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LIMITS TO FREEDOM OF RELIGIOUS EXPRESSION AND STATE NEUTRALITY
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LIMITS TO FREEDOM OF RELIGIOUS
EXPRESSION AND STATE NEUTRALITY
AUTHORED BY - ASHISH KUMAR PANDEY
A3256120105
AMITY LAW SCHOOL, NOIDA UTTER PRADESH
INTRODUCTION
The
diversity of these religious groups and beliefs in India is unparalleled
anyplace else in the world. India has
always been a country with many diverse religions and sects. For many years,
India has kept its pledge to welcome
and permit all the many religions to flourish in her land. It has created its
own strategy for dealing with
multiculturalism in India, a problem the west is currently grappling with. For millennia, it has dealt with situations that have arisen
from the presence
of such diversity, both cathartic and amicable.Almost 53 percent of Indians believe that variety is a strength
that strengthens the country rather than being a liability.India has
opted for pluralism over exclusivism despite the fact that many different religions may not be aware of
each other's beliefs and may not share a common ground.The Indian Constitution strengthens this worldview and permits each group to peacefully follow
their chosen religion without interference.Despite the
fact that many of its neighbours directly or indirectly support a particular religion, India is the only
secular country in South Asia because of its commitment to diversity
and constitutional ideals.
Section
III (Articles 25–28) of the Indian Constitution lists the freedom of religion
as one of the fundamental rights. A
secular type of government is also emphasised in the Preamble of the Indian Constitution. In 1918, Pt. Madan Mohan
Malviya presided over a special Congress meeting in Delhi where he brought up the subject of
fundamental or basic rights. One of those fundamental rights was the freedom to practise one's religion.
Moreover, the 1928 Nehru Report suggested basic rights. These changes culminated in Articles 25–30
later on. The rights of minorities are emphasised in Articles 29 and 30. (religion
or language). The word "Secular" was inserted to the Preamble
by the 42nd Constitutional Amendment
of 1976.
Various meaning of Dharma
There
is no definition of Dharma, however
scholars categorised dharma in 4 different ways or four different meaning.The meaning of dharma is not fixed or
definate.There are basically 4 different meaning of dharma.
1. Dharma-Dharma
means nature, for ex-The nature of fire is to burn of an object (Natural characteristics).
2. Dharma
means Duty- Dharma means duty of an individual, which should be done by
person.For ex- The dharma(duty) of a king is to keep his subject happy.Same
mitra dharma is the duty of good friend.In Geeta also Shri Krishna talks about dharma
as a duty.In ancient Indian text also to talks about 10 features of
dharma[Duty].
·
Patience
·
Self control
·
Hygiene
·
Forgiveness
·
Not stealing
·
Wiseful
·
Cirseness
·
Truthful
·
Non Aggressive
·
Right conduct
·
Helpful
3. According to
Goswami tulsidas ji greatest Dharma is truth and helping others.
4. Dharma
means Religion or sect-- In hinduism there is concept of serv dharma sambhav
means rspect all religion or religious thoughts.That’s why we see lot of different
sampradaye in hinduism.Each sampradaye has there own explanation for
truth.There is also a phylosophy of Charvak which is completely based on epicurean.
5. Dharma-Here
dharma means wasy of following or behaving in othere wordly things/gods, following
behaving or practicing certain ways or mode of worship.For ex-beleving in
moksha,nirvana and following different practices to achieve above goals.
6. Modern secularism
is related to 3rd and 4th meaning/Definition of dharma.
7. Adhyatma as
a dharma- In Indian context adhyatma is also form of svadharma, which basically
knowing self and self realization.Concept of yoga also include in adhyatma.
Concept
of secularism
A
secular society means that no particular religion is protected by the state.
Accepting one's unique situation and enabling oneself
to act as one pleases
are both aspects
of religion. According to the British
Encyclopedia, secularism is atheistic. Secularism is not atheism;
rather, it accepts the fundamental tenets
of all major global religions and disapproves of the notion of a state
religion. Also, the foundation of the political system will not be religion. There
may be people of several
religions in the United States.
It is everyone's right
to openly practise
their religion. Secularism refers to this.
Secularism in the Indian tradition can be characterised by the
next three ideologies. One is that liberal philosophy has been supportive of the Western idea of secularism. The two should
be completely independent of one another,
with politics having
no influence on religion and vice versa.
The two things have separate
agreements.
Secularism
and atheism are frequently confused. This is wholly untrue. Secularism is the
practise of selecting a religion, holding
to that religion's beliefs, and adhering
to its customs and ideals.
Atheism is the denial of all belief in God and the
supernatural. Secularism only provides a framework for the society's
pursuit of equality
in all spheres. political, educational, and legal issues, etc.
Establishing
a society where individuals of various faiths or those who don't practise any
religion can live in peace together
is the aim of secularism. Any State, institution, group of people, or
individual is prohibited from discriminating against anyone on the
grounds of their religion
or other beliefs, according
to this article.
In
the 19th century, secularism was first conceptualised in Western culture.
British reformer Jackob Holyoke first
used the term secularism in 1851. In order to promote a social order apart from
religion without condemning religious belief, he developed this word to define his views.
Charles and jacob both are contemperary thinkers.Chales argued that state should oppose the existance of religion and people should stop
influnce religious practices. whereas, Jacob Holyoke argued that state shoud remain neutral
with respect to religion.It shoud neither get influece by religious phylosophy nor shout intervien
in religious practices.Jacob Holyoke outlines several
secularism tenets.
1.
