EVALUATION OF FREEDOM OF RELIGION IN INDIA: RECENT DEVELOPMENTS

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Introduction

India became a member of the United Nations after it gained independence in 1947. India voted in favour of the Universal Declaration of Human Rights enacted by the United Nations General Assembly in 1948.[1] Article 2 of this declaration assured human rights to every person irrespective of his religion.[2] Article 18 of the declaration focused on the right of the religion of every person. India witnessed riots, communal violence, loss of human lives and property and migrations that occurred because of the issues created by religion.[3] The partition of the subcontinent was faced mainly on the grounds of religion by the country.[4]

The Indian Constitution comprise several provisions for dealing with the issues and challenges created by religion. Article 15 states that discrimination based on religion is prohibited.[5] Article 16 assures that in cases of public employment, equality in getting an opportunity for the same need to be assured without taking into account one’s religion.[6] Article 17 forbids the practice of untouchability in the country which arises on the basis of religion and caste of a person.[7] The Fundamental right of religion is specified under articles 25-30 in Part 3 of the Indian Constitution. Article 25 ensures freedom of conscience. It further provides that people are allowed to practice, profess and propagate their religion freely. [8]

Article 26 states that people are allowed to manage matters related to religion. This management includes that for religious and charitable motive, people have a right to set up and maintain institutions.[9] According to Article 27, for promoting one’s religion, a person is not required to pay taxes for its promotion.[10] Providing instructions related to religion are not permitted in the educational establishments which are maintained completely out of funds given by the state under Article 28.[11] Article 29 lays down the provisions of safeguarding the interests of the people belonging to minorities.[12] Article 30 specifies that minorities possess the right of setting up and maintaining educational institutions. [13]

The conditions of these fundamental rights specified under Articles 25-30 is that the order in the society, moral ethics and health conditions must be upheld. These rights need to be implemented in such a way that ensures progress and advancement. When the Constitution was framed, the concepts of secular and secularism were not included.[14] India was specified as a secular country in 1976 through 42nd Amendment when the word secular was added in the preamble of the Constitution of India. [15]

Religion and Judiciary

Judiciary in India has given a contribution in explaining the elements of religion in the country. The courts have advocated the view that the issue of secularism in the country arises because it is not clarified what matters would be treated as issues of religion and what would be not.[16]

The honourable Supreme Court of India in SP Mittal v. Union of India has clarified that believing in God is not necessary for composing religion. Religion was detailed as a matter of faith and belief. Religion describes its essential elements such as religious ceremonies, commemorations, rituals, ways of worship in addition to the code of conduct which prescribes rules of ethics. The court intends to safeguard the practice of religious beliefs but it also recognizes that the right to religion is not absolute and certain limits could be created on its exercise. [17]

The state can specify certain boundaries on the enjoyment of this right for upholding moral values, enforcing other fundamental rights, securing the health of people, ensuring public order and well-being. The judiciary formulated a rule of essentiality in religion. The practices which are essential for freedom of conscience, practising, professing, propagating, managing affairs, etc., of religion would be protected. Through several cases, it was determined that essential religious practices would be safeguarded as decided by the courts.[18]

This act of courts of deciding what are matters of religion and what are not has displayed the activist approach of the court. The courts are somewhere regulating the personal areas by interpreting the meaning related to religion. From various cases, it could be discerned that in some of them, the interests of majorities were upheld while rights of minorities were infringed and in some, interests of minorities were safeguarded.[19]

Padhy states that the difficulty faced in imposing limits on the State from intervening in the domain of religion for social reforms and the inconsistent approach of the judiciary has somewhere weakened the concept of secularism.  According to her, the exercise of laws based on religion and the goal of social justice becomes conflicting in certain domains. She states that secularism refers to respect of all religions, assuring freedom of right to religion and prohibition of discriminatory practices on the pretext of religion. Padhy highlights that in achieving secularism the interests of minorities are required to upheld and promoted and if their interests are suppressed then, it will turn to majoritarianism. [20]

