RIGHT TO FREEDOM OF RELIGION

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1 RIGHT TO FREEDOM OF RELIGION *DHRUV B. GOSWAMI Religion Religion? What is religion? Does any law define what it is? Apparently, even a priest would find it hard to define what religion is. Religion is just another name given to the different forms in which God is worshipped. In other words, like a dictionary would define it, it is a set of beliefs, a cultural system of behaviours and practices, mythologies, world views, sacred texts, holy places, ethics, and societal organisation that link humanity to what an anthropologist has called an order of existence. The Constitution uses but does not define the term/expression religion and religious denomination and therefore the Court have found it necessary to explain the meaning and connotation of their word s, the Supreme Court has observed that; In the background of the provisions of the constitution and the light shed by judicial precedent we may say that religion is a matter of faith. It is a matter of belief and doctrine. It concerns the conscience, i.e., the spirit of man. It must be capable of expression in world and dead, such as worship or ritual. 1 Religion Under The Indian Constitution The Constitution of India contains in its Chapter on Fundamental Rights several provisions that emphasize complete legal equality of its citizens irrespective of their religion and creed and prohibit and kind of religion-based discrimination between them. Among these provisions are as follows; 1. The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India The State shall not discriminate against any citizen on grounds only of religion, race, cast, sex, place of birth, or any of them, either in general or in the matter of access to or use of general and public place and conveniences. 3 1 S.P. Mittal V. Union of India, AIR 1983 SC. 2 Article 14 of the Constitution of India,

2 3. There shall be equality of opportunity for all the citizens in the matter of employment or appointments under the State and no citizens shall, on grounds 4. only of religion be ineligible for, or discriminated against, in respect of any employment or office under the State The traditional religious concept of untouchability stands abolished and its practice in any form is strictly forbidden If the State imposes compulsory service on citizens for public purposes no discrimination shall be made in this regard on the ground of religion only. 6 To meet the demands of Article 17 noted above, soon after the commencement of the Constitution Parliament had enacted an Untouchability (Offences) Act, which was later amended and renamed as the Protection of Civil Right Act, The Act prescribes penalties for the practice of untouchability in various specified forms. A second law enacted in this respect is the Scheduled Cast and Scheduled Tribe (Prevention of Atrocities) Act, Freedom Individual's Rights Religious freedom as an individual's right is guaranteed by the Constitution to 'all persons' within the following parameters: 1. All persons are equally entitled to freedom of conscience and the right freely to profess, practise and propagate religion 7 2. There shall be freedom as to payment of taxes for promotion of any particular religion by virtue of which no person shall be compelled to pay any taxes the proceeds of which are specifically appropriated in payment of expenses for the promotion or maintenance of any particular religious denomination 8 3 Article 15 of the Constitution of India, Article 16 of the Constitution of India, Article 17 of the Constitution of India, Article 23(2) of the Constitution of India, Article 25(1). of the Constitution of India, Article 27. of the Constitution of India,

3 3. No religious instruction is to be provided in the schools wholly maintained by State funding; and those attending any State-recognized or State-aided school cannot be required to take part in any religious instruction or services without their (or if they are minor their guardian's) consent 9 Group Rights Freedom of religion is guaranteed by the Constitution of India as a group right in the following ways: 1. Every religious denomination or any section thereof has the right to manage its religious affairs; establish and maintain institutions for religious and charitable purposes; and own, acquire and administer properties of all kinds Any section of the citizens having a distinct language, script or culture of its own shall have the right to conserve the same Religious and linguistic minorities are free to establish and administer educational institutions of their choice, which shall not be discriminated against by the State in the matter of giving aid or compensation in the event of acquisition - 12 Limits of Religions Freedom The Fundamental Right to religious freedom cannot be enjoyed in an absolutely unrestricted way. There are limitations within which these rights can be exercised, as also lawful restrictions which can be imposed by the State on such rights, as detailed below: 1. The right to freedom of religion is, in general, subject to public order, morality, health and the other provisions of the Constitution Despite the right to religious freedom, the State can pass laws providing for social welfare and reform and also to regulate or restrict any secular activity - economic, financial, and political, etc. - even though it may be traditionally associated with religion Despite the minorities' right to establish and maintain educational institutions, no citizen can be kept away from any State-aided or State- maintained educational institution only on religious grounds Article 28. of the Constitution of India, Article 26. of the Constitution of India, Article 29. of the Constitution of India, Article 30. of the Constitution of India, Article 25 of the Constitution of India, Article 25(2). of the Constitution of India, Article 29(2). of the Constitution of India,

