Freedom of religion

This article is written by Reet Balmiki, from NALSAR University of Law. This is an exhaustive article discussing the International Religious Freedom Report and the reasons behind India being designated as a “country of particular concern.”

Introduction

The freedom of religion is a basic and inalienable human right worth fighting for. Most multi-religious democracies in the world recognize the importance of this right and the dangers the suppression of other religions poses to democracy. With the aim to promote democratic values such as freedom, equality and harmony, freedom of religion is recognized as a fundamental human right to all on an international level. 

The Western construct of inalienable human rights without regard to differences like culture or tradition has been recognized by the International Human Rights Law. Advancing the objective to guarantee the universal right to freedom of religion to all and promote greater religious freedom, the US Commission on International Religious Freedoms (USCIRF) recommends to the US State Department the countries of particular concern and countries under the special watch list.

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This article provides an overview of the meaning, aim and role of this report along with the obligations of the USA to publish this report. Additionally, it elucidates the implications and struggles with the USA declaring nations as countries of particular concern. It further assesses the recent trend and the current position of religious freedom in India. 

An overview of the report 

About the USCIRF

The USCIRF is an independent, bipartisan US federal government commission that aims at advancing international freedom of religion or belief by confronting threats to religious freedom. It is dedicated to defend and promote religious freedoms in other nations abroad. It is an advisory body that assesses the state of religious freedoms and violations in various countries and makes independent recommendations for each country. Therefore, the main role of the USCIRF is to monitor religious freedom abroad and make recommendations to the president, secretary of state and Congress. However, the recommendations made do not have a binding effect.  

International Religious Freedom Act of 1998

The International Religious Freedom Act enacted in 1998 aims at elevating religious freedom as a higher priority in the foreign policy of the USA. This Act is foundational legislation for the international religious freedom policy of the USA. It recognized the freedom of religion as a “universal human right” and furthered its grant by establishing various governmental mechanisms. The significant role of the legislation include 

  • Creating an office on international religious freedom headed by the Ambassador at Large for international religious freedom.
  • Requiring the Secretary of State to prepare annual reports on the status of religious freedoms around the world. 
  • Requiring the President to identify the countries of particular concern for religious freedoms and take the most appropriate action based on the nature and severity of violations of religious freedoms. 
  • Highlighting the policy of the USA to oppose severe violations of religious freedoms and promote the right to freedom of religion on a global scale. 
  • Establishing the independent US Commission on International Religious Freedoms (USCIRF)
  • Mandating the designation of special watch list with countries that have severe religious freedoms violations but do not fit the criteria of CPC. 

International Religious Freedom (IRF) Report

Under Section 102(b) of the IRFA, the Department of State is required to submit an annual report on international religious freedom. This report, known as the International Religious Freedoms Report, assessed the status of religious freedom, government actions violating religious freedoms and makes independent recommendations for the US policy. The findings, analysis and recommendations are based on the research done by the USCIRF during the last year. The report mainly comprises of the following three components –

  • USCIRF’s recommendations to designate countries as “Countries of particular concern” under IRFA.
  • USCIRF’s recommendations to place countries with severe religious freedom violations under the “Special Watch List” under IRFA.
  • USCIRF’s recommendations to designate violent non-state actors as “Entities of particular concern” under IRFA.

The recent 2021 report redesignated Burma, China, Eritrea, Iran, Nigeria, North Korea, Pakistan, Saudi Arabia, Tajikistan, and Turkmenistan as CPCs and added four additional countries  India, Russia, Syria, and Vietnam to the list of CPCs. It recommended Cuba, Nicaragua, Afghanistan, Algeria, Azerbaijan, Egypt, Indonesia, Iraq, Kazakhstan, Malaysia, Turkey, and Uzbekistan be added to the SWL. It also redesignated the following non-state actors as EPC – al-Shabaab, Boko Haram, the Houthis, Hay’at Tahrir al-Sham (HTS), Islamic State in the Greater Sahara (ISGS), Jamaat Nasr al-Islam wal Muslimin (JNIM), and the Taliban. The USCIRF removed Bahrain, the Central African Republic (CAR), and Sudan from the special watch list as though religious violations still exist in these countries they do not meet the high threshold to be included in the SWL. 

