ABSTRACT
The religious freedom granted under Indian Constitution is most sacred part under which very person’s belief, faith and worship is protected. Still this right is not absolute, uncontrolled freedom is not available to India citizens. This paper will analyse the scope and the essence of Secularism that is embedded in the preamble and in the various articles of the Constitution India from the fundamental rights which grant religious freedom (Articles 25-30) for the citizens with the help of various incidents and case laws. This paper intends to bring out the various problems faced due to non-secular oppression such as and how the same were tackled by the essence of Secularism in the Constitution. This paper will also address the fact that even though religious freedom is subject to reasonable restrictions and the concept of Secularism, such restrictions cannot be implemented in an arbitrary manner and how religious freedom is subject to the rights of others. This paper will bring out the same by determining the Role of the Supreme court of India in the area of Secularism and freedom of religion.
KEYWORDS: Secularism, the Supreme Court of India, religious freedom, corruption.
1.0 INTRODUCTION
In a country like India, which is rich in religious and cultural diversity, in order for there to be peaceful and harmonious dwelling among all such religious and cultural groups, there is a need for strong secular laws which ensure the protection of each and every one of the citizens, especially the minorities. Indian constitutional framers tried to bring to their new state to thoughts of innovation and radicalism by making a government that would guarantee citizens’ rights while additionally making the conditions for democratic citizenship. Adjusting these two objectives has been especially testing with respect to religion and to overcome this, the brand of Secularism is most appropriate to the specific social and historical conditions of independent India. Every citizen of India has the full right to practice his religion and promote and spread his religion. Thus, this concept has been embedded in the preamble as well as the fundamental rights of the citizens in the Constitution of India.
1.1 PURPOSE AND SCOPE OF PAPER
This paper aims to define the outlines of Secularism and religious freedom in India, explain the bounds and extent of Secularism and independence of religion of Indian citizens. This paper will also try to analyse the power of Supreme Court in interpreting freedom of religion and the upkeep of Secularism. The Article 25 to 28 of Indian Constitution deals with religious freedom of citizens. The Interpretation of Articles by the Apex court of India to determine the reasonable restrictions. Present research is going to be conducted also to determine the religious freedom guaranteed under Indian Constitution.
1.2 RESEARCH METHODOLOGY
The researcher will adopt a Doctrinal Research methodology for conducting the present research. The current problem will be addressed by the researcher by utilising various online journals and repositories such as Manupatra, HeinOnline, Jstor etc., by analysing the works of various authors. The doctrinal research will also involve analysis of case laws, the Acts of parliament.
- LITERATURE REVIEW
In their paper, Meaning and Scope of Secularism Under the Indian Constitution, Dr NK Indrayan and Prof. Samir Rujna have brought out the various aspects of the religious features of the Indian Constitution and have shown how such aspects have been upheld by the courts and how the same has been interpreted by them in various cases and are leaning towards a secular framework of the system.
2.1 HYPOTHESIS
If there is a violation of a fundamental right with respect to religion in India, how far will the Supreme Court go in order to protect the same?
2.2 RESEARCH QUESTIONS
- What are the provisions available to secure religious freedom and Secularism?
- How has the Supreme Court of India interpreted such provisions or aspects of Secularism?
3.THE SCOPE OF SECULARISM
Under this chapter, an exploratory study into the various court decisions made with respect to religion and the fundamental rights granted to citizens with respect to the same shall be analysed under the broad umbrella of the concept of Secularism that has benn upheld by the Indian judiciary and how the Supreme court of India has interpreted and defined such aspects.
3.1 THE INDIAN CONSTITUTION AND SECULARISM
In this chapter we shall look into cases with respect to constitutional articles and cases which display the aspect of Secularism in them.
3.1.1 ARTICLE 25
Article 25 deals with the freedom to profess, practice and propagation of religion. The Supreme Court, in the case of N. Adithayan v. The Travancore Devaswom Board[1], faced a case where the appointment of a non-brahmin priest in a shiva temple was alleged to be a violation of article 25. The Court, however, held that such an appointment was fair and legal and was necessary for the progress of the society and to get rid of religious barriers.
3.1.2 ARTICLE 27
The object of Article 27 is to keep up Secularism and said Article would be abused if the considerable portion of the whole personal tax gathered in India, or a generous piece of the whole focal extract or the traditions duties or deals tax, or a significant piece of some other tax gathered in India, were to be used for advancement or support of a specific religion or strict section. Nonetheless, if just a generally little piece of any tax gathered is used for giving a few comforts or offices or concessions to any religious section, that would not be violative of Article 27 of the Constitution. This was upheld by the Supreme Court of India in the case of Prafull Goradia v. Union of India.[2]
3.1.3 ARTICLE 28
In the case Bijoe Emmanuel and Ors. v. State of Kerala, 3 children of Jehovah’s Witnesses group were expelled from their school due to their refusal of singing of the national anthem stating that it is in contradiction of the canons of their faith. The Court held that dismissal is violative of the fundamental rights and the right to freedom of religion granted under article 25 of the Indian Constitution.
3.2 JUDICIAL IMPORTANCE GIVEN TO SECULARISM
One of the essential civil freedoms of an individual is the freedom of his mind and his soul. Protection of freedom of the psyche, conscience and thought being the best freedom alone can make conceivable and significant different freedoms. In the event that the mind and soul of humankind are in the chain, the wide range of various privileges would get useless. A free brain and a free soul, in this manner, is the fundamental, basic and crucial establishment of all other common freedoms.
The Constitution of India, being the distinguished law of the land, perceives the strict freedom of the individuals just as the relationship of individual joined by normal convictions, practices and discipline.
