SECULARISM AND FREEDOM OF RELIGION


1. The preamble to the Constitution which contains the ideals and aspirations or the objects which the Constitution makers intended to be realised clearly proclaims that the people of India have solemnly resolved to constitute India into a SOVEREIGN SOCIALIST SECULAR DEMOCRATIC REPUBLIC. The expression " Socialist Secular" was inserted in the preamble by the Constitution (42nd Amendment) Act, 1976. The object of inserting this expression was to spell out expressly the high ideas of socialism and secularism and the integrity of the Nation. In short, the object of the Government, in making this amendment was to make explicit what was already provided in the Constitution.

Even before the word 'secular' was inserted in the preamble in 1976, in 1973 the Supreme Court observed that secularism was a basic feature of the Constitution. So far as secularism is concerned, Articles 25 to 30 provide for the same. In Kesavanada V State of Kerala (AIR 1973 S.C. 1461) and in Indira V Rajnarain (AIR 1975 S.C. 2299) the Supreme Court has observed that by secularism it is meant that the State shall not discriminate against any citizen on the ground of religion only and that the State shall have no religion of its own and all persons shall be equally entitled to the freedom of conscience and the right freely to profess, practise and propagate religion. To spell out the above ideas which in fact existed prior to 1976, the preamble to the Constitution was amended in 1976.

2. In the background of the proclamation in the preamble to the Constitution that India is a secular country i.e. India shall have no religion of its own and all persons shall be entitled to the freedom of conscience and the right freely to profess, practise and propagate religion, the recent activities targetted against Christians in Gujarat, Madhya Pradesh, Rajasthan and Orissa will have to be examined.

3. The right to freedom of religion is a fundamental right guaranteed under Article 25 of the Constitution of India. Article 25 reads as follows:-

25 (1) Subject to public order, morality and health and to the other provisions of this Part, all persons are equally entitled to freedom of conscience and the right freely to profess, practise and propagate religion.

(2) Nothing in this article shall affect the operation of any existing law or prevent the State from making any law-

(a) regulating or restricting any economic financial political or other secular activity which may be associated with religious practice;

(b) 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.

Explanation I. The wearing and carrying of Kirpans shall be deemed to be included in the profession of the Sikh religion.

Explanation II. In sub-clause (b) of clause (2), the reference to Hindus shall be construed as including a reference to persons professing the Sikh, Jaina or Buddhist religion, and the reference to Hindu religious institutions shall be construed accordingly.

This Article guarantees that every person in India shall have the freedom of conscience and shall have the right to profess, practise and propagate religion, subject to the restrictions that may be imposed by the State on the following grounds, namely:-
(1) public order, morality and health;
(2) other provisions of the Constitution;
(3) regulation of non-religious activity associated with religious practise;
(4) social welfare and reform;
(5) throwing open of Hindu religious institutions of a public character to all classes of Hindus.

The freedom of religion conferred by this Article is not confined to citizens of India alone but extends to all persons including aliens and individuals exercising their rights either in their individual capacity or on behalf of some church or institution. Freedom of conscience connotes a person's right to entertain beliefs and doctrines concering matters, which are regarded by him to be conducive to his spiritual well being.

A person has freedom to believe in the religious tenets of any sect or community. The right is not only to entertain such religious beliefs as may be approved by his judgement or conscience but also to exhibit his sentiments in overt acts as are enjoined by his religion. According to this Article, he may 'profess, practise and propagate his religion'.

To profess a religion means the right to declare freely and openly one's faith. Modes of worship considered by a religion to be its integral and essential part are also secured. He may propagate freely his religious views for the edification of others. Thus, freedom of conscience would be meaningless unless it is supplemented by the freedom of unhampered expression of spiritual conviction in word and action.

The right to propagate one's religion means the right to communicate the person's beliefs to another person or to expose the tenets of that faih, but would not include the right to convert another person to the former's faith, becuase the latter is equally entitled to freedom of conscience.

Ofcourse, the latter person is free to adopt another religion in the free exercise of his conscience. Thus, Article 25(1) guarantees to every person not only the right to entertain such religious beliefs as may appeal to his conscience, but also the right to exhibit his belief in his conduct by such outward acts as may appear to him proper in order to spread his ideas for the benefit of others. Therefore, every person is guaranteed the freedom to practise his religion- or to spread it if he so wishes - if that freedom is not abused to commit crimes or indulge in anti social activities.

