Freedom of religion

Right to the freedom of religion has many elements. There are extensive provisions in the constitution regarding this right. The Article 25 to 28 are about this right. These article provides for

Article 25: All persons are equally entitled to freedom of conscience, the right to freedom.

profess
practice
And propagate religion. Note: Propagation does not include ‘forced conversions’.

Article 26: Freedom to Manage Religious Affairs

To establish and maintain institutions for religious and charitable purposes
Own and acquire movable and immovable property
Right to administer the property

Article 27: Freedom for Taxation for promotion of religion.

No person shall be compelled to pay taxes for the promotion and maintenance of any religion.

Article 28: Freedom from attending religious instruction.

No religious instruction shall be provided in any educational institution wholly maintained out of state funds.
Religious instructions are permitted if it is established by endowments or trust.
Article 28(3): No person attending any educational institution recognized by the State or receiving aid out of State funds shall be required to take part in any religious instruction that may be imparted in such institution or to attend any religious worship that may be conducted in such institution or in any premises attached thereto unless such person or, if such person is a minor, his guardian has given his consent thereto.

What is Secularism?

Secularism separates religion from government, social, economic, and cultural aspects of life.
India is a secular country, no official state religion.
All religions treated with equal respect.
Engrained in Indian Constitution through 42nd Amendment.
Fundamental in Indian democracy, coexistence of faiths, no discrimination.

Models Of Secularism – Indian & Western

The concept of secularism in India involves a separation of the state from religion, but in a different way than in the Western model.
In the Western model, secularism means complete separation of the state from the Church, with both institutions not interfering in each other’s domains.
In India, the state and religion are not completely separate, with the government having some limited influence on religious affairs.
Unlike the Western model, the Indian state provides financial support to religious institutions and allows minorities to establish their own educational institutions.
Many Hindu temples are directly governed by the state.
The state also sets up Boards for the administration of large temples and the Waqf Board.
In India, the term pluralism is more fitting than secularism when talking about society and community, as many religious groups have shared spaces and thrived together for centuries.

Case studies on article 25

Sabarimala case

Sabarimala case is one of the most prominent examples of usage of ERP test for ascertaining the religious cases.
In this case, Former CJI, Dipak Mishra along with J. AM Khanwilkar concluded that the practice of banning women from entering the temple is not an essential part of Hinduism, instead, that allowing women devotes in the temple is an essential part of the religion.
It was also concluded that the Ayyappas do not constitute as a religious domination. Thus it has no right under article 26 (b) to bar women entry in the temple.
The only woman judge, J. Indu Malhotra, dissented in her opinion and maintained that the issue concerns deep religious sentiments that the court should not interfere in unless there is any aggrieved person from that section or religion.
This dissenting opinion once again brought the need to bring in clarity on application of ERP test. It has been used by judiciary as per their own discretion.

Haji Ali dargah case

In the Haji Ali Dargah case in 2016, Bombay High Court was dealing with the question whether women should be allowed in the inner sanctorum of dargah or not?
Bombay High Court upheld the right of women to access the inner sanctum of the Haji Ali Dargah.
In this case the Court first invoked the “essential religious practices test” –e., was the exclusion of women from the inner sanctum of a shrine an “essential” or “integral” part of Islam? And held that restricting entry of women in dargah is not an essential religious practice.
Court also held that Haji Ali Dargah Trust is not a religious denomination, thus has no right under article 26(b) to manage affairs in the matter of religion.

Religious conversions

Robasa Khanum vs. Khodabad Irani’s case, brought into the question the conduct of spouse who converted to another religion. In this case court held that this kind of case has to be judged on the basis of the rules of justice equity and good conscience.
Court further observed that 2nd marriage of the spouse after conversion would go against the natural justice. A husband has right to embrace Islam, but has no right to marry again before getting his marriage dissolved under the Hindu marriage act.
Thus 2nd marriage has amount to bigamy under section 494 of IPC and declared void.

Triple Talaq

Constitution Bench with majority dictum in Sharia Bano case held the practice of instant triple talaq (Talaq-e- Biddat) is invalid.
The Supreme Court, with a majority of three judges, has held “personal laws can no longer be privileged over Fundamental rights.
Justice Kurian Joseph’s in this judgment was of the opinion that the practice of talaq-e-biddat is against the basic tenets of holy Quran, the very basis of Muslim Personal Law (Shariat). Thus, it cannot be covered under the Essential Religious Practice of Islam and cannot be protected under article 25 and 26.

Freedom of religion, Freedom of religion