Trending: Call for Papers Volume 4 | Issue 4: International Journal of Advanced Legal Research [ISSN: 2582-7340]

Religious Freedom under the Constitution of India and Recent Controversies

1.    Introduction

Religion is a matter of faith and belief. It is centered on man’s belief in supernatural forces. Sociologist Durkheim defines religion as a “unified system of beliefs and practices relative to sacred things, that is to say, things set apart and forbidden.”The terms ‘religion’ and ‘matters of religion’ are not defined in the constitution.“Our constitution framers employed the word “religion” in these two clauses (Articles 25 and 26) in the sense indicated by the word ‘dharma,’” Justice Hansaria stated in A.S. Narayan v. State of Andhra Pradesh.[i]“Religion is supplemented by visionary methodology and theology, whereas dharma blossoms in the world of direct experience,” he stated further. Dharma increases the beauty of spirituality, while religion contributes to a culture’s changing stages. Dharma helps one recognize the immortal shrine in the heart.” Religion may inspire one to construct a fragile, mortal home for God; religion may inspire one to construct a fragile, mortal home for God; religion may inspire one to construct a fragile, mortal home for God; religion may inspire one to construct a fragile

The Indian constitution recognizes the importance of religion in the lives of Indians, and so guarantees the right to freedom of religion under Articles 25 to 28. The Indian Constitution envisions a secular framework in which everyone has the right and freedom to choose and practise their faith.

As per the preamble of the constitution of India, India is a secular state.The word Secular is derived from the Latin word ‘saeculum’ which means ‘this time’, meaning this world against the eternal ‘other world.’ Secularism entails the growth, comprehension, and respect for various religions.Though the constitution did not contain the word ‘secular’ originally, it was added in 1976 when the Indira Gandhi government enacted the 42nd Amendment.

2.    Secularism in India

Secularism refers to the separation of state and religion. However, in the Indian and Western polities, this term has slightly different connotations. Secularism in the Western model refers to the complete separation of the state and the church. This can be traced back to the French Revolution, which aimed to establish a ‘secular’ government free of influence from the church and clergy. However, in India, the state and religion do not exist in separate compartments. Despite the fact that the state must maintain an equal distance from all religions, the government does have some influence over religious matters, albeit in a restricted way.

The Supreme Court of India ruled in the case of Kesavananda Bharati v. State of Kerala[ii] in 1973 that secularism is a feature of the Constitution’s basic structure. Furthermore, it was ruled that Parliament could not change aspects that make up the basic structure.In 1994, in the case of S.R Bommai v. Union of India[iii], the concept established in the Kesavananda Bharati case was reaffirmed. The Supreme Court has put to rest any doubts about the meaning of the word ‘secularism’ in the Constitution. The Court ruled that a society’s secular nature did not make it an atheist society. Secularism creates a more diverse society. A secular nation’s law accords all religions equal status and does not favour or discriminate against anyone.



3.    Constitutional Protections for Religious Liberty

The constitution of India has the following provisions relating to the rights of religion-

  • Article 25: Freedom of conscience and free profession, practice and propagation of religion.
  • Article 26: Freedom to manage religious affairs.
  • Article 27: Freedom as to payment of taxes for promotion of any particular religion. 
  • Article 28: Freedom as to attendance at religious instruction or religious worship in certain educational institutions

However, these rights are subject to following restrictions-

o   Health, morality, or public order.

o   Social reform.

o   Social welfare.

o   Remaining provisions of part 3 of the Constitution.


4.    The Essential Practices Test and Hijab Ban

This test was formulated by the Supreme Court of India in Shirur Mutt[iv] case. In this case, it was decided that the term ‘religion’ would encompass all ‘integral’ rites and practises of a religion. The SC assumed responsibility for determining what is essential. The religious question, according to the court, will be decided based on what the religious group considered essential or crucial.

In March 2022, the Karnataka High Court in Resham v. State of Karnataka[v] upheld the ban on wearing of Hijab in educational institutions where the prescription of a school uniform did not permit it. The students claimed that wearing the hijab was an integral practise in Islam and so entitled to constitutional protection as part of religious freedom under Article 25. The Bench disagreed, citing texts from the Quran. The High Court relied on the essential practices test, to rule that wearing of hijab is not an integral practice in Islam and thus preventing students from wearing hijab in educational institutions is not violative of their right to freedom of religion. The prescription of school uniform is only a reasonable constraint constitutionally permitted which the kids cannot object to, the three-judge panel wrote. The court rejected the argument in favour of ‘reasonable accommodation,’ which allows a pluralist society to reflect the socioeconomic variety in the classroom without jeopardising students’ feeling of equality.

