legislations on religious matters: parliamentatry …

Indian Constitutional Law Review | Edition III (July 2017)

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LEGISLATIONS ON RELIGIOUS MATTERS:

PARLIAMENTATRY AND JUDICIAL POSITIONS

Jai Prakash Meena

LL.M. Student, NALSAR, University of Law, Hyderabad

ABSTRACT

Religion is a matter of individual belief or faith therefore constitutional provision also recognize such and

provide freedom of religion under Article 25 to Article 30 of the Indian Constitution. After 42nd Amendment

Act, 1976, “secular” term added into preamble of constitution which provides that state shall remain neutral

toward any particular religion. State shall not promote and make any kind of discrimination toward any

particular religion. However, there are certain provisions in the constitution which make state intervention

into matter of religion as valid ground, i.e. public order, morality, health etc.

Keywords: freedom of religion, secular state, anti-conversion laws, Shah Bano Case, Uniform civil code.

RELIGION IN INDIAN CONSTITUTION

The term “religion” is nowhere defined in the Constitution. In general, religion is a matter of

individual faith or belief in supernatural entity. The ultimate object of each religion is to get

salvation. Religion is a means which helps an individual in getting salvation. In Commissioner,

H.R.E. v. L.T. Swamiar,117the Supreme Court explained religion as matter of faith which not

necessarily theistic. Religion not only lay down a code of ethical rules for its followers to accept

but also it might prescribe ritual and observances, ceremonies and modes of worship which are

considered as basic elements of religion.118

Religion in its broad sense includes all forms of faith and worship, all the varieties of man’s belief

in a superior being or a moral law. It also includes ritual and practices which is solemnized during

the process of worship.

117 AIR 1954 SC 282 118 id



CONSTITUENT COMMITTEE DEBATE: HISTORICAL PERSPECTIVE OF

RELIGION

During the framing of Indian Constitution, fram ers of Indian Constitution were well versed

regarding communal situation prevailing throughout the India. At that time, India was facing

communal violence between majority and minority i.e. Hindu and Muslims. At that time, religion

and cast were major constrain in unity of nation. Many parts of country were facing division within

the society on the grounds of cast and religion. There was multi diversity of various religions in

India. Therefore, the framers of constitution decided to be liberal towards religion and caste.

However, the term ‘secular’ was not added but they used it through freedom of religion as

fundamental rights.

Jawaharlal Nehru attributed secularism as a combination of sarvadharma sambhava (goodwill

towards all religion) and dharma nirapekshta (religious neutrality). 119 Thus secularism state

tolerates and respects all religions.

FREEDOM OF RELIGION UNDER INDIAN CONSTITUTION

Article 25 to 28 provides freedom of religion as fundamental rights. These Articles use the term

‘person’. Therefore freedom of religion is available to every persons, citizen or non-citizens or

aliens. 120 Under article 25, freedom of conscience and freedom of profess, practice and

propagation of religion is provided to every person. Here by freedom of conscience means the

inner freedom of a person to establish his relation with God in whatever manner he likes. In other

words, it means the freedom to entertain religious beliefs, which is genuinely and consciousness

held, attracts the protection of Article 25(i).121

To profess a particular religion means to declare freely and openly one’s faith or belief in. When

the inner “Freedom of conscience” becomes articulate and expressed in an outward form, it

amounts to profess religion.122Right to practices religion means acts done in pursuance of religious

belief. These rights are not absolute. There are certain restrictions on freedom of religion under

Article 25. Rights under Article 25 are subject to public order, morality and health policy. Right

119 Sarvepalli Gopal, Jawaharlal Nehru :An Anthology (Delhi: Oxford University Press, 1980), p. 327 120 Ratilal Panchand Gandhi v. State of Bombay, AIR 1954 SC 388 121 Ratilal v. State of Bombay, AIR 1954 SC 388 122 Punjab Rao v. D.P. Meshram, AIR 1965 SC 1179



to propagation means to spread and publicise his own religion thoughts for uplifting of other, but

without use of any element of coercion. Article 26 provides freedom to manage religious affairs

through religious groups. It means right under this article is exercised through religious group, not

only through individual. Religious group can manage their affair, own property and can establish

and maintain institution for charitable purposes. However these rights also not absolute. State can

make intervention only when question of public order, morality and health. Article 27 imposes

prohibition upon state that state cannot compel anyone to pay tax for the purpose of promotion of

any specific religion. Article 28 further prohibits religious instruction in institutions which is fully

controlled and funded by the state. However this proviso will not be applicable to institutions

which are administered by state and established under any endowment or trust which require

transmit of such instruction is necessary in such institutions. 123 Thus both article 27 and 28

maintains the spirit if secularism.

