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- Balaji P Nadar
An analysis of legal provisions and its implementations regarding the freedom of religion in India and the United Stated of America
1st year LL.M, ILI, New Delhi. firstname.lastname@example.org 11/17/2010
1. Universal Declaration of Human Rights,1948 2. International covenant on civil and political rights, 1966 3. Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief, 1981
II. International documents
III. United States of America
1. Origin and Development 2. The Establishment Clause 3. Religious freedom restoration act,1993 4. International Religious freedom act, 1998
1. History 2. Constitution of India, 1950 3. Anti-Conversion Laws 4. Judicial Interpretation through various cases
The word “religion”, meaning to bind fast, comes from the western Latin word religare. It is commonly, but not always, associated with traditional majority, minority or new religious beliefs in transcendent deity or deities. It is normally fruitless to compare basic human rights with each other, to find the most important right, or which interference constitutes the most grave attack on the dignity of man. It is however worth pointing out, together with the historical facts, that religion and thought constitute the most inner part of man. A belief in a specific religion will often include belief in divine god or other divine objects, with power over the life of each person, in this life as well as in the next. The choice of religion is therefore not the same as choice between political and other kinds of opinions. It may literally be a choice between ‘heaven and hell’ if we look at the individuals own grounds for adopting and manifesting a specific belief. In human rights disclosure, however, the use of the term usually also includes support for the religion to non-religious beliefs. In 1993 the Human Rights Committee, an independent body of 18 experts selected through a UN process, described religion or belief as “theistic, non-theistic and atheistic beliefs, as well as the right not to profess any religion or belief. The Right to freedom of thought, conscience and religion is probably the most precious of all human rights, and the imperative need today is to make it a reality for every single individual regardless of the religion of belief that he professes, regardless of his status, and regardless of his condition in life. Religious human rights occupy a central position in human rights jurisprudence. It is the chronological and conceptual kemel upon which much of what we know today as the idea of human rights has developed1. Truly great religions and beliefs are based upon ethical tenets such as duty to widen the bounds of good-neighborliness and obligations to meet human need in the broadcast sense2. Freedom of religion and belief is one of the fundamental human rights. The European Court of Human rights has stated freedom of religion and belief is one of the foundations of democratic society3. Historically religious freedom was one of the first recognized human rights. Important side of the general idea of human rights lies in the history of protecting religious minorities. It can be said that the right to freedom of thought, conscience and
Danie Brand, “Constitutional Protection of Religious Human Rights in Southern Africa” 14 Emory International Law Review 699(2000). 2 Arcot Krishnaswami, Study of Discrimination in the Matter of Religious rights and practices, (U.N.Doc. E/CN.4/Sub.2/200/Rev.1(1960). 3 Kokkinakis v. Grece (25/5/93), A 260-(A) para 31.
religion is foundation of western human rights ideology. Religious human rights, like some other rights, have two opposing but also complementary components: one is the need to be left alone; the other the need for engagement by others and also to engage others. In the context of freedom of religion, the right to be left alone, in its purest and fullest form, encompasses the right of each individual to decide for himself or herself what they want to believe, and how, and whether, they want to give expression to these beliefs. Here, the protected interest is individual autonomy4. We can see that there has been few complaints regarding violations of religious freedom to international supervisory organs and perhaps more disturbingly, there has been a decrease in the international consensus on the specific content of the freedom of religion. There are many reasons for these contradictions. One reason is that this right refer to an inner, integral part of man, and that breaches are not always visible. Other explanation may be found in political developments. Many states have accepted some form of religious freedom; this has also often been limited in practice through punitive taxation, repressive social legislation, and political disenfranchisement. But in certain states it’s still a mirage Let us see the position of religious independence in some specific states under following heads.
