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Published : February 28, 2012 | Author : Kirandeep Kaur
Category : Constitutional Law | Total Views : 15018 | Rating :

Kirandeep Kaur
Kirandeep Kaur Student LLM WB National University of Juridical Sciences

Ambit of Right to Freedom of Religion -A Comparative Study

An Attempt To Delve Into The Existing Scenario
Religion is one’s personal faith for self attainment of eternal bliss. Right to believe in one’s religion in particular does not affect anyone else. It is only when the belief is practised through outward acts that its exercise starts to affect the others around.

Constitutions of many countries guarantee freedom of religion and the laws of most of these countries also circumscribe the scope of the exercise of such right. These rights are mostly restricted on the grounds of ‘general welfare’, ‘morality’, ‘health’, ‘public order’, ‘rights of others’, etc. The terms used thus, are general terms and are subject to various interpretations, making it difficult for one to arrive at a uniform understanding of the limitation of right to freedom of religion.

In this regard, a comparison will be drawn between India and the United States, both of which are secular countries and an attempt will be made to delve into the right to freedom of religion as it exists there. An analysis will be drawn on whether the limitations to these rights in both the countries are on the same line and if not whether one of them needs to borrow some principles from the other in this regard.

Fundamental Right To Freedom Of Religion In India - An Overview
Fundamental right to freedom of religion is guaranteed under Articles 25, 26, 27 and 28 of Part III of the Indian Constitution. It is religious freedom in the background of a secular state. The Supreme Court of India has explained the secular character of the Indian Constitution thus:

“Secularism is neither anti-God nor pro-God, it treats alike the devout, the antagonistic and the atheist. It eliminates God from the matters of the state and ensures that no one shall be discriminated against on the ground of religion”.

The Indian society has nurtured different cultures from times immemorial and has been home to majority of the world religions and having such a historical lineage, the freedom of religion here holds great importance. Though important, it is not an absolute right and is subject to various restrictions. The restrictions are-

· Public order, morality or health.
· Other provisions of Part III of the Constitution.
· Regulation of non-religious activity associated with religious practice.
· Social welfare.
· Social reform.
· Throwing open of Hindu religious institutions of a public character to all classes and sections.

Any activity, usage or custom which contravenes the above restrictions is not considered a purely religious activity. In such circumstances, legislations for regulating it will be permissible. What constitutes a purely religious activity is a difficult question to answer at times. For instance, the right to take out a religious procession on a highway is not a part of the fundamental right and where breach of peace is apprehended, necessary restrictions can be imposed.

Dr. Ambedkar has explained the conception of religion in India as a vast one as it covers numerous aspects from birth till the death of a human being. If the state were to accept this conception of religion in India, social reforms would not be possible in the country.

The right of Sikhs to carry kirpans was acknowledged by the Nehru Committee of 1928. However, neither the Sikh religion nor the explanation to Article 25 entitles a Sikh to possess, without licence, more than one sword and for that he must obtain a licence. Article 25 (2) (b) also empowers the state to throw open Hindu religious institutions of a public character to all classes and sections of Hindus.

The term ‘propagate’ as used in art 25, owes its origin to the recommendation made by the Sub-Committee on Minorities. In the draft Article, the term ‘conversion’ was as such used by the drafters, but in the final Article the term was dropped, leaving the debate open as to whether the term ‘propagation’ included ‘conversion.’

For a long time, married men whose personal law does not allow bigamy have been resorting to the immoral practice of converting to Islam for the sake of contracting a second marriage under a belief that such conversion enables them to marry again without getting their first marriage dissolved. The Supreme Court of India outlawed this practice by its decision in the case of Sarla Mudgal v Union of India. The ruling was re-affirmed five years later in Lily Thomas v Union of India. In view of the above, the Law Commission suo motu took up the subject to examine the existing legal position on Bigamy in India along with judicial rulings on the subject and to suggest changes in various family law statutes.

It is also worth noting that Article 27 of the Constitution of India states in that no person shall be compelled to pay any taxes, the proceeds of which are specifically appropriated in payment of expenses for the promotion or maintenance of any particular religion or religious denomination.

Religious Activities - A Glance At Some Which Are Not
Secular activities, economic activities and political activities do not come within the ambit of right to religion and this has to be carefully examined in the light of the practices of the particular religion. A few examples are enumerated below-

· The right to elect members to a Committee to administer the Gurudwara property cannot be considered part of religion of the Sikhs.