SECULARISM THROUGH 42ND AMENDMENT

The object of inclusion of secularism in the preamble is to express what was already provided

through Article 25-30 and to prevent possible oppression from majority community i.e. Hindus.

The word ‘secularism’ in constitution reflected through Article 25-30 and Part-IV to the

Constitution containing Article 51-A which provide fundamental duties.

By secularism, state shall remain neutral toward all religion. It can be said that there shall not be

official religion of India. The state will neither establish a religion of its own nor confers any

special support to any particular religion.124 State shall not discriminate on the sole basis of religion

in providing equal treatment to citizens.

Secularism is the basic integral part of the Indian constitution.125 In St. Xavier’s College v. State

of Gujrat,126 the Supreme Court explained that ‘secularism’ is “neither anti-god, nor pro-God ; it

treats alike the devout, the agnostic and the atheist.” Secularism in Indian Constitution cannot be

termed as it defined in western context. Unlike question of sentiment in west, secularism is subject

of law in Indian Constitution.

123 Article 28 (2) of 124 India v. Rajnarain, AIR 1975 SC 2299 (PARA. 665) 125 S.R. Bommai v. Union of India (1994) 3 SCC 1 126 AIR 1974 SC 1389



The attitude of impartiality towards religion adopted through freedom of religion under Article 25

to 28 of the Indian constitution. Idea of secular state is that that man is governed by relation

between man and man, not by relation with god. The status of India under the constitution is

secular which emphasis on neutrality of state into individual religious matters. State cannot make

intervention into religious matters until and unless its subject to public order, morality and health.

Article 25 provides individual freedom of religion. Article 26 provides collective freedom of

religion.

In case of S.R. Bommai v. Union of India127, Supreme Court explained characteristics of secularism

which are followings:

• The object of secularism in the constitution is to establish egalitarian social order. This is

the basic integral part of the fundamental rights as well as Indian political system.

• Before the 42nd amendment, secularism was embedded in constitution. Through 42nd

amendment, what was implied was made express only.

• Constitution provisions restrain the state to intervene or discriminate or favor any particular

religion.

• Secularism is the positive concept which provides equal freedom and treatment to all

religion.

• Despite being neutral toward religion, it does not mean that state is weak state in context

of religion. Under secularism, freedom of religion is not absolute. Freedom of religion is

to only such extent till where it does not intervene with freedom of other religion. Thus

state can make reasonable intervention to protect violation of freedom or principles of other

religion.

RELIGION AND POLITY: THE CONSTITUTIONAL SCENARIO OF INDIA

For politicians religion has become a tool to fulfill their political ambitions and politician maintains

that “politics is the horse on which the religion should ride”.128 Political parties with overt religious

127 (1994) 3 SCC 1 128 Jagdish Narayan Dash, “Religion and Polity : The Constituttional Scenario in India,” In, Constitution and

Constitutionalism In India, edited by Surya Narayan Mishra, Subhash Chandra Hazary and Amareshwaer Mishra

(New Delhi, APH Publishing Corporation,1999),86



identities use religion not only to gain power, but also to show secularism in as an alien concept,

and therefore is anomalitics.129 But this increasing use of religion in politics is not success as well

as helpful in providing political stability to the state. It only creates instability and confusions all

around.

Therefore, at present scenario ‘secularism’ is considered as different phenomenon, against

what founding fathers of Constitution had really underscored. Their aim of providing freedom for

the exercise of ‘true religion’, by which they clearly meant ‘faith’. The Indian constitutional system

prescribes that state shall not interfere in religious practices unless these are contrary to public

order, morality and health. But, today most of the limitation imposed on the grounds of morality

alone.

RELIGIOUS LEGISLATION AND STATE PRACTICE

There are a large number of religious legislations enacted by the various state legislations for

various religious faiths. By enacting legislations on religious matters, state followed and acted

within the ambit of constitutional provisions related to religions and balanced it with secular

character of state.

