CHAPTER 1 INTRODUCTION Religion has been a powerful social factor in all phases of human history and in all parts of the human world.

Transcription

1 CHAPTER 1 INTRODUCTION Religion has been a powerful social factor in all phases of human history and in all parts of the human world. It remains so, every where on the globe, also in the present third millennium. Anti-religion ideologies periodically emerging in certain parts of the world having miserably failed, religiosity remains the order of the day. A global survey recently conducted by TNS, a leading group of information providers, reports that an overwhelming majority of over six billion inhabitants of the Earth today are faith-orientated and religiousminded. As per this report, Africa with 91% of its people being religiousminded is on the top, followed by Latin America and the Middle East. Country wise, the two top position in respect of religiosity are occupied by the Philippines and India - 90% and 87% respectively of their citizen having a religious way of life. Thus, the level of religious orientation among all people of the globe remains highest in the Third world, where almost all countries qualify for what are known in the western terminology as the transitional or developing societies. In these regions of the human abode people still attach as much importance to religious laws-often more-as to the temporal laws of the place where they live. All attempts made to obliterate religion from the human society have so far failed. After the fall of the soviet union which had an antireligion regime the erstwhile communist countries of western Europe have restored the social order in which reasonable religious freedom is not denied to individuals and groups. Among such countries are also the six Central Asian state dominated by the Muslims and the Muslimmajority state of Albania in Europe - where a former head of the state had once boasted of being the only officially atheist country and claimed that we have conducted God out of our borders thanking him for his provisional services. What is religion? The constitution uses but does not define the expression religion and religious denomination and there fore the court have found it

2 necessary to explain the meaning and connotation of these words the supreme court has observed that : - In the background of the provision of the constitution and the light sled 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 word and deed such as worship or ritual. - Spmittal v/s Unian of India Air 1983 sci. - * 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 trcite descrivbed as an essential compromise where by religion is rolegated entirelyto the private sphere and has no place in public life what so ever. Despite the cloar incorporation of all the basic principles of secularism into various provisions of the constitution when originally enacted, its preamble did not then include the world 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 nations of 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 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 state and concludea that three are

3 provision in the Indian constitution which are inconsistent with the theary that there should be a wall of separation between church and state narayanan namboodripad v state of madras Varying Models of Religion - State Relations Going by the present-day constitutional documents of various countries, one finds three different models of religion-state relations operating in the various countries of the two continents, viz. Model I: In which a particular religious faith is either recognized as the state religion or otherwise given a prime position by the constitution and the basic laws; Model II: In which there is no official religion and the state has no constitutionally assigned or legally sanctioned role to play in religious affairs; Model III: In which there is no officially adopted state religion but the state plays a legally permissible role in the affairs of religion First Model Buddhism as Privileged Religion Adopting first of these three models of religion-state relations; Bhutan and Sri Lanka confer a special status on Buddhism. In Bhutan the Preamble of the Constitution of 2005 refers to the country as a land Blessed with the luminous benedictions of the Triple Gem and the protection of our guardian deities the Triple Gem meaning the Buddha, Dharma and Sangha of the Buddhist religious tradition. The constitution further declares Bhutan to be a country of Chhoe - sid and Buddhism as its spiritual heritage, empowering the king to constitute a supreme to supervise Buddhist religious affairs Article 3. The national anthem of Bhutan incorporated in the Constitution in Schedule II opens with the words As the Doctrine of the Lord Buddha flourishes, may the Sun of peace and happiness shine on the people In Sri Lanka the constitution of 1997 proclaims that Sri Lanka shall give to Buddhism the foremost place and accordingly it shall be the duty of the State to protect and foster the Buddha sasana (Buddhist social

