Academic journal article Brigham Young University Law Review

Freedom of Religion in India: Current Issues and Supreme Court Acting as Clergy

Academic journal article Brigham Young University Law Review

Freedom of Religion in India: Current Issues and Supreme Court Acting as Clergy

Article excerpt

I.The Case for Religious Freedom

Religion has been at the center of human societal existence since time immemorial.1 Though some scholarship claims certain tribes or civilizations existed without religion,2 it is not a well-accepted view.3 Religion is, and has always been, an indispensable and ineffaceable part of our lives.4 This tenant is especially evident in Indian culture. Man is incurably religious; but Indians most of all.5

Indian society "displays a[] . . . manifest tendency towards an outlook that is predominantly religious."6 Sir Harcourt Butler, in often quoted words, noted that "[t]he Indians are essentially religious as Europeans are essentially secular. Religion is still the alpha, and the omega of Indian life."7 The effect that religion has had on the progress of Indian society is tremendous.8 Therefore, the emergence of India as a secular state in the mid-twentieth century was a remarkable social, political, and religious phenomenon.9 Though religion remains important in India, and still exists in the public sphere, the country has successfully retained its secular character.10 secularism became ideal in religious india due to communalism because the former was understood as an answer to the latter.11 To make secularism acceptable, freedom of religion was guaranteed. 12

This was made possible, in large part, because the framers of the Indian Constitution (the "Constitution") wanted to base society on an understanding that man has an "inward association" with religion.13 It helped that the most conspicuous characteristic of Indian culture was the life of the inner spirit,14 meaning that it wasn't any one religion per se that drove the indian people, but a spiritual connection to a higher power.15 The concept of sarva dharma sambhava, the idea that all religions are true, also furthered this spiritual connection, justifying tolerance and accommodation of distinctive religious identities.16 As such, the framers provided that no religion would be given preference over another and permitted the practice of any religion.17 Citizens would be free to follow and practice their religion in their private affairs, and thus, the State would not impose a uniform civil code despite a constitutional mandate to do so.18 Further, the State would not interfere in religious affairs so long as they did not affect certain other basic rights protected by the Constitution.19 Thus, one could say that the management of constitutional diversity in India went beyond creating a "melting pot"20 and genuinely provided for the preservation of distinctive identities.21

Religious freedom, and its value, was understood in free India22 from the very beginning.23 Gandhi was convinced that genuine religion-which for him was a personal affair24-in its true, complete, and virtuous form, constructs bridges of solidarity between people.25 in a country ravaged by partition and a society emaciated by untouchability, the framers hoped that liberty of belief, faith, and worship would bring about equality and promote fraternity.26 Religious freedom-freedom to follow, introspect, and investigate- should allow one to authentically be religious. And this should create harmony and understanding, not propagate sectarianism.27

Religious freedom is premised on the belief that every human being has inherent dignity to explore his or her conscience and pursue the truth.28 Dr. Sarvepalli Radhakrishnan, former President of India and prominent member of the Indian Constituent Assembly, said that religion is a code of ethical rules and that the rituals, observances, ceremonies, and modes of worship are its outer manifestations.29 Religion also identifies with "feeling, emotion and sentiment, instinct, cult and ritual, perception, belief and faith."30 Professor Alfred North Whitehead defined religion as "what the individual does with his own solitariness."31 Radhakrishnan argued that "[i]t is not true religion unless it ceases to be a traditional view and becomes personal experience. …

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