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Prashantkumar Radhakrishna Sharma

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Right to Freedom of Religion

Right to Freedom of Religion


Identity crisis is amongst the major concern for men, since its existence. For the same, we came up with an idea of associating us with someone OR something greater than us. Namely, GOD, something superior, sacred, divine and not human. The people with the same idea of GOD came together, gave themselves an identity, shared common views on their culture and gave birth to RELIGION. Well, this is just my idea of Religion, whereas many scholars have given considerably acceptable definitions to religion. While religion is difficult to define, one standard model of religion, used in religious courses, was proposed by Clifford Gretz, who simply called it a “cultural system” (Clifford Geertz, Religion as a Cultural System, 1973). A critique of Geertz’s model by Talal Asad categorized religion as “an anthropological category.” (Talal Asad: The Construction of Religion as an Anthropological Category, 1982.). Impliedly, such a faith becomes the root to human society and the values following from it become a major concern for its subjects. But, what law has to do with it? Again, law shares the same problem as religion; problem of an exact definition. Law can be considered as a set of rules which controls the human conduct in the society. Today, law is entering into every reach of human life.

Law and Religion; both conduct the human behavior, making them inseparable and they intersect in today’s world. Law is sanctioned by the State, whereas religion is supposed to be sanctioned by GOD.As we know very less about GOD, this paper shall discuss the role of STATE by its Constitutional Provisions to safeguard the Right to freedom of religion. State plays a vital role in enforcing and encouraging human values in the society and also guarantees a protection to the same. Now, in the era of democratic States, the religious freedom is granted in the form of legal rights. In present time of globalization and unprecedented international migration flow, have established the spheres of cultural identity. Therefore, various political, legislative and judicial treatment of the issue has given different interpretation of freedom of religion.

In India, Article 25-28 of the Constitution of India deals with the right to religious freedom. The religious freedom guaranteed by Arts. 25 and 26 is intended to be a guide to a community of life to allow every religion to act according to its culture .India in its 42nd amendment in the Constitution, introduced the concept of Secularism A concept of controversy. Unlike western nations, India interprets the ideology of secularism by treating every religion equally. This concept doesn’t evades the essence of secularism i.e. separation of the state from religion and its affairs, rather it takes it to a new level by harmonizing the acts of the state. It allows the state to not to encourage a particular religion, and at the same time treat every religion equally too. But this is not the case with USA; by the first amendment of 1791 of the Constitution of USA, it makes itself a “neutral” state. The first amendment can be divided into 2 parts, one is the “Establishment clause”(commonly known as Anti-establishment clause) and the other is “Free exercise clause”. The scope of the 1st amendment was first considered in Devis v. Beason, wherein it was held that congress shall make no law respecting the establishment of a religion or forbidding the free exercise of the same. The two clauses have independent significance, the Establishment Clause enjoins the State to observe “neutrality” as between religions and it would be contravened if the state adopts an official religion or religious activity, even though if no individual is coerced to follow the same. Whereas, the Free Exercise Clause, cannot come into action till the aggrieved individual can show that the state has been coercive in practice of religion, though the state may not have been indulged in any religious activity or shown any preferences to any religion.

Now, if we try to understand and learn about a European nation, France would be a strong example of protecting freedom of religion. In France, these rights are guaranteed by the constitutional rights set forth in the 1789 Declaration of the Rights of Man and of the Citizen. Since 1905, French government has followed the principle of ”laicite”

i.e. French secularity; the absence of religious involvement in government affairs as well as absence of government involvement in religious affairs. The relationship between the state and religious organization is endorsed in 1905, “Law concerning the separation of the churches and the state” (“Loi concernant la séparation des Églises et de l’Etat”). Still, the governments all around the globe do not carry the same ideas of non-interference or equality in context of religions. The 1972 Constitution of Bangladesh carries the same concept of Right to freedom of religion as embedded in the Indian constitution, but military President Ziaur Rahman amended it in 1977 by (a) dropping the word secularism, (b) inserting the words, “the principles of absolute trust and faith in the almighty Allah” and (c) encouraging the state to preserve relations with Islamic states based on Islamic solidarity. By the sight and virtue of these provisions, Bangladesh has become an Islamic republic and the freedom of religion is subsidiary.

Reading till this very point, it is much clear that this study is basically rooted to the concept of Right to Freedom of religion. The universe involved herein, consist of 3 States; majorly concerning with India and comparing the aspects in context to freedom of religion with United States of America and France. Additionally I have even taken up the concept of Communal / Religious State, for the reason of better understanding the discussed topic.