4 order). It also provides for the establishment of a Supreme religious council called the Maha Sangha Article 7. Christianity as Privileged Religion In the United Kingdom there is an official establishment for the Anglican Church and the head of the state the crown must be a member of the Anglican Church. The UK law on blasphemy is confined in its application to the Christian faith. Stroud s judicial dictionary describes Christian religion for the purpose of exposing its doctrines to contempt and ridicule. The Halbury s law of England says that blasphemy is an indictable offence at common law consisting in the publication of words attacking the Christian religion or the Bible (vol. II, 1976). The blasphemy law in this sense and with this limited scope has been discussed in a number of judicial decisions see, e. g, Bowman v Secular society (1917) AC 406. In recent time there has been a demand to mention Christianity as the major faith of Europe under a common constitutional document now under consideration of the European council. In the US the officially adopted pledge of allegiance as modified in 1954 reads as I pledge allegiance to the flag of the United States of America and to the republic for which it stands, one nation under God, indivisible, with liberty and justice for all. Many Americans think that God referred to in the pledge means God as understood in the Christian religion, though there is no authoritative pronouncement to this effect. Commenting on this trend, the present author has observed. Since the US constitution incorporates a non-establishment clause on religion seen as erecting a wall of separation between state and religion in general, the addition of words under God in the pledge has been off and on frowned upon by ultra-secularists, and sometimes to serve political or personal interests. That apart, how can one read in between the words under God an exclusive reference to the Christian concept of God? Do these words not obviously peak of the universally accepted supreme God? And if the addition of under God is seen as repugnant to the US Constitutions, would not the alleged repugnancy invalidate also the invocation to the only true God of Christians? Logically speaking, it is the attempt to limit the word God in the pledge

5 to the beliefs of a particular religion which is clearly unconstitutional The Indian express, 26 July In the African state of Equatorial Guinea there is official preference for the Catholic Church and the Local Reform Church Law on Religion Hinduism as Privileged Religion In Nepal successive constitutions including that of 1990 described the country as a Hindu Constitutional Monarchical Kingdom and the King as an adherent of Aryan Culture and the Hindu Religion articles 4 (1). Recent trends in Nepal favour a secular state and the country is now in a stage of transition. Change of religion is not possible in Nepal, as conversion from Hinduism to any other religious faith is prohibited by the constitution. In the other Hindu-dominated states including India and Mauritius, Hinduism is not the privileged faith in any respect. Islam as Privileged Religion In as many as 25 countries of the contemporary world the constitutions declare Islam to be their state religion. Afghanistan, Comoros, Iran, Mauritania, Pakistan and Saudi Arabia have the word Islamic either in the name of the country or in its description in the constitution. The rest of the countries in this list are Algeria, Bahrain, Bangladesh, Brunei, Egypt, Iraq, Jordan, Kuwait, Libya, Malaysia, Maldives, Morocco, Oman, Pakistan, Qatar, Somalia, Tunisia, UAE and Yemen- see, e. g., Egyptian Constitution 1980, article 2; Kuwaiti constitution 1962, article 2; Saudi Arabian Basic Law 1992, articles 1 & 23. Among the SAARC nations the Afghanistan constitution of 2004, besides declaring the country to be an Islamic republic and Islam to be the state religion, says that no law can be contrary to the beliefs and provisions of the sacred religion of Islam Articles 3 & 7. The provision seems to have been borrowed from the Pakistan constitution of 1973 which also, besides describing the country as an Islamic republic and Islam as the state religion, pronounces that all

