CIVIL

Religious Law in India

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  • Under the 1992 National Commission for Minorities Act, five religious communities – Muslims, Sikhs, Christians, Parsis, and Buddhists – were considered minority communities.
  • Federal and state laws related to religion included the Foreign Contribution Regulation Act, 2006 (FCRA), several state level “anticonversion” laws, the Andhra Pradesh antipropagation law, the 1967 Unlawful Activities Prevention Act, the 1988 Religious Institutions (Prevention of Misuse) Act, the 1946 Foreigners Act, and the 1869 Indian Divorce Act.
  • “Anticonversion” laws are in force of five of the 28 states: Gujarat, Orissa, Chhattisgarh, Madhya Pradesh, and Himachal Pradesh. Although Arunachal
    Pradesh enacted its law in 1978, the government has yet to frame the rules needed for enforcement. Gujarat has a Freedom of Religion Act (2003) and Rules (2008) that proscribed religious conversions by means of allurement, force, or fraud. The 1967 Orissa Freedom of Religion Act also prohibits religious conversion “by the use of force or by inducement or by any fraudulent means nor shall any person abet any such conversion.”Himachal Pradesh’s state assembly enacted the Freedom of Religion Act in 2006. In 2007 Andhra Pradesh enacted the Propagation of Other Religions in the Places of Worship or Prayer (Prohibition) Law.
  • Indian penal code(IPC), under section 153A, prohibits “promoting enmity between different groups on grounds of religion, race, place of birth, residence, language, and doing acts prejudicial to maintenance of harmony.” IPC section 295A prohibits “deliberate and malicious acts, intended to outrage religious feelings or any class by insulting its religion or religious beliefs.
  • The government observes numerous religious holidays as national holidays, including: Good Friday and Christmas (Christian); the two Eids (Islamic); Lord Buddha’s Birthday (Buddhist); Guru Nanak’s Birthday (Sikh); Dussehra, Diwali,
    and Holi (Hindu); and the Birthday of Lord Mahavir (Jain).
  • Muslim sects in India : Sunni, Shia, Bohra, Khoja, Deobandi, Barelvi, and Salafi .

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Constitutional provisions

The preamble to the India  Constitution was amended by the Constitution (Forty-second Amendment) Act 1976 to include the word ‘secular’ along with ‘socialist’, to declare India to be a ‘Sovereign Socialist Secular Democratic Republic.

  • Articles 15 and 16 prohibit the State from discriminating against any citizen on the ground only of religion in the matters of access to various public facilities or public employment. Articles 25 to 28 guarantee freedom of religion in its various facets. Clause (1) of Article 25 declares that all persons are equally entitled to freedom of conscience and the right to freely profess, practise and propagate religion. Article 26 guarantees to every religious denomination the rights to acquire and administer property in accordance with law to manage its own affairs in matters of religion and to establish and maintain institutions for religious and charitable purposes. Article 27 prohibits the State not to subject any person to any tax the proceeds of which are to be utilised for the promotion or maintenance of any particular religion. Article 28 on the one hand prohibits any kind of religious instruction in any educational institution wholly maintained out of the State funds, but recognises the right of a privately established institution to provide religious instruction, etc.
  • It must be noticed that Articles 25 to 28 deal with the fundamental rights regarding the freedom of religion irrespective of the fact whether the religion is the religion of the minority or majority population of this country. In fact the rights guaranteed under the above mentioned Articles are extended even to persons other than citizens.
  • Under Article 298, it is declared that the executive power of the Union and of each State extends to carrying on of any trade or business and also to acquire, hold and dispose of property and making of contracts for any purpose.

Devider

Court Observations

BULLET 2SR Bommai v Union of India (1994) 3 SCC 1- Explained secularism
The ambit and meaning of the expression “secularism” contained in the preamble of the Constitution fell for the consideration of the Supreme Court in S.R.Bommai v. Union of India[(1994) 3 SCC 1]. A Larger Bench of the Supreme Court, of nine Judges, considered the issue. Six separate opinions were delivered. Four Judges – Justice P.B.Sawant, Justice K.Ramaswamy, Justice B.P.Jeevan Reddy who spoke for himself and Justice S.C.Agrawal – made an elaborate enquiry into the  meaning of the expression “secularism”. Justice Sawant, on an analysis of Articles 25 to 30 and also Articles 14 to 16, the preamble of the Constitution and Article 51A of the Constitution, opined at para 146 as follows:

“These provisions by implication prohibit the establishment of a theocratic State and prevent the State either identifying itself with or favouring any particular religion or religious sect or denomination. The State is enjoined to accord equal treatment to all religions and religious sects and denominations.”, and again at para 148 the learned Judge held as follows:

“One thing which prominently emerges from the above discussion on secularism under our Constitution is that whatever the attitude of the State towards the religions, religious sects and denominations, religion cannot be mixed with any secular activity of the State. In fact, the encroachment of religion into secular activities is strictly prohibited. This is evident from the provisions of the Constitution to which we have made reference above. The State’s tolerance of religion or religions does not make it either a religious or a theocratic State. When the State allows citizens to practise and profess their religions, it does not either explicitly or implicitly allow them to introduce religion into non-religious and secular activities of the State. The freedom and tolerance of religion is only to the extent of permitting pursuit of spiritual life which is different from the secular life. The latter falls in the exclusive domain of the affairs of the State”.