RELIGIOUS CONVERSION

To prohibit forceful conversion and regulate the activities of religious conversion, some states had

enacted legislation related to conversions. The first state which enacted such kind of legislation

was Orissa. Orissa through enactment of “Orissa Freedom of Religion Act, 1967” prohibit

conversion through forceful means or inducement or by any fraudulent means.130 After Orissa,

Madhya Pradesh also introduced anti-conversion legislation in 1968.131 Arunachal Pradesh132,

129 Id.

130 Orissa Local Act, No. 2 of 1968 (came into force on January 9, 1968). 131 Madhya Pradesh Freedom of Religion Act, 1968 132 Arunachal Pradesh Freedom of Religion Act, 1978



Himacha Pradesh133, Gujrat134 and Rajasthan135 are other states which also enacted anti-conversion

laws. The object of all enactment is similar i.e. prohibit forceful conversion under pretext of right

to propagate religion.

RELIGIOUS ENDOWMENTS

In furtherance of freedom of religion given under Article 26, there is some legislation enacted to

regulate the activities of religious bodies. However, purpose of these enactments is not to intervene

but to provide legal framework which will helps in protection extended to religions. Since

independence, a large number of legislations enacted to regulate and govern the working of

endowment and trusts. All enactment related to religious endowments introduced by various states

of Indian territory. So far no central legislation enacted which regulate the management of trusts

and endowment. Some examples of such kind of legislations are the Bihar Hindu Religious Trusts

Act of 1950136, Orissa Hindu Religious Endowments Act of 1969137, and Tamil Nadu Hindu

Religious and Charitable Endowments Act of 1959 138 .Through Wakf Act,1995, parliament

enacted the first central law to regulate and control the management of waqfs.139

PROTECTION OF RELIGIOUS PLACES

With intention of protection of religious places, there are mainly two central Acts. To restrict use

of religious place for political as well as a place to harbor an accused or criminals and consider

same as offence, Religious Institutions (Prevention of Misuse) Act, 1988 enacted.140 The main aim

of this enactment is to prevent misuse of religious place to maintain holiness of religious place.

Another Act which is, the Places of Worship (Special Provisions) Act, 1991 enacted with similar

133 Himachal Pradesh Freedom of Religion Act 2006 134 Gujarat Freedom of Religion Act, 2003 135 Rajasthan Freedom of Religion Act, 2008 136 Bihar Local Act, No. 1 of 1951 137 Orissa Local Act, No. 2 of 1970 138 Tamil Nadu Local Act, No. 22 of 1959 139 Wakf Act, No. 43 of 1995 (replacing Wakf Act, No. 29, of 1954) 140 Religious Institutions (Prevention of Misuse) Act, No. 41 of 1988.



object which prohibit forcible conversion of any religious place of worship and provides essential

preservation of the religious place of worships.141

PERSONAL LAWS

Since the matter of marriage, divorce, succession are inter related to each religious community

apply own religious procedure, thus it developed a religion based system of laws in specific

matters. its termed as ‘personal law’. For each religious community, there are separate laws which

govern marriage, divorce, succession etc. For example of for the purpose of regulation of Hindu

marriage and divorce, a codified law the Hindu Marriage Act, 1955 enacted.

Muslim law still not codified hence marriage, succession governs by own personal law which is

largely based on the principles of quran and shariat law i.e. The Muslim Personal Law (Shariat)

Application Act 1937.

RELIGIOUS CONVERSION

From the historical time, religious conversion has remained issue of controversy which is still

continuing in India. In Mughal era, we can see example of conversions to Islam to escape from

paying tax which was ‘jizia’. Jizia was a kind of tax which was imposed by the mughal ruler on

non-Islamic religions. The main aim of imposition of religion based tax was to promote Islam. It

was result of such tax those followers of other religions opted for conversion into Islam.

In British period also, this practice remained continue. There were many Christian missionaries

which were indirectly engaging in conversion of social backward people into Christianity.

However, there was no element of compulsion into conversion but they used indirect method

which attracted people towards Christianity i.e. special benefits, more rights after conversion etc.

Thereafter, 2 factors combined during the British Period, which make the conversion as a issue of

141 Places of Worship (Special Provision) Act, No. 42 of 1991,



debate. The first is the rise of Hindu consciousness and another one is rise of conversion as a matter

of choice rather than a matter of compulsion.142

Since religion is a matter of choice in India, therefore religious conversion in India is a point of

controversy. If we talk about Pakistan, Saudi Arab and Bangladesh where religion is not matter of

choice, religious conversion is very general activity in these countries. Additional, these countries

are non-secular states. Since India is a secular state, protection from forceful conversion and

fraudulent conversion is primary duty of state.