6 existing laws shall be brought in conformity with the injunctions of Islam articles 2, 27 & 331. The Bangladesh constitution of 1972, as amended, proclaims that state religion of the republic is Islam but other religions may be practiced in peace and harmony in the republic article 2-A. Judaism as Privileged Religion Amidst the Muslim-dominated nations of the Middle East there is the Jewish state of Israel where Judaism stands in the position of state religion. The 1948 declaration of independence and 1992 Basic law on human dignity and liberty describe Israel as a Jewish state. Twin Faiths as Preferred Religion A unique nation among all the Afro-Asian states is Lebanon where constitutional conventions have established a bi-confessional governmental system providing for a sharing of executive and legislative positions in the government between the two major communities of the country Muslims and Christians. This arrangement envisaging for a christen president and a Muslims prime minister and apportioning seats in parliament to various sects the two major communities has been in force since Rights of Religious Minorities Most of the countries which have a constitutionally proclaimed official or otherwise privileged religion do, at the same time, guarantee to all their citizens belonging to the other faith traditions Second Model China Eminently representing the second model of religion-state relations mentioned above in which there is no religion of the state and the two have no legally sanctioned role to play in each other s affairs there is the Republic no China. By its Constitution China is a socialist state whose citizens enjoy religious belief but where:

7 Philippines Going a step further, the constitution of the Christian-dominated Philippines provides a non-establishment clause on religion on the US pattern: No law shall be made respecting an establishment of religion or prohibiting the free exercise thereof. The free exercise and enjoyment of shall for ever be allowed. No religious test shall be required for the exercise of civil or political rights Philippines constitution 1977, Article 5. Indonesia, the largest Muslim-dominated country of the world, also has no state religion and no role for religion in state affairs though its constitution refers to the attainment of independence by the grace of God Almighty and declares that the State shall be based upon the belief in one and only God, while assuring all persons the freedom of worship, each according to his/her own religion or belief - Indonesian constitution 1945, Preamble & Article 29. Freedom of religion and non-discrimination on religious grounds is assured by constitutional documents also in several other countries of Asia and Africa falling in this category of religion-state relations - see, e. g. Japanese constitution 1946, Articles 14 & 20; Nigerian constitution 1972, Article 35; South African Constitution 1994, Article Third model India The most conspicuous example of the third model of religion-state relations in which there is no official or privileged religion but the state has a role to play in religious affairs of all communities is the republic of India. The laws of India relating to religion and religious communities are the subject matter of the present book and the details of all such laws will be found in its various chapters. Singapore In Singapore the constitution of 1961 does not proclaim any religion to be the state religion but establishes a presidential council for

8 minorities and gives it wide-ranging powers for the protection of their religious rights Articles Legislation on Role of Religion In recent years several countries have enacted special laws regulating religion or its various aspects in accordance with the general provision of their respective constitutions relating to the status of religion and citizens religious rights. Among such laws are the following: i. Ghana PNDC Law 221 of 1989 ii. Pakistan Shariat enforcement act 1991 iii. Azerbaijan Law on freedom of faith 1992 iv. Guinea Law on Religion 1992 v. Kazakhstan Law of Religious Freedom 2001 vi. Turkmenistan Law on Religion 2003 vii. Chinese Regulations on Religious Affairs 2004 viii. Vietnam Ordinance on Religion and Belief 2004 ix. Uzbekistan Law on Freedom of Worship and Religious Organizations Religion- State-Law scenario in India Historical Perspective It is in this world spectacle of the spiritual heritage of mankind and the Varying models of religion-state relations that we have to examine and appreciate the religion-state relations in India. Religio-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. India s great religious figures Rama and Krishna, Buddha and Mahavira were all very well-known to the human world when the two global religions of today, Christianity and Islam, appeared on the world scene one after the other. Neither of them denied India s spirituality-both treated India as their own land and India too hailed them with open arms. Two thousand and fifteen hundreds years, respectively, of continued existence in India have made Christianity and Isla part and parcel of the Indian religio-cultural traditions.

