INDIAN CONSTITUTION AND FREEDOM OF RELIGION



INDIAN CONSTITUTION AND FREEDOM OF RELIGION 

 For India, the embodiment of plurality, freedom of religion is an unavoidable necessity. Certain groups have often challenged this obligation with specific parochial interests. It is, therefore, important to understand the grounds of freedom of religion in India.  The scope and limitation of freedom of religion in India can in the first place be understood by prudently observing certain salient characteristics of the Indian Constitution and in the second place by analyzing the specific Constitutional provisions such as the preamble of the Constitution, the articles on citizenship, fundamental rights, directive principles and fundamental duties. From the point of freedom of religion there is reasonable justification to consider these constitutional provisions for further discussions.

1.1 Some Salient Characteristics of the Indian Constitution
We begin studying freedom of religion in India with a study of the Indian Constitution because “the Supreme Court has emphasized that the constitution is supreme in India, and that the Parliament derives its authority from the constitution.”[1] The Constitution is variously portrayed. According to N.R. Madhava Menon, “the constitution is differently described as the fundamental law, the socio-political manifesto of a nation, the instrument of governance and the like, each signifying an important dimension of the document. It is a living thing with a body and a soul; the soul can possibly be found in the preamble and the chapters on rights, duties and directive principles of state policy.”[2] Although the significance of the articles on Citizenship is unnoticed, the above portrayal is adequate to determine the validity of the discussions on these parts of the constitution.
Though many characteristics of Indian Constitution can be discerned, the following, although sketchy, are essential to be considered from the perspective of freedom of religion in India. From this point of view, one main characteristic of the Indian Constitution is its comprehensiveness. It is remarked  “the constitution of India, which came into force on 26 January 1950, is amongst the most comprehensive constitutions on the world. It contains 447Articles divided into 26 Parts and 12 Schedules.”[3] This is a profound observation as the Indian Constitution has encompassed maximum sensitive subject matters essential to preserve and protect the plural structure of the Indian society, specially plurality of religious traditions.
The second characteristic of the Indian Constitution is its length. It is one of the longest and a blend of many ideas and principles borrowed from constitutions across the globe.[4] It is not the mere length of the Indian Constitution that is our interest here but its ability to include several ideas and principles, so that it does not allow scarcity of resources for foreseeable conflicts, including religious, in a pluralistic society where the possibility of majoritarian chauvinism is lurking.
The third characteristic of the Indian Constitution is that it is a well-researched one. Durga Das Basu writes “THE very fact that the Constitution of the Indian Republic is the product not of a political revolution but of the research and deliberations of a body of eminent representatives of the people who sought to improve upon the existing system of administration, makes a retrospect of the constitutional development indispensable for a proper understanding of this Constitution.”[5] This is a convincing safeguard in the context of opportunistic attempts to rewrite the constitution to meet the communal interests of some political parties or the shortsighted objectives of certain sections of the Indian society. Such an attempt manipulates and maligns the spirit of the Indian Constitution so that a specific section of the population alone prevails and the others suffer or vanish.
The fourth characteristic of the Indian Constitution is its accommodative nature. It is said, “the beauty of the Indian Constitution lies in its flexibility and its capacity to accommodate diverse interpretations and approaches advanced according to changing times and demands.”[6] In spite of such a broader outlook, one needs to remember that this accommodative and flexible nature of interpretation is inconsonance with the objectives of the Indian Constitution. Any violation of the objectives of the Indian Constitution in the name of flexibility and accommodative nature can bring about alarming consequences to the vulnerable sections of the society, particularly religious minorities.
The fifth and very important characteristic of Indian Constitution is that it uniquely balances unity in diversity. James Massey writes, “the constitution has attempted to bring about a balance between national unity, and cultural and social diversity.”[7]  Again, the same view is emphatically stated as “the Constitution in a real sense provides a balance between India’s national unity and its cultural, religious, and social diversity.”[8] It is crucial to note the point that in India national unity is the only possible unity while in all other aspects plurality is an unavoidable reality. Failing to underline this principle is dangerous to the health and prosperity of the nation. The attempt to forge other forms of unity, including strange nationalisms is loaded with latent unhealthy agendas.
 The sixth crucial characteristic of the Indian Constitution is its perception of the possibility of conflict between religious majorities and minorities. This fact is put in a fascinating way, as “the framers of the Constitution were aware that there would be tensions between majority and minority communities. That the majority community may believe that a separate identity of minorities will endanger national unity. And also that the minority groups may feel threatened and fear that their identity would be lost in the process of assimilation by the majority. Strangely enough during the second half of the twentieth century, such tensions and feats have become more pronounced.”[9]
The Indian constitution is comprehensive, lengthy, well researched, accommodative and flexible, balancing unity and diversity and perceiving majority minority conflict, gives no room to think that the hypersensitive issue of freedom of religion in India is a unimportant concern to escape the attention of the spirit of the Indian Constitution. In other words from the above consideration of the characteristics of the Indian Constitution, it can be claimed that it unambiguously asserts freedom of religion to all the citizens of India. Still further, the Constitution’s phenomenal, profound and far-reaching just and egalitarian vision is uncompromising particularly in the mater of freedom of religion.
The framers of the constitution have taken freedom of religion as an inescapable component of the Indian Constitution. This priority is not accidental but spontaneous with the reality of Indian social life. This had been a main concern of great and wise leaders of India at all times. Fearing the possibilities of the dominant section-numerically, religiously, caste-wise and economically to control and subjugate the week and vulnerable, the framers of the constitution have made numerous safeguards to protect the existence and the interests of various religions under the umbrella of minorities. The following example is a telling one.
Even before India attained independence in 1947, the Constituent Assembly was set up for framing its Constitution. The first meeting of the Constituent Assembly was held from 13 to 19 December 1946. In the 13 December meeting, Pandit Jawaharlal Nehru moved the historic Objective Resolution, which the Assembly discussed day long for five days. For further consideration, the discussion was postponed to 20-2 January 1947. On 22 January the text of the resolution was unanimously adopted by the Constituent Assembly.[10] About the framing of the constitution Clauses five and six read:
“(5) Wherein shall be guaranteed and secured to all thee people of India justice, social, economic and political; equality of status, of opportunity before the law; freedom of thought, expression, belief, faith, worship, vocation, association and action, subject to law and public morality; and
(6) Wherein adequate safeguards shall be provided for minorities, backward and tribal areas, and depressed and other backward classes….”[11]
From the conception of constitution, the untainted vision of the founders of the Indian constitution envisioned Justice to all the citizens, equality of people before law, freedom of thought and religion, and protection to the minorities.
Rather than respecting and implementing the higher ideals of the constitution, often forces with ulterior motives criticize the inclusive plural structure of the constitution and attempt to amend it to match the parochial interests of the numerically and economically dominant groups.
Ensuring freedom of religion to all and particularly to the minorities in a nation is a sign of civilization. Freedom of religion is part and parcel of a free and cultured life in a nation. Obstructing people to follow religion of their own choice is quite primitive in nature. Only some Monarchs or Dictators or Autocrats could expect his or her entire subjects to follow the religion of the ruler’s interest. In this matter the Indian constitution is well ahead of time. It is unfortunate that the freedom of religion enshrined and guaranteed for the minorities in the Indian Constitution are often threatened by communal and fundamental forces generally under the cover of nationalism or patriotism.
Soli J. Sorabjee, a former Attorney General for India carefully analyzed the depth, genuineness and the broader vision of the Indian constitution in the matter of freedom of religion and writes about the importance of preserving it as,

