Open Access Research Article
FREEDOM OF RELIGION UNDER CONSTITUTION OF INDIA
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Article Details
FREEDOM OF
RELIGION UNDER CONSTITUTION OF INDIA
AUTHORED BY - KUSHAL M S &
SARASWATHI
ABSTRACT:
Religion, often becomes the cause of great tension and predicament,
creating a rift between people and societies,
pluralism and nurturing diversity is the only way to ease such passions and promote
peace and harmony among the masses.
While the western
world has recently
initiated discussions on multiculturalism, India
has a vast history of
managing different cultures and faiths, and this history needs to be cherished
and made relevant even today, the
courts have repeatedly highlighted this rich tradition and has held this principle of cohesiveness
between the people stating that the Constitution mandates through
its various provisions to allow requisite freedom to people to discover
and express their
beliefs in their divine.
This article tries to understand the idea of religion and the concept of
secularism in Indian context, these two form the foundation of the edifice
of the freedom of religion
in the country. We see, how
the freedom of religion with its restrictions has its implications on the
ground through Article 25, 26, 27 and
28 and their judicial interpretations and the ambiguity in the application of the Essential Practice
Test, which is paramount in solving most of the problems emerging from various religions.
KEYWORDS:
Constitution; Freedom; Fundamental; India; Religion; Secularism.
BACKGROUND OF RIGHT
TO FREEDOM OF RELIGION
In crafting Articles 25-28 of the Constitution, India responded to the violence
and displacement during the partition in 1947, prioritizing secularism to protect
minority rights. Despite
a Hindu- majority population, India aimed to provide equal security to all communities, contrasting with Pakistan's creation
as an Islamic state. This decision stemmed
from the ethos of India's
freedom fighters, who
envisioned an inclusive nation. Leaders like Mahatma Gandhi and Jawaharlal Nehru championed unity amidst diversity,
rejecting religious discrimination. Hence, India's secular constitution symbolizes a commitment to pluralism and
equality, ensuring that all citizens,
regardless of their faith, enjoy the freedom to practice and profess their
religion without fear of persecution.
INTRODUCTION
important amendment and played a pivotal role in reinforcing secularism
as a fundamental principle of the
Indian Constitution. It not only added the term "Secular" to the
Preamble but also strengthened the
concept of democracy and justice in the country. The inclusion of "secular" emphasized that India,
despite its vast diversity in religion, culture, and ethnicity, would remain neutral toward all religions
and that the government would neither promote nor discriminate against any religion.The constitutional framework
envisaged by the framers of India’s
Constitution aims to ensure that religion does not interfere with public policy
or governance. This principle of secularism is enshrined through
various provisions in Articles 25 to 28, which safeguard the right of individuals to practice, profess,
and propagate their religion freely. These provisions ensure that
every citizen, irrespective of their faith, is given equal protection under the law, without
any discrimination based on
religion.
In addition to individual
freedoms, the Indian judiciary has played a significant role in upholding
secularism. In landmark cases such as S.R.
Bommai v. Union of India (1994), the Supreme
Court reiterated that secularism is a basic feature of the Constitution and
cannot be altered by any government
or legislative action. The case reaffirmed that the State must maintain
a stance of neutrality when it
comes to religion. Similarly, in Kesavananda Bharati
v.
Union of India (1973), the Court declared that secularism is part of the basic structure of the Constitution, and thus, any attempt
to dilute or undermine this principle would be unconstitutional.
India’s commitment to secularism is further demonstrated in its political
and social landscape. The country’s electoral processes, governance, and judicial systems
are designed to ensure that no
religious group is favored over another. This neutrality fosters harmony among
its diverse religious communities,
helping maintain peace and stability in a nation with over 1.4 billion people,
belonging to various faiths, languages, and cultural
backgrounds.
Despite these constitutional guarantees, the practice
of secularism in India has not been without challenges. Tensions between religious groups have occasionally led to social
unrest, and there
have been debates regarding the influence of religion in politics.
However, the resilience of India’s democratic framework, backed by the judiciary’s unwavering commitment to secularism,
has allowed the country to navigate these challenges and maintain its status as
a secular state.
