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FREEDOM OF RELIGION VIS-À-VIS SPONSORED RELIGION IN INDIA: NEW CHALLENGES
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FREEDOM OF RELIGION VIS-À-VIS
SPONSORED RELIGION IN INDIA: NEW CHALLENGES
Authored By
- Ananya Kumari Mehta
INTRODUCTION
India is a
pluralistic society and a country of religion. It is inhabited by people of
many religion. The framers of the constitution thus desired to introduce the
concept of secularism meaning state neutrality in matter of religion.
The concept of secularism is
implicit in the preamble of the constitution.[1]
The constitution (42nd Amendment) Act 1976.[2]
Inserted the word 'secular' in the preamble. In the case of S.R. Bommai vs
Union of India[3],
the Supreme Court held that the secularism is a basis structure of the
constitution so that it cannot be changed secularism means respect for all
faiths and religion. The state does not identify itself with any particular
religion but today A big challenge to the state that can sponsored any religion
or not.
We consider according to Art. 25(1)[4]
Freedom of conscience and freedom to profess practise and propagate religion.
So any person maintain own spiritual well-being but subject to public order,
mortality and health and to the other provisions of part III of the
constitution. So restrictions are there also.
Religious tolerance and equal
treatment of all religious groups are essential parts of secularism. The state
does not identify itself with any particular religion.[5]
The
constitutional provisions have raised several problems of interpretation thus,
India is a multi-religious country. People of various religion peacefully
co-exist here, perhaps for this reasons framers of constitution thought it fit
to make India secular country i.e. state neutrality in matters of religion. The
concept of secularism was not expressly provided in the original constitution
but its spirit was very well visible in form of fundamental rights and
directive principles later, by 42nd constitution amendment the
concept of secularism was made explicit by stating it in preamble. Therefore,
preamble along with article 25-28 emphasize that India is a secular nation.
The idea of a secular state and the
giving of religious freedom in western political history emerged from a variety
of historical circumstances and intellectual inclinations. They have been
influenced, in particular, by the secularisation of the State and the
dissolution of the mediaeval union between the Church and the State. As was
previously in chapter one, this division hasn't always been comprehensive in practise.
However, given that political choices now have an impact on every element of
human existence, particularly moral and religious issues, which people value
highly, the question of whether the total division between faith and the State
can ever be kept may be asked.
These fundamental provisions reflect
the State's approach to religion, which maintains a "principled
distance." This does not, however, prevent the State from taking action
when religious practises breaches objectives of the welfare state intended for
the holistic development of individuals and groups, such as public order,
morality, health, and equitable social order. Which of the two strategies best
promotes the fundamental values of religious freedom, egalitarian social order,
social justice, and religious harmony—which are essential components of a life
deserving of human respect for all—determines whether the state interferes with
religious freedom or leaves it alone.
RULE OF LAW AND RIGHT TO RELIGION
Rule of
Law, it means it is not the main ruled by policy is ruled means law is supreme
social order and principles of law that is social wishes greater social
interest.
Article 25 to 28[6]
of the Indian constitution center certain rights relating to freedom of
religion not only on citizens but also on all persons in India. These
constitutional provisions guarantee religious freedom not only to individuals
but also to religious groups.
Articles 25 to 28 seeks to protect
religion and religious practices from state interference. India has no
preferred or state religion as such; all religious are treated alike and enjoy
equal constitutional protection without any favour or discrimination. A
religious organisation as such has not received any special security. The
non-interference with religious freedom policy has not, however, gone as far as
to permit a faith to negatively affect citizens' secular rights or the state's
ability to control socio-economic issues.
The supreme
court has interpreted the constitutional provisions with an eye towards
promoting inter-religious amity, concord, and agreement. The provisions of the
constitution have generally generated a number of interpretational issues.
Overall, the court has changed its attitude towards minority groups and has
granted them some privileges above and beyond those of the majority.