· The sacrifice of a cow is not an obligatory act enjoined to the Muslim religion.

· Marrying a second wife, during the lifetime of the first wife cannot be considered an integral part of the Muslim religion.

· Custody of a minor for the purpose of rearing him up according to the father’s religion is not essential to any religion.

Also matters that come within the ‘personal laws’ like marriage, adoption, succession, do not form the essence of a religion and are thus subject to the larger interest of the society. Further, it is to be noted that the fundamental right to freedom of religion of a person cannot encroach upon the fundamental rights of the others.

The State has been conferred with the power of throwing open of religious institutions and of overriding religious injunctions which prohibit certain classes from entering into temples or other religious institutions. A crucial point is that, this power applies only to institutions of a public character and temples founded for benefit of particular sections of Hindus. The operation of the existing rights to religion are also not permitted to deter the state from making provisions for social welfare and reform or the throwing open of Hindu religious institutions of a public character to all classes and sections of Hindus.

Glimpses Of Freedom Of Right To Religion In The United States Of America
Professor Durham argues that moderate to substantial levels of government support to religion can be consistent with substantial levels of religious liberty, and that extreme forms of government separation from religion can amount to hostility, inconsistent with acceptable religious liberty.

The American Constitution addresses the issue of religion in two places: in the First Amendment, and the Article VI which prohibits religious tests as a condition for holding public office.

The First Amendment to the American Constitution forestalls compulsion by law, of the acceptance of any creed or any form of worship and safeguards the free exercise of the chosen form of religion.

Article 12 of the American Convention on Human Rights inter alia states that freedom to manifest one’s religion and belief may be subject only to the limitations prescribed by law that are necessary to protect public safety, order, health and morals or the right of freedom of others.

Freedom of religious belief means the right to worship God according to the dictates of one’s conscience.However, it has been held by the American Courts in various decisions that belief in one’s religion does not permit the following-

· Religious belief cannot be used as a reason to violate legislative restrictions which provide for public safety, morals, peace or order.

· Religious belief cannot be used to avoid those duties that a citizen owes to his nation. For example, it has been held that religious beliefs cannot stand in the way of State regulation of child labour, in the interest of healthy growth of young people, etc.

· Provisions of criminal law cannot be evaded in the name of in the name of religious belief.

It is also worth noting, that the protection that the First Amendment provides to the free exercise of religion, does not extend to a conduct that the state has validly prescribed.

For example, in Reynolds v United States, it was held by the court that a person cannot be excused in the name of religious belief, for his practices, when the statute had explicitly stated that multi marriages were not allowed. Thus, to permit polygamy would be like making a religious belief superior to the law of the land.

The State also has the power to enforce health regulations on the exercise of right to religion in regard to important issues such as vaccination, compulsory medical examination for admission of students to public schools, etc if need be.

In Goldman v Weinberger, Goldman was an officer in the United States Air Force and served as a clinical psychologist at a base's mental health clinic. He was an Orthodox Jew and ordained rabbi. Military regulations prohibited him from wearing his yarmulke indoors because headgear could not be worn inside "except by armed security police in the performance of their duties." While outdoors, Goldman wore his yarmulke underneath his service cap, but was warned that he would face disciplinary action if he was caught wearing his yarmulke inside. The Court held that the military is a "specialized society separate from civilian society" and "to accomplish its mission the military must foster instinctive obedience, unity, commitment, and esprit de corps." Rather than giving priority to their own beliefs, individuals in the military are to subordinate their own desires to the needs of the service.

However, the American Courts have held that keeping in mind the interpretation of the First Amendment to the American Constitution, the state must avoid excessive government entanglement with religion, like -
· Serve the essentially religious activities of a religious institution.
· Employ the organs of government for essentially religious purposes.
· Use government means to fulfil government ends when secular means could serve the purpose; etc.

The freedom of religious propaganda or solicitation can be regulated by the state in the interests of public safety, peace, comfort or convenience, or for the prevention of fraud, provided the restriction is not arbitrary or excessive.