Requirement of Uniform Civil Code and Issues with Personal Laws

Article 44 of part 4 of the Indian Constitution specifies the need for a Uniform Civil Code. It is a directive principle that is not enforced by law. However, these principles are significant for governing the country so, it is the responsibility of the state to enforce them. It is a trend established by the honourable Supreme Court that the fundamental rights and the directive principles need to be effectuated in a harmonious manner. A common civil code is important for assuring the integration of the nation. It is significant for securing the target of modernizing the society and for establishing a common justice system for everyone in the country.[21]

This code will seek to enact the same laws in the context of marriage, divorce, adoption of child, succession, inheritance of property, etc. and the subject of religion would not be taken into account in deciding matters related to these issues. This will safeguard the ideals of humanism and will bring uniformity in the practices of the community. Certain personal laws created on the basis of religion in regard to marriage, divorce, succession, adoption, etc., are unjust and unfair mainly for women. When certain practices are governed on the pretext of religion, the fundamental rights of equality and prohibition of discrimination are undermined. Ambiguity arises in society when the regulation of marriage, inheritance, etc., differ because of one’s religion.[22]

The creation of division takes place under the religion which awards special status to some people in the society. One action which is allowed under one personal law is prohibited under another personal law. This gives rise to inconsistency in dealing with the issues under different personal laws. When laws are not equal for everyone and differ on the cause of religion then achieving equality in the country becomes a difficult task. Equality and justice need to be upheld by the state. [23]

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Several arguments are raised against the formulation and implementation of the Uniform Civil Code. It is contended that for assuring equality and justice, a change could be made in the personal laws themselves for protecting the rights of children and women. A Uniform Civil Code is not essential. When there is educational and economic backwardness among the communities then injustice increases. Educational and economic support is required to be provided to such communities. If this support is provided by the government, then equality would be strengthened.[24]

Another argument raised against it is that the goal of secularism could not be achieved without providing the required importance to religious laws and conventions. The need of establishing the element of uniformity in the social relation holds priority over the formulation of a Uniform Civil Code in the country. This uniformity in the social structure would be significant in seeking the objective of an integrated and united nation. One contention is that the Uniform Civil Code is a political and communal tool to suppress religious minorities and to promote the interests of the majority groups.[25]

Recently, Goa formulated the Uniform Civil Code and through this, it has secured what the framers of the Constitution contemplated. Former Chief Justice of India, S.A. Bobde praised this step of Goa and stated that now justice would be administered. In 2019, the Supreme Court of India described Goa as a shining example of the uniform civil code. [26]

Secularism in the country insists on freedom for all religion. However, the rights of equality and non-discrimination are equally essential. Religion is a sacred matter in India. To secure the target of the Uniform Civil Code the religious sentiments of people should not be hurt and must be given equal importance. Thus, to achieve the same it is necessary that harmony with the fundamental right of religion is upheld.[27] 

Citizenship Amendment Act and Religion

The Citizenship Amendment Act, 2019 aims at conferring citizenship on Hindu, Sikh, Buddhist, Jain, Parsi and Christian groups who are persecuted on the pretext of religion in Afghanistan, Bangladesh and Pakistan. However, this act has received several criticisms. One of the criticisms is that it contravenes the fundamental right of equality of the people. The ideals of justice and fairness are undermined by creating religion as a ground of citizenship.[28] Equality of Law and equal protection before the law is specified under Article 14 of the Constitution. The state can create certain limitations for this right and can formulate a particular and separate class for a person or group of persons. However, it is essential that this classification must be reasonable and rooted in the principle of intelligible differentia.[29] No arbitrariness must be there and an objective must be there in creating such classification.[30]

One of the contentions raised against the act is that it is not able to clarify the reason for providing citizenship to persecuted religious minorities of the countries of Afghanistan, Bangladesh and Pakistan. The religious minorities which are persecuted in other neighbouring are not taken into account. The exclusion of Tamil Eelams and Rohingya Muslims from the purview is unexplained as they are also persecuted communities when the goal of the Act is safeguarding the immigrants who face persecution on the grounds of religion. Another issue raised is that why only six religious minorities are being included and why other religious minorities are excluded from the purview. [31]

