What is Freedom of Religion?

By Nishita Makkar

Introduction

India is a diverse country in terms of religions, caste, language etc. It is made explicit in the Preamble of the Indian Constitution, that India is a “Secular State” after the 42^nd Amendment, 1976^[1].

It generally means that the state has no Religion but it doesn’t mean that it is an irreligious or atheistic state. It merely explains that the State is not concerned with the relationship of men with their god and ensures freedom and equality to every religion.

But still we have seen multiple waves of bloodshed and rioting in India under the name of religions from the very Independence of India i.e., “partition of Pakistan” in 1947 to “Delhi riots of 2020”.

It’s not just about the reason, it’s also about the consequences that always lead to loss whether to lives or property or internal peace of the country. Hence, there is a need to study this in detail to know the true sense of Freedom of Religion.

Thus this article deals with the concept of freedom to religion in light of recent developments in India.

What is the meaning and concept of Religion?

Generally, the belief in and worship of a superhuman controlling power, especially a personal god or gods. It is socio-cultural system of designated behaviors and practices, morals, beliefs, texts, sanctified places that relates humans to spiritual elements etc. It specifies relation of person with their God.

Indian Constitution contains a full chapter concerning Freedom of Religion as a fundamental right of every citizen, not to discriminate among them, but it does not gives any particular definition or meaning of word “Religion”.

The word religion has different shades and colors for different persons. Religious practices or performance of acts in pursuance of religious belief, are as much a part of religion as faith or belief in particular doctrines. A religion is, therefore, not merely an opinion, doctrine and belief.

What Constitution says about the Freedom of Religion?^[2]

• Provisions related to Freedom of Religion under Constitution of India:

The Constitution of India exclaims the right to freedom of religion in Articles 25 to 28. These are:

• Freedom of conscience and the right to freely profess, practice and propagate any religion –Article 25;
• Right to religious denomination to manage religious affairs –Article 26;
• Freedom from payment of taxes for promotion of any particular religion –Article 27;
• Freedom from attendance at religious instructions in certain educational institutions.– Article 28.

Articles 25 to 28 use the term “person”. Therefore, Freedom of Religion, so secured, is available to every person, citizens or non-citizens and aliens.

• Where can the Government intervene?

Constitution also calls for some restrictions on the Freedom of Religion which means that this article shall not prevent the state from making any law relating to:

• Public order, morality, health and other provisions of part III.
• Regulation of economic, financial, political or other secular activities associated with religious practice.
• Law providing for social welfare and reforms or the throwing open to all persons the religious institutions, belonging to their religion, of public character.

Hence, it obligates the state to ensure that communal atmosphere be kept clean and unpolluted.

Is there any relation between Fundamental Duties and Freedom of Religion?

Every right comes with a duty to fulfill. Similarly, state when gives fundamental rights expects some duties to be performed by citizens known as fundamental duties. These fundamental duties cover Article 51– A only and was added by the Constitution (42^nd Amendment) Act, 1976.

In accordance with Freedom of Religion, there are two fundamental duties given in Article 51A(e) and Article 51A(f). These are:

• To promote harmony and the spirit of common brotherhood amongst all the people of India transcending religious, linguistic and regional or sectional diversities;
• To value and preserve the rich heritage of our composite culture.

Religious Violence in India- what is the Reality?

Despite the secular and religiously tolerant constitution of India, from the very date of independence till date, India has been facing lot of religious violence. Some of these prominent riots are:

• Partition of India – 1947^[3]

During Independence of India, it was divided into 2 sub-domains i.e., India and Pakistan. The main cause was Hindu-Muslim riots, started from demand of Separate state and Direct Action Day (August 1946), where massive killings were performed among the two communities.

• Gujarat Riots–1969

The violence started on 18^th September 1969 after Muslims attacked some Hindu sadhus and a temple where they got injured due to sadhus’ cattle.

The Hindus later attacked a Muslim Dargah, and Muslim protesters also attacked the temple again, leading to mass breakout of violence for least one month.

• Anti–Sikh Riots–1984

The mass outbreak happened due to assassination of Indira Gandhi was in retaliation to her order to attack the Harmandir Sahib complex in Amritsar leading to about 8000-17000 deaths all over the country and the hatred within communities.

• Godhra Train Burning–2002

It was Hindu-Muslim communal violence when a group of agitated Muslims burned the bogey of train in which 59 Hindus who were Karsevaks returning from Ayodhya on February 26, 2002. Over thousands were died and injured.

