Open Access Research Article
INDIA & FREEDOM OF RELIGION
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Article Details
INDIA & FREEDOM OF RELIGION
AUTHORED BY
- B.R. BENCI JERALD[1]
Abstract
Freedom of religion and belief is one
of the fundamental rights which are entitled to every individual irrespective
of who they are, where they belong, their age, race, gender, and ethnicity. But
over the passage of time, this particular right has been diluted to a larger
extent. The interference of the State in religious affairs has maximized. This
in turn had the right of freedom of religion diminished to just words in the
Constitution. “Anti- conversion laws” which are paradoxically known as “Freedom
of Religion Acts” are enacted by various State legislatures in India; to
prohibit conversion through means reprehensible to the conscience of the
community such as allurement, force, inducement, fraud. These legislations were
enacted with the object of prohibiting forcible conversion but these laws are
executed in a way that prohibits even genuine conversion by the people out of
their conscience. The researcher, in this article has comprehensively dealt
with the concept of freedom of Religion in India and its problems.
The term
‘Religion’
The term Religion has not been
defined in the Indian Constitution and it is a term which cannot be confined to
any rigid concept. The need to define the term ‘religion’ was raised by Dr.
B.R. Ambedkar for the first time in the Constituent Assembly, when the matter
pertaining to personal law and its relation with social matters came up for
discussion. He being the chairman of the drafting committee pointed out that:
“Every aspect of life from birth to
death is dealt by the religious conceptions in this Country. There is nothing
which is not religion and if personal law is to be saved, giving it priority in
social matters of life, we will come to a standstill. Therefore, we ought to
strive to limit the definition of religion in such a manner that it shall not
extend beyond beliefs and rituals as may be connected with ceremonies which are
essentially religious”.[2]
Many other scholars, academicians,
attempted to define the term ‘religion’ but the term could not be confined to
any concrete definition, until the judiciary came to give a helping hand. The
role, Judiciary played in evolving the definition of religion is very
significant.
In 1889, Justice Field undertook to
define the word ‘religion’ for the American Supreme Court. He pointed out that;
“The term ‘religion’ has reference of one’s view of his relations to his
Creator and to the obligation they impose of reverence of His being and
character and of obedience to His will.[3]
But the Indian Supreme Court in Commr.
Hindu Religious Endowments v. Sri Lakshmindra Thirtha Swamiar of
Sri Shirur Mutt,[4]
considered the definition provided by Justice Field as inadequate and tried to
redefine the term religion in a very comprehensive way, therefore it noted
that:
“Religion is undeniably a matter of
faith exerted by an individual or community and it is not necessarily to be
theistic. There are some well-known religions in India; such as Buddhism and
Jainism, which do not believe in god or in any intelligent cause. No doubt, a
religion has its basis in the system of beliefs and doctrines, which are
regarded by those who profess that particular religion as conducive to their
spiritual well-being, but it would not be correct to confine religion to just
those beliefs and doctrines. A religion
may not only lay down a code of ethical rules for its followers to accept, it
might prescribe rituals and observances, ceremonies and modes of worship which
is regarded as integral part of religion and these forms and observations might
extend even to matters of food and dress.”[5]
In the absence of constitutional
definition of the term ‘religion’ and the matters connected with religion, the
Supreme Court has held that the task of deciding whether an activity is
religious or secular, with reference to article 25 and 26 depend on whether it
is essential or integral to the religion. This was elaborated in Commissioner
vs. Lakshimdra,[6]
where the court stated that “.....what constitutes an essential part of a
religion is primarily to be ascertained with reference to the doctrines of that
religion itself.
In general parlance ‘religion’ means,
a relationship between the God and an individual, being the follower of God. It is something inward and personal, which
unifies all values and organizes all experiences. This spiritual aspect of
religions has been lost in new religiosity, in which rituals have become far
more important than the essence and larger purpose of religion. Thus religion
is an important right which encompasses an identity for an individual in the
society. Moreover, only after establishing religious identity, many problems of
an individual can be settled, such as marriage, divorce, inheritance and even
property transfers.
India and
the Concept of Secularism:
Secularism in India, unlike the West,
was not designed to create a wall of separation between church and state.[7]
Constitutionally, India is a secular nation but neither in law nor in practice,
there exist a ‘wall of separation’ between the State and religion. The two can
and often do interact and intervene in each other’s affairs within the legally
prescribed and judicially settled parameters. Indian secularism does not
require a total banishment of religion from the societal or even State affairs.
