STATE AND RELIGION By ~ Geetika Rathore

STATE AND RELIGION

Authored By ~ Geetika Rathore*

Abstract

The constitution provides for freedom of conscience and the right of all individuals to freely profess, practice, and propagates religion; mandates a secular state; requires the state to treat all religions impartially; and prohibits discrimination based on religion. It also states that citizens must practice their faith in a way that does not adversely affect public order, morality, or health. Ten of the 28 states have laws restricting religious conversions. The Indian Constitution posits a separation between a secular domain regulated by the State, and a religious domain in which it must not interfere. However, courts of law are regularly called upon to resolve a multiplicity of issues related to religion, and their decisions may have a far-reaching impact on religious conceptions and practices. The judicial process requires that standardized, clear-cut definitions of many notions (such as “religion” itself, or “worshipper,” “custom,” “usage,” “religious service,” “religious office,” “religious honour,” etc.) be established in order for them to be manageable within a legal context. Moreover, even though a religious domain may be distinguished from a secular one and protected from State intervention, there are litigations concerning civil rights that involve religious issues on which civil courts may therefore have an explicit duty to rule. Interventions such as imposing legal definitions or deciding on religious matters on which civil rights depend are systemic in character and intrinsic to “modern” law itself. In this they do differ from any explicit policy of state secularism or the no less explicit reformist will of some judges, which may change according to the historical period or to their personal dispositions.

Introduction

India has been the land of peace and harmony so various types of religious people from the world wants to reside in India. India taught the world about the meaning of secularism which attracted the people all over the world. India is a secular nation with no state religion and therefore every citizen residing within the territory of India has the right to follow the religion he believes in. Religion is personal matter and everyone has right to follow ones own religion[1].

India has always been a Secular State from times immemorial. Ashoka about 2200 years ago accepted and patronised different religions. The people in ancient India had freedom of religion, and the state granted citizenship to each individual regardless of whether someone's religion was Hinduism, Buddhism, Jainism or any other. Ellora caves temples built next to each other between 5th and 10th centuries, shows a coexistence of religions and a spirit of acceptance of different faiths. Another great ruler Akbar sought to fuse ideas, professed equality between Islam and other religions of India, forbade forced conversions to Islam, abolished religion-based discriminatory Jizya taxes, and welcomed building of Hindu temples[2].\

The colonial administrators did not separate religion from state, but marked the end of equal hierarchy between Islam and Hinduism, and reintroduced the notion of equality before the law for Hindus, Christians and Muslims. The British Empire sought commerce and trade, with a policy of neutrality to all of India's diverse religions. Before 1858, the Britishers followed the policy of patronising and supporting the native religions as the earlier rulers had done. Looking into these traditions, Indian constitution also continued these traditions[3].

India is a vital case on account of both its size and its democratic longevity. The comingling of religion and state is hardly a new development on the Indian subcontinent. When India’s founders framed the country’s constitution following independence and amid the horror of the Partition, they decided to commit the polity to a doctrine of secularism that differed from prevailing Western notions. India’s constitution did not establish a strict church-state separation but rather instituted a “principled distance” between religion and the state whereby the state would embrace all of India’s many religious faiths without unduly favouring any one tradition.[4]

India’s massive population is diverse as well as devout. Not only do most of the world’s Hindus, Jains and Sikhs live in India, but it also is home to one of the world’s largest Muslim populations and to millions of Christians and Buddhists. Indians value religious tolerance, though they also live religiously segregated lives. Across the country, most people (84%) say that to be “truly Indian,” it is very important to respect all religions. Indians also are united in the view that respecting other religions is a very important part of what it means to be a member of their own religious community (80%). People in all six major religious groups overwhelmingly say they are very free to practice their faiths, and most say that people of other faiths also are very free to practice their own religion[5].

After living side by side for generations, India’s minority groups often engage in practices or hold beliefs that are more closely associated with Hindu traditions than with their own. For instance, many Sikh (29%), Christian (22%) and Muslim (18%) women in India say they wear a bindi – the forehead marking often worn by married women – even though the bindi has Hindu origins. Meanwhile, Muslims in India are just as likely as Hindus to say they believe in karma (77% each), as do 54% of Indian Christians. Some members of the majority Hindu community celebrate Muslim and Christian festivals: 7% of Indian Hindus say they celebrate the Muslim festival of Eid, and 17% celebrate Christmas[6].