4 Fundamental Duties The Chapter on Fundamental Duties, inserted into the Constitution by the Constitution (Forty-Second Amendment) Act, 1976, includes the following among the basic national obligations of all the citizens: 1. To promote harmony and the spirit of common brotherhood amongst all the people of India transcending religious, linguistic and regional or sectional diversities To value and preserve the rich heritage of our composite culture. 17 Secularism Constitutionally, India is a secular country and has no State religion. However, it has developed over the years its own unique concept of secularism that is fundamentally different from the parallel American concept of secularism requiring complete separation of church and state, as also from the French ideal of lacite - described as 'an essential compromise whereby religion is relegated entirely to the private sphere and has no place in public life whatsoever'. Despite the clear incorporation of all the basic principles of secularism into various provisions of the Constitution when originally enacted, its preamble did not then include the word 'secular' in the short description of the country which it called a 'Sovereign Democratic Republic. This was not an inadvertent omission but a well-calculated decision meant to avoid any misgiving that India was to adopt any of the western notions of a secular state. Twenty-five years later - by which time India's own concept of secularism had been fully established through judicial decisions and state practice - the preamble to the Constitution was amended by the Constitution (Forty-second Amendment) Act 1976 to include the word 'secular' along with 'socialist', to declare India to be a 'Sovereign Socialist Secular Democratic Republic'. As will be seen below, there is a blend of secular and religious elements within the text of the Constitution and it is this admixture that defines and determines the contours of secularism to be acted upon by the State and the religious freedom to be exercised by individuals and communities in modern India. We are a secular nation, but neither in law nor in practice there exists in this country any 'wall of separation' between religion and the State - the two can, and often do, interact and intervene in each other's affairs within the legally prescribed and judicially settled parameters. Indian secularism does not require a total banishment of religion from the societal or even State affairs. The only demand of secularism, as mandated by the 16 Article 51A (e) of the Constitution of India, Article 51A (f) of the Constitution of India,

5 Indian Constitution, is that the State must treat nil religious creeds and their respective adherents absolutely equally and without any discrimination in all matters under its direct or indirect control. In an early case after the commencement of the Constitution a court had examined the US principle of the 'wall of separation' between religion and State and Concluded that there are provisions in the Indian Constitution which are inconsistent with the theory that there should be a wall of separation between Church and State' 18 In the case various judges of the Supreme Court of India individually explained the significance and place of secularism under the Constitution in very (i) The Constitution has chosen secularism as its vehicle to (ii) Notwithstanding the fact that the words 'Socialist' and 'Secular' (iii) Constitutional provisions prohibit the establishment of a (iv) Secularism is more than a passive attitude of religious (v) When the State allows citizens to practice and profess their establish an egalitarian social order. Secularism is part of the fundamental law and basic structure of the Indian political system. were added in the Preamble of the Constitution, the concept of secularism was very much embedded in our constitutional philosophy from the very beginning. By this amendment what was implicit was made explicit. theocratic State and prevent the State from identifying itself with or otherwise favoring any particular religion tolerance. It is a positive concept of equal treatment of all religions. religion, it does not either explicitly or implicitly allow them to introduce religion into non-religious and secular activities of the State. The freedom and tolerance of religion is only to the extent of permitting pursuit of spiritual life which is different from the secular life. The latter falls in the exclusive domain of the affairs of the State. 19 Constitution The constitution and other laws and policies protect religious freedom and, in practice, the government generally respected religious freedom; however, some state-level laws and 18 Narayanan Namboodripad v State of Madras AIR 1955 Mad SR Bommai v Union of India (1994) 3 SCC 1 74

