Introduction
The term ‘secular’ means that
there is no official State religion. The State does not favour or promote any
particular religion. It is not identified by any religion, but that all
religions hold the same place, same respect in its structure. A secular State
does not interfere with man’s relationship with God. It does not promote one
religion at the expense of another, nor are people belonging to any particular
religious faith subjected to persecution or hardships because of the religion
they follow.
Constitution of India
The Constitution of India
declares that India is a secular country. The Apex Court has observed in the
case of S.R. Bommai v Union of Indi[1]a,
that secularism is the basic structure of the Constitution. In Bal Patil v
Union of India[2],
it was observed that the concept of secularism means that the State will have
no religion.
Preamble to the Constitution
WE, THE PEOPLE OF INDIA, having
solemnly resolved to constitute India into a SOVEREIGN SOCIALIST SECULAR
DEMOCRATIC REPUBLIC and to secure to all its citizens:
JUSTICE, social, economic and
political;
LIBERTY of thought, expression,
belief, faith and worship;
EQUALITY of status and of
opportunity;
and to promote among them all
FRATERNITY assuring the dignity
of the individual and the unity and integrity of the Nation;
IN OUR CONSTITUENT ASSEMBLY this
twenty-sixth day of November, 1949, do HEREBY ADOPT, ENACT AND GIVE TO
OURSELVES THIS CONSTITUTION
THE Preamble defines India to be
a secular country. It states that all the citizens have got the liberty to
follow their own faith and worship.
The concept of secularism is
further expressed under the chapter on fundamental rights wherein the right to
equality clearly stresses that there shall be no discrimination on the ground
of religion. Articles 14 to 17 of the Constitution clearly point out that
religion cannot be made a determining factor in establishing any rule or
policy. Equality in all wakes of life is promoted.
Article 51(A)(e) further provides
that it is the duty of every citizen of India to promote harmony and the spirit
of common brotherhood amongst all the people of India transcending religious,
linguistic and regional or sectional diversities.
Chapter III: Fundamental rights
Right to religion:: Articles 25
to 28
Article 25: Freedom of conscience
and free profession, practice and propagation of religion
(1) Subject to public order,
morality and health and to the other provisions of this Part, all persons are
equally entitled to freedom of conscience and the right freely to profess,
practise and propagate religion
(2) Nothing in this article shall affect the
operation of any existing law or prevent the State from making any law
(a) regulating or restricting any economic,
financial, political or other secular activity which may be associated with
religious practice;
(b) 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 Explanation I The wearing and carrying of
kirpans shall be deemed to be included in the profession of the Sikh religion
Explanation II In sub clause (b) of clause reference to Hindus shall be
construed as including a reference to persons professing the Sikh, Jaina or
Buddhist religion, and the reference to Hindu religious institutions shall be
construed accordingly
Article 25 guarantees the freedom
to profess, practice and propagate religion. However, this is subject to the
conditions of public order, morality and health. Thus, the usage of
loudspeakers for religious ceremonies is not considered to be an essential part
of practice of religion.[3]
Similarly, forceful conversions
cannot be a part of propagation of religion.[4]
Article 26: Freedom to manage
religious affairs Subject to public order, morality and health, every religious
denomination or any section thereof shall have the right
(a) to 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
State can make law to regulate
the administration of property of any religious endowment, but that law cannot
take away the right of administration.
Article 27: Freedom as to payment
of taxes for promotion of any particular religion No person shall 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
Article 28: Freedom as to
attendance at religious instruction or religious worship in certain educational
institutions
(1) No religion instruction shall be provided
in any educational institution wholly maintained out of State funds
(2) Nothing in clause ( 1 ) shall apply to an
educational institution which is administered by the State but has been
established under any endowment or trust which requires that religious
instruction shall be imparted in such institution
(3) No person attending any educational
institution recognised by the State or receiving aid out of State funds shall
be required to take part in any religious instruction that may be imparted in
such institution or to attend any religious worship that may be conducted in
such institution or in any premises attached thereto unless such person or, if
such person is a minor, his guardian has given his consent thereto Cultural and
Educational Rights
In the case of Aruna Roy v Union
of India[5],
the Court observed that recommending that students be made acquainted with the
basic tenets of all religions does not go against the provisions of Article 28.
Offences under the Indian Penal
Code, 1860
CHAPTER XV: OF OFFENCES RELATING
TO RELIGION
Sections 295 to 298 of the Indian
Penal Code deal with the various offences relating to religion. These offences
comprise of insulting or defiling any place of worship or any place or object that
is held sacred by any religious community. It also makes it an offence to deliberately
or maliciously hurt the sentiments of any religious community.
