·
Indian secularism is not anti-religious (wall of
separation in USA – American
version of secularism erects a strict wall of separation between the state and
religion.) but is equal treatment of all religions
·
This was done so as to reform evil practices
prevalent in Indian society such as devdasi, untouchability, Sati etc.
·
This freedom seeks to bring social equality
·
Religion need not be theistic. Eg – Buddhism,
Jainism
·
Religion is system of belief and doctrines which
are regarded as those who profess that religion to be conducive to their
wellbeing. It also includes rituals, ceremonies, observances and modes of
worship. It thus also includes religious
practices.
·
Religion consists of essential and non-essential
practices. Article 25 & 26 protect only those practice which are essential
and integral to that religion.
·
The
State can regulate secular or temporal matters associated with religion but not
essential religious practices.
·
What constitutes essential or integral part of
his religion is a matter for court to decide with reference to the doctrines of
a particular religion and includes practices regarded by community as part of
religion.
·
Indian secularism does not follow equidistance but principled
approach.
·
Essential
Features of Secularism in India:-
o
Freedom of practice, profess and propagate
religion. (Article 25)
o
Right of every religious denomination to manage
its own affairs in matters of religion. (Article 26)
o
Right against taxation proceed of which goes
towards benefit of any religion. (Article 27)
o
Right against religious education in state
institutions. (Article 28)
o
State shall have no official religion.
o
There should be no discrimination on the ground
of religion. This has been ensured by Articles 14, 15(1) and (2), Articles
16(2) , 29(2) and 325.
o
Secularism part of basic structure. (SR Bommai v.
Union of India)
·
Every denomination has the right to set up
religious institutions subject to certain provisions. (Article 26)
·
Denomination is a collection of individuals, classed together
under the same name.
·
Characteristics of Denominations (SP Mittal v
Union of India):
o
Common faith
o
Common organization
o
Designation by distinctive name
Commissioner, Hindu
Religious Endowments, Madras v. Sri Lakshimindra Thirtha Swamiar of Sri Shirur
Mutt
·
The
constitutionality of Madras Hindu Religious and Charitable Endowments Act, 1951
was challenged on the ground of infringement of Article 26. The legislation was
enacted for the purpose of acquiring control over the ‘secular’ activities of
the Religious Endowments, namely.
·
Many
provisions of the enactment were struck down by Court on different counts, it
upheld the inspection of accounts and even inspection of temples by the State
authorities since, according to the court; it did not interfere with the
essential aspects of religion.
·
Court
defined the scope of ‘secular’ activities using ‘essential principles test’. It
was held that for defining social welfare content the judiciary can distinguish
essential from the non-essential activity.
·
“What constitutes the essential part of a
religion is primarily to be ascertained with reference to the doctrines of that
religion itself”
Bijoe Emmanuel v State of
Kerala
·
Three children belonging to Jehovah’s Witness refused to sing
the National Anthem. They refrained from actual singing but only because of
their aforesaid honest belief and conviction and used to stand up in respectful
silence daily, during the morning assembly when the National Anthem was sung.The
school expelled them for not singing the national anthem.
·
The court held that refusal to sing the anthem did not constitute an offence under
Prevention of Insults to National Honor Act 1971 as they had not shown any
disrespect to national anthem.
·
The court held that not singing the national
anthem was an aspect of free speech under Article 19(1) (a) which includes the
freedom of silence which could be curtailed only under the grounds mentioned
under Article 19(2).
Commissioner of Police v Jagdishwarananda Avadhut
·
The Commissioner of Police, Calcutta imposed a ban on Tandava Dance performed
in public place and streets.
·
Commissioner’s order was challenged by the followers of Anand
Marga as infringing their rights under Article 25 and 26. The Court went
through the origins of Ananda Marga and found that Tandava dance performed by carrying
trident, snakes,damroo, lathi, and human skull in public is not an essential
part of Anand Marga.
M Ismail Faruqui v Union
of India
·
Constitutionality of an Act which temporary vested in the Central
Government the disputed and adjacent land in Ayodhya where Babri Masjid
existed.
·
The court apart from holding that the act was
not ultra vires to the constitution also held:
o
Right to practice, profess and propagate
religion does not include the right to acquire, own and dispose of property.
o
The State has power to a acquire Mosque/ Temple
or other religious places.
o
Right to freedom of religion does not extend to
the right to worship at any and every place of worship.
o
A mosque is not an essential part of practice
Islam and Namaz can be offered anywhere even in open.
Sheshamal v State of Tamil Nadu
·
An act was passed which made certain hereditary
religious offices non-hereditary and prescribed certain qualifications for them
irrespective of caste, creed or race. The Act was passed with an object of social
reform measure, and was challenged on the ground of violation of Article 25(1)
and 26 (b).