In the landmark judgement of Kesavananda Bharati v. the State of Kerala[3], seven judges out of the 13-judge bench pronounced the decision that “secularism” is certainly an integral part of the basic structure doctrine embodied in the Indian Constitution.
The Constitution of India perceives the opportunity to purport, rehearse and spread the religion under Article 25. Section (1) of Article 25 ensures every opportunity of conscience: and the privilege to (I) profess religion; (ii) practice religion; and (iii) engender religion. The term ‘religion’ has not been categorised in the Indian Constitution, however, the importance given by the Supreme Court of India to the religion can allude now. In the case of The Commissioner, Hindu Religious Endowments V. Sri Lakshmindra Thirtha Swamiar Of Sri Shirur Mutt[4] the Supreme Court of India held:
Religion includes certainty with individuals or organisations and it isn’t generally mythical. Religion has its reason in a course of action of feelings or standards, which are regarded by the people who indicate that religion as supportive for their powerful success. A religion may not simply set out a code of ethnic rules for its followers to recognise, yet it might similarly embrace customs and observances, capacities and strategies for worship, which are seen as fundamental bits of religion. The Court further held that what establishes the essential part of a religion is mainly to be determined with respect to the procedures of that religion itself and thus requiring considerable internal regulation.
This “essential practices test” verbalised in the Shirur Mutt decision would turn into a foundation of Indian legal speculation on religion, and not just with respect to Hinduism. In Mohd. Hanif Quareshi v. State of Bihar[5], a gathering of Muslims contended that a Bihar law forbidding cow slaughter (according to the Directive Principles of the Constitution) disregarded their freedom of religion, as Muslims were constrained by their religion to sacrifice cows at Bakr-Id. The offended parties lost the case, to some extent on the grounds that the Court confirmed that the sacrificing of cows at Bakr-Id (rather than other creatures) was not an essential practice for the Muslims.
Further, in the case of Ratilal Panachand Gandhi vs The State Of Bombay,[6] the Supreme Court of India held that the right to religion is not a right assured just to the citizens of the nation but extends to all persons with the inclusion of aliens too.
In the case, Sri Venkataramana Devaru v. the State of Mysore[7], the Court, with respect to entry into temples, found that the state legislature allowing all Hindus, including low caste Hindus, the right to enter temples did not violate the rights of religious institutions under Article 26(b) of the Constitution.
The Court has held that a second marriage after conversion to Islam does’nt annull the first Hindu marriage, except when a decree of divorce is obtained. The Lily Thomas court focused on the fraudulent nature of the conversion and not the need for a Uniform Civil Code.
- CONCLUSION
The corrupt political structure has been increasing religiousness and loyalty toward their own religions, which indirectly lead to communal disharmony in our plural society. In such a situation, it seems that Secularism is not possible in India. But it is true that Indian Democracy, which is here to stay, is in itself a guarantee for the future of Secularism. If Secularism is not adopted, then the country will be divided into numerous parts; people will demand independent states on the basis of religion, ethnic group, caste, race, language end economic condition.
4.1 RECOMMENDATIONS
- I strongly recommend that this practice needs to be carried on by the Indian Judicial System.
- The government has to bring in a lot of education and religious sensitisation programmes to various parts of the country where there are large scale communal issues and religious issues. People need to become more open-minded and not have such biases, and these programmes will play a large role in the same.
- There has to be the bringing in of a Uniform Civil Code and the abolition of personal laws to realise Secularism in its purest form and thus a complete removal of religious discrimination of any kind in any field so concerned.
- BIBLIOGRAPHY
- Godrej, Farah. “Secularism in India: A ‘Gandhian’ Approach.” Multiculturalism in the British Commonwealth: Comparative Perspectives on Theory and Practice, edited by Richard T. Ashcroft and Mark Bevir, 1st ed., University of California Press, Oakland, California, 2019, pp. 150–166. JSTOR, jstor.org/stable/j.ctvr7fcvv.11. Accessed November 5 2020.
- Rajarajan, R. “SECULARISM IN INDIAN POLITICS: THEORY AND PRACTICE.” The Indian Journal of Political Science68, no. 2 (2007): 403-12. Accessed November 5, 2020. http://www.jstor.org/stable/41856335.
- Sharma, Rohit, The Study of Secularism in India: With regard to the Constitution, Constitutionalism in India and Society (May 26, 2020). Available at SSRN: https://ssrn.com/abstract=3610649or http://dx.doi.org/10.2139/ssrn.3610649
- Adithayan v. The Travancore Devaswom Board, AIR 2002 SC 3538.
- Prafull Goradia v. Union of India, (2011) 2 SCC 568.
- Kesavananda Bharati vs. State of Kerala, AIR 1973 SC 1461.
- Commissioner, H.R.E. v. L.T. Swammiar, 1954 AIR 282.
- Hanif Quareshi v. State of Bihar, AIR 1958 SC 731.
- Ratilal Panachand Gandhi vs The State of Bombay, 1954 AIR 388.
- Sri Venkataramana Devaru v. State of Mysore, AIR 1958 SCR 895.
[1]N. Adithayan v. The Travancore Devaswom Board, AIR 2002 SC 3538.
[2]Prafull Goradia v. Union of India, (2011) 2 SCC 568.
[3] Kesavananda Bharati vs. State of Kerala, AIR 1973 SC 1461.
[4] Commissioner, H.R.E. v. L.T. Swammiar, 1954 AIR 282.
[5] Mohd. Hanif Quareshi v. State of Bihar,AIR 1958 SC 731.
[6]Ratilal Panachand Gandhi vs The State Of Bombay, 1954 AIR 388.
[7] Sri Venkataramana Devaru v. State of Mysore, AIR 1958 SCR 895
