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This report is submitted as part of course curriculum in the IIIrd Semester of

B.A. /L.L.B. (Hons.) Program.
ON

State intervention over religious practices: a critical

analysis

Submitted By:

Shivam Jain
B.A. / L.L.B. Batch 2016-2021
(16BAL111)
Institute Of Law, Nirma University

Submitted to:

Prof. Srishti Vaishnav Prof. Jagjeet Vashishtha

(Assistant Professor) (Assistant Professor)

Institute Of Law, Nirma University

Sarkhej- Gandhinagar Highway
Gota, Ahmedabad, Gujarat,
India- 38248

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 Table of content

Chapter Page
no.

Chapter 1. Introduction…………………………………………………………………….…..3

Chapter 2. Introduction to the religious rights in

India………………………………………...7

Chapter 3. Arbitrary regulations on the name of secular

activities…………………………….8

Chapter 4. Religious freedom with

persecution……………………………………………......9

Chapter 5. Religious Discrimination in Reservation

Policy…………………………………..10

Chapter 6. Case study………………………..…………………………………………….....11

Chapter 7. Conclusion and suggestion…………..

…………………………………………....11

Chapter 8. Bibliography………………………………………………………………………
12

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State interventions over religious practices: a critical
analysis
Chapter 1- Introduction:

1) Statement of problem :

In India, Immediately after the commencement of constitution of India there were several
rights guaranteed to the citizens of India. One of these rights is “Right to freedom of
religion” which not only gives the right to choose their religion but also gives the right to
profess the practices of the religion in their own way.

However, At the same time state were also given the right to carve
the right of freedom of religion of an individual on various grounds i.e. public order, health,
or morality which state has on different occasions used it arbitrarily. After came across on
multiple occasions the arbitrariness on interpretation of Courts while deciding malpractices
in professing religion. Which has caused a chaos in the society and infringed their right to
profess their religion i.e. Santhara practice of Jains. It has clearly determine that the state has
failed to provide rights which are guaranteed under constitution. And On some occasions
state has also been argued to misuse his power which are conferred by the constitution.

2) Review of literature :

The review of literature gives a basic idea to the researcher about the research conducted by
other researchers in the past. This helps the researcher to take a deep dive in in-depth
knowledge accumulated by other researchers. The work (i.e. Books, articles, journals) of
others which are reviewed in this research are presented in comprehensive capsules. The
review of literature are as under:

 Books :
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 a) M. P. Jain, Indian Constitutional Law, 1247 (7th ed., 2016).

This book has provided an indebt insight about the basics as well as complexes of
fundamental rights. The author cited multiple cases on various occasions to understand each
and every provisions beyond every possible doubt. Keeping text in lucid language, the author
prevented unambiguous interpretation of any provision. The author has provided multiple
landmark judgments which helps to draw a thin line in determining where the freedom to
profess religion carved.

b) D.D. Basu, introduction to the constitution of India (21ed.),Lexis nexus,

gurgaon,2014

This brilliant piece of hard work provide a comprehensive details of each and every
provisions on freedom of religion. It talks about the difference in freedom of religion and
freedom from religion. This has comprehensively analysed each and every time where the
state has interfered in the right given by constitution their impact, adverse effect on society.

c) Kanan Gahrana, Right to freedom of religion, 1992.

This book provides a comprehensive history of religion, its origin and development of the
same. It contained the detailed importance of religion in India as well as in world. This book
talks about the power of state in determining the extent of freedom of religion of an
individual. This book also examines certain tests note down by the apex court to determine
the freedom of profession of religion.

 Article :

Freedom of Religion, Legal Services India, available at

http://www.legalservicesindia.com/article/article/freedom-of-religion-2254-1.html, last seen
on 27-09-2017.

This article provides a detailed comprehension of religious freedom in India and America.
This article talks about all aspect of development in field of religion, its importance in Indian
context. As well as talks about negative impacts in case of failure of governing it wrongly.

3) Objectives :

1) To determine the current status of freedom to profess religious practices.