Chapter 1 reflects the Constitutional arrangement related to Right to freedom of Religion, with regard to India. Herein, secularism as interpreted according to Indian Judiciary is also provided with relevant case laws. Next, Chapter 2 deals with USA and its adaption of secularism as neutrality of state; here also relevant provision and case studies are given along with the interpretation of judiciary in this matter. Moving forward in the study you would find that, Chapter 3 brings out the Concept of Islamic State i.e. religiously dominated state, where examples of Iran, Pakistan and Bangladesh are given according to their Right related to religion respectively. Chapter 4 talks about the unique concept of France in terms to deal with religion, where the relation of religion is purely dependent upon private institution. The terminology “laicite” i.e. French secularism is explained in detail. Lastly, Chapter 5 would be my conclusion to the project where I would purely elaborate my own views with the knowledge I have came across the research.

Chapter 1

The Indian Concept

Declaration of Secularism

Constitutionally, India is a secular country and has no State religion. However, it has developed over the years its own unique concept of secularism that is fundamentally different from the parallel American concept of secularism requiring complete separation of church and state, as also from the French ideal of lacite – described as ‘an essential compromise whereby religion is relegated entirely to the private sphere and has no place in public life whatsoever’.Despite the clear incorporation of all the basic principles of secularism into various provisions of the Constitution when originally enacted, its preamble did not then include the word ‘secular’ in the short description of the country which it called a ‘Sovereign Democratic Republic’. This was not an inadvertent omission but a well-calculated decision meant to avoid any misgiving that India was to adopt any of the western notions of a secular state. Twenty-five years later – by which time India’s own concept of secularism had been fully established through judicial decisions and state practice – the preamble to the Constitution was amended by the Constitution (Forty-second Amendment) Act 1976 to include the word ‘secular’ along with ‘socialist’, to declare India to be a ‘Sovereign Socialist Secular Democratic Republic’.

As will be seen below, there is a blend of secular and religious elements within the text of the Constitution and it is this admixture that defines and determines the contours of secularism to be acted upon by the State and the religious freedom to be exercised by individuals and communities in modern India. We are a secular nation, but neither in law nor in practice there exists in this country any ‘wall of separation’ between religion and the State – the two can, and often do, interact and intervene in each other’s affairs within the legally prescribed and judicially settled parameters. Indian secularism does not require a total banishment of religion from the societal or even State affairs. The only demand of secularism, as mandated by the Indian Constitution, is that the State must treat nil religious creeds and their respective adherents absolutely equally and without any discrimination in all matters under its direct or indirect control.In an early case after the commencement of the Constitution a court had examined the US principle of the ‘wall of separation’ between religion and State and Concluded that there are provisions in the Indian Constitution which are ‘inconsistent with the theory that there should be a wall of separation between Church and State’ – Narayanan Namboodripad v State of Madras

In the leading case of SR Bommai v Union of India (1994) 3 SCC 1 various judges of the Supreme Court of India individually explained the significance and place of secularism under the Constitution in very meaningful words sampled below:

  1. The Constitution has chosen secularism as its vehicle to establish an egalitarian social order. Secularism is part of the fundamental law and basic structure of the Indian political system.
  2. Notwithstanding the fact that the words ‘Socialist’ and ‘Secular’ were added in the Preamble of the Constitution, the concept of secularism was very much embedded in our constitutional philosophy from the very beginning. By this amendment what was implicit was made explicit.
  3. Constitutional provisions prohibit the establishment of a theocratic State and prevent the State from identifying itself with or otherwise favouring any particular religion
  4. Secularism is more than a passive attitude of religious tolerance. It is a positive concept of equal treatment of all religions.
  5. When the State allows citizens to practice and profess their religion, it does not either explicitly or implicitly allow them to introduce religion into non-religious and secular activities of the State. The freedom and tolerance of religion is only to the extent of permitting pursuit of spiritual life which is different from the secular life. The latter falls in the exclusive domain of the affairs of the State.

National Flag, Anthem & Emblem

The National Flag of India with its saffron, green and white colours and the Buddhist wheel of dhamma (faith) is seen by many Indians as religious symbolism, though legal texts do not specify this implication.India’s National Anthem is more conspicuously religious. Drawn from a Bengali-language song, it invokes the Supreme God:

Jan gan man adhinayak jaya hey Bharat bhagya vidhata Punjab, Sind, Gujarat, Maratha, Dravid, Utkal, Banga

Vindya, Himachal, Yamuna, Ganga, Uchchhal jaldhitranga

Tav shubh namey jagey, tav shubh ashish mangey, gahey tav jaya gatha Jan gan mangai dayak jaya hey Bharat bhagya vidhata

jaya hey, jaya hey, jaya heyf jaya jaya jaya hey

Master of minds of people, victory to Thee, Lord of India’s destiny Punjab, Sind, Gujarat, Maharashtra, South, Orissa and Bengal Vindhya, Himachal, Yamuna, Ganga and waves of Indian sea They all echo Thy name, seek Thy blessings and sing Thy praise

Giver of happiness to people, victory to Thee, Lord of India’s destiny.