FREEDOM OF PROPAGATION AND RIGHT TO CONVERSION

Under Article 25 of the constitution “freedom of propagation” of religion is considered as source

of anti-conversion laws. By “propagation” it can be understood that to broadcast and transmit one’s

religion by demonstration of its principles143 Every person is entitled to propagation of his own

religion thoughts for uplifting of other. During constituent assembly debate also “propagation”

was also matter of debate because of its nexus with the term “conversion”. It seems they were well

versed connection of propagation and use of it for conversion. After a lot of debate, this term

“propagation” added into individual freedom of religion under article 25.144

Any state action which permits the conversion of Hinuds by fraud or inducement committed by

other minority religions i.e. Islam or Christian violates the Article 25(1) and cannot be said to be

justified in the name of secularism. 145 The “propagate” cannot be interpretated to provide a

fundamental right to convert against the word ‘conscience’ which express a right not to be

converted, except under one’s free will.146

Concept behind the propagation can be seen as general motive of religious communities that more

people should join their religious as member and no one should opt out from community. However,

142 M.V. Nadkarni, “ Why Is Religious Conversion Controversial in India?” Economic and Political Weekly, April

19-25 2003), p. 1562 143 Rev Stainislaus v. State of Madhya Pradesh, AIR 1978 SC 908. 144 The provisions relating to “Right to Freedom of Religion” were contained in the draft articles formulated by K.M.

Munshi and B.R. Ambedkar. Art. 19 of the draft was pertaining to the freedom of conscience, and right to freely

practice, profess and propagate religion. 145 Stainislaus v. State of M.P. 1977 SC 908 (911) : (1977) 1 SCC 677 146Id.



relation between propagation and conversion is not based on bad intention. The main concept to

introduce propagation was that when ultimate object of all religion is to get salvation so people

should be free to choose their own way to achieve same. But another side, it is also necessary that

willingness of selecting any religion should also be freed from forceful or any imposing rule. There

is conversion remain always issue of debate within majority communities. Majority community

takes conversion as a attack on their religious belief by minority community.

ANTI- CONVERSION LAWS

Before the 1947, there were only some Indian states where anti conversion laws were in

operation147. After independence, there were many attempts made to enact anti-conversion laws at

central level, but none of them succeeded. During 1967-68, Orissa and Madhya Pradesh enacted

local laws regarding conversions.

Table 1 : Major Provisions of various Anti-Conversion Laws

Title of Act State Notice of

intention

before

conversion

Punishment

Orissa Freedom of

Religion Act, 1967

Orissa Not

Necessary

Imprisonment upto 1 year, with fine

upto Rs. 5000/- or with both ;

In case of offence against minor,

woman or ST,SC - Imprisonment upto

2 years, and fine upto Rs. 10000/-

Madhya Pradesh

Dharma Swatantrya

Adhiniyam, 1968

Madhya

Pradesh

To District

Magistrate






147 The first anti conversion law was passed by the Rajgarh State in 1936 which was followed by the Patna Freedom

of Religion Act, 1942, Surguza State Apostasy Act, 1945 and the Udaipur State Anti Conversion Act, 1946.



Arunachal Pradesh

Freedom of Religion

Act, 1978

Arunachal

Pradesh

To Deputy

Commissione

r

Imprisonment upto 2 years, and with

fine upto Rs. 10000/-

Gujarat Freedom of

Religion Act, 2003

Gujrat To District

Magistrate


upto Rs. 50000/-;



4 years, and fine upto Rs. 1,00,000/-

Himachal Pradesh

Freedom of Religion

Act 2006

Himachal

Pradesh

Not

Necessary

after verdict

of HC

Imprisonment upto 2 year, or with fine

upto Rs. 25000/-;




Rajasthan Freedom of

Religion Bill, 2008

Rajasthan To District

Magistrate

Imprisonment upto 3 year, and with

fine upto Rs. 25000/-;




Tamil Nadu Prohibition

of Forcible Conversion

of Religion Act, 2002

Tamil

Nadu

Act repealed Act Repealed

Chhattisgarh Dharma

Swatantrya Adhiniyam

1968

Chattisgarh To District

Magistrate








CASE STUDY: EVANGELICAL FELLOWSHIP OF INDIA AND OTHERS V. STATE

OF HIMACHAL PRADESH148

Himachal Pradesh High Court struck down the provision of section 4 of the Himachal

Pradesh Religion Act, 2006, which provide prior intimation mandatory by a person before

conversion to another religion. High court found that test of section 4 of the Act is voilative of

right to keep religious belief secret under Article 25. Justice Deepak Gupta asserted ground for

struck down the sec. 4 of the Act by stating that “a person not only has a right of conscience, the

right of belief, the right to change his belief, but also has the right to keep his beliefs secret".

