RIGHT TO FREEDOM OF RELIGION IN INDIA

The concept of secularism is implicit in the preamble of the Indian constitution which declared as to secure to all its citizens Liberty of thought expression belief faith and worship. The word secularism has been inserted by 42nd Constitutional amendment Act of 1976 what was implicit in the constitution was made explicit by this amendment. It means in the matters of religion the state is neutral. India is a secular state the chief aspects of the Indian secularism are:

• No state religion

• Peaceful coexistence of all religions

• Treatment of all religions equally by the state

• secularism has also been an inalienable part of the Indian culture as seen by a multitude of faiths that have coexisted in this country for centuries.

• All religious groups in India have same powers without any discrimination.

Case Law: Saint Xavier’s College versus State of Gujarat 1974

Explaining the secular character of the Indian Constitution the supreme court said ''there is no mysticism. In the secular character of the state secularism is neither anti God nor pro god it treats alike the devout, the antagonistic and the atheist. It eliminates God from the matters of the state it and insurance that no one shall be discriminated against on the grounds of religion''

➔ It is to be noted that the omission of the word secular as a necessary characteristic of Indian Constitution was not accidental but deliberate as it was apprehended that the concept connotes anti-religious overtones.

➔ In a secular state the state is only concerned with the relation between man and man and not with the relation between man and God it is left to the individual’s conscience.

Case Law: S.R Bommai versus Union of India 1994

The supreme court held that secularism is the basic feature of the constitution the state treats the equally all religions and religious denominations. Religion is a matter of individual faith and cannot be mixed with secular activities. Secular activities can be regulated by State by enacting a law. In this case it was stated that the provisions of the constitution brought out the dual concept of secularism and democracy, the principle of accommodation and tolerance as advocated by Gandhiji and other national leaders.

What is the difference between Indian and western model of secularism?

The word secularism indicates the separation of state from religion. This concept however has slightly different for connotations in Indian and Western polity. The Western concept of secularism connotes a complete separation between religion (church) and state(politics). This shows its origin to French revolution where the revolution sought to establish a secular government one which had no influence of Church or clergy. Both the institution that is Church and government will not interfere in each other domains.

This negative concept of secularism is inapplicable in the Indian situation where society is multi-religious. In India, the state and the religion are not in watertight compartments.

Indian constitution embodies the positive concept of secularism that is giving respect to all religions for protecting all religions equally and has not accepted the American doctrine of secularism that is the concept of erecting a ‘wall of separation between religion and state’.

Western concept of secularism embraces three-fold analysis viz. Liberty equality and neutrality.

• Liberty implies freedom of conscience.

• Equality implies equality among all citizens irrespective of religious beliefs.

• Neutrality implies a wall between Church and state.

However in India, Constitution does not erect the wall between religion and state; separate personal laws for various religious group still exist despite being a secular state; there is prevalence of reservation on the basis of caste and over the periods of time there is increasing governmental regulation of religious institutions.

Unlike the Western model where the state does not offer financial support to any religious institution. In India the state has chosen a positive engagement model. Many Hindu temples are directly governed by State. The state has set up boards for administration of large temples and also set up waqf board etc.

In India when talking about society and community the word pluralism is better suited than the word secularism. Western societies have largely been homogeneous with minimal religious minority groups until recently.

In India for centuries many religious groups have shared spaces in all respects and thrived together.

What are the rights available to people with regard to Freedom of Religion in India?

Article 25 (1) guarantees to every person the freedom of conscience and right to profess practice and propagate religion. The right guaranteed under article 25(1) like other constitutional rights is not absolute. This right is subject to public order, morality and health and to other provisions of the Part III of the constitution.

Also, under subclause (a) and (b) of clause (2) of Article 25 the state is empowered by law –

(a) to regulate or restrict any economic, financial, political or other secular activity which may be associated with religious practice;

(b)To promote for,

(i)Social welfare and reform and

(ii)To through open Hindu religious institutions of a public character to all classes and sections of Hindus

What is religion?

Religion is not defined in the Constitution of India and it is hardly susceptible to any rigid definition.

Case Law: Commissioner Hindu religious endowments versus Sri Lakshmindra Thirtha Swamiar 1954 (this case is popularly known as shirur mutt case)

The seven-judge constitutional bench of supreme Court speaking through Justice B.K Mukherjee observe that a religion has its basis in a system of beliefs or doctrines which are regarded by those who profess that religion as conducive to their spiritual well-being but it will not be correct to say that religion is nothing else but the doctrine of belief.