6 policies restricted this freedom. 20 is a secular republic, with all religions offered equality under the law. There was no change in the status of respect for religious freedom by the government during the reporting period. Some state governments enforced existing "anticonversion" laws, and some local police and enforcement agencies in certain instances were not swift to counter communal attacks, including attacks against religious minorities. The country is the birthplace of several religions, Hinduism, Buddhism, Jainism, and Sikhism, and home for thousands of years to Jewish, Zoroastrian, Muslim, and Christian communities. The vast majority of citizens of all religious groups lived in peaceful coexistence and were conscious of religious freedom and minority rights; however, at times, violence between religious groups and organized communal attacks against religious minorities occurred during the reporting period. The Ministry of Home Affairs published in its Annual Report that 826 communal incidents occurred in 2009, in which 125 persons died, compared to 943 incidents in 2008 in which 167 persons died. State governments also reported communal incidents. The country's democratic system, open society, independent legal institutions, vibrant civil society, and free press actively provided mechanisms to address violations of religious freedom when they occurred. The U.S. government discusses religious freedom with the government as part of its overall policy to promote human rights. During meetings with senior government officials, as well as state and local officials, and religious community leaders, senior U.S. officials discussed religious freedom issues including reports of harassment of minority groups and missionaries, the 2002 communal riots in Gujarat, and the 2008 violence against Christians in Orissa and Karnataka The Constitution of India includes several provisions which directly relate the Hindu Religion, Hindu schools and religious practices, or Hindu religious places. these provisions have been briefly referred here, and are explained below in depth. Abolition of Untouchability A provision in the Fundamental Rights Chapter of the Constitution declares that untouchability, which has been practiced in the community as part of religion and custom, stands abolished. It adds that the practice of the concept in any form is prohibited. To implement this provision of the Constitution Parliament has enacted two laws one after the other the Protection of Civil Right Act, 1955 originally known as Untouchability (Offences) Act, and the Scheduled Cast and schedule Tribe (Prevention of Atrocities) Act, Conviction under the provision of later Act for intimidating the Harijans (members of lower castes) was upheld in a case by the Supreme Court which ruled that mens rea was not necessary to prove commission of an offence under the law Stark, Rodney and Roger Finke. "Acts of Faith: Explaining the Human Side of Religion." University of California Press, Sachar Committee Report Report of the Special Reporter on Freedom of Religion or Belief, A/HRC/10/8/Add.3 dated26 January State of Karnataka v. Appa Balu Ingale, A.I.R SC

7 It has been held in a case that these laws cover only caste-based untouchability and not the religious concept of boycott for objectionable conduct. 24 In another case validity of building a separate colony by the government for the untouchability was upheld. 25 Temple Entry Restriction The Hindu religious tradition restricts entry to temple on the basis of caste. Certain well known temples have been wholly out of bound for the Shudras. Article 25(2) of the Constitution empowered the State to abolish all cast-based restrictions on entering the worship in public Hindu temples. A number of local laws have since been enacted in pursuance of this provision e.g., Bombay Hindu Place of Public Worship (Entry Authorization) Act, Laws enacted for the same purpose had been enacted in some states even before the commencement of the Constitution. 26 The validity of some of these laws was challenged but upheld by the courts in various cases.47 It has been held that under these laws a non-hindu cannot seek entry into a Hindu temple for pleasure and social evaluation 27 Prohibition of Cow Slaughter In an obvious recognition of the Hindu reverence for the holy cow, a Directive Principle of State Policy in Part IV of the Constitution requires the State to take steps for the prohibition of slaughter of cows and calves.49 Laws have been enacted in various States to implement this Directive Principles, while some similar laws were already in force before Among these are the Bombay Animal Prevention Act, 1948, West Bengal Animal Slaughter Control Act, 1950, Bombay Animal Preservation (Gujarat Extension and Amendment) Act, 1961 and Bombay Animal Preservation (Gujarat Amendment) Act, Some of these laws, or their particular provisions, were challenged for their validity but in most cases were upheld by the Courts In the Muslim-dominated State of Jammu and Kashmir cow slaughter is an offence under the local Ranbir Penal Code Devarajiah v. Padmanna, A.I.R Pavadai v. State of Madras, A.I.R Mad Devaru v. State of Mysore, A.I.R SC 245, VSR Liyar v. Narayana Pillai, A.I.R Mad Kalyandas v. State, A.I.R Mad Article 48 of the Constitution of India, Mohd. Haneef Qureshi v. State of Bihar AIR 1958 SC 731; Abdul Hakeem Qureshi v. State of Bihar AIR 1961 SC 448; Haji Usman Bhai v. State of Gujarat AIR 1986 SC 121; State of West Bengal v. Ashutosh Lahiri AIR 1995 SC 464; State of Gujarat v. Mirzapur Moti Kureshi Kassab Jammat (2005) 8 SCC

