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Todays Date
21 November 2017

Freedom of Religion in India

India, most popularly acknowledged as the land of spiritual beliefs, philosophical thinking, culture,  has also been the birthplace of quite a few number of religions out of which some of them exist in this era as well. ‘Religion’ is entirely a matter of choice, perception and belief. Paying heed to the Indian scenario we can conclude that , people in this country have a strong faith and dependence when it comes to their religion as they perceive that religion adds meaning and reason to their lives. When it comes to people who are extremely devoted to their religion , they leave no stone unturned in showing fidelity towards their respective religion .

Definitions by various authors:

  1. George Bernard Shaw: “There is only one religion, though there are hundreds of versions of it.”
  2. Sigmund Freud : “Religion is comparable to childhood neurosis.”
  3. Rudolph Otto : Religion is that which grows out of, and gives expression to, experience of the holy in its various aspects.”

The Indian Constitution guarantees various fundamental rights to the citizens. One of the fundamental rights guaranteed by the constitution also includes right to freedom of religion. India is a secular nation and therefore every citizen residing within the territory of India has the right to follow the religion he believes in . A secular State is one where the State has no official religion. In S. R Bommai v. Union Of India[1] , the Supreme Court has held that “Secularism is a basic feature of the Constitution.” The State treats equally all religions and religious denominations. Religion is a matter of individual faith and cannot be mixed with secular activities.

 This right basically entitles every Indian citizen and gives him the liberty to preach, practice and propagate the religion of his choice . This right also provides him the leisure to  sermonize about his religion , gives the opportunity to spread it among everyone without any fear of governmental intervention. But at the same time the State expects that the citizens practice it amicably within the jurisdiction of the country[2] .

When we talk about India, we can say that it is the land of diversity be it in terms of race, religion, creed, community ,caste etc. It is a country where millions of people belonging to different caste, sub –caste, race, dialects ,and also those practicing different religions have been residing since times immemorial. The differences when it comes to communities or religion or caste are not at all looked upon as a drawback or impediment when it comes to development but it is considered to be a crucial factor which serves as a helping hand in enriching the culture not only in the society but also in the nation as a whole[3].

India is absolutely neutral, unbiased and impartial when it comes to exercising ones religious beliefs. The Constitution ensures that no citizen is deprived of this right to profess the religion of his choice peacefully within the Indian territory. The Constitution has high regard and gives utmost importance to the concept of Secularism. Secularism has great significance and also enjoys dignified recognition in the eyes of law. The 42nd Amendment of the constitution inserted the word ‘ Secular’ in the preamble.[4]

Every person has the freedom to have faith in the religious beliefs of any particular cult or denomination. The allocation of this right according to the constitution is mainly to provide every person with an occasion to declare in open and without any hesitation what he truly feels about his respective religion. This right  also helps  him to be vocal about  his conceptions and ideologies relating to the religious practice he indulges himself into. The right to profess a particular religion means enabling a person to communicate his thought process , mindset and viewpoints to some other people with an intention to spread his religion and make them well versed with the concept and theory of his religion. Though every person is entitled to the right to preach and expand the religion of his own wish  and desire but it is also to be taken into account that this right shouldn’t be taken for granted, that means  , the freedom allotted should not be abused . The person while exercising this right should ensure that he is not indulging in any sort of criminal or other anti- social activities. One needs to always bear in mind that, in the process of  utilizing this freedom for one’s own personal good or benefit the societal peace is not at all hampered and no harm or any kind of pain is inflicted upon any member in the society[5]. He needs to confirm that while exercising this right given to him by the constitution he does not hurt the religious sentiments of the other devotees. Everyone has a different approach when it comes to practicing their religion but at the same time  it is disallowed to practice it in a manner which will incite violence and encourage hatred among the masses. It is important for every citizen to respect the religion as well as the religious feelings of others prevailing in the society at large. The law does not permit any citizen to impose his religious views or opinions on other individuals . Every citizen is expected to preach his religion in a rational manner .Immersing into immoral and illegal activities in the name of religion and disturbing the order and unity of the country is not permissible. No citizen would go scot free if he is found guilty of committing any kind of evil or dishonest activities in the name of following the norms and rituals of his religion. The law does not sanction any person to conduct his religious practices pertaining to his own whims and fancies and leading to create a situation of outrage , chaos and animosity .  It is an undeniable fact that every individual has its own ways and means to practice his religion , but it shouldn’t proceed in an arbitrary fashion. An individual is not answerable to State for the variety of his religious views. The right of worship was granted by God for man to worship as he pleased. Law cannot compel any individual to practice a particular form of worship.[6] But undoubtedly the law has the right to cease the practice of any kind of malicious and corrupt religious activities being carried on, for the purpose of maintaining order and discipline in the country. When a person adopts an illegal way of practicing or promoting his religion, it sets a bad example for the existing masses as it conveys to them that everyone is entitled to exercise the freedom of religion allocated to them , in any manner even though it might be unlawful and unethical in the eyes of law. Every religion has its own code of conduct, rituals, ceremonies  modes of worship etc, but while following and obeying the same an individual should take into account that decency and  morality is maintained .  He needs to be aware that  the religious activities he resorts to does not give rise to any kind of conflict and cause destruction of the property and life of the people in the society. Law will take the requisite steps and measures if at all any acts endangering the safety and unity of the country is projected in its eyes.