The study of SECULARISM examines how to maximise human
happiness by material means, how to assess
human satisfaction using the utilitarian principle, and how to establish a lifelong responsibility to help others. The fullest possible development of an
individual's physical, moral, and intellectual
nature is seen as the pressing responsibility of society. Secularism is
concerned with the presence of man in the present
and with action,
the results of which
may be assessed via the experiences of this life. In
addition to atheism, theism, or Christianity, it also aims to impart natural morality's practical sufficiency. In the end, it engages
its adherents in the utilisation of
resources to further human growth.The Secular is sacred in its influence
on life because it preserves
the loftiest natures
and elevates the lowest by maintaining the purity of
material conditions. A set of guiding principles known as secularism is meant to serve as a
reference for individuals who find theology lacking, insufficient, or unreliable. It substitutes religion, which primarily views life as a necessary evil, by viewing
it as a place of suffering that leads to a better
place. Secularism celebrates this life and sees it as the domain of those responsibilities that mould people into fit individuals for any potential better lives down the road.
2.
A secularist lives by the tenets of positivism,
attempting to understand what is in nature and what morality should be, choosing the affirmative in explanation, and
focusing on the true, the proper, and the
constructive. Provable positive principles are those that can be demonstrated.
According to Bishop Butler, "a
positive commandment is a precept the cause of which we see." Positive thinking
promotes tangible advancement.
3. The available Providence of life is
science. The challenge for social science is to identify the circumstances in which it will be
impossible for a man to be impoverished or depraved. Serving others saves mankind. Spiritual compassion
is a lower form of mercy than the anticipation and eradication of suffering's root causes. Relief from suffering or
injustice comes before solace; working well
comes before thinking well; for people who accept theism, work is worship; for
those who do not, it is a duty.
4. While not error-free, sincerity has
the lowest error rate and is morally guilt-free. Sincerity is a well- informed, conscientious conviction that
has been reached through thoughtful analysis and motivates those who hold it to put it into practise
out of a sense of obligation. In terms of opinion, virtue is defined as having honest convictions and
upholding them. It does not include conformity or nonconformity.
5. In the most accurate understanding of
the word's usage, religion is the pursuit of good things with an intention to do good. A "good
item" is one that embodies justice, truth, honour, and love. Serving humanity is the only "intent"
that is pure.The word "instant" is not a synonym for quick
fulfilment; rather, it is used to
contrast the interest of one life with that of another. The distinctive trait
of the Secularist is that he seeks
after that which Nature prescribes, which is achievable through practical means, and which is directly beneficial to
humanity—a religiousness to which the concept of God is neither essential nor its
rejection necessary.
6. consequences are inferior to conscience.
7.
A system of wise and fraternal cooperation that is
based primarily on common prudence, enacts service
according to industrial capacity, and distributes wealth in accordance with
rational needs may one day provide
these conditions.Most inferior natures can become morally and physically
better. By offering the required physical
conditions, this improveability can be secured
perpetually. Secular principles
envision a time when humanity will be united in its condition and infinitely
diverse in its intellect, when
ignorance and selfishness will vanish and all people will be treated equally,
and when universal purity will permit
the sharing of all things, including a noble society, priceless works of art, and the world's
riches.
Western concept
of secularism
Secularism
in west is the result of over involvement of religion in day to day, both
private and public life of masses in Europe.The recorded
development of term secularism and the
understanding behind it got
codified on papers by mid 19th centuries.But its real journey got started way
before ie by 14th century.
In
Europe and especially in western Europe the end of dark age is actually
solidified by the beginning of modern
ideas like Renaissance, Reformation, Scientific Revolution, Age of
Enlightenment were knowledge based on Rationality and Experience was promoted.
Later
within the Realm of such modern ideas, end of dark age also witnessed the
Evolution of idea of Secularism in Europe.This period of fight
of Europe against the clutches of religion laid the foundation of the idea of secularism in Europe.Basically
the age of enlightenment which
majorly focus on Rationality and
Experience based knowledge started busting the traditional religious beliefs of
rational minded community in Europe.
Their experiments, research, experience started disapproving their traditional believes
which make them
to question the very core ideas build around religion and thus in return
it led to the growth of the idea of secularism.
In
16th century Nicolas Copernicus who initially was highly religious man and
aimed to proof Bible Scientifically
but ended proofing the very core belief of Bible ie Geocentricism as wrong.In
17th century Galilei debunk
another core belief
promoted by church
in Europe by proving that earth is Round and not Flat.
In 19th century
Darwin's theory of evolution disapproved
the believe of man being
first child of god.All such discoveries during the era of
scientific revolution, build a strong ground to question everything including religion.This tendency of questioning everything even religion,
authority of church
laid down the foundation of the idea of secularism
in Europe.Later on the idea of secularism
further got cementified in the work of various European
thinker's and Philosophers.
Machiavelli
an Italian philosopher in his book The Prince, talk of separating politics from
the clutches of Church.Jean Bodin
was h French thinker who mentioned that religion must have zero involvement in politics.John Locke an English
Philosopher promoted experience based knowledge over religions believe.David Hume onther English thinker
ask the masses to question, doubting on everything even questioning God.
Work of such philosophers in 17th to 19th century.Influence the educated class
of Europe.They develop
the rational temperament and stated question the very core believe linked
around religion, god, authority of Church.
Later
on sociologist like August Comte who is know as Father of Sociology rejected
all religion and put forward the idea
of one single religion ie The Religion of Humanity based on science and not just believe.