It was designed to assure minorities; that their culture, religion and identity
would be protected and that the majoritarian view would not be imposed on them.[8]
The founding fathers of Indian
constitution considered secular nature to be the very basis of the Indian
constitution.[9]
“By secular State,
it is provided that the State is not going to make any discrimination against
any person whatsoever on the ground of religion or community or professing any
particular form of religious faith. The essence of which is that, the State
shall not give preference to any particular religion whatsoever, further it
shall not establish, patronize or endow any particular religion to the
exclusion of others. Moreover, no person shall be given a preferential
treatment or will be discriminated against simply on the ground that he
professed a particular form of religion. In other words, the State shall not
prefer any particular religion in its affairs. This I consider to be the
essence of a State being called as secular. Also, the State should be very careful
to see that no one is denied of his right to not only to profess, or practice
but also to propagate any particular religion.” He thus gave a broad view on what the word Secularism
is meant in India.
Though most of our founding father
and scholars advocated for secularism, nowhere in the original draft of the
Constitution, the word ‘secularism’ was mentioned. It was only in the 27th
year of Republic by the 42nd Amendment Act 1975,[12]
the concept became explicit and it was added to the preamble of the constitution.
Until then the concept of secularism was implicit in the constitution via
Article 25 to 30. The most important provision in the constitution which
patrons secularism was Article 25 which provides; all persons are entitled to
freedom of conscience, right freely to profess, practice and propagate
religion. The constitution not only guarantees a person’s freedom of religion
and conscience but also ensures freedom for one who has no religion. It also
meticulously restrains the state from making any discrimination on the basis of
religion.[13] All the
more Indian constitution can be lauded as it assures single citizenship to all
persons irrespective of the religion to which they belong. [14]
Secularism was embraced as a
fundamental principle based on two reasons. First being, by establishing
equality between all religions, it can help prevent religious strife. This
proposition of equality goes beyond the affirmation that all people have the
freedom to practice their religion, which was guaranteed under Article 25 of
the fundamental rights chapter of the Constitution.
The second reason for its adoption as
a fundamental principle is that, secularism stretch beyond equality and freedom
and goes on to declare that the State is not oriented to any particular religion.[15]
Thus, Secularism in Indian goes much
beyond mere state neutrality in matters of religion to the extent of rendering
protection to minority rights and that the religion of any majority community
would not be given any upper hand by the State. Minorities have almost an
absolute right to preserve their language, scripts and culture.[16]
They are also entitled to establish and administer educational institutions,
including universities of their choice.[17] It is this particular commitment that
establishes the credentials of Indian Secularism.[18]
For example, since Pakistan had become a theocratic state, such an assurance
for Indian Muslims was essential. Due to this assurance, a massive majority of
Muslims decided to stay in India.
Freedom of
Religion
Freedom of religion or belief (FoRB)
is a fundamental right of every human being. It is universal in nature in the
sense that it applies to all persons equally, regardless of who they are, where
they live, their age, gender, race or ethnicity and what they believe or do not
believe in. [19]
Free exercise of this right will directly contribute to democracy, development,
rule of law, peace and stability. Further it protects the conscience of all
people and allows us to think, express and act upon what we deeply believe.[20]
FoRB is an expansive
bundle of rights covering extensive issues of distinct yet interconnected
issues. Universal Declaration of Human Rights noted that “all are endowed with
dignity and conscience” meaning that, freedom of religion and belief, is not just
a privilege provided by a State but an individual’s birthright. Added to this,
an individual has an absolute and unconditional right to hold any religion or
belief. Under no circumstances, limitations can be placed on beliefs of an
individual. [21]
There are two dimensions to Religious
Freedom;
1.
Right
of individuals to freedom or religion and beliefs:
Freedom of religion protects the
right of all people to hold their own religious beliefs and express them openly
and freely without the fear of persecution; it also protects the equal rights
of citizenship. Further the freedom, ensures that the people can freely chose
or change any religion and teach their faith, beliefs to their children and to
receive, disseminate religious information also to gather with other in a
fellowship and worship and participate in ceremonies and practice their faith.
Moreover, this freedom protects individuals from discrimination in employment,
housing and other basic service on the basis of religion and prevents people
from being denied the right to have an occupation, business or a professional
license based on their religion.[22]
2.