Article 25 to Article 28 of the Indian Constitution guarantees the right to freedom of religion to all the citizens residing  within the territorial boundaries of the country.

  1. Freedom of conscience and free profession of religion.( Article 25)
  2. Freedom to manage religious affairs (Article 26)
  3. Freedom from payment of taxes for promotion of any particular religion( Article 27)
  4. Freedom to attend religious instructions ( Article 28)

In Mohd . Hanif Quareshi v  State of Bihar[7] the petitioner claimed that the sacrifice of cows on the occasion of Bakri-Id was an essential part of his religion and therefore the State law forbidding the slaughter of cows was violative of his right to practice religion. The Court rejected this argument and held that the sacrifice of cow on the Bakri-Id day was not an essential part of the Mohammedan religion and hence could be prohibited by State under clause (2) (a) of Article 25.

In L. T .Swumiar v Commr. H.R.F . Madras[8]  it has been held that even if a tax is imposed on persons belonging to a particular religion, in order to meet the expenses of that particular religion , such tax is void.

Religious Conversion

The Court agreed with the law laid down by J. Chagla , in Robasa Khanum vs. Khodabad Irani’s [9]case , wherein the learned judge has held that the conduct of a spouse who converts to Islam has to be judged on the basis of the rules of justice equity and good conscience.

It was further observed that , looked from another angle , the second marriage of an apostate – husband would be in violation of the rules of natural justice . Assuming that a Hindu husband has a right to embrace Islam as his religion , he has no right under the Act, to marry again without getting his marriage under the Act dissolved. The second marriage after conversion to Islam , would, thus , be in violation of the rules of natural justice and as such would be void.  The Court remarked that all the ingredients of Section 494 IPC were satisfied in this case, and therefore the offence of bigamy had been committed.

The Court was of the opinion that many Hindus have changed their religion and have become converts to Islam only for the purposes of escaping the consequences of bigamy. Since monogamy is the law of the Hindus whereas the Muslim law permits  as many as four wives , errant Hindu husbands embrace Islam to circumvent the provisions of the Hindu law and to escape from penal consequences. A marriage solemnized under a particular statute and according to one personal law cannot be dissolved according to another personal law , simply because one of the parties has changed his or her religion.

In Sarla Mudgal V. Union Of India[10], the questions which had come up for consideration of the Supreme Court , where four petitions were filed under Art 32 of the Constitution Of India were:

  1. Whether a Hindu husband who has been married under the provisions of the Hindu Marriage Act, by embracing Islam is in a position to solemnise a second marriage?
  2. Whether such a marriage without even having the first marriage dissolved, can be said to be a valid marriage under law, when the first wife continues to be a Hindu?
  3. Whether the husband can be charged with the offence of bigamy under Section 494  of the Indian Penal Code?

