AUTHORED BY: THIS ARTICLE IS AUTHORED BY GARV SINGH, A 4th YEAR LAW STUDENT PURSUING LAW FROM AMITY LAW SCHOOL, DELHI, IP UNIVERSITY.
INTRODUCTION
India is a secular state as inscribed under the constitution as well under the preamble of the constitution, which means it is a state which observes an attitude of neutrality and impartiality towards all religions. India also has regarded the term “SECULARISM” as one of the core fundamentals of the state which forms the basis of its governance. It also means that it does not focus on or regard higher value for any particular religion per se as is, in with some of the middle east countries which regard only one particular religion and orders the citizens of those countries to follow and abide by that religion only. For example: Islam in Saudi Arabia, Iran.
In this way, India holds a very high pedestal in terms of its constitutional policies and practices, which thereby connotes no arbitrary powers given to the government, no stagnation of powers in few hands, no religion dominating itself over other, etc.
But the real question which comes up here is that are all these constitutional policies/ mandates only there on paper or does the government affectively takes a stand in order to provide the citizens of the country to all the rights which they richly deserve being the citizens in the very first place, and also provides the basis of rationalising their own judgments in the light of there own views and beliefs without anyone else’s mode of thought.
What is freedom of religion?
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 they believe in.
This right essentially allows every Indian citizen and provides them the freedom to Preach Practice and Propagate the religion of their choice . This right also offers the freedom to preach about the religion one practices, and also offers them the opportunity to spread it among all without any fear of governmental reprisal and also provides them with the assurance to practise it in a harmonious way and not opposing any law pertaining to its functioning.
Freedom of religion as covered under the ambit of the constitution of India is covered under the most important rights known as ‘fundamental rights’ of the constitution. Freedom of religion is covered from articles 25 to 28 of the constitution which talks about the essential rights of the citizens pertaining to practicing, professing, and preaching of religion in India.
1. Article 25: Freedom of conscience and free profession, practice, and propagation of religion: For example on the issue concerning use of loudspeakers for religious purposes under the famous case of Moulana Mufti Syed Md. Noorur vs State Of West Bengal.
2. Article 26: Freedom to manage religious affairs: For example, the sects to manage their own matters of religious affairs, own and acquire moveable and immoveable property and administer such property in accordance with the law.
3. Article 27: Freedom as to payment of taxes for promotion of any particular religion: it prohibits forcing anyone to pay any taxes on revenues that are used in payment of expenses for the promotion or maintenance of any religion or section. For example, donations in temples that are used for the upkeep of temples cannot be taxed.
4. Article 28: Freedom as to attendance at religious instruction or religious worship in certain educational institution.
There has been some famous cases in India, where the question of religious freedom got in way of unethical practices being followed in order to practice it, a couple of it are as follows:
In, Mohd. Hanif Qureshi v. State of Bihar, the Supreme Court of India was called upon to decide whether the cattle slaughter laws of Bihar, Uttar Pradesh, and Madhya Pradesh infringed on the fundamental rights of the petitioners guaranteed under articles 14, 19(1)(g) and 25 of India’s Constitution.
It was argued on behalf of the petitioner that the sacrifice of a cow on the Bakri- Id day was a part of the Muslim religion and also approved by the Quran. Nevertheless, the Supreme Court rejected this contention on the ground that satisfactory evidence to support it had not been produced.
However, the Court held that a total ban on the slaughter of “useless cattle,” which “involves a wasteful drain on the nation’s cattle feed which is itself in short supply and which would deprive the useful cattle of much needed nourishment, cannot be justified as being in the interests of the general public.” Therefore, the Court held that a total ban on the slaughter of bulls, bullocks, and she-buffaloes after they had ceased to be useful was invalid under the Constitution.
Also, In The Commissioner, Hindu vs Sri Lakshmindra Thirtha Swamiar it has been held that even if the tax is imposed on persons belonging to a particular religion, in order to meet the expenses of that particular religion , such tax is void and cannot be imposed on that person.
Interference by the state in religion:
As I mentioned above how and why there is a dire need for the fundamentals of religion to be preserved and that how it is necessary for the state to only come in between the individual and there religion or religious beliefs only when the matter is of grave public importance or opposing the good conscience or morality or law.
But as we all know that in India most of the statutes and laws are only there on paper and strict implementation of them are far from reality. And so has this fundamental power of the state in which the state, through its own whims and fancies interfere in the matter of religion of a particular minority religion or controls the majority of religion based on the governments which function on the basic philosophies of religion which it primarily follows.
So now a very important question arises that should the state allow discrimination, marginalization, degradation, oppression, or persecution by influential religious institutions, or instead make sure that those within all the religious society lead into a free, respectable life? My opinion on this completely certain and clear. The government must, although with great care and sensitivity, intervene only in established religious practises to prevent any hard, rigid practices of dominance under it for a long period of time.
To the question, should governments leave matter of faith and religion alone, the answer simply has to be a decisive ‘YES’. Not herein implying that the government’s intervention is always unwarranted. For example, if there are some very historical religious rituals that involves killing of other human beings (human sacrifice), then states should certainly intervene. The point is that there must be a general presumption that governments must not interfere in faith in their own unique arbitrary ways.
The Shah Bano Case
Popularly known as the Shah Bano case is seen as one of the legal milestones in the Muslim women’s struggle to protect their rights. It clarifies the extent to which a court can interfere in the Muslim Personal Law.
How did the state interfere in the case?
At that time the Congress government, headed by then Prime Minister Rajiv Gandhi, overturned this Supreme Court’s landmark judgment in 1986 by passing the Muslim Women (Protection on Divorce Act).
The new Act laid down that the maintenance is only liable for the iddat period and that the courts only had the power to direct the Waqf Board for providing alimony to an aggrieving wife who is not able to make a living for herself. Even though Shah Bano’s lawyer challenged the Act’s constitutional validity, the apex court upheld its decision , saying the liability cannot be confined to the period of iddat. Shah Bano later withdrew the maintenance claim she had filed.
Everyone at that time had denounced Rajiv Gandhi for the reverse political tactics in the Shah Bano case and have viewed it as a move to satisfy minorities for votes by giving in to the orthodox Muslim clergy, even if at the expense of gender inequality, justice and good and moral conscience.
CONCLUSION
Hence as mentioned above India is a secular nation in terms of the constitution but a semi-secular body when it comes up to the real-life interference in the matter of religion. As I also mentioned that there is no need for the state to interfere in the religion of people until there is a dire need of amendment towards morality of justice and where moral conscience is at stake. In my opinion the only answer to this lies in the strengthening of the Indian judiciary, its only this tier of the government which can protect the sovereignty of religion in India as well as protects all the other constitutional mandates of the nation. If the judiciary is strong and passes judgments and orders which curbs the interference of anyone in the freedom of religion then no authority or power can challenge that.
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