In USA
In the USA,
religious freedom is guaranteed by the first amendment. The government is
forbidden to pass a Law "respecting an establishment of religion" as
well as a law "prohibiting the free exercise of religion."[7]
In the
American constitution commence with the concept of neutrality towards every
religion but eventually it is diluted and even the court decisions protected
the religious aspects of the community. The question of sponsorship of a
religion by the state, we can say the state is remained neutral and indirectly
supporting the observation of religion in the public.
In India
So far
India is concern our the member of constituent assembly learned lesson from
American constitution in this regard the history of India and India religion
based on tolerance has played very important role in the role of state in
regulating the religion here the concept of Indian constitution adopted
secularism based on sarb-dharm sambhab the state is responsible for freedom of
religion everyone that is to protect religion everyone as well as where it is
needed to provide fund for the protection and promotion of religion. The Indian
concept of secularism based on sarb dharm sambhab is completely based on
tolerance which be India have inheritate our history.
Thus, secularism is an important
ingredients of rule of law in India where, it is required unity in diversity.
SECULARISM OF INDIAL LEAGAL SYSTEM
After 42nd
Amendment 'secularism' is incorporated in preamble or the constitution of
India. In S.R. Bommai vs Union of India[8],
A nine-judge Bench of the Supreme Court held that the secularism is a basic
structure or the constitution.
According to justice Sawant –
"religious tolerance and equal treatment or all religious groups and
protection of their life and property and of the places of their worship are an
essential part of secularism enshrined in our constitution."[9]
According to justice B.P. Jeevan
Reddy – "while the citizens of this country are free to profess, practise
and propagate such religion, faith or belief as they choose, so far as the
state is concerned, i.e., from the point of view of the state, the religion,
faith or belief of a person is immaterial. To it all are equal and all are
entitled to be treated equally."[10]
The concept of secularism is not
merely a passive attitude of religious tolerance it is also a positive concept
of equal treatment of all Religions.
(i)
No religious influence in state action / or religious
country.
(ii)
State will protect all religion can not sponsored any
religion. Freedom of religion, rights with duties.
(iii)
State control includes protection of all religion
called 'Sarb-dharm sambhab'. Subject to public order, health morality and to
the other provisions of this part.
(iv)
Court decides the state action or law this regard
where the matter of secular activity or religious activity.
Now becomes
supreme court of India is religious institution. It was held that to follows
the instructions of particular religion that is secularism. It can be decide,
which is the integral part of any religion.
Reference
may be made in this connection to Articles 25 to 28[11],
29 and 30[12]
and 30[13],
to Articles 14, 15 and 16 as well as to Articles 44 and 51A. These various
constitutional provisions promote the idea of secularism and by implication
prohibit the establishment or a theocratic state. The state is under an
obligation to accord equal treatment to all religious and religious seets and
denominations
Therefore,
a secular state is based on the notion that the relationship between man and
man is what the state is concerned with, not the relationship between man and
God, which is an issue for personal morality. Without in any way interfering
with each religion's or group's individual freedom to practise their religion,
faith, or worship, the state is required to handle all faiths and religious
groups equitably and with respect.
THE EXERCISE OF RELIGIOUS FREEDOM
IN INDIA CASE ANALYSIS
Researcher
study some of cases of historical importance where need arose to give judicial
definition to 'religion' and 'matter of religion'.
Meaning or Religion
The term
'religion' is not defined in the constitution, and it is a term which is not
susceptible of any precise definition. The supreme court has defined it
broadly. It has observed in the case of Lakshmindra[14]
: "Religion is certainly a matter of faith with individuals or communities
and it is not necessarily theistic. These are well known religions in India
like Buddhism and Jainism which do not believe in God or in any intelligent
first cause."
In the case of PMA Metropolitan Vs
Moran Mar Marthoma.[15]
The Supreme Court held that 'religion is a belief which binds the spiritual
nature of men to super-natural being'. It includes worship, belief, faith,
devotion, etc and extends to rituals. Religious right is the right of a person
believing in a particular faith to practice it, preach it and profess it.