Understanding countries of particular concern and countries on Special Watch List 

Before diving deeper into this issue, it is necessary to enhance our understanding of the criteria required for the countries of particular concern and the countries on the SWL. The IRFA mandates the President to designate CPCs with the recommendations made by the USCIRF and other sources. As per law, for a country to qualify as a country of particular concern it must either engage in or tolerate systematic, ongoing, glaring violations of religious freedom. Additionally, these violations must have taken place during the reporting period. This enables a country to get rid of this status while allowing for the entry of newer countries simultaneously. 

However, it is possible for countries to engage in severe violations of religious freedoms and at the same time not fit all criteria to qualify as a CPC. In such cases, if the countries fit some but not all criteria or engage in severe violations, they will be added to the Special Watch List by the USCIRF. The USCIRF derives this power to designate countries these statuses based on the particular criteria from the IRFA. 

USA’s obligations to publish reports

The principle of fundamental rights is popularly known to have emerged as a Western concept. Today, the idea of religious freedom as a basic and universal right is recognized by most countries and global organizations. Despite this, people all around the world continue to be persecuted and ill-treated due to their religions and beliefs. Many countries have witnessed heinous abuses and repression on account of religion. In such cases where the governments become ineffective in upholding the inalienable right, there is a need for identifying and rectifying such gross violations.  

Religious freedom lies at the heart of the USA and is an integral part of their foreign policy. The US Department of State, under the International Religious Freedom Act 1988, furthers the universal application of the right to freedom of religion which was a part of the First Amendment of the U.S. Constitution. The US also recognizes the strategic national interest in the preservation of this right and thus considers it a key foreign policy objective. This right is also recognized and guaranteed by several international conventions. Article 18 of the Universal Declaration of Human Rights, Article 18 of the  International Covenant on Civil and Political Rights and Article 9(1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms are some of these provisions. 

To advance the protection and preservation of religious freedoms, an important step is to identify and prevent the abuse of this right. The USA, through the IRF report, brings to light recent instances of such gross violations from around the world. This enables the international communities to be aware of the status of religious freedom in the world and identify the issues and implement solutions to combat the challenges. The report covers the actions of both governments as well as non-state entities. In cases where the right is suppressed by the government elected to protect the citizens, the people are left stranded. In such situations, the imposition of punitive actions restricts the governments from indulging in such activities. Similarly, in cases of non-state entities violating this right, the threat of such punitive action reduces the chances of inaction by the governments and protects the people. 

Therefore, the USA’s obligation to bring to light religious violations in other countries and term these countries as CPC arises from the bedrock principle on which the country was founded. Additionally, the report furthers the universal application of the internationally recognized right for all. 

Diplomatic struggles with the USA declaring other countries as “countries of particular concern”

The USA is known for intervening in ongoing matters in foreign nations. Though such intervention is often justified as being for the promotion of democracy and democratic principles, this can have several other consequences. 

In addition to inviting global criticism against the intervention of the United States, this could also sever the ties between the US and other countries. Such intervention is a well-established foreign policy decision to further their interests. However, on many occasions, the nations have seen such interventions as a forceful imposition of certain ideas against their own will. Interventions into the domestic affairs of other nations often impair their sovereignty and are un-welcomed by the nations. Many countries, like India, have rejected the US Commission’s reports and questioned their locus standi in the matter. Additionally, intervention by the US does not necessarily guarantee action on behalf of the nations designated as CPCs. However, though the impact of US intervention in the matter of religious freedom abroad does not necessarily bring instant results as the nations are often reluctant to accept the findings, such intervention is necessary and is likely to bear fruit collectively over a while. 

The efforts of the USCIRF have recently led to the improvement of religious freedom conditions in Sudan and Uzbekistan. This has led the Commission to remove them as CPC and add them to the SWL. Though the intervention by the US in matters of other nations often results in the strife between nations, such intervention is essential and in the interest of the democratic principle of religious freedom. However, the US should ensure proper research and accuracy of the report published and should seek a peaceful means to promote and preserve religious freedom. This report should only seek to achieve democratic principles and not be a means to defame other nations. 

