15 Religious Freedoms and Secularism

Dr. Manoj Sharma

1 Introduction

India is one of the world’s most heterogeneous societies. Several religions, races, languages, cultures and customs have converged in the India making it a multi-cultural, multi-religious, multi-linguistic heterogeneous society. Co-existence of several heterogeneous diverse groups demanded mutual respect for each other and tolerance towards each others’ religions and religious practices. In this social setting idea of secularism has been preached in ancient India since times immemorial. The same idea has been followed in varied degrees by ancient rulers like Ashoka and Akbar who followed the policy of religious tolerance and curbed fanaticism.1 Hence, the thrust of India society on secularism was inherent in Indian culture. However, the contours of secularism were not explained. Drafting of the Indian Constitution witnessed debate on secularism and religious freedom in Constituent Assembly and it paved the way for incorporation of various provisions in the constitution dealing with religious freedoms of individuals, religious denominations and varied features of secularism.

1.2 Learning Outcome

The objective of this paper is to inform the reader about the concept of secularism and Indian Secularism. It is meant to discuss various nuances of the right to religious freedoms as guaranteed in Indian Constitution and its interpretation by the courts.

2.1 CONCEPT OF SECULARISM

Secularism is hotly debated and controversial concept which is susceptible to varied meanings. Secularism in Hindi, is referred to as ‘Dharam Nirpekshata’ which means religious neutrality. It has been referred to by some as being irreligious whereas some others have referred it as an ideal solution to the problem of relationship between state and the religion in a multi- Enforcement (PHI Learning Pvt Ltd., 2011) 412

cultural society.2 In the present age of social welfare state where democracy and social welfare are the basic norms of governance, right to religious freedoms and other liberties have come to the fore and have occupied a pivotal position. In this context, secularism cannot mean hostility to religions. It therefore refers to a State where political power and religion are kept apart and state does not adopt, propagate or identify itself with any religion. In a secular State, the citizens should have equal freedom to profess, practice and propagate a religion of their choice and an assurance that they shall not be discriminated on the ground only of their personal belief in a particular religion or denomination.

3.1 SECULARISM AND RELIGIOUS FREEDOMS AT INTERNATIONAL LEVEL

Article 18 of Universal Declaration of Human Rights provides for freedom of thought conscience and religion including freedom to change one’s religion.

Article 18 of International Covenant on Civil and Political Rights, also provides for freedom of thought, conscience and religion. This Article provides freedom to everyone to adopt or change religion or belief of his choice. The article prohibits the use of coercion impairing these freedoms. However, as per Article18 of ICCPR, this freedom is not absolute and it may be subject to limitations under the garb of public safety, order, health, morality etc. as are prescribed by law. This Article binds the state parties to respect liberty of parents regarding the religious and moral education of their children in accordance with the parent’s choice.

In context of State neutrality, Article 20(2) of ICCPR merits attention which prohibits national, racial or religious hatred constituting incitement to discrimination, hostility or violence. Thus, the international documents promote and advocate religious freedoms to everyone and mandate the states to ensure state neutrality.

In US, the 1st Amendment provided that Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof. As per US Supreme Court, 1st Amendment has been made applicable to states by 14th Amendment guarantee of liberty. Therefore, there was a wall of separation erected between the Church and the State by 1st Amendment in US.

Section 116 of Commonwealth of Australia Act, prohibits the Commonwealth from making any law for establishing any religion or from imposing any religious observance. Section prohibits the Commonwealth from impairing the free exercise of any religion and from conducting any religious test as a qualification for any office under the Commonwealth. Thus like US, Australia also there is a separation between the Church and the State

4.1 IDEA OF SECULARISM AND INDIAN CONSTITUTION

Indian Constitution as originally enacted did not expressly provided that Indian polity is a secular polity, though provisions relating to religious freedom and state neutrality were included in various provisions of Indian Constitution and in particular Articles 25-28. Omission of word ‘Secular’ as a necessary characteristic of Indian Constitution was not perhaps accidental but deliberate as it was apprehended that the concept connotes anti-religious overtones.3 The omission was, however, rectified by insertion of word ‘secular’ in the Preamble to the Indian Constitution by 42nd Amendment Act, 1976 and further declaration by the judiciary that secularism is part of the basic feature of Indian Constitution. 4 The Supreme Court while commenting upon the nature of Indian Constitution and the impact of insertion of the word ‘secular’ in the Constitution of India observed that the 42nd Amendment has made express what was already implicit in Constitution.

