The concept of secularism has been embodied under the constitution formally through the 42nd Amendment Act, 1976 though earlier it was a part of fundamental rights under Part III of the constitution. The resolution to secure to all Indian citizens “liberty to thought, belief, faith and worship have been guaranteed under the Articles 25 to 28 of Indian Constitution. Secular state in India was never considered as an irreligious or atheistic State. It only means that in matters of religion the state interferes with no one. It is only concerned with the relationship between man and man and is silent about the relationship of man with God.
Secularism is neither anti-God nor pro- God. It treats the devout, the antagonistic and the atheist at par. There is no state religion, the state is a religiously neutral state. It treats all religions and religious denominations as equal. The followers of all beliefs are free to follow their own religious practices and to follow one’s own conscience. Mode and method of praying to God is left to the discretion of the individual it is not a matter of state’s concern. The term SARVA DHARMA SAMBHAV which was coined by Mahatma Gandhi is truly practiced and followed in India, but it should not be mingled with SARVA DHARMA ABHAV. It means that all religions should be treated equally and their should not be any prejudices towards followers of any particular religion. Their have been numerous judicial pronouncements in this regard and judiciary has widely interpreted this constitutional guarantee.
In S.R. Bommai vs Union of India, the Supreme Court stated that secularism is a basic feature of the Constitution. There is equal treatment by the state to all religions and religious denominations. It is the innate faith in any individual that makes him follow a particular religion which cannot be intermixed with secular activities. Legislature through enactment of laws regulates the secular activities of any state. Justice Ramaswami in his remarks stated that secularism is not anti-God. Unlike America there is no erection of wall between religion and state, it is just that state does not interfere in religious affairs of citizens. In Santosh Kumar vs Secretary, Ministry of Human Resources Development the Supreme Court has held that introduction of Sanskrit language as subject in Central Board of Secondary Education is not against secularism as it is the mother of all Aryan languages. Guidelines were issued to CBSE to make Sanskrit as an elective subject within three months for enhancing and nurturing our rich cultural heritage. The court negated the government’s contention that by introducing Sanskrit as an elective would pose discrimination against other languages like Arabic and Persian without learning Sanskrit it would not only be difficult but impossible to understand the classical ancient literature. Vedas, Puranas, Smritis all were explicitly written in Sanskrit. The culture of the land of Aryans cannot be studied if there is ignorance of Sanskrit.
In Aruna Roy vs Union of India, the validity of National Education Policy, 2002 which provided for value based education on basis of all religions was widely debated and thought to be as violative of Article 28 along with this it was also labelled as anti- secular. The court stated that study of religions in school education is not against the secular character of Constitution. As secularism is given a very positive meaning in India which is developing understanding, respect and harmony among varied religious denominations.
In a society where the spirit of secularism has rooted itself strongly it becomes a subject of prime importance to study religious tenets and values, it would be ignorance if we keep the masses far from the knowledge which is left behind by sages of ancient time. First constitutional amendment of America states that congress shall not make any law respecting an establishment of religion or prohibiting the free exercise thereof.
RELIGIOUS FREEDOM IN INDIA
Under Article 25(1) every person is guaranteed the freedom of conscience and the right to profess, practice and propagate religion of his choice. This is not an absolute guarantee. Restrictions on the ground of public order, morality, health and under other provisions of Part III of the constitution can be laid down and this provision is not immune from interference by judiciary. The other restrictions which can be imposed under Art 25 are there is enough power to the state to regulate or restrict any economic, financial, political or other secular activity which may be associated with religious practice also state for reforming society and for extending the entry rights to all sections of hindus in religious institutions of public can impose restrictions.
The word is not clearly defined in the constitution and it cannot be fitted in tight compartments, by practicing religion an individual follows a particular set of beliefs that are conducive to his spiritual well being but it would be wrong if we intermingle religion with doctrine of belief. Ethical rules of practice are laid down by religion for its followers to accept, it renders prescription to various rituals and observances, ceremonies and modes of worship which are inalienable part of religion occasionally extending to dressing pattern and food practices. The right to follow religion is a matter of inner conscience and personal faith which should not be directed by state. Thus, under Article 25(1) a person has dual freedom (a) Freedom of conscience (b) Freedom to profess, practice and propagate religion. Conscience is absolutely related with inner freedom of citizen it moulds his relation with God in whatever manner he likes. Professing a particular religion means declaring one’s faith and belief openly in whatever manner he likes. Practice means to perform the prescribed religious duties, rites and rituals by exhibiting it by actions prescriptive of the religious order which an individual believes. Propagation means spreading and publicizing religious views it only means persuasion and exposition without any coercive force. Conversion and reconversion through force or any other means is left uncovered under propagation. There is absolutely no fundamental right by which a person is empowered to convert an individual to his own religion, but to transmit or spread one’s religion by an exposition of its tenets. This freedom of religion is not only limited to matters of belief but it also ensures that all those rituals and observances which are inalienable part of any religion must also be necessarily followed.