The basic elements of the freedom of religion and belief have no doubt the status of jus cogens, or international customary law. A state is thus obliged to respect the right regardless of ratification of international texts. This point of view is primarily based on the general acceptance of the Universal Declaration of Human Rights (UDHR), and on the many states that have ratified the International covenant on Civil and Political Rights (CCPR). There are good reasons for stating that the right to choose a religion of one's own is a part of jus cogens. However, this may be contested by some states. Therefore, the protection of the right to choose religion should be assessed more closely, in the light of the different international texts, which the states expressly support or are obliged to follow. Universal Declaration of Human Rights, 1948: The UDHR is the main international text on human rights. However, being a declaration, the text is not directly judicially binding, and therefore not “law” in its strict sense. The
supra note 1
declaration is politically binding, which in practice often is sufficient. The UDHR article 18 states as follows: "Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance." The first part of article 18 declares without reservation that the right to freedom of thought, conscience and religion includes freedom to change religion or belief. The wording leaves no doubt regarding this right. The second part of art 18 lists some specific rights following from the freedom of religion and belief. The list is not exhaustive. Art 29 (2) gives reasons for limitations on the rights and freedoms. According to art 2 of UDHR, enjoying the freedom of religion and belief, and all other rights and freedoms in the declaration, shall not be subject to any form of discrimination, inter alia discrimination based on religion. International Covenant on Civil and Political Rights: The Preamble of the Covenant itself says that the rights give under it derive from the inherent dignity of the human person. Recognizing that, in accordance with the UDHR, the ideal of free human beings enjoying civil and political freedom and freedom from fear and want can only be achieved if conditions are created whereby everyone may enjoy his civil and political rights, as well as his economic, social, and cultural rights. Art 18 of ICCPR states as follows: 1. Everyone shall have the right to freedom of thought, conscience and religion. This right shall include freedom to have or to adopt a religion or belief of his choice, and freedom, either individually or in community with others and in public or private, to manifest his
religion or belief in worship, observance, practice and teaching. 2. No one shall be subject to coercion which would impair his freedom to have or to adopt a religion or belief of his choice. 3. Freedom to manifest one's religion or beliefs may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others. Some other articles in the Covenant are also of interest. Art. 27 demands that religious minorities shall not be denied the right to profess and practice their own religion.14 According to art. 2, every party is obliged to "respect" and "ensure" the rights in the covenant, without
discrimination, inter alia discrimination based on religion. In this respect, everyone shall have the right to effective remedies to fulfill their rights, including access to the courts. A general prohibition of discrimination before the law is stated in art 26 which also mentions discrimination on religious grounds. Believers also enjoy the freedoms of expression, association and assembly in art. 19, 21 and 22, but normally the best protection is given by art. 18. The Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief: This declaration was adopted by the General Assembly in 1981. The drafting work started about two decades earlier. Special problems arose regarding the right to change religion. The Muslim states wanted any reference to such a right out of the declaration. They argued that a Muslim is not entitled to change his or her religion. The Western states could not accept this. There had to be a compromise on the subject - the alternative was no declaration at all. The Western states, regarding the last option as worse, accepted a weak formula (art. 2 uses the same formula as ICCPR art. 18, but not the words "or to adopt"). On the other hand, art. 8 of the declaration states that nothing in the declaration shall be construed as restricting or derogating from any right defined in UDHR and CCPR. The interpretation of this is clearly that the right to change religion was fully preserved, even though the formula in art. 2 is weak. The declaration contains different non-discrimination clauses, which are important to the right to manifest a chosen religion. The preamble of the declaration says that “Religion or belief, for anyone who professes either, is one of the fundamental elements in his conception of life and that freedom of religion or belief should be fully respected and guaranteed. Freedom of religion and belief should also contribute to the attainment of the goals of world peace, social justice and friendship among peoples and to the elimination of ideologies or practices of colonialism and racial discrimination.”