Victory to Thee, victory to Thee, victory to Thee, victory, victory, victory to Thee

The National Emblem of India is an adaptation from Ashoka’s pillar at Sarnath superscribed with the Vedic expression Satyameva jayate (truth alone triumphs) in Devnagari script. The emblem is used on all official stationery and seals of the government of India. It also appears on government publications, coins and currency notes.

Proposed Amendments

On two different occasions attempts were made to amend the Constitution with a view to further strengthening and clarifying its provisions on secularism, but the Bills moved for this purpose could not be enacted for technical reasons. Among these Bills were:Constitution (Forty-fifth) Amendment Bill 1978 proposing to define the expression ‘Secular Republic’ as ‘a Republic in which there is equal respect for all religions’.

  1. Constitution (Eightieth Amendment) Bill 1993 seeking to empower Parliament to ban parties and associations if they promote religious disharmony and disqualify members who indulge in such misconduct.
  2. Constitution (Eightieth Amendment) Bill 1993 seeking to empower Parliament to ban parties and associations if they promote religious disharmony and disqualify members who indulge in such misconduct.


General Constitutional Provisions on Religion

Equality & Non-Discrimination

The Constitution of India contains in its Chapter on Fundamental Rights several provisions that emphasize complete legal equality of its citizens irrespective of their religion and creed and prohibit any kind of religion-based discrimination between them. Among these provisions are the following:

  1. The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India – Article 14.
  2. The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth, or any of them, either in general or in the matter of access to or use of general and public places and conveniences – Article 15.
  3. There shall be equality of opportunity for all citizens in the matter of employment or appointments under the State and no citizen shall, on grounds only of religion be ineligible for, or discriminated against, in respect of any employment or office under the State – Article 16.
  4. The traditional religious concept of ‘untouchability’ stands abolished find its practice in any form IN .strictly forbidden – Article 17.
  5. If the State imposes compulsory service on citizens for public purposes no discrimination shall be made in this regard on the ground of religion only – Article 23(2) To meet the demands of Article 17 noted above, soon after the commencement of the Constitution Parliament had enacted an Untouchability (Offenses) Act, which was later amended and renamed as the Protection of Civil Rights Act 1955. The Act prescribes penalties for the practice of untouchability in various specified forms. A second law enacted in this respect is the Scheduled Castes and Scheduled Tribes (Prevention of Arocities) Act 1989.

Freedom of Religion

Individual’s Rights

Religious freedom as an individual’s right is guaranteed by the Constitution to ‘all persons’ within the following parameters:

  1. All persons are equally entitled to freedom of conscience and the right freely to profess, practise and propagate religion – Article 25(1).
  2. There shall be freedom as to payment of taxes for promotion of any particular religion by virtue of which 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 religious denomination – Article 27.
  1. No religious instruction is to be provided in the schools wholly maintained by State funding; and those attending any State-recognized or State-aided school cannot be required to take part in any religious instruction or services without their (or if they are minor their guardian’s) consent – Article 28.

Group Rights

Freedom of religion is guaranteed by the Constitution of India as a group right in the following ways:

  1. Every religious denomination or any section thereof has the right to manage its religious affairs; establish and maintain institutions for religious and charitable purposes; and own, acquire and administer properties of all kinds – Article 26.
  2. Any section of the citizens having a distinct language, script or culture of its own shall have the right to conserve the same – Article 29.
  3. Religious and linguistic minorities are free to establish and administer educational institutions of their choice, which shall not be discriminated against by the State in the matter of giving aid or compensation in the event of acquisition – Article 30.

Limits of Religions Freedom

The Fundamental Right to religious freedom cannot be enjoyed in an absolutely unrestricted way. There are limitations within which these rights can bu exercised, as also lawful restrictions which can be imposed by the State on such rights, as detailed below:


1. The right to freedom of religion is, in general, subject to public order, morality, health and the other provisions of the Constitution


  • Article 25.
  1. Despite the right to religious freedom, the State can pass laws providing for social welfare and reform and also to regulate or restrict any secular activity -economic, financial, and political, etc even though it may be traditionally associated with religion – Article 25(2).
  2. Despite the minorities’ right to establish and maintain educational institutions, no citizen can be kept away from any State-aided or State- maintained educational institution only on religious grounds – Article 29(2).

