It is very painful to note that in the name of religion, we are dividing the republic. If prayers promote peace and harmony, then, I ask myself why so much hatred, intolerance, and violence in the name of religion. Be it the festival of the majority or the minority, instead of love, happiness, and pleasure we witness conflicts and riots. We attempt to kill and eliminate each other simply because we have never understood the Right to Freedom of Religion guaranteed by our Constitution.
It has to be viewed in the backdrop of the preamble to our constitution. The people of India having solemnly resolved to constitute India into a Sovereign, Socialist, Democratic Republic and to secure all its citizens justice, liberty, equality, and fraternity. If social, economic, and political justice has to be rendered, then, liberty of thought, expression, beliefs, faith, and worship has to be secured. Similarly, if equality of status and opportunity has to be made meaningful, then, it is not possible without promoting fraternity assuring the dignity of individuals and the unity and integrity of the nation.
Dr. Ambedkar had said that the Constitution is workable, it is flexible, and it is strong enough to hold the country together, but it is for us to work on it. In the 75th year of our Independence, the dreams and aspirations of our freedom struggle, and its values are totally shattered. We do not realise that it is our fundamental duty to abide by the Constitution and respect its ideals and institutions, to abjure violence, and to safeguard public properties. We must develop a scientific temper and spirit of inquiry and reform. We have to rise above petty matters and assist each other in enforcing the Constitution.
Together with the administrators and the constitutional institutions, we have to ensure that there are no inequalities and discrimination on the grounds of religion, race, caste, sex, or place of birth. Article 15 of our constitution prohibits it, whereas Article 16 assures equality of opportunity in matters of public employment. Article 17 abolishes untouchability and its practice in any form. Whereas Article 21 protects our life and liberty.
In this background, if one looks at the right to freedom of religion guaranteed by Article 25, then, the meaning is clear. Article 25 guarantees freedom of conscience and free profession, practice, and propagation of religion. Even this freedom is not absolute.
The “Freedom of Conscience and Religion” are put together. The meaning of the word “Conscience” is that you know and should do what is right and should avoid doing what is wrong. It means the inner sense of what is right or wrong in one's conduct or motives. It impels one towards right action. Religion is not just a belief in a divine or superhuman power or powers to be worshipped/obeyed, but something one believes and follows devotedly, a point or matter of ethics or conscience. The placement demonstrates the avowed object.
Importantly, these rights to freedom are conferred on “persons”. It does not mean that one has to be either a Hindu, Muslim, Christian, etc. Clause 2 of Article 25 enables the state to make and implement any law, regulating or restricting any economic, financial, political, or other secular activity which may be associated with religious practice and 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 explanations to Article 25 are equally important and the word ‘Hindus’ includes persons professing Sikh, Jain, or Buddhist religion. We must appreciate that Hindus include persons belonging to other religions. The word is defined in an inclusive manner in our personal laws. Religious practices differ religion-wise.
Article 26 of the Constitution guarantees freedom to manage religious affairs. This freedom is available to every religious denomination or any section thereof. Article 27 confers freedom as to payment of taxes for promotion of any particular religion. However, no person can be compelled to pay any taxes, the proceeds of which are specifically appropriated in payment of expenses for the promotion or maintenance of any particular religion or religious denomination.
By Article 28, freedom of attendance at religious instruction or religious worship in certain educational institutions is vested. However, clause 1 of this article bans religious instructions in any educational institutions wholly maintained out of state funds. Clauses 2 and 3 of this Article carve out an exception and permit religious instructions in the educational institutions not covered by the main clause. Yet, one finds that in clause 3, it is stipulated that any educational institution recognised by the State or receiving aid out of state funds cannot compel a person to take part in any religious instructions that may be imparted in such institution or to attend religious worship that may be conducted in such institutions or in any premises attached thereto unless he has consented to it.
Thus, free consent is the basis, and only upon such consent can the religious instruction be imparted. Force, coercion, undue influence, and fraud vitiates it and participation is voluntary. The reason why these articles are worded in the above manner is because Cultural and Educational Rights and Interests of Minorities are separately protected by Articles 29 and 30 of the Constitution.
Therefore, none can claim an absolute or unrestricted right to freedom of religion. It must give way to public order, morality, and health and to other provisions of Part III of the Constitution of India. Educational institutions ought to be and are secular but as an exception can impart religious instructions. No person can be forced to profess, practice, and propagate any particular religion. It is his freedom to follow it or not. Religion does not only mean belief in and worship of God. It also means the pursuit of and following with great devotion a cause and principle.
The Janata Party (including today’s rulers) was in power from 1977 to 1980 and it attempted to define the term ‘secularism’, but eventually gave up the same. Vested interests conveniently say that this expression is vague. The meaning is apparent from the preamble and aforementioned constitutional provisions.
If “secularism” means equal respect for all religions, then, an individual’s choice in matters of faith and worship ought to be accepted. We must strive to protect that choice. In matters of religion, there is no place for imposing one person’s beliefs on another. Equally, the State has no religion. Those, either in the majority or minority, must accept that our constitution is the governing document. This governing instrument will be totally defaced and defiled, by the establishment of a theocratic or religious state. The will of those claiming majority in matters of religion cannot be imposed on others. Just as the government, equally the citizens must understand that, so long as the constitution stands we cannot dream of a religious state. (See State of Karnataka v/s Praveen Bhai Togadia (2004) 4 SCC 684 and Chapters VIII and XV of IPC).
The solemn resolutions of the people have to become a reality and that is our fundamental duty as enshrined in Article 51A. None can insist on definitions of the term “socialist”, “secular” embodied as they are to be our goals. The constitution as it stands today cannot be amended to destroy the basic structure. All the resolutions in our preamble are foundational in character. Secularism is a part of it. It is non-negotiable. Equal distance from all religions or maintaining neutrality in matters of religion can be one meaning of this expression. The other can be equal respect and regard for all religions. In the words of Acharya Vinobha Bhave, we do not wish “सर्वधर्म अभाव”, but “सर्वधर्म ममभाव” and if not that “सर्वधर्म समभाव”.
Just as a mother does not distinguish or differentiate between her children and loves and blesses all equally, all religions are alike. Vinobaji expects us to develop a motherly instinct.
In the end, one must remember what the great scientist Albert Einstein had to say about God. He says “God is subtle, but is not malicious”. Alan Mackay, in the “Harvest of a Quiet Eye” gives Einstein’s own translation as “God is slick, but he ain’t mean”.
[Justice S C Dharmadhikari (Retd.) is the former permanent judge of Bombay High Court]