Religious denomination :- In the case
of Shirur Mutt[16]
the supreme court defined the expression 'denomination' from the oxford
dictionary as "a collection of individuals classed together under the same
name; a religious seet or body having a common faith and organisation and
designated by a distinctive name." Further in the case of S.P. Mittal Vs
Union of India.[17]
The decisions a religious denomination must satisfy three conditions:
Article 26
is confined to religious denomination or any section thereof. It guarantees
collective freedom of religion.
(i)
Common faith
(ii)
Common organisation and
(iii)
Designation by distinctive name
Freedom of
religion of an individual start with freedom of conscience but Article-26 talks
about denomination which is talks about an organisation denomination means main
religion includes sub-groups for example –
(i)
Sabrimala
temple case[18]
- In this case first of all proved the religion then, after
that proved their denomination.
(ii)
Ananda
Margi case[19]
- He was practice of their religion which is Tandava dance in
public street, Kolkata.
The
court held that Tandava dance in public is not an essential rite of Ananda
Margi faith. So it is not essential part of religion, it could be a religious
denomination but do not a religion.
(iii)
Azan of
Muslim Religion by Lord Speaker - In
this case, the Supreme Court ruled that it is illegal for anyone to make noise
or disturb others' serenity while practising their right to religion.
Loudspeaker-based religious rituals are not a necessary component of any faith.
Thus, each religious denomination or organisation
enjoys complete autonomy in the matter of deciding as to what rites and
ceremonies are essential according to the tenants of the religion they hold
then, ceremony is the essential elements of the religion.
·
The Supreme Court ruled that the state can exert
control over the administration of the sanctuary or the upkeep of discipline or
order inside the temple. Any legislation that takes control of a temple's
administration cannot be deemed to violate Articles 25 or 26.
This case
is popularly known as Babri Masjid case.
The Babri
Masjid lawsuit is the common name for this situation.
A majority
of the Supreme Court ruled that the state can obtain places of worship like
mosques, churches, temples, and other places of worship in the exercise of its
sovereign authority, irrespective of Article 300A of the constitution. if doing
so is required to keep law and order.
STATE SPNSORED RELIGION : A BIG
CHALLENGE
Secularism's
core principles include religion tolerance and respect for all faith
organisations. In India, secularism does not equate to atheism. Respect for all
sects and faiths is what it implies. The nation does not associate itself with
any one faith. Literally, it states that
the state cannot sponsor any specific faith, and if it did, it would be very
difficult.
There is no such thing as an
official faith. All faiths should be treated equitably. In a secular state, the
state must regard all places of worship equally because it only cares about how
people interact with one another. It doesn't address how man and God relate to
one another. It is up to each person's morality.
It should
be possible for each individual to enter Heaven in his own manner. Man's
various faith views are not subject to governmental regulation.[22]
Grounds for State to intervence in Freedom of Religion
:-
Article
25(2) allows for state intervention in matters relating to social welfare and
reform, as well as any economic, financial, political, or other secular
activity that may be connected to religious practice, as well as the opening of
Hindu religious institutions with a public character to all clauses.
That state
shall treat all religions and religious groups equally and with equal respect.
Without in any manner interfering with their individual right or religion,
faith and worship. There is no justification for interfering in some one's
religious belief by any means.[23]
(i)
The state will not compel any citizen to pay any taxes
for the promotion or maintenance of any particular religion or religious
institution (Art 27).[24]
(ii)
No religious instruction shall be provided in any
educational institution wholly provided by state funds.
(iii)
Every person is guaranteed the freedom of conscience
and the freedom to profess, practice and propagate his own religion subject to
the only to restrictions imposed by the state in the interest of public order,
mortality and health.
(iv) Every
religious group or denomination is guaranteed the right to
(a)
establish and maintain institutions for religious and charitable purposes;
(b) manage
its own affairs in matters of religion;
(c) own and
acquire movable and immovable property; and
(d)
administer such property in accordance with Law. These rights are in addition
to the individual's freedom to profess, practice, and propagate his or her
religion.