Fundamental Duties

The Chapter on Fundamental Duties, inserted into the Constitution by the Constitution (Forty-second Amendment) Act 1976, includes the following among the basic national obligations of all the citizens:

  1. To promote harmony and the spirit of common brotherhood amongst all the people of India transcending religious, linguistic and regional or sectional diversities – Article 51A(e).
  2. To value and preserve the rich heritage of our composite culture – Article 51A (f).

Religious Matters under Distribution of Powers

Under Article 246 of the Constitution read with Schedule VIII various religious matters noted below fall in the jurisdiction of the State – and both Parliament and the state legislatures, or either of them, can legislate on such mutters:

  1. Pilgrimage outside India – Union List, entry 20;
  2. Pilgrimage within India – State List, entry 7;
  3. Burials & burial grounds, cremations & cremation grounds – State List, entry 10;
  4. Family relations, succession & all other personal-lawmatters -Concurrent List, entry 5;
  1. Charities, charitable institutions & endowments – Concurrent List; entry 28;
  2. Religious endowments & religious institutions – Concurrent List, entry 28.

Judicial Interpretation

In numerous cases the courts have commented upon, explained an interpreted the provisions of the Constitution on equality, non-discriminatio and religious freedom. The decisions in most of these cases have been given i the contexts of the rights of particular religious communities or under sped; laws relating to such communities. A brief on major decisions follows:

What is Religion?

The Constitution uses but does not define the expressions ‘religion’ and ‘religious denomination’ and therefore the courts have found it necessary to explain the meaning and connotation of these words. The Supreme Court has observed that:

In the background of the provisions of the Constitution and the light shed by judicial precedent we may say that religion is a matter of faith. It is a matter of belief and doctrine. It concerns the conscience, i.e., the spirit of man. It must be capable of expression in word and deed, such as worship or ritual – SP Mittal v Union of India

Right to Religious Freedom

Interpreting the constitutional provisions relating to freedom of religion the Supreme Court has observed:

The right to religion guaranteed under Articles 25 & 26 is not an absolute or unfettered right; they are subject to reform on social welfare interpreting Article 25 and 26 strikes a careful balance between matters which are essential and integral part and those which are not and the need for the State to regulate or control in the interests of the community — AS Narayana Deeshitalyu v State of Andhrn Pradesh

The right to religion guaranteed under Article 25 or 26 is not an absolute or unfettered right; they are subject to reform on social welfare by appropriate legislation by the State. The Court therefore while interpreting Article have been numerous other rulings explaining the scope and connotation of the religious liberty provisions in the Constitution. Given below is a summary of the major rulings:

  • Articles 25-30 embody the principles of religious tolerance that has been the characteristic feature of Indian civilization from the start of history. They serve to emphasize the secular nature of Indian democracy which the founding fathers considered should be the very basis of the Constitution –Sardar Suedna Taiiir Saifiiddin v State of Bombay.
  • Freedom of conscience connotes a person’s right to entertain beliefs and doctrines concerning matters which are regarded by him to be conducive to his spiritual well being – Ratilal Panachand Gandhi v State of Bombay.
  • To profess a religion means the right to declare freely and openly one’s faith – Punjab Rao v DP Meshram.
  • Religious practices or performances of acts in pursuance of religious beliefs are as much a part of religion as faith or belief in particular doctrines – Ratilal Panachand Gandhi v State of Bombay.
  • What constitutes an integral or essential part of a religion or religious practice is to be decided by the courts with reference to the doctrine of a particular religion and includes practices regarded by the community as parts of its religion- Seshammal v State of Tamil Nadu.
  • The right to profess, practise and propagate religion does not extend to the right of worship at any or every place of worship so that any hindrance to worship at a particular place per se will infringe religious freedom – Ismail Paruqi v Union of India.
  • Under Article 25 to ‘propagate’ religion means ‘to propagate or disseminate his ideas for the edification of others’ and for the purpose of this right it is immaterial ‘whether propagation takes place in a church or monastery or in a temple or parlour meeting’ – Commissioner, Hindu Religious Endowments, Madras v Lakshmindra Thirtha Swamiar of Sri Shirur Mutt.
  • To claim to be a religious denomination a group has to satisfy three conditions: common faith, common organization and designation by a distinctive name – SK Mittal v Union of India.
  • The expression ‘matters of religion’ in Article 26 extends to acts done in pursuance of religion and covers rituals, observances, ceremonies and modes of worship – Jagannath Ramanuj Das v State ofOrissa AIR 1954 SC 400; Dargah Committee v Husain.
  • A religious denomination has the right to lay down the rites and ceremonies to be performed by its members – Ramanuj v Tamil Nadu State.
  • A ‘common burden’ (e.g., land revenue) which is imposed on all does not violate the right of a religious denomination –Govt. of Tamil Nadu v Ahobila.
  • Property of a religious denomination violating the agrarian reform and land ceiling laws can be lawfully acquired by the State – Narendra v State of Gujarat.
  • A law which takes away the right of administration from a denomination and vests it in a secular body would infringe upon the Constitution – Ratilal Panachand Gandhi v State of Bombay.
  • Since the State is secular and freedom of religion is guaranteed both to individuals and groups, it is against the constitutional policy to pay out of public funds any money for the promotion or maintenance of a particular religion – Commissioner, Hindu Religious Endowments v LT Swamiar.

