In this article, Akanksha Yadav, student at Dr. Ram Manohar Lohiya National Law University, Lucknow gives an overview of the right to freedom of religion available under the Constitution of India along with important case laws. The article has also discussed the Sabarimala judgment and the changes it has brought to the freedom of religion.

Why freedom of religion is important in India?

India is home to people following different religions and having different faiths. As per the census of India 2001, there are 6,639,626 people who follow other religions apart from the six major religions which are Hinduism, Jainism, Islam, Buddhism, Sikhism, and Christianity.

There are various divisions within a religion, for example, amongst Islam there are Shias, Sunnis, Hanafis and among Jains, there are the Digambara and Svetambara divisions. Divisions within a religion follow a different faith from other divisions by following different customs, practices, and traditions. So with such a diverse population, following different religions and beliefs, it becomes necessary to protect and secure rights regarding faith of each and every religion. Therefore, in India, legal rights are provided  like the right to worship; right to visit religious places (like temple, mosque, church) to follow their faith and religion but it is subject to certain restrictions prescribed in the Constitution.

Revolt from the past on the violation of Freedom of Religion

It is evident from the past that Indians have been sensitive regarding their religious beliefs and customs. Whenever a foreign ruler tried to interfere with the people’s customs or religious practices, they became disgruntled and revolted. Even the immediate cause behind the Revolt of 1857 (the First War of Independence) was that Mangal Pandey was forced to act against his religious beliefs. He was forced to pull off the cartridge of the gun from his mouth which was believed to be greased with  a mixture of cow and pig lard. In Hinduism, cows are worshipped like ‘mother’ whereas Muslims believe pigs are impure, they not only avoid to pronounce pig but also consider it as a sin to think about pig. When Britishers disrespected their faith, it became a serious cause of revolt and led people to revolt against the British Raj.

Indians are still the same when it comes to their faith and religion. Their religious sentiments are one of the most important concerns in their life. Even now if anyone messes up with their religion and culture, they consider it as their duty to protect their religion and get the accused punished for it. But it is not necessary that every act against someone’s faith and belief is wrong in the eyes of law. There may be instances where people’s religious sentiments are hurt without any legal wrong. Therefore, giving freedom of religion not only becomes necessary for securing the religious rights of people but also to define the scope of what could be considered as a legal wrong against  religion.

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What is the relation between Secularism and Freedom of Religion in India?

In 1976, by the 42nd Constitutional amendment word ‘secular’ was added to the preamble of the Constitution. India being a secular state, is a no state religion which means that it follows no particular religion.

What is Secularism?

In Ahmedabad St. Xavier’s College v. State of Gujarat, the Supreme Court held that Secularism neither means anti-god nor pro-god. It just ensures that no one is differentiated on the basis of religion eliminating the concept of God in matters of the state.

While dealing with the concept of  ‘secularism’ in detail, the Supreme Court in S.R Bommai v. Union of India explained that under the Constitution, secularism does not mean an atheist society but a heterogeneous society providing equal status to all religions without favoring or discriminating against any one.

How India’s stance on freedom of Religion differs from the US?

Both India and the US are the secular countries. But, there exists a major difference between the concept of ‘secularism’ followed by both the countries.

What is that difference in the concept of Secularism?

Paresh Raval’s dialogue from Oh My God movie, “Mai sab dharmon ka aadar karta hoon aur kisi bhi dharam mein maanta nahin” which means that “I respect all religions and I don’t believe in any religion”. It defines the difference in approach of India and US towards the religion. The first part of the dialogue depicts the position of India where the principle of “Sarva Dharma Sambhava” which means “equal respect for all religions” whereas the second part of the dialogue represents the US ideology which has drawn a line between religion and state. In the US, the State works independent of religion and there exists a wall of separation between the Church and the State.

Secularism in India Secularism in the US
Follows the concept of ‘neutrality’ and ‘positive role’  towards the religion. Follows the principle of ‘non-interference’ in the matters of religion.
The State can introduce religious reforms, protect minority and formulate policies on religious matters. The State cannot take any action in religious matters.

Which provisions under the Indian Constitution guarantee freedom of religion?

Articles 25 to 28 in the Constitution of India provide the right to freedom of religion.

Article 25 Article 26 Article 27 Article 28
It imparts freedom of conscience and free profession, practice and propagation of religion. It gives freedom to manage religious affairs. It sets freedom as to payment of taxes for promotion of any particular religion. It gives freedom as to attendance at religious instruction or religious worship in certain educational institutions.

It is available to

persons.

It is available to religious denominations. It is available to a  person against religious denomination(s). It is applicable to educational institutions. A person can invoke it.