Freedom of religion ultimately enacted in Article 25 of our constitution inter alia provides that subject to public order, morality and health every person has the fundamental right freely to profess, practice and propagate religion…. Our founding fathers were not swayed by narrow-mindedness and prejudices against certain religious minorities. They displayed broad-mindedness and the spirit of tolerance in keeping with our tradition which is most heartening. The crying need of the hour is to preserve that spirit of tolerance in all religious communities which is a must for creating an atmosphere conducive to mutual trust and understanding so essential to the welfare of our multi-religious, multi-cultural nation.[12]

At this juncture it is worth noting the purpose of the Indian constitution and its scope that “the state shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.”[13]
Another vital aspect of the Indian Constitution is that it is influenced by the human rights concerns. Sunita Gangwal writes, “the adoption of the Universal Declaration of Human Rights by U.N.O. at this time (Dec. 10, 1948) made a great impact on the Constituent Assembly also.“[14] This fact is further reiterated, as “the Constitution of India is one of the longest, most sweeping and most rights-based Constitution in the world.  It was heavily influenced by the Universal declaration of Human Rights, which was written shortly before, and also drew on a range of existing rights-based Constitutions. Consequently, it encapsulates and guarantees the fundamental principles of human rights.”[15]
This insight can be very useful in considering freedom of religion as a human right issue because in the universal declaration of human rights too religious discrimination of any sort is discouraged.
Besides the above considerations, the assurance and safeguards for the freedom of religion to all the Indian citizens, particularly to the minorities are vivid and profound especially in the preamble of the Constitution, the articles on citizenship, fundamental rights, directive principles and fundamental duties.