Religious freedom in India

India is a land of diverse religions, races, communities, castes etc and is popularly known to be the birth land of many religions. It is a country in which people from various communities and religions having varying beliefs reside together for centuries. The existence of such diverse individuals and groups is bound to give rise to certain disputes and clashes. However, the largest secular democracy has grown and modified its laws over the years as a consequence of these differences and is known to have a rich culture. 

Freedom of religion – a constitutional perspective 

It was only in 1976 that the word “secular” was added to the Preamble of the Indian Constitution through the 42nd Amendment Act. India is a secular nation and therefore every citizen has the basic right to freely practise the religion that they believe in. The Constitution provides to all citizens the fundamental right to preach, practice and propagate the religion of their choice and also protects the citizens from discrimination and ill-treatment based on religious beliefs. The Indian Constitution recognises and guarantees the freedom of religion under Articles 25 – 28. 

  • Article 25 deals with the “Freedom of conscience and free profession, practice and propagation of religion.” 
  • Article 26 guarantees the “Freedom to manage religious affairs Subject to public order, morality and health.” 
  • Article 27 provides the “Freedom as to payment of taxes for promotion of any particular religion.” 
  • Article 28 deals with the “Freedom as to attendance at religious instruction or religious worship in certain educational institutions.”

In addition to the above provisions specific to granting religious rights and freedoms, the Constitution also provides for the protection of the interest of the religious minorities. Article 29 and 30 protect the interest of the religious minorities and grant them the right to establish and administer educational institutions of their choice. The Constitution also prohibits discrimination on various grounds including religion under Article 15. It also promotes the principle of equal treatment before the law and restricts the state from denying protection of the laws on grounds of religion under Article 14. Through these provisions, the Indian Constitution recognizes and protects the freedom of religions and acknowledges the individual’s autonomy in matters of religion. 

IRF Report 2021 and Indian’s response to the report

Recently, the USCIRF recommended the US State Department to designate India along with three other nations as a “country of particular concern.” The USCIRF, in its report, recognized the downward trajectory of religious freedom in India and the ongoing and egregious religious freedom violations under the IRFA. However, the USCIRF’s decision on India, unlike most other countries, was not unanimous. The USCIRF’s Commissioner, Johnnie Moore, has officially expressed his dissent against the recommendation to designate India as a CPC. 

Traditionally, India has rejected the view of the USCIRF and has often denied visas to the members of the Commission. After being recommended as a CPC in the 2020 report, India rejected the Commission’s observations and called them “biased and tendentious.” It additionally held that the Commission lacked the required locus standi on the said matters. External Affairs Ministry Spokesperson Anurag Srivastava said in a statement in New Delhi, “We reject the observations on India in the USCIRF Annual Report. Its biased and tendentious comments against India are not new. But, on this occasion, its misrepresentation has reached new levels.”

In addition to designating India as a CPC, the USCIRF made several other recommendations to the US Government as a part of their report. These recommendations further the principle of freedom of religion and aim to deter religious violations in India. The USCIRF has recommended the US Government to 

  • Impose targeted sanctions on the individuals and entities causing religious violations in India. The suggested sanctions are freezing the individual or entities assets or denying them entry into the United States
  • Advance and preserve the religious rights and freedoms of all religious communities in India. The suggested means to promote interfaith dialogue is through bilateral and multilateral forums and agreements. 
  • Condemn the ongoing religious freedom violations and support the organizations and groups being targeted and suppressed for the advocacy of religious rights and freedoms in India. 
  • Raise the severe concerns over religious freedoms in the US-India bilateral relationship. The suggested approach for the government is to highlight concerns through hearings, briefings, letters, and congressional delegations

The country-specific recommendations have been made after assessing the situation of religious freedom in India during 2020. These recommendations aim to bring back the secular principles of the Constitution to practice and reduce the perpetuation and tolerance of human rights violations in India. 

Recent trends that threaten religious freedom in India

The USCIRF, through its intense research and monitoring, has highlighted its concerns with the violation of religious freedoms in the last two years. The 2020 and 2021 International Religious Freedoms Report bring to light several specific actions and policies of the Indian government that are a threat to religious freedom in India.  The most severe of these were the –

  1. Citizenship Amendment Act 2019 (CAA) and National Register of Citizens (NRC)

The USCIRF, in both the 2020 and 2021 reports, highlights the problems of the implementation of the heavily criticized Citizenship Amendment Act 2019 and the National Register of Citizens. The report brings to light several concerns surrounding the influence of BJPs anti-muslim sentiment on the laws of the land. The CAA was criticized for being religiously discriminatory and providing a quick means to citizenship for non-muslim migrants from neighbouring countries. 

