Religious Freedom in a Culturally Pluralistic State
Ms. Sanjana Thomas
The right to freedom of religion is a fundamental right conferred on all citizens of India, guaranteed by the constitution. The cultural diversity of India requires state provisions for the protection of ethnic and religious minorities in the country, which include Muslims, Sikhs, Christians, Parsis, Buddhists and Jains. The Indian Constitution provides negative liberty in terms of individual rights which are to be exercised freely without interference by the State, as stated in Articles 14 and 15 which assure citizens equality before law and the prohibition of discrimination by the secular State. “The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them”. There are also positive freedoms that are provided by the State in the context of religious liberty, as in Article 25's assertion of the “freedom of conscience and the right freely to profess, practice and propagate religion.” Thus, the practice and propagation of religion has been set out in the constitution itself, which allows for the individual's fundamental right to religious liberty.
Multicultural approaches to governance
As well as asserting individual rights to religious freedom, the Indian state also protects the interests of minority communities through the provisions of the right of minorities to establish and administer educational institutions of their choice, as well as the right to conserve their distinct culture or language. Pratibha Jain's article 'Balancing Minority Rights and Gender Justice' explores the different multicultural approaches to governance: assimilation, integration and social or cultural pluralism. An assimilationist approach would impose the dominant majority culture on minority groups, such as the laws in France which have banned the wearing of conspicuous religious symbols in public schools such as headscarves, as well as the ban on covering the face in public spaces. These measures have affected Muslim women in particular, thus have caused controversy as they are seen to target a particular minority group. While the forced wearing of the burqa is seen as an oppressive practice towards women, the issue becomes more complicated as many Muslim women see it as a form of religious expression, which is curtailed by a law imposed from outside. In the context of India, Hindutva ideology seeks to define Indian culture in terms of Hindu values and norms, which is a form of cultural hegemony as it attempts to impose the dominant majoritarian culture on a pluralistic society. The integrationist approach restricts the practice of religion by individuals to the private sphere. The call for a uniform civil code in India is representative of an integrationist approach, as there is a common civil code for all citizens, while their right to practice their religion privately is upheld. The current model that is followed in India is one of social and cultural pluralism. This allows for the existence of various religious, cultural and ethnic practices in the public sphere. India's legal framework includes separate personal laws for minority communities, which were put in place in order to protect the ethnic and religious minorities in society.
With regard to the ongoing debate around formulating a uniform civil code for Indian society, Nivedita Menon writes that the matter “gets posed as a matter of community rights versus national integrity.” The personal laws that protect minority community rights have been seen to compromise individual rights, especially regarding patriarchal practices under personal law which have restricted women's social and political freedoms. The case of Shah Bano brought the issue of personal laws versus a uniform civil code into public discourse. Shah Bano was a Muslim woman who was divorced by her husband and filed for the right to maintenance, under section 125 of the Code of Criminal Procedure and won the case in the Supreme Court as the section was held to apply to all citizens irrespective of religion, caste or class. Her husband's defence was that he was not obligated to provide maintenance beyond the three month period of waiting after the divorce (iddah), according to Islamic law. The Supreme Court's judgement in Shah Bano's favour generated protest from the Muslim orthodoxy as it was seen as an attack on their right to be governed by their personal law. Under pressure from the Muslim community, the Parliament passed the Muslim Women (Protection of Rights on Divorce) Act, which nullified the Shah Bano judgement and restricted the husband's need to pay maintenance to only the iddah period, thus in reality denying Muslim women to right to maintenance from their husbands. While the notion of group rights is important, especially in order to ensure religious liberty for minority communities, they cannot result in the curtailment of individual rights either. Rights are accessed through both individuals and communities, and there is a problem with privileging one over the other.