In conclusion, secularism is not just a legal provision but a living,
evolving principle that serves as the bedrock
of India’s pluralistic society. The Constitution guarantees that every citizen has the
freedom to practice their faith, and the government remains neutral in
religious matters. India’s example
underscores how a nation can celebrate its religious diversity while ensuring the equal treatment and freedom of its citizens, regardless of their religious affiliations.
|
RELIGION OF INDIA 2011 CENSUS
|
|
0.70
|
|
0.50 0.40 0.25
|
|
1.70
|
|
0.15
|
|
2.30
|
|
14.20
|
|
79.80
|
|
Hinduisam
Islam Christianity Sikhism Buddism
Animism/Adiv asi
Jainism
|
CONSTITUTIONAL PROVISIONS
1 FUNDAMENTAL
RIGHTS
The Constitution of India guarantees the right to freedom of religion as a part of its Fundamental
Rights, outlined in Part III. The specific articles that protect religious
freedom are:
· Article 25: Freedom of Conscience and Free Profession, Practice and Propagation of Religion
Article
25 of the Constitution guarantees the freedom of conscience and the free
profession, practice, and propagation
of religion. This article ensures that every individual has the right to practice and propagate their faith,
subject to public order,
morality, and health.
The Supreme Court of
India has interpreted Article 25 in various cases to mean that the freedom of religion is not absolute
and is subject to reasonable restrictions. In the case of Commissioner, Hindu Religious Endowments, Madras v. Sri Lakshmindra Thirtha
Swamiar of Sri Shirur Mutt (1954), the Supreme Court held that the
freedom of religion is not a
fundamental right that is absolute in its scope, but is subject to the
limitations imposed by the Constitution.
· Article 26: Freedom to Manage
Religious Affairs
Article
26 of the Constitution guarantees the freedom to manage religious affairs. This
article ensures that every individual
has the right to manage their religious affairs, subject to public order, morality, and health.
In the case of Sri Venkataramana Devaru v. State of Mysore (1958), the Supreme
Court held that the freedom
to manage religious
affairs includes the right to administer the properties of a
religious institution.
· Article 27: Freedom from Taxation for Promotion of Any Particular Religion
Article
27 of the Constitution guarantees the freedom from taxation for the promotion
of any particular religion. This
article ensures that no individual can be forced to pay taxes for the promotion
of any particular religion.
In the case of Society for Unaided Private Schools of Rajasthan v. Union of India
(2012), the Supreme Court held
that the freedom from taxation for the promotion of any particular religion does not mean that the state
cannot impose taxes on educational institutions that are run by religious organizations.
· Article 28: Freedom from Attendance at Religious Instruction
Article
28 of the Constitution guarantees the freedom from attendance at religious
instruction. This article ensures
that no individual can be forced to attend religious instruction or participate in any religious ceremony.
In the case of the Supreme
Court held that the freedom
from attendance at religious instruction includes the right to opt out of religious education in schools.
2 DIRECTIVE PRINCIPLES OF STATE POLICY
The Directive Principles of State Policy, found in Part IV of the
Constitution, although not justiciable,
provide guidelines for the state to promote social and economic justice.
Relevant articles include:
·
Article 44: This article advocates for the
enactment of a Uniform Civil Code (UCC), which seeks to replace
personal laws based on the scriptures and customs of each major
religious community with a common set governing all citizens. Advocates
argue that a UCC would promote
gender equality and eliminate discrimination against women in personal
laws, while opponents fear it
undermines religious freedom.
·
Article 46: This article directs the state to
promote the educational and economic interests
of Scheduled Castes, Scheduled Tribes, and other weaker sections of society. This is particularly relevant in
discussions about protecting the rights of religious minorities and ensuring they receive equal opportunities.
3 ARTICLE 14: RIGHT TO
EQUALITY
Article 14 ensures
that all individuals are equal before
the law and guarantees equal protection of the laws. This right is fundamental in
preventing discrimination based on religion, thus reinforcing the secular and democratic fabric
of the nation. The courts
have consistently upheld
this right in cases where religious practices have led to discrimination
or violence against specific groups.
RELIGION
Religion in India is characterised by a diversity of religious beliefs
and practices. Throughout India's
history, religion has
been an important part of the country's culture and the Indian subcontinent is the
birthplace of
four
of
the world's major
religions, namely, Buddhism, Hinduism, Jainism, and Sikhism, which are collectively known as native
Indian religions or Dharmic religions and represent
approx. 83% of the total population of India.