• Delhi Riots –2020

On the eve of February 23, 2020, riots broke out in Northeast Delhi between Anti-Citizenship Amendment Act (CAA) and pro-CAA protestors.

The violence took a communal turn and led to the death of over the course of next 10 days. More than 200 were left.

Case Laws

• S.R. Bommai Vs Union of India^[4] –

Secularism is the basic feature of the Constitution of India

In this case, Supreme Court has reviewed that secularism is the basic feature of Constitution of India. It also observed that religion and politics can’t be mixed together. In a state, all are equal and should be treated equally. Freedom of religion as a fundamental right is guaranteed to all persons in India.

• A.S. Narayan Vs State of Andhra Pradesh^[5] –

Relation of Religion and law

It was settled by the court that under law protection of Article 25 and 26 is not limited to the doctrine but also covers all the acts done in the name of religion whether ceremonies, worship etc. Justice Hansaria explained that a “sectarian religion is open to a limited group of people, whereas dharma embraces all and excludes none.”

• Lily Thomas Vs Union Of India^[6] –

Change of Religion for worldly gain

The Supreme Court ruled that changing religion only because plurality of marriage was valid to renounce from the previous marriage is bigotry of religion and religion is not a commodity to be exploited. Hence, the court held prosecution of the apostate- husband under Section 494 of IPC, 1860, did not violate freedom of religion.

• John Vallamattom Vs Union of India^[7] –

Desposition of property for charitable uses was not an integral part of Christian Religion

The Apex court held that the transaction could not be legally approved as disposition of property for religious/charitable uses was not an integral part of Christian Religion. Hence, it could not be approved by the court.

• Rev Stainslaus Vs State of Madhya Pradesh^[8] –

Right to convert other person in one’s own religion can’t be called Propagation

While upholding the Madhya Pradesh Dharma Swatantratya Adhiniyam, 1968 and the Orissa Freedom of Religion Act, 1967, which prohibited the forcible conversion of any person to one’s own religion. The Supreme Court said that the right to propagate religion did not grant the right to convert another person to one’s own religion forcibly.

• Gulam Abbas Vs State of U.P.^[9] –

Freedom of religion subjected to public order, morality and health

The Apex Court on the recommendation of Committee appointed ordered to shift two graves of Sunnies from its original place to stop clashes between Shia and Sunnies about place of worship in order to maintain public order.

• S.P. Mittal Vs Union of India^[10] –

Regulation of economic, or other secular activities

The Supreme taking care of management of secular matters of Auroville township did not hit Artcle 25 because Shri Aurobindo constituted a philosophy, not a religion.

Even if it is assumed as religious denomination, the Court held that the Auroville (Emergency Provsions) Act, 1980, did not curtail the freedom conscience and right to profess, practice and propagate religion.

• N. Adithayan Vs Travancore, Devaswom Board^[11] –

Caste do not matter for performance of Rituals (regulation of secular activities by government)

The Central Court held that a well versed, properly trained and qualified to perform Pooja in particular and correct manner can’t be denied to be appointed as a priest because he was not a Brahman by birth or pedigree.

• Sanjib Kumar Vs Principal, St. Paul College^[12] –

Right to maintain an institution for religious or Charitable purposes

The principal of the college refused the petitioner to perform Saraswati in the college premises set up by Christian missionaries. The Calcutta High Court held that principal was entitled to refuse under his right to maintain the institution under Article 26(a).

• Trivikram Narain Singh Vs State of U.P.^[13] –

Right to maintain an institution for religious or Charitable purposes

The U.P. Sri Kashi Vishwanath Temple Act, 1983, inter alia, provided for vesting the entire property and management entrusted to a board was held the Act valid without any violation of article 26(a) and 26(b).

• Sri Jagannath Vs State of Orissa^[14] –

Freedom from Payment of Taxes for Promotion of any Particular Religion

The payment demanded for the purpose of meeting expenses of the Commissioner and his office which was the machinery set up of the institution due to administration for the affairs of religious institutions concerned. It was upheld by the Supreme Court as contribution so imposed was nature of a ‘fee’ not a ‘tax’.

• P.M. Bhargava Vs University Grants Commission^[15]–

Programs held by Government to enhance culture and heritage do not amount favouring any particular religion

The Apex Court ruled that introduction of Jyotir Vigyan as a course of study, by the University Grants Commission, did not mean teaching religion.