1.2 The Preamble of the Indian Constitution
The foresightedness and the selfless commitment of the framers of the Indian constitution to preserve and respect the plural structure of the Indian society is stark clear in the selection of the preamble for the Indian constitution. It is said  “when India got Independence in 1947 our constitution makers studied various systems and adopted the following preamble for the constitution which is perhaps the best document on human rights in the world.”[16]  It is unique that the Indian constitution has absorbed so many aspects from the international declaration of human rights. It is more significant that it has included human rights elements even in the preamble. It makes it convenient to perceive particularly the issue of freedom of religion as a human rights concern.  The preamble of the Indian Constitution reads as follow:
WE THE PEOPLE OF INDIA, having solemnly resolved to constitute India into a SOVEREIGN SOCIALIST SECULAR DEMOCRATIC REPUBLIC and to secure to all its citizens:
JUSTICE, social, economic and political;
LIBERTY of thought, expression, belief faith and worship;
EQUALITY of status and of opportunity; and to promote among them all;
FRATERNITY assuring the dignity of the individual and the unity and integrity of the nation:
IN OUR CONSTITUENT ASSEMBLY this twenty-sixth day of November, 1949, do HEREBY ADOPT, ENACT AND GIVE TO OURSELVES THIS CONSTITUTION.[17]
The preamble is so crucial to the constitution as it guides the rest of the constitution. It also presents the basic structure and aspiration of the constitution in nutshell. It is positively observed, “the Preamble outlines the basic structure of the Constitution and sets out the aims and aspirations of the people that have been translated into various provisions of the Constitution.”[18]
Another important positive significant of the role of the preamble is its function in directing the interpretations of the constitution in tune with the real spirit of the constitution. This aspect has been remarked, as “the preamble serves as a reference for interpretation of an ambiguous law or statute. If the terms used in the constitution are ambiguous, then some assistance can be taken from the objectives enshrined in the constitution and the construction that fits the Preamble should be given preference.”[19] In short, the preamble is the key to the interpretation of the constitution. Therefore, it is clear that the preamble is vital in claiming any rights, particularly the right to choose the religion of one’s own choice.
 Negatively, the preamble cannot be implemented through a court of law. Yet, its responsibility in interpretation of the constitution and achieving the objectives of the constitution is so uncompromising. According to Durga Das Basu “though, by itself, it is not enforceable in a Court of law, the Preamble to a written Constitution states the objects which the Constitution seeks to establish and promote and also aids the legal interpretation of the Constitution where the language is found to be ambiguous.”[20]
The seeming limitation of being unable to impose the preamble through a court of law is compensated by the inclusion of fundamental rights in part III of the Indian constitution. The fundamental rights help achieving the substance and objective of the preamble. This fact is emphatically affirmed, as “the Fundamental Rights which are enforceable in court are a guarantee in the furtherance of the above Preamble”[21]
The preamble of the constitution is so crucial that its spirit cannot be lost in any count is again established by the inclusion of directive principles to the states in addition to the fundamental rights. The sole objective of it is the dignity of each individual in all walks of life including religious. According to Durga Das Basu “seeing that these justiciable rights may not be enough to maintain the dignity of an individual if he is not free from wants and misery, a number of Directives have been included in Part IV of the Constitution, exhorting the State so to shape its social and economics policies… ”[22]
For the question of freedom of religion to all the citizens and specifically to the minorities the inclusion of the word ‘secular’ in the preamble of the constitution is crucially important.  In this regard “the secular objective of the State has been specifically expressed by inserting the word ‘secular’ in the Preamble by the Constitution (42nd Amendment) Act, 1976. Secularism is a part of the basic structure of the Constitution.”[23] It is further stated, “there is no provision in the Constitution making any religion the established ‘Church’ as some other Constitutions do. On the other hand, the liberty of ‘belief, faith and worship’ promised in the Preamble is implemented by incorporating the fundamental rights of all citizens to ‘freedom of religion’ in Arts. 25-29,…”[24]
An extensive discussion on the aspects of secular state shall be pursued in the next chapter to explicate the concern further. Had the wisdom of the framers of the constitution failed to perceive the crude claim of the fundamentalists and communalists that the religion of the majority should take the center stage of all the state affairs and India always had only one religion, there would have been much more damage than ever to the unique composition of the plural structure of the Indian society.
In spite of the crystal clear existential reality of many religions, cultures and languages the fundamental and communal forces assert that India always had one culture, one religion, one race and one language. From the point of this research the so-called numerically majority religious, communal and fundamental forces are bent on evading the unique plural and multifaceted composition of India and the fact that India is the home for many religions. Having determined to undermine the existence of religious pluralism only to meet their political ends, claims are made such as “let the Constitution be re-examined and re-drafted, so as to establish this Unitary form of Government and thus effectively disprove the mischievous propaganda indulged in by the British and so unwittingly imbibed by the present leaders, about our being just a juxtaposition of so many distinct ‘ethnic groups’ or ‘nationalities’ happening to live side by side and grouped together by the accident of geographical contiguity and one uniform supreme foreign domination.”[25]
Despite all these counterproductive abusive proposals the citizens of India particularly religious minorities can be sure that the so-called four pillars of the Constitution - Justice, liberty, equality and fraternity are implicit in every part of the constitution. It is the duty of all the citizens to work for the preservation and application of those values in everyday life.

1.3 The Article on Citizenship
Article five of the India Constitution is about the eligibility of citizenship in the Indian territory. It says: “At the commencement of this Constitution, every person who has his domicile in the territory of India and-
(a) who was born in the territory of India; or
(b) either of whose parents was born in the territory of India; or
(c) who has been ordinarily resident in the territory of India for not less than five shall be a citizen of India.”[26]
The constitution does not provide for class or grade of citizenship in India. Unfortunately a group of communal and fundamental forces are devising plans to divide the people on the basis of religious affiliations of the citizens. They suggest if a person is not part of the majority religion he or she may be considered as secondary citizen. Such declarations result out of ignorance of the rudimentary fact that all are Indians first and then have chosen religion of their choice and convenience. They are also not aware of the elementary fact that “the basis of citizenship in our country is not religion but residence in the territory known as India.”[27] It is a kind of desperate attempt to divide people and gain political or sentimental mileage through fabricated stories.
Such opportunists also need to remember that the state shall not deny to any person equality before the law or the equal protection of the laws within the territory of India. All credits to the founding fathers of the Indian constitution that they have taken the best possible efforts to see that the fundamental principles enshrined in the preamble of the constitution is carried throughout.