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 2) To critically discuss about the state interference on freedom of religion

4) Hypothesis :
1) The state has not failed to provide the right to profess religious practices
guaranteed under constitution of India.
2) The intervention by the state in religious practices is a duty of the state enforced
by the constitution of India and the state has taken due care while administering
those duty.
5) Research question :
1) Whether the state interpretation of article 25(2) (a) and 25(2) (b) is inconsistent
with the intention of the law givers.
2) Whether the state has exceeded their powers while deciding religious practices as
Integral parts of religion.

6) Methodology :

The research methodology adopted in this paper by researcher is purely based on

secondary data i.e. Books, Articles (both printed as well as electronic form) and others e-
resources for the purpose of reaching at a conclusion for hypothesis. The researcher will
observe through his research the current status of freedom to profess religious practices
i.e. rituals. The researcher will also analyse the certain Articles of Constitution with
respect to the various case laws decided by the apex court of the country to determine the
purview of power of the state in deciding matters of religious practices. The researcher
has followed a qualitative approach for determining, whether the due care is taken while
deciding the religious matters. The researcher will also examine the interpretation of State
on Article 25.

7) Tentative chaptarisation :

For the sake of convenience, the researcher has divided the whole research paper in
different chapters to address the research more systematically.

Chapter 1: Introduction to the religious rights.

Chapter 2: History and evolution of religious rights.

Chapter 3: Legal provisions and their impact on society.

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 Chapter 4: Critical analysis of Right to profession of religious practices.

Chapter 5: supreme Court interpretation of the concept.

Chapter 6: Conclusion and Suggestion.

State intervention over religious practices: a critical

analysis
Chapter 2- Introduction to the religious rights in India:

India is a country that has always been acknowledged as a diversified nation not only on the
basis of language, Ethnicity, culture, geography, but also of the religions practiced on this
land. India is the birthplace of four major religions- Sikhism, Hinduism, Buddhism and
Jainism and considered as second home of some other religions- Zoroastrianism and Judaism.

To maintain originality, and reverse the effect of brutality caused under British rule over
these religions and their religious practices. India immediately after the commencement of
Indian constitution guaranteed various religious rights to maintain the originality of these
religious practices.

But on several occasions state on the name of public order, morality and health has acted
arbitrarily and controlled the actions of the citizens. Which directly or indirectly infringes the
rights given under article 25 of constitution and also goes against the motive and objectives
of providing such rights in the first place1.

 Religion in India:

The term ‘Religion’ has not been defined in constitution and is still sustible of many precise
definitions. The Supreme Court however has given in his own terms an expansive content.
The Supreme Court in case of Lakshmindra2, has observed “Religion is certainly a matter of
faith with individuals or communities and it is not necessarily theistic.

1
Abdul alim, 9 reason why india is most diversified country, (oct.20,2017, 10:04 AM),
https://themuslimtimes.info/2014/11/18/9-reasons-why-india-is-one-of-the-most-diverse-countries-in-the-world/
2
Madras v. Sri Lakshmindra, A.I.R. 1954 S.C. 282, 290 (India).

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The guarantee under Article 25, subject to the exceptions mentioned, confers a fundamental
Right on every person not merely-

 To entertain such religious beliefs as are allowed to him by his judgement or

conscience, but also
 To exhibit his beliefs and ideas in such overt or outward acts and practices as are
sanctioned or enjoined by his religion.

In Moran mar marthoma3, Supreme Court has observed “Religion is the belief which binds
spiritual nature of men to super-natural being. Religious right is the right of a person
believing in a particular faith to practice it, preach it and profess it.”

In order, however, that a practice should be treated as a part of a religion, it is necessary that
it be regarded by the said religion as its essential and integral part. It means that purely
secular practices which may not be an essential and integral part of a religion are not
protected and be abrogated by legislation subject to other fundamental Rights.