Chapter 2

U.S.A Model of Religious Neutrality

The Concept

It is the most effective model of separating the state from religious affiliation, where state remains neutral, impartial and inactive towards religion rather than actively endorsing the secularism per se. This model of Neutrality towards religion is practiced in U.S.A. The Indian model of freedom of religion has evolved by judicial pronouncements in Australia and America, therefore Indian model is much more elaborative and advance in protecting the religious freedom. 1st Amendment to the U.S. Constitution provides that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof”. And this ‘establishment of religion’ has been interpreted in Everson v. Board of Education. “Neither a state nor the federal Government can setup a church. Neither can pass laws which aid one religion, aid all religion over another. Neither can force nor influence a person to go to or remain away from Church against his will or force him to profess a belief or disbelief in any religion. No person can be punished for entertaining or professing religious beliefs or disbeliefs, for church attendance or non-attending.”

Further, it was held that, there is no official church in the USA, as in England and no particular religion is entitled to governmental support. The state cannot ‘pick and choose’ among religious belief. Whereas neutrality towards religion is the motto today, but here this model is often accompanied by an ‘assimilationist’ or ‘melting pot’ approach to national identity. At the same time comparative polls often suggest that Americans are among the most likely in the West to refer to God or draw upon religious morality or principles in their everyday lives. ‘In God We Trust’ is on all American currency; each Supreme Court Session begins with the invocation ‘God save the United State and this Honorable Supreme Court’. The Supreme Court has justified these “government sponsorship of historical religion practices”, arguing that practices such a legislative prayers or opening court sessions with “God save the United States and Honorable Court” do not express governmental endorsement of religion, because they “have largely host their religious significance over time”.

Regarding the principle of non-establishment, in U.S.A the commonly accepted view is that Establishment Clause prohibits the sponsorship of any religion, as well as the preference for religion over non- religion. According to the “Lemon Test” which prohibits on the establishment of religion and prohibits Government from appearing to take a position on question of religious belief or term making adherence to a religious relevant in any way to a person’s standing in the political community and thus prohibits excessive entanglement between Government and religion. In 1997 Court modified this analysis, holding that the question of ‘excessive entanglement’ was really part of the inquiry into whether the impugned legislation or activity aided or inhibited religion. The Court listed three factors for evaluating whether a law that aids religious organizations has a non-religious primary effect:

1. Whether the aid was used in or used in governmental ‘indoctrination’,

2. Whether the aid program defined recipients by some reference to religion and

3. Whether there was an excessive entanglement between government and religion as a result of aid program.

One of the hotly contested issues with the respect to establishment clause has been the place of religion in the public education system. In Lee v. Weisman the Court held (5:4) that a policy permitting invocation and benediction prayers at a public middle school graduation ceremony violated the Establishment Clause. More challenging questions arise in relation to the funding of religious schools. In Board of Education of Kiryas Joel Village School District v. Grumet, the U.S Supreme Court invalidated a law that created a separate school district for a village populated exclusively by Jeish Satmar Haidim. The goal of the law was to provide accommodation for Satmar children with special needs. The majority of the Court struck down the law on the basis that it violated the neutrality principle. Three judges dissented, holding that the Court’s precedent of prohibiting religious accommodation was improper. Later in case, the court held that a public school board could provide educational assistance to the students of a religious school. Establishment Clause did not prohibit any legislative program that provides indirect or incidental benefits to a religious institution provided-

 The law has a secular legislative purpose.

 It has primary effect that neither advances nor inhibits religion.

