A Blend Of Constitutionalism And Religion: Recent Developments And Judicial Detour
Constitutionalism and religious rights available to people in the country is the way of securing the nation’s people intact and giving an equal chance to every community to be on the equal pedestal. The ideology behind calling India secular was to give people equal chance in the matters of religion and to not represent themselves who they are… Read More »
Constitutionalism and religious rights available to people in the country is the way of securing the nation’s people intact and giving an equal chance to every community to be on the equal pedestal. The ideology behind calling India secular was to give people equal chance in the matters of religion and to not represent themselves who they are rather who they want to be, by procuring the true feeling of democracy. || A Blend Of Constitutionalism And Religion: Recent Developments And Judicial Detour By – Vanshika and Mohit Vats (Northcap University)
“I do not expect India of my dreams to develop one religion, i.e., to be wholly Hindu or wholly Christian or wholly Mussalman, but I want it to be wholly tolerant, with its religions working side by side with one another.” – Mahatma Gandhi
This credence is beautifully carried forward by our constitution by the way of secularism under which all the people having distinct faiths are given equal opportunity to profess their religion within one country. The constitution is an amalgamation of different theories of law and constitutionalism is the way of showing affirmation to the different facets of law which are prevailing in the state i.e. whatever is prescribed by the constitution should be followed ensuring a progressive state. Indian constitution is woven with certain ideology or spirit forming a state into secular, socialist, democratic, sovereign, and republic. The state cannot be secular in the sense of being hostile to religion. Therefore, today the term is understood as an ideology which preaches that political power and religious affair should be kept apart.
This would, obviously, mean that the state should not identify itself with any particular religion and the fate of a citizen in his relationship with the state should not depend on his personal belief or disbelief. Instead, an individual’s belief or disbelief should be treated as his private affair with which the state has nothing to do nor should it interfere. But there is also a finer point: how much detached a secular state should be from religion? It is said that the Indian constitution does not prohibit the state from aiding all religions equally: what is prohibited is the identification of the state with any particular religion or discrimination against any religion.
But let us note at this stage that one thing that this equal aid to all religion’s doctrine is known as Sarv Dharm Sam Bhav. A society will be called secular if the people are tolerant in religious matters. They must be ready to tolerate the differing religious beliefs and practices of others. The spirit of scientific inquiry, cognition and rationalism coupled with the strong phase in material progress would also be necessary.
Rigmarole of secularism
It is widely believed that the history and culture of India provide a suitable background for the ideology of secularism to flourish. History provides the examples of rulers like Ashoka and Akbar who practised the policy of tolerance in religious matters and eschewed fanaticism. Ashoka was a devout Buddhist and did a lot for the spread and promotion of that religion but he did not interfere in the free exercise of religion by the non-Buddhists. Similarly, Akbar remained uninfluenced by the criticism and opposition of orthodox Mullahs to his policy of tolerance and equal opportunities to Muslims and Hindus in the state affairs. He even tried to bring about a synthesis of the basic tenets of different religious creeds. He started a religion named “Din-I-illahi” “religion of God” where all the religions were combined into one faith believing no religion is complete in itself.Indeed, the word ‘Dharm’ does not have the narrow connotation of a ritualistic religion; instead, it comprehends the totality of obligations and duties which an individual is to observe to keep the social fabric intact.
The challenge that is prevalent in the society is Ayodhya babri masjid issue. According to the law that is not a religious matter it is purely a land issue which is depicted as a religious matter because of the faith people are holding. The radical hitch associated with this babri Masjid case is that the political party is blinding extending their support to the extremist. Communal rift has always been a part of this issue ever since 1992 but the way this issue is taken up under the leadership of Yogi Adityanath and assurance extended by him saying “there should be no doubt” that a temple will be built at the disputed Ram Janmabhoomi-Babri Masjid site. Thus, it scares to shaken the pillar of secularism under the constitution. The philosophy supported by Akbar and Ashoka in the past seems all vain in this era of development.
Secularism and constitutional blend with judicial developments
The constitution secure secularism under article 25 the first point to be noted is that the entitlement is equal. As has been hinted in the very beginning, inter-religious tolerance and grant of equal space to all the faiths to flourish on Indian soil are simultaneously the basic prerequisites and the basic feature of the principles of freedom of religion guaranteed in the constitution. This aspect becomes very important in areas of religious practice and religious propaganda. Lack of mutual tolerance and the consequent state of recrimination would all the time invite governmental interference which can only be destructive of religious freedom and the essence of constitutionalism which prevails in the society. It is very paramount to put all the religions on one slab without any giving importance to any one religion.