1.4 Fundamental Rights

The forgone observations on the characteristics of Indian Constitution, the preamble of the Constitution and the article on citizenship satisfactorily affirm the essential constitutional warrants for the freedom of religion in India. Although the preamble is the embodiment of the spirit of the constitution, it cannot be established in a court of law. This, although not, seeming loophole is systematically and substantially blocked by the inclusion of the fundamental rights in part III of the Indian constitution. The fundamental rights are so essential to understand the freedom of religion in India because it guarantees freedom of religion and it is the custodian of the spirit and objectives of the preamble.
From the point of freedom of religion the fundamental rights guaranteed in the constitution of India is important. The fundamental rights authentically and firmly enable people to ask for and stand by their rights, particularly freedom of religion. Firstly, unlike the preamble of the Indian constitution,  “…the Fundamental Rights in Part III, are so enforceable (in the court)[28] at the instance of any person whose fundamental right has been infringed by any action of the State, -executive or legislative-and the remedies for enforcing these rights, namely, the writs of habeas corpus, mandamus, prohibition, quo warranto and certiorari, are also guaranteed by the Constitution. Any law or executive order which offends against a fundamental right is liable to be declared void by the Supreme Court or the High Court.”[29]
This salient aspect has been further emphasized as, the “Fundamental rights contained in Part III of the Indian constitution are enforceable or justiciable rights. This implies, firstly, that on violation of fundamental rights, a citizen can file a petition in the Supreme Court seeking relief.”[30] This feature has not escaped the attention of experts. C.P. Barthwal makes further reference, ‘that Arts. 32 and 226 make provision for the enforcement of fundamental rights’.[31] It goes without saying that denial of religious freedom to any citizen is the breech of constitutional provision.
Secondly, the constitution has given power to the courts to protect the fundamental rights, including freedom of religion, of the individuals. It is stated “Article 32 protects a citizen’s fundamental rights by giving the courts the power to issue writs. This corrective power is itself a fundamental right.”[32]
Thirdly, “the sanctity of fundamental rights can be gauged from Article 13 of the constitution, which mandates the State to ensure that no ‘law’ including orders, rule, regulations, notifications, ordinances, customs or usages is in violation of any fundamental right.”[33] This is very important from the point of states that makes discriminative laws like ‘anti conversion bills’. It is expected that the states take utmost care to protect every right of the individual. Regrettably, for political or other reasons when communally charged political parties come to power, they willfully undermine the freedom of the minorities, particularly religious minorities.
Fourthly, “in the event that a law contravenes any fundamental right, it can be declared invalid by the Courts.”[34] This privilege is the symbol of civility and respect for all the citizens. How far it is attempted is to be answered.
Fifthly, Fundamental rights are helpful in achieving the ideals of the preamble in the constitution. Manoj Dixit and Trigun Bisen observe ‘the Fundamental Rights which are enforceable in court are a guarantee in the furtherance of the Preamble’.[35]
Sixthly, in view of maintaining the dignity of each individual the Preamble, says that the State, in India, will assure the dignity of the individual. In the words of Durga Das Basu, “the Constitution seeks to achieve this object by guaranteeing equal fundamental rights to each individual, so that he can enforce his minimal rights, if invaded by anybody, in a court of law.”[36] The purpose of the Indian constitution and its scope is very clear that the state shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.[37]
James Massey comments, very specifically from the point of freedom of religion in India that “three basic principles are at work in the fundamental Rights enshrined in the Indian Constitution, and these are: (a) secularism, (b) equal status of all religions, and (c) neutrality of the State towards all religions. The spirit of these principles is well captured in the Fundamental Rights contained in Articles 12-51 of the Constitution, which are available to all Indians.”[38]
As it is pointed out in the preamble of the constitution, it provides for justice, liberty, equality and fraternity. These ideals are overflowing in the fundamental rights particularly from the point of freedom of religion mainly to the religious minorities in India. These can be further understood from analyzing some of the articles under fundamental rights (part three of the constitution).
Article fifteen Prohibits discriminations on grounds of religion, race, caste, sex or place of birth. It reads as follow:
“(1) The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them.
(2) No citizen shall, on grounds only of religion, race, caste, sex, place of birth or any of them, be subject to any disability, liability, restriction, or condition with regard to-
            (a) access to shops, public restaurants, hotels and places of public entertainment; or
            (b) the use of wells, tanks, bathing ghats, roads and place of public resort maintain wholly or partly out of State funds or dedicated to the use of general public.
(3) Nothing in this article shall prevent the State from making any special provision for women and children. [(4) Nothing in this article or in clause (2) of article 29 shall prevent the state from making any special provision for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes]”[39]
Despite the fact that many forms of discrimination are possible in India, from the point of freedom of religion it is significant to remember that the constitution has made special efforts to emphasize the potential religious discrimination and suggested constitutional remedies to overcome such discriminations. Further it is worth noting that the interests of the nation or state precede all the other interests including religious freedom. Thus no one can claim that freedom of religion challenges the sovereignty of the nation or state. It is the shrewd wisdom of the framers of the constitution that in the course of time religion shall become a source of discrimination. This perception is overcome by including the word religion in the list of discriminations.
Those who prefer religious discrimination use the weapon of reservation for the minorities to say that reservation divides the people. The fact is that such reservations are meant only to see that the minorities also stand on par with the others. Moreover, the purpose of the reservation is that once the minorities also reach such heights it can be abolished.
Article sixteen provides for equality of opportunity in matters of public employment. It reads:
“(1) There shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State.
(2) No citizen shall, on grounds only of religion, race, caste, sex, descent, place of birth, residence or any of them, be ineligible for, or discriminated against in respect of any employment or office under the state.
(3) Nothing in this article shall prevent Parliament from making any law prescribing, in regard to a class or classes of employment or appointment to any office [under the Government of, or any local or other authority within, a State or union territory, any requirement as to residence within that State or Union territory] prior to such employment or appointment.