In 19th century Karl Marx criticize religion he even called religion
as opium for masses.Further in 19th century
John Austin gave the concept of positive
jurisdiction.Were governance should completely be in the hands of parliament and not
Church.This journey of these 3-4 century after end of dark age in Europe
took Europe to the point from were time has arrived for the consolidation of
idea of secularism in European
societies.
Secularism in other countries
France:-In third constitution France declared
itself secular.In 1905,France passed an act of secularism and declared itself secular again. France secularism is a negative secularism which means strict seperation between religion and state.In this concept first limits the freedom of religious expression and religious freedom.
In 2004 France banned the religious
symbols in public schools.For eg- burkha, cross, tilak etc. In 2011 france banned religious symbol in hospitals
and public places.
It
was opposite to the concept of multi culturalism of 1970’s.Scandivian countries
give respect to cristanity.Denamark give official status
to church.
England:-
England follows positive
secularism which states
respect to all religions equally,people can wear religious
symbols, religion can open religious institutions. State can even fund
different religious institutions.
There are also some restrictions that are follows:-
·
Obligation of cristian prayer in schools.
·
King/Queen
·
Bishop of church of cantaherry perform coronation of king/queen.(using
religious ceremonies)
·
Presence of 26 religious persons also known as lords of
spirituals in upper house of Uk parliament.
·
Performance of christian prayers at the beginning of parliamentry
procedure in UK.
USA:-
In USA, Thomas
Jefferon, third
president of USA played an important role in USA secularism.Thomas jeffron
said, there will be wall of
seperation between church
and state.
USA secularism is a positive
secularism.US supreme court in 1952 gave concept
of positive secularism.It includes Doctrine of
accomodation which means govt. Can accommodate all religions in governance.
Limits to US secularism:
·
Mottos of US like In god we trust.
·
Oath of judges in the name of god
·
US congress sessions start with christian prayers
·
Give holidays on christian festivals.
Some islamic countries like Turkey and Iran also
follows the concept of secularism which is mainly absolute in nature.
Indian concept of secularism
·
The State must allow religious freedom for everyone.
·
No religion shall be associated with by the State.
·
The State shall respect all equally valid religions.
The
first two are comparable to western ideas, while the third is an original
concept for Indian secularism.The
State does not owe fealty to any specific religion as such; it is neither
irreligious nor anti-religious; it
accords equal freedom to all religions, according to Justice P.B.
Gajendragadkar, a former Chief Justice of India (Singh,
1952). On the removal of the word "secular" from the Constitution's original draught, he made a comment, noting
that Thomas Jefferson believed there should
be no discrimination against people based on their religion.
In
the 19th century, secularism was first conceptualised in Western culture.
British reformer Jackob Holyoke first
used the term secularism in 1851. In order to promote a social order apart from
religion without condemning religious belief, he developed this word to define his views.
When it comes to the secularism scenario for India, it can be seen from
the debate records of the Constituent
Assembly that members of the legislature generally agreed that India would be a
secular state. The scholastic basis of India was highlighted by the Constituent Assembly.
The
Indian Constitution's enshrined secularism, the Assembly held, was not
antireligious; rather, it intended to protect citizens
from discrimination based on religion.
According to Mr. H.V. Kamath, a member of the Constituent Assembly, when I say that a State should not identify
itself with any one religion, I do not imply that a State should
be antireligious or irreligious. India will be a secular state, but in my opinion, a secular state
is not one that rejects
religion or is devoid of gods
(Pylee, 2007).
The
phrase "it (secular state) does not mean that we shall not take into
consideration the religious sentiment of the people" are how Dr. B. R. Ambedkar defined
secularism.
A
secular state simply means that this Parliament will not have the authority to
impose a specific faith on the general
populace. The Constitution only recognises this restriction (Pylee,
2007).After the debate
in the Constituent Assembly, primarily Gandhi's and Nehru's perspectives
on secularism emerged. Gandhi's
viewpoint was founded on the principle of "Sarva Dharma Sambhav," or equality for all faiths. He argues that religion and civic life are
inextricably linked. He declared that he values religion and that he will respect all different faiths.
Nehru adhered to the "Dharma Nirpeksha" philosophy. He believed that religion ought to be kept
private and shouldn't influence how the public lives. Following independence, a new secularism evolved that was more in line with Gandhi and Nehru's ideologies.
Different opinions
regarding secularism:
1.
Gandhi's perspective on secularism
Gandhiji
was a deeply devout man who respected all religions. As stated by the primary
themes of all the major religions are
peace and brotherhood.Gandhiji described secularism as equal tolerance for all religions, or Sarva Dharma sambhav.
Gandhiji supported all religions, but he believed that no one religion should
take precedence over another. Everybody
should be treated
equally. Gandhiji supported the idea that religion is a matter of personal choice and has no
bearing on the relationship between the state and it
.He believed that government should be
secular and geared towards the good of the populace.
Gandhiji undoubtedly merged politics with religion.can be seen during the movement
against cooperation. He made an effort to strengthen the bonds
between Hindus and Muslims. But until there is harmony between Hindus and Muslims, we cannot fully comprehend Gandhiji's philosophy. After 73 years, India is still trying to keep politics and
religion apart. Gandhiji thus ventured to envision the unthinkable despite being aware of the considerable
divide between Hindus and Muslims. Hence, he stated that tolerance between Muslims
and Hindus is necessary.
2.
The secularism
position of Nehru
Nehru
supported Dharam Nirapekshta whereas Gandhi supported Dharm Sambhav.He believed
that religion should be treated
impartially. Jawahar Lal Nehru described Gandhiji's secular philosophy as a matter
of state.