The court considered that religious practices may lay down ethical rules, dress codes, ritual ceremonies and modes of worship. The court clarified that in order to determine which religious practice are integral part of religion one has to look at the tenets of that particular religion. Religion is thus, essentially a matter of personal faith and belief.

Under Article 25 clause (1) a person has two-fold freedom;

• freedom of conscience and

• freedom to profess practice and propagate religion.

What is freedom of conscience?

• It refers to the inner freedom of an individual to mould is relation with God or creatures in whatever way he desires.

• Conscience refers to choice: that is in the subjective sense of what is right or wrong.

• It implies freedom to entertain any belief which one wishes.

• It talks within its fold to believe or not to believe in religion; to have faith in old beliefs; to change one’s beliefs; to convert to some other belief or other religion.

In line with international practices, Constitution of India has guaranteed freedom of conscious which involves freedom to convert to some other religion.

What is Right to profess, practice and propagate religion?

• Right to profess: It means declaration of one's religious beliefs and faith openly and freely. He has right to practice his belief by practical expression in any manner he likes.

• Right to practice: It means performance of religious worship rituals ceremonies and exhibition of believes and ideals by such acts as prescribed by religious order in which he believes.

• Right to propagate: It means transmission and dissemination of one's religious belief to others or exposition of the tenets of one's religion. It does not include a right to convert another person to one's own religion. There is no fundamental right to convert any person to one's own religion.

NOTE:

• It is to be noted that forcible conversions impinge on freedom of conscience guaranteed to all persons alike.

• These rights are available to all person citizens as well as non-citizens.

• Article 25 also contains two explanations:

Explanation I: wearing and carrying of kirpans is to be included in the profession of Sikh religion,

Explanation II: the Hindus in this context includes Sikh, Jain and Buddhists.

Case Law: Bijoe Emmanuel vs State of Kerala 1986 (popularly known as a National Anthem Case)

The facts of the case involve that three children belonging to Jehovo’s witnesses of the Christian community were expelled from school refusing to sing National anthem. The circular issued by Director of Public Instruction Kerala, has made it compulsory for students in school to sing the national anthem. The children in this case stood up respectfully when the national anthem being sung at school but they did not join in singing it. According to them it was against the tenets of the religious faith which do not permit them to join any rituals except if it is be in the prayer of jehovah their God. The Kerala High Court held that it was their fundamental duty under the constitution to sing the national anthem and upheld expulsion. On appeal the supreme court reversed the High Court decision and held-No person can be compelled to sing national anthem if he has genuine, conscientious religious objection. The court also held that they do not commit any offence under the Prevention of Insults of National Honour Act 1971 as they did not prevent the singing of national anthem nor caused disturbance in assembly.

Case Law: A.S Narayan versus State of Andhra Pradesh 1996

In this case chief priest of Balaji temple challenge validity of of AP Charitable and Hindu Religious Endowments Act which abolished hereditary rights of archaka (employees of the temple) and violated his Article 25 and 26. It was held by the court that the act is valid. Hereditary rights to appointment of priest is not an essential of religion or matter of religion or religious practice. State can regulate any activity whether it is economic, financial or secular. Appointment of archaka in the present case is a secular activity which can be regulated by law.

Case Law: Maulana Mufti Sayeed versus State of West Bengal 1999

The Calcutta High Court held that the restrictions imposed by the state on the use of microphones and loudspeakers at the time of azaan are not violative of Article 25. Azaan is certainly an essential and integral part. Traditionally and accordingly to the religious order azaan has to be given by imam or person in charge of mosque through their own voice and this is sanctioned under religious order.

Case Law: Church of God in India vs K.K.R.M.C Welfare Association 2000

The supreme Court has held that in the exercise of right to religious freedom under Article 25 and 26 no person can be allowed to create noise pollution or disturb the peace of others.

What are the restrictions on the freedom of religion?

1) Religious Liberty subjected to public order, morality and health: In the name of religion No act can be done against public order morality and health of public. Section 34 of the Police Act prohibits slaughter of cattle or indecent exposure one's person in public place. These acts cannot be justified on plea of practice of religious rites. In the name of religion untouchability and traffic in humanbeings example devdasi system cannot be tolerated. This freedom is also subject to the other provisions of this part that is Part III of the constitution. These rights are subject to reasonable restrictions under Article 19 clause (2). Right to propagate one's religion does not give right to anyone to forcibly convert any person to one's own religion. Forcible conversion of any person to one's own religion may disturb the public order and hence should be prohibited by law.