Ahmadiyya Muslims in Pakistan is a persecuted community and also classified as a non-Muslim group. However, they are not getting citizenship. The arguments are raised on the grounds that when these six religious minorities are the victim of persecution and are trying to escape it then, Shia Muslims and Ahmadiyya Muslims are also religious minorities escaping from the persecution on the basis of their religion. It is being contended that the element of reasonability is not present in this classification. A claim is being advanced that this act is affecting The Muslim community which is infringing the right of equality and supporting discrimination on the cause of religion. The government has given its stand in justifying the Act but it is being criticized on the grounds that it violates fundamental values of the Indian Constitution.[32]

Triple Talaq

The issues of social inequalities and social evils hide in the garb of religion. Gender inequalities can be discerned in various religious practices because they were created mainly by males. Several reforms started under British rule to fight against gender and religious discrimination. Practices like Sati Pratha and Child Marriage were forbidden though were endorsed by many and this brought a social reform in the society. Certain orthodox religious practices are violating the rights of women and girls. One such issue is found in the norm of Triple Talaq.[33]

In Muslim Community, a man has a right to give triple talaq which is instant divorce for ending the marriage. It is male chauvinistic custom as males have the authority to end the marriage by pronouncing the word Talaq three times while females do not have any such right. Women are required to seek aid from the court to end the marriage according to the Sharia Act, 1937. This rule is infringing the principle of the Constitution. Gender equality was being violated. The rights and dignity of women were put at stake. The values of justice, fairness and equality are essential for any law described under personal laws made under religion.[34]

Several countries have also protested against this practice sanctioned under the name of religious laws because it is the cause of the destruction of the lives of many children and women. Article 25 of the Constitution though provides freedom of religion but this right is not absolute and certain boundaries can be created on the exercise of the same. This right does not advocate those practices which have adverse effects on the lives of people in the garb of religion. Since the rights of Muslim women of being entitled to equality before the law are enfeebled, Triple Talaq is violative of Article 14. It also infringes Article 15 which delineates that discrimination done on the grounds of sex is forbidden. [35]

The tradition of Triple Talaq was declared unconstitutional in a recent case Shayara Bano v. Union of India and Ors. This practice was nullified by the court through a majority of 3:2. In this case, it was highlighted that the norm of Triple Talaq is an innovation as it is not mentioned in Sunna. It is an improper form of divorce. It is described as a sin by the Hanafi School of Shariat Law. The practice of Triple Talaq which falls under the purview of the Muslim Personal Law (Shariat) Application Act, 1937 becomes a part of Article 13 of the Indian Constitution. According to this article, if the laws which were in the application before the Constitution was enforced are in derogation or inconsistent with the fundamental rights, then such laws would be considered void. The court stated that Triple Talaq is not an essential custom for practising the right of religion. The court advocated that the traditional rules cannot crib or confine the concept of equality which is progressive and contains several aspects in it. Therefore, as Triple Talaq violated the right to equality, it cannot seek protection under the right to religion to continue such discriminatory practice.[36]

Freedom of Choosing Religion

The honourable Supreme Court responded to a Public Interest Litigation which demanded that Indians must not be permitted to change their faith under which they are born to some another faith. The petition claimed that the conversions in the country are taking place on a mass scale through the application of all kinds of methods whether right or wrong. A contention was made that the government at the Centre and the State are required to regulate the conversions which are taking place on the basis of black magic, superstitions, threats, creation of terror and pressure or by enticing people through monetary profits and by giving gifts as bribes.[37] The petition claimed that it is their duty under Article 51 A of the Indian Constitution. It was stated in the petition that the conversions made through such an approach are undermining Articles 14, 21 and 25 along with the rules of secularism which is a significant part of the Indian Constitution.[38]

On this, the honourable court replied that people possess the right of choosing their religion freely. The bench under Justice F. Nariman stated that Article 25 of the Indian Constitution confers the right to freely profess, propagate and practice one’s religion and this is a part of the fundamental right of a person. The court questioned the kind of Writ Petition filed under Article 32 and asserted that for such petitions heavy costs could be imposed by the court.[39]

