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Australian Journal of Asian Law

Abstract from Volume 11 No 1 (2009)

Constructing Secularism: Separating ‘Religion’ and ‘State’ under the Indian Constitution

M Mohsin Alam, BA, LLB (Hons) NALSAR University of Law, Hyderabad, India, is currently serving as a Judicial Clerk at the Supreme Court of India.

The jurisprudence of freedom of religion under the Indian Constitution presents us with a muddled picture. With a complicated history of denominational religion and reform, these provisions have been seen to be the very root of the ‘social revolution’ which the Constitution intended to mark. At the same time, the restrictive interpretation of arts 25 and 26 of the Constitution, in the form of what I have called the doctrine of ‘essentiality’, has failed to gather enough attention. It is argued that this interpretation of freedom of religion was revolutionary from the point of view of the natural textual construction. Moreover, it is argued that this construction of the text re-aligned the constitutional conception of secularism, something that is not often noted. While this construction strengthened the power of the state to regulate denominational religion, it reduced ‘constitutional secularism’ to a concept antithetical to the individual’s right to freedom of religion.

(2009) 11(1) Asian Law 29

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