Religious practices which are being followed by generations has been considered an
inadequate reason to be consider these practices as essential and integral part of religions.
Same as happened in Jain’s ancient practice of Santhara which was considered illegal
practice and directly infringes their rights to freedom of Religion. The Bench said that “it was
not established that Santhara is an essential practice of the Jain religion. No Jain scripture and
text says that salvation can be achieved through Santhara. On the other hand Jain community
argued that the practice aimed at self-purification. And the Apex court in the end came
forward acknowledging the religious rights of Jain’s and gave them complete freedom which
they deserve4.

Chapter 3- Arbitrary regulations on the name of secular activities:

Under article 25(2)(a), the state is empowered to regulate secular activities associated with
religious practices. The state is not entitled to regulate religious practices as such5.

3
P.M.A. Metropolitan v. Moran Mar Mathoma, A.I.R. 1955 S.C. 2001, 2096 (India).
4
Milind Ghatwai, Jain religion and right to die by Santhara, Indian express, (October 25, 2017, 12:23 AM),
http://indianexpress.com/article/explained/the-jain-religion-and-the-right-to-die-by-santhara/
5
M. P. Jain, Indian Constitutional Law, 1247 (7th ed., 2016).

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The state is empowered to regulate under article 25(2) (a) are the activities which are really of
an economic, commercial, or political characters which are associated with religious
practices6.

The Supreme Court itself has stated religious activities cannot be regulated and only secular
activities can. In case of Hanif quareshi7, the Apex Court held banning of slaughtering of cow
to be intra vires in the constitution. Supreme Court further held Slaughtering of animals other
than Cow is permissible. Which seems to be a decision in favour of majority religion as Cow
is from ancient times considered to be the holy animal in Hindu scriptures. This verdicts
shows the domination of majority over minority religions. By saying these regulations as
intra vires under article 25(2) Supreme Court, it has placed a black spot in general people’s
mind. Should the Supreme Court be considered as the protector of fundamental rights of
citizen of India or the protector of major religious will?

Chapter 4- Religious freedom with persecution:

Religious minorities in India mainly Christians and Muslims suffer religious discrimination
daily, Even despite nominal protection granted under Indian Constitution. Denying any
constitutional claim of religious freedom, Both Central and State legislation including “anti-
conversion” laws which act to detriment of religious minorities and only reconversion to
Hinduism escapes out regulations. Furthermore law enforcement organisations consistently
failed to grant protection for religious minority. On multiple occasions law enforcement
organisations has been acted in persecution.

The Indian constitution granted few religious freedom to the citizens which have numerous
times by central and state law mechanism been contradicted constitutional protection through
poor legislation. Furthermore on several times judicial court has failed to offer protection
against ‘illegal’ persecution against minorities.

 Persecution occurred in different states:

1) In May 2004, Hindu fundamentalists broke into the Church at Berikkai in Hosur district of
the Tamil Nadu, assaulted a pastor extensively and ransacked the church 8. The attackers

6
Ratilal panachand gandhi v. state of Bombay, A.I.R. 1954 S.C. 388 (India).
7
Mohd. Hanif Quareshi v. State of Bihar, A.I.R. 1959 S.C. 79 (India).
8
Press Release, All India Christian Counsel, Pastor Attacked in Hosur, May 5, 2004..

8
accused the pastor of “forcibly converting people through inducement,” and based on these
accusations, the police the arrested and imprisoned the pastor9.

2) In state of Gujarat, as recorded, On September 21, 2006, extremists in Gujarat, marching to

against the amendment to anti-conversion legislation by the State Government, attacked
seven members of the Indian Missionary welfare Society10. When the victims went to file a
complaint with the authorities, the victims themselves were arrested upon the charges of
forceful conversions and possession of weapons which were meant for the self-defence.