• Dr. K. Natrajan Vs Union of India^[16] –

Jyotish Vigyan do not mean to enhance particular religion

Hon’ble Justice F.M. Ibrahim Kalifulla said that inclusion of Jyotir Vidya as a course of study, would not result in propagation of a particular religion.

• D.A.V. College, Jullundur Vs State of Punjab^[17] –

Prohibition of Religious Instructions in Educational Institution

The Supreme Court held that act establishing the University did not imply that religious instructions would be imparted therein. Hence, religious ceremonies could not be performed within the college premises.

• Aruna Roy Vs Union of India^[18] –

Religious Instructions is different from study of religion

The Apex Court held that education of religion is not prohibited and is different from denomination. The court distinguished between “religious instructions” and “study of religion”.

• Robasa khanum Vs Khodadad Irani^[19] –

Religious Freedom and Proselytisation

The Central Court held that husband changing his religion in order to get married i.e. worldly gains is not allowed. Also, the conduct of the husband would be judged on the basis of rule of “justice, equity and good conscience” in such cases.

Is religion a Political Weapon in India^[20]?

Although, it has been made clear under 42^nd Amendment act 1976, that India is a secular state and religion and politics should not be mixed at all. State irrespective of any restriction so provided must not interfere in any religion nor benefit any religion specifically.

But despite all these, In India vote bank is made in the name of Religion, caste etc. It has been a tradition for decades. Politicians whether belonging to national parties or regional parties or even independent ones, all have been using religion as a political weapon directly or indirectly.

It is a matter of great concern because it is against the constitutional provisions as well as morals to use people’s faith and belief for political gains.

Conclusion

After doing the critical analyzation, it is observed that Constitution, on one hand provides freedom of religion but on the other hand, it also give some powers to state to interfere, when it comes to the public order, morality, education etc. for maintenance of peace and balance among all religions.

Example: Shayara Bano Vs Union of India and Others^[21], the Triple Talaq case.

But as we have seen the other face also, where even after strict restrictions the government failed to balance the clashes resulting in bloodshed. Also, some political leaders use religion to increase their vote bank, which the modern people should raise voice against.

We have to understand that it is not only duty of state but people who should enjoy their freedom but with harmony with other religions because “Religion doesn’t teach enmity with each other”.

Reference

• legalservicesindia.com

1. The 42^nd (Constitutional) Amendment Act, 1976 ↑
2. Freedom of religion available at: legalservicesindia.com (Last visited on July 8^th 2021) ↑
3. William Dalrymple, “The Great Divide-The violent legacy of Indian Partition”, available at: newyorker.com (Last visited on July 8^th 2021) ↑
4. S.R. Bommai Vs. Union of India, AIR 1994 SC 1918 ↑
5. A.S. Narayana Vs. State of A.P., AIR 1996 SC 1765 ↑
6. Lily Thomas Vs. Union of India, AIR 2000 SC 1650 ↑
7. John Vallamatton Vs. Union Of India, AIR 2003 SC 2902 ↑
8. Rev Stainslaus Vs. State of Madhya Pradesh, AIR 1977 SC 908. ↑
9. Gulam Abbas Vs. State of U.P., AIR 1983 SC 1268 ↑
10. S.P. Mittal Vs. Union of India, AIR 1983 SC 1. ↑
11. N. Adithayan Vs. Travancore, Devaswom Board, AIR 2002 SC 3538 ↑
12. Sanjib Kumae Vs. Principal, St. Paul College, AIR 1957 Cal 524 ↑
13. Trivikram Narain Singh Vs. State of U.P., AIR 1987 All 362 ↑
14. Sri Jagannath Vs. State of Orissa, AIR 1954 SC 400 ↑
15. P.M. Bhargava Vs. University Grants Commission, AIR 2004 SC 3478 ↑
16. Dr. K Natrajan Vs. Union of India, WP NO.135400 of 2001 ↑
17. D.A.V. College, Jullunder Vs. State of Punjab, AIR 1971 SC 1737 ↑
18. Aruna Roy Vs. Union Of India, AIR 2002 SC 3176 ↑
19. Robassa Khanum Vs. Khodadad Irani, AIR 2000 SC 1650. ↑
20. How Hinduism became a political weapon in India, available at: theatlantic.com (Last visited on July 8^th 2021) ↑
21. Shayara Bano Vs. Union Of India, (2017) 9 SCC 1 ↑