The United States Commission on International Religious Freedom (USCIRF) has once again indicted India in its 2015 report. The USCIRF is an independent, bipartisan US federal government commission established in 1998 under the International Religious Freedom Act and “monitors” freedom of religion in the entire world — except the US. The EU has also put India on a list of “countries of particular concern” on religious freedom. India may have refused to take cognisance of the recently released report but it presents an opportunity to look at the state of religious freedoms in our country.
But before we do that, a mirror should also be held up to the US. There is a chaplain for the Senate and the armed services. Prayer breakfasts are routine in the White House. Interestingly, in the US Supreme Court, public sessions are opened by a functionary announcing: “God save this honorable court”. In Vidal vs Girard’s Executors, the US Supreme Court held that America is a “Christian country” and in US vs Macintosh, observed that it is “filled with Christian people”.
Freedom of religion is globally recognised as a fundamental human right. It includes the freedom to have or adopt a religion, to change one’s religion without being persecuted, and to manifest one’s religion. In the last few months, Prime Minister Narendra Modi has maintained that every individual has the “undeniable right to retain or adopt” any faith. But still, there is some truth to the USCIRF report. Since June 2014, religious minorities have been subjected to a series of derogatory comments by members of the ruling party and the prime minister has not taken any visible action against them. Is it not a fact that the BJP’s 2014 manifesto had promised the banning of conversion? Modi needs to tell his party and the RSS that a Central conversion law would impinge on the freedom of religion and make a mockery of his promise of “complete freedom of faith”.
But our Supreme Court has also taken a very restrictive view of the freedom of religion. It has held that, under this right, only essential practices of religion are protected. And what is “essential” or peripheral would be decided by the court — not by sacred texts. But if the judiciary is not competent to decide on policy matters, it certainly should not have the power to pronounce on the essential practices of a religion. Article 25 was meant to guarantee the freedom to practise individual beliefs. The Supreme Court acknowledged this when it observed that “subject to the restrictions which this article imposes, every person has a fundamental right under our Constitution to entertain such religious beliefs as may be approved by his judgement or conscience”. The essential practice test is antithetical to this fundamental constitutional principle. Under the test, the court privileges certain religious practices over others by granting them legal protection. The test inevitably asks the court to answer questions on religion, which it is ill equipped to do. The court looks to apply the certainty of law to religious questions, where there is always a divergence of opinion. The problem with adjudicating on cultural practices is that the judiciary prefers black and white answers, whereas the very nature of culture is subjective. Religion is similar, eluding precise definition. It is beyond the mandate of Article 25 to judicially create certainty.
The decisions of the Supreme Court on conversion also limit the freedom of religion. In the most important case, Stanislau vs State of Madhya Pradesh, it was argued that, since anti-conversion laws prohibit conversion, they are contrary to the Constitution as they hinder the “propagation” of one’s religion. But the court upheld their validity. It was held that Article 25(1) does not grant the right to convert another person to one’s religion but to transmit or spread one’s religion through the exposition of its tenets.
The court did not discuss the definitions of “inducement” and “allurement”, the primary bones of contention. It is sad that the apex court did not look into the legislative history of Article 25, as the term “propagate” was included as a compromise to assure Christians that it would include the “freedom to convert”. In fact, all considerations applicable to the freedom of speech should also be applicable to the right to propagate. The right to propagate one’s idea is inherent in the concept of the freedom of speech and expression. The freedom of conscience includes the freedom to change one’s religion or beliefs. It means a person is free to entertain any belief. The state should not be able to enquire about or take notice of a citizen’s religious beliefs.
The writer is vice chancellor, NALSAR University of Law, Hyderabad