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Faith And Its Limits

Religious freedom under the Constitution is conditional, open to state intervention.

Written by Tahir Mahmood | Published: November 4, 2016 12:24 am
muslims, indian muslims, triple talaq, religion and constitution, india religious freedom, tandava nritya, anand margi, india news In Part III of the Constitution, which assures people certain fundamental rights, Article 25 proclaims that “all persons are equally entitled to freedom of conscience and the right freely to profess, practise and propagate religion.” (Express Photo by Tashi Tobgyal)

When THE SUPREME Court of India upheld the validity of police bans on the Anand Margi practice of performing tandava nritya, community leaders saw in it denial of their constitutionally protected right to religious freedom. The same was the reaction of Jain saints when the Rajasthan High Court last year declared illegal the practice of santhara. And, now the provision for religious freedom under the Constitution is being invoked by Muslim theologians opposing the petitions of some divorced Muslim girls in the apex court seeking a ban on what is called “triple talaq”. These and many other similar cases point out to a mistaken belief in the society that the Constitution furnishes a blanket protection to all sorts of archaic social practices bearing a religious tagline.

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In Part III of the Constitution, which assures people certain fundamental rights, Article 25 proclaims that “all persons are equally entitled to freedom of conscience and the right freely to profess, practise and propagate religion”. What people fail to notice is that this proclamation is prefixed with the words “subject to public order, morality, health and to the other provisions of this Part”, which set conditions precedent for the legal protection of religious practices of any community. The closing words of this prefatory rider in Article 25 virtually constitute a subordination clause placing other fundamental rights mentioned in Part III over and above the right to religious freedom. Among those other fundamental rights is the right to equality before law and equal protection of laws — assured at the outset and elaborated in later articles to mean, inter alia, that the state shall not deny equal protection of laws to any person or group of persons on the basis of religion alone.

“Give what is Caesar’s to Caesar and what is God’s to God” is said to be part of Jesus Christ’s teachings. Realising that in the Indian tradition too much is believed to be God’s than Caesar’s, Constitution-makers found it necessary to clarify the limits of people’s religious freedom. The clarification came in the form of a declaration in Article 25 that “nothing in this article” shall prevent the state from regulating or restricting by law any “economic, financial, political or other secular activity which may be associated with religion”.

What is, then, the yardstick to decide if any particular tradition is a genuine religious practice or a “secular activity associated with religion”? The Supreme Court has generated a litmus test for this purpose — is it an “essential practice integral to” the concerned religion? And, to find out the true position about it, the court has been looking into authentic texts and their interpretations acceptable unanimously to all of its followers or at least to their overwhelming majority.

As regards the Muslims, under Islamic jurisprudence religious precepts are placed in two separate compartments — ibadaat (spiritual matters) and muamlaat (temporal matters) — and in either of these, there is a further categorisation. Practices specifically enjoined by the Quran (divine book) or Hadith (Prophet’s sayings) are farz or wajib — obligatory absolutely in the first and generally in the latter case. All other actions mentioned in religious books are either mustahab (recommended) or jaez (permissible). Going by these classifications, religious practices that are farz or wajib for the Muslims will be covered in India by the religious freedom clause of the Constitution. Even what is recommended by religious texts can perhaps be claimed to fall under that protective umbrella, but not what is merely permissible — and certainly not any abominable practice that according to Muslim theologians themselves is bidat (against true religion).

The provision for religious freedom under Article 25 closes with a final clarification that “nothing in this article” shall prevent the state from making laws providing for social welfare and reform. In its deeper meaning this assertive clause — applicable to all communities — engenders a fiduciary obligation for the custodians of state authority to move in this direction as and when necessary.

The writer was chairman, National Minorities Commission and member, Law Commission

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  1. P
    Nov 4, 2016 at 11:06 am
    Wonderful article. Very insightful. In simple words the author has explained complex issues.
    1. J
      Joyce Abrahamson
      Nov 4, 2016 at 7:48 pm
      Any progressive educated Muslim like Tahir talks reasonably and want to take Muslim community forward why is that jihadi people atyakc him like many are doing here? You talk about grave injustices on Muslim women but you do know that it is people like you Muslim mullah men like you who has done more harm and more dameage to Muslim women then others. Why is that every terrorist is a Muslim Sunni and in return you blame others. Why is that every country where Muslims are in majority, you Muslims butcher and wipe out minority like Christians Hindus Jews Buddhists and yet you complain about others. What right you have to legally have four wives if you cannot legally give the same right to your mom and your daughter and your wife to have four husbands or lovers. Why is that every riot happens in Muslim majority area? Why did you divide India on religious lines? What do you say to those Hindus and Sikhs who lost millions of lives in parion as you wanted your separate homeland and yet you sta here and are burden to this country. You got what you wanted since you were not happy in 1947 then why are you still here if you are not happy in 2016? Every Islamic country is at war? Not one not two but seventy of them. Is it because Islam is the religion of terrorism? How long will you lie and curb the facts? You want me to put the barbaric kiIIing by Sunni Muslims here? Shame on you Islam.
      1. S
        Nov 4, 2016 at 1:07 pm
        Very informative and insightfull article but it's unfortunate that such a good and highly intellectual personality either fails to understand or pretends to be a novice . He would have been knowing fully well that more and many times more the lives of non muslim women that are being ruined by divorce and similar manifestations. If you are really concerned with the plight of Muslim women, first advocate for the numerous more grave injustices that have been committe against them . Why he doesn’t highlight the other injustices that have been perpetrated against the Muslim community by the elements, may be, drectly or indirectly ociated with the present government. What about the barbaric injustices heaped on Ehsan Jeffrey's wife and innumerable others, Dadri lynching, Kiling of 12 year old child in Jharkhand by tying him to tree just on the ssuion of beef, what about deliberate prevarication and planned exoneration of police personnel accused in the cold blooded murder of Muslims youths in Maliana and Hashimpura, what about the babri majid demolition case accused still roaming free and even enjoying plush position in the government, What about the barbaric killing, burning, raping of thousands of innocent muslimlt;br/gt;women and children in Gujaratlt;br/gt;lt;br/gt;Mr Mahmood Pls have a sense of conscience not because you belong to the minority community but purely on humanitarian basis. But how could you, Sorry Sir you have to remain relevant and for that you have to toe the government line.
        1. Vinod Dhall
          Nov 6, 2016 at 1:12 pm
          Dr Tahir Mahmood, another "Modern Maharishi" explains the Article 25 so lucidly. And the Supreme Court itself has set the yardsticks on religious practices and limits thereof. Therefore, why are courts wary of providing justice to hapless Muslim women who are summarily thrown out of their marital homes.
          1. G
            Ghulam Muhammed
            Nov 4, 2016 at 4:56 am
            If faith has its limits; so consution too has its limits. In a democratic and secular republic, consution too cannot be treat as another state sponsored religion. State has been dealing with controversial subjects around different faiths as listed by the author. There has to be a well-established procedure to make the Consution amenable to democratic demands on its so-called 'sancy'. Laws are made and meanf for people and vis versa. The elitist author has some distate for common people and tries to herd them like cattle. However high and mighty the state be, it is not above the people. Imposing politically convenient restrictions, conveniently propagated as reforms cannot fool the people. Sooner than later all such phony reformers will bite the dust.
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