The Establishment Clause can be invoked only in “the absence of any substantial legislative purpose other than a religious one.” Where the State extends some welfare services to all parents or children for secular purposes the fat that religious institutions may indirectly benefit from such government aid would not offend against Establishment Clause. On this Principle, the Court has upheld the extension of the general services like, Bus transportation services, health services, fire protection etc. With respect to the free religious exercise principle, the Court has held that a law passed for the main purpose of burdening or providing a benefit to a group on the basis of its members’ substantive religious belief is unconstitutional. The Court’s jurisprudence is mixed in case involving Free Exercise Clause based claims for the exemption from government laws. The Court has held that some laws of general applications require exemptions for religious reasons. In the landmark ‘expansive accommodation’ ruling in Wisconsin v. Yoder the court held that state cannot compel members of the Amish church to send their children to school beyond the eighth grade. Members of the old Amish Community who reached the age of the fourteen were thus exempted from two additional years of schooling that would have otherwise been mandated by the state’s compulsory education law.

The struggle over free exercise based exemptions extends to the other areas, such as military service or tax exemptions. Supreme Court evaluated a law that granted an exemption from conscription to the persons who by ‘religious training and belief in relation to a supreme being’ were opposed to war in any form. The law also stated that the objection could not be based on the essentially political, sociological or philosophical views or a merely personal moral code’. The Court interpreted this exemption as applying to the persons whose non theistic beliefs occupied the place of religion in their lives. The United States constitutional experience of the last two centuries provides an interesting illustration of how a constitutional order itself can acquire a near- pious status. As Sanford Levinson astutely observes, that American Constitution is nation’s most revered text and has evolved into a pillar of American ‘Civil religion’. The essence of the Anti-establishment Clause is religious neutrality. When any secular purpose is absent in a statute, or the legislation recommends a religions practice as favored practice, it will be unconstitutional. It will also be unconstitutional if it results in an excessive entanglement of the Government with religion, e.g., where an Act forbids the teaching of the scientific theory of the evolution in public schools unless it was accompanied by the Biblical Theory of Creation as an act of God in six days. Thus, it is obvious that the overriding purpose of the religion clauses, taken together, is to protect religious liberty in the United States. The Establishment Clause protects religious liberty by prohibiting the government from taking action that advances or inhibits religion and it interacts with the Free Exercise Clause to provide affirmative protection for the religious freedom of individuals and religious institutions.

Chapter 3

Religion Dominant Constitution

The Concept

Under this kind of Constitutional establishment, the entire legal and constitutional system is based on the inherently dual commitment to religious fundamentals and constitutional principles, or a bi-polar system of constitutional and sacred texts and authority. The ‘ideal’ version of this model can be summarized by outlining four main cumulative elements:

  1. The presence of the single religion or religious denomination that is formally endorsed by the state, akin to a “State Religion”.
  2. The constitutional enshrining of the religion, its texts, directives and interpretations as or the main source of the legislation and judicial interpretation of the laws-essentially, laws may not infringe upon the injunctions of the state endorsed religion.
  3. A nexus of the religious bodies and tribunals that often not only carry tremendous symbolic weight but are also granted official jurisdictional status on either regional or substantive bases and which operate in lieu of, or in an uneasy tandem with, a civil court system.
  4. Adherence to some or all core elements of modern constitutionalism, including the formal distinction between the political and religious authority, qualified protection of religious freedoms for the minorities, and the existence of some form of the active judicial review.

Most importantly, their jurisdiction autonomy notwithstanding, some key aspects of the religious tribunals’ jurisprudence are subject of constitutional review by apex courts often state created.

The 1979 Islamic revolution in Iran established a paradigmatic example of constitutional theocracy. The preamble of 1979 Islamic Republic of Iran’s Constitution enshrines the Shari’a as the Supreme Law- superior even to the Constitution itself. Articles 2 and 3 declare that authority for the sovereignty and legislation has a divine provenance and that the leadership of the clergy is a principle of the faith. According to Article 6 the administration of the state is to be conducted by the wider population: the general public participates in the election of the president and the Majlis representatives and municipality councils. Article 8 further entrenches principles of the popular participation in deciding the political, economic and social issues. Most Notably, Iran has seen the emergence of the Guardian Council- a de facto constitutional court armed with mandatory constitutional preview powers and the composed of six Mullahs appointed by the Supreme Leader- and six jurists proposed by the head of the judicial system of the Iran and voted in by the Majlis. The supreme leader has the power to dismiss the religious member of the guardian council, but not its jurists members.

At the same time Iran’s constitutional regime combines religious supremacy, pragmatist institutional innovations, alongside carried-over legacies of 1906 Imperial Constitution, primarily with the respect to the notion of the popular sovereignty, elected parliament and some separation of the powers principles.

