Freedom of Religion in India: Importance, Principles, and Constitutional Guarantees, Slides of Constitutional Law

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Freedom of Religion

What is the importance of Religion?

• (^) Religion has been at the centre of human society’s

existence since times immemorial.

• (^) The Indian society displays a “manifest tendency

towards an outlook that is predominantly religious.”

• (^) Sir Harcourt Butler, in his often quoted words, had

noted that – “the Indians are essentially religious as

Europeans are essentially secular.

• (^) Religion is still the alpha, and the omega of Indian’s

life.”

What does Freedom of Religion achieve?

• (^) Solidarity: word Fraternity is there in the Preamble.
• (^) Gandhiji was convinced that genuine religion, which for him was a personal affair, in its true, complete and virtuous form constructed bridges of solidarity between people.
• (^) In a country ravaged by partition, the framers hoped that liberty of belief, faith and worship would promote fraternity, hoping it would create conditions ripe for peace and harmony.

Is Freedom of Religion really beneficial for the country?

• (^) Religious practice promotes the well-being of individuals, families,

and the larger community.

• (^) It turns out that the practice of religion has a significant effect on

the happiness and an overall sense of personal well-being.

• (^) Happy people tend to be more productive and law-abiding. They

make good citizens.

• (^) Religious people are likely to be more honest due to fear of God. Of

course some religious fanatics are also corrupt and indulge in all

kinds of immoral things.

• (^) The word Dharma under our ancient culture means

Righteousness.Religion is to do right. It is to serve humanity.

What is the Religion & State relationship?

• (^) Secularism in India, unlike the West, was not aimed to create a wall of separation between the Church and State.
• (^) Taking the European experience as the referent point of secularism, it can be argued that secularism is an alien concept for India as we did not have similar historical experience.
• (^) Indian society in a way has always been secular.
• (^) Accordingly word ‘Secular’ was not there in the original Constitution. Similarly proposal to begin preamble in the name of ‘God’ was rejected. It was inserted in 1976 by the 42nd^ amendment.
• (^) Let us try to understand importance of Secularism
• (^) Secularism was presented perhaps the only option to regulate intergroup behavior due to circumstances of post partition India.
• (^) Indian State is Religion neutral and equally respects all religions. State has no religion of its own.

What is freedom of religion as per our Constitution

• (^) Articles 25 to 28 deal with Freedom of Religion under Indian Constitution.
• (^) Article 25: Freedom of Religion is guaranteed to everyone including foreigners.
• (^) Freedom of conscience & Three Crucial Rights
• (^) Right to Profess any Religion
• (^) Right to Propagate one’s Religion
• (^) Right to Practice one’s Religion

What powers State has in respect of Freedom of Religion?

• (^) State can through law regulate any economic, financial, political or other secular activity which may be associated with Religious Practices.
• (^) State can make a law 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.
• (^) Untouchables were not allowed in temples and several Temple Entry Laws had to enacted.
• (^) Only Public temples covered not private temples.
• (^) Women Entry in Sabrimala Temple of Lord Ayyappa was permitted as devotees of Lord Ayyappa were not recognised as a distinct sect of Hinduism and as Article 25 permits entry of all sections of Hindus to Hindu Temples.
• (^) Supreme Court has agreed to review the Sabrimala Judgment and could not hold hearings due to Covid-19.

Who is a Hindu?

• (^) Article 25 does not talk of any religious community other than Hindus.
• (^) It defined Hindus as Hindu temples were opened for all classes of Hindus and therefore it explains term ‘Hindu’.
• (^) ‘Hindu’ Definition is not in terms of beliefs and doctrines of Hindu Religion. It is an inclusive definition that tells who is included amongst Hindus.
• (^) Sikhs, Jains or Buddhist are included within the term Hindu.
• (^) Hindu Marriage Act & Hindu Succession Act in their definitions of term ‘Hindu’ include any person who is a Hindu by religion in any of its forms or developments, including a Virashaiva, a Lingayat or a follower of the Brahmo, Prarthana or Arya Samaj.
• (^) Any person living in India who is not a Muslim, Christian, Parsi or Jew by religion.

Is use of Loudspeaker permission under freedom of Religion?

• (^) No.
• (^) No Religion prescribes that prayers should be performed by disturbing the peace of others nor does it preach that they should be through voice-amplifiers or beating of drums. Religions are old and technology is new.
• (^) Church of Godin India v. K.K.R. Majestic Colong Welfare Association(2000):Others have Right not to be disturbed.
• (^) Allahabad High Court in 2020 held that Muslim Azan is not an essential Islamic practice.

What are the Rights of Religious Denominations and Religious Sects?

• (^) Article 25 talks of freedom of religion of individuals and Article 26 mentions the freedom of religion of religious denominations or any section thereof.
• (^) Most religions have various sects which in certain aspects differ from the primary religion.
• (^) Hinduism has many sects like Shivaites, Vaishvites, Shaktism.
• (^) Islam has several sects of Sunnis & Shias.
• (^) Christianity too has sects like Roman Catholics, Orthodox, Protestants, Jehovah Witness.
• (^) Buddhism has Mahayana & Hinayana
• (^) Rights under Article 26 are subject to Public order, morality and health.
• (^) It may be noted unlike Article 25 rights of religious denomination are not subject to other Fundamental Rights.

What are the Rights of Religious Denominations and Religious Sects?

• (^) The expression ‘manage its own affairs in matters of religion’ led to the innovation of doctrine of ‘essential religious practices’ by the Supreme Court.
• (^) Under this doctrine each and every religious practice cannot be claimed under freedom of religion.
• (^) Only such religious practices are allowed which the court finds essential to a particular religion.
• (^) Untouchability was held to be not an essential religious practice of Hindu religion.
• (^) Triple Talak and Having beard were thus not permitted as the same are not essential Islamic practice and find no mntion in Quran.
• (^) Central Government has now made pronouncement of Triple Divorce as criminal offence punishable with three years’ imprisonment.

Prohibition of Religious Tax under Article 27

• (^) Article 27: No person can 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.

• (^) Supreme Court in Praful Goradia v. Union of

India(2011) had upheld the constitutional validity of

Haj Subsidy given to Air India which has exclusive

rights to carry Haj pilgrims as it was a small amount

out of income tax was used for this subsidy.

What did we learn today?

• (^) Freedom of Religion has been guaranteed to everyone including foreigners.
• (^) This is a highly restricted freedom and can be controlled by the State.
• (^) This freedom does not include right to convert.
• (^) No Religious tax be imposed.
• (^) No religious prayer can be held in Educational Institutions.
• (^) Next we would discuss Rights of Minorities

Disclaimer

The views which have been expressed by the speaker in the lecture are his personal views.