“I believe that there is no such thing as conversion from one faith to another in the accepted sense of the word. It is a highly personal matter for the individual and his God. I may not have any design upon my neighbour as to his faith, which I must honour even as I honour my own.”
— Mahatma Gandhi (Harijan: September 9, 1935)
Franklin D. Roosevelt, thirty-second President of the United States of America, perfectly advocated for freedom of every person to worship God in his/her own way everywhere in the world. Roosevelt, in his 1941 State of the Union address, endorsed the idea of secularism, religious freedom and religious tolerance against religious fundamentalism and communalism. The First Amendment to the Constitution of the United States, made in 1791 clearly reads– “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof…” In other words, it calls out for building a wall of separation between the Church and the State. Religions exist, the followers continue to believe in their faith and practice the religious principles enshrined in their holy books, and no outside agency including the state has got the right to interfere in the legal and legitimate day-to-day religious affairs of the communities.
In the Indian context, the scenario is different as things have been viewed through the eyes of fear, limitations and false assumptions. India is a nation which was born out of communal violence and had witnessed the bloodletting of its people in the most barbaric and cruel manner. India, which is said to be a multi- religious, multi-lingual, multi-ethnic and multicultural society, has observed several incidents of communal riots since independence. The anti Sikh riots of 1984 in Delhi following the assassination of the then Prime Minister Mrs. Indira Gandhi, Bhagalpur (district in Bihar) riots of 1989 and Gujarat riots of 2002 marked the extent of communal hatred in India’s history. In all the riots taken together, approximately 5,700 innocent lives were lost. Islamic fundamentalists, right- wing Hindu hardliners and Sikh separatists have been quite successful in altering the communal climate of the country.
Interpretation of Law and the Right:
The infamous Ram Janmabhoomi -Babri Masjid dispute gave a new angle to socio-religious debate in India, where a five-judge Supreme Court bench held that a mosque is not an “essential part of the practice of the religion of Islam” and that namaz could be offered anywhere and hence, “the acquisition of 67.703 acres of land by the central government in and around Babri Masjid is not prohibited by the provisions in the Constitution of India”. In the subsequent hearing in the Ayodhya land dispute case in 2010, the Hon’ble Allahabad High Court had referred to this judgment to apportion one-third of the land to Hindus, one-third to Muslims and one-third to Lord Ram, the deity. Needless to say that for the Hon’ble Supreme Court, this case has always been a land dispute and was never looked through the lens of religion. In Indian Young Lawyers Association & Ors. v/s The state of Kerala and ors. (originally S. Mahendran v/s Secretary, Travancore Devaswom Board, Thiruvananthapuram), Justice Indu Malhotra, the only woman and dissenting judge in the 4:1 verdict favoured the Sabarimala Temple’s male seers’ demand to not allow women from entering into the temple. She held-
“In a pluralistic society comprising of people with diverse faiths, beliefs and traditions, to entertain PILs challenging religious practices followed by any group, sect or denomination, could cause serious damage to the constitutional and secular fabric of this county…Article 25 (freedom of religion) specifically provides the equal entitlement of every individual to freely practise their religion. Equal treatment under Article 25 is conditioned by the essential beliefs and practises of any religion. Equality in matters of religion must be viewed in the context of the worshippers of the same faith.” This disagreement opened new doors for gender justice versus religious freedom debate.
The Indian constitution provides a safeguard by guaranteeing the citizens of India, the fundamental right to freedom to meet the challenge of communalism. The framers of the constitution worked hard to give a shape to a model of the secular political system that protects all religions with equal regard (Sarva Dharma Samabhava) along with the progressive enhancement of human dignity. In India, the concept of secularism comprises of: (a) complete separation of state and religion, and (b) full liberty for the followers of all religions as well as atheists and agnostics to follow their respective faiths. In India, all religions are said to be given equivalent treatment with no support or separation. The framers of the constitution did not explicitly opt for the concept of India to be a secular state. The word ‘secular’ was added in the preamble of India’s constitution by the 42nd Amendment Act of 1976. Article 25 enshrined in India’s constitution grants every Indian citizen the freedom of conscience and free profession, practice and propagation of religion, subject to public order, morality and health and to the other provisions. In Rev Stanislaus vs Madhya Pradesh, the Hon’ble Supreme Court considered the issue whether the fundamental right to practise and propagate religion includes the right to convert. The court prohibited conversion by force, fraud or allurement. The court progressively interpreted-
“propagate,” mean transmitting or spreading one’s religion by an exposition of its tenets,” but it does not include the right to convert another person to one’s own religion. There is no fundamental right to convert another person to one’s own religion because if a person purposely undertakes the conversion of another person to his religion, as distinguished from his effort to transmit or spread the tenets of his religion, that would impinge on the ‘freedom of conscience’ guaranteed to all the citizens of the country alike.”
