This Article is written by Priti Vijay kawhale, a Fourth Year Law Student of Manikchand pahade law college Chhatrapati Sambhaji Nagar

Abstract

“India has a great heritage and it is a model for religious harmony where people of different religions live peacefully and in harmony.” It is said by Dalai lama.

India is known as a secular country. In several cases, the Apex Court has held that secularism is the basic structure of the Constitution, the most important being the Kesavananda Bharati case. People in India mainly practice Islam, Hinduism, Jainism, Buddhism, Sikhism, and, Christianity. In India, there are religion-specific laws and Goa is the only state to have a Uniform Civil Code known as the Goa Civil Code. The Constitution supports religious harmony which means the people of India show love and affection to different religions of the country.

Introduction

Religion is a matter of belief and faith. Secularism means developing, understanding, and respect for different religions. In India, the term ‘secularism’ was introduced in the year 1976 by the 42nd Amendment of the constitution. In India, there is no discrimination in the treatment of any religion. Religious freedom is a fundamental right in India. Indian constitution provides the right to freedom of religion under article 25, article 26, article 27, and article 28. One cannot discriminate based on religion. Providing these rights shows the policies of our Constitution but what secularism is? Dharm nispekshta. This means Government on behalf of the state must not differentiate between the religious communities because doing so after declaring ourselves secular will affect our harmony and respect in a global world. India is a country that has the status of a secular state as mentioned in its constitution. But some problems exist practically on the ground level and the primary of them is politics.

Non-separation of politics from religion is a serious issue because it is said that if politics and religion mix it will violate the neutral nature of the state.

What is secularism?

In the Indian panorama, secularism does not mean the separation of religion from the State. Instead, the Constitution gives fundamental rights and freedom to religion and ‘religious practices’, subject to the restrictions, which the Constitution itself has laid down. The State protects all religions, and its practices, neutrally.

Secularism safeguards freedom of religion or belief and ensures that the government does not favour any particular religion or impose religion on its citizens.

A secular state seeks to ensure and protect freedom of belief and practice for all citizens. Secularists want freedoms of thought and conscience to apply equally to all – religious believers and non-religious alike.

The principles of secularism which protect and underpin liberal democracy and many of the freedoms we enjoy are:

Equality so that our religious beliefs or lack of them don’t put any of us at an advantage or a disadvantage.

Freedom to practice one’s religion or belief without harming others, or to change it or not have one, according to one’s conscience.

Separation of religious institutions from state institutions and a public sphere where religion may participate, but not dominate.[1]

What is Religion?

If we consider God, an eternal question before mankind, then religion is its answer. Hinduism views religion very differently, it may appear polytheistic from the surface and some may describe it as henotheistic which means without denying the existence of other gods worship a particular God, it believes divinity exists in everything and everyone, it is all-pervasive and omnipresent. The Britannica encyclopedia describes religion as, that which human beings consider “holy, sacred, absolute, spiritual, divine, or worthy of special reverence”, it is understood as a relation between man and the divine, and the believers of respective religions join together “to perform devotional or contemplative practices” known as rituals.[2]

Constitutional framework of Freedom of Religion

The Indian Constitution, therefore, provides a mechanism to discover and spread one’s beliefs. Indian Constitution believes that every citizen in India has a basic level of conscience and allows him to discover the full potential of this conscience and establish his relationship with God or his divine and therefore guarantees certain fundamental rights with certain restrictions, these freedoms are covered under Article 25, 26, 27, 28.

Article 25: provides freedom of religion to all people, however subject to public morality, order, health, and morality. It states that every person has a right to profess, practice, and propagate their religion. This article declares that the Right to freedom of religion is a fundamental right.

Article 26: provides freedom to manage religious affairs. It includes building temples and maintaining institutions for religious and charitable intents. And also managing the religious ceremonies.

Article 27: prohibits the imposition of taxes on grounds of religion. It states that no person shall be compelled to pay any taxes for the promotion of a particular religion.

Article 28: provides for freedom to attend religious instruction in certain educational institutions. It states that it completely depends upon the individual’s will whether to receive the religious instructions provided in the educational institutions or not. It is not mandatory and they can waive it if it goes against their religion.[3]

Religion is a fundamental part of human dignity. For many adherents, it is far more than a mere lifestyle choice, it is the deepest part of who they are. To violate a person’s religious freedom or require them to act against their religious beliefs or practices violates the very core of that person’s being.

Secularization reflected a move away from religion as a dominant source of social mores in the Western world. As well, it is characterized by the rise of individualism, where the individual is more important than the community.

“If a man reaches the heart of his religion, he has reached the heart of the others too. There is only one God, and there are many paths to him.” – Mahatma Gandhi.

Indian Model of Secularism:

Positive Secularism: India follows a positive or inclusive model of secularism, which involves equal respect and support for all religions by the state.

Equal Treatment: The Indian Constitution guarantees freedom of religion to all citizens and prohibits discrimination based on religion.

State Intervention: The Indian state can intervene in religious matters to ensure equality and social justice, as seen in reforms like banning untouchability and triple talaq.

Equal Representation: The Indian government allows religious communities to manage their affairs and institutions while also providing support for religious minorities.[4]

Judicial Decision based on the right to freedom of religion

Bijou Emmanuel v/s State of Kerala (called as National Anthem Case):

In this case, three children of a school did not sing the national anthem, however, they stood during the anthem. The principal of the school expelled them for disrespecting the national anthem. The Kerala High Court held that the right to freedom of religion under Article 25 is a fundamental right and it includes the Right not to sing the National Anthem. The right to freedom of religion is a fundamental right that cannot be infringed.

