Freedom of Religion in India

The first decade of the 21st century, with both greatness and technological advancement, is best known as the renaissance of political religions around the world. The separation of religion from the modern political structure has become impossible in India and around the world. Historically, there is no word responsible for causing more disturbance in society than “religion”. Passion ignores logic and emotions surpasses reason. The theme song of the essay If it is a religion and a matter of conscience, the complexity and specificity of the situation gives the dynamics of the matter.

Korea is a country where politics is closely linked with religion. According to the people, in 1857, which was the first war of independence, was fought for purely religious reasons.[1] We cannot forget the birth of two independent countries 62 years ago under this religious policy. Since our constitutional ancestors were fully aware of the dangers of the religious arsenal in politics, they provided enough guarantees to ensure that people’s lives progressed to worldly buildings.

Although our constitution is based on secularism, nowhere in the original constitution is the word ‘secularism’ mentioned. The Indian political circuit has recently undergone its dirtiest form of political quagmire. Two of the five states of the Union of India[2] have enacted laws governing the conversion in seven years, as have the existing laws of three, and the wait can feel blatantly unsettling. It should be noted that Bange Jung Bop is not a new phenomenon, it was further refined and negatively announced after a series of new state laws came into effect, but it was very popular before the independence.

Religious conversion has long been controversial, but religion is gaining more and more importance in the modern context, which in general is becoming more and more inherent in people’s lives and in the policy-making processes of the state. Before analyzing the unconstitutionality of the various Bangejeongbop, known as “Religious Freedom”, let us examine the extent and scope of religious freedom.[3]

What is secularism?

Secularism means developing, understanding and respecting other religions. The word “secularism” seems to have come from Europe in the late Middle Ages. During a debate by the Constituent Assembly in 1948, KT Shah demanded that the preamble to the Constitution include the word “world.” But the MPs accepted the secular character of the Constitution, which was not included in the virtues. Then, in 1976, the government of Indira Gandhi enacted the 42nd Amendment, and the word “secular” was added to the preamble.[4] The 42nd Amendment, known as the “Minor Constitution”, is the most comprehensive amendment to the Constitution.

In the controversial Ayodhya case, the Supreme Court ruled that the Constitution affirmed the equal right of all beliefs. Through tolerance and coexistence, we can foster the secular efforts of our country and its people.

S. R. Bombai v. Indian Union, AIR 1994 SC 1918

In this case, nine judges ruled that secularism was a fundamental feature of the Indian Constitution. We also note that religion and politics do not mix well. If the country complies with unregulated policies and policies, it is to act contrary to constitutional mandates. In the state, everything is the same and treated equally.[5] Religion is not a national issue. Freedom of religion as a fundamental right is guaranteed to everyone in India, but religion, beliefs and beliefs are not nationally important.

Constitutional provisions on religion

Article 25: Freedom of conscience and freedom of profession, practice and propagation of religion. Article 26: Freedom to administer religious affairs.

Article 27: Freedom to pay taxes for the promotion of a particular religion.

Article 28: Freedom to participate in religious education and worship at specific educational institutions.[6]

Freedom of Religion in India (Article 25)

Article 25 of the Constitution guarantees religious freedom to all people in India. It stipulates for all people in India, depending on public order, morality, health and other conditions:

  1. You also have the right to freedom of conscience.
  2. You have the right to freely confess, practice and broadcast your religion.

In addition, this provision does not affect existing legislation and does not prevent the state from enacting legislation relating to:

  1. Restriction or restriction on economic, financial, political or secular activities related to religious activities.
  2. Ensuring social reform and welfare.
  3. Preview ads of Hindu religious organizations for all Hindu classes and sections.

Tilkayat Shri Govindlalji Maharaj V. Rajasthan High Court, the test to determine the question that determines the essential part of a religion is whether it is considered essential by the community following that religion.

Doctrine or faith?

Ali Hassan v. Mansoor Ali of Bombay High Court has ruled that Articles 25 and 26 not only forbid religious doctrines and beliefs, but also forbid acts performed at religious events. Thus, it ensures consciousness, sect, ritual, ritual, etc. It is an essential part of religion.[7] The nature or essential part of religion is determined by the doctrines and customs that the community considers part of the religion and should be contained.

