Right to Freedom of Religion
This article deals with ‘Right to Freedom of Religion .’ This is part of our series on ‘Polity’ which is important pillar of GS-2 syllabus . For more articles , you can click here
Freedom of conscience & free profession, practice & propagation of religion
- Available to all citizens and non citizens
- These are actually religious rights of individuals
- This article also says that Sikhs has Right to carry kirpan & Hindu in constitution also include Sikhs , Buddhist and Jains
- Freedom of Religion isn’t unlimited & Government can impose
restrictions to protect
public order, morality and health.
- Government can interfere in religious matters for rooting out certain social evils. For example in the past, the government has taken steps banning practices like sati, bigamy or human sacrifice. Such restrictions cannot be opposed in the name of interference in right to freedom of religion.
- But when government seeks to restrict some activities of any religious group, people of that religion feel that this is interference in their religion.
- Constitution has guaranteed the right to propagate one’s religion. This includes persuading people to convert from one religion to another. However, some people resent conversions on the ground that these are based on intimidation or inducement. The Constitution does not allow forcible conversions. It only gives us the right to spread information about our religion and thus attract others to it.
Freedom to manage religious affairs
- All religious denominations has following rights
- Right to establish & maintain institution for religious & charitable purposes
- Right to manage its own affairs in matters of religion
- Right to acquire and own movable and immovable property
- Right to administer such property in accordance with law
- These are rights of religious denominations as whole
Doctrine of Essential Practices
- First propounded in Shirur Mutt Case
- In India , judiciary can prescribe outer limits of what could be called the sole domain of religion and aspects beyond essential practices have no protection from state intervention under Article 26.
- But this doctrine has been propounded by judiciary itself & exhibit signs of judicio-papism ie where judges can completely overrule religious authority.
- Acharya Jagdishwaranand Avdhoot vs Commissioner of Police, Calcutta (1984) : Tandava is not Essential Religious Practice
- Mohammad Hanif Quareshi vs State of Bihar (1958) : Cow Slaughter on Bakarid is not essential practice of Muslims
- In news during Babri Masjid Case : Ismail Faruqui v. Union Of India (1994) : Mosque is not an essential part of the practice of Islam and Namaz (prayer) by Muslims can be offered anywhere .
Freedom from payment of taxes for promotion of any particular religion
- State shouldn’t spend money collected from tax on promotion or maintenance of any particular religion
- This doesn’t prohibit to levy fees. Fee can be levied on pilgrims to provide them some special service or safety measure
Freedom from attendance at religious worship or instruction in educational institutions wholly maintained by state
Types of educational institutions and Article 28
|Wholly maintained by state||Religious instruction completely prohibited|
|Institutions administered by state but established under any trust||Religious instruction permitted|
|Institutions recognised by state Institutions receiving aid from state||Religious instruction permitted on voluntary basis|
One must distinguish between Religious Instructions and Academic Pursuit . In DAV College vs State of Punjab (1971) , where Guru Nanak Dev University , Amritsar provided for pursuing of academic career in teachings and philosophy of Guru Nanak Dev ji . Question was whether state was promoting religion & imparting religious instructions. SC said we have to distinguish between religious instruction and academic pursuit in teachings of Guru Nanak Dev ji cant be said to be promoting any religion or imparting religious instruction.
2019 Issue : Chanting of Shaloka Tamasoma Jyotir Gamaya in Kendriya Vidyalaya?
- Does chanting Sanskrit Shloka from Upanishads in prayer in Kendriya Vidyalayas amount to religious instructions and should this practice in KVs that operate under Educational Ministry be stopped ?
- Supreme Court referred this petition to Constitutional Bench
Issues Related to Freedom of Religion
Issue 1: Right to Convert & Anti-Conversion Laws
In news because :
- 2018 : Hadiya Case Judgement
- “Ghar Wapsi” i.e. re-conversion attempts by certain right-wing organizations fueled controversy around religious conversions.
Is Right to Convert a Fundamental Right
- Article 25 : freedom of conscience and free profession, practice and propagation of religion . The term propagation implies transmit one’s religion by an exposition of its tenets without any element of fraud, coercion and allurement for conversion.
- It may be pointed out that the right to convert other person to one’s own religion is distinct from individual right to get convert to any other religion on his own choice. The latter is undisputedly is in conformity with the freedom of religion while the former is the subject of long prevailing controversy .
|Gandhi||He opposed proselytising and people of one faith trying to convert others.|
|Ambedkar||He saw conversion as a means of social elevation and a way to revolt against the discrimination of caste system. Ambedkar’s 1956 conversion to Buddhism inspired about 3,65,000 erstwhile “untouchables” to follow suit.|
Judicial Interpretations / Important Cases regarding this issue
|Arun Ghosh vs State of West Bengal (1950)||– Attempt to raise communal passions through forcible conversions would be a breach of public order |
– Supreme Court held that the States were empowered under Entry 1 of List II of 7th Schedule to enact local Freedom of Religion laws to restore public order making forcible religious conversions a cognizable offence
|Rev. Stanislau vs State of MP (1977)||– Article 25 does not grant the right to convert other persons to one’s own religion but to transmit or spread one’s religion by an exposition of its tenets. |
– Upheld the validity of two anti-conversion laws of the 1960s — the Madhya Pradesh Dharma Swatantraya Adhiniyam and the Orissa Freedom of Religion Act.
|Hadiya Case Judgement (2018)||– Hadiya was 26 year old girl who converted to Islam and married Muslim man |
– Person’s right to choose religion and marry is intrinsic part of liberty.
Issue 2: Women Entry in Temples
Related Cases that are going on
- Sept 2018 (v imp) : Sabarimala Shrine , Kerala : SC in Indian Young Lawyers’Association v/s State of Kerala Case declared the restriction on women “of menstruating age” from entering sanctum sanctorium as ultra vires the Constitution. (Belief that Lord Ayappa is Naisthik Brahmachari)
- Haji Ali Dargah. August 2016 – Bombay HC recognised women’s right to enter and worship at Dargah
- March 2016: HC recognised women’s right to enter in Shani Shingnapur Temple (Maharashtra) .
- Dec 2017 : Historically, the women & descendants of women who marry outside the religion have not had access to Zoroastrian religious institutions. The SC is deciding a case that who can have access to temples.
Arguments : Why State should intervene / Why women entry must be allowed
- Infringes Fundamental Rights: Ban imposed on women devotees “contravenes Articles 14 (equality before law), and 25 (free profession and practice and propagation of religion) of the constitution”.
- Fundamental Duties – Article 51A(e) => Renounce all practices derogatory to dignity of women.
- Views of founding fathers : B.R. Ambedkar was of view that most powerful tool by which an unequal society expressed and reinforced its hierarchies is through denial of equal access to religious spaces & this had to be smashed.
- Nature of Indian Secularism : India do not have a “wall of separation” between religion and state that, eg , exists in US.
- Infringes Right against Untouchability : Exclusion is mainly based on Purity – Pollution argument as women are considered impure due to Menstruation
- Doctrine of Essential Practices in Religious Affairs : practice of not allowing women to enter temples is certainly not Essential Practice
Way forward : SGPC ACT (management of Sikh Gurudwaras) gives equal rights to women to participate in all religious activities and even hold any office including Chief of SGPC . Other religions can learn from this.