Shayara Bano v/s Union of India:

This is a landmark case in which the apex court of the country held that the practice of Triple Talaq is unconstitutional and violative of different Articles including 21, 15, and 14 of the Indian Constitution. The five-judge bench a majority held that Triple Talaq is not an essential part of Islam and therefore, it is unconstitutional. Consequently, the practice of Triple Talaq was banned in India.[5]

M Siddiq (D) Thr Lrs v. Mahant Suresh Das & Ors, 2019

This case is popularly known as the “Ayodhya Dispute Case”. This case completely revolves around the possession of Ayodhya which was claimed by the Hindus as Ram Janmabhoomi, the birthplace of Lord Ram, and by the Muslims as the city which locates Babri Mosque. The Hindus believed that the believe that Babri Mosque was built by demolishing a temple that existed there before the establishment of the mosque. The major issue was whether a previous Hindu temple was demolished or modified to construct a mosque by Babur. The Supreme Court granted the entire 2.77 acres of disputed land in Ayodhya to the deity Ram Lalla. The Supreme ordered the Union government to create a trust in 3 months for the construction of Ram Mandir. It was found that the structure below the disputed site was not an Islamic structure. The court declared that the Hindu's belief regarding the land to be the birthplace of Lord Rama can not be challenged. Finally, on 9th November 2019, the Supreme Court ordered the surrender of the land to the trust for constructing Ram Mandir. At the same time, it ordered the government to donate 5 acres of land within the limits of the Ayodhya city to the Sunni Waqf Council for building a mosque. Therefore, secularism is portrayed in the Supreme Court's judgment.[6]

Shirur Matt Case:

In this case, the Supreme Court introduced the “Doctrine of Essentiality.” The court held that only religious practices considered essential and integral to a religion would be protected under Article 25 of the Indian Constitution. The case involved a dispute regarding the rights and management of a Hindu religious institution.

Indian Young Lawyers Association Case (2018):

In this case, the Supreme Court affirmed that the right to religious freedom, guaranteed under Article 25 of the Indian Constitution, must be exercised in a manner consistent with the provisions of Part III (Fundamental Rights). The case pertained to the entry of women of menstruating age into the Sabarimala Temple in Kerala.[7]

UNIFORM CIVIL CODE

The Uniform Civil Code (UCC) is defined in our Constitution under Article 44 of Directive Principles of State Policy. It states that the state must secure for the citizens a Uniform Civil Code throughout the territory of India. It is the common set of governing rules for all citizens of India which refers to replacing personal laws (based on religious scriptures and customs). These laws are famous in public law and cover marriage, divorce, inheritance, adoption, and maintenance. Goa is the only state which has a common family law and the 1954 Special Marriage Act allows any citizen to marry outside the realm of any special religious personal law.

The UCC aims to protect vulnerable sections as envisaged by Ambedkar including women and religious minorities, while also promoting nationalistic fervor through unity. When enacted the code will work to simplify laws that are segregated at present based on religious beliefs like the Hindu code bill, Shariat law, and others. The code will simplify the complex laws around marriage ceremonies, inheritance, succession, and adoptions making them one for all. The same civil law will then apply to all citizens irrespective of their faith.

Sarla Mudgal Case

This is the second instance in which the Supreme Court again directed the government under Article 44. In this case Sarla Mudgal v Union of India, the question was whether a Hindu husband, married under Hindu law, by embracing Islam can solemnize second marriage. The Supreme Court held that adopting Islam for a second marriage is an abuse of Personal laws. Further said that Hindu marriage can be dissolved under the Hindu Marriage Act, 1955 i.e. merely by converting to Islam and marrying again does not dissolve the marriage under Hindu Marriage Law and thus will be an offense under Section 494[5] of the Indian Penal Code.[8]

Conclusion

India has been inherently secular and still tries to follow the footsteps of its ancient past to maintain cultural and religious freedom the western principle of secularism is of no actual relevance to India, but the presence of the word “Secular” is a great idea to be included, it underlines the commitment of Indians to diversity. The criticism of the Essential Practice test may have some substance but given the vast diversity in India in terms of religion, the courts must adjudicate matters of controversy as they may turn into greater disasters if just left to the people to decide. The right to freedom of religion is given under Articles 25-28 of the Indian constitution. These articles along with the judicial pronouncement signify how one can freely practice, propagate, and profess the religion of your choice subject to certain limitations. This article deals with the meaning, provisions, and related case- laws on the right to freedom of religion.

References

1. https://unacademy.com/content/nda/study-material/general-knowledge/an-overview-on-right-to-freedom-of-religion/#:~:text=Legal%20provision%20of%20Right%20to%20freedom%20of%20religion&text=Article%2025%20provides%20freedom%20of,practise%2C%20and%20propagate%20their%20religion.

2. https://legalcyfle.in/freedom-of-religion-and-secularism-in-india/

3. https://chahalacademy.com/right-to-freedom-of-religion

4. https://www.jagranjosh.com/general-knowledge/why-uniform-civil-code-is-necessary-for-india-1477037384-1

5. https://articles.manupatra.com/article-details/Freedom-of-Religion-under-Indian-Constitution

6. https://www.secularism.org.uk/what-is-secularism

[1]“Secularism explained (equal treatment and freedom of belief for all)” from National Secular Society

[2] “Freedom of Religion Under Indian Constitution” from Manupatra (17 march 2022)

[3] “An Overview On Right To Freedom Of Religion” from Unacademy

[4] “Model of Secularism” from Chahal Academy

[5] Judicial Decision (An Overview On Right to Freedom Of Religion) from Unacademy

[6] “Freedom of Religion And Secularism In India” from LegalCyfle (July 19, 2024)

[7] “Right to Freedom of Religion” from Chahal Academy

[8]“ What is Uniform Civil Code?” From Jagran Josh