Madras v. Sri Shirur Mutt. Sri Lakshmindra Thirtha Swamiar, President of the Supreme Court of Hindu Religion, has ruled that religion certainly finds its basis in the system of teachings that are considered to be religion by those who claim to be religion, but it is not. It is correct to say that religion is nothing more than a doctrine or belief.

SP Mital v. During Indian rule[8], the court ruled that religion was not necessarily theistic. It manifests in actions as well as opinions, doctrines and beliefs.

What is Religion?

German philosopher Immanuel Kant defined religion as “a religion that recognizes all our duties as divine commands”.[9]

American sociologist Milton Yinger defines religion as “a system of people’s beliefs and practices intended to combat the ultimate problems of human life.”

Narayan v. Andhra Pradesh, AIR 1996 SC 1765

In this case, Judge Hansaria said, “Our constitutional drafters used the word ‘religion’ in the sense the word ‘French’ gives in these two articles (Articles 25 and 26).[10] He explains the difference between religion and Buddhism as follows: “Religion is enriched with forward-looking theology and methodologies, and Buddhism thrives in the realm of direct experience. Religion contributes to a period of cultural change. The beauty of advanced Daruma spirituality Religion inspires someone to build a fragile and mortal home. You can give, that God and the law can help you realize the immortal sanctuary in your heart.

The National anthem case

For countries Bijo Manuel v. Kerala (commonly known as the case of the National anthem) The fact of the matter is that the sect’s three children (Jehovah’s Witnesses) worship only Jehovah (the Creator) and refuse to sing the national anthem “Jana Gana Mana”. According to this, children who sing Jananamana are not allowed to sing the national anthem and go against their religious beliefs. These children quietly defend their country every day but refuse to sing because of their honest beliefs.[11] A commission has been appointed to investigate the matter. In its report, the committee said the children were “law abiding” and showed no contempt. However, under the leadership of Dy, the principal. The academy inspector expelled the student.

Pujari: N. Appointment of non-bramanias as Pujari: N. Aditya v. Travancore Devaswom Board

The question in this case was whether the appointment of the non-Malaysian Brahmin as the “Santikaran” (priest or student) at the Congor Pirineri Kodesiva Temple in Kerala violates the provisions of the Constitution. Courts are held as long as the person is knowledgeable, qualified and trained to conduct the punishment in a manner consistent with the worship of God, and such a person is “Santikaran” regardless of his rank. Is sometimes called. However, it is observed that the temple is not a sect that requires a specific form of worship.

Bhuri v. State of J. & K., AIR 1997 SC 1711

In this case, it is a matter of the constitutional effect of the Jammu and Kashmir Mata Vaishno Devi Temples Act 1988, which abolished the right to do Pooja. The law takes over the management, administration and control of the temple funds and is entrusted to the Shri Matavaishnodebi Temple Council established by law.[12] The Supreme Court confirmed the constitutional validity of the law and confirmed that Pooja’s right is customary and that the state can revoke it through law. The rights in Section 26 are not absolute, but certain restrictions apply.

Acquisition of place of worship by the state- M Ismail Faruqi v. Union of India

In this case, the Supreme Court of the Dominion of India ruled that the mosque is not an integral part of Islam. Muslims can serve catfish (prayer) anywhere outdoors, not just in the mosque.

M Siddiq (D) Thr. Lrsv. The Mahant Suresh Das High Court ruled that states have the sovereignty or power to acquire property. The state also has the right to acquire the chapel of a mosque, a church, a mosque, etc. The acquisition of the chapel itself does not violate Articles 25 and 26. However, if the acquisition of a religiously important site and the essential chapel and destruction of the site would infringe on the rights (of a person belonging to the chapel) searching for these places for religious practice is not permitted.[13]

Shifting of the property connected with religion

In the case of Gramu Abbas and the UP state, there has been a controversy between Shiites and Sunnis and Shiites performing Shia religious ceremonies in a particular neighborhood of Moharadoshippura in Varanasi. To avoid conflicts between these communities and find a lasting solution to the problem, the Supreme Court appointed a seven-member committee, made up of a subcommittee, three Shiites and three Sunnis to be president. The committee recommended moving the Shiite graves to separate places of worship for Shiites and Sunnis. Sunnis oppose this recommendation as a violation of the fundamental right to freedom of religion under Articles 25 and 26. The court denied these claims.