United States of America:
Origin and Development: The development if religious freedom- the liberty to believe or not to believe according to the dictates of one’s own conscience, free from pressure or sanctions of the state- is relatively recent in humankind’s history. Religious freedom requires the divorce of a nation’s religious life from its political institutions; and this separation of church and state, as it is called, is also
vintage5. One of the great social revolution that accompanied America’s rebellion against England and the adoption of the constitution and bill of rights was the formal separation of church and state, first by the former colonies and then by the federal government. By embodying this idea of, and the accompanying notion of a full freedom of religious exercise, in the constitution, the founding generation transformed what had been at best a temporary privilege into a protected right. Americans of the revolutionary and post-revolutionary generations were not opposed to religion, and in fact sought the fullest freedom for each person to worship as he or she choose. But the vast majority never believed in total separation of religion and the state, but only desired that the government should not favor one denomination above others. After the war era, however, the United States underwent significant economic, social and demographic changes, and with them came new problems of religious freedom. New questions relating to religious freedom arose, questions that might well have seemed incomprehensive to the founding generation; and as Alexis de Tocqueville noted long ago, in America nearly all important issue ultimately become judicial questions. By the end of the Revolution, Americans were approaching consensus in support of religious toleration. There was also substantial support for disestablishment, but that was more controversial, and some states still had formally established churches. Several state constitutions written in the revolutionary and immediate postrevolutionary period contained bills of rights that guaranteed free exercise, non-establishment, or both6. Establishment Clause and Free Exercise Clause in First Amendment: The First amendment of the constitution contains the following instructions concerning the government’s activity with regard to religion: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” The first of these injunctions is known as establishment clause and the second, as the free exercise clause. In 1947, the Supreme Court ruled that both the religion clauses applied not only to the federal government but also to the states. Justice Hugo L. Black, in his majority ruling in Everson v. Board of Education7, expounded at length on the historical development of religious freedom in the united stated, and concluded: The “establishment of religion” clause of the first amendment means at
Melvin I. Urofsky, Religious Freedom – Rights and Liberties under the Law 19 (ABC-CLIO Inc., California, (2002). 6 Dougles Laycock, “A Survey of Religious Liberty in the United States”, 47 Ohio State Law Journal 409(1986). 7 330 US 1 (1947).
least this: Neither the state nor the federal government can set up a church. Neither can pass laws which aid one religion, aid all religions, or prefer one religion over another. Neither can force nor influence a person to go to or remain away from church against his will or force him to profess a belief or disbelief in any religion. No person can be punished for entertaining or professing religious belief or disbeliefs, for church attendance or nonattendance. Neither the state nor the federal government can openly or secretly, participate in the affairs of any religious organization or groups and vice versa. The establishment clause is designed to prevent the majority from using the resources of the state to advance particular religious belief. The free exercise clause, in contrast, operates primarily to protect minority groups; although it may on occasion annoy the majority, it rarely affects them. The most famous of the free exercise cases involved Jehovah’s Witnesses and their refusal to salute the American flag. The first witnesses’ cases successfully challenged local ordinances that prohibited distribution of pamphlets or doorto-door solicitation without local official’s permission in Lowell v. City of Griffin8. The court in Employment Division, Oregon Department of Human Resources v. Smith9 speaks about the Indian beliefs. By a 5-4 vote, the court held that the first amendment does not bar a state from applying its general criminal prohibition of peyote to individuals who claim to use it for sacramental purposes. In addition, the majority announced that the test balancing governmental action burdening religious practices against compelling governmental interest, would no longer apply in cases involving criminal laws of general applicability. Justice Scalia, writing for a bare majority of the court, took an extremely narrow view of the free exercise clause. He argued that religion could never be used as an excuse for violating “an otherwise valid law regulating conduct that the state is free to regulate”. Justice O’Connor, joined in part by Brennan, Marshall, Blackmun, sharply criticized the court for abandoning the balancing test. Moreover, by denying the applicants the opportunity to challenge a general criminal law on the free exercise grounds, the majority had cut out “the essence of a free exercise claim”. Just because this government action involved a criminal statute did not mean that it did not burden religious freedom. Nonetheless, O’Connor joined in the result because she believed the state had a compelling interest under the balancing test, namely its effort to wage a war or drugs10
303 U.S. 444 (1938). 494 U.S. 872 (1990). 10 supra note 5 at p153.
Religious Freedom Restoration Act Following the Supreme Court’s decision in Employment Div case11, which abandoned strict scrutiny review in free exercise clauses, Congress and the President showed their disapproval by enacting the Religious Freedom Restoration Act. The RFRA provides a statutory compelling interest test for analysis of religious freedom claims12. The enactment of the RFRA was Congress’s way of dispensing religious exemption wholesale. Less sweeping example of legislation take into account the needs of conscience are found in the civil rights acts. The statute contained a number of formal findings that “laws ‘neutral’ toward religion may burden religious exercise without compelling justification.” Although popular, the RFRA was a sweeping law purporting to bind government action at all levels- federal, state and local. In practical terms, it was completely an attempt to overrule a Supreme Court decision by creating a broad federal guarantee of religious freedom greater than that created by first amendment13. In general the government shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability, except as provided in subsection (b)14. Government may burden a person's exercise of religion only if it demonstrates that application of the burden to the person - furthers a compelling governmental interest; and is the least restrictive means of furthering that compelling governmental interest15. A person whose religious exercise has been substantially burdened in violation of this section may assert that violation as a claim or defense in a judicial proceeding and obtain appropriate relief against a government. Standing to assert a claim or defense under this section shall be governed by the general rules of standing under article III of the Constitution16. The Religious Freedom Restoration Act holds the federal government responsible for accepting additional obligations to protect religious exercise. In O'Bryan v. Bureau of Prisons17 it was found by the court of appeal that the RFRA governs the actions of federal officers and agencies and that the RFRA can be applied to "internal operations of the federal government."