This decision sparked a debate on the issue of freedom of religion in India and the essential practices test.The ‘essential religious practise’ test was criticised as a futile exercise in and of itself, because the Supreme Court has set an almost unreasonable criterion for determining it. Only if the absence or removal of a practise has the effect of damaging the religion itself is it considered a vital practise. With the exception of a few fundamentals, no religious practise will be able to withstand such scrutiny. A claim for Article 25 protection should be judged against constitutional ideals like as equality, dignity, and privacy, subject to health and public order.

5.    Uniform Civil Code

In recent months, the argument over the introduction of the Uniform Civil Code (UCC) has gained steamafter Uttarakhand’s Chief Minister announced the formation of an expert team to look into the potential of implementing the UCC in the state.[vi]

At present, issues like marriage, divorce, succession, and adoption are governed by various personal religious laws. After UCC is implemented, all citizens will be governed under the same laws. The Supreme Court of India and various high courts have expressed the need to implement UCC in India.[vii]However, the law commission of India, in its report in 2018, has opined that UCC is neither essential nor desirable at this stage.[viii]

People opposing the implementation of the UCC argue that they are entitled to freedom of religion under article 25-28 of the Indian constitution and UCC is violative of these rights. But article 44 of the constitution of India, which is a part of the directive principles of state policy, states that “The State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India.” Thus, the presence of article 44 shows that constitution makers wanted to provide only that level of religious freedom which does not hinders the implementation of UCC. Therefore, UCC is not violative of fundamental right to religion of citizens. Another argument advanced against the UCC is that it is not feasible to bind a culturally diverse population of India under a common law. But one must not forget that the much diverse Hindu population in India is governed under the uniform Hindu laws which proves that diverse population can be administered under the same laws.In modern times, the social values are changing, and inter-caste and inter-religious marriages are getting prevalent. UCC is needed so that the modern generation does not face difficulties because of various personal laws.


6.    Blasphemy laws in India

Individuals’ right to practise, profess, and spread religion is enshrined in the Indian constitution. The same provisions impose appropriate limitations on both the state and the individual, as the exercise of the same rights must not jeopardise the country’s public order, morality, or national security. In 1927, Chapter XV of the Indian penal code was inserted as ‘offences pertaining to religion’ to safeguard the rights of one individual against the rights of another.  The following sections are covered in this chapter:

o   Section 295: It is punishable under this section if someone wilfully damages, destroys, or defiles any religious object regarded sacred by adherents of any religion in India, including objects other than idols and books. He faces a sentence of up to two years in prison or a fine, or both.

o   Section 295A: If a person knowingly insults or seeks to insult religious emotions of any class of Indian citizens through words spoken, writing, signs, or visible representation, he may be penalised under this section. If accused under Section 295A of the Indian Penal Code, a person can be sentenced to three years in prison, a fine, or both.

o   Section 296: A person who knowingly makes a disruption to any legitimate religious gathering and rituals is subject to this section’s penalties, which include a year in prison, a fine, or both.

o   Section 297: It is punishable under this section if a person knowingly trespasses any burial place knowing that his actions may offend the religious emotions of any class of citizens. Even dead people’s religious rights are said to be protected under this law. This clause carries a penalty of up to one year in prison, a fine, or both.

o   Section 298: This is a unique provision in this chapter because whereas all of the offences in this chapter of the Indian penal code are cognizable, bailable, and non-compoundable, the offence under this section is compoundable, non-cognizable, and non-bailable. Under this clause, anyone who knowingly utters any words, produces any sound or signs, visible or audible, as the case may be, to the aggrieved in order to damage the person’s religious emotions may be punished. It’s starting to make sense why it’s a compoundable and non-cognizable offence. It can only be compounded by the individual whose religious feelings have been damaged. Under this clause, an offender can face a year in prison, a fine, or both.


7.    Conclusion

In terms of religion, India is a diverse country.  It does not have its own religion because it is a secular country, and every citizen has the freedom to choose, practise, spread, and even change their faith. These rights, however, are not absolute and are subject to certain limitations imposed by the constitution.There are instances when it is necessary to intervene and implement beneficial reforms for the betterment of society. In the name of religion, no one can do anything that is against public policy or causes any type of unrest or intolerance among the Indian people.

This blog is authored by Rajul Shrivastava, a student of Jamia Millia Islamia

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