India has always been defined by its composition of the population with a different set of people with distinct religious faith living together. Though in the beginning of Independence it was not specifically mentioned that India is a secular country but it has always held the traits of a secular state. Constitution as originally adopted omitted to mention the word ‘secular’ for characterizing the nature of the Indian polity. This omission was not accidental but deliberate it was omitted because it was suspected by quite a few that the word carried it with its anti-religious overtones. It was introduced in the Preamble of the constitution for the first time by the constitution 42nd Amendment Act, 1976.
The 44nd Amendment Act, 1978 it contained a clause which sought to define the word ‘secular’ to mean Sarv Dharm Sam Bhav, which was opposed and in the absence of the requisite majority in the council of states, it could not be passed. Kesavananda Bharati case had propounded the theory that the constitution could not be so amended as to damage or destroy its basic structure or any of its basic features. Consequently, in S.R Bommai V. Union of India of India, the question arose as to whether the insertion of the word ‘secular’ in the Preamble to define the nature of Indian polity amounted to bring about a fundamental change in the constitution which the Parliament was incompetent to do in 1976. The Supreme Court held that the express mention of the word secular only made explicit what was already made implicit as a result of the combined effect of the operative provisions of the constitution especially article 25 to 30.
There are two broad guiding principles which must be taken to govern the sets of rights is that the state is not to interfere in what is essentially a matter of religion; but social, economic, political or other secular activities which are not matters of religion and are not only associated with religion, can always be regulated by the state. The state in the garb of providing for social welfare and reform does not indulge in the act of religious reform.
The Rights guaranteed in article 25(1) the first right is that of freedom of conscience. This means that one has the freedom to entertain any belief which one’s conscience or judgement may dictate. The second right is the right to profess openly that one holds a particular belief.And to profess a religion means the right to declare freely and openly one’s faith. Right provided under constitution saves the idea of democracy and keeps intact constitutionalism and takes away all the limitations which are arbitrary in nature or which are beyond the powers of the constitution.
The recent development where Supreme Court provided a judgement safeguarding the interest of people and the right to profess and practice religion the “Sabarimala case” where women aging 10 to 50 were not allowed to enter the temple premises under the customary rights. However, every public place is open to all no one can be arbitrarily restrained. Justice D. Y. Chandrachud conceded that the right to pray of women is not dependant on any law as they were restricted under Kerala Hindu Places of Public Worship (Authorisation of Entry) Rules, 1965, violates their right to pray. The bench also observed that what applies to a man equally applies to the woman and once a place is open to public it is open for all to access. This judgement sealed the essence of Article 25 in a way providing equal opportunity to women in propagating their belief towards their deity.
The last right listed in article 25(1) discusses about the right to propagate religion. In Rev. Stainislaus v. State of Madhya Pradesh, the question arose whether the right included the right to convert others to one’s own religion. The Supreme Court held that the right to propagate religion merely meant the right to bring the tenets to religion to the notice of the people for their edification and did to include the right to convert others because that would go against the principle of equality of all the religions. Change of religion as such cannot be prohibited because it is implicit in the right to the freedom of conscience itself. Basic concept of equality of all religions and equal respect to all the faiths is one way of holding the philosophy of constitution and safeguarding the interest of all the people who are there living in the country and governed by the fundamental norm prevailing in the country.
In the case of Rev. Stainislaus v. State of Madhya Pradesh the constitutionality of the Orissa Freedom of Religion Act 1967 and the Madhya Pradesh Dharm Swatantrya Adhiniyam, 1968 has been impugned. The Orissa Act made conversion brought about by fraud, force or inducement a criminal offence. Similarly, the Madhya Pradesh law made it a criminal offence to convert by someone by use of fraud, force or inducement. Both the laws have been changed at the High Court level as well. While the Madhya Pradesh High Court had upheld the law, the Orissa High court had held the corresponding law of Orissa to be void. The loosing sides have appealed to the Supreme Court which held that both the laws were valid.