Correspondingly, Article 26 which aims to provide ‘corporate freedom’ of religion by allowing the Indian citizens to (a) establish and maintain institutions for religious and charitable purposes; (b) to manage its own affairs in matters of religion; (c) to own and acquire movable and immovable property; and (d) to administer such property in accordance with law. The Hon’ble Supreme Court of India has taken the liberty to define ‘Religion’ as it was never rigidly defined by the constitution. In Sri Lakshmindra theertha Swamiar of Sri Shirur Mutt and anr. Vs. the Commissioner, Hindu Religious Endowments, Madras and ors, the Hon’ble Supreme Court ruled out:
“A religion may not only lay down a code of ethical rules for its followers to accept, it might prescribe rituals and observances, ceremonies and modes of worship which are regarded as integral parts of religion, and these forms and observances might extend even to matters of food and dress…”
We must admit that religion is just a belief or a doctrine. Religion, certainly, cannot lay down the rules, procedures and code of conduct, and can at the most prescribe directions for culture and traditions to some extent. Dr. B.R. Ambedkar, when asked about matters pertaining to the personal laws in India and their relationship with religion correctly pointed out—“Religion must mainly be a matter of principles only. It cannot be a matter of rules. The moment it degenerates into rules, it ceases to be a religion, as it kills responsibility which is an essence of the true religious act.”
It is correct to interpret from his statement that the concept of religion is just limited to beliefs and ceremonials, which are held as essentially religious in a particular religion, and which must operate under the aegis of judicial review. Dr. Babasaheb Ambedkar’s grandson and the founder of Bharipa Bahujan Mahasangh, Prakash Ambedkar, righty sums up the entire article in just one line–“The Constitution provides for not only worshipping the Gods, but it also allows to change Gods.” Infringement of human rights and manifestations of rage in the name of the religion must never be tolerated and must be discarded as obsolete rubbish by every Indian. This is probably the most beautiful and tremendous aspect of our constitution.
 Dr. M. Ismail Faruqui Etc, Mohd. … vs Union of India, (1994) 6 SCC 360 (India).
 In Indian Young Lawyers Association & Ors. v/s The state of Kerala and ors., 2018 SCC OnLine SC 1690 (India).
 S. Mahendran v/s Secretary, Travancore Devaswom Board, Thiruvananthapuram, AIR 1993 Ker 42 (India).
 INDIA CONST. art.25.
 Rev Stanislaus vs Madhya Pradesh, 1977 SCR (2) 611 (India).
 INDIA CONST. art.26.
 Sri Lakshmindra theertha Swamiar of Sri Shirur Mutt and anr. Vs. the Commissioner, Hindu Religious Endowments, Madras and ors, 1954 AIR 282 (India).
ABOUT THE AUTHOR:
Daksh Aggarwal is a 2nd year law student at Campus Law Centre, Faculty of Law, University of Delhi. He has been an active participant in Moot Court Competitions as a Mooter/Speaker. Further, he is also a student member of the Placement Assistance Council working towards renewing networks with the alumni of Campus Law Centre (CLC) and securing job opportunities for the current students. As a Para Legal Volunteer of Delhi State Legal Services Authority, he is actively involved in providing legal aid and imparting legal awareness regarding rights and duties to the residents of Delhi. His interests include Constitutional Law, Corporate Law and Criminal Law. He is looking forward to learning the art of unravelling the intricacies of legal jurisprudence and different aspects of litigation.
In Content Picture Credit: BBVA Openmind