This article is written by Ronika Tater from the University of Petroleum and Energy Studies, School of Law. In this article, she discusses various international mandates guaranteeing freedom of religion and belief with the support of relevant case laws.
Table of Contents
Introduction
As per international standards, the right to freedom of religion or belief is a wide-ranging right encompassing a large number of distinct but interrelated issues. One of the main issues of freedom of religion is its interrelation with human rights. Various international mandates are ensuring the restrictions and challenges to the freedom of religion, such as Article 18 of the Universal Declaration of Human Rights (UDHR), Article 18 of the International Covenant on Civil and Political Rights (ICCPR), the Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief, and Combating Discrimination Based on Religion or Belief.
Human Rights Committee
The Human Rights Committee is one of the main United Nations human rights treaty bodies established to inspect the implementation of the ICCPR, in the forms of its State reports, individual complaints, inter-State complaints, general comments, substantive statements, and general discussions on subjects concerning the ICCPR. Presently, there are 173 states party to the ICCPR.
Salient features of the Human Rights Committee
- It comprises 18 independent experts elected for a term of four years through the State Parties to the ICCPR.
- The session for decisions is generally held three times per year and the committee works on a part-time basis.
- Each State Party must submit a report to the committee, mentioning the status of its implementation of the ICCPR’s provision in its report.
- It also takes into account individual complaints about violations of an individual’s rights under the First Optional Protocol of the ICCPR.
- Article 41 of the ICCPR provides the provision for inter-State complaints by mentioning a mechanism for States to complain about the violations of the ICCPR by another State. In this process, both the States in the disputes have to make the declaration in connection to the procedure, otherwise, the complaint would not be valid.
- It issues general comments to clarify the objective and the definition of the ICCPR’s articles. These comments provide a detailed explanation of each article from the committee’s point of view and its obligation to each State.
What is the right to freedom of conscience and religion?
The right to freedom of conscience and religion is closely related to the rights to freedom of expression, assembly and association. It implies that the freedom of thought and religion is not subjected to treatment that is intended to change one’s thoughts, divulges a religious conviction, forces religious conversion, etc. Thus, the right to freedom of conscience, religion, expression, assembly and association are a centric part of the right to privacy. The public aspect of this is subject to limitations. Over time, it has been observed that the violations of the principles of non-discrimination and tolerance in the field of religion are only limited to an extent. Hence, most of the human rights conventions do not allow the State to impose a limitation on freedom of religion.
International standards
The following are some of the pertinent features of freedom of religion and belief as per the international standards:
- Freedom to adopt, change or renounce a religion or belief – As per the UDHR, everyone has the right to freedom of thought, conscience and religion which also includes the right to adopt a religion of their choice. This is in connection with Article 18(1) of the ICCPR, and Human Rights Committee General Comment 22 makes it clear that Article 18(1) does not permit any limitation to it. Moreover, the committee also states that the right to replace one’s present religion with another includes the right to retain one’s religion or belief as well.
- Freedom from coercion – The UDHR states that the freedom of religion includes the right to teach, practice, worship and observance. Article 18(2) of ICCPR states that no person while exercising their freedom should be subjected to coercion. The Human Rights Committee states that the use or threat of physical force or penal sanctions to force believers or non-believers to oblige any religious belief and congregation without their choice is barred under this Article.
- Discrimination based on religion or belief, inter-religious, discrimination or tolerance – As per Article 2(1) of ICCPR, each State Party should respect the present covenant. Any State, group or person should not aim at the destruction of any of the rights and freedom as recognized by the covenants. Article 26 of the ICCPR states that all people are equal in the eyes of law and should be protected by the law, without any discrimination. It is important in those States consisting of ethnic, religious or linguistic minorities to not deny them the right to enjoy their own culture, profess, practice, or use their language. Hence, the Human Rights Committee states that the fact that religion is recognized by the State and its followers who are the majority of the population shall not bar or discriminate against other religions or non-believers. For instance, restricting certain members for government service or imposing special restrictions on the practice of religious faiths.
- Freedom of expression concerning religious conflicts, religious intolerance and extremism – Article 19 of the ICCPR provides that everyone has the right to freedom of religion or belief and expression which includes the freedom to receive, share, impart information and ideas either orally or written, through art or in media or any other form of choice. However, the above rights should be carried out with special duties and responsibilities. Certain restrictions and limitations shall be imposed by law such as to protect the following:
- Rights or reputations of others.
- Protection of national security or public order.
- Public health or morals.
- The promotion of war or terrorism is prohibited by law.
- Any promotion of a national, racial or religious hatred inciting discrimination, hostility or violence is prohibited by law.
