This article has been written by Shoronya Banerjee, from Amity University, Kolkata. This article discusses the ambit of religious freedom and which aspects of it violate other rights.
Table of Contents
Introduction
The diversity of religions coexisting in India makes India quite famous worldwide. People of the nation have a strong belief and faith in the religion structuring and regulating our Indian society. Religion in our society plays a great role in shaping the behaviour and conduct of the people. The Preamble, key to the letter and spirit of the Indian Constitution introduced the term ‘secular’ in it by the 42nd Amendment which establishes India a secular state. It is not an irreligious state but holds a neutral position on the matter of religion. The nation treats all religions equally. Secularism promotes the idea of constructing a society with people of every religion and people not believing in any religion living peacefully together. The Constitution of India confers on all the fundamental right to promote and preach their own religious beliefs and follow the guidance of their religions.
Articles 25 to 28 under Part III of the Indian Constitution mentions the ambit of the right to freedom of religion. Whereas Articles 29 and 30 puts forth the right protection of the interest of minorities forbidding discrimination on any grounds. But all these rights are subject to public order, health and morality. Any exercise of these rights that go against the State, public order, safety, and nation’s integrity, then it no more falls within the ambit of fundamental rights. Through years freedom of religion has been seen creating public menace, initiating violence, and infringing other people’s fundamental rights at the cost of freedom of religion. Even though at several instances the State has interfered yet most of the time authorities feel threatened and do not interfere as it could cost them their vote banks or raise a question at their worth for being in the position of power.
Freedom of religion under the Indian Constitution
Secularism is one of the main facets of driving the nation towards betterment and development. India doesn’t have an official religion and it also acknowledges the equivalent interest of the state in all religions. In the landmark case of S.R. Bommai v. Union of India, the government of Janta Dal in Karnataka at that time had been declared to have lost the majority in the Assembly and were accused of working with huge defections introduced in the system falsely to showcase their majority and continue to remain in power. The Government had been dismissed on 21st April 1989 under Article 356 of the Indian Constitution which was followed by the imposition of President’s Rule on the state. The Janta Dal under the leadership of S.R. Bommai the then chief minister of Karnataka had approached the Supreme court appealing against such an imposition of President’s Rule on the governor’s call. This was a landmark judgment that put an end to whimsical and despotic dismissal of State Governments under Article 356. It also put forth the limitation in exercising his powers only after it has been accepted by both the houses of the Parliament. The court highlighted that Article 356 could be subjected to judicial review, and it also explained the position of secularism in the Constitution of India, and how it had been ingrained in it forever.
Article 25 to Article 28 of the Indian Constitution puts forth the right to freedom of religion. Article 25(1) guarantees to every person the ‘freedom of conscience’ and the right to profess, practice and propagate any religion of one’s choice in compliance to ‘ public order, morality and health.’ The term ‘conscience’ highlights the celestial and spiritual part of the religion that is much ahead of the State’s control. Under this article, everyone has the right to openly declare their faith, belief and adherence to a religion. ‘Propagate’ means the exposition to a religion without the existence of any aspect of coercion. Article 26, on the other hand, provides a collaborative and associated freedom with Article 25, that provides a relation between the State and freedom of religion in association with the ‘public order, morality and health.’ Article 26(a) approves the establishment and maintenance of institutions built for religious and charitable purposes. Article 26(b) provides to every religious organization the right to manage its own affairs and Article 26 (c) and (d) confers the right of administering property on their terms but in accordance to laws set forth by the State.
Further, under Article 27 no one can be subjected to any coercion for paying taxes and revenues allocated for maintenance and promotion of specific religion or such denominations. But the State is not disentitled to charge taxes only on the condition that it is utilized in maintaining religions without any discrimination. In the case of Mahant Sri Jagannath Ramanuj Das … vs The State Of Orissa And Another, the Orissa Hindu Religious Endowments Act had been passed and it had received the Governor General’s assent on the 31st August 1939. The Act wanted to bestow the control of public temples and Maths in a statutory authority known as the Commissioner of Hindu Religious Endowments. Under Section 49 of the Act, it was mentioned that rupees two-fifty had to be paid as an annual contribution for meeting the expenses incurred. The debate arose in this case for differentiating fee from a tax. The Supreme court had held that the annual contribution was a fee appropriated towards specific purposes for administering religious affairs with the math. This contribution wasn’t merged into general public revenue. Article 28 widely prohibits the transmission of religious knowledge and instruction in educational institutes maintained wholly or partly by state funds, but this isn’t applicable for educational institutions administered by the states but established under endowment or trust which mandates the imparting of religious instructions.