Section 494 IPC

Marrying again during lifetime of husband or wife.—Whoever, having a husband or wife living, marries in any case in which such marriage is void by reason of its taking place during the life of such husband or wife, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.

After hearing the arguments the Court observed that, under the traditional Hindu Law the doctrine of indissolubility of marriage  gave absolutely no recognition to the fact that conversion would have the effect of dissolving a Hindu marriage. Conversion to any other religion by either one or both the spouses is not at all a ground to have the marriage dissolved.

 The Court took into account that the Hindu Marriage Act envisages only monogamy and clearly states that a person married under the act in no way can escape the provisions by merely changing the religion. Such a person is held guilty of having committed the offence of bigamy if he marries again during the lifetime of his spouse, and it matters not what religion he professes at the time of the second marriage.

“The Constitution provides for Freedom Of Religion, Not Freedom From Religion.”

Section 17 in The Hindu Marriage Act, 1955

Punishment of bigamy :Any marriage between two Hindus solemnized after the commencement of this Act is void if at the date of such marriage either party had a husband or wife living; and the provisions of sections 494 and 495 of the Indian Penal Code (45 of 1860), shall apply accordingly.

Conclusion

Religion occupies a vital place in the human lives. Granting  religious freedom permits different beliefs, opinions, deductions that people have in accordance to their own religion, to bloom as well as develop in the society[11] . It plays an integral part in influencing the minds of the people. It also plays an indispensable role especially in the Indian society in governing the conduct as well as the behaviour of the people. Indians are extremely possessive when it comes to their religion and they become alert as soon as any person tries to hinder it or create an obstacle in their journey of religious worship.

But also at the same time while discharging this fundamental right given to us, it is essential to take under advisement that it should not interfere with the peace and harmony of  the society . It is important to take into consideration the repercussions that will take place if this right is taken for granted .To avoid any kind of future jeopardy or conjecture among our fellowmates it is pivotal to maintain some decorum while exercising this right, to understand the underlying importance and the reason for the allocation of this right, which is mainly to maintain the unity and togetherness in the country and avoid any kind of hassle on the ground of religion between our own brothers and sisters.  At times citizens showing an extreme level of concern towards their religion in the due course of professing it ,end up in making the people around feel offended, which in turn might aggravate or provoke them to take steps  which may also result in breach of public peace and lead to consequences creating enmity among everyone in the society. It is undoubtedly a fundamental right which the constitution guarantees for the smooth working and progress of the country, so that all the citizens have the liberty to practice the theories and tenets they believe in , and is also a right which they at any cost cannot be deprived of, but it is  at the same time necessary to ensure that we act in a feasible and to be precise humane manner. Law gives all the Indian citizens the sanction to practice this right in order to strengthen the harmony and oneness in the country, but at the same time the State has the right to interfere when the abuse or any kind of wrong usage of this right takes place in the society.

We, the citizens of India are under a constant obligation to utilize this  Freedom Of Religion in a civilized manner for having been provided with a Right to preach it.”

“Right to freedom of religion is not only a right guaranteed by the constitution , but also at the same time is a duty expected to be followed, for the betterment and overall growth of the society.”

Citation/References:

[1] AIR 1994 SC 1918

[2] http://www.iloveindia.com/constitution-of-india/right-to-religion.html

[3] http://www.importantindia.com/270/article-on-unity-in-diversity-in-india/

[4] ww.importantindia.com/2025/right-to-freedom-of-religion-in-indian-constitution/

[5] http://courses.cs.vt.edu/cs3604/lib/Freedom.of.Speech/International/india.secularism.html

[6] Constitutional Law Of India- Dr J. N Pandey

[7] AIR 1958 SC 731

[8] A.IR 1952 Mad. 613

[9] Equivalent citations: (1946) 48 BOMLR , AIR 1947 Bom 272

[10] https://indiankanoon.org/doc/733037/.Citation AIR 1995 SC 1531

[11] http://www.mormonnewsroom.org/article/why-religious-freedom

About Author:

IMG-20151231-WA0003

Nirali Parekh,

B.LS.LL.B Student at Pravin Gandhi College of Law

 

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