supra note 9. Carl H. Esbeck, “A Restatement of the Supreme Courts Law of Religious Freedom: Coherence, Conflict, or Choas?,” 70 Notre Dame Law Review 581(1995). 13 supra note 5. 14 RFRA,1993, s.3(a). 15 Id s.3(b). 16 Id s.3(c). 17 349 F3d 399.
The RFRA was found unconstitutional in City of Boerne v. Flores18. Justice Stevens in his concurring opinion claimed that the RFRA violated the establishment clause by granting preference for religious groups. In their separate concurring opinions, Justices O’Connor, Souter, and Breyer indicated that they had heard the message, and argued that the Smith doctrine should be reconsidered. Within a few weeks after Boerne decision, on 9th June 1998, sponsors introduced the Religious Liberty Protection Act of 1998 in both the house and the senate and it become embroiled in the house’s impeachment of the president and then the senate’s exoneration of him. In 2000, the Religious Land Use and Institutionalized Person Act was passed, which become law in September 2000. Although more modest in scope than the RFRA, this act will probably withstand constitutional scrutiny because it deals primarily with issues over which congress has acknowledged responsibilities, such as Indian lands and national forests. International Religious Freedom Act: The International Religious Freedom Act was passes by the Congress To express United States foreign policy with respect to, and to strengthen United States advocacy on behalf of, individuals persecuted in foreign countries on account of religion; to authorize United States actions in response to violations of religious freedom in foreign countries; to establish an Ambassador at Large for International Religious Freedom within the Department of State, a Commission on International Religious Freedom, and a Special Adviser on International Religious Freedom within the National Security Council; and for other purposes. “Freedom of religious belief and practice is a universal human right and fundamental freedom articulated in numerous international instruments, including the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, the Helsinki Accords, the Declaration on the Elimination of All Forms of Intolerance and Discrimination Based on Religion or Belief, the United Nations Charter, and the European Convention for the Protection of Human Rights and Fundamental Freedoms19.” When the Constitution's Framers wrote the religion clauses they hoped to end the history of religious persecution and civil war that had plagued humankind for so long. Their effort has largely, but not perfectly, succeeded. That success is partly a direct result of the rules established by the religion clauses. It is partly the result of the strong societal commitment to tolerance
521 U.S. 507(1997). IRFA, 1998, s.2(2).
symbolized by those clauses and now shared by most of the major religions in this country. The Supreme Court's cases on religious freedom cannot be captured in a single equation. The forms of religion are too varied and the juridical protection of religious freedom too multidimensional for such a project to succeed. The more promising approach is to compile a slate of case law principles and arrange them according to those rules that concern government improperly hindering religion and those rules that concern government improperly helping religion.