(4) Nothing in this article shall prevent the State from making any provision for the reservation of appointments or posts in favour of any backward class of citizens, which in the opinion of the State, is not adequately represented in the services under the State.
[(4A) Nothing in this article shall prevent the state from making any provision for reservation in matters of promotion of any class or classes of posts in the services under the State in favour of Scheduled castes and the Scheduled Tribes which, in the opinion of the State are not adequately represented in the services under the state.]
(5) Nothing in this article shall affect the operation of any law which provides that the incumbent of an office in connection with the affairs of any religious or denominational institution or any member of the governing body thereof shall be a person professing a particular religion or belonging to a particular denomination.”[40]
            Equality of opportunity in employments is for all the citizens. Some of the fundamental and communally oriented political groups and others with      similar interests even insist upon giving priority in employment to the numerically powerful. Two things are note worthy in this article; that is the possibility of discrimination on religious ground is supposed and there is also the proposal for enhancing the status of backward classes. The privileges of the state still stand tall.
Article nineteen protects several individual rights. Among them the right to  “freedom of speech and expression”[41] is essential from the point of freedom of religion. It allows one to publicly profess, practice and propagate one’s religion or faith conviction.
Article twenty-one is significant in the wake of state sponsored or organized and politically motivated communal violence in which thousands of minorities lose their life and liberty. This article protects the life and personal liberty of all the citizens. It reads, “No person shall be deprived of his life or personal liberty except according to procedure established by law.”[42]
Articles 25-28 are about right to freedom of religion. Among them article twenty-five is the crux of religious freedom. It is titled and read as follows:
“25. 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.
(2) Nothing in this article shall affect the operation of any existing law or prevent the State from making any law-
(a) regulating or restricting any economic, financial, political or other secular activity which may be associated with religious practice;
(b) providing for social welfare and reform or the throwing open of Hindu religious institutions of a public character to all classes and sections of
Hindus.”[43]
            This article is quite comprehensive and adequate to establish one’s freedom of religion in India. It also encompasses the basic and fundamental rights required for any religion whether majority or minority in India. It is not just bestowing uncontrolled rights and privileges on religious bodies, rather allows the state to have adequate freedom to control religious affairs when they become irreligious and affect the freedom of others and challenge the sovereignty of India.
It was already pointed out that freedom of religion enacted in Article twenty five of our constitution provides that subject to public order, morality and health every person has the fundamental right freely to profess, practice and propagate religion. The issues involved in this article about the insertion of the word propagate shall be discussed further in the next chapter. 
            Article twenty-six is about freedom to manage religious affairs. It reads:  “Subject to public order, morality and health, every religious denomination or any section thereof shall have the right –
(a) to establish and maintain institutions for religious and charitable purposes;
(b) to manage its own affairs in matters of religion;
(c) to own and acquire movable and immovable property; and
(d) to administer such  property in accordance with law.”[44]
            Here it needs to be mentioned that there is a haste to label the minority run institutions as promoting fundamentalism and all the good works of such organizations are interpreted as concealed efforts to convert people from one religion to another. Failing to notice and emphasize the humanitarian and developmental contributions of these structures is partisan in nature. At the same time it is also regrettable if any such places are misused for anti social and antinational and anti people activities.
Article twenty-seven is about freedom as to payment of taxes for promotion of any particular religion. According to it “No person shall be compelled to pay any taxes, the proceeds of which are specifically appropriated in payment of expenses for the promotion or maintenance of any particular religion or religious denomination.”[45] The Constitution is clear that the public funds shall not be used for the promotion of any specific religion. It is different from imbibing religious values in the form of moral education.
Article twenty-eight is about freedom as to attend at religious instruction or religious worship in certain educational institutions. It reads:
“(1) No religious instruction shall be provided in any educational institution wholly maintained out of State funds.
(2) Nothing in clause (1) shall apply to an educational institution which is administered by the State but has been established under any endowment or trust which requires that religious instruction shall be imparted in such institution.
(3) No person attending any educational institution recognized by the
State or receiving aid out of State funds shall be required to take part in any religious instruction that may be imparted in such institution or to attend any religious worship that may be conducted in such institution or in any premises attaché thereto unless such person or, if such person is a minor, his guardian has given his consent thereto.”[46]
            The constitution guarantees freedom to profess, practice and propagate one’s own religion. It also gives freedom to manage religious affairs. It protects people from paying religious taxes. And also there is freedom to impart religious instruction in institutions, which are not receiving government aid. The religious educations given in schools are with the notion that religious knowledge is the highest form of knowledge. Impartial and unpartisan spirituality is essential for the benevolence of a nation. The caution is against pushing through unproductive myths and heroisms in the place of science and development. Hence the argument of some that religious education is used to convert people from one religion to another is unfounded.
Besides the above provisions the constitution protects the cultural and educational rights of the religious minorities. This is important because culture and education are intertwined with religions or religious affiliations. Articles 29-31 protect cultural and educational rights.
Article twenty-nine specifically protects the preservation of culture, language and educational rights of all sections of the people in India in the state owned institutions.  According to it,
“(1) Any section of the citizens residing in the territory of India or any part thereof having a distinct language, script or culture of its own shall have the right to conserve the same.
(2) No citizen shall be denied admission into any educational institution maintained by the State or receiving aid out of State funds on grounds only of religion, race, caste, language or any of them.”[47]