As observed by H.M.Seervai, noted constitutional expert, India is a secular but not an anti-religious State. 5 Perusal of constitutional provisions reveal that Article 25 guarantee to every person freedom of conscience and right to profess, practice and propagate religion of their choice whereas Article 26 gives freedoms to religious denominations to manage their religious affairs; to establish and administer institutions; to own and administer property. Article 27 secures the freedom from imposition of taxes for the purposes of promotion of any specific religion. Article 28 bars religious instructions in educational institutions run wholly by the State. It also protects the individuals from compulsory attendance at religious instructions and religious worships in state run educational institutions. Analysis of these constitutional provisions convinced Donald Eugene Smith to conclude that Indian Constitution provides the relatively sound basis for building of secular state.6

However, secularism under the Indian Constitution is different from western notions of secularism for variety of reasons. Western concept of secularism embraces three fold analysis viz. liberty, equality and neutrality. Whereas liberty implies freedom of conscience; equality implies equality among all citizens irrespective of religious beliefs and neutrality implies a wall between Church and State.7 However in India, the Constitution of India does not erect the wall between the religion and the State; separate personal laws for various religious groups still exist despite India being a secular state; there is prevalence of reservation on the basis of caste and; over the period of time there is increasing governmental regulation of religious institutions.

These situations perhaps compelled the Constituent Assembly to adopt equal respect theory (Sarv Dharama Sam bhav) as the basis of secularism. An attempt was made by Constitution 45th Amendment Bill to explain the features of a secular state but the bill failed to muster majority in the Council of States.

Having regard to Article 48 contained in the Directive Principles of State Policy, which gives a directive to the State to discourage cow slaughter, Granville Austin has commented that Hindu sentiment dominated in Constituent Assembly while debating religious freedoms and Secularism.

From the foregoing discussion, it can be safely concluded that India is a secular state but not an anti-religious state and Indian secularism is different from western concepts of secularism.

In this backdrop, various questions relating to the relationship between the individual and the State regarding religious matters, questions relating to relationship between religious groups and denomination on one side and State on other side have been raised before the higher judiciary and it has been called upon to pronounce on various features of religious freedoms and secularism in India.

5.1 RELIGIOUS FREEDOMS UNDER THE INDIAN CONSTITUTION Article 25 of Constitution of India guarantees the following religious freedoms:

• Equal entitlement to freedom of conscience
• Right to profess and practice religion
• Right to propagate religion and religious beliefs

However, these rights are not absolute. Perusal of Article 25 reveals that these rights are subject to following limitations:

• Public order
• Morality
• Health
• Other provisions of Part III of the Indian Constitution
• Laws regulating or restricting economic, financial, political or other secular activity which may be associated with religious practice
• Laws providing for social welfare and reform
• Laws providing for throwing open of Hindu religious institutions of a public character to all classes and sections of Hindus

5.1.1 Freedom of Conscience

As per Article 25(1), everyone is equally entitled to freedom of conscience. The emphasis of Article 25(1) on equal entitlement implies granting of equal space to all religions and faiths in India and it stresses religious tolerance among various religious groups. Conscience refers to choice. It refers to that subjective sense of what is right or wrong. Freedom of conscience implies the freedom to entertain any belief which one wishes. It takes within its fold – to believe or not to believe in religion; to have faith in old beliefs; to change one’s beliefs; to convert to some other belief or other religion. In line with the international practices, the Constitution of India has guaranteed freedom of conscience which includes freedom to convert to some other religion. This aspect has attracted judicial attention in the wake of alleged conversions by inducements, force or fraud. It has also gained importance in the context of recent ‘Love Jihad’ controversy.

5.1.2 Right to Profess and Practice Religion

Article 25(1) affords equal guarantee to everyone to freely and openly profess and practise one’s religion or belief. It implies that state shall not discriminate on grounds only of one’s religious beliefs.

What constitutes religion, which is referred to as is opium of the masses, and what is included in religious practices has been the subject matter of judicial scrutiny. In the process of defining religion and identifying religious practices the courts have pronounced what may be qualified as essential religious practices and what may not be an essential religious practice and hence not protected. A brief perusal of judicial decisions is, thus, called for.