The NRC is an official record of all those who are legal citizens of the country. The NRC is at distinguishing the citizens from the “illegal migrants” in the country. However, Hindu, Christian, Sikh, Buddhist, Jain and Parsi illegal migrants from Afghanistan, Pakistan and Bangladesh will not be affected as they are protected under the CAA and can gain citizenship as per the recent amendment. This essentially means that if an NRC is implemented, all non-muslims persecuted from neighbouring countries will be protected under the CAA, leaving Indian Muslims stranded. The implementation of the CAA-NRC led to massive protests in the country that also turned violent. Additionally, India is not a signatory of the 1951 Refugee Convention and 1967 Protocol and does not have a national refugee protection law. This allows them to categorize all religiously persecuted refugees seeking asylum in India as “illegal migrants.” Since only Muslim migrants are excluded from the CAA, they are exposed to the threat of deportation due to the implementation of discriminatory and anti-secular laws. The CAA contradicts the basic principle of secularism enshrined in the Indian Constitution. Additionally, as a consequence of the protests against the anti-secular law, many state and non-state actors engaged in violence, largely against members of the Muslim communities. Such instances of discriminatory treatment based on religion and anti-secular laws violate the religious freedoms of the Muslim minorities in India.

  1. The Delhi riots 

Ever since the CAA laws were passed by the Indian government, the Muslims, who were the clear targets of the laws, were on edge due to the increasing fear and panic about the consequential impact of the laws, which could mean statelessness, detention or deportation for the Muslim minorities. This fear turned into a huge movement where the government chose to overlook the concerns raised by the religious minorities and termed them as “violent anti-nationals.” This, along with other incidents, sparked the worst Hindu-Muslim riot in the last seven decades in the national capital, Delhi. 

The violent riots left at least 53 dead, many injured and thousands affected. The riots were undoubtedly communal as different communities, mainly the Hindus and Muslims targeted each other. However, the Muslims were seen to be singled out and attacked. Most of the casualties were Muslims and there were attacks on their protest sites, mosques, homes and majority-Muslim neighbourhoods. The communal riots and their management by the Indian government were both severely criticized and questioned. The UN High Commissioner for Human Rights has expressed “great concern,” and the U.S. Commission on International Religious Freedom condemned the violence in the national capital. 

The 2021 IRF Report observed that the Delhi Minorities Commission investigated and found that “Muslim homes, shops and vehicles were selectively targeted during the rioting that erupted in northeast Delhi.” They suspected that the violence was planned and directed towards the religious minority since it opposed the recent discriminatory law brought by the government. 

  1. The Anti-Conversion Laws

Despite India’s Constitution guaranteeing the freedom to profess and practise any religion, many state governments have allowed the expansion of the scope of the “freedom of religion acts” or the anti-conversion laws. Though these laws aim to outlaw forced or fraudulent conversion for the purpose of marriage, they have often been used to limit or prohibit religious conversions and protect the dominant religions. These laws have been often misused to criminalise all sorts of conversion and are the basis of false accusations, harassment and violence against minority religions. This restricts the right of a person to choose and practice the religion of their choice. Such cases of misuse of anti-conversion laws are not uncommon and have surged since 2020. One such instance, where these laws were used to harass the members of minority religion, is the arrest of a Muslim man and his brother in Uttar Pradesh on trying to get his marriage with a Hindu woman register. After spending 2 weeks in prison for “unlawful” conversion, the men were freed after the UP police was unable to find evidence against them. 

The recent 2020 law passed by the Chief Minister of Uttar Pradesh was passed to “curb Love Jihad.” This law was passed without legislative discussion and became a law by an ordinance passed by the state Governor. Many suspects have challenged the real intent of the law passed. With the increasing adoption of anti-conversion laws by states, Christian missionaries fear an increase in checks on evangelisation by “missionaries” and the number of attacks on them. 