While Iran features what is arguably one of the strictest manifestations of the strong establishment, several softer versions of this model have emerged, primarily in the Islamic world. From 1970s to 2000 alone at least two dozen predominantly Muslim countries from the Egypt to Pakistan, declared Shari’a ‘a’ or ‘the’ source of the legislation. Another very strong establishment model is essentially a mirror image of the religious jurisdictional enclave, where, most of the law is religious; however certain areas of the Law, such as economic law or certain aspect of the gender equality are ‘craved out’ and insulated from the influence by religious law. An interesting case in point in Saudi Arabia, arguably one of the countries whose legal system comes the closest to being based on the fiqh (Islamic Jurisprudence). Article 1 of the Saudi Arabia is a sovereign Arab Islamic State with Islam as its religion; God’s Book and Sunnah of His Prophet, God’s prayer and peace be upon him are its constitutional words commonly found. Article 23 establishes the State’s duty to advance Islam: ‘The state protects Islam; it implements its Sharia’a; its orders people to do right and shun evil; it fulfills the duty regarding God’s call. At the same time, Chapter 4 of the Basic law protects private property, provides a guarantee against the confiscation of assets, and suggests that ‘economic and social development is to be achieved according to the just and scientific plan’. Moreover, whereas Saudi courts apply Shari’a in all the matters civil, criminal or personal status, Article 232 of the 1965 Royal Decree provides for the establishment of a commission for the settlement of all the commercial disputes. Although judges of the ordinary courts are usually appointed by the Ministry of justice from among graduates of recognized Shari’a law colleges, members of the commission for the settlement of the disputes are appointed by the ministry of the Trade. In other words Saudi Arabia has effectively exempted the entire finance, banking and corporate capital sectors from the application of the Shari’a rules. Softer examples of this model are commonly Maldives,Qatar and United Arab Emirates. In short, religion has made a major comeback over the last few decades, and is now a de facto and often de jure pillar of the collective identity, national meta- narratives and constitutional law in the numerous predominantly Muslim Countries in Asia, Africa and Middle East. In Pakistan, though one cannot be sure whether any part of the Bhutto Constitution survived the Military regime (1977) of General Zia-ul-Haq, this is much certain that Pakistan remains an ‘Islamic Republic’, having for its object the promotion of Islam as a ‘State Religion’. Article 20 of the Constitution of the Pakistan 1973 provides that “subject to law, public order, and morality, every citizen shall have the right to profess, practice, and propagate his religion.” Some government practices, however, limited freedom of religion, particularly for religious minorities. Freedom of speech is constitutionally “subject to any reasonable restrictions imposed by law in the interest of the glory of Islam.”

Abuses under the blasphemy law and other discriminatory laws continued; the government did not take adequate measures to prevent these incidents or reform the laws to prevent abuse. On August 17, police detained on blasphemy charges Rimsha Masih, a Christian girl who reportedly suffered from a mental disability, after a local Muslim cleric alleged that he observed the girl desecrate pages of the Quran. There were instances in which law enforcement personnel reportedly abused religious minorities in custody. At least 17 people are awaiting execution for blasphemy and 20 others are serving life sentences, although to date the government has never carried out an execution for blasphemy.

There were reports of societal abuses or discrimination based on religious affiliation, belief, or practice. During the year, societal intolerance continued while there were increasing attacks against members of the Shia Muslim community. Human rights and religious freedom advocates and members of minorities reported self-censorship due to a climate of intolerance and fear. Acts of violence and intimidation against religious minorities by violent extremists exacerbated existing sectarian tensions. Violent extremists in some parts of the country demanded that all citizens follow their authoritarian interpretation of Islam and threatened brutal consequences if they did not abide by it. Violent extremists also targeted Muslims who advocated tolerance and pluralism. There were scores of attacks on Sufi, Hindu, Ahmadiyya Muslim, Shia, and Christian gatherings and religious sites, resulting in numerous deaths and extensive damage. Some religious groups protested against public debate about potential amendments to the blasphemy laws or against alleged acts of blasphemy.

Chapter 4

The French View

The Concept

The word laïcité is used in France to summarize prevailing beliefs regarding the proper relationship between religion and the French state. A term that plays a similar role in the United States, albeit with a very different meaning, is “religious freedom.” These two concepts, at first glance, would seem to suggest profoundly different attitudes regarding the proper relationship between religion and the state. Whereas laïcité might imply suspicion (or perhaps even hostility) toward religion, religious freedom suggests that the state wishes to embrace religion fully, possibly to the exclusion of agnosticism and atheism. Public opinion surveys would seem to support such a contrast between a relatively unreligious France and a very religious United States.