In Commissioner Hindu Religious Endowments v Sri. Lakshmindra Thirtha Swamiar (Shirur Mutt case) 9 , the Seven Judge Constitutional Bench of the Apex court, speaking through B.K.Mukherjea, J., observed that religion has its basis in beliefs and doctrines which are regarded as conducive to spiritual well being by those who practise it. The court conceded that religious practices may lay down ethical rules, dress codes, rituals, ceremonies and modes of worship. The court, however clarified that in order to determine which religious practice are integral part of the religion, one has to look at the tenets of that particular religion. What is religion and which practices are the integral part of a religion and what is included in the matter of religion are more conveniently discussed in the subsequent parts of this paper.

5.1.3 Right to Propagate Religion

Right to propagate religion means right to discuss and bring to the knowledge of people, tenets beliefs and principles of religion. Every person has been guaranteed the right to propagate ideas and tenets of the religion subject, however, to Part-III of the Constitution and other limitation prescribed in Article 25. In the context of right to propagate religion right to convert others into one’s religion has come up for judicial scrutiny. In the wake of alleged conversions by allurements and inducements some States have enacted freedom of religion Acts to prevent such conversions. In Rev. Stainislaus v. State of Madhya Pradesh, Orissa freedom of Religion Act, 1967 and Madhya Pradesh Dharm Swatantrta Adhiniyam, 1968 were challenged on the grounds that these enactments criminalized conversion by use of allurements or inducement. The Supreme Court of India upheld both the legislations rejecting the challenge under Article 25(1) and held that right to propagate religion did not include right to make conversion on the ground that such an attempt would violate the freedom of conscience guaranteed equally to all the citizens. The court opined that there could be no fundamental right to convert any other person to one’s own religion. It is submitted that in the draft constitution, a proposal for amendment was moved by K.M Munshi wherein it was sought to include a provision for preventing conversion by use of force, fraud or inducement, though the amendment could not see the light of the day. It is further submitted that right to propagate does not include freedom to make anti-religious propaganda in such a way so as to insult other religions. In case the propagation tends to insult with deliberate or maliciously intention of outraging the religious feelings of others, the same can be punished under 295 and 295-A of Indian Penal Code.

As observed earlier that the religious freedom guaranteed under Article 25 are subject to certain limitations which include inter-alia restrictions contained in laws providing for social welfare and reform and restrictions imposed by laws providing for throwing open of Hindu religious institution of public character to all the classes of Hindus.

It must be noted that while enacting laws providing for social welfare and reforms the aim should be at social reform and not reform of religion. Laws enacted to eradicate ‘sati’ and ‘devdasi’ fall in this category. In Sardar Syedna Taher Saifuddin Saheb v. State of Bombay, 10 Bombay Prevention of Excommunication Act, 1949 was challenged which prohibited excommunication of all kinds including on religious grounds. It was contended that the power to ex-communication from community given to religious head cannot be curtailed. The Constitutional Bench of the Supreme Court by majority of 4:1 held that the said provision was violative of Articles 25 & 26. It was held that power to expel on religious grounds was part of religion.

5.2 Religious Freedoms under Article 26

Whereas religious freedoms to individuals are guaranteed under Article 25, Article 26 guarantees religious freedoms to religious denominations. Article 26 guarantees following rights to religious denomination or any section thereof:

• Right to establish and maintain institutions for religious and charitable purposes;
• Right to manage its own affairs in matter of religion;
• Right to own and acquire movable and immovable property ;
• Right to administer such property in accordance with law.

Like Article 25, freedoms guaranteed by Article 26 are also not absolute and the rights guaranteed in Article 26 are subject to public order, morality and health.

Before discussing various facets of rights guaranteed by Article 26, it is worthwhile to discuss the meaning of religious denominations. In Shirur Matt Case 11 , the term religious denomination came for consideration. Relying upon the definition given in Oxford Dictionary, the court pointed out three components of this term viz.

• Collection of individuals having common faith;
• An organization; and
• Designation of that organization by distinctive name.

Accordingly Radha Swamis, Lingayats and Vaishnavas have been held to constitute religious denomination for the purposes of Article 26. Similarly, Zororashtrian, Swetamber Jains, Gowada Saraswat Brahmins and Dawood Boharas have been held to be religious denominations for the purpose.

In S.P Mittal v. Union of India 12 it was contended that Aurobindo Society was religious denomination and Auroville Township was religious institution. The Constitution Bench of the Apex Court by majority judgment rejected both the claims on the ground that the society was teaching internal yoga and the same cannot be said to practicing religion.