Triple talaq case: Shayara Bano v. Union of India

Talaq-e-biddat is known as Sritaraku. This is a kind of divorce for a Muslim man to divorce his wife by saying that he is Daegu Baekje Kuta Lak. The Supreme Court’s bench of five judges heard the controversial TripleTalaq case.[14] The main question in this case is whether the practice of Talaq-e-biddat (ba talaq) is a matter of the Islamic faith, and whether it is their individual right. . By a 3:2 majority, the court ruled that the use of Talaq-e-biddat was unconstitutional.

The court also ruled that the order banning Muslim men from practicing taraku continues until the law is enacted. As a result, the government enacted the Muslim Women’s Bill (protecting the right to marry) in 2017. Then, in 2018, an ordinance protecting the right to marry was passed.[15] At the end of the 2018 ordinance, the government enacted a new law in 2019, passed a law approved by the president in 2019, and finally enacted the 2019 Muslim Women Law (Protection of the Right to Marriage). Mandatory, July 31, 2019, intended to “declare a tarak to protect the rights of married Muslim women and prohibit Muslim men from divorcing their wives.”[16]

Restrictions of religious freedom

The Supreme Court in Re, Noise Pollution Cases has issued specific guidelines with religious orders to follow to control noise pollution[17]:

  • Firecrackers: Total ban on noisy fireworks from 10 p.m. to 6 a.m.
  • Speakers: Restrict the use of drums, toms, trumpets or audio amplifiers from 10 p.m. to 6 a.m., except in the event of a public emergency.
  • In general: States regulate the seizure and seizure of speakers and other amplifiers or audio equipment that produce noise in excess of regulatory limits.

Freedom to manage religious affairs (art. 26)

Article 26 (According to public order and custom, morality and health) grants all religious denominations or all parts thereof the following rights:

  • Establish and maintain systems for religious and charitable purposes.
  • Manage files related to religion.
  • Ownership and acquisition of goods (furniture and furniture)
  • Manage your assets in accordance with the law.

Religious denomination

The word “religious sect” is not defined in the Constitution. The word “cult” was investigated by the High Court in the Madras case against Shri Lakshmindra Sasa Swamial, a donor of the Hindu religion. The meaning of the word “sect” in this case is taken from the Oxford Dictionary “individuals, denominations or religious groups of common beliefs and organizations designated by a single name, united by the same one name”.[18]

Bramchari Sidheshwar Bhai v. State of West Bengal

In this case, Mission Ram Krishna wants to declare himself a non-Hindu minority. There, members are treated like Hindus when it comes to marriage and inheritance, but are to be recognized as non-Hindus in their religious sense. This certainly means that they are legally Hindu, but not the same religion as Sikh and Buddhism. At this time, the Supreme Court ruled that the followers of Ram Krishna could not claim to belong to a minority of the Ram Krishna religion. Religion of Ram Krishna is like Hinduism and is separate. Not a religious minority. Therefore, the fundamental rights under Article 30, paragraph 1, cannot be claimed with regard to the establishment and operation of an educational institution by the Ram Krishna mission.[19]

The right to establish and maintain religious and charitable organizations: Azeez Bashav. Union of India

In this case, the Aligarh Islamic University Law of 1920 was partially amended in 1951 and 1965. The petitioner opposed these amendments for the following reasons:

  1. Violates the fundamental right of Article 30 to establish and manage educational institutions.
  2. The rights of a small number of Muslims under Articles 25, 26 and 29 have been violated.

The right to manage one’s affairs on religious matters

Religious matters include religious practices, rituals, rites, rituals, methods and ways of worship which we consider to be an essential and integral part of religion. For example, Acharaj Singh v. The state of Bihar states that if it is the established practice of a religious organization that a bog offers to a god, then that custom is to be considered part of that religion.

Responsible for managing the secular activities of the temple: Bira Kishore Dev v. State of Orisa’s AIR 1964 SC 1501

In this case, it challenged the validity of the Sri Jaghanath Temple Act of 1954 because the law was discriminatory in nature and violated Article 26(d) of the Constitution. The petitioner (Raja de Puri) claimed that the temple was his private property and had the exclusive right to manage and supervise the temple. The law removed the sole control of the temple from the appellant and handed it over to the committee. In dismissing the appeal, the Supreme Court ruled that the applicant’s basic right to religious freedom was not violated and that the law was solely concerned with the secular control of the organization.

