4 Genesis of the Right to Freedom of Religion in India

Prof. Abhishek Sudhir

1. Learning Outcomes

The purpose of this chapter is:

• To give the students an overview of the constituent assembly debates with regard to right to freedom of religion and conscience;
• To help the students understand the manner in which the right to freedom of religion and conscience is protected by the constitution.

2. Introduction (Voice Over)

The members of the Constituent Assembly of India were elected to draft a Constitution for the newly independent Indian nation. They began the demanding task of drafting the Constitution on December 9, 1946 and concluded on November 26, 1949. Much of the deliberations focusing on freedom of religion and conscience took place on 3rd and 6th December 1948. This module will give you an overview of the fascinating debates that took place with regard to the right to freedom of religion between the framers of India’s Constitution. This will help you understand the genesis of Article 25 of the current Constitution of India, numbered as Article 19 in the erstwhile draft constitution, which guarantees to each individual the right to freedom of conscience and free profession, practice and propagation of religion.

3. Debates on Freedom of Religion and Conscience

Article 25 of the Constitution of India states:

25. Freedom of conscience and free profession, practice and propagation of religion

• Subject to public order, morality and health and to the other provisions of this Part, all persons are equally entitled to freedom of conscience and the right freely to profess, practise and propagate religion
• Nothing in this article shall affect the operation of any existing law or prevent the State from making any law
  • regulating or restricting any economic, financial, political or other secular activity which may be associated with religious practice;
  • providing for social welfare and reform or the throwing open of Hindu religious institutions of a public character to all classes and sections of Hindus

Explanation I The wearing and carrying of kirpans shall be deemed to be included in the profession of the Sikh religion Explanation II In sub clause (b) of clause reference to Hindus shall be construed as including a reference to persons professing the Sikh, Jaina or Buddhist religion, and the reference to Hindu religious institutions shall be construed accordingly

 Debates on Freedom of Religion and Conscience

The right to practice of religion was the subject of great debate on the floor of the Constituent Assembly. Tajamul Husain, representing Bihar, wanted to disallow marks, dress or even names which indicated the religion of a person so as to ensure, in his view, a cosmopolitan secular society. On the other hand Mahboob Ali Baig Sahib Bahadur wanted to incorporate personal law within religious freedom. Naziruddin Ahmad and B. Pocker Sahib Bahadur collectively opposed the incorporation of then Article 35 (now Article 44) of the Constitution, which imposed upon state an obligation to endeavor for a uniform civil code. Pocker Sahib went to the extent of calling the implementation of uniform civil code as tyrannical. It was K.M. Munshi, one of the key architects of the Constitution, who came out in defence of a uniform civil code giving the examples of Islamic countries such as Egypt and Turkey. He also cited the importance of power being given to legislature to bring out social reforms through secular legislation.

The demand for the inclusion of personal laws within the ambit of the right to practice religion was raised on several occasions. Mohamed Ismail Sahib argued that the observance of such laws is confined only to particular communities that adhere to these personal laws and does not affect the society at large. In his opinion, many Hindus also wanted to retain their personal laws. Kazi Syed Karimuddin and Maulana Hasrat Mohani had argued that Muslim personal being derived from holy Quran is part of the religion itself. It was Ananthasayanam Ayyangar who eventually managed to set aside the concerns of the Muslim members. He spoke of adequate safeguards already present in the Constitution and argued that in an advanced society, even Muslims may want to amend their personal laws, but won’t be able to so if observance of personal laws are protected as a fundamental right and thus such a proposal could not be accepted. B.R. Ambdekar also expressed his concerns that the process of social reform wold be hindered if personal laws cannot be abrogated.

Apart from the issue of personal laws, another matter that occupied the Assembly’s time was that of evil practices associated with religion. Rajkumari Amrit Kaur with the support of Hansa Mehta regularly raised the issue of the conflict of right to practice religion with anti-social customs that had the sanction of religion. It was the persistent efforts of these two formidable women that the freedom of religion was made subject to social welfare and reform.

After extensive debate and deliberations, the provision on freedom of religion was adopted by a consensus. Every demand irrespective from which religious faction was given a patient hearing and every demand, which did not go against the secular character and more importantly the legislature’s  prerogative to carry out social reform, was adopted. This is further evidenced by the fact that the right of Sikhs to wear and carry kirpans is explicitly guaranteed by the Constitution.

4. Debates on Propagation of Religion

The earliest debates on right to propagate one’s religion in India can trace its roots to Mahatma Gandhi’s controversial statement on conversion:

“Every nation considers its own faith to be as good as that of any other. Certainly the great faiths held by the people of India are adequate for her people. India stands in no need of conversions from one faith to another.”