3.
PB Gajendragadkar, Justice
In
the opinion of Justice PB Gajendragadkar, a former Chief Justice of India,The
words "secular" and "secularism" were purposefully
taken out of the constitution. He thinks they did so to stop the antireligious
tendencies associated with secularism dogma. According to him, those who
drafted the constitution were aware
of how the idea of secularism had rendered religion unimportant in Christian nations.
They purposefully avoided
using the words "secular" and "secularism," as a result.
4.
Upendra Baxi's
opinions
According to him, the Indian Constitution suggests that:
1. State has no
religion.
2. No religion
shall be promoted through the use of public funds.
3. The state has
the authority to regulate any economic or financial activity connected to a
religion.
4. The Hindu religious
institution of a legal nature might be left accessible to all Hindu castes and divisions
as well as for social welfare and reforms.
5. Conscience and
religious freedom should be guaranteed to everyone.
5.PM Narinder
Modi's opinions
New
definition of secularism provided by Modi.Neither ideology or religion,
according to him, is superior
the nation. He claims that secularism keeps the nation
above anything else. "India first" is the slogan he offers.
He makes the appeal to every Indian citizen that India should
be your primary
priority in all you do and everywhere you go.
The
need of secularism in India:
In
a heterogeneous country like India, secularism has no alternative, hence it was
incorporated into the Indian
Constitution. Throughout the Indian Union, there are people of all languages
and religions. a. The Getting the
most out of the. The Getting the most out of the.. Hence, accepting secularism
was important in order to maintain one's right to freedom.
Even
if there are efforts to embrace India's diversity and bring people together,
minority populations still face
discrimination and oppression. Of course, nationalism could not be fostered
even after the establishment of a
secular state. National integration is threatened by minorities' awareness of
social intolerance. Secularism is required to foster a sense of nationalism in the nation's
minority populations.
Despite
adopting the idea of a secular
state, religion has in fact been politicised in India. Voting
politics are conducted in
religious organisations. As a result, the secularist tenet is being undermined
by rising communalism. Since
communalism is anti-democratic, the foundation of secularism must be the advancement of democratic principles. The integrity of the country
is harmed by religion-based politics
in a multicultural democracy like India. Consequently, secular principles must be recognised in society
alongside religious values in order to create a successful democracy.
Relation between state and religion:
The idea of "secular governance" does not mandate religious
practises or offer its citizens
any religious beliefs
value. The term "secularism" is seen as a secular
state when applied
to all aspects of state activity. Such a type of government is irreligious and lacks a state religion
that is fully distinct from any religious practised by the populace. Also, it guarantees that everyone has
the freedom to practise any religion they
choose, regardless of social prejudice. By charging taxes for religious
practise or proclamation, it does not compel people
to support their religious beliefs.
If the individual decides to abandon his current religious
convictions and adopt a new one in the near future, he may do so.
The "secular state" upholds
the notion of each person's
right to their own faith.
The existence of a secular
state does not imply religious state, but it also suggests that it will
remain impartial in matters of state. The state does not practise
any religion; therefore, it does not interfere with any and encourages all. The idea of "Secularism" stands for
equal freedom for everyone without prejudice based on religion. That division
does not entail its demarcation in the global
religion issue.
The
idea of a "secular state" is one in which everyone who is a living
member of society is guaranteed the
right to practise their faith freely. It recognises that a person is a citizen
regardless of their faith because there is no constitutional connection between religion and government.
The
constitution is intended to prevent majority excess in addition to the
contemporary understanding of society.
Some would contend that the state's democracy does not respect the will of the people,
while others would counter
that only democracy can protect its people and stop the monarchy from taking power. According to the majority rule,
minorities may be suppressed in society, especially those who are regarded as less minoritarian and who
have little chance of becoming a majority. Consequently, a major point is that constitutions are crucial for ensuring that people and minorities can live decent
lives with the idea of religious freedom, which gives them significant protection in society.
As
was previously established, the idea of democracy entails holding free and fair
elections in the state.The judiciary
as defined by the Indian Constitution, open government, a free press, and civil society. Additionally, some of these
democracies offer additional mechanisms to the electorate. The idea of freedom
is a widely held, critically significant ideology that is driven
by worry. The interests of the people cannot
be recognised in the normal
course of events.
Politics is primarily
concerned with the aggregation of interests that were previously decided in accordance with certain provisions of constitutional law.
The
secular society, in which every community member professes faith but without
any recognised state,religion. Society does not penalise apostasy. Citizenship in a democracy is not based on a particular faith. Religion is not a component of
citizenship.Now days, this idea is accepted in many nations. It is widely acknowledged that under a
democracy, the government cannot punish citizens living within its borders.
There is evidence
that people value the freedom
to express their religious beliefs
in democratic states without fear of social exclusion.It is also acknowledged that democracies cannot
force citizens to practise
any religion or any other form of belief.For the good of democracy, the state should
not impede citizens
from practising their religious beliefs.
tamper
with the religious institutions of the populace.Any liberal interpretation of
the constitution lays restrictions
on what types of public conduct are permissible to govern, including, of
course, religious conduct.
Conclusion: Religion in modern democracies is a private matter. Of course,
people should have the freedom to
practise and believe anything they want as freedom prevents them from turning religion
into a personal matter.
Secularism in context of constitution and law:
India
has traditionally placed a high priority on fundamental unity, toleration, and
even religious harmony. It is
undeniable that hundreds of millions of Indians of different religious
backgrounds coexisted peacefully
throughout history, occasionally disturbed by religious uprisings, with
economic exploitation and social oppression frequently at the root of everything.