Right
of Religious communities to practice or manifest their religion, in public or
in private, through worship, observance, practice and teaching.[23]
It is not only individuals who are
protected under freedom of religion but also religious organisations that make
faith communities possible. It encompasses the right to form churches and other
religious institutions, such as religious schools and charities. It affords
such institutions the freedom to establish their doctrines and modes of
worship; to organise their own ecclesiastical affairs; to determine
requirements for membership, ecclesiastical office and employment and to own
property and construct places of worship.[24]
Other fundamental
rights are intrinsically and inextricably intertwined with the right to
religious freedom, including the right to freedom of expression, freedom of
association, right of privacy and the universal principles of
non-discrimination and equality of all.[25]
Further religious
freedom also provides that, no one may be compelled to reveal adherence to a
religion or belief. Likewise, no one may
be mandated to declare non adherence to religious beliefs to obtain employment
or other social or economic benefits.[26]
As reiterated, freedom of religion
encompasses in its ambit that; without being subjected to the approval of State
or majority religion community, one has the right to manifest one’s own
religion and it includes the right to share one’s religion or belief to others
peacefully. However, in exceptional cases, limitations can be placed on the
freedom to manifest religion or belief but such limitation must be in
compliance with international standards.[27]
Therefore, the health of a diverse
society depends on the enjoying of the right of religious freedom of freedom of
conscience. It allows different faiths and beliefs to flourish together.
Religious freedom thus protects the rights of all individuals and groups,
including the most vulnerable, whether religious or not.[28]
The importance of
religion for human, social and political flourishing was understood by the
American founders. That is the reason they drafted the right of religious
freedom as their first freedom, which provides; freedom to all to exercise
their religion. They were convinced that religious freedom was essential for
the well-being of their citizens, for the common good and also for the public
virtue without which they believed that the new republic would fall. This view
was most accurately called the ‘free exercise equality’.[29]
India and
Freedom of Religion:
Freedom of religion is guaranteed to
persons, in almost all the countries in the world in some form or the other.
And in a multi religion country like India, such a guarantee assumes special
importance[30] whose
religious diversity is not just a recent or contemporary phenomena but can be
traced back to the history of civilization.[31]
Religion is an indispensable part of human existence. After the rights of life
and personal liberty and the freedom of speech and expression, freedom of
religion is considered to be the third most important civil liberty.
Among the seven countries of South
Asia forming, the South Asian Association for Regional Cooperation (SAARC),[32]
India stands out as the only country that as declared itself as a secular
State. In each of the other six countries, one or another spiritual faith has
the status of officially adopted or legally promoted religion; Buddhism in
Bhutan[33]
and Sri Lanka,[34] Hinduism
in Nepal,[35] and
Islam in Bangladesh,[36]
Maldives,[37] and
Pakistan.[38]
India is deeply religious and
pluralistic society. With more than 1.2 billion people, it is the world’s most
populous country and has outstripped China as the most populous in the world.
It is also by far the world’s largest democracy. With the growing population,
India can be lauded for its diversity in religions and its practices.
In India, like most other traditional
societies, Religion has been the foundation of the society and has played a
vital role in the functioning of whole of its machinery throughout all ages and
also in the process of her transition to a democratic nation. This religious
India is not only a birth place of many religions but has also provided shelter
for various other religions that came from different parts of the world.
India, an officially secular nation
has detailed constitutional provisions for religious rights. The preamble of
Indian constitution describes it as a “Secular Nation” emphasising that there
is no State religion, which means there is no officially adopted or legally
promoted religion unlike other SAARC Nations. The Preamble also provides for
“Liberty of thought, expression, belief, faith and worship, rendering its
citizen; liberty in their faith and belief.
The Indian constitution also contains detailed provisions for religious
freedom. Article 19 provides for freedom of speech, expression and association
along with other fundamental freedoms. Article 25 provides for freedom of
conscience, free profession and practice of religion as well as right to
propagate religion. Article 28 to 30 protects religious freedom in relation to
religious instruction and Article 51A imposes a positive duty on the citizens
to promote harmony and the spirit of common brotherhood transcending religious
boundaries. There are also various international documents to which India takes
reference in deciding various disputes, such as UDHR, ICCPR and ICSR which also
advocates for religious freedom.
Despite these positive attributes in
its fundamental law and it being part of various international covenants and
also having diverse religious demographics and a robust civil society, India
finds itself in the throes and tangles of religious fundamentalism and violence
against religious minorities for a past few decades.
“Anti- conversion laws” which are
paradoxically known as “Freedom of Religion Acts” are enacted by various State
legislatures in India; to prohibit conversion through means reprehensible to
the conscience of the community such as allurement, force, inducement, fraud.