The attitude of many Constituent Assembly members towards conversion was no different and few held sympathy for the cause of the minority Christians who considered propagation as a basic tenet of their religion. There was a clear split in the house when it was to be decided as to whether ‘right to propagate religion’ should be provided. Those opposing the provision believed that religion being a private affair of an individual should not be allowed to be propagated as it will only lead to nuisance. The secular character of the state with the right to freely exercise religion was also given as another reason for not granting an individual the right to propagate his/her religion.

The proponents of the provision on the other hand, saw it not in the context of religious freedom, but rather as being symbolic of religious toleration. It was argued that the right to propagate was already implicit in the right to speech and expression and the right was being misinterpreted as right to convert. In fact, another article was explicitly intended to be put in the Constitution, which barred Conversion from one religion to another brought about by coercion or undue but was later discarded as such conversions were deemed to be illegal even in the absence of any such provision in the constitution.

Majority of the members of the Congress party were against the right to propagate religion and were quite vocal regarding the same. Purushottamdas Tandon even went on to the extent of saying that Congress as a whole is against the idea of allowing conversion and conceded to demands of Christians only to keep them on board . His views found support with Balkrishan Sharma, Jagat Narain Lal and various other members of Congress.

Conversely, T. T. Krishnamachari spoke passionately about how Christian missionaries had played a vital role in India in terms of improving health, education and other facilities. He also diversified the debate by holding-up conversion as a powerful tool in the hands of a scheduled caste or scheduled tribe Hindu to gain equal status and opportunity in India’s caste-based society. Another approach was suggested by Lokanath Misra, who, while in favour of the propagation of religion, was against it being made a fundamental right. Rohini Kumar Chaudhari was also in favour of right to propagate as long as it was not exercised in a manner whereby it was used to criticise other religions.

In the end the right to propagate religion was retained as is, thereby demonstrating the inclusiveness of India’s constitution. The majority saw the particular right as detrimental yet included the same keeping in mind the interest of the minorities. Thus, every effort was made to incorporate the beliefs of each of India’s major religions. This is further evidence by the fact that there was on more than one occasion an early adjournment of assembly proceedings on Friday so that members of the Muslim community could offer their prayers to the Almighty.

5. Debates on Secularism and God

With the discussion on religious freedom, the question of god cropping up at some stage was inevitable; this issue was first raised by the Reverend Jerome D’Souza, who noticed the absence of God in the Constitution. He opined that even if the State derives its authority from individuals, the ultimate authority still remains with god and the citizenry must believe in the authority of God. Thus, he asserted that God should be included in the Constitution. The view taken by the Reverend was not a unanimous one; another member, Guptanath Singh in this regard had a diametrically opposite view and argued that State is above all gods and is the God of gods as it is the ultimate representative of the nation and citizenry.

Suggestions were made by several notable members such as Lala Raj Kanwar, Pandit Govind Malaviya who wanted to include God in the preamble considering the fact that the majority of Indians believed in God. N. Madhava in this regard explained that God and other things cannot be imported into the Constitution unless they are germane to its purpose and are accepted by the Constituent Assembly. One last attempt was made by H. V. Kamath by introducing an amendment to include God in the preamble. When asked that wouldn’t such an amendment go against the right of non-believers, he argued that his amendment was not for individuals but for the people of India. Kamath’s amendment was criticized for imposing a narrow, sectarian spirit and he was asked to withdraw his amendment and not to put the assembly in the embarrassing situation of voting upon God. Kamath however, resisted these suggestions and his amendment eventually was negatived. Rohini Kumar Chaudhari also expressed his concern for the absence of God, but stated that upon introspection he thought that after observing the manner in which world is progressing, a time will come when Indians may be in a position to dispense with invoking God altogether.

Another major debate emerged when HV Kamath proposed an amendment whereby the President would take the oath of office in the name of god. He considered an oath or an affirmation to be an empty performance as long as it was not made in the name of the God. Mahavir Tyagi suggested an amendment to HV Kamath’s proposed amendment, which offered the non-believers in God to solemnly affirm rather than swear in the name of God. Eventually Mahavir Tyagi’s amendment was accepted by the assembly with certain changes such as ‘God’ should precede ‘solemn affirmation’ in the proposed article, but the discussion that followed provides a clear picture of what were the views of the framers on God. Opponents still criticised it as in their opinion, when performing secular function, there is no need to invoke God. However, a majority of the framers were of the view that merely invoking God does not make the state communal but at the same time not mentioning God whatsoever would not amount to God’s banishment.

6. Summary

The debates on the Constitution clearly indicate that the framers considered religious liberties to be subservient to other fundamental liberties, while some of them even believed that as time progressed, the role of religion would become minimal in India. Despite the Assembly being dominated by members with deep religious convictions, the rights of atheists and agnostics and the like were taken into consideration. It is abundantly clear that the framers did not believe in a nation that was devoid of religion, but one that treated all religions equally, a belief they embodied in the Constitution.