3) Another relatively similar incident occurred in Maharashtra. On January 1, 2001, two

priests from Ichalkaranji, in Maharashtra’s Kolhapur district, were severely beaten by two
Hindu groups Bajrang Dal and Vishwa Hindu Parishad. After beating them in full public, the
Hindu groups dragged the priests to the police station where instead of protecting the priest or
arresting the attackers, the police officer arrested the priest under the allegations that they had
conspired to convert people from Hinduism11.
Other than these instances, there has been on various occasions, both State and Central
Government had discriminated on the basis of religion. Multiple times through unfair
legislations or other times through worst administration of those arbitrary laws. Cherry on the
cake is, the justice system itself on several occasions acted unfairly.

Chapter 5- Religious Discrimination in Reservation Policy:

In India, the concept of reservation put forward by the constituent assembly itself
immediately after the commencement of the constitution to reverse the adverse damage
caused to the backward classes of the country. One of these backward classes is Dalit or
schedule caste widely known as “untouchables” in Hindu community12.
Currently, Dalit’s who converted into Christianity or Islam are excluded from legal category
of ‘Scheduled Castes’, which is still enforce for other Dalit’s, including those who has
converted to Buddhism or Sikhism. Members of these Scheduled Castes are eligible for
certain affirmative actions, benefits, including quotas in reserved places in public sector
education organisations and offices, under the system called ‘reservation’. Additionally,

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Id.
10
International Religious Freedom Report 2006 (India).
11
Kanisk vajpayee, VHP Activists Beat up Two Priests, All India Christian Counsel, (October 29, 2017, 10:26
PM), http://indianchristians.in/news/content/view/1160/45/.
12
The nomenclature ‘Scheduled Castes’ is the formal designation of those below the fourfold Hindu caste
system. The term was preserved in Section 305 of the Government of India Act, 1935. The religious scope of
the category has twice been amended: in 1956, to include Mazhbi Sikhs, and in 1990, to include Neo

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Scheduled Castes are gained legislative protections against the particular forms of violence,
discrimination suffered by Dalit’s, in Scheduled Castes and the Scheduled Tribes (Prevention
of Atrocities) Act, 198913.
By excluding Muslim and Christian Dalit’s from the Scheduled Castes list, these religious
minorities are at a disadvantage, both socially and politically. A Zee News editorial
enlightens us more properly about the issue of poor ruling:
“Since the Christian and Muslim Dalit’s are excluded to Scheduled Caste reservation, they
are deprived of opportunity to content election in over 1000 assemblies and 78 Lok Sabha
Constituencies. While the Sikh Dalit have given reservation by amending constitution in
1956 and Buddhists in 1991. This raises a question why government is delaying the matters
when it comes to Muslims and Christians”14.

Chapter 6- Case study over Sati pratha:

Sati in literal sense means a ‘virtuous and pure women’. Sati Pratha or a tradition of burning
of widow at the funeral pyre of her husband been a shameful social practice for years in
Indian society. The widow was burned on pyre of her husband either by her will or forcefully.
This practice has shown the evil side of Indian society precisely in Hindu society.
The origin of this inhuman practice generally considered due to the
beliefs of patriarchal Society of Hindus who always considered women as submissive and
inferior to men. And the mythological backing which they gives is that sati was first practiced
by the wife (Sati) of lord Shiva. She self-immolated herself in protest against her father who
had multiple times disrespected Shiva. From there the practice took a turn and women started
to burn forcefully to die on her husband’s pyre.
The abolition or stopping this evil practice was a tough task even for
the powerful rulers like Akbar or Marathas as it has been given a religious sanction by the
head of the religion at that point of time. However, during the early British rule over India the
adhered to their policy of non-interfering in religious practices in India. But in the early
nineteenth century of British India rule, the view of British India changed on not interfering
religious practices. Raja Ram Mohan Roy, was one of the first Indian leaders who took a
stand over this unethical practised and due to their hard work through publication of
pamphlets in newspapers, reports etc. he was able to persuade masses for the first time to
13
Eric pinser, Christian Solidarity Worldwide, Briefing: Freedom of Religion Legislation in India (October 30,
2017, 12:06 AM), http://dynamic.csw.org.uk/article.asp?t=report&id=8.
14
Yusuf Ansari, Pasmanda Muslims: The voice unheard, Zee New India, (October 23, 2017, 05:30 AM)
http://www.zeenews.com/articles.asp?aid=425815&sid=ZNS.