State Religion of India

A state religion (also called an established religion or official religion) is a religion or creed officially endorsed by a sovereign state. A state with an official religion (also known as confessional state), while not secular, is not necessarily a theocracy. State religions are official or government-sanctioned establishments of a religion, but the state does not need to be under the control of the religion (as in a theocracy) nor is the state-sanctioned religion necessarily under the control of the state. For example, Bhutan, Sri Lanka, Thailand and some other counties have declared Buddhism as their state religion. Similarly, countries like Pakistan, Afghanistan, Egypt, Algeria have declared Islam as their state religion.

The degree and nature of state backing for denomination or creed designated as a state religion can vary. It can range from mere endorsement (with or without financial support) with freedom for other faiths to practice, to prohibiting any competing religious body from operating and to persecuting the followers of other sects.

Religion in India is characterized by a diversity of religious beliefs and practices. The Indian subcontinent is the birthplace of four of the world's major religions: namely Hinduism, Buddhism, Jainism, and Sikhism. Religious diversity and religious tolerance are established by the law; the Constitution of India defines freedom of religion a fundamental right and holds India to be a secular state.

India is a secular state by the Forty-second Amendment of the Constitution of India enacted in 1976, asserting Preamble to the Constitution of India as secular.[7] It is a peculiar fact that the term religion was intentionally not given a definition by the makers of the Constitution. With this definition left open ended, what exactly constitutes a religion under the constitution is not definite or is still uncertain, but this does not mean any practice could fall under the term of a religious practice or a religion. In other words, as Right to Freedom to practice religion under Article 25 and 26 of Part III of the Indian Constitution is subject to public morality, public order and public health[8].

Secular Provision in the Law of India

The preamble to the Constitution of India proclaims India a "sovereign socialist secular democratic republic". The word secular was inserted into the Preamble by the Forty-second Amendment Act of 1976. It mandates equal treatment and tolerance of all religions. India does not have an official state religion; it enshrines the right to practice, preach, and propagate any religion. No religious instruction is imparted in government-supported schools. In S. R. Bommai vs. Union of India[9], the Supreme Court of India held that secularism was an integral tenet of the Constitution and that there was separation of state and religion.[10]

The Supreme Court of India in the 1994 case S. R. Bommai v. Union of India[11] established the fact that India had been secular since the formation of the republic on 26 January 1950.[12] Secularism in India is understood to mean not a separation of religion from state, but a state that supports or participates in a neutral manner in the affairs of all religious groups and as well as atheism[13]. Secularism is defined as a basic structure doctrine of the constitution that cannot be removed or amended by any means[14].

Freedom of religion is a fundamental right according to the Indian Constitution. The Constitution also suggests a uniform civil code for its citizens as a Directive Principle[15].  In Maharishi Avadesh v Union of India[16] (1994) the Supreme Court dismissed a petition seeking a writ of mandamus against the government to introduce a common civil code, and thus laid the responsibility of its introduction on the legislature[17].

Major religious communities not based in India continue to be governed by their own personal laws. Whilst Muslims, Christians, Zoroastrians, and Jews have personal laws exclusive to themselves; Hindus, Jains, Buddhists, and Sikhs are governed by a single personal law known as Hindu personal law. Article 25 (2)(b) of the Constitution of India states that references to Hindus include "persons professing the Sikh, Jain, or Buddhist religion"[18]. Furthermore, the Hindu Marriage Act, 1955 defines the legal status of Jains, Buddhists, and Sikhs as legal Hindus but not "Hindus by religion"[19]. Supreme Court in 2005 gave verdict that Jains, Sikhs, and Buddhist are part of broader Hindu fold, as they are Indic religions and interconnected to each other, though they are distinct religions[20].

The particular provisions regarding secularism and freedom of religion in India in the constitution are:

• "(Article 14)": grants equality before the law and equal protection of the laws to all.
• "(Article 15)": enlarges the concept of secularism to the widest possible extent by prohibiting discrimination on grounds of religion, race, caste, sex or place of birth.
• "(Article 25)": Freedom of conscience and free profession, practice and propagation of any religion.
• "(Article 26)": Freedom to manage religious affairs.
• "(Article 27)": Freedom as to payment of taxes for promotion of any particular religion.
• "(Article 28)": Freedom as to attendance at religious instruction or religious worship in certain educational institutions.
• "(Article 29)" and "(Article 30)": provides cultural and educational rights to the minorities[21].
• "(Article 51A)": i.e. Fundamental Duties obliges all the citizens to promote harmony and the spirit of common brotherhood and to value and preserve the heritage of the country's composite diverse culture[22].
• In the case of State of Bombay v. Narasu Appa Mali[23], it was held that: A sharp distinction must be drawn between religious faith and belief and religious practices. What the state protects is religious faith and belief. If the religious practices run to counter to public order, morality or health or a policy of social welfare upon which the state has embarked, then the religious practices must give away before the good of people of the state as whole[24].
• With changing trends on society and concept of public morality the courts have adopted the concept of constitutional morality. This concept of constitutional morality was discussed in the case of Suresh Kumar Koushal v. Naz Foundation[25], the learned senior counsel for the petitioners argued that the 2 judge bench had been guided by social morality leaning on majoritarian perception whereas the issue, in actuality, needed to be debated upon in the backdrop of constitutional morality[26].
• It must be remembered that when there is a violation of the fundamental rights, the term morality naturally implies constitutional morality and any view that is ultimately taken by the Constitutional Courts must be in conformity with the principles and basic tenets of the concept of this constitutional morality that gets support from the Constitution. Constitutional morality in a pluralistic society and secular polity would reflect that the followers of various sects have the freedom to practice their faith in accordance with the tenets of their religion[27].
• The Preambular goals of our Constitution which contain the noble objectives of Justice, Liberty, Equality and Fraternity can only be achieved through the commitment and loyalty of the organs of the State to the principle of constitutional morality[28] [29].
• With this changing trend in understanding the concept of morality by the judiciary, there has been a huge evolution in the cases of Religion and the constitutionality of particular practices. It is pertinent to note that reform made by the state legislature should not change the entire acts or practices in pursuance of religion. It is a clause which provides that where there is a conflict between religious practice and the need for social reform, religion must yield. The state has to ensure that in the name of social reform should not affect the very essence of any religion. Social reforms mean eradication of practices which should not form the essence of religion or a practice which recognizes their existence or identity[30].
• The Supreme Court in the case of Sardar Sydena Taher Saifuddin Saheb v. State of Bombay[31] observed that the exception carved in Art. 25 (2) of the Constitution of India to the Freedom of Religion enabling the state to enact laws providing for social welfare and reform was not intended to enable the legislature to reform a religion out of its existence or identity. It was also stated that even while bringing in such a social reform it is not permissible to change the entire practice or acts done in pursuance of such religion[32].

India as a Secular State

The principle of secularism has been enshrined under Art.25 of the Indian Constitution, which is a non-discriminatory right and the Hon’ble Supreme Court had reiterated that liberty of thought, expression, belief, faith, and worship as a part of the basic structure of the Constitution[33]. Secularism is neither supporting any one particular religion nor a concept opposing any religion but it is a positive concept of treating all religions equally. Religion is more of a sense of belief which is followed by a group of people or even an individual.

But this does not mean that any practice followed by a particular sect or a group of people in the name of religion cannot be termed as a religious practice or secularism. The very idea of secularism followed in India is entirely different from other western countries where the state does not interfere with religious matters, however in India the State takes all measures to preserve & promote the age-old customs & traditions, which gives the country a unique identification among other countries across the world, it has also recognized secularism as a basic structure of the constitution[34].

The concept of Secularism is flexible and the western classical theories have given significance to the Wall of Separation model of Secularism. This model of Secularism says no to expression of religious feelings in public. It has been so because of the aggravated globalization and migration in the European countries. On the other hand, Indian secularism is influenced by numerous local factors.

It is also clear from the constitutional scheme that it guarantees equality in the matters of religion to all individuals and groups irrespective of their faith emphasizing that there is no religion of the state itself. The Preamble of the Constitution read in particular with Art. 25 to 28 emphasis this aspect and indicates that it is in this manner this concept of secularism embodied in the constitutional scheme as a creed adopted by the Indian people has to be understood while examining the constitutional validity of any legislation on the touchstone of the constitution[35].

The Indian Judiciary has an inevitable part in clearing lacuna in law relating to religion. It is very evident that the State can govern only the secular acts whereas with regard to the religious acts, the Constitution of India provides protection from the interference of State in religious matters. Ultimately, it is the Judiciary which alone has the right to interfere in the matters of religion and religious practices. One of the contributions of the Indian Judiciary in that field is the ERP (Essential Religious Practice) test. The Essential Religious Practice test emerged in India by virtue of the obscurity in the Shirur Mutt case[36]. The Hon’ble Supreme Court obliterated the assertion test, where the only basis to prove a particular act was not secular was the ‘assertion’ of a high capacious priest stating the same. The Essential Religious Practice test was brought in as a replacement to this test.

In the case of Durgah Committee v. Hussain Ali[37], the court held that: Articles 25 and 26 provide only essential and integral parts of religion immunity from state intervention. It also held that the immunity is provided not only to matters of doctrines or belief; but it extends to acts done in furtherance of religion such as rituals, observances, ceremonies, modes of worship which are considered to be fundamental parts of the religious practices. The Court also made an observation which stated that no immunity would be provided to superstitious, peripheral and unnecessary religious practices.