CRITICISM, SUGGESTIONS AND
CONCLUSIONS
Criticism
In India,
the state sponsored religion where the govt used to protect as well as to fund
the observation of the religion has reached
a very critical situation at present. It has become very difficult to
established equality in the actions of the state which has resultant in to
social conflicts. There is no proper guideline to form equality in state
sponsorship of the religion.
The right
to freedom of religion or belief is one of the most controversial fundamental
human rights, and an increasing number of cases on religious freedom highlight
the need for normative clarity about its limits. Right to freedom show be
exercise are –
(i)
subject to regulation of economic, financial,
political, and secular activities associated with religion
(ii)
subject to law
(iii)
subject to regulation of economic, financial,
political, and secular activities associated with religion
(iv)
subject to public order and morality
(v)
subject to public health
(vi)
subject to others provisions of part III of the
constitution
Suggestions – The important question is how to
form equality in freedom of religion ?
·
to established equality in the policy of state
sponsorship to all the religion in India.
·
to form the equality there must be follows some proper
guideline for the state in sponsored religions
·
for specific area there must be some coordinating
committee to observation of different religions of that area
·
the constitution of coordinating committee must be a
part of regulations of state sponsorship
·
The religious committee must make programmes to
educate the members of the community so that they may understand the essential
observation of religion as well as the adverse impacts of observation of
religion on general public.
·
to make efforts educationally or by sponsorin some
programme to check or to remove habitual obedience of the member towards a
wrong practice.
·
Get involved in education
·
Extend the reach of your faith
·
Make it a family matter and matter of prayer
·
India being a secular state provides equal protection
to all the religions so everyone has the right to freedom of thought,
conscience and religion.
Conclusion:-
In the USA,
religious freedom is guaranteed by the first amendment. The government is
forbidden to pass a Law "respecting an establishment of religion" as
well as a law "prohibiting the free exercise of religion." In the
American constitution commence with the concept of neutrality towards every
religion but eventually it is diluted and even the court decisions protected the religious aspects of
the community. The question of sponsorship of a religion by the state, we can
say the state is remained neutral and indirectly supporting the observation of
religion in the public.
So far India is concern our the
member of constituent assembly learned lesson from American constitution in
this regard the history of India and India religion based on tolerance has
played very important role in the role of state in regulating the religion here
the concept of Indian constitution adopted secularism based on sarb-dharm
sambhab the state is responsible for freedom of religion everyone as well as
where is it needed to provide fund for the protection and promotion of
religion. The Indian concept of secularism based on sarb dharm sambhab is
completely based on tolerance which be India have inheritate our history.
Thus, secularism is an important
ingredients of rule of law in India where, it is required unity in diversity.
Foornotes
1.
Constitutional Law
of India, Dr. J.N. Pandey, 59th Ed. 2022, CLA
2.
The constitution
(42nd Amendment) Act, 1976
3.
AIR 1994 SC 1918
4. Bare Act,
Art. 25, Freedom of conscience and free profession, practice and propogation of
religion constitution of India, 1950
5.
Dr. Radhakrishnan,
Secularism in India. (Edn V.K. Sinha) 127 (1968)
6.
Bare Act, Art. 25,
Freedom of conscience and free profession, practice and propagation of
religion, Constitution of India, 1950.
7.
Bare Act, Arts 25
to 28, Constitution of India, 1950
8.
Art 25, Freedom of
conscience and free profession, practice and propagation of religion.
9.
Art 26, Freedom to
manage religious affairs.
10. Art 27, Freedom as to payment of taxes for promotion
of any particular religion.
11. Art 28, Freedom as to attendance at religious
instruction or religious worship in certain educational institutions.
12. A.I.R. 1994 SC 1918
13. Supra, chapter 2
14. Bare Act, Art 29 and 30, constitution of India, 1950
15. Art 29, Protection of interests of minorities
16. Art 30, Right or minorities to establish and
administer educational institutions
17. Bare Act, Arts 14 to 16, constitution of India, 1950
18. Art. 14, Equality before Law
19. Art. 15, Prohibition of discrimination on grounds of
religion, race, caste, sex, place of birth.