Despite the significant differences in the meanings of laïcité and religious freedom, the two terms are often described in effusive language as founding principles of the republics, as unifying principles that bring citizens together, and as exemplifications of the admirable characteristics that make the nations role models for the rest of the world. In both countries, the doctrines are described as being fully consistent with the constitutional norms of equality, neutrality, and tolerance. But despite the popular beliefs that laïcité and religious freedom are founding principles that unite the citizens of their respective countries, they actually operate in ways that are more akin to founding myths. If we probe their historical backgrounds, it becomes clear that neither doctrine originated as a unifying or founding principle. Rather, each emerged during periods of confrontation, of intolerance, and often of violence against those who held dissenting beliefs. Moreover, in current controversies involving religion and the state, where the doctrines are cited for the ostensible purpose of resolving conflicts, they continue to be applied in ways that divide citizens on the basis of their beliefs and that belittle those whose beliefs do not conform to popular preferences. Thus, the doctrines of laïcité and religious freedom are frequently employed not in the idealized way that the myths might imagine, but in the confrontational and polemical ways in which they originally developed.

Two contemporary controversies involving religious expression in public schools illustrate how the doctrines of laïcité and religious freedom are applied in both their mythic and confrontational manners. In March 2004, France adopted a new law prohibiting children in public schools from wearing clothing and insignia that “conspicuously manifest a religious affiliation.” The law, which was designed to prohibit students from wearing Islamic headscarves, Jewish skullcaps, and large crosses, was sponsored by the ruling conservative party, the Union for a Popular Movement (UMP), and was endorsed by the opposing Socialist Party. The law was approved by an overwhelming vote of 494 to 36 in the National Assembly, and by a comparably disproportionate vote of 276 to 20 in the Senate, and was strongly supported by popular opinion throughout France.

Two years earlier, on the opposite side of the Atlantic, a divided panel of the United States Court of Appeals for the Ninth Circuit ruled in Newdow v. U.S. Congress (“Newdow I“), that the words “under God” in the American Pledge of Allegiance (the “Pledge”) violated the Establishment Clause of the Constitution. The decision provoked an immediate public outcry. On June 26, 2003, within hours of the release of the Newdow I opinion, the Senate voted ninety-nine to zero to reaffirm the language of the Pledge. The following day, the House of Representatives adopted a similar resolution reaffirming the Pledge by a vote of 416 to 3. Immediately after voting, one hundred members of Congress gathered to have their photographs taken on the front steps of the Capitol building while they held their hands over their hearts and recited the Pledge. Apparently believing that the resolutions were insufficient, a few months later the Senate and House enacted a new federal statute “[t]o reaffirm the reference to one Nation under God in the Pledge of Allegiance.” Showing no less patriotic zeal, the following sessions of the House and Senate adopted additional resolutions supporting the Pledge, again by lopsided majorities. American public opinion surveys suggest Americans who were aware of the controversy were strongly opposed to the Ninth Circuit decision and firmly supported the continuation of the Pledge. 1

The overwhelming legislative votes on religious clothing in France and the Pledge of Allegiance in the United States initially suggest a striking difference between the two countries. In France, schoolchildren are prohibited from engaging in religious expression in their choice of clothing, while in the United States, Congress has insisted that religious language designed to be recited in public schools throughout the country remain in the Pledge. Thus, France seems to prohibit religious expression while the United States promotes it. On the other hand, there are curious similarities in the two countries’ approaches. In both cases the national legislatures relied on their respective doctrines of laïcité and religious freedom to decide that the state should be responsible for determining which forms of religious expression should (or should not) be permitted in public schools and imposed it in a way that not only corresponded to popular preferences, but showed contempt for those who believed that the legislative actions violated the constitutional values of equality and neutrality. France is suspicious of the true believer. The United States is suspicious of the non-believer.

But before considering their differences more fully, we should note some underlying similarities between the two countries. Among modern nations, France and the United States have two of the longest traditions of operating under written constitutions. The United States has the oldest such extant written Constitution in the world. France’s first constitution dates to 1791, long before most other European countries. Their current constitutions incorporate the world’s two oldest human rights texts, both written in 1789, that are in effect today: the French Declaration of the Rights of Man and Citizen and the American Bill of Rights. Their common assumption—that human beings have inherent rights—has now been adopted (if not always respected) in almost all written constitutions in the world as well as in all of the basic international human rights instruments. French and Americans take pride in their human rights records and believe that they are models for the rest of the world. The highest courts of both countries have held that their respective constitutions require state neutrality with regard to religion and non-religion and that equality is a governing norm on matters of religion and law.

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