The right to manage property belonging to a denomination

Section 26(d) gives religious sects the right to control their property, which is governed by law. Durgah Committee Ajmer v. Syed Hussain Ali, In the Sayed Hussein Ali case, the Supreme Court ruled that if a religious sect loses or loses control of its property, that right falls under article 26. He said he could not rely on it.[20] It cannot therefore be activated.

Restriction of rights

Religious rights under Article 26 are subject to certain restrictions and are neither absolute nor free. A religious activity cannot claim the protection of the State if it is contrary to public order and morals, ethics or health.

Freedom to pay taxes to promote a particular religion (Article 27)

Article 27 of the Constitution prohibits the compulsory payment of taxes to pay for expenses incurred to promote or maintain a religion or religious denomination.

Trustees, Madras and Hindu religious gifts. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt, the Legislative Assembly of Madras enacted the Madras Hindu Religious and Charity Donation Act, 1951,[21] and donations are calculated under this law. The petitioner argues that the donation is considered a tax, not a royalty, and that the Madras share price is not allowed to make such provisions.[22] The Supreme Court considers donations to be taxes, but ruled that they were aimed at the good management of religious groups.

Prohibition of religious education in state aided institutions (Article 28)

Article 28- The following is prohibited:

  • It is fully funded by the state and provides religious education in educational institutions.
  • The above does not apply to state-owned educational institutions, but was established with the donations or trust necessary to provide religious education at such institutions.
  • Those attending public or funded educational institutions are not required to attend religious education or seminars held at that institution or on its premises.

Guru Nanak’s Teachings: DAV College v. State of Punjab, (1971) 2 CSC 368

In this case, Section 4 of the Guru Nanak University (Amritsar) Act 1969 provides for the state to prepare for the study of the life and teachings of Guru Nanak Devji, which violates Article 28. There is a suspicion.[23] The question is whether Grunanak University is fully publicly funded and Article 4 violates Article 28. The court, which rejected him, ruled that Article 4 regulates the scholarly study of the life and teachings of Nanak, who is not considered a religious leader.

Education to develop values ​​based on all religions: Aruna Royv. Union of India (2002) 7 SCC368

In this case, PIL holds that the National Curriculum Framework for General Education, filed by the plaintiff under section 32. Issued by the National Council for Research and Education in Education (NCFSE), violates the provisions of the Constitution.[24] She also argued that she had gone against the secular and that she had not been consulted by the Central Advisory Council and therefore should be kept private. NCFSE provides value development education related to core human values, social justice, nonviolence, self-discipline, compassion and more. Life is based on social values.

Conclusion

India is the most religiously diverse country. As a secular state, it does not have its own religion, and all citizens have the right to choose, practice, disseminate, and change religions. However, these rights are not absolute and are subject to certain restrictions set by the Constitution. A person in the name of religion cannot violate public order or create any form of obstruction or intolerance towards the people of India.


[1] 42nd Constitutional Amendment Act inserted the word „Secularism‟ to the Preamble.

[2] Tamil Nadu with The Tamil Nadu Prohibition of Forcible Conversion of Religion Act, 2002 (repealed by Act no. 10 of 2006), Gujrat with Gujrat Freedom of Religion Act, 2003, Rajasthan with Rajasthan Freedom of Religion Act, 2006, Himachal Pradesh with Himachal Pradesh Freedom of Religion Act, 2006, Chhattisgarh with The Chhattisgarh Dharma Swatantraya Adhiniyam, 1968( Chhattisgarh after the formation of the state in 2000 adopted the Madhya Pradesh Act by virtue of power conferred under section 79 of the M.P. Reorganization Act, 2000. The 1968 Act however is now amended by the Chhattisgarh Dharma Swatantraya (Sanshodhan) Adhiniyam, 2006).

[3] Orissa Freedom of Religion Act, 1967; Madhya Pradesh Dharma Swatantraya Adhiniyam, 1968; Arunachal Pradesh Freedom of Religion Act, 1978

[4] Art. 18 of the Universal Declaration of Human Right (UDHR) declares the freedom of religion in the following terms: “Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practicing, worship and observance.” 5 Art. 25 of the Constitution of India.