The Preamble to
the Constitution of
India states
that India is a
secular state, and the Constitution of
India has declared the right to freedom of religion to be a fundamental right.
IMPORTANCE OF FREEDOM
OF RELIGION
The freedom of religion is essential for the development of a democratic society.
It allows individuals to practice and
propagate their faith without fear of persecution or discrimination. The freedom of religion promotes
tolerance, understanding, and mutual respect
among individuals of different faiths.
In
the case of Rajendra Prasad v. State of
Uttar Pradesh (1954), the Supreme Court held that the freedom of religion is an essential part of the
Constitution and is fundamental to the development of a democratic society.
HISTORICAL CONTEXT
1. Pre-Independence Era
The
struggle for freedom in India included significant discourse on the right to
religious freedom. British colonial
rule imposed several laws that restricted religious practices and suppressed dissenting voices. Movements
like the Brahmo Samaj and Arya Samaj emerged,
advocating for reform and the
right to practice one's faith freely.
2. Post-Independence Developments
The
framers of the Constitution recognized the importance of religious freedom in a
nation characterized by pluralism. The debates in the Constituent Assembly reflected diverse
perspectives, with leaders
like B.R. Ambedkar emphasizing the need for constitutional safeguards against discrimination based on religion.
The
inclusion of comprehensive provisions for religious freedom in the Constitution
was a significant step towards
ensuring that all citizens could coexist peacefully, respecting each other’s
beliefs and practices.
LAWS AND CONSTITUTION OF INDIA
The Preamble of the Constitution of Indiahas the word "secular", and articles 25 to 28 implying that the State will not discriminate,
patronise or meddle in the profession of any religion. However, it shields individual religions or groups by adding
religious rights as fundamental rights.
Article 25 says "all persons are equally entitled to freedom of conscience
and the right to freely profess, practice, and propagate religion
subject to public order, morality
and health". Further, Article 26 says that all
denominations can manage their own affairs in matters of religion. All these rights are subject to be regulated
by the State.
Article 25 (2b) uses the term "Hindus" for all classes and
sections of Hindus, Jains, Buddhists and Sikhs.
Sikhs and Buddhists objected to this wording that makes many Hindu personal
laws applicable to them. However,
the same article
also guarantees the right of members of the Sikh faith
to bear a Kirpan. Religions require no registration. The government can ban a
religious organisation if it disrupts
communal harmony, has been involved in terrorism or sedition, or has violated the Foreign Contributions
Act. The government limits the entry of any foreign religious institution or missionary and since the 1960s, no new foreign
missionaries have been accepted
though long term established ones may renew their visas. Many sections of the
law prohibit hate speech and provide
penalties for writings, illustrations, or speech that insult a particular community or
religion.
Some major religious holidays like Diwali (Hindu), Christmas (Christian),
Eid (Muslim) and Guru Nanak's
birth anniversary (Sikh) are considered national holidays. Private
schools offering religious instruction are permitted while government schools
are non-religious.
The government has set up the Ministry of Minority Affairs, the National
Human Rights Commission (NHRC) and
the National Commission for Minorities (NCM) to investigate religious discrimination and to make
recommendations for redressal to the local authorities. Though they do not have any power,
local and central
authorities generally follow them. These organisations have investigated numerous
instances of religious
tension including the implementation of "anti-conversion" bills in numerous
states, the 2002 Gujarat violence
against Muslims and the
2008 attacks against Christians in
Orissa.
For Shia Muslims,
the Grand Ashura Procession In Kashmir where they mourn
the martyrdom of Husayn ibn Ali has been banned
by the Government of Jammu
and Kashmir from the 1990s.
People taking part in it are detained, and injured by Jammu and Kashmir
Police every year. According to the
government, this restriction was placed due
to security reasons. Local religious
authorities and separatist groups condemned this action and said it is a
violation of their fundamental religious rights
POST-INDEPENDENCE STATE LAWS
The Article 25 of the Constitution of Indiais a basic human
right guarantee (see Articles 18 and 19 of the Universal Declaration of Human
Rights) that cannot be subverted or misinterpreted in any manner. Anti-conversion laws are promulgated on the
premise that forced or induced conversions happen
and need to be prevented.