Hinduism,
Jainism, Buddhism, and Sikhism are four of the major world faiths that have
their roots in India.One of the most
religiously diverse nations is India. The most prevalent religion in India is Hinduism, which is also one of the most
tolerant. India is a nation that has its roots in a basically nonreligious civilization.
To
build India as a sovereign, socialist, and democratic republic is the goal of
the Indian Constitution's Preamble.
The phrases socialist and secular were inserted by the 42nd amendment. The
complete constitution is outlined in
the preamble. It embodies the spirit of the Constitution. The phrasing of the preamble is another crucial factor. The
religious diversity and multireligious nature of Indian society make it a multireligious society. So, each
of these causes division in some way and, if not handled properly, threatens the integrity and unity of the country.
The
preamble was thoughtfully drafted by the founding assembly, which was aware of
the peculiar circumstances of the
nation and sought to ensure the people' justice, equality, and liberty. The
main objective is to foster
fraternity while upholding national
integrity, national unity, and individual dignity.Fraternity is a crucial tool for
overcoming the dividing element. In particular in the Indian setting, religious
peace is necessary
to develop fraternity. Hence, the state has a fundamental obligation to address the issues that limit religious fraternity. The state
must foster fraternity by taking both constructive
and destructive measures.According to Article 25, everyone has the right to
religious freedom and the ability
to declare, practise,
and disseminate their
faith (1).
Indian
views of secularism lack a precise definition of the connection between the
State, society, and religion. The personal laws of different religions vary. The
vulnerability of religious minorities and the ties
between political forms and fundamentalist religion pose a serious threat to
India's secularism and its ability
to succeed. According to popular consensus, India's secularism has become highly
politicised, and steps must be taken to depoliticize it and put it closer under the control of civil society.
The idea of secularism
was not explicitly included in the Indian Constitution at the time it was being
written. Nonetheless, the Indian Constitution outlines a number
of clauses that show the existence of secularism in Part III (Articles 14, 15, 16, 25, 26, 27, 28, 29, 30), Part IV (Article 44), and IVA (clause (e)).
Article 14:All people are treated
equally before the law, according to Article 14. In the perspective of the law, every person is equal. Two fundamental rights
exist:
·
All people are afforded equal legal protection.
·
equal adherence to the country's laws by everyone.
Article 15:According to Article 15 of
the Indian Constitution, it is illegal to discriminate against an Indian citizen on the basis of their race,
religion, caste, sex, or place of birth. No one will be turned away from a store, a public dining
establishment, a motel, a well, a road, etc., according to this assurance.
Article 16: guarantees equal
job opportunities for all Indian nationals. Article 16 guarantees that no person will be denied work because of their race, caste, sex, religion, or place of birth.
Article 19: Under Article 19, Indian
people are given six essential
fundamental rights along with a few comprehensible restrictions.coupled with
a few reasonable limitations. These fundamental freedoms and rights are prerequisites for a democratic state founded on
the rule of law and are acknowledged as natural
rights inherent in the status of a citizen. These liberties include the right
to free speech and expression, to assemble peacefully, to form associations, to travel and live anywhere
in the nation, and, last but not least, to practise the
occupation of one's choosing. If total freedom inevitably leads to get justice
rule.
Article 25: All people are guaranteed
the right to religious freedom under Article 25 as well as the freedom to profess, practise, and spread any religion of their choosing. Force must not be used to convert
someone to a religion since doing so is illegal. India is a secular
nation, hence no one state is given the status of state
religion in India.
In the eyes of the law, all religions are regarded equally.
Individuals are entitled
to religious freedom
and are allowed to follow any religion
they choose.
Article 26:The rights of religious
denominations or their sections are guaranteed by Article 26. It defends everyone's right to practise any
religion. It is also subject to public morals, health, and order but is exempt from other basic
rights-related laws. The Indian Supreme Court has repeatedly ruled that a religious group
must guarantee the following three restrictions:
·
A group of people should subscribe to an idea that they
see as beneficial to their spiritual health.
·
It ought to be organised uniformly.
·
It ought to have a special name assigned to it.
Article 27: Article 27 of the Constitution states
that no one shall be obliged to pay taxes whose proceeds
are specifically designated for the promotion
or preservation of any particular religious group.
Article 28: Any educational institution
that is wholly sponsored by funds from outside the state or that gets funding from the state is
prohibited from teaching religion under Article 28. However, any educational institution run by the state
that was established under an endowment or trust that mandates the delivery
of religious instruction is exempt from this requirement. No one enrolled
in a school may be forced to participate in any religious service that may be held there.
Article 44: About the Uniform Civil
Code is Article 44. It tries to manage everyone according to the same set of secular civil rules regardless
of their caste, tribe, or religion. The foundation of this code is the mandate found in the constitution to
uphold justice and equality for all citizens. All citizens are subject to the same criminal laws,
regardless of their gender, caste, or place of residency within the nation. Unfortunately, India has not yet
put in place a comparable code that addresses matrimony, divorce, succession, and other
family issues.
It is clear from a combined
reading of all these Articles
that the Constitution's founders neither opposed
religion nor pushed for the rationality of culture. Although the 42nd
(Amendment) Act, 1976, which took
effect on January 3, 1977, was responsible for the first time the word
"secular" was used in the Constitution's Preamble, secularism was already
a part of the document (Singh, 2013).