5. The Human Rights Committee invites the Special Rapporteur to look into the rise of religious extremism in all parts of the world. The Human Rights Commission recognized the overall rise of intolerance and violence against members of many religious communities including the cases of Islamophobia, anti-Semitism and Christianophobia. The commission ensures that the exercise of tolerance and non-discrimination by all the players in the society is working towards the set of goals of the Declaration on the Elimination of All Forms of Intolerance and Discrimination Based on Religion or Belief. It also takes certain measures and invites the government bodies, religious bodies and civil society at all levels to promote tolerance. It focuses on the point to avoid any activity of comparison of religion with terrorism that has adverse consequences on the enjoyment of the right to freedom of religion. Further, as per Article 20 of the ICCPR, the State should enact laws and provisions to prohibit the act of promoting war, religious hatred and incitement to violence.
Relevant case laws
The Human Rights Committee has come to cross various case laws regarding the violation of the freedom of religion and belief. In the case of Boodoo v. Trinidad and Tobago (2002), the committee observed the act of taking away prayer books from the hands of the prisoners is a violation of their rights. The committee stated that “the freedom to perform the religion or belief, worship, observance, practice and teaching consists of a wide range of acts extending to rituals and ceremonial acts as well as various practices integral to such acts”. Similarly, in the case of Karnel Singh Bhinder v. Canada (1986), the Human Rights Committee observed that for a Sikh who wears a turban, wearing a safety helmet in his daily life at work does not violate his right to freedom of religion.
Essential provisions of the European Court of Human Rights
There are three articles of the European Convention on Human Rights (ECHR) concerning religion. Article 9 of the ECHR deals directly with the freedom of thought, conscience and religion, stating the essential content and the limitations that can be legally imposed. It permits only those limitations on religious freedom which satisfy the three expressed conditions as per Article 9(2):
- The limitation in question must be prescribed by law which includes statutory law and case law on administrative regulations.
- The limitation must satisfy one of the legitimate aims, such as the interest of public safety, public order, health or morals, protection of the rights, and freedoms of others.
- The limitation should be necessary for a democratic society.
Article 14 of the ECHR prohibits discrimination on the grounds such as sex, race, colour, language, religion, education or any other personal circumstances including religion. Article 2 of the First Protocol to the Convention (ECHR) which states the right to education and the role of the State in promoting education and teaching, guarantees the right of parents to implicate that their respective children are imparted education with their religious and philosophical ideas.
Relevant case laws
The European Court of Human Rights has decided on several cases regarding the right to freedom of conscience and religion. The court often follows the test of the legality of a prohibition of any act concerning religion or belief strictly. The European Court of Human Rights through judicial precedents has issued guidance, distinguishing between permissible religious persuasion and coercion. In the case of Larissis v. Greece (1998), the court had observed that an officer of the Greek army using his position over the subordinates to convert their religion is violative of the right to freedom.
In the case of Kokkinakis v. Greece (1995), the Court did not find any violation while considering the facts where Jehovah’s witnesses used to call their neighbour to confess their religious issues. This act was protected under Article 9 of the ECHR and the court affirms that “freedom of religion and conscience included accepting proselytism”. They have the right to expand their belief by trying to get people to share and convert them.
Further, it stated a distinction between ‘improper proselytism and bearing witness to Christianity. The former acts as a form of corruption or deformation by offering advantages with the view of increasing new members in the community by inciting improper pressure on people. The first, thereby, brainwashed people while the latter was accepted by the courts. There has been a situation in which certain actions aimed at converting people are motivated by conventional forms of missionary activities or propagation of religion. These actions motivated by ill-intention cannot be considered as a “manifestation” of religion or belief and hence, not protected by Article 18 of the ICCPR.
In another case of Sahin v. Turkey (1998), where the case was considering the refusal of admission to lectures at the university for students whose heads were covered by the headscarf. The court stated that they are protected under Article 9 and the question of the Islamic headscarf in the Turkish facts is considered as a symbol. As per the religious duty, it is a compulsory practice and not wearing it may cause some consequences. Hence, in this case, it is important to note that equal protection of the freedom of religion and belief should be guaranteed to all individuals and groups regardless of they being in a majority or minority population in a given country. There are a few cases where State neutrality has to consider the deep patriarchal view and religious convention concerning a child’s education.
In the case of Kjeldsen v. Denmark (1976), the State implicated mandatory sex education for teenagers in public schools. The court, in this case, had interpreted Article 2 of the First Protocol to the ECHR and stated that the public school system should remain neutral with consideration to religion or belief. Subsequently, the court prohibited the State from using an educational system that is against the religious or moral ideas of the child’s parents’ wishes.
Conclusion
To understand the domestic laws on the right to freedom of religion and belief, it is important to understand the international standards and carefully analyze the principles observed by the international court.
References
- https://www.ohchr.org/Documents/Issues/Religion/RapporteursDigestFreedomReligionBelief.pdf.
- https://www.echr.coe.int/documents/convention_eng.pdf.
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