Article 25

In Ratilal Panachand Gandhi v. State of Bombay, the Supreme Court stated that Article 25 guarantees every person (not only citizens) the freedom of conscience and right to freely profess, practise and propagate religion imposed with certain restrictions by the State. These restrictions are:

  1. Public order, morality and health and other provisions of the Constitution (Clause 1 of Article 25).
  2. Laws relating to or restricting any economic, financial, political, or other secular activities associated with religious practices. (Clause 2(a) of Article 25).
  3. Social welfare and reform that might interfere with religious practices.

Is it necessary that freedom of conscience is always related to religion?

No, freedom of conscience need not necessarily be connected with any particular religion or faith in God. It includes that the right of a person shall not be converted into another man’s religion or belief in any religion at all.

What does profess, practice and propagate mean?

The court in Stainislaus Rev v. State of MP explained that freedom of ‘profession’ means the right of the believer to state his creed in public whereas freedom of ‘practice’ means his right to give expression in forms of private and public worship. The court also explained that the right to propagate one’s religion means the right to communicate a person’s beliefs to another person or to expose the tenets of that faith, but shall not include the right to ‘convert’ another person to the former’s faith. In the Commissioner Hindu Religious Endowments Madras v. Sri L T Swamiar of Sri Shriur Matt, the Court held that ‘profess’ means ‘right to freely declare of one’s faith”.

Does Article 25 protect the performance of every religious practice?

No, Article 25 only protect those practices which are integral parts of a religion. It is the duty of the court to decide whether a practice is an essential practice or not depending on the evidence formulated by the conscience of the community and the tenets of the religion.

  • Some of the religious practices which were held essential by the Court:
  1. In Mohd. Hanif Quareshi v. State of Bihar: In Hinduism, worshipping of an image or idol.
  2. In Sarwar Husain v. Addl. Judge: Muslims offering prayers at a public mosque.
  • Some of the religious practices which were held not essential by the Court:
  1. In Mohd. Hanif Quareshi v. State of Bihar: The sacrifice of a cow in the Muslim religion.
  2. In Sarup Singh Sardar v. State of Punjab: The right to elect members to a committee for the administration of a Gurudwara property amongst Sikhs.
  3. In Lily Thomas v. Union of India: A Hindu male marrying a second wife after conversion while first spouse living.
  4. In Nirmal Kumar Sikdar v. Chief Electroal Officer: Prohibiting photographs of a woman to be taken for electoral purposes in Islam.

Article 26

Article 26 guarantees the following rights to a religious denomination with subject to public order, morality, and health:

  1. To establish and maintain institutions for religious and charitable purposes.
  2. To manage its own affairs in matters of religion.
  3. To own, acquire and administer both movable and immovable property in accordance with law.

What is a Religious Denomination?

As the Constitution of India does not define religious denomination, judicial pronouncements are to be considered for understanding what qualifies as a religious denomination. In SP Mittal v. Union of India, the apex court laid down three conditions that need to be fulfilled by a religious denomination:

  1. Collection of Individuals having a common faith.
  2. A common organization.
  3. Designation by a distinctive name.

Examples of religious denomination

In Hinduism, there is Shaivism, Shaktism, Vaishnavism, etc. as common denominations. In Islam, Shia and Sunni are the two well-known denominations.

Sects or sub-sects of a religion

The denomination can also be used for forming sect or sub-sect of a religion designated by a distinctive name. Examples of sects or sub-sects which are a religious denomination:

  1. Vaishnavism sect in Hinduism.
  2. Ramakrishna Math or Ramakrishna Mission.
  3. Shia, Hanafi and Chishti sects in Mohammedan law.
  4. Ananda Marg.

Examples of sects or sub-sects which are not a religious denomination:

  1. Aurobindo Society.
  2. Followers of Ayyappa

Article 27

Article 27 protects a person from forceful payment of taxes and proceeds which are for the promotion or maintenance of any particular religion or religious denomination.

Is Article 27 equally applicable to the fees charged by the Government for maintenance of religious institutions?

No. The Supreme Court in the Commissioner Hindu Religious Endowments Madras v. Sri L T Swamiar of Sri Shriur Matt stated that Article 27 does not prohibit the State from charging fees for regulating the secular administration of religious institutions in the country.

Article 28

Article 28 provides freedom from any religious instruction in educational institutions which are maintained completely out of State funds. This article is not applicable to an educational institution if it is administered by the State, but was established under any endowment or trust requiring certain religious instruction to be imparted in that institution. This article also protects a person from taking part in any religious instruction or attending any religious worship which may be conducted in an institution recognized by State or receiving aid from State funds unless his guardian has consented.

Are moral instructions also prohibited under Article 28?

No. In Nambudripad Kidangazhi v. State of Madras, it was held that moral instructions are not prohibited. The court said that Article 28 only restricts religious and not moral education if it has no relation with any religious denomination.

Will an institution be considered ‘wholly maintained out of state funds’ if it receives fees apart from State grants?