Conclusion

India is a unique State, believing in secularism and yet preserving its spirituality through constitutional provisions, legislation, State policy and judicial pronouncements. Maintaining a rational balance between secularity and religiosity, accommodating religious sensitivities of the people to a reasonable extent, avoiding religion-based discrimination among the citizens as far as possible, and endeavoring to put them on a par regardless of religious affiliation, are the basic features of religion-state relations in India. God and Caesar both have a place under the constitutional and legal set up of the country, but the scope of “what belongs to God” remains wider in India than in most other professedly secular societies.

[1] https://www.legalserviceindia.com/legal/article-1141-india-as-a-secular-state.html (13th Jan 2023)

[2] Ibid.

[3] Ibid.

[4] Rajeev Bhargava, “What Is Secularism For?” in Rajeev Bhargava, ed., Secularism and Its Critics (New Delhi: Oxford University Press, 1988).

[5] https://www.pewresearch.org/fact-tank/2021/06/29/key-findings-about-religion-in-india/ (13th Jan 2023)

[6] Ibid.

[7] "The Constitution (Forty-Second Amendment) Act, 1976". Government of India

[8]https://www.legalserviceindia.com/legal/article-1702-judicial-intervention-on-religious-matters-a-threat-to-secularism-.html (13th Jan 2023)

[9] 1994 AIR 1918

[10]https://web.archive.org/web/20011230175331/http://www.hinduonnet.com/fline/fl1422/14220170.htm (13th Jan 2023)

[11] Supra note 9.

[12]https://indiankanoon.org/doc/60799/?__cf_chl_jschl_tk__=238573f48275b685fc4286d86fb7f8d791b95b89-16051599430AUH3bFyciTLUFhD1SxBDxmdiWyx30gRbc9sKNMEp2AVFRikpp9Yj04upKlxDKg_g67cgonAuoofwtbmSbe7LiFvmdvh1UpVsGEiqmE8NRpW9IZOEaFfi0nC_hORolA9ehgyy8bJ19HFLaV5jtvnCBm9aDQBTprkgKXSxmi5tSu9XKBw1fOvLunDzLkIS1P5Hnoz1yZ6hRi3oBb7brYxYqdXJe3q0BNsLFbEaLkO_yaPSbwXcAdvByLdw3yqOivpiMoL6XXvbtnp3IQBCNCtUP6oABTxAbcofz2vMJei_V6_RBiFUFq0DniR6cd7PxtJ-IdP6T6u5yk3b1TowvbOVfS74wnCJe-ke8RIQXBt (13th Jan 2023)

[13] https://www.drishtiias.com/to-the-points/paper1/secularism-1 (13th Jan 2023)

[14]https://www.deccanherald.com/opinion/in-perspective/secularism-is-abasicfeatureofconstitution-786488.html (13th Jan 2023)

[15] https://en.wikisource.org/wiki/Constitution_of_India/Part_IV (13th Jan 2023)

[16] 1994 SCC  Supl.  (1) 713

[17] http://www.rediff.com/news/2002/may/21arvind.htm (13th Jan 2023)

[18] https://books.google.com/books?id=QmxuAAAACAAJ (13th Jan 2023)

[19] https://books.google.com/books?id=-tPXOgAACAAJ (13th Jan 2023)

[20] https://www.tribuneindia.com/2005/20050811/nation.htm (13th Jan 2023)

[21]https://www.constitutionofindia.net/constitution_of_india/fundamental_rights/articles/Article%252029 (13th Jan 2023)

[22] https://doj.gov.in/ (13th Jan 2023)

[23] A.I.R. 1952 Bom. 84

[24] Supra note 8

[25] (2014) 1 S.C.C. 1

[26] Supra note 8.

[27] Ibid.

[28] Ibid.

[29] Navtej Singh Johar v. Union of India Law Ministry  AIR 2018 SC 4321.

[30] Supra note 8.

[31] A.I.R. 1962 S.C. 853

[32] Supra note 8

[33] Kesavananda Bharati v. State of Kerala, (1973)4 S.C.C. 225

[34] S.R Bommai v. Union of India, (1994)3 S.C.C. 1

[35] M. Ismail Faruqui v. Union of India, A.I.R. 1995 S.C. 605.

[36] Commissioner, Hindu Religious Endowments, Madras v. Sri Lakshimindra Thirtha Swamiar of Sri Shirur Mutt AIR 1954 SC 282

[37] AIR 1961 SC 1402