Religious Independence in India:
History: India is one of the most diverse nations in terms of religion. Even though Hindus form close to 80 percent of the population, the Indian Muslims form the third largest Muslim population in the world, and the country also has large Sikh, Christian and Zoroastrian populations. It is home to the holiest shrines of four world religions: Hinduism, Buddhism, Jainism and Sikhism. The vast majority of Indians of all religious groups lived in peaceful coexistence. The plural nature of Indian society in the 3rd century BCE was encapsulated in an inscription of Ashoka: "King Piyadasi (Ashoka) dear to the Gods, honors all sects, the ascetics (hermits) or those who dwell at home, he honors them with charity and in other ways. But the King, dear to the Gods, attributes less importance to this charity and these honors than to the vow of seeing the reign of virtues, which constitutes the essential part of them. For all these virtues there is a common source, modesty of speech. That is to say, one must not exalt one’s creed discrediting all others, nor must one degrade these others without legitimate reasons. One must, on the contrary, render to other creeds the honor befitting them.” Badayuni in his Muntakhab-ut-Tawáríkh reports that the Mughal Emperor Akbar, who had established the Din-i-Ilahi faith, decreed the following in AH 1000 (1551-1552 CE): "Hindus, who, when young, had from pressure become Muslims, were allowed to go back to the faith of their fathers. No man should be interfered with on account of his religion, and everyone should be allowed to change his religion, if he liked. People should not be molested, if they wished to build churches and prayer rooms, or idol temples, or fire temples." A US congressional body has put India on a list of countries which have failed to protect its religious minorities adequately. The US Commission on International Religious Freedom says India was added to the list because of a "disturbing increase" in religious violence. The US
Commission on International Religious Freedom has been criticized by Indian Christians about this list. It mentioned the anti-Christian and anti-Muslim riots in Orissa and Gujarat in 2008 and 2002 respectively. But their focus are only on their own and failed to notice many things. Let us discuss the Religious Independence in India under the following heads. Constitution of India: The Concept of Secularism is implicit in the preamble of the Indian constitution which declares the resolve of the people to secure to all its citizens “liberty to though, belief, faith and worship”. In India, a secular state was never considered as an irreligious of atheistic state, it only means that in matters of religion it is neutral20. The effective implementation of Article 18 of Universal Declaration of Human Rights in the Indian context is to be seen in this view. The Article 25 of the Indian Constitution offers freedom of religion and it says: Subject to public order, morality and health, all persons are equally entitled to freedom conscience and the right to profess, practice and propagate religion. Legal interpretation or academic discourse of the above is how it is realized in our country. Nevertheless a brief comparison of significant points between the article 18 of UDHR and Article 25 of Indian constitution is necessary. The UDHR Article 18 offers: a. Right to change one’s religion- individual, or in community b. There is no factors that restrict/control this process. Whereas Indian constitution Article 25 offers: a. Right to freely profess, practice and propagate religion. "Propagation" does not unequivocally offer the right of choice. It is interpreted in contradictory manner by people of different views. The supreme court of India do not agree that propagation includes that decision of individual to convert. b. This freedom is subject to: Public order, morality and health. Union Government and State governments have the right to make legislation to restrict/control religious expressions in the name of public order. The Indian context has two major issues in relation to the realization of Article 18 of UDHR and Article 25 of Indian Constitution. 1. The legislation is not categorical in offering freedom of religion in its complete sense including the choice of a person to convert.
J.N.Pandey, Constitutional Law of India 293(Central Law Agency, Allahabad, 42nd edn., 2005).
2. The Indian society is intensely communalized. It would be difficult to implement even the best of the most progressive legislation in this commurialized context. Article 26 which confers on denominations the freedom to manage religious affairs runs thus: “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". This freedom is also subject to public order, morality and health, so that the proposition endorsed by Sir Joseph Arnould in the Maharaj Libel Case21 that what is morally wrong cannot be theologically right is expressly embodied in Article 26. Article 27 provides that no person shall be compelled to pay any tax for the promotion of maintenance of any particular religion or religious denominations. This article emphasizes the secular character of the state. The public money collected by the way of tax cannot be spent by the state for the promotion of any particular religion. Anti-Conversion Laws: The term “apostasy”, like in many countries, does not appear in the Indian disclosure on the religious issues, but the issue of “conversion” is at the core of the recent decades. Article 25 of the constitution gives wider protection of religious freedom than do most constitutions in the world when it states the right to "profess, practice and propagate" one's religion. This right has included the right to convert, and the right to seek the conversion of others. Even this right is not questioned in principle. It is the nature of conversions, and "forced conversions", which are debated. Thus so those who seek to limit the rights under article 25 present their case as an issue of "freedom of religion". The logic is that "forced conversions" are violations of religious freedom. In India, several attempts have been made to enact a central legislation to regulate religious conversions, for the first time in 1954, then in 1960 and then in 1975. But all the attempts came to their end unsuccessfully. But at the state level, there were isolated instances of
Jadunathjee Brizrattanjee Maharaj v. Karsondass Mooljee and Nanabhai Rustamji, No. 12047 0f 1861, Supreme Court.
