Religious freedom and India

 

The term religion' is not defined in the constitution.

The Indian Constitution does not specify religious denominations; court decisions must be consulted to determine what constitutes a religious denomination.

• Examples of religious denominations are Shaivism, Shaktism, and Vaishnavism in Hinduism, and Shia and Sunni in Islam.

SP Mittal v. UoI: SC established three standards that a religious group must meet:

• A group of people who share a shared faith.
• A common structure.
• A distinct name is used for identification.

 

Constitutional provisions:

U/A 25: freedom to profess, practice, and propagate religion to all citizens

• Article 25(1): subject to public order, morality, and health, and to the other provisions of Part III of the Constitution, the freedom of conscience and the right to profess, practice, and propagate religion
• Article 25(2): Nothing in this article shall affect the operation of any existing law or prevent the state, from making any law.
• Regulating or restricting any economic, financial, political, or other secular activity that may be associated with religious practice.
• Providing for social welfare and reform, or the throwing open of Hindu religious institutions of a public character to all classes and sections of Hindus.

 

The right of Sikhs to wear and carry kirpans is a recognized practice under U/A 25. He is entitled to keep only one sword. He cannot possess more than one kirpan without a license.

 

Article 26: Subject to public order, morality, and health, every religious denomination or any section thereof shall have the right

• To establish and maintain institutions for religious and charitable
• To manage its own affairs in matters of religion
• To own and acquire movable and immovable property.
• To administer such property in accordance with the law

 

Haji Ali Dargah Trust Issue:

• The trust barred women from entering the sanctum sanctorum; the Bombay HC lifted the ban.
• HC had said that it contravenes Articles 14, 15, and 25.

 

Trivikram Narain Singh v. State of UP:

• Allahabad HC upheld the validity of the UP-Sri Kashi Vishwanath Temple Act, 1988, vesting the entire property, movable and immovable, in the deity Shri Kashi Vishwanath and the administration and management, which were entrusted to a board.

 

Article 27: Freedom from taxes for the promotion of any particular religion

• No person shall be compelled to pay any taxes for the promotion or maintenance of any particular religion or religious denomination.
• The state cannot spend the money collected via tax on the promotion of any particular religion.

It highlights one of the secular components of the Indian constitution.

It only prohibits the levy of taxes, but there is no restriction on the collection of fees.

 

Article 28: Prohibition of Religious Instruction in State-Aided Institutions

• No religious instruction shall be provided in any educational institution wholly maintained out of state funds.
• Clause (1) shall not apply to an educational institution that is administered by the state but has been established by any endowment or trust that requires that religious instruction be imparted in such institution.
• 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.

Article 28 mentions four types of educational institutions:

1. Institutions are wholly maintained by the state; no religious instructions can be imparted.
2. Institutions recognized by the state
3. Institutions that are receiving aid out of the state fund.
4. Institutions that are administered by the state but are established under any trust or endowment have no restriction on religious instructions.

(The institutions recognized by the state and the institutions that received aid out of state funds can impart religious instruction only with individual consent.)

Excommunication:

The Bombay Prevention of Excommunication Act defines excommunication as the “expulsion of a person from any community of which he is a member, depriving him of rights and privileges which are legally enforceable by a suit of civil nature.”.

In practical terms, it means:

• Not allowed to access a place of worship belonging to the community or a burial dedicated to the community.

 

Sardar Syedna Saifuddin v. State of Bombay

1949: A member of the Dawoodi Bohra community filed a suit, saying that some orders passed by their leaders are unlawful.

The 51st leader of the community, Sardar Syedna Taher Saifuddin Saheb, challenged the constitutional validity of the above act, as the act violates fundamental rights under U/A 25 and 26.

Petitioners side:

• The Quran does not permit excommunication, which is against the spirit of Islam.
• The right to regulate religious communities does not include the right to excommunicate, as per A25/26.

Opposite side:

• The practice of excommunication is an essential part of the Dawoodi Bohra faith.
• The power of excommunication is part of the management of community affairs in matters of religion.
• depriving the Dai (leader) of the right and making its exercise a penal offense “struck at the very life of the denomination."

Verdict: Dai’s (leadership) position is an essential part of the community, and the power to excommunicate is to enforce discipline and preserve the denomination, not to punish.

 

The Maharashtra Protection of People from Social Boycott (Prevention, Prohibition, and Redressal) Act, 2016:

• It describes a social boycott as "inhuman" and defines 16 types of social boycott.

Oct. 20, 2022: The court said that it would consider whether the practice of excommunication that was protected by the 1962 order can continue.