After the introduction of the new legislation, the Madhya Pradesh Freedom of Religion Bill, 2021, the threat of increasing attacks on Christians in the state has increased. There have been at least 25 cases of attacks on Christians in the state during the last year. The USCIRF observing this said, “In 2020, for example, mobs—fueled by false accusations of forced conversions—attacked Christians, destroyed churches, and disrupted religious worship services. In many cases, authorities did not prevent these abuses and ignored or chose not to investigate pleas to hold perpetrators accountable.” Therefore, these laws can easily be used to target religious minorities and are discriminatory. They also severely deter conversion, in both good and bad faith. The laws have been seen to be misused by many which have led to the religious minorities fear of the imposition of national anti-conversion law. 

  1. Closing Space for Civil Society

As per the USCIRF’s report, throughout 2020, there have been several instances where the government has intimidated and harassed the members of civil society. Civil society comprises the organizations that are not associated with the government and play a major role in monitoring the actions of the government and holding them accountable on various matters. During the year 2020, the government on several occasions misused the provisions of several laws including the Unlawful Activities (Prevention) Act 1967 to oppress those who speak up for the rights of the minorities, promote individuals civil rights and challenge the government’s policies and actions. Many individuals who opposed governments religiously discriminatory policies such as CAA are being investigated with the intent of being persecuted under the UAPA and are often detained for a long time before being acquitted if innocent. Recently, the Delhi High Court called out the state for the misuse of the UAPA and raised the bar for a “terror tag” under this Act. 

Additionally, the Central government has also been accused of taking several steps to limit the role and involvement of NGOs including religious and human rights NGOs. In September 2020, the government of India passed the Foreign Contribution (Regulation) Amendment (FCRA) Bill, 2020 which was severely condemned at a nationwide as well as international level for being unconstitutional and placing stringent restrictions on civil society. It risks the survival of smaller NGOs and reverses the progress towards the achievement of Sustainable Development Goals (SDGs). Additionally, the Bill has been severely criticized by the International Commission of Jurists for failing to comply with India’s international and constitutional obligations to protect the rights to freedom of association, expression, and freedom of assembly. The ICJ condemned the Bill for imposing “arbitrary and extraordinary obstacles” on human rights workers and other members of civil society. 

  1. Religious Freedom in Jammu and Kashmir

The USCIRF observed that the restrictions on freedom of movement and assembly imposed by the government in Jammu and Kashmir along with the internet and communication shut down have severely impacted the religious freedom of the citizens residing there. Additionally, the Human Rights Watch has also observed this to risk the basic rights and freedoms of those residing in the region.

The USCIRF observed this action to be violative of the freedom of religion as it restricts the “observance of religious holy days and the ability to attend prayers.” Apart from this, the longest internet shutdown in any democracy further limited religious freedom and caused severe disruption. 

  1. Spreading disinformation and incitement of violence targeting religious minorities  

In connection with the specific instances such as CAA and the COVID- 19 pandemic, several religious minorities were repeatedly targeted by the spread of misinformation by the government and non-state actors. This has resulted in the spread of hatred and continuous harassment of the religious minorities, mainly including Muslims, Christians and Dalits. These groups have faced a history of harassment and alienation, which was heightened during the events of 2020. The report highlights how the government has not only failed to curb such acts of spreading hate and inciting violence, but also failed to protect the religious minorities from violence and harassment on these grounds. 

In a diverse country like India, it is essential to maintain religious and cultural harmony to ensure religious freedoms and rights to all. The increasing instances of communal clashes highlight the threat to religious freedom in India and the urgent need for intervention and regulation by the government and other bodies. 

Conclusion

The freedom to practice and profess a religion of one’s choice is a fundamental right that lies at the heart of any democracy. For the proper promotion and implementation of this right, it is necessary that the governments are secular and the laws free from prejudice. Though most democratic constitutions guarantee these rights and principles, many governments fail to bring these provisions into practice. The International Religious Freedom Report by USCIRF promotes religious freedom on an international scale by monitoring and analysing the actions and policies in foreign nations. This report provides a detailed country-wise analysis of religious freedom violations and makes specific recommendations to the US State Department. It does not just highlight the major threats to religious freedoms around the world but also provides possible solutions to preserve religious freedoms in other nations. The report plays a significant role in assisting the US to ameliorate the status of religious freedom around the world. 

References

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