The right to freedom of religion and the uniform civil code

THIS ARTICLE WAS WRITTEN BY SIDDHI SUMAN A STUDENT OF HIDAYATULLAH NATIONAL LAW  UNIVERSITY.

Abstract:

India prides itself in being a secular state, a state which recognizes all religions and yet does not grant any special status to any religion, neither is any religion recognized as a state religion. This paper tries to explore all aspects of this freedom of religion in the modern era, and the question of uniform civil code, which is raised every time, the minority claims the secularism and freedom of religion being abrogated whenever the issue of implementation of uniform civil code is brought forth and this paper tries to deal with this issue. The first and second parts explore the secularism principle and the freedom of religion and the last part tries to reconcile the two with the implementation of a uniform civil code.

SECULARISM:

Secularism has been historically defined as the separation of church and state and the non- interference of state in church matters, and giving the right to everyone to practice and profess their religion of choice. In India, secularism is a constitutional mandate, echoing directly and indirectly in the provisions of the constitution since its formulation.[1] In the context of India, it basically connotes treatment of all religions on a footing of equality and ruling out any discrimination. Hence, secularism means separation of the state, politics and non-religious areas of life from religions and religions being treated as a purely personal matter (Chandra, 2008). So, when India is said to be a secular state, it only means that the state will not identify itself with any particular religious faith and that no person shall suffer any disability or discrimination on the basis of religion.[2]

The concept of secularism was made explicit through the 42^nd amendment when it was directly inserted into the preamble, this move by the Indira Gandhi govt., was challenged in S.R. Bommai,[3] who challenged it as violative of the basic structure, to which the supreme court said, secularism was always there in the constitution, it was just made explicit by the amendment and not a new principle. To underline the significance of secularism, the Supreme Court in the same case, declared secularism as a basic principle of the constitution. This was further highlighted in the landmark judgment of Ismail Faruqui[4] by Justice Verma, “The constitution guarantees equality in the matter of religion to all individuals and groups irrespective of their faith emphasizing that there is no religion of the state itself. The preamble read with the articles 25-28 emphasize this aspect and indicate the manner the concept of secularism embodied in the constitution has to be understood, any step inconsistent with constitutional policy is in plain words, unconstitutional.”

As to what is secular and what is non secular in practice is a question of fact, the teaching of Sanskrit as an elective course is not against secularism[5], nor is the teaching of tenets of all major religions across the world.[6] The concept of secularism is not static and cannot be bound in words as definitive or fixed, it changes as the practice of religions change, as the views change, and more importantly, as the socio-political landscape of the country changes. For it is the politics which defines secularism in any given era, the country’s masses aren’t concerned with the definitive practice of secularism or freedom of religion unless their freedom is encroached upon, it is the political masters who choose to be secular or communal as the time permits. So, theoretically the principle of secularism in India, thus gives the right to every citizen the freedom to practice their religion and guarantees state non-interference in the matters of religion. This principle of secularism has been embedded in several provisions of the constitution as we shall see further.

THE FREEDOM OF RELIGION:

The constitution guaranteed the freedom of religion to all persons; however the term religion itself has not been defined by the constitution. However the Supreme Court in lakshmindra[7] observed, “Religion is a matter of faith with individuals or communities and need not be theistic, there are well known religions in India which do not believe in God or in any intelligent first cause like Buddhism and Jainism.”

Under article 25, the fundamental right to freedom of religion confers upon all persons, the freedom of conscience and the freedom to profess, practice and propagate religion subject to public order, morality, health and other provisions of this part.[8]  The terms herein contained need to be explored fully in order to understand the true implications of the freedom granted to us, the freedom of conscience and religion have three important characteristics granted to them, the freedom to practice, the freedom to profess and the freedom to propagate their religion.

The freedom to practice one’s religion means that all persons subject to the restrictions imposed have rights not only to entertain any religious beliefs as they want to, but also to exhibit such belief in any outwardly act as he thinks proper.[9] However the courts have placed one further restriction on such practice, that it should be an essential part of their religion, it must be so integral that the practice of religion becomes incomplete without it. This caution was put on by the courts to protect religion as well as to remove the cover from purely secular activities as religious.[10] So in effect what practice of religion is secular is to be determined by the court and shall be on a case to case basis, based on facts. The Supreme Court has observed in this connection that what constitutes an essential religious practice, will be tested on the fact whether the community practicing it treats it as such or not, the court will enquire into it and based on the evidence shall determine the practice.[11]

In this regard the courts have found the appointment of archakas to be a secular practice, and not an essential one,[12] and the cow slaughter on bakr id not to be an obligatory part of the festival or the religion;[13] in the same vein purdah was held not to be an essential part of Islamic law[14], and performance of tandava dance during a procession by a denomination under the hindu religion was held not to be an obligatory practice.[15]

The freedom of religion also gives the right to profess and to propagate that is the right not only to practice but also to preach, to disseminate ideas and views for the benefit and education for others. The right to propagate is not to convert a person but to transmit or spread one’s religion by exposition of its tenets, so a challenge to anti conversion laws which aimed to prohibit forced civil conversions and reconversions failed.[16]

The restrictions on these rights being public order, health, morality and other fundamental rights shed light upon the method of practice of this essential freedom. Public order shall be something which affects the public at large, thus restriction of the use of loudspeakers[17] or the timing of bursting firecrackers[18] in advancement of public order was held not to be violative of freedom of religion.

The disqualification of persons on the basis of their number of children from the position of sarpanch and other municipal posts was challenged to be violative of the freedom of religion of Muslims, the legislation was upheld as protective of health of females and thus well within the restriction of freedom of religion.[19]

Further the right to freedom is restricted by other freedoms, this does not mean that the freedom of religion will be subject to other freedoms rather that it shall be read be with the other freedom and the freedom of religion of one person shall not encroach upon the fundamental rights of others, this has been time and again held by laws and the supreme court and the doctrine today rests as the freedom granted to one shall be granted to all.