In National Anthem case three school children belonging to Jehova faith were expelled from school for their refusal to sing the National Anthem. The validity of their expulsion was challenged on the ground that it violated their fundamental right under Article 25(1) by the guidelines issued by government it was mandatory for all children in schools to sing the National Anthem. These children use to stand with respect while the National Anthem was sung but they did not join in singing it. They refused singing it as according to them it was against the tenets of their religious faith which did not give them permission to follow any ritual except their prayer to Jehova, the God they had their faith in.
The Kerala High Court held this to be an insult of National Anthem and remarked that if such undue liberties are given to any individual then it would pose a danger to the security of the nation which will adversely affect the sovereignty, integrity and unity of the nation this activity might degrade the minds of the fellow students and thus the head mistress was right in her decision to expel them and not permit them to attend classes unless a written undertaking was given that they will sing the National Anthem. But the Supreme Court overruled the high court’s decision and stated that no person can be compelled to sing the national anthem, “if he has genuine, conscientious religious objection”. It is not obligatory on any citizen to sing the national anthem. No executive order can regulate the freedom under Article 25 without having any force of law. By standing up while the national anthem was being sung they had shown due respect which was unviolative of fundamental duties laid down in Art. 51-A of the Constitution.their conduct did not amount to any insult under Prevention of Insults of National Honour Act, 1971 as they did not prevent the singing of the National Anthem nor caused any sort of disturbance while it was sung. Therefore the school authorities were instructed to readjust the children in their school.
In Ramesh vs Union of India, the petitioner a practicing advocate of High Court for the issue of writ of prohibition filed a public interest litigation under Article 32, restraining the respondents, namely, Union of India, the Director- General of Doordarshan, New Delhi and the producer from telecasting the programme,” Tamas” for enforcement of fundamental rights of petitioners under Article 25 of the constitution which was based on a novel scripted by Shri.Bhisham Sahni. It depicted how partition had created an atmosphere of communal violence in the communities residing within the frontiers of both India and Pakistan. The petitioner did not violate any right under Article 25 but it was to act as a guiding light to ensure that Indian society should be free of hatred perpetrated through communal disharmony.
It was a gentle reminder on the part of petitioner that such things are better kept unrepeated. Another case in which age old tradition of performing prayers in temple exclusively by Brahmins was broken is N. Aditya vs Travancore Dewaswom Board in which the Supreme Court held that Brahmins do not have monopoly rights over performing prayers in a temple. A non-brahmin can be appointed as a pujari if he has received proper training and is well versed in rituals to be performed and mantras to be recited.
The condition of debarring non Brahmins from performing prayers in temple was not to exclude the other castes but was because the non-brahmins were not having such intellectual capability and potential so that they could be treated at par with Brahmins as in the ancient times the other castes were prohibited from learning Vedas, performing rituals and wearing sacred holy thread essential for getting initiated in this order.
In present times there is no justification regarding only a person belonging to Brahmin category can participate in this profession. Under Ismail Faruqui vs Union of India, the court stated that state can in exercise of its sovereign power acquire places of worship like mosques, churches, temples etc which is not dependent on Article 300-A of the constitution if it is necessary for maintenance of law and order. Such acquisition perse does not violate Article 25 and 26 of this constitution. Religious practices which form an essential and integral part of religion under Article 25 and 26 are entitled to protection. Offering prayer or worship is a religious practice, its offering at every location where such prayers can be offered would not be a practice which is integral to one’s religion.
In Shayara Bano vs Union of India the apex court declared triple talaq or talaq-e-biddat being instant and irrevocable as unconstitutional. It is a kind of talaq in which by instantaneously pronouncing the evil words of talaq thrice the talaq gets effected. Shariat law itself suggest that though it is lawful but also sinful at the same time as in it incurs the wrath of God. Triple talaq is arbitrary and violative of Article 14 of the constitution in the sense that the marital tie can be broken capriciously and whimsically by a muslim man without any attempt to save it. Triple talaq is against the basic principles of holy Quran and is violative of Shariat the personal law governing the muslim community. It does not constitute an inseparable part of Islam and is not guaranteed protection under Article 25(1) of the constitution. The court further clarified that the judgement of privy council in Rashid Ahmad vs Anisa Khatun which stated triple talaq to be completely valid even if unreasonable is no longer justified.
In Church of God (Full Gospel) in India vs K.K.R.M.C. Welfare Association, under Art 25 and 26 no person can be allowed to create noise pollution or pose disturbance to peace of others use of loudspeakers in religious prayers is not an essential practice to be followed by any religion.