Analysis After The Juxtaposition
The foremost observation of the analysis is that the Indian Constitution recognizes the ‘Right to Freedom of Religion’ as a fundamental right which is enforceable in the Supreme Court of India and the various state High Courts and in the United States, the right to freedom of religion is incorporated in the Constitution through the First Amendment thus, forming part of the Bill of Rights.

Freedom of religion in the American Constitution envisages two principles: one to ensure that the Government should be secular as it is forbidden to pass laws respecting “an establishment of religion” and the other, encompassing the individual and the institution the individual creates, which forbids any law to be made “prohibiting the free exercise of religion.”

In India all persons are equally entitled to freedom of conscience and the right freely to profess, practise and propagate religion. However, this right is subject to public order, morality and health and to the other provisions of Part III of the Constitution of India. It may pose that there are different standards in India and the United States but theoretically, the situation is same in both the countries. However, in practice, religion is subject to less interference in the United States than in India. Article 25(2) provides for state interference in matters relating to any economic, financial, political or other secular activity which may be associated with religious practice and relating to social welfare and reform or the throwing open of Hindu religious institutions of a public character to all classes and sections of Hindus. The American Constitution does not provide for any such State interference.

Generally, Indian courts take the determination on their own of what religion is in a given case and generally decide on the basis of the principle that those practices essential to a religion are to be given relative freedom. Whereas in the United States, the current standards of social duties and public order held by the society as a whole are taken into consideration while determining the ambit of right to religion in an instant case. Defining the ambit of social duties and good order is a tough task because these terms are generally prone to various interpretations.

Every category of control recognized in India is almost also recognized in the United States. However, a very important exception to this is that religious property, unlike India, is not recognized in the United States. Article 25(2)(b) of the Constitution of India empowers the state to provide for social welfare and reform or the throwing open of Hindu religious institutions of a public character to all classes and sections of Hindus. This power, especially that of social welfare and reform, conferred upon the state is huge enough to include any legislation not falling under the ambit other restrictions to religion

Both India and the United States are secular countries. The first amendment to the United States Constitution’s provides for freedom from state which however, doesn’t mean that state cannot interfere in matters which are also applicable to other entities. The ambit of right to religion is many a time very similar in both the countries. In Minersville School, Distt. Board of Education v Gobitis, two children of families affiliated with “Jehovah’s Witnesses” were expelled from school for refusing to salute the national flag as part of the daily exercise in the school. They refused to do so because being affiliated with “Jehovah’s Witnesses” they believed that saluting the flag would be contradictory to their holy scripture. It was held that there had been no infringement of right to religion by requiring salute to the flag because it was within legislative competence of the state to foster means for sentiments of national unity. However, the court changed this stand in West Virginia State Board of Education v Barnettein which it held that the act of the state in making it compulsory for children in public schools to salute the national flag constituted a violation of liberty of religion.

Here comparison can be drawn from a leading Indian case, that is, the case of Bijoe Emmanuel v State of Kerala where three children of the faith of “Jehovah’s Witnesses” stood respectfully when National Anthem was sung in their school but never sang. They were thus, expelled from school and the guardian of the children moved to the Kerala High Court but the matter was rejected by the division bench there. Then the matter came to the Supreme Court which held that expelling of the children in the instant case was violative of Articles 19(1) (a) and 25(1). The court reasoned that there is no provision of law which obliges anyone to sing the National Anthem if a person stands up respectfully when the National Anthem is sung but does not join in singing. The stand taken by the Supreme Court of India in the instant case and the American Supreme Court thus, are based on a similar reasoning and head towards the same direction.

In the United States, the compromise between conflicting interests is arrived at through a wall of separation between the state and religion. The main aim is to enable man to live in peace with his neighbour. A person’s belief could be absolute but he has no right to act in whatever way he pleases in the exercise of his religious beliefs and will also be very much subject to the criminal law of the United States very much like in India.

The Finding
A famous English historian, E. P. Thompson extolled the importance of Indian culture and spirituality in the following words:

"India is not an important, but perhaps 'the most important' country for the future of the world. All the convergent opinions of the world run through this society; Hindu, Muslim, Christian, Secular, Stalinist, Liberal, Moist, Democratic, Socialist and Gandhian. There is not a thought that is being taught in the West or the East which is not active in some Indian mind. If the sub-continent should be rolled up into authoritarianism and if the varied intelligence and creativity should disappear into conformist darkness - then, it would be one of the greatest defeats of a penumbra of other Asiatic Nations."

