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This article is written by Kritika Soni, a student of National Law Institute University, Bhopal

Introduction

Certain rights are necessary for an individual’s survival and growth. Many of these rights are acknowledged by the society, but the state recognises and enshrines some of the most significant rights in the Constitution known as the fundamental rights and these are essential, mainly because of two reasons. Firstly, they are listed in the Constitution, which guarantees them and secondly, they are justiciable, meaning that they are enforceable in the courts of law and if they are violated, the aggrieved individual can seek protection from the courts. Any law enacted by the government that restricts any of these rights will be deemed unconstitutional by the courts.

Freedom of Religion and Cultural & Educational Rights of Minorities are also a part of these fundamental rights provided under Part III of the Indian Constitution and are covered under articles 25 to 30.

Background Of The Topic

• Freedom Of Religion

One of the objectives given in our Preamble is “to secure to all its citizens liberty of religion, faith, and worship”. According to our Constitution, India is a “secular state” which signifies that the Indian state doesn’t have its own religion as it is a multi-religious country where Hindus, Muslims, Christians, Sikhs and many different communities coexist. However, it gives all Indian citizens complete freedom to believe in any religion and worship any religion as they see fit. But this should also not interfere with other people’s religious views or practices. This right is extended to not only Indian citizens but also foreigners as well. Articles 25-28 deal with Right to Freedom of Religion.

Article 25 talks about the freedom of conscience and people’s right to free profession, practice and propagation of any religion of their choice. Everyone has the right to religious freedom, including the freedom to profess, practise, and propagate their choice of religion. However, this doesn’t imply that one can force or persuade another individual to change to their religion. Various illegal, inhumane and superstitious activities have been banned in India. Religious rituals such as human or animal sacrifices for the purpose of worshipping gods and goddesses or supernatural entities have also been prohibited. Similarly, the law forbids a widow from being burned (either voluntarily or forcibly) with her deceased husband in the name of Sati Pratha. Similarly, there are still some social evils practised in the name of religion that include forcing widowed women not to marry again, shaving their heads, and forcing them to wear white garments. In addition to these limitations, the state has the authority to regulate any financial, commercial, political or other activities that are tied to religion. On the grounds of public order, morality, or health, the state may put restrictions on this right to religious freedom.

Article 26 includes the freedom of religious groups to manage their own affairs. Every religious group or section thereof has the right to establish and maintain institutions for its own religious and charitable purposes and also be able to manage its own affairs in matters relating to religion. They have the right to own and acquire movable or immovable property and be able to administer such property in accordance with law, while also being subject to grounds of public order, morality, and health.

Article 27 talks about the freedom so as to the payment of taxes for promotion of any religion. No one shall be forced to pay any sort of tax unless these earnings are specifically used to pay for any expenses made in the preservation or promotion of a specific religion or religious group.

Article 28 talks about the freedom to attend religious instructions or religious worshipping in certain educational institutions: Religious instruction shall not be provided in any educational institution that is entirely being funded by the state. It will not, however, apply to a state-run educational institution that has been created under a trust that mandates religious teaching to be taught there. However, no one who attends such an institution is obligated to participate in any religious instruction or worship that may be held there. In the case of a minor, his or her guardian’s permission is required to participate in such activities.

• Cultural And Educational Rights

India is the world’s largest democracy, with a wide range of cultures, dialects, scripts and faiths. Democracy, as we all know, is based on the majority rule. Minorities, on the other hand, are also as crucial for its smooth operation. As a result, minorities’ language, culture, and religion must be protected in order for them not to feel marginalized or neglected under the majority rule. Because people take pride in their own culture and language, particular rights known as the Cultural and Educational Rights has been included in the Indian Constitution. Two key provisions have been made in Articles 29-30.

Article 29 states how the interests of minorities have to be protected.Any minority group with its own language, script, or culture has the right to preserve all of it. Also, no citizen shall be refused entry to any state-run educational institution or receive state-funded aid solely on the basis of religion, race, caste, or language, or any combination of these factors.

Article 30 talks about the right of minority groups or sections of the society to establish and administer their own educational institutes. Minorities have the right to create and run educational institutions of their choice, whether based on their religion or language. The State shall ensure that the amount fixed by or determined under such law for the acquisition of any property of an educational institution established and administered by a minority doesn’t restrict the right guaranteed under that clause when making any law providing for the compulsory acquisition of such property. The State shall not discriminate against any educational institution that is managed by a minority, whether based on religion or language when awarding aid to educational institutions.

Landmark, Recent Judgements

• S.R. Bommai v. Union of India[1] – In this case, a nine-judge panel concluded that secularism is a fundamental component of the Indian Constitution and is a part of its basic structure. It further stated that religion and politics shouldn’t be combined. If the state pursues non-secular policies or actions, it is violating the constitution’s mandate. All citizens of a state are equal and should be treated as such. In concerns of the state, religion shall play no role. In India, everyone has the right to practise their religion, yet religion, faith, and belief are irrelevant from the standpoint of the state.
• Bijoe Emmanuel v. State of Kerala[2] – Three children from a religious cult (Jehovah’s Witnesses) refused to perform the national song “Jana Gana Mana” because they only worshipped Jehovah (the creator). The children claimed that singing Jana Gana Mana was against their religious faith’s precepts, which forbade them from singing this national hymn. These children stood silently for the national anthem every day, but refused to sing because of their sincere belief. A commission was formed to investigate the situation. The Commission claimed in the report that these children were “law-abiding” and “did not exhibit any disrespect.” The students were, however, ejected by the headmistress on the orders of the Deputy Inspector of Schools.