Case Law: Rev Stainislaus versus State of MP 1977

it was held by the supreme court that legislation prohibiting forcible conversion of one's own religion in the interest of public order can be passed and is valid.

(2) Regulation of economic, financial, political and secular activities associated with religious practices Article 25 (2) (a):

The freedom to practice extends only to those activities which are essence of religion. It does not cover secular activities which do not form a essence of religion. It is not always easy to say which activities fall under religious practice or which are secular commercial or political nature associated with religious practice.

Case Law: Mohammed Hanif Qureshi vs State of Bihar 1958

The petitioner claimed that the sacrifice of cows on Bakrid is an essential part of his religion and therefore State Law prohibiting slaughter of cows was violative of his right to practice religion. It was held by the supreme court that sacrifice of cow on Bakrid day was not an essential part of Mohammed’s religion and can be prohibited by Article 25 (2) (a) by the state.

(3) Social welfare and social reforms:

Under this clause 2(b) the state is empowered to make laws for social welfare and social reform. Under this clause, state can eradicate social practices and dogmas which stand in the path of the country's progress. This clause declares that where there is conflict between social welfare and reform and religious practice, religion must yield. Social evils cannot be practiced in name of religion.

What is freedom to manage religious affairs?

Article 26 is subject to public order, morality and health. Every religious denomination or any section shall have the right-

(a) to establish and maintain institution for religious and charitable purposes;

(b) to manage its own affairs in matters of religion;

(c) to own and acquire movable and immovable property;

(d) to administer such property in accordance with law;

It is to be noted that Article 25 guarantees right of individuals while Article 26 guarantees rights of religious denominations or their sections.

Article 26 protects collective freedom of religion.

What is religious denomination?

According to webster's dictionary the word denomination means collection of individuals class together under the same name generally a religious sect or body having a common faith and organisation and designated by distinctive value. The word religious denomination in Article 26 must take their colour from the word religion and it must satisfy three conditions-

(i) It should be a collection of individuals who have a system of beliefs which they regard as conducive to his spiritual well-being;

(ii) It should have a common organisation; and

(iii) It shall be designated by a distinctive name.

In larger sense for example Hinduism is a denomination in contradistinction to Christians and Muslims. In limited sense various philosophies governing Hindu society- Advaits, Dwaitas, Saivities etc.

Case Law: Brahmachari Siddheshwar Sahai vs State of West Bengal 1995 (popularly known as a Ramkrishna mission case)

It was held that the followers of Ramakrishna are collection of individuals-

(i) Adhere to system of believes conducive to their spiritual well being

(ii) Have organised themselves collectively and

(iii) Have definite name Ramkrishna Mission or Math. Therefore, it satisfies the three conditions.

What is Article 27 of the Indian Constitution?

Article 27 deals with freedom from taxes for promotion or maintenance of any particular religion or religious denomination.

Article 27 provides that no person shall be compelled to pay any tax for promotion or maintenance of any particular religion for religious denomination. It emphasizes that the secular character of the state public money collected by way of tax cannot be spent by State for promotion of any particular religion. Article 27 prohibits state from favouring, patronising and supporting one religion over the other. This means taxes can be used for promotion or maintenance of all religions.

Article 27 prohibits only levy of taxes and not fee?

This is because the purpose of fee is to control the secular administration of religious institutions and not to promote or maintain religion. Fee can be levied on pilgrims to provide them some special service or safety measures. A fee can be levied on religious endowments for meeting the regulation expenditure.

What is Freedom from attending religious instruction under Article 28 of Indian Constitution?

Article 28 provides that no religious instruction shall be provided in any educational institution wholly maintained out of the state funds but this provision shall not apply to any educational institution administered by State or established under any endowments or trust requiring imparting of religious instruction in such institution. No person attending any educational institution recognised by state or receiving it out of the state funds shall be required to attend any religious instruction or worship in that institution without his consent. In case of minor, consent of guardian is needed.

Article 28 states four types of educational institutions-

(i) Institution wholly maintained by State- religious instruction completely prohibited;

(ii) Institution administered by State but established under any endowment or trust-religious instruction is permitted;

(iii) Institution recognised by State-permitted on a voluntary basis;

(iv) Institution receiving aid out of the state funds-permitted on a voluntary basis.

Conclusion:

Thus, the Indian Constitution provides adequate rights to freedom of religion to all classes of people which is explicit in the various provisions of the constitution itself. The Indian Secularism is based and developed on the notion of ‘sarva dharma sambhava’ meaning let all religion prosper. This is the guiding principle of Mahatma Gandhiji and that’s why he is referred to as the spiritual father of Indian secularism.