In the light of the above, it can be said that India as a nation is an amalgamation of various religions. So, the role of the courts in India in determining the ambit of right to freedom of religion is more active as compared to that in the United States. The multiplicity of religions in India warrants the need for exhaustive enumeration of restrictions to the right to religion as compared to the United States where the society is comparatively less diverse. One thus, comes to the conclusion that based on similar doctrines, the constitutional restrictions on the right to religion in India and that in the United States are apt for their own country respectively and both circumscribe the right to religion in their particular scenario appropriately.
# Part III of the Indian Constitution comprises all the fundamental rights guaranteed by the Constitution.
# Arora, D.S., 1990. Constitutional Rights and Limitations. 2nd ed. Hyderabad: The Law Book Company(P) Ltd., p. 271.
# It was held by the Supreme Court of India in S.R. Bommai v Union of India, AIR 1994 SC 1918, that secularism forms an integral part of the basic structure of the Indian Constitution.
# St. Xaviers College v State of Gujarat, AIR 1974 SC 1389, 1414.
# Such as- Hinduism, Islam, Christianity, Buddhism, Jainism, Sikhism and so on.
# Wani M.A., 2000. Freedom of Conscience: Constitutional Foundations and Limits. Journal of the Indian Law Institute. Vol 42.p.291.
# Ibid.
# Satyabadi v Officer Incharge, Sadar, Cuttak, 1968 CrLJ 1519.
# Constituent Assembly Debates, Vol VII.

# Kirpan is a ceremonial sword or dagger carried by orthodox Sikhs. The word kirpan has two roots - the first root is: Kirpa which means "Mercy, grace, compassion, kindness" and the second root is Aan which in turn means "Honour, grace, dignity". So together kirpan stands for "the dignity and honour of compassion, kindness and mercy."

# The "Nehru Report" (1928) was a memorandum outlining a proposed new Dominion (see dominion status) constitution for India. It was prepared by a committee of the All Parties Conference chaired by Motilal Nehru with his son Jawaharlal acting as secretary. There were nine other members in this committee including two Muslims.

# Rex v Dhyan Singh, AIR 1952 All 53.
# Headed by Harendra Coomar Mookerjee was a committee under the Constituent Assembly.
# Wani M.A., 2000. Freedom of Conscience: Constitutional Foundations and Limits. Journal of the Indian Law Institute. Vol 42 . p. 293.
# AIR 1995 SC 1531.
# (2000) 6 SCC 224.
# Law Commission of India (Report No. 227)
# Basu, D.D., 2008. Commentary on the Constitution of India.8th ed. New Delhi:Lexis Nexis Butterworths Wadhwa, p. 3483.
# Sarup v State of Punjab, AIR 1959 SC 860 (866).
# Quareshi v State of Bihar, AIR 1958 SC 731.
# Badruddin v Aisha ,(1957) ALJ 300.
# Ibid.
# Arora, D.S., 1990. Constitutional Rights and Limitations. 2nd ed. Hyderabad: The Law Book Company(P) Ltd. p. 272.
# Article 25(1) of the Indian Constitution.
# Article 26 of the Indian Constitution.
# Basu, D.D., 2008. Commentary on the Constitution of India.8th ed. New Delhi:Lexis Nexis Butterworths Wadhwa, p. 3504.
# Supra note 25.
# Article 25(2) of the Indian Constitution.

# Durham describes a range of regimes of religious liberty. The most restrictive “permits only internal freedom of religion, and limits religious freedom to its ineradicable-psychological minimum: the freedom to think and believe as one will, so long as absolutely no external manifestation of such belief occurs...A slightly enlarged version of religious freedom can be described as freedom of the hearth...[where] internal beliefs can at least be externalized within the walls of the home, so long as they are not disclosed outside that setting...Closely related is the freedom to change religion or belief...The next enlargement of religious liberty is...protection of freedom of worship, narrowly construed...[This] might be construed to permit group services in churches or other edifices, without allowing any manifestation of belief outside of such ‘private’ buildings...[Further extensions would allow communal and private conduct, and public conduct.] Finally...[religious liberty could] protect teaching, practice and observance...It is also vital that religious organizations and families have the right to teach the rising generation and new converts or potential converts. The independent right to freedom of speech will protect many of these practices, but the notion of freedom of religion more clearly implies the need to protect institutional structures needed to carry out processes of teaching and transmitting religious heritage and beliefs.”