20. Bare Act, Arts 44 and 51A, constitution of
21. Art. 44 – Uniform civil code for the citizen
22. Art 51A – Fundamental duties.
23. AIR 1954 SC
1035
24. Commr, HRE,
Madras Vs Sri Lakshmindra, AIR 1954 SC 282, 290
25. AIR 1995 SC
2001
26. AIR (1983) 1 SCC S1
27. Indian young Lawyers' Association Vs State of Kerala
WP (C) No. 373 of 2006
28. Acharya
Jagdishwaranda Avadhuta & Others Vs The Commissioner of Police, Calcutta
& Anothers, AIR (1983) 4 SCC S22
29. Church of God (full Gospel) of India Vs K.K.R.M.C.,
Welfare Association, AIR 2006 SC 2773
30. AIR 1977 SC 3839
31. (1994) 6 SCC
360
32. (2017) 2 SCC 144
33. Dr. Radhakrishnan, Secularism in India (Edn V.K.
Sinha) 127 1968
34. United States Vs Bauard, (1994) 322 US 78
35. Dara Singh Vs Republic of India (2011) 2 SCC 490 (531)
REFERENCES
/ BIBLIOGRAPHY
BOOKS
1.
M.P. Jain,
"Indian Constitutional Law", Eightth Ed., Reprint 2021,
Pub. Lexis Nexis.
2.
Dr. J.N. Pandey,
"Constitutional Law of India", 59th Ed. 2022, pub. Central
Law Agency.
3.
V.N. Shukla's,
"Constitution of India", Thirteenth Ed. 2017, pub. Eastern Book
Company, Lucknow.
4.
Durga Das Basu,
"Work book on constitution of India", pub. Lexis Nexis
Statues
1.
Constitution
(Fourth-second Amendment Act), 1976
2.
Constitution of
India, 1950
Case
Law
1. Commr. Hindu Religious Endowments Vs Sri Lakshmindra
Thirtha Swamiar of Sri Shiru Mutt, AIR 1954 SC 282
2. S.P. Mittal Vs Union of India (1983) 1, SCCS1
3. Sri Jagannath Temple Puri Management Committee Vs
Chintamani, AIR 1997SC3839
4. S.R. Bommai Vs Union of India, AIR 1994 SC 1918
5. Ismail Faruqui Vs Union of India (1994) 6 SC 360
6. Church of God (Full Gospel) of India Vs K.K.R.M.C.
Welfare Association, AIR 2009 SC2773
7.
State of Tamilnadu
Vs Animal Welfare Board (2017) 2 SCC 144
[4] Bare Act, Art. 25, Freedom of conscience and
free profession, practice and propogation of religion constitution of India,
1950
[6] Bare Act, Art. 25, Freedom of conscience and
free profession, practice and propagation of religion, Constitution of India,
1950.
Art 25,
Freedom of conscience and free profession, practice and propagation of
religion.
Art 26,
Freedom to manage religious affairs.
Art 27,
Freedom as to payment of taxes for promotion of any particular religion.
Art 28,
Freedom as to attendance at religious instruction or religious worship in
certain educational institutions.
Bare Act,
Art 29 and 30, constitution of India, 1950
Art 29,
Protection of interests of minorities
Art 30,
Right or minorities to establish and administer educational institutions
Art. 14,
Equality before Law
Art. 15,
Prohibition of discrimination on grounds of religion, race, caste, sex, place
of birth.
[11]
Bare Act, Arts 44 and 51A, constitution of
[19] Acharya Jagdishwaranda Avadhuta & Others
Vs The Commissioner of Police, Calcutta & Anothers, AIR (1983) 4 SCC S22
[23]
United States Vs Bauard, (1994) 322 US 78
Article Information
FREEDOM OF RELIGION VIS-À-VIS SPONSORED RELIGION IN INDIA: NEW CHALLENGES
Authors: Ananya Kumari Mehta
- Journal IJLRA
- ISSN 2582-6433
- Published 2023/03/27
- Volume 2
- Issue 7
About Journal
International Journal for Legal Research and Analysis
- Abbreviation IJLRA
- ISSN 2582-6433
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