A
secular republic, as defined by the 42nd Constitutional (Amendment) Act of
1976, is one in which all religions
are given equal protection under the law. The Hon. Supreme Court has
repeatedly interpreted the law
through different judgements even if it is expressed in clear words. The
apparent secularism mentioned in the
Indian Constitution does not, however, imply atheism, which is a notable distinction. It suggests that there
shouldn't be any religion in the State, instead. In the case of Indira Nehru Gandhi v. Raj Narain (AIR 1975 SC
2299), the Supreme Court of India ruled that secularism means that the State shall
not have its own religion
and that all citizens of the nation
shall have an equal right to conscience freedom and the freedom to profess, practise,
and propagate any religion.
If
we look back until 1976, India treated all religious groups equally and without
prejudice. Article 14 of the
Constitution guarantees everyone equal protection under the law and equality
before the law. Nonetheless,
categories that are appropriate can be formed and should be handled
in the same way.
According
to the Indian
Constitution, no citizen
may be subjected to discrimination by the State merely on the grounds of their race, caste,
gender, or place of birth. Section 15 (1) Article 15(2) states that no citizen shall be subject to any
disability, liability, restriction, or condition regarding access to shops, public restaurants, hotels, and places of
public entertainment, or regarding use of wells, tanks, etc., wholly or partially maintained out of
state funds or intended for the general public, on any of the aforementioned grounds. The essential
idea that all people should have equal opportunities
for employment in State offices is established by Article
16(1). (Singh, 2013). Article 16(2) of the Constitution, which is an enlargement of
Article 16(1), states that no citizen will be excluded from or subjected
to discrimination in connection with any employment or position of the State based solely on one's
religion, race, or national origin. These laws effectively safeguard the
equality of citizens who follow various
religions.
Given that India is a pluralistic culture and a multireligious nation,
the Constitution's drafters
established the idea of
religious neutrality and granted various religious groups the right to practise
their religions freely (Jain,
2008).All religious groups are treated equally and with religious tolerance in
the spirit of our secularism (Jain,
2008). With a few exceptions, the Indian Constitution accepted the concept of non-interference in religious matters
(Jain, 2008).Every person residing in India has the right to publicly
practise their religion as long as they abide by state law, as stated in
Articles 25 to 28 of the Indian Constitution.
When and how religious freedom is allowed and how it is limited are explicitly
stated in Article 25, which is a
repository of religion and secularism in India. Every person has the right
under this Article to freely profess,
practise, and spread their faith. The phrase "any individual" is used
in Article 25, indicating that one is
allowed to convert voluntarily from one religion to another and that doing so is legitimate (Rai, 2008).
Nonetheless,
it is illegal to convert someone through compulsion, deceit, or seduction as it
can violate public order. Moreover,
Article 25 grants the State the power to impose restrictions in order to uphold public order. "Public order" is defined in Article 25(1) as anything
that interferes with the normal
course of community life and
does not only affect one individual. If the circumstance interferes with how
the community is currently living,
it will be deemed a disruption of public order (Stainslaus v State of MP, 1977).The State cannot control religious
activities because it will not meddle in matters of faith. Nonetheless, according to Article 25(2),
the State may control a secular activity that is connected to a religious subject. If a practise is viewed
as a necessary and important component of a religion, it will be classed as religious; if not, it will be treated
as secular.
Due
to the fact that it is not a fundamental religious practise and is not
protected by Article 25 of the Constitution,
the Talaq-e-biddat or Triple Talaq practise is seen as illegal (Shayra Bano v
Union of India, 2017). Additionally,
under some circumstances, the State may obstruct religious practises intended to promote social transformation.
The rationalisation process ought to result in this societal improvement.
No use of the legal system's coercive power should be made in this type
of social reform. To force urgent
social reform, the State occasionally feels compelled to utilise legal
compulsion.For instance, a law that
was passed to forbid polygamy among Hindus was upheld since it wasn't a
necessary and important component of
Hinduism. Similar to this, the triple talaq in Islam and the Sati and Devdasi systems
in Hinduism have been eliminated because they were social ills rather than fundamental tenets
of the respective religions.
The fact that polygamy
is still acceptable among Muslims in India but not in many other Muslim nations
shows that it is not a fundamental aspect of this religion. So, the
Uniform Civil Code may also be used for
social welfare, social reform, and the good of the country as provided for
under Article 25(2)(b) of the Indian Constitution.
The Indian
Constitution's notion of secularism is distinguished by the following
characteristics:
1.
No particular religion will be used to define or govern
the state;
2.
Although everyone has the legal freedom to practise
any religion they choose, the state will not give any particular religion any special
attention.
3.
State policy prohibits discrimination against anyone
based on their religion or place of belief.
4.
The heart and soul of secularism as envisioned by the
constitution is the right of every citizen to occupy any offices under the
state, subject to any general conditions, and religious tolerance. It establishes
the prerequisites for the Indian people to unite in a brotherhood that protects
both the inherent worth of each person and the integrity of the country.
Bal
Patil and Others v. Union of India, the Supreme Court held that the State has
no religion and must treat all
religions and religious people equally and with respect without infringing in
any way on their Individual freedoms
of religion, faith, and worship.
The
goals and parameters of a secular, socialist, and democratic republic had to be
stated in a flexible yet firm manner
so that a complex of constitutional strategies could be implemented that would harmonise rather than aggravate religious
minorities, integrate rather than exacerbate hostile strata, abolish rather than emphasise the
socio-religious discrimination experienced by the weaker human sector, and create a system and society
where everyone is treated equally.