A consolidation of various anti-conversion or so-called "Freedom of
Religion" Laws has been done
by the All Indian Christian Council. Several Indian states passed Freedom of
Religion Bills primarily to prevent
people from converting to Christianity. Orissa was the first state to bring such law named as 'Orissa Freedom of
Religion Act, 1967' It was followed by Madhya
Pradesh in 1968 and Arunachal Pradesh in 1978.? Christians protested
against this saying that propagation of their faith was an important part of Christianity. Both laws enacted
by the Orissa and Madhya Pradesh high courts were challenged stating Article 25 of the Constitution. The Supreme Court supported the laws
saying, "What is freedom for one is freedom for the other in equal measure and there can, therefore,
be no such thing as a fundamental right to convert any person to one's
own religion".
Chhattisgarh in 2000 and Gujarat State in 2003 passed anti-conversion laws that prohibit
forced or money induced conversions. In July 2006, the Madhya Pradesh government passed legislation requiring
people who desire to convert
to a different religion to provide
the government with one month's
notice, or face fines and penalties. In August 2006, the Chhattisgarh State Assembly passed similar
legislation requiring anyone who desires
to convert to another religion
to give 30 days' notice to, and seek permission from, the district magistrate. In February 2007, Himachal Pradesh
became the first Congress Party-ruled state to adopt legislation banning illegal
religious conversions. It was followed by Rajasthan in 2008, but it has still not become an act. So total there are 10 states where freedom of religion bill has become
an act- Odisha, Madhya Pradesh,
Arunachal Pradesh, Chhattisgarh, Gujarat, Haryana,
Himachal Pradesh, Uttarakhand, Uttar Pradesh
and Jharkhand.
In 2013, the Bharatiya Janata Party general secretary Venkaiah Naidu has
declared that his party would bring
anti-conversion laws nationwide if his party is elected to power in 2014? However,
as of January 2018, the party does not yet have a majority in the Upper House of the Parliament. The president of party Amit
Shah has challenged the opposition parties to support it in enacting such a law. The US State Department has said
that the recent wave of anti- conversion
laws in various Indian states passed by some states is seen as gradual increase
in ideological Hindu nationalism (Hindutva).
Madhya Pradesh Freedom
of Religion Act of 1968
The Niyogi Committee
(1954) set up by the Congress government in Madhya Pradesh
alleged that Christian
missionaries were creating
'a state within a state' and observed
that the 'philanthropic activities of Christian
missionaries are a mask for proselytization.' Missionary work was also opposed by the Sangh Parivar. The Madhya Pradesh
Assembly rejected the Freedom of
Religion Bills of 1958 and 1963. However, this bill was passed in 1968 as 'The Freedom of Religion Act.' The Madhya
Pradesh 'Freedom of Religion Act' requires that a convert produce a legal affidavit that he/she was not under any
pressure, force, or allurement to
convert but was converting by own will and desire after evaluating the religion
properly. Also according to this law, anyone who writes or speaks or sings of 'divine displeasure' (with an
intention to induce
forced conversion by means of threat) can be imprisoned for a period of up to
two years and fined up to five
thousand rupees.
Orissa Freedom of Religions Act of
1967
The Orissa Freedom
of Religions Act of 1967 states that "no person
shall convert or attempt to convert
either directly or otherwise any person from one religious faith to another by
the use of force or by inducement or
by any fraudulent means nor shall any person abet any such conversion". Contravention of this
law was punishable with imprisonment of up to one year and/or a fine of up to Rs 5,000. In the case of a minor, a
woman, or a person belonging to a Scheduled
Caste or Tribe, the punishment was up to two years of imprisonment and the
limit of the fine raised
to Rs. 10,000. The Orissa
High Court, however, struck down the
Act as ultra vires of the Constitution on the ground that the state legislature did not have the right to legislate
matters of religion. The same year, the state of Madhya Pradesh also
enacted the Madhya Pradesh Freedom of
Religion Act as seen above. However, the Madhya Pradesh High Court, in contrary to the Orissa High Court,
negated the challenge of some Christians that the Act violated their fundamental right as provided
under Article 25 of the Constitution. The decisions of both the Courts were challenged before
the Supreme Court. The Supreme Court upheld the decision of the Madhya Pradesh
High Court and reversed the decision of the Orissa
High Court.