Justice Jeevan Reddy, once again, on a consideration of the relevant Articles of the Constitution, at para 304 opined as follows:

“While the citizens of this country are free to profess, practice and propagate such religion, faith or belief as they choose, so far as the State is concerned, i.e., from the point of view of the State, the religion, faith or belief of a person is immaterial. To it, all are equal and all are entitled to be treated equally. How is this equal treatment possible, if the State were to prefer or promote a particular religion, race or caste, which necessarily means a less favourable treatment of all other religions, races and castes. How are the constitutional promises of social justice liberty of belief, faith or worship and equality of status and of opportunity to be attained unless the State eschews the religion, faith or belief of a person from its consideration altogether while dealing with him, his rights, his duties and his entitlements? Secularism is thus more than a passive attitude of religious tolerance. It is a positive concept of equal treatment of all religions. This attitude is described by some as one of neutrality towards religion or as one of benevolent neutrality. This may be a concept evolved by western liberal thought or it may be, as some say, an abiding faith with the Indian people at all points of time.

in Kesavananda Bharati [(1973) 4 SCC 225] and Indira N. Gandhi v. Raj Narain [1975 Supp SCC1]. Any step inconsistent with this constitutional policy is, in plain words, unconstitutional.

It does not mean that the State has no say whatsoever in matters of religion. Laws can be made regulating the secular affairs of temples, mosques and other places of worships and maths ( S.P.Mittal v. Union of India [(1983) 1 SCC 51]”

Madras High Court Kidangazhi Manakkal Narayanan Nambudiripad v. State of Madras [AIR 1954 Madras 385]. Justice Venkatarama Aiyar, speaking for the Bench, on an elaborate examination of the scheme of the American Constitution as expounded by the various decisions of the American Supreme Court and the scheme of the Indian Constitution, opined:

“Apart from making provisions in respect of particular subjects, the Constitution does not enact a general prohibition of legislation in respect of “establishment of religion”. In this respect our Constitution makes a substantial departure from the American Constitution”.

He further held:

“On the other hand, there are provisions in our Constitution which are inconsistent with the theory that there should be a wall of separation between Church and State”.

BULLET 2Indian Constitution does not create an absolute embargo on the State’s association with every and any religious activity; nor does the Constitution permit the establishment of a theocratic State.  Constitution also recognise a distinction between practices which are essentially religious and activities which are secular, but associated with religious practice. Such activities include the economic, financial, political activities associated with religious practices. They are expressly made amenable to regulation by law.The distinction is recognised by the Supreme Court in The Commissioner, Hindu Religious Endowments, Madras v. Sri.Lakshmindra Thirtha Swamiar of Sri Shirur Mutt [1954 S.C.R.1005=AIR 1954 S.C.282]

The US Supreme Court over a period of time recognised that there is a “zone of required accommodation”. The Supreme Court formulated various tests to determine whether a particular State action is within the zone of required accommodation or not; such as the test of ‘political neutrality’, ‘secular purpose’, ‘secular effect’ and ‘excessive entanglement’.

There exists major difference between the Constitution of India and U.S. is that Article 30guarantees a fundamental right in favour of the minorities, whether based on religion or language, to establish and administer educational institutions of their choice. Such express provision is absent in U.S. Constitution. The ambit of the said right has been the subject matter of debate before the Supreme Court in the case of St.Stephen’s College v. University  of Delhi [AIR 1992 SC 1630].The majority of the Supreme Court, speaking through Justice K.Jagannatha Shetty, held* that “minorities cannot be treated in a religious neutral way”


Construction of Haz house

In Mahanagar Gaziabad Chetna Munch v. State of U.P. (2007 (2) AWC 1113) a Division Bench of the Allahabad High Court had occasion to consider the legality of the decision of the State of U.P. to lease out a piece of land to the Haj Samithy of U.P. for a period of 30 years and also the payment of an amount of Rupees two crores from out of the State fund for construction of the Haj House.

The Court on an elaborate consideration of the matter concluded as follows:

“………….we do not find that any sum from the State exchequer is proposed to be utilized for the promotion or maintenance of any particular religion or religious denomination but to facilitate pilgrims for going Haj. Facilitating the pilgrims is an administrative action, which can not be held to be religious action for its promotion or maintenance”


Haz subsidy

Supreme Court in Writ Petition (Civil) No.1 of 2007 dated 28.01.2011 (Prafull Goradia v. Union of India)while considering the Constitutionality of the Government of India’s granting subsidy in the air fare of the Haj pilgrims, specifically in the context of Article 27 of the Constitution of India. The Supreme Court rejected the challenge and observed as follows:-

“In our opinion Article 27 would be violated if a substantial part of the entire income tax collected in India, or a substantial part of the entire central excise or the customs duties or sales tax, or a substantial part of any other tax collected in India, were to be utilized for promotion or maintenance of any particular religion or religious denomination. In other words, suppose 25 per cent of the entire income tax collected in India was utilized for promoting or maintaining any particular religion or religious denomination, that, in our opinion, would be violative of Article 27 of the Constitution”.