BANARAS HINDU UNIVERSITY,

FACULTY OF LAW

SESSION 2020-2025 (BA.LLB 1st Semester)

LEGAL HISTORY ASSIGNMENT

TOPIC: “INDIAN INDEPENDENCE ACT, 1947 AND INDIAN

CONCEPT OF SECULARLISM”

Submitted by: Submitted to:

Prof. Sibaram Tripathy

1)Shivam Verma- 20225BLT077

2)Saumya Tripathi-20225BLT019

3)Shivangi Singh-20225BLT020

4)Shivanshi Gupta-20225BLT078
Indian Independence Act, 1947

The Indian Independence Act was the final step towards India’s independence
from the British Raj. The Act made provisions to set up ‘The British India’ into
two independent dominions; India and Pakistan. It also changed certain
provisions of Government of India act, 1935. It also led to the division of
provinces of Bengal and Punjab. It ensured that the Indian subcontinent was not
left in state of hiatus.

The sections of the Act;

Section 1: States that two new dominions will come into being from 15th
August, 1947 i.e., India and Pakistan

Section 2: Explains the territories of the new Dominions

Section 3: According to this section, the province of Bengal will cease to exist
and would be known as East and West Bengal. The district of Sylhet will be
excluded from the province of Assam.

Section 4: Punjab will be divided between the two dominions and the boundary
commission will divide the province.

Section 5: Appointed Governor General for each dominion

Section 6: Legislatures of both the dominions will have the power make laws
for their respective dominions, including laws having extra judicial operation.

Section 7: The British laws will cease to apply on India from 15th August, 1947.
The British Raj will have no control over the over the affairs of the whole or
part of the two dominions after 15th August, 1947.

Section 8: This section said that the existing constituent assembly (formed by
the Cabinet Mission Plan) will act as the Dominion legislatures until a
constitution is formed.

Section 10 and 9 provided for the termination of the suzerainty of the crown
over the Indian states.

Interestingly, Indian Independence Act, 1947 was repealed using by Article 395
of the Indian Constitution, which used the powers given to it by the same Act.
SECULARISM

The separation of ‘religion’ and ‘state’ is the foundation of secularism. Its

primary purpose is to ensure that there is no interference of religious groups in
the affairs of the state and that of the state in the religious affairs. Secularism
dates back to the nineteenth century, the term ‘secular’ was first used in 1851. It
was coined by a British reformer George Jacob Holyoake. Secularism as a
concept emerged in the West especially as the consequence of ‘Reformation’.
Overthrowing the political hegemony of the Catholic Church opened the
possibility that state and church could operate in separate realms. It was
necessary to separate both state and religion because one of the predictable
consequences of state-sponsored religion was that state would go to war over
religion. The first two states to establish themselves on secular terms were
United States of America and France.

Secularism means disentangling the codes of social behaviour from religious

control. It does not deny the presence of religion in society but demarcates
social institutions over which religion can or cannot exercise control. Its
function is to manage both religious and metaphysical-philosophical diversity of
views (including non- and anti-religious views). No religious outlook should
enjoy a privileged status; state must uphold the ethics and refrain from
supporting any particular religious or non-religious belief. Morality
fundamental to secularism goes beyond any single religion and extends to the
functioning of entire state. Everyone must enjoy equal status before law.

Secularism is built on very strong principles of human rights, equality, rule of

law and democracy. Secular state means to stop identifying oneself primarily by
religion, caste or language and start thinking of oneself primarily as equal
citizen of one nation, this involves mutual obligation not just in theory but in
actuality. Then the religion, caste and language will inevitably become
secondary.

For a pluralistic state the best approach to nurture secularism is to expand

religious freedom, to identify a common framework or a shared set of values
which allow diverse group to live together.
TYPES OF SECULARISM

Secularism is a normative doctrine which seeks to realise a secular state i.e.one

devoid of either inter-religious or intra-religious domination. It promises
freedom within and equality between as well as within religions. The concept of
secularism first came about in the mid-17th century, concept in its most
conventional taxonomy as Amartya Sen writes, there are two popular
interpretations of what it means for a state to be ‘secular’. One the state
maintains metaphorical arms-legal distance from all religions (Principal
Equidistance or Theory of Principled Distance). Two, it assiduously refuses
to interact with any form of religious life (Theory of Wall of Separation)

Indian Mode of Secularism:

India has evolved a variant of western form of secularism to suit its purpose,
that is not just an implant from west on the Indian soil. Indian philosophy of
secularism is akin to the Vedic concept of ‘Sarva Dharma Sambhava’ i.e.,
treating all religions alike or giving equal respect to all religions. This concept,
embraced and promoted by eminent personalities like Swami Vivekanand and
Mahatma Gandhi is called Positive Secularism which symbolises the
dominant ethos of Indian culture and does not demand absolute separation of
religion from state affairs.