8 Devadasi System Under the devadasi system that has prevailed in certain parts of India young girls are dedicated to deities and spend their whole life in the service of the temples. A virtuous religious practice in its origin, it gradually became a social evil and then reformers in the country made endeavours for its abolition. The early laws enacted for this purpose were the Bombay Devadasi Protection Act, 1934 and the Madras Devadasi (Prevention of Dedication) Act, In 1982 the Karnataka legislation repealed these laws in their application to the former Bombay and Madras regions now filling in Karnataka and replaced them with a new law called Karnataka Devadasi ( Prohibition of Dedication) Act, 1982 passed, as mentioned in its Statement of Objects and Reasons to minimize this social evil and to rehabilitate the victims. Dedication of girls as devadasi is a punishable offence under this Act and higher punishment is provided for a person abetting the offence if he happens to be the parent, guardian or relative of girl so dedicated. Andhra Pradesh State Legislature enacted a similar law in In Maharashtra the new Devadasi System (Abolition) Bill, 2005 is awaiting Enactment. Under this kind of Constitutional establishment, the entire legal and constitutional system is based on the inherently dual commitment to religious fundamentals and constitutional principles, or a bi-polar system of constitutional and sacred texts and authority. The ideal version of this model can be summarized by outlining four main cumulative elements: 1. The presence of the single religion or religious denomination that is formally endorsed by the state, akin to a State Religion. 2. The constitutional enshrining of the religion, its texts, directives and interpretations as or the main source of the legislation and judicial interpretation of the laws- essentially, laws may not infringe upon the injunctions of the state endorsed religion. 3. A nexus of the religious bodies and tribunals that often not only carry tremendous symbolic weight but are also granted official jurisdictional status on either regional or substantive bases and which operate in lieu of, or in an uneasy tandem with, a civil court system. 4. Adherence to some or all core elements of modern constitutionalism, including the formal distinction between the political and religious authority, qualified protection of religious freedoms for the minorities, and the existence of some form of the active judicial review.most importantly, their jurisdiction autonomy notwithstanding, some key aspects of the religious tribunals jurisprudence are subject of constitutional constitutional review by apex courts often state created. Cooley, T.M; A Treatise on the Constitutional Limitation; 1ST Indian Reprint 2005, pp

9 Conclusion At the end it can be concluded that, Religion-cultural pluralism is India s past, present and future; indeed her heart and soul. No religion is foreign to India; nor is India a foreign land for any religion. Throughout its history India has observed the principle of equality of all religions and of their followers. Even when hereditary rulers belonged to a dynasty professing a perticular religion Hinus, Budhists, Muslims or Sikh they did not impose their religion on others and allow the followers of all religion to freely profess and practice their own respective faiths. Religion is the interdisciplinary study of relationships between Law, especially Public Law, and Religion. Vogel reports that in the 1980s a new Law and Religion approach emerged that progressively built its own contribution to religious studies. Over a dozen scholarly organizations and committees were formed by 1983, and a scholarly quarterly, the Journal of Law and Religion first published that year and the Ecclesiastical Law Journal opened in The Rutgers Journal of Law and Religion was founded in The Oxford Journal of Law and Religion was founded in England in India is a home state of the largest number of Hindus, and the second largest numbers of Muslims, in the entire world. Being home also to the millions of Budhists and Christians, this country indeed qualifies to be called th only adobe of all the four world religions together. Among the citizens of India there are sizable numbers of followers also of several other religions including the Jain, Sikh, Jew and Bahai faiths. In the pluralistic and multireligious society in India religious tolerance and religious values have always had, and continue to have, a strong influence. 78

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