efforts made to have such legislations. For the first time in India after independence, the government of Orissa passed an act to provide for prohibition of conversion from one religion to another by the use of force or inducement or by fraudulent means and for matters incidental thereto22. Madhya Pradesh also in the year 1968 passed an enactment for the prohibition of forced conversion23. Similar legislation was then passed in Arunachal Pradesh with the title Arunachal Pradesh Freedom of Religion Act, 1978. Its preamble reads as “An act to provide for prohibition of conversion from one religious faith to any other religious faith by use of force or inducement or by fraudulent means and for matters connected therewith. Followed by Gujarat in 2003in the name Gujarat Freedom of Religion Act and then by Rajasthan with the Rajasthan Freedom of Religion Act, 2006 and by Himachal Pradesh in 2006. Currently anti-conversion laws are in force in the above said five states; the laws have been passed but not yet implemented24. Recently In April 2008 Gujarat State implemented its "Freedom of Religion Law," which proscribes religious conversions by means of allurement, force, or fraud. There were no reports of arrests or convictions under the law during the reporting period. Forceful conversions violate the principle of freedom of conscience and constitute one of the gravest human right violations. On this premise, it can very well be said that the state is justified in making law for keeping in check the conversions brought about by illegitimate means and for the purpose of protecting freedom of conscience. According to one media source out of India, Indian government specifically, Home Ministry will review and make recommendations related to anti-conversion bills and “Freedom of Religion Acts” throughout India25. Other religious issues are relating to the personal laws. Personal law, regulating for instance marriage, divorce, adoption and inheritance, varies for followers of different religions. Muslim personal law for instance in theoretical accepts polygamy, whereas this is prohibited to followers of other religions. Muslim personal law also gives weak protection to women in the case of divorce. Judicial Interpretations through various cases: Supreme Court of India in various cases gives interpretation to the terms used in the constitution and the other enactments relating the religious independence. In Ratilal v. State of
Orissa Freedom of Religion Act, 1967- Preamble. Madhya Pradesh Freedom of Religion Act, 1968 (Now also in force in Chhattisgarh state under the title Chhattisgarh Freedom of Religion Act, 2003). 24 Dibin Samuel, New Indian Government Set To Repeal Anti-conversion Laws, CHRISTIANITY TODAY, available at June 24, 2009. 25 “Religious Freedom Acts: Anti-Conversion Laws in India”, available at http://www.aclj.org/media/pdf/Freedom_of_Religion_Acts.pdf .
Bombay26, Mukherjia, J observed that every person has a fundamental right under our constitution not merely to entertain such religious belief as may be approved of by his judgment or conscience but to exhibit his belief and ideas in such overt acts as are enjoyed or sanctioned by his religion and further to propagate his religious views for edification of others. Further under Indian constitution religious liberty is not absolute but subject to the limitations which the state has been expressly authorized by the constitution to impose. In Rev Stainislaus v. State of M.P27, the validity of two acts- the MP freedom of religion act,1968 and the Orissa Freedom of religion act, 1967- passed by the respective state legislatures was challenged on the ground that they were violative of fundamental rights of the appellant guaranteed under art. 25(1) of the constitution. These acts were passed to prohibit the forcible conversion of any person to one’s own religion. The court upheld the validity of the legislation and said that the legislation prohibiting forcible conversion of one’s own religion in the interest of public order can be passed and is valid. In Sardar Taheruddin Syedna Saheb v. State of Bombay28 , for the first time explained the concept of secularism wherein Ayyangar, J., explained: "Articles 25 and 26 embody the principle of religious toleration that has been the characteristic feature of Indian civilization from the start of history. The instances and periods when this feature was absent being merely temporary aberrations. Besides, they serve to emphasize the secular nature of the Indian democracy which the founding fathers considered to be the very basis of the Constitution." In two other landmark judgments on freedom of religion under arts. 24 and 26 of the constitution in A. S. Narayana v. State of AP29, and Vaishno Devi Shrine30 cases the Supreme Court has clearly defined the role of the state in the matter of religion. The Supreme Court observed as follows ““What the article grants is not the right to convert another person to one's own religion, but to transmit or spread one's religion by an exposition of its tenets. It has to be remembered that article 25(1) guarantees "freedom of conscience" to every citizen, and not merely to the followers of one particular religion, and that, in turn, postulates that there is not fundamental right to convert another person as one's own religion because if a person purposely under-takes the conversion of another person to his religion, as distinguished from his effort to
26 27 28 29 30
AIR 1954 SC 388. AIR 1977 SC 908. AIR 1962 SC 853. AIR 1996 SC 1765. AIR 1998 SC 234.