·
Petitioner contended that under the law a
trustee could appoint any one as priest if he possessed requisite
qualifications irrespective of his being a Savaite or Vaisnavite which
constituted a violation of freedom of religion.
·
The Court held that the appointment of a priest
was a secular act and appointment of priest on hereditary principle despite its
religious usage was not an integral part of religion. The Court upheld the
validity of the law.
Rev Stanislaus v State of MP
·
State of Madhya Pradesh and Orissa passed laws
prohibiting conversion by force, fraud or inducement. These laws were
challenged as violative of Article 25 of the Constitution.
·
The apex court held that the right to propagate
religion guaranteed by Article 25(1) includes right to propagate but does not
guarantee a right to convert another to one’s own religion.
Lily Thomas v Union of India
·
Husband,
while still married to his first wife, converted to Islam in order to marry
another woman. When first wife sued under bigamy, husband claimed that his
conversion, under right of freedom of religion (Art 25), was valid and his new
religion allowed multiple wives.
·
Court held that one cannot convert so as to take
advantage of a personal law.
·
Freedom of religion is not violated by a law to punish
a Hindu convert to Islam for bigamy if he contracts another marriage while the
first marriage subsists.
Church of God v. KKR Majestic Colony Welfare Association
·
The court justified the Environment Protection
Rules (1986), which prohibits noise pollution, on the grounds that loud
preaching is not an essential or integral part of the religion.
·
Further even if loud preaching is deemed to be
essential and integral practice of a religion, the loud preaching would violate
a person’s liberty to not hear something they didn’t want to.
·
Court
held that freedom of religion cannot violate any of the other fundamental
rights.
Sri Adi Vishashwara of Kashi Vishwanath v State of UP
·
A law providing for board of trustees for the
management of Kashi Vishwanath Temple after taking over from temple priests was
held not to interference in matters of religion but only a regulation of the
administration of the temple which was in an awful condition.
Atheist Society of India v. State of Andhra Pradesh (1992)
·
Petitioner wanted to stop practices such as
Bhoomi Pujan, and chanting of mantras by the government in its official
functions
·
Court held that these practices are cultural and
not religious, done to invoke blessing of god
·
Judgment much criticised as this affect
atheist’s right to conscience
Mohd. Ahmed Khan v. Shah Bano Begum
·
Woman filed for maintenance under §125 of
CrPC
·
Court held that even if personal law does not
allow for maintenance then also maintenances can be sought under the central
law
Saifuddin Saheb v State of Bombay
·
The Bombay government enacted a law called
Prevention of Excommunication Act to prohibit ex-communication on the ground of
religion prevalent in Dawood Bohra sect of Muslims.
·
The Supreme Court held the Act was
unconstitutional on the ground that the power of the head of Dawood Bohra
community to excommunicate was absolute and an essential part of religion and
the State could not interfere in the matter of religion.
·
Here there was a conflict between the
individual’s right to freedom of religion and religious denomination’s right to
manage its affairs in matters of religion. The court gave primacy to the right
of religious denomination over the right of the individual. This judgment was
another example of legal positivism of the Indian Supreme Court.
Mohd Hanif Quareshi v State of Bihar
·
Constitutionality of a legislation prohibiting
cow slaughter was challenged as infringing the rights of Muslims to sacrifice
cows on Bakr-Id day.
·
After
going through the Islamic scripture Koran, the Supreme Court held that
sacrifice of cow on Bakr Id day was not an essential part of Islam because
there was an option of a cow, a camel or six goats to be sacrificed on this
day. Therefore slaughtering of cows could be restricted by legislation.
T.M.A. Pai Foundation v State of Karnataka
·
Prior to this case, it was undecided whether
right to establish and maintain religious institutions for charitable purposes
under 26(a) would also cover the establishment of institutions for general
education. However, the Court in TMA finally established that religious
denomination do have the right under 26(a) to establish and maintain
institutions for general education, recognizing education as charity. (The
right cannot be claimed or defended is the education is not being provided as a
charity)
Commissioner H.R.E. v Sri Lakshmindra Thirtha Swamiar of Shri Shirur Mutt
·
Section 56 of the Madras Hindu Religious and
Charitable Endowments, Act 1951 empowered the Commissioner, at any moment, to
deprive the ‘mahanta’, of his right to administer the property even if there
was no negligence or maladministration.
·
Although the State’s right under 25(2)(a) will
generally trump the denomination’s rights under 26(c)(d), the court held that
the state’s ability to encroach upon the denomination’s rights should be
reasonable. The state can regulate but not completely take away a denomination’s
right to own and administer property. In this case section 56 was held as
violating Article 26(c)(d) as it completely extinguished the denomination’s
right under 26(b).
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