4. Any attempt to impose a ban on all religious conversions would interfere with one's right to propagate one's religion under Article 25(1), apart from infringing the right to freedom of speech guaranteed under Article 19(1) of the Constitution. The Supreme Court has held that there is no fundamental right to convert another person to one's religion as such a right would infringe on the right to freedom of conscience guaranteed to all citizens of the country alike.

In this context, the Supreme Court has upheld the validity of the Acts passed by the Madhya Pradesh and Orissa Govts., which prohibited forcible conversion from one religion to another in a manner reprehensible to the conscience of the community and which made conversions by force, fraudulence or allurement an offence. Please see Rev Stainislaus vs State of M.P. (A.I.R. 1997 SC 908)

5. The resultant position is that Article 25(1) of the Constitution does not guarantee the right to convert but only the right freely to profess, practise and propagate one's religion. Forcible conversion which is likely to give rise to an apprehension of breech of public order and which is reprehensible to the conscience of the community is not permissible under this Article.

It is absolutely impossible to forcibly convert any person against his will. No Christian missionary has ever been accused of resorting to physical threats while propagating the religion. The said Article unequivocally states that people have the freedom to freely profess and practise, the religion of their choice. This means that if a person propagates his faith to another person and the person to whom the faith is propagated is convinced and wants to profess or practise it, he has the right to do so. If this is not allowed then the right to propagate religion guaranteed by the Constitution will be meaningless.

6. The question whether the right to propagate one's religion should be incorporated in Article 25 (draft Article 19) was the subject matter of discussion in the Constituent Assembly on 3.12.1948 and 6.12.1948. Although some members expressed the view that the right to propagate should not be included in Article 25 (1), the majority of the members felt otherwise. The following are the views expressed by certain members:-

Shri. T.T. Krishnamachari
The right to propagate one's religion is not given to any particular community or to people who follow any particular religion. It is perfectly open to Hindus and Arya Samajis to carry on their suddhi propaganda as it is open to the Christians, the Muslims, the Jains etc., so long as they do it subject to public order, morality and the other conditions that have to be observed in any civilized Government. So, it is not a question of taking away anybody's rights.

It is question of conferring these rights on all citizens and seeing that these rights are exercised in a manner which will not upset the economy of the country, which will not create disorder and which will not create undue conflicts in the minds of the people. ---------- Sir, I know as a person who has studied for about fourteen years in Christian institutions, that no attempt has been made to convert me from my own faith and to practise Christianity.---------------- The fact that many people in this country have embraced Christianity is due partly to the status that it gave to them. Why should we forget that particular fact?

Shri. K. M. Munshi
Even if the word 'Propagate' were not there, I am sure that under the freedom of speech which the Constitution guarantees it will be open to any religious community to persuade other people to join their faith. So long as religion is religion, conversion by free exercise of the conscience has to be recognised.

Pandit Lakshmi Kanta Maitra
By secular State, as I understand it, is meant that the State is not going to make any discrimination whatever on the ground of religion or community against any person professing any particular form of religious faith. -------------

The Indian Chrisitian community happens to be the most inoffensive community in the whole of India.

Shri. L. Krishnaswami Bharathi
I fully agree that the word 'Propagate' ought to be there.-------------- in the present context of circumstances we must educate our people on religious tenets and doctrines. So far as my experience goes, the Christian community has not transgressed their limits of legitimate propagation of religious view and on the whole they have done very well indeed. It is for other communities to emulate them and propagate their own religions as well. -------- it is a right given to all sectional religions.

Shri. K. Santhanam
After all propagation is merely freedom of expression, I would like to point out that the word 'convert' is not there. ----------- Perople have freedom of conscience and if any man is converted voluntarily owing to freedom of conscience, then well and good. No restrictions can be placed against it. But if any attempt is made by one religious community or another to have mass conversions through undue influence either by money or by pressure or by other means, the State has every right to regulate such activity.

It will be seen from the above that the framers of our Constitution intended that all persons including aliens should have the freedom of religion and the right freely to profess, practise and propagate religion and accordingly enshrined the above right as a fundamental right in Article 25 of the Constitution.

Chennai - 10.
16.02.1999
(P. JEYASINGH PETER)
(Former Commr.&Secretary to the government of
Tamilnadu & Former member, State Law Commission)