transmit or spread the tenets of his religion, that would impinge on the "freedom of conscience" guaranteed to all the citizens of the country alike.” This judgment is an expansion of the idea that conversion is to be for the purpose of edification only, for it attempts to drive a wedge between propagation and conversion. One has the right to propagate not to propagate in order to convert another. In S.R.Bommai case31, a nine- judge bench of Supreme Court referred to the concept of secularism in the Indian context. The court observes “religious tolerance and equal treatment of all religious groups and protection of their life and property and the places of their worship are an essential part of secularism enshrined in our constitution. While the citizen of this country are free to profess, practice and propagate such religion, faith and beliefs as they choose, so far as the state is concerned, i.e., from the point of view of the state, religion, faith and belief of a person is immaterial. To it, all are entitled to be treated equally.” An expansive opinion was expressed by an eleven-judge bench of the Supreme Court in T.M.A. Pai Foundation v. State of Karnataka,32 in respect of art. 26 when it said: “the right to establish and maintain educational institutions may also be sourced to art.26 (a), which grants, in positive terms, the right to every religious denomination or any section thereof to establish and maintain institutions for religious and charitable purposes, subject to public order, morality and health.” Each person, whatever be his religion, must get an assurance from the state that he has the protection of law freely to profess, practice and propagate his religion and freedom of conscience. Otherwise, the rule of law will become replaced by individual perception of one’s own presumptions of good practices33
Conclusion: In light of the benefits of religious freedom and the dangers of denying it, the United States promotes this universal right as a core objective of its foreign policy. The Annual Report on freedom of religion34 conducted by the US Department of State informs that the United states bilateral policies and diplomatic strategies, shines a spotlight on abusive governments, and gives hope to millions who suffer on account of their faith. As President Obama said in Cairo: "People in every country should be free to choose and live their faith based upon the persuasion of the
S. R. Bommai v. Union of India, AIR 1994 SC 1918. AIR 2003 SC 355. 33 State of Karnataka v. Dr. Parveen Bhai Thogadia, (2004) 4 SCC 684. 34 Available at http://www.state.gov/g/drl/rls/irf/2009/index.htm
mind and the heart and the soul. This tolerance is essential for religion to thrive, but it's being challenged in many different ways. Freedom of Religion is central to the ability of peoples to live together," we can say that the freedom of religion in the United States is protected by the constitution, the judiciary and the Government as well. India is a secular state; secularism in India does not mean irreligion. It means respect of faith and religions. The state does not identify itself with any particular religion. India being a secular state, there is no state of preferred religion as such and all religious groups enjoy the same constitutional protection without any favor or discrimination. From the above comparison of the Indian and the American constitution and legislations regarding the freedom of religion we can say that the religious freedom is protected by the Indian constitution. The most important legal obstacles to conversion are (1) certain state laws barring “forced conversions” and (2) provisions in the constitution which limit affirmative action for certain groups in the country. This because that in societies like India religious faith and passion are always under emotions and are valued more than reasons. However, the legal system is at present not the major threat to religious freedom in India. The constitution provides equal independence to all the citizen to practice, propagate his religion or belief as he like, subject to the public morality.
List of Articles:
Danie Brand, “Constitutional Protection of Religious Human Rights in Southern Africa” 14 Emory International Law Review 699(2000). Dougles Laycock, “A Survey of Religious Liberty in the United States”, 47 Ohio State Law Journal 409(1986). Carl H. Esbeck, “A Restatement of the Supreme Courts Law of Religious Freedom: Coherence, Conflict, or Choas?,” 70 Notre Dame Law Review 581(1995). Arcot Krishnaswami, Study of Discrimination in the Matter of Religious rights and practices, (U.N.Doc. E/CN.4/Sub.2/200/Rev.1 (1960). Dibin Samuel, New Indian Government Set to Repeal Anti-conversion Laws, CHRISTIANITY TODAY, available at June 24, 2009. Freedom Acts: Anti-Conversion Laws in India”, available at: http://www.aclj.org/media/pdf/Freedom_of_Religion_Acts.pdf .
List of Books:
Melvin I. Urofsky, Religious Freedom – Rights and Liberties under the Law 19 (ABCCLIO Inc., California, (2002). J. N.Pandey, Constitutional Law of India 293(Central Law Agency, Allahabad, 42nd edn., 2005).
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