Secularism in context of judiciary
Secular
is a dynamic word, not a static one. There can never be a singular, constant
viewpoint on this. On rare occasions, the Court applies an alternative definition of secularism. The Supreme Court of India
stated in Sardar
Taheruddin Syedna Sahib
v. State of Bombay that "Articles 25 and 26 help to underline the secular character of the Indian
democracy, which the founding fathers believed to be the primary core of
the Constitution" (AIR 1962 SC 853).
Secularism
is a key tenet of the Constitution, the Supreme Court decided in Kesavananda
Bharati v. State of Kerala (AIR 1973
SC1461). The secular nature of the Constitution, in the opinion of Chief Justice Sikri, serves as its cornerstone.
The core elements of the Constitution's basic framework, in the opinion of justices Shelatand and Grover,
are its secular and federal provisions. Judge Jaganmohan Reddy argued that the freedoms of thinking, expression,
religion, belief, and worship could not be restricted in any way because they are fundamental components of the Constitution.
imilar
to this, the Supreme Court of India defined what secularism is in Bommai v.
Union of India (1994), 3SCC 1. The
Court holds that secularism includes treating all religions equally. The
Supreme Court ruled that the word
"secular," which the 42nd Amendment added to the Constitution's
Preamble, emphasises the fundamental rights safeguarded by Articles 25 through 28. Furthermore, the Court ruled that any political party using religion
to advance its political goal would be in breach
of the State's duty to uphold its neutrality. It is inappropriate to mix politics
with religion.
Notwithstanding
the fact that a secular state does not interfere in religious matters, this
does not imply that the State has no
opinion on any religious issues. To regulate the secular operations of places
of religion, the State may pass legislation.
This
attitude was taken by the Court in the case of Ismail Faruqi v. Union of India
(1994)6SCC 3176, which found that any
property owned by a religious community could be seized by the State using eminent
domain.
In
the case of Aruna Roy v. Union of India (2002) & SSC 368, the Supreme Court
of India held once more that the cornerstone
of secularism is the State's inability to discriminate
against its citizens on the basis of their religious affiliation.
In
the matter of Abhiram Singh v. C D
Commachem (2017)10 SCC 1, the Supreme Court was questioned on whether secularism involves the complete
separation of religion and politics.The Court
concluded that secularism requires the State to respect
all religions equally
rather than requiring it to be indifferent to religion. Given that religion,
caste, and politics
are all pillars
of our society, it is impossible to completely separate
them.
According to the Court,
the fundamental secularism of the Constitution cannot be altered.
All religions are treated equally under secularism,
which originates from the cultural principle of tolerance. No religion will be in danger since the Indian
government is not associated with any one religion. The Court also argued that secularism and democracy are fundamentally linked and that a secular
state is required
for democracy to work properly
and to assist marginalised people.
Recent cases related to concept of secularism:
Gujarat State v. Ahmedabad
St. Xavier's College
In
the landmark decision Ahmedabad St. Xavier's College v. State of Gujarat, the
Supreme Court held that secularism
does not involve holding either a pro- or anti-God position. It ensures that no
one will experience prejudice on
account of their religion. Hence, secularism eliminates the concept of God in state-related matters.
State of MP v. Stainislaus Rev
In
Stainislaus Rev v. State of MP, the High Court of Madhya Pradesh defined
freedom of "profession" as
the right to publicly declare one's affiliation with a certain creed. In
addition, the Court declared that one's freedom
of "practise" includes
the right to engage in private or public worship. The right to propagate one's religion, it was further
clarified, grants one the freedom to share one's religious convictions with another person, but not to convert that person to one's religion.
Indian Young Lawyers Association vs. State of Kerala and Ors
Women in our society
have always battled
for representation in public settings
and equal standing.
But, things are now changing,
and a number of reforms have been implemented as a result of court rulings. As it did in the Shah Bano case, the Supreme Court
has upheld Muslim
women's rights against
the triple talaq practise. In the case of Dr.
Noorjehan Safia Niaz v. State of Maharashtra & Ors, the Supreme Court decided to allow women to enter Haji Ali Dargah.
Women
fought for access to the Sabarimala Shrine Temple in the State of Kerala in the
present case, Indian Young Lawyers Association v. State of Kerala
and Ors.
For
the defence of their rights, women have put in a lot of effort. The Sabarimala
Temple in Kerala's Ayyappa region has drawn controversy since it forbids
ladies between the ages of 10 and 15 who are
menstruation from entering. There were a number of arguments presented in this
case, and petitioners asserted that
some rules restricting women's access to temples are unconstitutional since
they infringe upon Articles
14, 15, 17, 25, and 26 of the Indian
Constitution.
In
this case, petitioners made a number of arguments, including that some laws
limiting women's entrance to temples
are illegal because they violate Articles 14, 15, 17, 25, and 26 of the Indian Constitution.
Ultimately,
the Supreme Court ruled that women of all ages are permitted to attend the
Sabarimala shrine temple since
everyone has the constitutional right to worship, which is outlined in Articles
25 and 26 of the Indian
Constitution.
The
Constitution's ideals and social reality are not the same. The Indian
Constitution's provisions and the
realities of society differ significantly. The Supreme Court has attempted to
reconcile both in this case.
FACTS OF CASE:-
In
the State of Kerala, there is a Hindu shrine called Sabarimala shrine that is
devoted to Ayyappan. It is a temple
that may be found in Kerala's "Pathanamthitta" district at
Sabarimala, which is part of the Periyar
Tiger Reserve.One of Kerala's most well-known temples, the Sabarimala shrine,
has access restrictions for women (of menstrual age).Due
to threats of physical assault,
many women tried to enter the Temple but were unsuccessful.