These legislations were enacted with the object of prohibiting forcible
conversion but these laws are executed in a way that prohibits even genuine
conversion by the people out of their conscience. These legislations fail to
distinguish between conversion by force and conversion by genuine conscience of
the person converting his/her religion. This is explicitly in contravention to
the religious freedom guaranteed by the constitution and international
instruments, which advocates for freedom of religion and conscience. Furthermore
it also curtails the right to propagate one’s own religion, which is guaranteed
by the constitution. These laws appear to shield ‘indigenous religions’ and
some of these legislations have gone to the extent of even eclipsing the
freedom of religion.[39]
In 1977 the Supreme Court of India in
Rev Stanislaus v. the State of Madhya Pradesh[40] upheld
the Madhya Pradesh anti conversion law (known as Madhya Pradesh Swatantrya
Adhiniyam 1968), arguing that the Constitution's guarantee of the right to
“freedom of conscience” and “freedom to profess, practice and propagate
religion” (Article 25) did not extend to the right to convert another person
against his or her free will, using force, fraud, or inducement. This judgment
of the Supreme Court can be lauded for the reason that, it prohibits forcible
conversion but this decision has come under some academic criticism for not
recognizing ‘the right to convert’ as inclusive of the ‘right of propagation’.
Moreover, as the right to freedom of
conscience encompass within its ambit; the right to change religion. The right
to change religion circumscribe in itself the right to choose of religion.
Significantly right of choice can be exercised by one only when one is aware of
the various choices that are available to him. Therefore, to enable a person to
get acquainted with various religious proponents, propagation of religious
tenets is essential. Thus, in this perspective, right of propagation can be said
to be a right derived from the freedom of conscience.
The true problem lies in the fact
that, the state actors under the guise of prohibiting forcible conversion and
also backing with the authority of law and judgments are prohibiting genuine
conversion of the people out of their conscience which are not done by way of
coercion or inducement of the others. The supreme court in its judgment did not
prohibit genuine conversion, in which people convert out of the own will. There
is a clear contravention of fundamental rights of the people when they are
stopped from converting out of their own will, which is guaranteed by Indian
Constitution under Article 25.
All the more, none of these laws-
‘Anti conversion laws’ define the terms “fraud, force, allurement or
inducement” with any specificity. Leaving these terms undefined looks like the
laws regulating conversion primarily serve the interests of those who profit
most from the status quo. These open-ended definitions, gives ample place for
arbitrariness and discretion in the hands of executors.
Conclusion:
To conclude undoubtedly there is no
justification for conversion brought by force, violence or other illegitimate
means. But on examining the legislations, one can see their impropriety in the
language adopted and these legislations goes far beyond the protection of religious
freedom. The terminology used by these statutes transforms them from their
purported role as protectors of constitutional rights into violators of these
very guarantees. These anti conversion law clearly violate Article 25, as these
laws put a blanket ban on conversion, which curtails the freedom of conscience
of every individual. Moreover, these laws ostensibly violate the right of
propagation.
[1] Advocate Practicing in Madras High
Court. Has completed her Masters in Constitutional and Human rights in School
of Excellence in Law, Tamil Nadu Dr. Ambedkar Law University.
[2] Constitutional Assembly Vol,7, p.781
[3] Davis v. Beason 133 U.S.
333 at 342 (1889)
[4] AIR 1954 SC 282:1954 SCR 1005
[5] Commissioner of H.R.E. v.
Lakshmindra, A.I.R. 1954. S.C. 282 at 290
[6] AIR 1954 SC 282:1954 SCR 1005
[7] See Donald Eugene Smith, India
as A Secular State, (1963). The term secularism implies three things in
most Western democracies: freedom of religion, equal citizenship to each
citizen regardless of his or her religion, and the separation of religion and
state.
[8] Secularism in India “means equal
treatment of all religions.” SMITH. “Religion in India continues to assert its
political authority in matters of personal law.”
[9] Per Ayyangar Jin Syedna taher
Saifuddin Saheb v. State of Bombay, AIR 1962 SC 853
[10] He was a member of Constituent
Assembly of India. He was also a member of parliament representing nabadwip,
West Bengal.
[11] Constituent Assembly Debates, 6
December, 1948; available at
http://www.parliamentofIndia.nic.in/Is/debates/vol.17p.20html.
[13] Article 15 of Indian Constitution.
[14] Inputs from; The constitution of
India, P.M. Bakshi, universal law publications, new delhi.