RESTRICTIONS ON FREEDOM OF RELIGION
- Restrictions based on public order, morality and health: Any religious activity which violates public order, morality and health is highly condemnable. Slaughter of cattle or indecent exposure of one’s person in a public place cannot be justified on plea of practice of religious rites. Crimes related to trafficking of human beings and untouchability like practice of making young girls devadasis which was earlier prevalent in South India is intolerable and prohibitive.
There are other fundamental rights which also impose restrictions on this particular freedom ensured under Article 25 to 28 for example right to freedom of speech and expression, freedom of assembly and association, freedom to carry on a profession, trade and business. The freedom to practice religion cannot affect the exercise of these freedoms by others. Reasonable restrictions can be imposed under clause(2) of Art. 19.
In Acharya Jagdishwaranand Avadhuta vs Commissioner of Police, Calcutta(popularly known as Anand Marga Case the Supreme Court held that the processions in which tandava dance is performed at public places by Ananda Margis carrying dangerous weapons and human skills is not an essential religious practice of followers of Ananda Marga and hence the order under section 144 CrPC which prohibits such process in the prime interests of maintaining and regulating public order and morality violates the rights of the petitioner under Art 25 and 26 of the Constitution. Ananda Marga is not a separate religion but is a sub category within Hindu religion and essentially adopts the notions of Hindu religion and philosophy. The order under section 144 did not ban procession or gatherings at public places by Anand Margis but is only prohibitive regarding carrying of daggers, trishuls and skulls which are danger to public security and order which is also against morality.
- Regulation of economic, financial, political and secular activities associated with religious practices clause (2)(a): The freedom to practice extends to those activities which form the spirit and essence of religion. Those activities which are secular in nature and do not constitute the essence of religion are left uncovered by lawmakers.
In Mohd Hanif Quareshi vs State of Bihar, the claim of the petitioner that sacrifice of cows on the occasion of Bakrid was an essential and inseparable part of his religion and therefore the State law forbidding the slaughter of cows was violative of his right to practice religion. The court’s rejection of the argument held that the sacrifice of cow on the Bakrid day was not an essential part of Muslim religion and exempting it was thoroughly invalid.
- Social welfare and social reforms clause (2)(b): Under Clause (2)(b) of Art 25 the state is empowered to make reforms for social transformation. Evil social practices and dogmas pull back the nation from social and economic progress. Laws made for eradication of such problems are full fledgedly valid where there is conflict between the need of social reforms and religious practices, religion must give way.
MANAGEMENT OF RELIGIOUS AFFAIRS
This freedom to manage religious affairs under Article 26 is subject to public order, morality and health they shall have the rights to establish and maintain institutions for religious and charitable purposes, to manage affairs related to religion, to own and acquire movable and immovable property, administration of property in accordance with law.
TAX IMMUNITY IN MATTERS OF RELIGION
Art 27 provides that there shall be no compulsion on any person to pay taxes for the promotion or maintenance of any particular religion or religious denomination. This article illustrates the secular character of the state. The taxes collected by the government cannot be utilized for the promotion of any specific religion. It is against the constitutional policy to pay public money for promoting or maintaining any religion or religious denomination.
RELIGIOUS INSTRUCTION PROHIBITION IN STATE AIDED INSTITUTION
According to Article 28(1) no religious instruction shall be imparted in academic institutions wholly maintained out of state funds. Under Article 28(3) no person attending educational institutions established and maintained by state will receive religious instructions imparted in such institutions. There is four fold classification of educational institutions
- Institutions wholly maintained by the State.
- Institutions recognized by State.
- Institutions receiving aid out of state funds.
- Institutions that are administered by state but established under trust or endowment.
In DAV College, Bhatinda vs State of Punjab the validity of section 4 of Guru Nanak University Act directed that provisions can be made for the study and research on the life and teachings of Guru Nanak which was challenged on the ground being violative of Article 28 which prohibits religious instructions in state aided educational institutions.
India being a secular state gives no priority to any religion the people are free to profess, practice and propagate their religion sometimes restrictions are imposed on the grounds of public order, health and morality. Those practices of religion which constitute essential and integral parts of one’s religion are protected under the fundamental rights enshrined in Part III. The other grounds on which the restrictions can be imposed are regulation of economic, financial, political and secular activities under any religious denomination they can be imposed for reforming social evils and superstitious dogmas. The state has embodied sufficiently effective provisions in the constitution so that there is no prejudiced approach in dealing with religious affairs. The judiciary has widely elaborated the concept of secular state through various judicial pronouncements. One such landmark case is the case of S.R. Bommai in which secularism was held to be the basic feature of the constitution. The law makers and judiciary have not only strengthened and extended the religious neutrality of state by delinking state with religion. The state is silent about the relationship of man with God which is a key feature promoting religious harmony which strengthens the unity and integrity of nation.