One of the contentions that was raised in the case was that respective laws were of violative of article 25(1) which guaranteed the right to propagate religion and that included the right to make a conversion. It was conceded that the use of force or fraud could be validly prohibited because the right to propagate religion in article 25(1) was subject to public order and morality, but it was strongly asserted that inducement or allurement were not only vague in their meaning but were terms of wide connotation and could not be brought within the ambit of limiting grounds of’ public order, morality and health’ so as to penalize a person for the exercise of his constitutional right on the ground. Criminalising conversion under the guise of inducement or allurement will take dilute the whole ideology of Secularism and vital essence of the constitution that is equality in the country because every person has an equal right to profess and propagate any religion of his choice and should be allowed to convert if they wish to change their religion in other religion. If any of the above stated provisions are not complied with that will not only violate the fundamentals of the Indian constitution but will also be in violation of the international law.
The General Assembly of united nations adopted without a dissenting vote on 10th December,1948 the Universal Declaration on Human Rights recognizing the fact that the entire humanity enjoys certain alienable rights which constitute the foundation of freedom, justice and peace in the world. In order to give effect to the Universal Declaration of human rights the members of the united nations of also adopted the two conventions in 1966 in this concern: –
- International Covenant on Economic, Social and Cultural Rights.
- International Covenant on Civil and Political Rights.
The Government of India by its declaration dated 10.4.1979 had accepted the Universal Declaration of Human Rights and the two international covenants with certain reservations which cover the right to freedom of religion. Apart from this the Constitution of India also enshrines the freedom of religion and freedom of conscience as fundamental rights under Article 25, 26,27,28,30.
LIMITATIONS ON ARTICLE 25 RIGHTS
These rights guaranteed in article 25(1) are subject to sets of limitations. These are public order, morality and health, other provisions of part III, the law providing for social welfare and reform, and laws regulating or restricting economic, financial, political or other secular activity associated with religious practices. Ordinarily, problems of breach of public order arise when provocative speeches are delivered in religious assemblies, or when someone denigrates another religion, or when religious processions are taken out or are obstructed from being take out unreasonably just to create a state of confrontation. This is where the whole collusion begins, constitutionalism and religion collide. Moment when a clear demarcation needs to follow here that in the name of religion, no act can be done against public order, morality and health of the public.
Right to propagate one’s religion does not give the right to anyone to “forcibly” convert any person to one’s own religion. Forcible conversion of any person to one’s own religion might disturb the public order hence prohibited by law as they are opposed to the principles quoted in the Indian constitution. In the name of religion, untouchability and human trafficking is intolerable for example – a system of devadasis cannot be tolerated. The freedom to practise any religion as supported by the theory of constitutionalism extends only to those activities which are the essence of religion. It does not cover secular activities which does not form the essence of religion. In the case of Mohd. Hanif Quareshi v. State of Bihar the petitioner claimed that the sacrifice of cows on the occasion of Bakrid was an essential part of his religion and therefore the State law forbidding the slaughter of cows was violative of his right to practise religion. The court rejected this rejected this argument and held that the sacrifice of a cow on the Bakrid day was not an essential part of Mohammedan religion and hence could be prohibited by State under the clause (2) (a) of Article 25.
The slaughtering of animal could never shape up as an essential practice under any religion. Religion is faith or belief that people are holding in the name that there is an existence of god in different forms in a different religion. Every religion or law gives importance to good deeds and human actions which brings out peace and stability. Under Clause (2) (b) of Article 25 the State is empowered to make law for social welfare and social reform. Thus, under this clause, the State can eradicate social practices which stand in the path of the country’s onwards progress and which are in conflict with a basic theory which is supported by constitutionalism as such laws does not affect the essence of any religion. This clause declares that where there is a conflict between the need of social welfare and reform and religious practice, social welfare should be considered. Social evils cannot be practised in the name of religion. In the case of State of Bombay v. Varasu Bapamali an Act which prohibited bigamy was held valid under Clause (2) (b), Polygamy is not an essential part of the Hindu religion therefore it can be regulated by law.
In the case of Shayara Bano v. Union of India question before the court was that whether triple talaq is fundamental to religion. Whether this Islamic divorce is protected under article 25 of the constitution. Court decided that triple pronouncement is an unconstitutional practice is not an essential practice within Islam and is not protected under article 25. This triple talaq practice stands diluted till the time no law has been passed by legislative. By the practice of such diabolic laws in the society, the life of the women was in pitiable condition. The idea of constitutionalism is to bring a harmonious state and taking all the preventive action against all the vulnerable activities which are provoking instability in the nation. Certifying such laws unconstitutional and eradicating from the society is a way of preserving the value of constitution in the country.