Article thirty is about the right of minorities to establish and administer educational institutions. It reads:

“(1) All minorities, whether based on religion or language, shall have the right to establish and administer educational institutions of their choice.
(1A) In making any law providing for the compulsory acquisition of any property of an educational institution established and administered by a minority, referred to in clause (1), the State shall ensure that the amount fixed by or determined under such law for the acquisition of such property is such as would not restrict or abrogate the right guaranteed under that clause.
(2) The State shall not, in granting aid to educational institutions, discriminate against any educational institution on the ground that it is under the management of a minority, whether based on religion or language.”[48]
            People who are intolerant to the special privileges conferred to the minorities so as to make them competent in all realms of life, make adverse comments as “in India the Bill of Rights for minorities under Art 30 make(sic) mockery of equality of law and equal protection of law and of secularism itself.”[49] Their claim is if every one is equal before law and if India follows true secularism, why special privileges to the minorities, especially religious. It needs to be underlined that these types of unsympathetic remarks are not the result of commitment to constitution and secularism but willful attempt to forcefully implement a particular religious law and to put into practice an intolerant Hindu religious secularism.
            The following observation helps understanding the real implications of the above special provision: “by now it is evident that the Fundamental Rights enshrined in the Constitution are meant for all Indian citizens and that these are not special rights for the minority communities. But only certain special safeguards have been made available to them, so that they may enjoy full equality before the law and share in equal measure the resources of development and growth along with the majority community (Arts.29 and 30).”[50] This comment is very significant from the point of minority communalism. Often minorities are tempted to ask for more rights and privileges but disinclined to respect the right and privileges of others. In other words, minorities are sometime insensitive to the sentiments of others.
The three remarkable features in this section of the constitution are rights for the minorities to establish their own religious institutions, government should not arbitrarily encroach or disturb such institutions and government should not be partial in granting aids to such educational institutions. In this connection it is worth remembering that the “Civic rights in our country are not dependent upon the nature of the belief that one holds.”[51] They are common to all the citizens of this nation.


1.4.1 Fundamental Rights and Human Rights          
In addition to the general characters of the Indian constitution, preamble and articles on citizenship, the fundamental rights guaranteed under section III of the Indian Constitution is very important from the point of freedom of religion, preservation of languages, cultures and maintenance of minority institutions. It is amazing that this section of the constitution is considered as the best documents on human rights in India. The interconnectedness between human rights and fundamental rights are obvious and helpful in dealing with the issue of freedom of religion in India. At this point only, a mere connection between human rights and freedom of religions will be established. An extensive discussion on human rights shall be made in a latter chapter where the connection between freedom of religion and human rights shall be discussed comprehensively.
Analyzing some of the definitions of human rights help better understand the concept or the interconnectedness or interchangeable use of human rights and fundamental rights. This also helps find connection between freedom of religion and human rights. According to M.B. Dube, “Human rights are the rights and freedoms possessed by human beings.  These rights are often called as Fundamental rights. In earlier centuries, European thinkers commonly referred to them as Natural Rights or the Rights of Man.”[52]  In the words of B.S. Bisht, “the Human Rights, a subject of animated discussion at regional and global level today are often called Fundamental Rights or Natural Rights or the Rights of Man.”[53] Again, M.B. Dube writes, “Human rights describe the minimum entitlement that governments must protect and secure and that governments must themselves respect. These rights are often called fundamental and universal.”[54]
There are clinching evidences to connect freedom of religion with human rights. In other words, the issue of freedom of religion is closely connected with human rights.  This is evident from the fact that after the declaration of UN human rights in 1948, again on November 25,1981, the UN proclaimed a specific declaration on the elimination of all forms of intolerance and discrimination based on religion and belief.
Having realized the gravity and complexity of religious discrimination and in view of curbing it the UN on December 18, 1992, adopted a declaration for the promotion of safeguarding the identity for cultural, ethnic and linguistic and religious minorities. The connection between human rights and fundamental rights is well found in part three of Indian constitution.
The constitution of India is unique in that it encompasses human rights, fundamental rights and freedom of religion under part three. Neeta Bora points to the distinctiveness of part three of Indian constitution and its implications in the light of human rights as,  “India’s status of human rights is fairly high under the Constitution of India, wherein Part Third mentions and protects the fundamental rights and empowers the Supreme Court and the High Courts under article 32 and 226, respectively, to enforce these rights and command the state authority to respect people’s rights.”[55] If we respect fundamental rights we regard human rights as well. The implication in relation to the discussion is that if fundamental rights are respected freedom of religion will not suffer in India.