Arunachal Pradesh Freedom
of Religion Act of
1978
The Arunachal Pradesh
government enacted this Act to protect the tribals of Arunachal Pradesh
from forced conversions of
any kind.
Tamil Nadu Prohibition of Forcible Conversion of Religion Bill 2002
The Tamil Nadu Prohibition of Forcible Conversion of Religion Bill 2002
stated that 'No person shall convert
or attempt to convert directly or otherwise any person from one religion to another either by use of force or by
allurement or by any fraudulent means.' However, soon after the defeat of the Bharatiya Janata Party-led coalition in the 2004 elections, the Tamil Nadu Government led by
Jayalalitha repealed the law in June.
Gujarat Freedom
of Religion Act 2003
The Gujarat Assembly passed the Freedom of Religion Act in March 2003. It
was called the Dharam Swatantrata
Vidheya (Freedom of Religion Act). Narendra Modi, the Chief Minister of the State, called the Act as one of the
main achievements of his government's one year in office. The law prohibited conversion by force or inducement.
Himachal Pradesh
Freedom of Religion
Act 2006
Himachal Pradesh Freedom
of Religion Act 2006 is a bill unanimously passed by the Legislature
of Himachal Pradesh state in India on 19 December 2006. According to Chief minister
Virbhadra Singh, "The
Bill was intended
to prevent forcible
conversions. Conversions created resentment among several
sections of the society and also inflame religious passions leading to communal clashes," he
said. He claimed the Bill was meant to prevent exploitation of the depressed classes. On 20 February
2007, Governor Vishnu Sadashiv Kokje gave his
assent to the Himachal Pradesh Freedom of Religion Bill 2006.
JUDICIAL INTERPRETATIONS
Ø Landmark Judgments
The Indian
judiciary has played a pivotal role in interpreting and protecting the right to freedom of religion through various landmark judgments:
·
Kesavananda
Bharati v. State of Kerala (1973) established the basic structure doctrine, asserting that the Constitution's
fundamental rights, including the right to religious freedom, cannot be altered or abridged by amendments.
·
S.R. Bommai
v. Union of India (1994) dealt with the issue of federalism and the misuse of Article
356, emphasizing the need to respect the autonomy of state governments, including their management of
religious institutions.
·
Shayara
Bano v. Union of India (2017) challenged the practice of instant
Triple Talaq, highlighting the
intersection of gender rights and religious practices. The Supreme Court ruled the practice
unconstitutional, thereby reinforcing the rights of women within the framework of religious freedom.
·
Sarla
Mudgal v. Union of India (1995): This case focused on the conflict
between personal laws and the
constitutional guarantee of equality. It addressed the issue of conversion to Islam for the purpose of
polygamy, with the court emphasizing that while
individuals have the right to change their religion, it cannot be used as a
tool to bypass legal restrictions.
·
Indian Young
Lawyers Association v. State of Kerala (2018): This landmark judgment allowed women of menstruating age
to enter the Sabarimala temple, challenging
traditional religious practices that restricted entry. The judgment emphasized that religious practices must comply with constitutional morality and fundamental rights, and they cannot infringe on the rights of women.
·
Ismail
Faruqui v. Union of India (1994): The Supreme Court ruled that the demolition of the Babri Masjid, although a
religious structure, had to be viewed within
the larger context of law and order. The court highlighted the delicate balance between
religious freedom and maintaining public peace.
Ø Balancing Rights
The judiciary often faces the challenge
of balancing individual rights against collective religious practices. The courts have, in various cases,
emphasized that while the freedom to practice religion is protected, it cannot
infringe upon the rights
of others or public order.
SOCIETAL IMPLICATIONS
Ø
Religious Minorities
India's pluralistic society
necessitates special protections for religious minorities. The National Commission for Minorities, established
under the National Commission for Minorities Act, 1992, plays a vital role in safeguarding the rights of minorities. It addresses grievances, ensures representation in decision-making processes, and promotes educational and economic development.
