This article was written by KRISHNAKANTH GOPARAJU, a 2nd year LL.B. student at Pendekanti Law College, Hyderabad.
Introduction
There are many religions and casts in India. There is no official religion, and everyone is free to practice any religion they like. The Government honors and respects all religious practices and beliefs equally. Despite many religious denominations, India has been flourishing as a secular state. Being a secular state is to give equal status to all religions. India has neither its religion nor supports any one particular religion. Thus, secularism helps to maintain harmony among various religions as no one religion has dominance and recognition in India. Although, government of India has proposals to introduce Uniform Civil Code throughout the territory of India, it has not yet introduced. Uniform Civil Code is a proposition in India to develop and execute personal laws of citizens which apply on all citizens equally nonetheless of their religion, gender and sexual orientation. Goa is the only state in India to implement Uniform Civil Code in the country known as Goa Uniform Civil Code.
42nd Amendment Act
The word “secular” also was not there in the original draft of the Constitution. This has also been incorporated in the Preamble by the Constitutional (42nd Amendment) Act, 1976.
Meaning of religion
Our constitution is silent concerning the meaning of the term religion. In a general sense, religion is a matter of faith. Religion need not necessarily be an atheistic ideology. God is not an essential part to constitute religion. There are religions like Buddhism and Jainism which do not believe in god. Principles of each religion constitute its essential part, but the court is competent to examine them. Moreover, Philosophy is different from religion.
Meaning of Secularism
It simply means that the State treats all religions equally and does not claim any particular religion as its own. It is neither pro religion nor anti-religion. Additionally, it is not founded on complete neutrality toward religion. It is built on the idea of respecting all religions equally. It exemplifies the traditional idea of “sarva dharma sama bhava.”
In the historic case of S. R. Bommai v. Union of India, AIR 1994 SC 1918, Supreme Court ruled that Secularism is the basic feature of the Constitution of India. It also observed that religion and politics cannot be mixed together.
Constitutional provisions
Four clauses, beginning with article 25, ensure the equality of all religions, supporting secularism. They are:
- Freedom of conscience and to practice, profess and propagate religion under article 25.
- Freedom to manage religious affairs under article 26.
- Freedom from payment of taxes for advancement of any particular religion under article 27.
- Freedom to follow religious instructions under article 28.
Let us discuss these articles one by one.
Article 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, practice 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 Explanation I: The wearing and carrying of kirpans shall be deemed to be included in the profession of the Sikh religion.
Explanation II: In sub clause (b) of clause reference to Hindus shall be construed as including a reference to persons professing the Sikh, Jaina or Buddhist religion, and the reference to Hindu religious institutions shall be construed accordingly.
Scope and object
The focus of Article 25 is on how people exercise their right to freedom of religion. Thus, it is an individual right. At the same time, article 26 is a right available to institutions or religious denominations. Article 25 may, however, nevertheless be appropriate when people solely express their faith in institutions.
The National Anthem Case
In the case of Bijoe Emmanuel v. State of Kerala (1986 3 SCC 615), the facts of the case are three Jehovah’s witnesses who belongs to a Christian sect, were removed from a Kerala school in 1986 because they objected to the singing of the national anthem. The complaint was taken to the Supreme Court, which ruled that “the expulsion of children from school for the reason that due to their conscientiously held religious belief, they did not participate in the singing of the national anthem, though they stood respectfully when it was sung, is a violation of their fundamental right under Article 25 ‘to freedom of conscience and freely to profess, practice, and propagate religion.’
Triple talaq case – Shayara Bano v. Union of India, AIR 2017 9 SCC 1 (SC)
A Muslim man can divorce his wife by saying the words “talaq talaq talaq,” which is referred to as triple talaq or talaq-e-biddat. A Supreme Court panel of five judges considered the contentious Triple Talaq issue. The major question in this case was whether Muslims’ practise of triple talaq, or Talaq-e-biddat, was a matter of faith for them and whether it was part of their personal law. The court decided that Talaq-e-biddat is unlawful and unconstitutional by a 3:2 majority. The court further ruled that an injunction would prevent Muslim men from performing triple talaq until appropriate legislation is passed. Later, Muslim Women (Protection of Rights on Marriage) Act, 2019 was came into force on 1st July 2019.
Article 26
Freedom to manage religious affairs 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
Scope and object
Article 26 covers religious denominations, and sections thereof. The four rights secured by the article are subject to ‘public order, morality, and health. Article 26 is not subject to other provisions of Part III whereas Article 25 is subject to other provisions of this part. It was noticed in Narendra v. State of Gujarat, AIR 1974 SC 2098.
State of Bombay v. Saifuddin Saheb, AIR 1962 SC 853.
In this case, the Bombay Prevention of Excommunication Act, 1949, was passed by the State of Bombay. Section 3 of this act forbade the excommunication of any community’s members. The Act was challenged by the petitioner who was a religious leader of the Dawoodi-Bohra Community, on the grounds that it infringed upon their fundamental rights, which are protected by Articles 25 and 26.
The Court noted that the head’s ability to excommunicate people constituted one of the fundamental communal issues and that the Act blatantly violated the fundamental right guaranteed by Article 25(1) of the Constitution. The Act was declared invalid by the Supreme Court because it violated Articles 25 and 26.
Article 27
Freedom as to payment of taxes for promotion of any particular religion- 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.
Tax V. Fee
Article 27 is very important in terms of money collected by the state through tax. Tax, as we know, is collected by the state to use for public good. If such tax is utilized for the benefit of any particular religion, that amounts violation of Article 27.
In Jagannath Ramanuj Das v. State of Orissa case the validity of Orissa Hindu Religious Endownments Act was challenged. The Act levied an annual contribution on every muth or temple having annual income of more than Rs. 250 for meeting the expenses of the commissioner and his office. The provision was enacted for better administration of religious endowments. The Act was upheld on the ground that the contribution imposed by it was not tax but fee.
Article 28
Freedom as to attendance at religious instruction or religious worship in certain educational institutions
(1) No religion 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 recognised 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 attached thereto unless such person or, if such person is a minor, his guardian has given his consent thereto.
Can educational institutions have religious prayers?
The four types of educational institutions mentioned in Article 28 are as follows:
(a) Institutions entirely maintained by the State.
(b) Organizations that the State recognises.
(c) Organizations that get financial assistance from the State fund.
(d) Organization which is administered by the State but has been established under any endowment or trust.
Religious prayer or teaching cannot be given in institutions of (a) nature. Religious education is only permitted in institutions of types (b) and (c) with the participants’ consent. Religious instruction is not restricted in an institution of the (d) kind.
Conclusion
India is a place of multi religions. People have the right to choose, change, practice, profess and propagate their religion. In exercising there right, people should be very conscious and remember that there are certain restrictions upon freedom of religion as it is not an absolute right.
References
- Constitution of India, 1950
- S. R. Bommai v. Union of India, AIR 1994 SC 1918
- Bijoe Emmanuel v. Sta
- te of Kerala (1986 3 SCC 615)
- Shayara Bano v. Union of India AIR 2017 9 SCC 1 (SC)
- Narendra v. State of Gujarat, AIR 1974 SC 2098.
- State of Bombay v. Saifuddin Saheb, AIR 1962 SC 853.
- Jagannath Ramanuj Das v. State of Orissa
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