The following are the characteristics of Indian concept of secularism:

• The state where the idea of not only inter-religion equality but also intra-
religion equality is present.
• The state cherishes the religious freedom of minority community as well.
• Indian secularism has made room for and is compatible with state
supported religious reforms.
• The state has the liberty to meddle with the affairs of religious
community to put a check on religious tyranny
• The Indian secularism allows for ‘principled’ state intervention in all
religions.
Thus, Indian secularism is not an end in itself but a means to address the
religious plurality. India is endowed with and sought to achieve peaceful
coexistence of different religion.
 Western Concept of Secularism

The most commonly prevalent conception of secularism inspired by the

American Model, separation of religion and state is understood as mutual
exclusion; each has a sphere of its own with independent jurisdiction. The
Principle of Wall of Separation lies at the foundation of this model of
secularism. The concept of ‘Wall of Separation’ owes its origin to Thomas
Jefferson who used the phrase to reflect his understanding of the
Establishment clause and the Free exercise clause of the American
Constitution’s First clause, reflecting the view of “the whole American
people which declared that their legislation should make no law respecting
an establishment of religion or prohibiting the free exercise thereof.” Thus,
building a wall between the church and the state, i.e., the concept does not
allow government involvement with religion, even on non-preferential basis.
The phrase was even used by the Supreme court of the US in Reynolds vs
United States (1879) and Everson vs Board of Education (1947).

The Following are the characteristics of the Western Model of Secularism

• No policy of the state can have an exclusively religious rationale

• The state cannot aid religious institutions
• The state will not interfere in the affairs of religious communities as long
as they are within the broad limit of the law of the land
• This common conception considers religious freedom and equality in an
individualistic manner.
Therefore, this form of mainstream secularism has no place for the idea
of state-supported religious reforms.

The Indian model of secularism is not limited to the mere ‘separation of religion
and state’, it recognises and accepts all religions without favouring a particular
religion. Unlike the Western form of secularism, the Indian constitution
emphasizes upon the positive intent. Being a birthplace to four major religions
i.e., Hinduism, Buddhism, Sikhism and Jainism, India has always followed the
philosophy of ‘Sarva Dharma Sambhava.’
LEGAL FRAMEWORK OF SECULARISM IN INDIA

The Indian Independence Act, 1947 divided India into two new dominions of
India and Pakistan. India embraced a secular form of government while
Pakistan adopted Islam as the official religion of the Pakistani state. Though the
word ‘secularism’ was officially included in the Preamble to the Constitution of
India in 1976 through the 42nd Amendment Act, India had always followed
the ideals of a Secular state in an implicit manner since the establishment of a
democratic republic in 1950. Since the inception of the Indian republic, the
preamble to the Constitution of India declared to secure all its citizens, "liberty
of thought, belief, faith and worship".

The Supreme Court of India in the S.R. Bommai vs Union of India (SCC,
1994, Vol. 3) held that “Secularism is a basic feature of the Constitution"
making it clear that Indian state is a secular state and not a theocratic state.

Justice Gajendragadkar defines the secularism of the Indian Constitution as a

medium to deliver equality of rights to all citizens with their religion being
entirely irrelevant in the matter. He says, “The state does not owe loyalty to
any particular religion as such; it is not irreligious or anti-religious; it gives
equal freedom to all religions”.

The Article 14 in the Constitution of India guarantees ‘equality before law and
equal protection of the laws’ to all. The Article 15 broadens the scope of
Secularism in India to a great extent by prohibiting discrimination on the
grounds of ‘religion, race, caste, sex and place of birth’. In the Ayodhya
Case (AIR 1955 SC 605), the Supreme Court of India splendidly explained
secularism with reference to equality, “The concept of secularism is one facet
of the right to equality woven as the central golden thread in the fabric
depicting the pattern of the scheme in our Constitution”
Article 25 of the Constitution of India assures that every citizen has the right to
‘Freedom of conscience and free profession, practice and propagation of
religion.’ Carrying of Kirpan by the people belonging to the Sikh religion
highlights the significance of Article 25.