# Jackson, V.C. and Tushnet, M., 1999.Comparative Constitutional Law. New York:Foundation Press, p.1144.
# First Amendment (1791) : “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”
# Article 12 of the Constitution of India
# [33] Downes v Bidwell, (1901) 182 US 244. Available at:< http://supreme.justia.com/us/182/244/case.html> [Accessed 23 September 2011]
# For example: the duty to receive military training. However, it was held in State Board of Education v Barnette, (1943) 319 US 624, that even in the interest of national unity, compulsory flag salute cannot be imposed on those who object to it as a form of worship of a ‘graven’ image.
# Prince v Massachussetts, (1944) 321 US 158. Available at:<http://supreme.justia.com/us/321/158/case.html> [Accessed 23 September 2011]
# For example: handling a live snake in course of church service, contracting a polygamous marriage when prohibited by law, committing human sacrifice, etc. as has been quoted in Basu, D.D., 2008. Commentary on the Constitution of India.8th ed. New Delhi:Lexis Nexis Butterworths Wadhwa, p. 3430.
# (1887) 98 US 145. Available at:< http://supreme.justia.com/us/98/145/case.html> [Accessed 23 September 2011]
# De, D.J., 2005. The Constitution of India .2nd ed. Hyderabad: S.P. GOGIA. Vol 1. p 1198.
# Basu, D.D., 2008. Commentary on the Constitution of India.8th ed. New Delhi:Lexis Nexis Butterworths Wadhwa, p. 3433
# Jacobson v Massachusetts, (1905) 197 US 11. Available at:<http://supreme.justia.com/us/197/11/case.html> [Accessed 23 September 2011]
# (1986) 475 US 503. Available at:< http://www.lexisnexis.com/hottopics/lnacademic/?> [Accessed 23 September 2011]
# In Judaism, ‘rubby’ is a teacher of Torah.
# ‘yarmulke’ is a skullcap worn especially by orthodox Jewish males in the synagogue and home.
# Basu, D.D., 2008. Commentary on the Constitution of India.8th ed. New Delhi:Lexis Nexis Butterworths Wadhwa, p. 3424.
# The freedom to act in the exercise of one’s religious belief, in the United States, includes the right to propagate that belief.
# Cantwell v Connecticut, (1940) 310 US 296. Available at: < http://www.lexisnexis.com/hottopics/lnacademic/?> [Accessed 23 September 2011]
# Article 32 of Constitution of India.
# Article 226 of Constitution of India.
# The Bill of Rights is the collective name for the first ten amendments to the United States Constitution, which limit the power of the U.S. federal government.
# Groves, H.E., 1962. Religious Freedom. Journal of the Indian Law Institute. Vol 4. p.190.
# Article 25(1) of the Constitution of India.
# Ibid.
# Article 25(2) of the Constitution of India.
# For this, the courts rely upon the doctrines of the particular religion.
# Groves, H.E., 1962. Religious Freedom. Journal of the Indian Law Institute. Vol 4. pp. 191-204.
# Article 26 of the Constitution of India.
# Groves, H.E., 1962. Religious Freedom. Journal of the Indian Law Institute. Vol 4. pp. 191-204.
# For example: A church which operates as a printing plant may have to pay minimum wages required of all employees -Mitchell v Pilgrim Holiness Church Corp., 210 F. 2d 879 (1954)
# 310 US 586 (1940). Available at:< http://supreme.justia.com/us/310/586/case.html> [Accessed 23 September 2011]
# Jehovah's Witnesses is a millenarian restorationist Christian denomination with nontrinitarian beliefs distinct from mainstream Christianity. They are directed by the Governing Body of Jehovah's Witnesses, a group of elders in Brooklyn, New York that exercises the final authority on all doctrinal matters.

# (1943) 319 US 624. Available at:< http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=319&invol=624> [Accessed 23 September 2011]
# 1986 (3) SCC 615
# Groves, H.E., 1962. Religious Freedom. Journal of the Indian Law Institute. Vol 4. pp. 191-204.
# As quoted in Atheist Society of India v Govt. of Andhra Pradesh, AIR 1992 AP 311.

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