Yes. In D.A.V. College v. State of Punjab, Supreme Court ruled out that even though an institution might be receiving fees for affiliation or holding examinations, it may be considered ‘wholly maintained out of State funds’ if it is receiving grants for its expenditure.  

Major judicial pronouncements on Freedom of Religion

In this case, three children of Jehovah’s Witnesses sect were suspended from the school as they refused to sing the national anthem claiming that it is against the tenets of their faith. The court held that expulsion is violative of fundamental rights and the right to freedom of religion.

The Court held that Ananda Marga is not a separate religion but a religious denomination. And, the performance of Tandava on public streets is not an essential practice of Ananda Marga.

M. Ismail Faruqui v. Union of India

The apex court held that the mosque is not an essential practice of Islam and a Muslim can offer namaz (prayer) anywhere even in the open.

Petitioner challenged the validity of Section 295 of IPC which penalized the act or attempt of insult of a religion or religious beliefs of a class of citizens. The Court held that Section 295 is consistent with Article 25 and held it to be constitutional.

The validity of the Jagannath Temple Act, 1954 was challenged as it enacted provisions to manage the affairs of Puri temple on the grounds that it is being violative of Article 26. The court held that the Act only regulated the secular aspect of seva puja, therefore, it is not being violative of Article 26.

The petitioners contended that Durgah Khwaja Saheb Act, 1955 violated Article 25 and 26 which provided for the appointment of Hanafi Muslims as members of Committee none of them belonging to the Chishti sect. The Court held that the Chishti sect is a religious denomination but the act does not violate the right to freedom of religion as Chishti Sufis never had the right to manage the Durgah endowment.

Sabarimala Verdict and Freedom of Religion

In 2017, a PIL was filed under Article 32 by the petitioners challenging the practice followed in Sabarimala temple which did not allow the entry of women from the age group of 10-50 years. A constitutional bench was set up in 2018 which held that the practice was unconstitutional and uplifted the ban on entry of women stating that followers of Ayyappa do not form a separate religious denomination but are Hindus only and, such a ban is not an essential practice of the religion.

Has Sabarimala Judgment encroached the Freedom of Religion?

From the inception of Article 25 and 26 in the Constitution of India, the power of deciding whether a practice is essential to a religion or not was only with the court. In the Sabarimala judgment, the court exercised its power and decided against the old and rudimentary practice which holds no value in today’s society. India is developing and such practices which are gender biased, considering menstruating females to be impure have no place in the society.

Though the Sabarimala verdict has opened pandora’s box giving rise to a number of applications challenging practices which are biased mostly against women. The court has not been at fault in deciding in favor of women as the old custom was violative of right to equality and was arbitrary in nature. The court held the practice unconstitutional.  

What is the current position of Freedom of Religion in India?

Currently, in India, the restriction of morality which was earlier of societal morality has changed into Constitutional Morality. But, this term is nowhere mentioned in the constitution. ‘Constitutional Morality’ is a judiciary invented term which gives too much power in the hands of the judiciary. Already, the doctrine of basic structure has left too much power in the hands of the judiciary to interpret the constitution and decide anything as basic structure according to their discretion as there is no strict formula for deciding the same. If all the past decided cases applying constitutional morality are analyzed, it can be inferred that it is trying to adapt the country to the present norms giving supremacy to ‘live with dignity’. Whether its declaration of Section 377 of IPC as unconstitutional or Sabarimala Judgment striking down the old practice of not allowing woman, constitutional morality is trying to uplift the society. The fact still remains the same that the court has a huge discretion of power in deciding cases. It is said: “Power corrupts and absolute power corrupts absolutely.” It would be interesting to note how the court is going to exercise the power it has got under Constitutional Morality’.

Conclusion

India being a secular state provides equal protection to all the religions. Equal protection does not mean that it always aids and promotes its citizens to follow a religion and its practice, but at times it means to interfere and bring positive reforms for the betterment of the society. A question which recent judgments have raised is whether it is necessary for the court to decide the constitutionality of a practice merely to establish a right even when it does not hurt a majority section of the society.

This new wave of modernism and feminism has set a trend of questioning customs to establish and showcase the right to equality available to us as a fundamental right. Though fighting for your right is not wrong, interfering in religious matters just to establish a right and hurting religious sentiments of certain followers is not something which a secular state should do. Unless there is grave harm which affects a section, faith and beliefs of the followers should not be hurt. For example, in many places, there is followed a practice of keeping menstruating girls away from the home and this practice took away the life a girl who was forced to stay in the hut due to her periods during Cyclone Ganja. Such practices need to be scrapped off no matter how many sentiments are hurt but at the same time when a temple which neither allows the entry of a man nor of woman then there need not be interference of the State to ensure the right to freedom of religion.

 

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