INDIAN CONSTITUTION AND FREEDOM OF RELIGION
INDIAN CONSTITUTION AND FREEDOM OF
RELIGION
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.
[9]
Ibid.
[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 Rights, edited 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.
[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.
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.
[39] P.M. Bakshi, The Constitution of
India with Selective Comments, 22-23.
[49] Pannalal Dhar, India and Her Domestic
Problems: Religion State and Secularism
(Calcutta: Punthi- Pustak, 1993), 79.
[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.
[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.
[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.
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