A claim that the conversions are happening through the implementation of the Carrot and Stick approach was made under the petition. Justice Nariman responded that the final judge of selecting one’s own religion is the person himself. The choice of religion rests with the person just like the choice of selecting the life partner rests with a person. It was further stated that the court cannot sit in the judgment of choosing the religion of a person.[40] The honourable judge retorted that there are no grounds based on which someone who has attained the age of 18 years cannot choose his own religion or somebody else’s.[41]

The court held the view that religious faith constitutes a portion of the Right to Privacy. The principle that the Right to Privacy could not be violated and its equivalent status to the Right to Life, Liberty and Dignity was upheld. The petition was then dismissed by the court.[42]

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Condition of Religious Freedom in India- Report

The United States Commission on International Religious Freedom has given the recommendation to classify India under Countries of Particular Concern. The main findings of the USCIRF Annual Report 2021- India Chapter are-:

A negative track could be noticed in the freedom of religion in India. Communal violence erupted between the Hindu and Muslim community in Delhi in February 2020. According to this report, in recent years the secular values of the country has been threatened. Laws and policies which are being effectuated at the national and state level are somewhere in dispute with the right to freedom of religion. The Commission further highlighted that the religious values of some communities are being suppressed. Minority groups are becoming victims of violence and hostile conditions have been created for human right activists who are protesting against such violence. It was claimed in the report that the Citizenship Amendment Act would put Muslims into the condition of statelessness, expulsion and detention. It was asserted that this act of conferring citizenship would result in atrocities against particular religious communities.[43]

The report states that though there is a provision of freedom of religion in the Constitution but the limits created by approximately one-third of the total states of India on conversion is a challenge for the exercise of this freedom. The reason highlighted in the findings for anti-conversion norms is for safeguarding the majority religion from the apprehended threat that could be created by the minority groups. It is described that the reasons given for the enforcement of anti-conversion rules are unclear and ambiguous. Further issue explained in the same report is that these laws become the ground for charging the religious minority groups under false allegations, harassing them, launching violence against these groups. [44]

This report claimed that the government, some non-state activists utilized social media platforms and other such channels for creating a hostile environment, spreading hatred, circulating fabricated information against religious minorities communities and other such groups which includes Muslims, Christians and Dalits. It also highlighted that distorted information that was being disseminated at the time of protests against the Citizenship Amendment Act and COVID Pandemic was aimed at religious minorities and affected mainly women in the country. It was stated that the discrimination increased against the Dalit communities which are victims of religion-based oppression for a long time.[45]

It was claimed in the report that more than 120 cases of violence erupted in the country. The reason cited was that false information and misrepresentative images were spread through social media which displayed that religious minorities were engaged in cow slaughter activities. The restrictions imposed in Jammu and Kashmir which is a Muslim majority state challenges religious freedom in the country as asserted in the report. A negative effect occurred on the commemoration of religious holidays and participating in religious prayers. The internet shutdown in the state for approximately 18 months and other limitations imposed on communication channels have disrupted the implementation of freedom of religion in the country. [46]

The report contends that the operations of Human Rights and Religious Organizations, NGOs and other activists who were protesting against the infringement on the rights of religion were restricted. It was stated that media, advocates and people belonging to religious minorities who were fighting for their rights were detained under the Unlawful Activities Prevention Act. Limitations were imposed on various religious organizations because of amendment in Foreign Contribution Regulation Act.  Various NGOs, Human Rights and religious organizations were closed due to the amendments made in the act.[47]

Conclusion

Politics based on religion and communal groups undermines the principle of secularism. Corruption, unemployment and poverty further affect achieving the objective of a secular State as defined in the Constitution. The feeling of religious superiority results in communal violence and disrupts the public order in the nation. The religious sentiments and values are misused by some politicians for their own benefits. Such political motives and actions give rise to the feeling of hostility between the religious sects and sometimes lead to riots which result in mishaps. [48]

The element of corruption in the political framework in which the loyalty of political leaders towards their own religion is showing the outcome of disharmony among the communities in such a diverse Indian society. Secularism holds great significance for pluralist countries like India. If the principle which does not have secular values are followed in the country, then the nation will need to face the issue of division based on ethnic identities, caste, religion, race, linguistic criteria, etc. Secularism will assure integration of the country and will seek to secure harmony, advancement, prosperity and order. Therefore, the constitutional provision of a secular state will aid in ensuring the growth and development of the nation.[49]


[1] T. N. Madan, “Freedom of Religion” 38 Economic and Political Weekly 1034–1041 (2003).

