INTRODUCTION
During the colonial era, the British policies of divide and rule there heightened the awareness of religious identity in India, which eventually led to the emergence of identity politics. Consequently, there arose a need for the establishment of secularism, aiming to separate religion from politics. The secular framework in India was founded on promoting a composite culture while excluding religion and religious influences from the central framework of politics. Thus in India secularism is based on ‘Sarvadharma Sam Bhava’ i.e. mutual respect for all religions and ‘Dharma Nirpekshita’, i.e. religious neutrality.
In 1950, when India adopted its constitution, secularism was not merely a borrowed idea or a constitutional proclamation, rather it reflected the pluralistic ethos of the subcontinent, embodying a mosaic of faiths, traditions, and ideologies. Religious freedom is protected by Articles 25-28 while embedding some checks. While the word secular was not there in the preamble at the commencement of the constitution, the 42nd Amendment, expressly declares India to be a secular state. Even Article 14 enshrines the right to equality while preventing discrimination based on religion.
This vision however was not without challenges, there were difficulties in navigating this landscape which required judicial interventions to settle conflicts and interpret the constitutional mandates.
UNDERSTANDING ARTICLE 25
‘Freedom of conscience and free profession, practice and propagation of religion’.
Article 25 ensures an individual’s right to freedom of conscience and their right to freely profess, practice and propagate their religion. However, this freedom is subject to public order, morality health and other provisions of part III of the constitution. The phrase “subject to” indicates that this right is not absolute and the state can impose regulations and restrictions upon it. This power of intervention often acts as a bone of contention between the public and the state, where the Indian judiciary has many times acted as an arbiter.
STRIKING THE BALANCE
In the landmark case of, The Commissioner, Hindu Religious Endowments, Madras v. Sri Lakshmindra Thirtha Swamiar of Shirur Mutt (1954) famously known as the Shirur Mutt case, the supreme court ruled that ‘religion’ will cover all the rituals and practices that are ‘integral’ to a religion and only those practices that are essential to a religion could claim protection under Article 25, while the non-essential practices could be regulated by the state. The essentiality was to be determined by the courts. And thus the essential religious practices doctrine was established that became a judicial tool to balance religious freedoms and state restrictions.
The doctrine has been upheld and used in several cases but its applicability, however, has been controversial. For instance the Triple Talaq case- Shayara Bano v. Union of India, 2017 where the court invalidated triple talaq deeming it to be un-Islamic or the Sabarimala Verdict 2018 which permitted women of menstrual age to enter the temple. On one hand, these cases emphasized how constitutional morality triumphs over patriarchal traditions, while on the other, they also sparked intense debates on the limits of judicial interventions in religious affairs.
The legitimate restrictions on religious freedoms are based on public order, morality and health, and there have been several instances where these were upheld by the judiciary. By holding that religious practices can only be restricted if they actively disrupt or undermine public order, the seminal case of Bijoe Emmanuel v. State of Kerala (1986) upheld the Jehovah’s Witness community’s freedom to refrain from singing the national anthem. Nonetheless, rulings such as Ahmedabad St. Xavier’s College v. State of Gujarat (1974) reaffirmed that religious organizations must adhere to laws ensuring public morality, like the regulations against discrimination. Health-related restrictions were also upheld, as seen in the case of Church of God (Full Gospel) in India v. K.K.R. Majestic Colony Welfare Assn. (2000) when the Supreme Court restricted the use of loudspeakers during religious events to safeguard the public’s health. These rulings demonstrate the judiciary’s impartial stance in preserving both, the wider societal interests and religious freedoms.
RELIGIOUS CONVERSIONS: FREEDOM OR COERCION?
A contentious topic in India’s secular discourse has been religious conversions. Though Article 25 includes the freedom to propagate one’s religion whether the freedom of propagation includes the right to conversion has been a pressing question. In the case of Rev. Stanislaus v. State of Madhya Pradesh (1977), the Supreme Court upheld the constitutional validity of one of the earliest anti-conversion laws, Madhya Pradesh Dharma Sawatantraya Adhiniyam, 1968 (now amended), emphasizing that “propagation” does not include forced conversions or conversions by fraud deceit or allurement and that the freedom to propagate must be exercised with respect of religious sentiments of others.
Recent events, such as the state-level love jihad laws, have rekindled debates. Critics contend that these laws restrict personal liberties in the name of avoiding coercion. For example, the societal unrest and arrests that have resulted from the Uttar Pradesh Prohibition of Unlawful Conversion of Religion Ordinance, 2020 have sparked concerns over the constitutionality of these laws.
On one hand, where the courts disregarded conversions by coercion, on the other hand in Hadiya’s case, 2018 the court also defended her right to convert and marry a Muslim man defying the claims of “love jihad”. The court emphasized the importance of personal liberty upholding the right to marry a person of one’s choice and choose a religion.
THE UNIFORM CIVIL CODE: A DREAM DEFERRED
India’s secular goals are symbolized by the Uniform Civil Code (UCC). As per Article 44 which is a part of the directive principles of state policy, the state should strive to provide a uniform civil code for all citizens, that means there should be a unified set of laws applicable to all religious communities in India for matters such as marriage, divorce, adoption, inheritance etc. However, it is still a controversial topic. There have been several instances where people have misused the diverse personal laws in India, like in the case of Sarla Mudgal v. Union of India (1995) OR Lily Thomas v. Union of India, AIR 2000 where Hindu males who were unable to secure a divorce from their first wives would convert to Islam specifically for marriage purposes. In both cases, the Court emphasized the importance of UCC in preventing disputes between personal laws while acknowledging the fact that implementing it requires gradual evolution as a one-size-fits-all approach might undermine India’s rich cultural and religious diversity.
Discussions were rekindled by the current campaign for UCC in states like Uttarakhand, Gujrat, and Assam, highlighting the country’s divisive views on diversity and secularism. Opponents view it as a danger to minority rights, while supporters contend that it guarantees equality.
As of now, Uttarakhand is the first Indian state to enact a Uniform civil code statute. Goa is the only other state where a form of UCC is in force, following the Portuguese Civil Code of 1867.
CHALLENGES
Judiciary often walks on a tightrope, striking a balance between constitutional ideals and societal sentiments courts frequently find themselves in controversial situations when it comes to interpreting theology. Public discontent and political backlash often result from decisions that are seen as favouring or opposing particular religions. Take the Karnataka Hijab row of 2022. The High Court upheld the ban on hijabs in educational institutions, considering that it is more about uniformity than religious freedom. The reactions to the ruling were diverse, reflecting India’s conflicted views.
There are instances where judicial actions conflict with the legislative framework, which leads to unclear enforcement. For example, the anti-conversion laws often lead to arrests, but courts overturn many cases citing inadequate evidence, leaving the enforcement ambiguous and often open to misuse.
THE PATH AHEAD:
To maintain secularism as a unifying rather than a divisive force, the Courts must continue to support it. This calls for careful interpretations, tolerance for differences and adherence to constitutional values. To preserve India’s secular fabric, cooperation between the legislature, the judiciary and the civil society is necessary.
The judiciary’s role in upholding the nation’s secular ideals is indispensable and has steered the nation towards a more inclusive and egalitarian society. To ensure that India’s secular values continue as a tribute to its diverse ethos, the judiciary must continue to strike a balance between tradition and progress as it traverses this complex terrain.
Author(s) Name: Jahanvi Kukreti (Graphic Era Hill University, Dehradun)