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abolish this practice. And force the Britishers to make a legal regulation over this practice. In
December 1829, there was one of such kind of regulation came which less or more helped to
abolish this practice by then.
In free India, after some incidences of burning women on the name of this
practice the government of India came up with a concrete regulation which till today is in
force and helped to eradicate this practice from the society through Sati (Prevention) Act,
1987 which became enforce in 1988. This act seeks to prevent sati practice of burning
widows alive and punishes everyone who found participating in any ceremony related to this
practice15.

Chapter 7- Conclusion and Suggestion:

In light of the study conducted and the information gathered, the researcher came to a
conclusion that the state is bound to intervene over religious matters. We have seen on
multiple occasions the intervention of state over religious matter has helped the society to
curb the unethical or unnecessary practices occurring on the name of religion such as sati
pratha, and many other inhuman practices which could have only eradicated through the
intervention of state. There still has so many practices left which are the shadows on religious
practices in India and need state intervention.
State though sometimes has failed to maintain peace in the society but this only occurred due
to the poor administration. The Supreme Court has time to time has proven to be loyal and
rational to the while deciding the matters related to religion. The verdicts may have come late
but has always proven to be worth waiting as we have seen in triple talaq judgement and
many more other cases.
Sometimes State may look acting arbitrary, but we must always keep in mind, it is hard to
satisfy 125 billion citizens of the country. As we all know State is not kept above us to rule
over us but to protect us. It is the duty of state to come forward with some strict action if
these action means to intervene in religion the state has all right to that.

Bibliography:

 Books
1. M. P. Jain, Indian Constitutional Law, 1247 (7th ed., 2016).
15
Namit Srivastava, Sati pratha in India, (october 29, 2017, 01:07AM)http://www.womenplanet.in/society/sati-
pratha

11
2. D.D. Basu, introduction to the constitution of India (21ed.), Lexis Nexis, Gurgaon,
2014.
3. Kanan Gahrana, Right to freedom of religion, 1992.

 Articles
1. Freedom of Religion, Legal Services India, available at
http://www.legalservicesindia.com/article/article/freedom-of-religion-2254-1.html,
last seen on 27-09-2017.
2. International Religious Freedom Report 2006 (India).
3. Press Release, All India Christian Counsel, Pastor Attacked in Hosur, May 5, 2004.
 Internet
1. Yusuf Ansari, Pasmanda Muslims: The voice unheard, Zee New India, (October 23,
2017, 05:30 AM), http://www.zeenews.com/articles.asp?aid=425815&sid=ZNS.
2. Kanisk vajpayee, VHP Activists Beat up Two Priests, All India Christian Counsel,
(October 29, 2017, 10:26 PM), http://indianchristians.in/news/content/view/1160/45/.
3. Eric pinser, Christian Solidarity Worldwide, Briefing: Freedom of Religion
Legislation in India (October 30, 2017, 12:06 AM),
http://dynamic.csw.org.uk/article.asp?t=report&id=8.
4. Abdul alim, 9 reason why India is most diversified country, (oct.20, 2017, 10:04
AM), https://themuslimtimes.info/2014/11/18/9-reasons-why-india-is-one-of-the-
most-diverse-countries-in-the-world/.
5. Amit Srivastava, Sati pratha in India, (October 29, 2017, 01:07AM),
http://www.womenplanet.in/society/sati-pratha

 Case laws
1. Ratilal panachand gandhi v. state of Bombay, A.I.R. 1954 S.C. 388 (India).
2. Madras v. Sri Lakshmindra, A.I.R. 1954 S.C. 282, 290 (India).
3. Mohd. Hanif Quareshi v. State of Bihar, A.I.R. 1959 S.C. 79 (India).
4. P.M.A. Metropolitan v. Moran Mar Mathoma, A.I.R. 1955 S.C. 2001, 2096 (India).

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