In Acharaya Jagdishwaranand Avdhoot v. Commissoner of Police, Calcutta 13 the question was whether Tandav dance to be performed with human skull, a damroo and trident and its performance at a public place is a fundamental right and whether it constitutes essential religious practices of Anand Margi denomination. The Apex Court rejected the claim of performing Tandav at the public place observing that no credible evidence was furnished that Tandav was essential part of their belief. Immediately after the decision the founder of Anand Margi sect declared expressly that Tandav was an essential element of Anand Margi. Accordingly, in second Anand Margi case i.e. Jagdishwaranand Avdhoot v. Commissoner of Police, Calcutta14 the question was again raised however, the Supreme Court followed the earlier decision and by the majority 2:1 declared that essential of religion do not change from time to time.

Therefore, the courts have been called upon to determine whether a particular belief is a religion or a denomination and what are its practices. As observed earlier the apex court in Shirur Mutt Case declared that whether something is part of the religion or not it has to be determined according to tenets of that religion. Shri Govindlalji v. State of Rajasthan15 the Supreme Court speaking through Gajendragadkar, J. declared that only those tenets can be considered to be the part of religion which are its essential principles. Therefore, the non-essential principles were held not to be part of the religion.

In Srimad Perarulala Ehiraja Ramanuja Jeeyar Swami v. State of Tamil Nadu16, the Supreme Court of India reiterated that protection of Articles 25 and 26 extend to religious practices and therefore, they guarantee rituals, observances, modes of worship and ceremonies which are an essential part of the religion. However, as to what constitutes an integral part of a religion, the court held that it has to be determined by court with reference to the doctrines of that particular religion.

In Mohd. Hanif Quareshi v. State of Bihar17 ban on cow slaughter was challenged on the ground that it violated the religious freedom of Muslims. It was argued that sacrifice of cow on Bakri-Id was an essential practice and an integral part of the religion. The court held that the practice of cow sacrifice was not an essential part and hence it can be regulated.

5.2.1 Right of Religious Denominations to Manage their Own Affairs and State Regulations

Though under Article 26 religious denominations have autonomy to manage their own affairs in matters of religion and to acquire and an administer property yet after independence there is increasing state control over this aspect primarily because Article 26 is subject to public order, morality and health.

In Durgah Committee v. Hussain Ali, Durgah Khwaja Saheb Act, 1955 was challenged. It was contended that the Act has provided for the Constitution of Committee for the management of Durgah without any stipulation to the fact that only Sunni Muslims belonging to Chistia sect could be nominated to the committee. The Constitutional Bench of Supreme Court rejected this argument and held that since the time of Akbar, state appointed officials or committee were managing the Durgah. In this backdrop, the court declared that Article 26(c) and 26(d) only guarded those rights which religious denominations already possessed. The court declared that these Articles did not create new rights. Similar line of decisions can be ascertained from Shri Govindlalji v. State of Rajasthan 18 and State of Rajasthan v. Sajjanlal Panjawat19

The State regulation in matters pertaining to management of affairs of religious institutions regarding appointment of Priests was challenged before the Supreme Court in Srimad Perarulala Ehiraja Ramanuja Jeeyar Swami v. State of Tamil Nadu.20 In the instant case, Tamil Nadu Hindu Religious and Charitable Endowments (Amendment) Act, 1970 was challenged. The Act provided for appointment on the basis of proficiency certificate from a recognized institution doing away with the practice of having hereditary priests. The court upheld the Act and observed that the position of priest may an important religious position but the process of his appointment is a secular act and hence it can be regulated by the State.

Similar instances of legislative intrusion under the guise of regulating secular activities is discernible from various decisions of Supreme Court including N. Adithayam v. Travancore Devaswom Board21, A.S. Narayana Deekshitulu v. State of A.P.22 and Sri Sri Sri Lakshamana Yatendrulu v. State of A.P.23

Another important issue to be considered is the right of religious denominations to own, acquire and administer their property in the wake of abolition of right to property from the category of fundamental rights. Though the seven judge Constitutional Bench in Shirur Mutt case declared that the administration of property belonging to religious denominations can be regulated by law but the administration itself has to be left with the denomination. Perusal of Article 26 clearly bring out that the administration of property is subject to the provisions of laws in force. Accordingly the Supreme Court has upheld various legislative efforts to constitute

Administration Boards and Committees for the administration of religious institutions. Jammu and Kashmir Mata Vaishno Devi Shrine Act, 1988 displays the above trend.