Ø Challenges to Religious
Freedom
Despite constitutional guarantees, religious freedom
is frequently challenged by societal norms,
political agendas, and communal tensions.
Instances of mob violence, targeted
attacks on religious minorities, and the rise of religious intolerance have underscored the vulnerabilities that exist within the framework of religious
freedom in India.
SECULARISM IN INDIA
The western idea of "Secularism"
was obtruded on Indians by the colonial masters and upon independence the Indians
rejected it, and a customised version of it was introduced, suitable to the peculiar socio-cultural and political
situations of India, but this "desi" version is also open multiple interpretations. India, has always been the land which
welcomed all faiths and religions
from all corners
of the world, and the people having
diverse faiths also found India to be a conducive place to live freely and
remain undisturbed. Gradually, these faiths started influencing each other and also the polity of the country, and
rightly so, because when one is surrounded
by superior philosophies continuously it is somewhat strenuous to not be
theist, and slowly the philosophical
characteristic of India developed into a theist State and not otherwise. The Constituent Assembly was
divided over the amendment, whether to begin the Constitution with "In
the name of God", many arguments were made for and against
pertaining to the relation of
the State with religion, but finally the amendment was declined but the assembly
did not agree
over the term secular either.
The assembly was unanimous on the point
that independent India
should be secular
as secularism is essential for democracy to prosper in India, but what
kind of secularism India should adopt was a conundrum. The word
"Secular" was added to the
Constitution vide the 42nd Constitution Amendment after the historic
virtues of tolerance and harmony
were rejuvenated by the efforts
of various laws and judicial
interpretations. This concept of Secularism is not similar to the
Doctrine of Secularism in America,
which tries to establish a rigid distinction between the State and the religion.
India adopts an affirmative side of
secularism, wherein it is neutral in terms of religion, and is in consonance with its ancient
legacy of accommodating all faiths and abandoning none.
According to Donald E.
Smith, the Indian way of secularism refers to the non-religious functioning of the State, it has a
non-communal and non-sectarian connotation and not a strict schism between state and religion.
India may not be a completely theist
state but it is definitely not an atheist state. India has its own way of dealing with
multiculturalism and relies more on customisation and adjustment with all beliefs than stubbornly rejecting them.
CONCLUSION
India has long embraced secularism as a core value, rooted in its ancient
tradition of cultural and religious
freedom. While the Western concept of secularism may not fully apply to the Indian context, the inclusion of the term
"secular" in India’s constitutional framework remains significant, symbolizing a commitment to diversity.
Though criticisms of the Essential
Practices Test are notable, this judicial tool is essential in a country as
religiously diverse as India, where unchecked disputes could escalate if not carefully adjudicated.
However, the test should be reserved for cases with serious concerns
about violations of constitutional restrictions, rather than
intervening in minor religious practices.
The judiciary has consistently upheld the autonomy of religious
institutions, particularly in their
management and foundational practices, while the state largely refrains from overregulating religious affairs focusing
instead on the commercial aspects when necessary. This balance, maintained by the state, judiciary, and society
at large, exemplifies India’s "unity
in diversity" and strengthens its democratic resilience, even under
challenging circumstances.
REFERENCES
1.
“The Constitution of India” M P Singh
2.
“Freedom of Religion” by Dr. Subhash
C. Kashyap
3.
“The Indian
Constitution: A Critical
Commentary” by S.P. Sathe
4.
“Religion Of India
2011 Census”
5.
“Rajendra Prasad v. State of Uttar Pradesh (1954)”
6.
“S.R. Bommai
v. Union of India (1994)”
7.
“Kesavananda Bharati
v. Union of India (1973)”
8.
“Sri Venkataramana Devaru v. State of Mysore
(1958)”
9.
“Society for Unaided Private
Schools of Rajasthan v. Union of India (2012)”
10.
“Commissioner,
Hindu Religious Endowments, Madras v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt (1954)”
Article Information
FREEDOM OF RELIGION UNDER CONSTITUTION OF INDIA
Authors: KUSHAL M S, SARASWATHI
- Journal IJLRA
- ISSN 2582-6433
- Published 2024/11/23
- Issue 7
About Journal
International Journal for Legal Research and Analysis
- Abbreviation IJLRA
- ISSN 2582-6433
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