Section 295: Injuring or defiling
place of worship, with intent to insult the religion of any class.--Whoever
destroys, damages or defiles any place of worship, or any object held sacred by
any class
of persons with the intention of
thereby insulting the religion of any class of persons or with the knowledge
that any class of persons is likely to consider such destruction, damage or
defilement as an insult to their religion, shall be punished with imprisonment
of either description for a term which may extend to two years, or with fine,
or with both.
Mens rea is an important aspect
under this section. Thus, any individual who maliciously does an act to offend
the sentiments of any community is held liable.
Section 295A: Deliberate and
malicious acts intended to outrage religious feelings of any class by insulting
its religion or religious beliefs.--Whoever, with deliberate and malicious
intention of outraging the religious feelings of any class of citizens of India,
by words, either spoken or written, or by signs or by visible representations
or otherwise insults or attempts to
insult the religion or the religious beliefs of that class, shall be punished with
imprisonment of either description for a term which may extend to three years,
or with fine, or with both.
While in Rajpaul’s case[6]
(also known as the Rangila Rasool case), the court had observed the lacuna in
law and not punished the offender, the same court in the case of Devi Sharan
Sharma v Emperor[7],
it was held that an offensive attack on any religion or its founder is an
offence.
In Ramji Lal Modi v State of
Uttar Pradesh[8],
section 295 A was held to be constitutionally valid and not infringing the
freedom of expression guaranteed under Article 19(1)(a).
In Baba Khalil Ahmad v State of
Uttar Pradesh[9],
it was held that the writing must be with deliberate and malicious intention of
outraging the religious feelings of a class of citizens of India.
Section 296: Disturbing religious
assembly.--Whoever voluntarily causes disturbance to any assembly lawfully
engaged in the performance of religious worship, or religious ceremonies, shall
be punished with imprisonment of either description for a term which may extend
to one year, or with fine, or with both.
In Ata Ullah v Azim Ullah[10],
it was observed that disturbance means that the peace or quiet of a peaceful
and lawful assembly should not be interfered with noise or otherwise. It does
not mean that the assembly should actually be stopped.
Section 297: Trespassing on
burial places, etc.--Whoever, with the intention of wounding the feelings of
any person, or of insulting the religion of any person, or with the knowledge
that the feelings of any person are likely to be wounded, or that the religion
of any person is likely to be insulted thereby, commits any trespass in any
place of worship or on any place of sepulture, or any place set apart for the
performance of funeral rites or as a depository for the remains of the dead, or
offers any indignity to any human corpse, or causes disturbance to any persons assembled
for the performance of funeral ceremonies, shall be punished with imprisonment
of either description for a
term which may extend to one
year, or with fine, or with both.
The provisions of this section
are attracted only if an act is done with a deliberate intention to wound the
feelings or with the knowledge that the feelings are likely to be wounded or
the religion of a person is likely to be insulted.
Section 298: Uttering words,
etc., with deliberate intent to wound religious feelings.--Whoever, with the
deliberate intention of wounding the religious feelings of any person, utters
any word or makes any sound in the hearing of that person or makes any gesture
in the sight of that person or places any object in the sight of that person,
shall be punished with imprisonment of either description for
a term which may extend to one
year, or with fine, or with both.
There must be a deliberate
intention to wound the feelings and the same can be judged from the usage of
words as well as the acts of the accused. An act that is done with
premeditation and realisation of the fact that it would hurt the feelings comes
under the purview of this section.
Election laws
Under the provisions of Section
123 of the Representation of People Act, 1951, both the acts of asking votes on
the ground of religion as well as promoting enmity on the ground of religion,
race, etc are electoral offences.
Conclusion
India is a secular nation and does
it does not promote any particular religion nor does it tax the other. The State
provides a peaceful environment for the citizens to follow their own respective
faith and beliefs. The law aims at providing freedom of practicing and
propagating religion while laying down certain restrictions based on public
order, morality or health. The law prohibits any act that aims at creating
disharmony between classes of citizen on the ground of religion.
[1] AIR 1994 SC 1918
[2] AIR 2005 SC 3172
[3] Church of God (full Gospel) in India
v K K R Majestic Colony Welfare
Association, AIR 2000 SC 2773
[4] Stainislaus v State of Madhya
Pradesh, AIR 1977 SC 908
[5] AIR 2002 SC 3176
[6] Rajpaul v Emperor, AIR 1927 Lah 590
[7] AIR 1927 Lah 504
[8] AIR 1927 SC 620
[9] AIR 1960 All 715
[10] (1890) ILR 12 All 494 (FB)