5.3 Freedom from payment of Taxes for Promotion of any Particular Religion Article 27 contains prohibition against the levy of any taxes which are meant for promotion or Maintenance of any particular religion or religious denomination. The Article prohibits the levy of tax but does not prohibit the levy of fee. The levy of taxes is forbidden when it is for the purpose of promoting or maintaining any particular religion. It implies that the levy of tax is prohibited only when it is meant to favour a particular religion or religious denomination. Equal aid to all the religions is not barred. The question came up before the Supreme Court Seven Judge Bench in Shirur Mutt case wherein the court observed that the levy under Madras Hindu Religious and Charitable Endowments Act, 1951 was in the nature of tax but the court held that it was not for the purpose of preserving/promoting the Hindu religion rather it was for the purpose of proper administration of religious and charitable institutions wherever they existed and the levy was upheld.

5.4 Religious Instructions in Educational Institutions

An analysis of Article 28 brings to light the following:

• Religious instructions in Educational institutions maintained wholly out of state funds are barred.
• In case of educational institutions run by State but established under any trust or endowment, religious instructions can be imparted if the trust or endowment prescribes.
• In case of educational institutions which are aided or recognized by the State, no person can be compelled to take part in religious instructions. However, voluntary participation is allowed.

A distinction has however, to be drawn between attending religious instructions and academic study of religion. The question cropped up in D.A.V. College, Jalandhar v. State of Punjab (AIR 1971 SC 1737) wherein the question was as to the constitutionality of the inclusion of the subject of Teachings and Life of Guru Nanak Dev in the course curriculum of the colleges affiliated to the University. The Court held that it was an academic pursuit and not the religious instruction being compulsorily imparted and hence was not barred.

6.1 Conclusions and Summary

From the foregoing discussion, following propositions emerge

1) The establishment of a Theocratic state is prohibited by the Constitution of India.

2) The State is prohibited from favouring any particular religion. State can not identify itself with any particular religion.

3) The concept of secularism under the Constitution of India does not imply anti-religion rather it implies absence of favouritism for any religion, equal space for all religions to flourish and Sarv Dharm Sam bhav.

4) Indian secularism is different from western concept of secularism. In India the State can regulate non essential and secular parts of religion. Personal laws still occupy the field and reservations on the basis of caste are allowed.

5) Article 25 guarantees to all:

a. Freedom of Conscience

b. Right to Profess, Practice or Propagate any religion of one’s choice

6) Religious freedoms guaranteed under Article 25 are not absolute and are subject to various limitations viz., Part III of the Constitution of India, Public Order, Health and Morality, Laws made by the State for throwing open of Hindu Religious Institutions to all classes of Hindus, Laws made for social welfare and reform and also to Laws made for the regulation of economic, financial, political or other secular activities associated with the religious practices.

7) Article 26 provides various rights to religious denominations or any section of them:

a. Right to establish and administer institutions for religious or charitable purposes

b. Right to manage its own affairs

c. Right to own and acquire property

d. Right to manage property as per the law of the land.

8) Freedoms guaranteed under Article 26 are also not absolute and are subject to Public Order, Health and Morality.

9) What constitutes religion and what are its essential and integral practices, are to be determined by the court with reference to the doctrines and beliefs of that particular religion.

10) It is well settled that matters pertaining to religion are left to the religious heads whereas administration, management and governance to religious institutions are secular activities and therefore could be regulated by law by the State.

11) Article 27 prohibits levy of any taxes for promoting any particular religion or religious denomination. However, levy of fee is not prohibited.

12) Article 28 guarantees that no religious instructions shall be imparted in any educational institution maintained wholly out of state funds. Though if the institution is established under some endowment or trust and the same is administered by the state, religious instruction can be imparted. No person can however, be compelled to attend any religious instruction being imparted in any educational institution recognized by state or receiving aid from State. Voluntary attendance is not prohibited.

13) Over a period of time increasing trend of governmental regulation in matters pertaining to administration of religious institutions under the guise of social welfare and control or regulation of non secular activities is noted.

Weblinks

• Ronojoy Sen, Legalizing Religion : Indian Supreme Court and Secularism (East West Centre, 2007) www.eastwestcenter.org/fileadmin/stored/pdfs/PS030.pdf
• Madhu Chandra, Conversion Termed “Illegal” : An Assault of Indian Secularism and Democracy, http://www.countercurrents.org/chandra290710.htm
• http://www.legalserviceindia.com/articles/ct.htm
• http://marcgalanter.net/Documents/papers/scannedpdf/personallawsystems.pdf