[15] The Secularism in India, HUBPAGES
(June 16, 2016), http://hubpages.com/pol itics/The-Secularism-in-India
[16] Article 29 of Indian Constitution
[17] Article 30 of Indian Constitution.
[18] Neera Chandhoke, “Why is Secularism
Important for India, in Contemporary India: Economy, Society, Politics”.
(Neera Chandhoke & Praveen Priyadarshi eds., 2009). . “Secularism, by
outstripping freedom and equality, stipulates that the state will maintain an
attitude of principled distance from all religious groups. It also contracts
that the state would neither align itself with any particular religion,
especially the majority religion, nor pursue any religious tasks of its own.”
[19] Cited
from European Union Guidelines on the Promotion and Protection of Freedom of
Religion or Belief, Para 16.
[20] Article on Religious Freedom.
Available at https://newsroom.churchofjesuschrist.org/official-statement/religious-freedom
[21] European
Union Guidelines on the Promotion and Protection of Freedom of Religion or
Belief,
[23] Universal
Declaration of Human Rights, Article 18; International Covenant on Civil and
Political Rights, Article 18; European Convention on Human Rights, Article 9.
[24] Ibid
[26] United Nations Human Rights Committee General Comment
22.
[27] European Union Guidelines on the Promotion and
Protection of Freedom of Religion or Belief.
[29] “What
in the World is Religious Freedom.” Available at https://www.religiousfreedominstitute.org/blog/what-in-the-world-is-religious-freedom.
[30] The Indian subcontinent is the birthplace of 4 major
world popular religions; Hinduism, Buddhism, Sikhism and Jainism. According to
report on 2011 census data, 79.80% of the population of India is Hindu, 14.23%
Muslim, 2.30% Christian, 1.72% Sikh, 0.70% Buddhist, and 0.37% Jain.
[31] Emperor King Ashoka, in his teachings to his subjects
said that:-“Each one should respect other’s religion. It is both wrong to
praise one’s own religion or criticise another’s. If one praises one’s own
religion while criticising another’s, one is actually doing greater harm to
one’s own religion. Therefore, one should try to understand the main ideas of
another’s religion and respect it.”
[32] For more information, see the
official SAARC website at http://www.saarc-sec. org/main.php
[33] The Bhutan Constitution 2005,
defines Buddhism as the ‘heritage which is spiritual to Bhutan’ and further
provides that the head of the State shall be ‘as a Buddhist’ and be as a
‘symbol of unity of the kingdom and the people of Bhutan’. Inputs from Bhutan
draft Constitution 2005Articles 2,3.
[34] The Sri Lanka Constitution, under
Article 9 it provided that, ‘the foremost place in the Republic of Sri Lanka
shall be given to Buddhism and accordingly the State shall have the duty to
protect and foster the Buddha Sasana.’.
[35] The Nepal Constitution, under
Article 4, provides Nepal to be a ‘independent, indivisible sovereign, secular,
inclusive democratic, socialism-oriented federal democratic republican State’.
But it define the term ‘secular’ to mean protection of religion and culture
being practiced since ancient times and religious and cultural freedom. To note
the ancient religion of Nepal was Hinduism and Buddhism.
[36] West Bengal. Which was formerly a
province of Pakistan was later made into a Sovereign State in 1971. Bangladesh
initially stated that it is a secular State but then eventually it amended its
constitution to adopt Islam as its State Religion.
[37] The Constitution of the Republic
of Maldives, under Article 2 provides that, “the Maldives is a Sovereign,
independent, democratic Republic based on the principles of Islam”.
[38] The Pakistan Constitution in its
Article 2 has provided that the ‘State Religion of Pakistan shall be Islam’.
Further in Article 31(a), it provided that the steps have to be taken to enable
the Muslims in Pakistan, that their lives were to be lived in accordance to the
fundamental principles and basic concepts of Islam and to understand the
meaning of life according to the Holy Quran and Sunnah.”
[39] Emphasised in Shodhganga Article: Other
Legislative Framework on freedom of religion in India.
[40] Rev. Stainislaus v. State of
Madhya Pradesh, (1977) 1 SCC 677
Article Information
INDIA & FREEDOM OF RELIGION
Authors: B.R. BENCI JERALD
- Journal IJLRA
- ISSN 2582-6433
- Published 2024/02/29
- Issue 7
About Journal
International Journal for Legal Research and Analysis
- Abbreviation IJLRA
- ISSN 2582-6433
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