Article 26 grants every individual, the right to ‘establish and maintain

institutions for religious and charitable purposes’ and ‘to manage its own
affairs in matters of religion.’ Article 27 exempts the compulsion of payment
of taxes for the ‘promotion or maintenance’ of any particular religion or
religious institution. This article assures that Indian model of secularism is a
positive one as it allows a free hand in promotion of religious affairs without an
obligation to pay taxes. Article 28 permits the establishment of educational
institutions by different religious groups and dissemination of religious
instructions.

Thus, Articles 25-28 nurture the ideals of secularism enshrined in the preamble
by expanding religious freedom rather than following a strict practice of state
neutrality.

Besides guaranteeing certain rights pertaining to the religious sphere, the

Constitution of India also imposes certain duties upon us. Article 51A
(fundamental duties) makes it an obligation for all Indians to ‘promote
harmony and the spirit of common brotherhood’
CONNECTING SECULARISM AND INDIAN INDEPENCE ACT, 1947

Indian Independence Act, 1947 divided the British India into two parts; India
and Pakistan. The legal framework of India was based on secularism while
Pakistan incorporated the idea of Islamic theology. As mentioned earlier, India
has been a secular state since its formation while Pakistan is an Islamic state.
We can trace this divide in ideologies to the founding leaders of both the
countries.

Muhammad Ali Jinnah was a strong believer of the notion that Hindus and
Muslims could never be accommodated in the same state. He mentioned at the
Lahore session of the Muslim league that it is a mere dream that Hindus and
Muslims could ever thrive in the same country, he further commented that this
misconception has gone way too far and would lead to India’s destruction. He
believed that Hindus and Muslims belong to two different cultures, they neither
eat together nor do they marry between the communities. He focused on the
differences of the two communities and highlighted them. He had the strong
disposition that the two communities had way too many conflicts to co-exist
peacefully in a nation. Moreover, he was of the view that to bring together a
numerical minority and other as majority, would cause great discontent and
destruction of the state.

On the other hand, Nehru was the philosopher of Indian secularism. He defined
a secular state as “one that protects all religions, but does not favour one at
the expense of other and does not itself adopt any religion as the state
religion.” He believed that secularism should ensure complete opposition of
communalism of all kinds. He felt it was an opposition to national unity. For
him secularism was the only guarantee of the unity and integrity of India. He
even used the concept of secularism to bring in the social reforms.

We can also understand the idea of Nehru’s secularism by looking into the
Somnath temple conflict. When Vallabhbhai Patel visited Junagadh on 2
Nov, 1950, he announced the reconstruction of Somnath temple. After Patel’s
death, this responsibility fell on the shoulders of K.M Munshi (then agriculture
minister). Nehru saw this act as a form of Hindu revivalism, while Munshi felt
that it was what the collective conscience of the nation wanted. Moreover,
Nehru did not approve of Rajendra Prasad’s presence at the bhoomi pooja
prior to the reconstruction of the Somnath Temple. The president pointed out at
the speech at Somnath that he was not there to open old wounds of religious
animosity. He addressed the public that he respected all religions and would
visit any place of worship on occasion while Nehru shared his difference of
opinion by saying that he objected to the idea of public officials associating
with faiths and religious shrines. Therefore, Prasad’s views on secularism were
more inclined towards the Indian perspective of secularism while Nehru
sometimes favoured the western view which focused more on the wall of
separation between religion and state.

Thus, by the comparative analysis of the thinking of leaders who were in favour
of states based either on secularism or Islamic theology, we can understand why
Indian Independence Act,1947 was brought up by the British parliament. It was
for the secularism which leaders wanted to have in free India. They envisioned a
free India where there is no state religion and there was freedom to have faith in
any religion for its citizens.

In the end, we can say that secularism is not just about incorporating it in the
legal structure of a country but to inculcate it in the minds of the free citizens of
a nation. It is not about mere tolerance of other person’s faith but about giving
the other person equality, respect and dignity to observe their faith.