 1.5 Directive Principles

The purpose of the directive principles of the Indian constitution in nutshell is stated as “Directive Principles, contained in Part IV of the constitution, are guidelines to the State, aimed for the welfare of citizens based on justice in social, political, and economic life.”[56]
A fraternity cannot be installed unless the dignity of each of its members is maintained. The objective of the constitution, including freedom of religion to all the citizens is continually maintained in the constitution starting from the preamble.  Seeing the possibility of denial of justice to the poor and needy in spite of the guarantees in the fundamental rights, a number of Directives have been included in Part IV of the Constitution, exhorting the State so to shape its social and economics policies.[57]
The Directive Principles in part IV of the Indian constitution cannot be enforced in a court of law but they are considered as fundamental in the governance of the country. They serve as moral restraints upon future governments and prevent the policy from being torn away from the idea, which inspired the makers of the organic law.[58]
            From the point of freedom of religion the directive principles are very essential because thy guide the state policies. Further they are guidance to the preservation of individual dignity and freedom as envisaged in the other parts of the constitution. The main implication of the directive principle is justice to all. It provides that state shall strive to promote the welfare of the people by securing and protecting a social order in which justice, i.e., social, economic and political shall inform all the institutions of the national life.[59]
According to Part IV article thirty-seven, it shall be the duty of the State to apply these directive principles in making laws.[60] Without this provision there is the possibility of states downplaying the interests and privileges of the numerically powerless and underrepresented groups.
            The directive principles aim at welfare to all citizens. It supplements fundamental rights in achieving welfare state.[61] In my view it emphasizes equality of all. Further, social, economic and political justice is the motto of the directive principle. As religion is intertwined in the social life, economic activities and now mainly in political affairs socio, economic and political justice will not be complete without adequate freedom of religion. And also it is a paramount duty of the custodians of the constitution to see that people are not invaded in an era of communal politics. Hence, the directive principles are also very essential from the point of freedom of religion.
It is inopportune that a few states in India have passed ‘Freedom of religion Bills’ to curtail the freedom of religious mobility. This is not in keeping with the interests of Justice as envisaged in the constitution in general and in the preamble in particular.

1.6 Fundamental Duties

It is astounding that Indian constitution gives all citizens not only several rights and privileges but also certain fundamental duties. Fundamental duties are significant from the point of freedom of religion as the main thrust falls on the preservation and strengthening of harmonious living in India.
 Fundamental Duties are contained in Part IV (A) of the constitution. Its role is explained as “the Constitution of India was incomplete with the absence of this chapter and this was rectified by the forty-second amendment to the constitution in 1976. Traditional duties such as protecting the unity and integrity of the country, safekeeping of public property, protection of the environment, that require basic norms of democratic conduct and democratic behaviour from all citizens have thus been given constitutional sanction.”[62]
An analysis of the Fundamental Duties helps understanding its wider scope. The fundamental duties according to the Indian constitution are:

 “It shall be the duty of every citizen of India, -

(a) to abide by the Constitution and respect its ideals and institutions, the National Flag and the National Anthem;
(b) to cherish and follow the  noble ideals which inspired our national struggle for freedom;
(c) to uphold and protect the sovereignty, unity and integrity of India;
(d) to defend the country and render national service when called upon to do so;
(e) to promote harmony and the spirit of common brotherhood amongst all the people of India transcending religious, linguistic and regional or sectional diversities; to renounce practices derogatory to the dignity of women;
(f) to value and preserve the rich heritage of our composite culture;
(g) to protect and improve the natural environment including forests, lakes, rivers and wild life, and to have compassion for living creatures;
(h) to develop the scientific temper, humanism and the spirit of inquiry and reform;
(i) to safeguard public property and to abjure violence;
(j) to strive towards excellence in all spheres of individual and collective activity, so that the nation constantly rises to higher levels of endeavour and achievement.”[63]
            Among the variety of expectations, preserving the diverse heritage, religions and working for harmonious living are essential to remember from the point of freedom of religion. The clear vision of the constitution is preservation of the plurality of religions, cultures etc. The duties mentioned herein are not just for one group of people but for all the citizens.
Besides the fundamental rights guaranteed in part three of the Indian constitution as a natural interest to preserve the plural structure of the Indian society, particularly religious plurality, the fundamental duties promote communal harmony. It is an astonishing insight to emphasis that plurality of religion is real and natural and any attempt to undermine such plurality is against the spirit of the constitution. C.P. Barthwal summarizes the crux of the fundamental duties as “…Art. 51-A casts duty on every citizen to promote communal harmony, spirit of brotherhood among all people of the country.”[64]

This chapter has focused upon the direct constitutional provisions that are essential from the point of freedom of religion. The crucial issues emerging from these discussions like, inclusion of the expression secular in the Preamble of the Constitution, the expressions secular, secularism, secular state, democracy, freedom of religion, propagation and conversion shall be explicitly discussed in the next chapter so that the intricacies associated with the interpretation of these issues may be further highlighted.

 