PARTICULAR SHRINES

There are several statutes for specific shrines of religious communities which provide state

surveillance on the management of their function and composition.149 There are various shrines in

India which is regulated by special laws. One of largest shrine which is related to the Buddhist is

govern by the Bodh Gaya Temple Act, 1949, which provide special provision for repair and

maintenance of the temple situated in Bodh Gaya in Bihar State.150

Another important shrine Vaishno Devi is also regulated and govern by the Jammu & Kashmir

Mata Vaishno Devi Shrine Act, 1988.151 The aim of enactment of Act was for better management,

governance and administration of the temple. A controversy arises from the Act that whether priest

appointment is subject of any state law or not, which is discussed below.

VAISHNO DEVI SHRINE CASE STUDY

In the case of Bhuri v. State of Jammu & Kashmir152, which is also known as “Vaishno Devi Case”,

the validity of Jammu & Kashmir Mata Vaishno Devi Shrine Act, 1988 was challenged. The aim

of enactment of Act was for better management, governance and administration of the temple.

Matter of dispute was that Act abolished the hereditary post of priest of temple and appointment

148 MANU/HP/1259/2012 149 Mahmood, Tahir., “Religion, Law, and Judiciary in Modern India” BRIGHAM YOUNG UNIVERSITY LAW

REVIEW, September 9, 2006, 763 150 Bodh Gaya Temple Act, 1949, No. 17 of 1949,

http://www.mahabodhi.com/temple_act.pdf (accessed October 11, 2014). 151 Jammu & Kashmir Mata Vaishno Devi Shrine Act, 1988. Act No. 16 of 1988. Effiective from 31st August 1988

https://www.maavaishnodevi.org/pdf/act.pdf (accessed October 11, 2014). 152 AIR 1997 SC 1711

http://www.mahabodhi.com/temple_act.pdf

https://www.maavaishnodevi.org/pdf/act.pdf



of priest made by the state. This was contended in the court that abolition of hereditary post of

temple is violation of Article 25 and 26 of the Indian Constitution.153 The Supreme Court held that

state is authorized to regulate service of priest under Article 25 (2). Regulation of service of priest

by state comes under the ambit of secular activity of state.

The Supreme Court held that performance of ritual ceremonies is an integral part of religious

freedom guaranteed under article 25 of the Constitution, but securing service of priest, who

performs ritual ceremonies, did not come under religious freedom guaranteed under Article 25 of

the Constitution.154 It was further held that however priest engaged himself with the discharge of

ceremonial ritual and worships to deity, thus he is the holder of an office of a priest in the temple.

He is subject to regulation and control along with other members of the shrine board. Government

can abolish his traditional share in the offering of the deity.155

CONCLUSION

In ancient time, “Dharma’ was the essential tool when it regulates and controls the whole legal

system, political system and judicial system of the country. But now scenario has changed. After

the enactment of Constitution, its grand source of all authorizes of parliament as well as judicial

system. Religion is also subject to provisions of constitution and many times interpreted by the

judiciary. Viable concept of secularism can only be evolved by a dynamic interaction between all

religious groups, with the state as a party in interaction. To treat religion as a tool to gain power is

unethical in a secular democratic India. To create vote bank on the basis of religion should not be

accepted in any secular as well as democratic system. Higher judiciary many times interpreted

freedom of religion and through many decisions judiciary solved the question related to law.

Through judicial pronouncement, judiciary continuously is ensuring legislation neutrality toward

specific religion which is helpful in maintaining ‘secular’ characteristic of state. When secular

state try to ensure freedom of religion and other religious community take it against own religious

belief and practices, in such cases there is possibility of conflict arises.

153 Pandey, J.N., The Constitutional Law of India.(Allahabad : Central Law Agency, 2012), 334 154 Id. 155 Id.



When religious values as well as tradition continuously growing and influencing society, it cannot

remain outside the ambit of judicial activism. Parliament also developing body of laws to deal with

religious matters and judiciary is working toward maintaining balance between religious values

and secular activities of state.

legislations on religious matters: parliamentatry …

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