Secularism and state religion in the Bangladesh Constitution

One of the most unique features of the Bangladeshi Constitution is that it pledges to conserve secularism (Article 12) while also declaring Islam as its state religion (Article 2A). The promise of secularism was present in the original Constitution. The state religion was added later through an amendment. Secularism was removed from the Constitution but was later restored through another amendment. Currently, both secularism and state religion co-exist in the Bangladeshi Constitution. If their meanings are taken literally, the existence of secularism and a constitutionally recognised state religion seem mutually exclusive, as there is an intrinsic conflict between the two. However, in a recent judgment (decided in 2016), the High Court Division of the Supreme Court of Bangladesh held that secularism and state religion can co-exist without contradicting each other. This short essay examines how the recently published judgment changed the meaning of secularism and state religion in Bangladesh.

Through the Anwar Hossain Chowdhury and others v Bangladesh case, the Supreme Court of Bangladesh incorporated the doctrine of basic structure into the constitutional law jurisprudence of Bangladesh. According to the basic structure doctrine, the Constitution of Bangladesh cannot be amended in a way that destroys the basic structure of the Constitution. A provision or principle connected to the constitutional identity of Bangladesh Constitution is part of its basic structure. Secularism was one of the primary motivators of the emergence of independence Bangladesh and the adoption of its autochthonous Constitution. The readers of the Bangladesh Constitution would generally agree to call it a secular constitution. Thus, secularism is undoubtedly connected with the constitutional identity of Bangladesh. The Supreme Court of Bangladesh had made similar remarks in Bangladesh v Advocate Asaduzzaman Siddiqui and Ors.

Through the Writ Petition No. 1434 of 1988, Swairachar O Sampradaiyikata Protirodh Committee, along with prominent public intellectuals of that time, challenged the constitutionality of the insertion of a state religion in the Constitution. The writ was finally heard in 2016. However, the hearing only lasted for 10/12 minutes, as noted by Justice Ashraful Kamal in the full text of the judgment. The writ was dismissed because the first petitioner did not have locus standi (the right to sue), as per the Court. The full text of the judgment became available to the public in 2024. Quite interestingly, the full text of the judgment discusses the substantive issues of the petition, although only the issue of locus standi was argued before the Court. In the full text of the judgment, the Court held that the inclusion of state religion does not affect the basic structure of the Constitution and does not violate the constitutionally guaranteed freedom of religion. It also held that the inclusion of state religion "does not offend the concept of secularism, as provided for in the Constitution."

Secularism has been given different meanings in different jurisdictions. Three meanings of secularism are worth mentioning. Firstly, it may mean that the state has a negative obligation not to endorse the practice of any religion (the idea associated with the Constitution of the United States of America). This version of secularism prohibits the state from conflating religion with public life. Secondly, secularism may mean that the state must regulate religion (the idea associated with the French Revolution). This version of secularism requires the state to prohibit the people from bringing religious practices and symbolisms into the public sphere (e.g., banning hijabs and abayas in public schools). The second version of secularism requires the state to govern and restrict, if necessary, religious practices through laws. Thirdly, secularism may mean that the state has a positive obligation to take measures to ensure that all religions can be practiced freely. This may be done by funding the establishment of places of worship, providing state-funded security in places of mass religious gatherings, and so on.

Justice Haider notes, "[t]he conferment of status of 'State Religion' on its own does not tantamount to an action on the part of State to grant political status in favour of Islam. Article 2A must be read as a whole and once read, it becomes obvious that the insertion of the concept of Islam being the state religion does not, on its own, affect the constitutional rights of others having different religious beliefs."

Justice Naima Haider, writing for the majority in Swairachar O Sampradaiyikata Protirodh Committee vs Bangladesh, observed that the third meaning of secularism is its true meaning in the context of the Bangladeshi Constitution. She noted that Article 2A "places an obligation upon the State to ensure equal status and equal right in the practice of the Hindu, Buddhist, Christian and other religion." (Emphasis added) Justice Haider also observed that "Article 12 as drafted… would impose an obligation upon the State to ensure [that] religious authorities of any particular religion cannot dominate over the State…" Thus, according to Justice Haider, although Article 2A recognises Islam as the state religion, it creates a positive obligation on the state to ensure the religious rights of the minorities.

While interpreting Article 2A, Justice Haider held that the constitutional recognition of Islam as the state religion does not create any legal obligation on the state. She noted that the recognition of a state religion may be of two types: 'recognition with establishment' and 'recognition without establishment'. A recognition is 'with establishment' where state religion may be enforced by placing religious laws in the legal hierarchy or giving special privileges to that religion's followers (such as becoming President or Monarch). Justice Haider wrote, "...recognition with establishment will occur when the State maintains a formal connection with any specific religion which is 'established' in the sense of being supported, funded by the State". According to Justice Haider, the recognition of state religion in Bangladesh is recognition without establishment. Thus, according to the Court, the recognition of state religion has no legal consequence. Justice Haider notes, "[t]he conferment of status of 'State Religion' on its own does not tantamount to an action on the part of State to grant political status in favour of Islam. Article 2A must be read as a whole and once read, it becomes obvious that the insertion of the concept of Islam being the state religion does not, on its own, affect the constitutional rights of others having different religious beliefs."

The above-discussed case begs a few questions. For instance, one might ask if all petitioners must have locus standi for a writ petition to be maintainable. One might also ask how a clearly justiciable constitutional provision can be without legal consequences. The Court also did not address how the recognition (even without establishment) of a religion as the state religion may affect the believers of other religions. Nevertheless, the judgment provides us with a new understanding of secularism in Bangladesh and the consequences (or lack thereof) of recognising Islam as the state religion.

The author teaches jurisprudence at North South University.