Freedom of religion violating other rights
The faith that one instils in their religion often becomes the reason for conflict with others. The aspect of supernatural powers and forces governing religions most of the time drives all the believers towards opposing sciences and logic. What one’s religion allows other religions might not, this is where the conflict arises. In a certain context even if an idea or principle has not been promoted by religion, people at a higher authority in terms of religion and the so-called holy learned leaders interpret and propagate such meanings that are completely against humanity, morality and against the rights of other human beings. Nobody stands against upholding the concept of following religious duties, it is rather promoted and the support for such ideals eventually gives rise to mass movements and mob violence. Time and again India has seen religion and freedom of religion being used as a means to acquire monetary gains, commit crimes, obtain political fame and retaining the position of power and gaining everyone’s support.
Freedom of religion against equality before the law
No rights as guaranteed by Part III of the Constitution are absolute, all of them are subject to reasonable restrictions and are also complementary to each other. The right to religious freedom has been derived from the right to equality and equal protection of the law. Set forth religious ethics, the language and culture interpreted from the holy texts and scriptures have somewhere promoted practices that increase exploitation and violence towards women. Religious freedom as traced back to time has shown very little cooperation towards gender equality. Progress in time couldn’t even do away with the concept of women acquiring a position inferior to that of men. Such discrimination in the name of gender has violated the right to equality before law and freedom of religion that women are entitled to.
It might be said that development and education has changed the scenario but yet this is followed in most of the places in India, women even today are forced to not consume non-vegetarian food and any food with onion and garlic after their husband’s demise, rural areas still witness widows being made bald, girls and women even today are stopped from participating in a holy ceremony or approaching towards god while menstruating and so on. Right from prohibiting entry of women into the Sabarimala temple, genital mutilation of women belonging to Bohra Muslim community, entry of Muslim women into mosques for prayer and unrestrained access of women into the agiyaris or the fire temples of Parsis, all of these have shown the fundamental right of freedom of religion violation right to equality before the law without any discrimination of prejudices against anyone.
In 2018, the Supreme Court’s move on opening the doors of Sabarimala Temple in Kerala to women of all age groups especially 10 to 50 years, the menstruating phase of life. This gave rise to huge movements, violence, protests and debates over the fundamental right to equality and right to religious freedom. Critics even argued saying that considering pure jurisprudence freedom of religion would always take over the right to equality and considering that the right to equality would be accepted as more fundamental. Almost 50 review petitions were filed in the Supreme Court as a result of the decision opening the Sabarimala temple to women and children of all ages, seeking protection under Articles 25 and 26. Even after this, the entrance of women and children involve a difficult process.
When spoken of gender equality being violated by the provisions of religious freedom how can one ignore the coexistence of the caste system in India that stems out from the very existence of Hinduism? One may say that it is not anymore a problem in the modern world but yet instances are reported where lower and backward class people are forbidden entry to temples or seek the blessings of God. For instance, the proposition of the Karnataka Prevention and Eradication of Human Sacrifice and Other Inhuman Evil and Aghori Practices and Black Magic Bill, 2016 had invited a lot of criticism and hatred of religious leaders and sects as it banned things like astrology, worshipping the feet of religious leaders, the ritual of ‘Made Snana’ where the Dalits were made to roll on leftover food of the upper caste people, and so on. But these are certainly not essential parts of religion then how did the religious leaders construct arguments of the Constitution of India granting religious freedom. In June 2019 an incident was reported where a Dalit boy was beaten mercilessly by men for entering a village in Pali, Rajasthan. Similarly, a Dalit police constable of the Bhanwad police station was driven out of the temple when he had gone there to take food for his colleague. The priests had replied that it was the rule of the temple for which the entry of lower castes wasn’t allowed inside the temple premises. These are not the only cases of such incidents, inequality yet prevails in every corner of the nation and it works in the name of religion.
Violation of right to life and personal liberty
Article 21 in the Indian Constitution forbids anyone from depriving a person of his/her life and personal liberty. But in this case, religious freedom through the years have laid seeds of religious violence dividing the nation into different parts. Initially, during independence, it was considered that the partition of India would resolve the communal conflict between Hindus and Muslims but such conflicts leading to violence have been widespread through ages. Partition of Indian couldn’t resolve the problem of the Hindu-Muslim conflicts rather worsened the conditions of Muslims in India. Hindu-Muslim riots have claimed thousands of lives destroyed the properties of people as well. Only because one religious sect has felt that it is their right to claim an area or go against another religion this itself has led to immense violence taking away the lives of thousands and depriving them of the right to life and personal liberty.