India is a diverse country with the population of more than 1.2 billion having distinct faiths preaching different gods and beliefs in the country. Our country has always been known for its religious tension and on the contrary, tolerance for religious beliefs and showing considerate behaviour towards one’s religion and imbibing a true sense of secularism. Following the recent resurrections in the country, major political parties supporting different religious groups are standing against the idea of constitutionalism and secularism in the country. However, the judiciary is trying to secure the essence of secularism in the country through its impressive discernment.
Religious tolerance is not new it has always been prevalent ever since even when India was independent. Ashoka a true follower of Buddhism but never imposed religious restrictions or practices of his beliefs. Even Akbar a muslim ruler gave equal chance to hindus to represent themselves. There have been instances of major recent religious tolerance, where people with opposite faith have shown respect towards the other belief. Once in Mumbai, people of the muslim community were extending namaz for Eid near the pandal of deity Ganesha, during one of the biggest celebrated festivals of hindu religion “Ganesh Chathurti”. Seva Sangh people offered their pandal to muslims for extending their Eid prayers showing religious harmony and strengthening the unity between different religions. Religious groups have always stood up for each other’s faith and always supported unity.
Existence of communal rifts is all because of political parties playing their dirty games for polling their vote campaigns. They play a major role in creating a communal rift in the country and are working against the very fundamentals of the constitution. Political parties have been given power by the constitution only to represent people of India. This does not give them the right to present their religious ideology over the constitution and promoting any religion per se. After coming into power, they play a big-league role in administrating and governance they have a responsibility to work in accordance with the constitution.
Right to profess any religion is given to citizens but those rights are provided with certain limitations that they should not be any affect to public disorder, morality and health, other provisions of part III, law providing for social welfare and reform, and laws regulating or restricting economic, financial, political or other secular activity associated with religious practices. State has the power to make laws for social welfare and social reform as discussed above and they can also eradicate and prohibit any practice which is being followed by people but is anti- secular in nature.
Constitutionalism and religious rights available to people in the country is the way of securing the nation’s people intact and giving an equal chance to every community to be on the equal pedestal. The ideology behind calling India secular was to give people equal chance in the matters of religion and to not represent themselves who they are rather who they want to be, by procuring the true feeling of democracy.
By – Vanshika and Mohit Vats
 For a historical background. See D.E. Smith, India As a Secular State.
 Makhanlal Roychoudhury, The Din-I illahi or the religion of akbar, ring mar, (Oct 11, 2018) http://ringmar.net/irhistorynew/index.php/2018/10/11/din-i-ilahi/.
 See generally, Robert Lingat, The Classical Law of India (New Delhi: Thomas Press, 1973) especially Ch. 1; M. Rama Jois, Legal and Constitutional History of India Vol. 1 (Bombay: Tripathi, 1990) Chs. 1 to 3.
 Maulshree Seth, Yogi Adityanath ahead of 2019 polls: No doubt Ram temple will be built in Ayodhya, TIE (June 26, 2018 10:00:57 am), https://indianexpress.com/article/india/no-doubt-ram-temple-will-be-built-in-ayodhya-yogi-adityanath-5233024/.
INDIAN CONST. Id. Art. 25.
 Sardar Suedna Taiiir Saifuddin v State of Bombay, AIR 1962 SC 853; Prashantkumar Radhakrishna Sharma, Right to Freedom of Religion, LEGAL INDIA, (Oct. 21 2018, 10:30 PM) http://www.legalindia.com/right-to-freedom-of-religion/.
 K.T. Shah made at least two unsuccessful attempts for insertion of the term ‘Secular’ in the Constitution. See J.M. Shelat.
 (1973) 4 SCC 225; (1973) Supp. SCR 1.
 (1994) 3 SCC 1; AIR 1994 SC 1918.
 Ratilal Panachand Gandhi v State of Bombay. 1954 AIR 388.
 Punjab Rao v DP Meshram. 1965 AIR 1179.
 Express Web Desk, What is the Sabarimala Case?, THE INDIAN EXPRESS, (Oct 17, 2018, 9:45 PM), https://indianexpress.com/article/what-is/what-is-the-sabarimala-case-5376596/.
 (1977) 2 SCR 611.
Deepak Miglani, Right to freedom of Religion vs Religious Conversion, LEGAL SERVICE INDIA, (Oct. 21 2018, 10:40 PM), http://www.legalserviceindia.com/articles/rel_rel.htm.
 INDIAN CONST. art. 25, cl. 2.
 AIR 1953 BOM.84.
 (2017) 9 SCC 1.
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