9 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 particular religion Hindu, Buddhist, Muslim or Sikh they did not impose their religion on others and allowed the followers of all religions to freely profess and practice their own respective faiths. There might have been some aberrations few and far between, but the generally this tradition always prevailed. This age-old tradition was inherited by the country from its past at the time of the advent of independence and of enforcement of a constitution over two years later. India is the home state of the largest number of Hindus, and of the second largest number of Muslims, in the entire world. Being home also to millions of Buddhists and Christians, this country indeed qualifies to be called the only abode 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, and Jew and Bahai faiths. In the pluralistic and multi-religions society of India religious tolerance and religious values have always had, and continue to have, a strong influence. As stated above, in all other south Asian countries surrounding India one or another religion has the official or otherwise privileged status Buddhism in Bhutan and Sri Lanka, Hinduism in Nepal and Islam in Afghanistan, Bangladesh, Maldives and Pakistan, in this group of nations India stands out as the only secular state having no state religion and no single officially patronized religion. Religion-state relations in this country are in fact unique in every sense of the term. Unlike those other SAARC nations where by law or convention the head of the state must belong to a particular religion, in India the position can be occupied by any citizen irrespective of caste and creed. Despite the over 80% predominance of one particular religion here, in 57 years of the Post-Constitution era the country has had four presidents, there Vice- Presidents, four chief justices, and a prime minister, belonging to minority religions. At the state level communities-not only where those communities numerically dominate but also elsewhere. And all this is indeed a glorious record.

10 When a head of the state or head of government dies in state his or her last rites are performed under the management of the government with full state honours but invariably in accordance with the rites of the religion of the deceased in each case. On all such occasions the government and the officially controlled media also arrange and broadcast all-religion prayers Religio-Legal Pluralism Religious pluralism as the quintessence of the society in India had been so emphasized in a 1974 decision of the Supreme Court of India: India is the most populous country of the world. The people inhabiting this vast land profess different religions and speak different languages. It Is a mosaic of different religions, languages and cultures. Each of them has made a mark on Indian polity and India today represents a synthesis of them all. Despite the diversity of religion and language, there runs through the fabric of the nation the golden thread of a basic innate unity. - St Xavier s college v state of Gujarat air 1974 SC 1389 This judicial description of India as a mosaic representing a synthesis of different religions and cultures only put a seal of affirmation on what indeed has always been the ground reality in this country. The contours of India s religio-cultural pluralism and its accommodation by the constitution and the law of the country are best summarized in a passage found in another Supreme Court judgment: In the midst of unity in diversity among the Indians having different religious and cultural hues, for their assimilation as integrated citizens, all endowed with human rights, dignity of person, equality of status, liberty of faith and worship with fraternity, the religious spirituality fosters them as a strong unifying social entity AS Narayana v State of Andhra Pradesh AIR 1996 SC There was a time in Indian history when religion provided, regulated, and fully controlled the legal and judicial systems of the country. Today the situation is the other way round. In the secular India of our times it is the land that determines the role of religion in the society, and it is the judiciary that determines what the laws on this aspect of life say mean and require.the law in the secular India of our times

11 respects religious beliefs and practices, ensures religious liberty but keeps it within internationally recognized limits, prohibits abuse and misuse of religion and religious sensitivities, and provides laws and statutory mechanisms for controlling and managing specific religious and religionrelated affairs including family relations and succession, religious institutions and endowments, shrines and pilgrimages, and the like.on the whole, modern India remains a deeply religious country and spirituality continues to be an integral part of the social order. India s secular Constitution and constitutionally sanctioned legislation are, therefore, sensitive enough to and adequately reconciled with this ground reality. The social paradigms and legal parameters of this sensitivity and reconciliation make India s religion-state-law relations quite unique and a study of these relations indeed fascinating. CHAPTER II RELIGION UNDER INTERNATIONAL HUMAN REGHTS LAW 2.1. Ensuring Religious Equality & Freedom Universal Declaration of Human Rights 1948 India attained independence on 15 th August 1947 and adopted a Constitution which came in force on 26 th January In between these two historic occasions, India joined hands with the other civilized nations of the world for the proclamation of the Universal Declaration of Human Rights The Constitution which we the people of India enacted, adopted and gave to ourselves nearly two and a half years after attaining independence eminently reflected the spirit of this Declaration. The basic charter of human rights proclaimed on 10 th December 1948 declared at the outset that All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood Article 1. Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status Article 2.