In 2002, the state of Gujarat with Narendra Modi as its chief minister had witnessed the Gujarat riots where Muslims had burned down trains, slaughtered Hindu pilgrims, crowds had got uncontrollable. The riots had continued with its murdering, assaulting, raping, and so on with almost 2,000 Muslims being killed. This bizarre religious violence had taken away the lives of thousands and rendered many homeless. Similarly, in 1992, the Hindus had demolished the Babri Masjid in Ayodhya which was claimed to be the birthplace of Lord Ram. People came up with the inquiries about the probability of the existence of a temple there which had been destroyed to build the Babri masjid. This had provoked the deadliest riots witnessed after the independence of India. This riot had killed thousands of people and destroyed the homes of several people. Even after several trials and mediation, nobody could come to a conclusion until 2019 which handed the land to the trust of the Hindu Temple. But this dispute had been carried on forever and possibly could have been handled better with the States’ stringent interference as amidst the riots thousands of innocents had lost their lives.
Religious freedom inconsistent with public health
Religious violence not only claims the lives of people but also takes a toll on public health and is a huge menace in those terms. Health is an essential part of the right to life but when fundamental rights are provided subject to public order, health and morality then how can religious freedom oppose public health. Mass demonstrations and violence kill masses of people then how can this part of the freedom of religion go against the reasonable restrictions set by the Constitution. Maintenance of public health requires the intervention of the State many times. It was seen in the case of J. Choudhury v. The State, the petitioner, a homoeopathic doctor in Puri, Odisha suffering from Cholera, had refused to get himself immunized and treated as he had a ‘conscientious objection against inoculation’ that went against his religion. He had tried to contend by saying that he had consumed homoeopathic medicines and went against the Epidemic Diseases Act. The court had rejected his plea and convicted him for going against the state order.
Recently, amidst the corona pandemic in 2020, New Delhi witnessed a religious gathering known as the Tablighi Jamaat that had thousands of participants from India and abroad where the Covid-19 was in a fatal phase. After the gathering, all had returned back with the development of symptoms of Covid-19. The area was declared as a hotspot for the virus and it was immediately sealed but the State’s intervention so late did not help with preventing the spreading of the virus. Anti-terrorism squads, police and such officials had been deployed in each state to track down the Tablighi Jamaat attender for getting them tested but the majority of the people had got hidden and impossible to trace. More than 640 cases had come up from attenders of the Jamaat. In the name of religious freedom the Jamaat that was conducted had facilitated a wide spread of the Corona Virus in several states of the nation all over the country.
Conclusion
Although religion empowers India and gives millions the hope to live and strive for success and a better life, it also provides a scope of deception, violence and hypocrisy. Time and again religion has been used by several as a medium to achieve a powerful position in the society, humiliate others and suppress strata of people. The misogyny attached to religion cannot be ignored as well. Several times inhuman activities and discrimination on the basis of caste, creed, colour, gender is acquitted by religion as it is proclaimed to be a duty given by God to man. Religion is taken and twisted by humans which leads others towards the illusion. Freedom of Religion gives everyone the right to practice, profess and propagate the religions of their choice, belief and faith but there has to be a more severe and rigid boundary of its limitations. Sometimes one individual accessing their freedom of religion violates and infringes the rights of others which in turn leads to a conflict that goes against public order and peace. Inhumanity and crimes committed in the name of religious freedom have to be stopped as well. Religious freedom can never do away with the concept of behaving and acting in a humane manner. It can never go against the strength and harmony of the country. The State needs to step in more frequently and prevent the abuse of power. Strict legal action against people responsible for inflicting violence against minorities has to be taken. Political parties based on caste and religion should be prohibited, and a set of rules should be formulated for political parties. The state should be more responsible for publicly condemning religious violence and should take more efforts to look into reports of harassment and assault during communal violence for securing justice.
References
- https://shodhganga.inflibnet.ac.in/bitstream/10603/77961/9/09_chapter%2004.pdf
- http://www.legalservicesindia.com/article/1048/Ambit-of-Right-to-Freedom-of-Religion.html
- https://zeenews.india.com/india/dalit-youth-beaten-up-for-entering-temple-in-rajasthan-s-pali-2209184.html
- https://qz.com/india/1731653/timeline-of-indias-ayodhya-babri-row-between-hindus-muslims/
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