The Supreme Court, however, ruled that the decision of the headmistress to expel the students from school for refusing to perform the national anthem constituted a violation of their religious freedom as fundamental rights granted by Articles 19(1)(a) and 25(1) had been infringed upon. It went on to say that there is no law that requires or obligates anyone to sing the national anthem and that standing respectfully but not singing the national anthem is not disrespectful at all.

• Gulam Abbas v. State of UP[3] – A conflict arose between Shias and Sunnis over the Shias’ performance of religious ceremonies on a specific plot of land in Varanasi’s Doshipura. The Supreme Court formed a commission to investigate the case and advised that Shia graves be relocated to separate the Shia and Sunni sects’ places of worship. These recommendations were contested by the Sunni sect as being violative of their fundamental rights under Article 25 and 26. These arguments were later dismissed by the court and the Supreme Court ruled that the basic right protected by Articles 25 and 26 is conditional on public order.
• Church of God (Full Gospel) v. K.K.R. Majestic Colony Welfare Association[4] – The Supreme Court ruled that nowhere in any religion does it say that praying should be done with drums or voice amplifiers, as this disrupts the calm and quiet of other people. If such a practise exists, it should be carried out without jeopardizing or impinging upon the rights of others, including the right to be undisturbed in their own respective activities.
• Shayara Bano v. Union of India[5] – Popularly known as the Triple Talaq case, the key question here was whether the practise of Talaq-e-biddat (triple talaq) is a matter of faith for Muslims and whether it is a part of their personal law. The court concluded that the practise of Talaq-e-biddat is illegal and unconstitutional by a 3:2 majority. The court also decided that an injunction would keep the Muslim male from committing triple talaq until a legislation is enacted. Finally, on July 31st, 2019, the Muslim Women (Protection of Rights on Marriage) Act, 2019 went into effect, with the goal of “protecting the rights of married Muslim women and prohibiting the Muslim male from divorcing his wife by pronouncing talaq.”
• Azeez Basha v. Union of India[6] – The Supreme Court ruled that if a minority community did not establish an educational institution, they do not have the authority to run it. The terms “established” and “administered” must be read together.
• T.M.A Pai Foundation v. State of Karnataka[7] – In this instance, it was held that a minority institution can have its own procedure and method of admission as well as a criterion of selecting students contingent on the fact that such a procedure must be fair and transparent and the selection of students in professional and higher education colleges should be on the basis of merit. The procedure adopted or selection made shall not be equivalent to maladministration. Even an unaided minority institution shall not ignore the merit of the students to the colleges aforesaid because in that case, the institution will have failed to achieve academic excellence.

Conclusion

In terms of religion, India is the most diverse country on the planet. It does not have a national religion because it is a secular country and every citizen has the freedom to choose, practise, spread, and even change their faith. These rights, however, are not absolute and are subject to certain limitations and restrictions imposed by the Constitution so as to prevent any sort of misuse. In the name of religion, no one can do anything that is against public policy or causes any type of unrest or intolerance among the Indian people. “Unity in Diversity” is the motto of our constitution. Minority status is determined not only by religion, but also by language differences. Because of our Constitutional provisions, minorities are able to preserve and further develop their culture. Minorities, whether linguistic or religious, haven’t been prohibited from establishing educational institutes of their choice because in order for a democracy like India to flourish and move forward, it is to be made sure that all the sections of the society do not feel marginalized or neglected but rather safeguarded by their Constitution.

Suggestions And Recommendations (Future Scope Of The Topic)

In a country like India, religion plays an important role in people’s lives. Thus, making sure that each citizen has their freedom to choose and profess a religion of their choice, gives India a chance to flourish and progress further as a society.

But at the same time, the Constitution makers were also right to ensure that this shall not be an absolute right and shall be subject to certain conditions, so that it doesn’t interfere with the peace and harmony of the society. Citizens shall not be easily offended and aggressively defensive about their religion since that only leads to a breach of public peace and safety. They shall understand that at the end of the day, if they face any injustice or a wrongdoing, they’re always welcome to approach the courts for remedy rather than taking matters in their own hands and resulting in violence and loss of harmony. Another suggestion is that since India is a secular country, the government while coming up with policies shall always keep religion as far away from it as possible. It is the government’s duty to make sure that any policy they implement includes all groups and sections of this country and isn’t beneficial to just one religious group but to anyone and everyone.

[1] AIR 1994 SC 1918

[2] 1986 SCR (3) 518

[3] 1982 SCR (1) 1077

[4] AIR 2000 SC 2773

[5] (2017) 9 SCC 1

[6] 1968 SCR (1) 833

[7] AIR 2003 SC 355