[1] South Asia Human Rights Documentation Centre, Introducing Human Rights: An Overview  Including Issues of Gender Justice, Environmental, and Consumer Law ( New Delhi: Oxford University Press, 2006), 66-67.
[2]N.R. Madhava Menon, “Constitutional Jurisprudence,” The Hindu (Vijayawada), 2
May 2006, 14.
[3] South Asia Human Rights Documentation Centre, Introducing Human Rights: An Overview Including Issues of Gender Justice, Environmental, and Consumer Law, 66.
[4]N.R. Madhava Menon, “Constitutional Jurisprudence,” The Hindu, 14.
[5] Durga Das Basu, Introduction to the Constitution of India, 19th ed. Reprint (Nagpur: Wadhwa and Company, Law Publishers, 2003), 3.
[6] N.R. Madhava Menon, “Constitutional Jurisprudence,” The Hindu, 14.
[7] James Massey, Minorities and Religious Freedom in a Democracy (New Delhi: Manohar
 Publishers& Distributors, 2003), 18.
[8] Ibid., 96.
[9] Ibid.
[10] Ibid., 69.
[11] Ibid.
[12] Soli J. Sorabjee, “So Long as Religion is religion,” The New Indian Express
 (Vijayawada), 17 February 2006, 8.
[13] P.M. Bakshi, The Constitution of India with Selective Comments (New Delhi: Universal Law Publishing CO. PVT. LTD., 1998), 14.
[14] Sunita Gangwal, Minorities in India: A Study in Communal Process and Individual Rights
( Jaipur: Arihant Publishing House, 1995), 95.
[15] South Asia Human Rights Documentation Centre, Introducing Human Rights: An Overview Including Issues of Gender Justice, Environmental, and Consumer Law,  89.
[16] Manoj Dixit and Trigun Bisen, “Human Rights in India,” in Perspectives on Human Rightsedited by  M. B. Dube and Neeta Bora (New Delhi: Anamika Publishers & Distributors (P) LTD., 2000), 92.
[17] Durga Das Basu, Introduction to the Constitution of India, 21.
[18] South Asia Human Rights Documentation Centre, Introducing Human Rights: An overview   Including Issues of Gender Justice, Environmental, and Consumer Law,66.
[19] Ibid.
[20] Durga Das Basu, Introduction to the Constitution of India, 21.
[21] Manoj Dixit and Trigun Bisen, “Human Rights in India,” in Perspectives on Human
 Rights, 92.
[22] Durga Das Basu, Introduction to the Constitution of India, 28.
[23] Ibid., 27.
[24] Ibid.
[25] M.S. Golwalkar, Bunch of Thoughts, 3rd ed., Reprint (Bangalore: Sahitya Sindhu
Prakashan, 2000), 227.
[26] P.M. Bakshi,  The Constitution of India with Selective Comments, 8.
[27] P.N. Sapru, “Religious Freedom and Civil Liberties,” in Religious Freedom, edited by J.R. Chandran, and M. M. Thomas, (Bangalore: The Committee for Literature on Social Concerns, 1956),8.
[28] (in the court), emphasis added by the author.
[29] Durga Das Basu, Introduction to the Constitution of India, 38.
[30] South Asia Human Rights Documentation Centre, Introducing Human Rights: An Overview  Including Issues of Gender Justice, Environmental, and Consumer Law, 66-67.
[31] C.P. Barthwal, “Human Rights and India,” in Perspectives on Human Rights, edited by M.  B. Dube and Neeta Bora (New Delhi: Anamika Publishers & Distributors (P) LTD., 2000), 78.
[32] South Asia Human Rights Documentation Centre, Introducing Human Rights: An
Overview Including Issues of Gender Justice, Environmental, and Consumer Law,
66-67.
[33] Ibid.
[34] Ibid.
[35] Manoj Dixit and Trigun Bisen, “Human Rights in India,” in Perspectives on
Human Rights, 92.
[36] Durga Das Basu, Introduction to the Constitution of India, 28.
[37] P.M. Bakshi, The Constitution of India with Selective Comments, 14.
[38] James Massey, Minorities and Religious Freedom in a Democracy, 82.
[39] P.M. Bakshi, The Constitution of India with Selective Comments, 22-23.
[40] Ibid., 24-25.
[41] Ibid.,  28-29.
[42] Ibid.,  37.
[43] Ibid., 47.
[44] Ibid., 49.
[45] Ibid., 50.
[46] Ibid.
[47] Ibid., 51.
[48] Ibid., 52.
[49] Pannalal Dhar, India and Her Domestic Problems: Religion State and Secularism
 (Calcutta: Punthi- Pustak, 1993), 79.
[50] James Massey, Minorities and Religious Freedom in a Democracy,  82-83.
[51] P.N. Sapru, “Religious Freedom and Civil Liberties,” in Religious Freedom, 4.
[52]M.B. Dube, “Perspectives on Human Rights,” in Perspectives on Human Rights, edited by M. B. Dube and Neeta Bora (New Delhi: Anamika Publishers & Distributers (P) LTD., 2000), 9.
[53] B.S. Bisht, “Human Rights: An Overview,” in Perspectives on Human Rights, edited by M.
B. Dube  and Neeta Bora (New Delhi: Anamika Publishers & Distributers (P) LTD., 2000), 44.
[54] M.B. Dube, “Perspectives on Human Rights,” in Perspectives on Human Rights, 10.
[55] Neeta Bora,  “Human Rights an Overview,” in Perspectives on Human Rights, edited by M.  B. Dube and Neeta Bora (New Delhi: Anamika Publishers & Distributors (P) LTD., 2000), 110.
[56] South Asia Human Rights Documentation Centre, Introducing Human Rights: An Overview Including Issues of Gender Justice, Environmental, and Consumer Law, 68.
[57] Durga Das Basu, Introduction to the Constitution of India, 28.
[58] Ibid., 35.
[59] Manoj Dixit and Trigun Bisen, “Human Rights in India,” in Perspectives on
Human Rights, 92.
[60] P.M. Bakshi, The Constitution of India with Selective Comments, 69.
[61] Ibid.
[62] South Asia Human Rights Documentation Centre, Introducing Human Rights: An Overview Including Issues of Gender Justice, Environmental, and Consumer Law, 68.
[63] P.M. Bakshi, The Constitution of India with Selective Comments, 76.
[64] C.P. Barthwal, “Human Rights and India,” in Perspectives on Human Rights, 78.

Comments

Popular posts from this blog

Religio-theo-dialogical Approach

TAMILS, TAMIL AND ĀLVĀRS

Brahma Samaj