The right to freedom of religion does not prevent the state from making any law which seeks to regulate or restrict any economic, financial, political or other secular activity associated with  religious practice[20] and further for providing any social welfare or reform or throwing open Hindu religious institutions of a public character to all classes and sections of Hindus.[21] These articles were formulated to regulate the freedom of religion, the freedom being particularly expansive in nature, it needs to be differentiated what is religious practice and what are the associated practices, what is religious can’t be regulated but the other practices can be. The question of what shall constitute religious practice goes back to the essentials of the religion, what is essential is religious practice, others are not. Administration of religious property is a secular activity and can be regulated by law.[22] Article 25(2) (b) was incorporated in the constitution to remove the barriers of caste and to remove the untouchability phenomena. This section takes public to be all public and sections of the public as well, so it would not just include public as a whole and institutions therein but even those which are founded for a section of the public.[23]

Articles 26, 27 and 28 supplement the freedom of religion by giving the freedom to manage religious affairs[24], freedom as to payment of taxes for promotion of any particular religion[25] and the freedom to attend any religious instruction or worship in certain educational institutions.[26]

One issue that has been repeatedly put forward by the politico legal pundits, is that, the constitution on one hand guarantees the freedom of religion, and on the other directs the government to enforce uniform civil code on the other, which seems contradictory. On the risk of sounding religiously immature and for the simplicity of looking at the issue from a purely legal perspective, let us divide the society into two religious groups, the majoritarian group, or the personal laws of whom have been codified, namely the Hindus, Sikhs, Buddhists, Jains (all under the legal definition of Hindu) and the minority, the Muslims, whose laws haven’t been codified. Now the majoritarian group would seek to have the uniform civil code implemented, basing their plea on the discrimination based on religion, they could thus say, that by reading Article 25 in its totality, read with Article 14, the tenet of equality, the uniform civil code should be made applicable to everyone, and in pursuance of article 44 which directs the government to enact a uniform civil code, it should be done at the earnest. On the other hand, the minority group would suggest that the freedom of religion given to them could mean no interference in their religious affairs and the right to profess, practice and preach their religion.

So the legal question arises as to where is the solution? Does their exist a middle path to this and indeed there is one. Putting things into perspective, uniform civil code does not seek to regulate the religious affairs of any religious group. It seeks to regulate the personal laws of the minority group by enacting legislations for succession, marriage and adoption, now essentially these are not integral religious practices in any religion. These practices are ancillary, and thus government is not prohibited to bring laws regulating these issues.

As we have seen above, the freedom of religion only protects the essential and integral parts of the religion and not the non-essential, secular practices related to religion. Further, there it may be noted that government as per policy is entitled to bring any legislation which could remove the sufferings of the women or the downtrodden in these minority religions and thus it should be brought in. thus the law does not offer any difficulty in bringing about the necessary social reforms even if in terms of uniform civil code, however as seen in the past year the supreme court has declined to get itself involved in the question of uniform civil code and tossing the ball into the parliament’s court[27]. The problem thus is political and societal, political as in when the law makers or politicians cater to vote banks and social because religious teachers and the people in general refuse to look outside the prism and distinguish between a religious practice essential to the religion and social, political and economic practices linked with religion.

[1] M P Jain, “Indian Constitutional Law”, Lexis Nexis Buttersworth, 1316.

[2] Md Musa Ali, SECULARISM IN INDIA: CONCEPTS, HISTORICAL PERSPECTIVE AND CHALLENGES, Asia Pacific Journal of Research Vol: I. Issue XXIV, February 2015, ISSN: 2320-5504.

[3] S R Bommai v. Union of India, AIR 1994 SC 1918.

[4] M. Ismail Faruqui v. Union Of India, AIR 1995 SC 604.

[5] Santosh Kumar v. Secretary, Ministry of Human Resource Development, 1994 6 SCC 579.

[6] Aruna Roy v. Union of India, 2002 6 (SCALE) 408.

[7] Commr, HRE Madras v. Sri Lakshmindra, AIR 1954 SC 282.

[8] Article 25(1), The constitution of India, 1950.

[9] Ibid.

[10] Ibid.

[11] Tilkayat Shri GovindlalJi Maharaj v. State of Rajasthan, AIR 1963 SC 1638.

[12] E R J Swami v. State of Tamil Nadu, AIR 1972 SC 1586.

[13] M. Hanif Qureshi v. State of Bihar, AIR 1958 SCC 731.

[14] M. Ajmal Khan v. Election Commission, 2007 1 MLJ 91.

[15] Jagdishwaranand v. Police commr, Kolkata, AIR 1984 SC 51.

[16] Rev. Stanislaus v. State of Madhya Pradesh, AIR 1977 SC 908.

[17] Church of God In India v. K.K.R.M.C. Welfare Association, AIR 2000 SC 2773.

[18] In Re Noise Pollution, (2005) 5 SCC 733.

[19] Javed v. State of Haryana, (2003) 8 SCC 369.

[20] Article 25(2)(a), The Constitution of India, 1950.

[21] Article 25(2)(b), The Constitution of India, 1950.

[22] Sardar Swarup Singh v. State of Punjab, AIR 1959 SC 860.

[23] Sri Venkataramana Devaru v. State of Mysore, AIR 1958 SC 255.

[24] Article 26, The constitution of India, 1950.

[25] Article 27, The constitution of India, 1950.

[26] Article 28, The constitution of India, 1950.

[27] http://indianexpress.com/article/explained/in-fact-equality-freedom-the-key-issues-in-continuing-uniform-civil-code-debate.