[5] Faizan Mustafa and Anurag Sharma, Conversion: Constitutional and Legal Implications 7 (Kanishka Publishers, New Delhi, 2003). 7 Perspective: Cultural Liberty and Freedom of Belief, available at: http://www.onecountry.org/e171/e17102as_ Perspective_Belief.htm (as visited on Nov. 11, 2009 at 11.30 am).

[6] Art. 18 UDHR, art. 18 International Covenant on Cultural and Political Rights (ICCPR), art. 1 of Declaration on Elimination Based on Religion or Belief, European Convention for the Protection of Human Rights, art. 9 of European Convention on Human Rights (ECHR), art. 12 of American Convention on Human Rights, art. 8 of African Charter of Human and Peoples Rights.

[7] Art. 25 of the Constitution of India reads: “Freedom of conscience and free profession, practice and propagation of religion.—(1) 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.

[8] Dhirendra Kumar Srivastava, Religious Freedom in India: A Historical and Constitutional Study 139 (Deep and Deep Publications, New Delhi, 1982).

[9] Ibid.

[10] Ibid.

[11] Mr. Tajamul Hussain, Mr. Loknath Misra, VII CAD 817 & 818

[12] Dr. Irfan Ahmad Khan, Freedom to Change One’s Religion: Freedom of Religion is Meaningless Without Freedom to Change Ones Religion, available at http://www.globalwebpost.com/farooqm/study_res/ islam/apostasy/apostasy_irfankhan.html.

[13] H.M. Seervai, Constitutional Law of India (Universal Law Publishing Co. Pvt. Ltd., New Delhi, 4th ed., 2005).

[14] Bimal Kumar Chatterjee, “Prosletysation and Indian Constitution” in B.K. Chatterjee (ed.), Law is not an Ass and Other Essays 93 (Eastern Law House, New Delhi, 2006).

[15] Dr. Atlanta Filos, The Freedom to Change and Manifest Religion or Belief and Dominant Religion, available at: http://www.forum18.org/PDF/altana_filos.pdf (visited on Nov. 15, 2009 at 10.30 am).

[16] The Hon‟ble Supreme Court expounded the theory of Basic Structure in the historic Kesavanand Case and later on in S.R. Bommai held “Secularism” to be a part of Basic structure of the Constitution.

[17] The first anti conversion law was passed by the Rajgarh State in 1936 which was followed by the Patna Freedom of Religion Act, 1942, Surguza State Apostasy Act, 1945 and the Udaipur State Anti Conversion Act, 1946.

[18] 2 P. Puneeth, Vishnu Konoorayar K. and Furqan Ahmad, A Study of Compatibility of Anti Conversion Laws with Right to Freedom of Religion, conducted by Indian Law Institute, New Delhi.

[19] Now Amended by the Chhatisgarh Dharma Swatantraya (Sanshodhan) Adhiniyam, 2006. 36 Repealed by the Tamil Nadu Prohibition of Forcible Conversion of Religion (Repeal) Act, 2006.

[20] Anti-Conversion Laws: Challenges to Secularism and Fundamental Rights- South Asia Human Rights Documentation Centre, 43(2) EPW 63-73 (2008).

[21] S. 2(a) of Orissa Freedom of Religion Act, 1967, s. 2(b) of Madhya Pradesh Dharma Swatantraya Act, 1968, s. 2(b) of Chhattisgarh Dharma Swatantraya Adhiniyam, 1968 and s. 2(a) of the Himachal Pradesh Freedom of Religion Act, 2006.

[22] Supra note 38 at 64; also see “right to change religion derived from freedom of thought” in this paper.

[23] 5S. 508 of IPC reads: “Act caused by inducing person to believe that he will be rendered an object of the Divine displeasure. Whoever voluntarily causes or attempts to cause any person to do anything which that person is not legally bound to do, or to omit to do anything which he is legally entitled to do, by inducing or attempting to induce that person to believe that he or any person in whom he is interested will become or will be rendered by some act of the offender an object of Divine displeasure if he does not do the thing which it is the object of the offender to cause him to do.

[24] S. 2(b) of Himachal and Orissa Act, s. 2(c) of Madhya Pradesh and Gujarat Act, s. 2(d) of Arunachal and Rajasthan Act


Author: Arbuda Singh from Mody University, Rajasthan.


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