission was allowed within limits after Regents of the University of California v Bakke (1978), which forbade quotas, but in Students for Fair Admissions v Harvard (June 2023) the Court held that race based admission violates the equal protection clause. The prevailing view is "colour blind": equality means not classifying by race.
• The Indian guarantee. Article 14 combines equality before the law, from British law, with equal protection of the laws, from the US. Articles 15 and 16 bar discrimination on religion, race, caste, sex or place of birth, Article 17 abolishes untouchability and Article 18 abolishes titles.
• How Indian courts test equality. State of West Bengal v Anwar Ali Sarkar (1952) laid down reasonable classification: a law may classify if the classification rests on an intelligible differentia with a rational nexus to the law's object. E. P. Royappa v State of Tamil Nadu (1974) added that equality is the antithesis of arbitrariness, so arbitrary action itself violates Article 14.
• Reservation as equality. After State of Madras v Champakam Dorairajan (1951) struck down a communal quota, the First Amendment added Article 15(4). In State of Kerala v N. M. Thomas (1976) the Court held that reservation under Article 16(4) is a facet of equality, not an exception to it. Indra Sawhney v Union of India (1992) upheld reservation for other backward classes with a fifty per cent ceiling and the exclusion of the creamy layer, and Janhit Abhiyan v Union of India (2022) upheld ten per cent reservation for economically weaker sections (EWS). Article 15(5) extends reservation to private educational institutions.
• Whom the right binds. US equal protection binds only the state, under the state action doctrine, so private discrimination is reached by statutes such as the Civil Rights Act of 1964. India's Constitution itself binds private persons in places: Article 15(2) on access to shops, hotels, wells and public places, and Article 17 on untouchability.

Issues and way forward

• Consistency in Indian secularism. Selective state control of religious institutions and slow reform of personal laws weaken the claim of equal respect. Reform through consultation within communities, and uniform principles for administering religious endowments of all faiths, would make principled distance more principled.
• The essential practices test. Judges deciding what is essential to a faith draws them into theology. The pending larger bench reference gives the Court a chance to frame a clearer test, such as one based on constitutional morality and individual dignity.
• The future of reservation. The EWS ruling loosened the fifty per cent ceiling and the link between reservation and social backwardness. Reliable data on backwardness and representation, of the kind M. Nagaraj (2006) required for promotions, should guide future changes.

Common confusions

• Indian and French secularism. France excludes religion from the public sphere to keep the state neutral; India includes all religions and intervenes for reform.
• Indian and American secularism. The US forbids establishment and protects exercise, but does not let the state reform religion; India does.
• Equality before the law and equal protection of the laws. The first is a negative idea of no special privilege; the second is a positive idea of equal treatment in equal circumstances, which permits reasonable classification.
• Formal and substantive equality. Formal equality treats all alike; substantive equality treats unequals differently to remove disadvantage, which is why reservation is a facet of Article 16(1), not an exception.

For the exam

• Keyword bank: principled distance, sarva dharma sambhava, essential religious practices, S. R. Bommai, Establishment Clause, wall of separation, Lemon test, laïcité, equal protection clause, strict scrutiny, colour blind constitution, reasonable classification, arbitrariness doctrine, substantive equality, state action doctrine.
• Practise the previous year questions on this topic →
• Use in an answer:
  • Introduction with data: "France's law of 1905 forbids the state to recognise or fund any religion, while India's Constitution lets the state open temples to all castes and protects the Sikh right to carry a kirpan."
  • Introduction with a judgement: "In S. R. Bommai (1994) the Supreme Court held secularism to be part of the basic structure, meaning equal respect for all religions rather than hostility to any."
  • Conclusion: "India's model of principled distance is harder to administer than a wall of separation, but it has kept a society of many faiths inside one constitutional order."
  • Conclusion: "Where the US has moved towards colour blind equality, India continues to treat reservation as a means to equality, which makes accurate data and periodic review its main safeguards."