[2] The Universal Declaration of Human Rights, 1948, art. 2.

[3] Id., art. 18.

[4] Supra note 1.

[5] The Constitution of India, art. 15.

[6] Id., art. 16.

[7] Id., art. 17.

[8] Id., art. 25.

[9] Id., art. 26.

[10] Supra note 5, art. 27.

[11] Id., art. 28.

[12] Id., art. 29.

[13] Id., art. 30.

[14] Supra note 1.

[15] Supra note 5, 42nd Amendment, 1976.

[16] Sanghamitra Padhy, “Secularism and Justice: A Review of Indian Supreme Court Judgments” 39 Economic and Political Weekly 5027–5032 (2004).

[17] S P Mittal vs Union of India, AIR 1983 SC 1.

[18] Supra note 16.

[19] Ibid.

[20] Ibid.

[21] Shabbeer Ahmed and Shabeer Ahmed, “UNIFORM CIVIL CODE (ARTICLE 44 OF THE CONSTITUTION) A DEAD LETTER” 67 The Indian Journal of Political Science 545–552 (2006).

[22] Supra note 21.

[23] Ibid.

[24] Ibid.

[25] Ibid.

[26] Faizan Mustafa, “Explained: After CJI’s remarks on Uniform Civil Code, a look at its status, debate around it”, The Indian Express, April 3, 2021, available at https://indianexpress.com/article/explained/explained-after-cji-bobdes-remarks-on-uniform-civil-code-a-look-at-its-status-debate-around-it-7249410/ (last visited on June 20, 2021).

[27] Supra note 21.

[28] Abhishek Choudhary and Rajashree Kanungo, “A Study on the Constitutionality of the Citizenship Amendment Act, 2019”, Manupatra, available at https://docs.manupatra.in/newsline/articles/Upload/fbc144c2-b034-4af4-9b9e-4f27b3352e1b.pdf last visited on June 20, 2021).

[29] Supra note 5, art. 14.

[30] Supra note 28.

[31] Supra note 28.

[32] Ibid.

[33] Amit Raj Agrawal, “CONSTITUTIONAL SENTIMENTS AND JUDICIARY – A STUDY ON FREEDOM OF RELIGION IN INDIA WITH SPECIAL REFERENCE TO TRIPLE TALAQ (TALAQ-E-BIDDAT) RULING” ILI Law Review 71-86 (2018).

[34] Ibid.

[35] Supra note 34.

[36] Shayara Bano v. Union of India and Ors., (2017)9 SCC 1.

[37] Krishnadas Rajagopal, “People are free to choose religion: Supreme Court” The Hindu, April 09, 2021, available at https://www.thehindu.com/news/national/people-are-free-to-choose-religion-supreme-court/article34278898.ece (last visited on June 20, 2021).

[38] “Persons above 18 years free to choose their religion: Supreme Court”, The New Indian Express, April 10, 2021, available at https://www.newindianexpress.com/nation/2021/apr/10/persons-above-18-years-free-to-choose-their-religion-supreme-court-2288198.html (last visited on June 20, 2021).

[39] Supra note 38.

[40] Ibid.

[41] Utkarsh Anand, “Adults free to choose their faith, says Supreme Court”, Hindustan Times, April 10, 2021, available at https://www.hindustantimes.com/india-news/harmful-petition-adults-free-to-choose-their-faith-says-sc-101617995056427.html (last visited on June 20, 2021).

[42] Supra note 38.

[43] United States Commission on International Religious Freedom, “Annual Report 2021”, (2021).

[44] Ibid.

[45] Ibid.

[46] Supra note 44.

[47] Ibid.

[48] Ranbir Singh, and Karamvir Singh, “SECULARISM IN INDIA: CHALLENGES AND ITS FUTURE” 69 The Indian Journal of Political Science 597–607 (2008).

[49] Ibid.

Author: Anisha Tak, Rajiv Gandhi National University of Law, Punjab

Editor: Kanishka VaishSenior Editor, LexLife India.

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