In
a plea to the Supreme Court, five female attorneys argued that the Kerala High
Court's decision upholding the
long-standing restriction and stating that only the "Tantrik
(Priest)" has the ability to decide on customs should stand. The Kerala High Court's decision
was upheld.
Issue before the court:-
In this case,
primarily three issues were
brought up:
·
Whether the Indian Constitution's Articles 15, 25, and
26 are violated by the restriction imposed by the temple authorities.
·
Whether this restriction violates the provisions of Kerala
Hindu Place of Public Worship Act, 1965?
·
What kind of denominational character does the Sabarimala
Temple have?
·
Whether this restriction is in violation of the 1965 Kerala
Hindu Place of Public Worship Act.
JUDGEMENT:-
Decidi ratio
The
legal standard upon which judicial decisions are based is known as "ratio
decidendi". It has force of law.
The
Court decided in this case on September 28, 2018, finding that the prohibition
on women attending Sabarimala Temple
is unconstitutional by a 4:1 ratio. The court found that the practise violated
the Constitution's articles
guaranteeing equality, liberty,
and the freedom
of religion (Articles 14, 15, 19(1),
21, and 25).
The
Kerala Hindu Places of Public Worship Act's Regulation 3(b) was ruled to be
unconstitutional and subsequently
invalidated. As long as their choice was supported by "tradition,"
Hindu groups may forbid women from entering
public places of worship (b). The Sabarimala Temple now accepts
visitors of all ages according to a Supreme
Court decision that stated "Devotion cannot be subjected to Gender Discrimination."
Obiter maxim
A
judge's view that is not necessary to the outcome and is neither
precedent-setting or legally binding is referred
to as "obiter dictum" and may be expressed orally in court or
in a written judgement.
According to its decision
in this case,
"We
have no question in saying that such behaviour affects the right of women to
visit a temple and freely worship
Hindu faith".
Devotion
is not subject to gender prejudice. In his decision, the Hon. Chief Justice of
India stated that because religion
is a way of life tied to a person's
dignity, patriarchal practises
that exclude one gender in favour
of another cannot be tolerated.
Critical analysis
of Judgement:-
Judge Indu Malhotra, the lone female judge, voiced her disagreement.
Chief Justice
Dipak Misra, Judge
R F Nariman, Justice A M Khanwilkar, and Justice D Y Chandrachud made up the majority.
The
Chief Justice of India read out portions of the judgement written for him and
Justice A M Khanwilkar that Indian
Women are neither inferior to or less than men, according to the honourable Dipak Misra. Religious
patriarchy cannot be allowed to triumph over faith. Biological explanations are unacceptable
in the interest of religious freedom (such as menstruation). Religion is
essentially a way of life.
The
Chief Justice of India ruled that followers of Ayyappa would not create a new
religious sect. Rule 3(b) of the Kerala
Hindu Places of Public Worship
(Authorization of Entry),
Regulations 1965, another
regulation that prohibited women from
visiting Sabarimala, was also ruled unconstitutional.In a different
but concurring opinion, Judge Nariman observed that "Anything harmful of
individuals is unworthy of
Constitutionality. Women being classified as lower status people would be a
violation of the Constitution itself. It was found that Ayyappas do not belong to a distinct religious
group.
Judge
Chandrachud argued in a separate but concurring opinion that the ban's
premise—that the presence
of women will disturb virginity—was unfairly placing the burden of preserving men's virginity on women. This stigmatises and stereotypes women, he said.
In
her lone dissent, Justice Indu Malhotra opined that the Court shouldn't
frequently get engaged in cases involving
fervent religious beliefs. Unless someone
from that group
or faith is offended, the court shouldn't become involved in this matter.
Religious matters shouldn't be seen through
the lens of reason. She added that the god and temple
are protected under Article 25 of the Indian Constitution.
Court states that
constitutional morality is always above the religious morality.Currently nine judges
bench is formed by SC to find the meaning
of constitutional morality.
CONCLUSION
The
Philosophy of secularism is given by George Jacob Holliog.Jacob gave the
concept of negative secularism.Jacob argues to focus more on metarialistic world and ignore philosophical/religious and other wordly debates.He argues that
science is the only for progress and development of human civilization.He argues that a person can be ethical without following
religious doctrine.
State
can be secular state like USA and India or Religious state like Pakistan,
Denmark, Srilanka, Bangladesh or
theocratic state like Iran, Vatican city or anti religious state like china,
North Korea, former USSR.
Secular state has mainly 4 characteristics:
1.
No state religion.
2.
No discrimination based on religion.
3.
Individual choice to follow religion.
4.
Seperation of state and religious domain.
Secular
state are mainly two type:-Positive secularism (threat all religion equally
like India USA) and Negative secularism
(strict seperation between
state and religion
like France)
As
far as India is concerned, India is a secular state.Sc in SRBommai case said
that secularism is part of basic
structure of constitution.SC also held that constitutional morality is above
the religious morality.
In
India pre deminantly state will remain away from religion.However, state can
treat all religions equally which
is opposite to french secularism and close to secularism of US, UK.
India has composite
culture.We as a country
always believe in Vasudev kutumbakam and support multi
culturalism.
Article Information
LIMITS TO FREEDOM OF RELIGIOUS EXPRESSION AND STATE NEUTRALITY
Authors: ASHISH KUMAR PANDEY
- Journal IJLRA
- ISSN 2582-6433
- Published 2024/05/13
- Issue 7
About Journal
International Journal for Legal Research and Analysis
- Abbreviation IJLRA
- ISSN 2582-6433
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