Article 44 of the Constitution advocates the formulation of a uniform civil code for the country. Women's rights activists have supported this position due to oppressive patriarchal practices that exist in personal laws, and are protected by the State as part of minority community rights. However, this position has also been taken up right- wing activists whose agenda is that of national integrity, and the end of 'special' treatment for minority communities. In the context of the upsurge in Hindu nationalism in recent years and the revival of the UCC debate, a common civil code could sideline minority interests and liberties. A position that scholars are advocating is that of a secular, common civil code which would also offer individuals the right to be governed by their own personal laws. The common civil code would ensure that individual rights do not get compromised in favour of group rights, and minority interests would still be protected.
Violence and religious intolerance
Along with the religious diversity that exists in India, there have been numerous cases of communal violence, especially towards minority communities. The 1984 anti- Sikh riots which took place after the assassination of Indira Gandhi, the large scale violence against Muslims in Gujarat in 2002 and various other acts of religious intolerance have had divisive effects along communal lines. Since the late nineties, there has been an increased rate of violence against Christians in India, due to a fear of forced conversion. Tehmina Arora, in a report on 'anti- conversion' laws for the International Institute for Religious Freedom examines the ways in which anti- conversion legislation violates the concept of religious freedom as it is laid out in the Constitution. Arora writes that with the rise of violence against Christians since 1998, there has also been a proliferation of anti- conversion legislation. Six states of India, namely Orissa, Madhya Pradesh, Arunachal Pradesh, Chhattisgarh, Gujarat and Himachal Pradesh have introduced “Freedom of Religion” Acts which allow the state to regulate religious conversion, states thus have “wide and sweeping powers to inquire into religious conversions but carry no provisions for protection against discriminatory action on the part of the authorities.” The law in Gujarat makes it mandatory for prior permission to be obtained from the local authorities before any conversion ceremony is performed. This impinges on the rights accorded to citizens in Article 25 of the constitution, where individuals are allowed to profess, practice and propagate their religion, without interference from the state. The laws against forced conversions in these states allow “force” to be defined loosely, thus even the threat of divine displeasure could be construed as forceful. The state itself is complicit in the violence against minority communities, as laws against conversion allow for state sponsored violence against the Christian minority.
The fear of conversion has resulted in numerous acts of violence against Christians in India, as well as forced reconversion of converts to their previous religion. In 1999, a case that was brought to the attention of the public was that of the missionary Graham Staines, who was burnt alive along with his two sons while sleeping in their vehicle in a district in Orissa. In recent years, there were instances of violence against Christians in the Kandhamal district of Orissa where approximately a hundred people were killed and around fifty thousand were displaced or had their homes burned down, according to the IIRF report. Instances of violence have been geared particularly towards Muslim and Christian communities, as proselytising is advocated by the doctrines of these religions and there is a deep- seated anxiety of conversion to 'other' religions among the Hindu right- wing extremists. The recent allegations of 'love jihad' against Muslim men who purportedly target young non- Muslim for conversion through feigning love shows the depths of this anxiety. Cultural sanctions against inter- faith marriages have increased the suspicion of the existence of this phenomenon by Hindu as well as Christian groups, in spite of there being no real proof that the phenomenon exists at all. These allegations are communalist, in that they target the Muslim community as well as protectionist in the treatment of women, as they do not take into account women's right to choose what religion to practice.
Protection of minority rights
The United Nations' “Declaration on the Rights of Persons belonging to National or Ethnic, Religious and Linguistic Minorities” of 1992 states that “States shall protect the existence of the National or Ethnic, Cultural, Religious and Linguistic identity of minorities within their respective territories and encourage conditions for the promotion of that identity.” The government of India set up the National Commission for Minorities in accordance with the UN Declaration, which emphasises on the need for the state to protect and promote rights of minorities to enjoy their culture, profess and practice their religion in public without the fear of either interference or discrimination. There is a very real need for the protection of minority rights by the state. Even though all citizens have formal equality under the law, the real threat of violence and cultural hegemony restricts the freedom of minorities in India. The state is itself seen to be complicit in this violence, as in cases of anti- conversion legislation which restricts religious freedom as well as state complicity in incidents of communal riots such as the 2002 Gujarat riots. What is to be hoped for is a transformation of the systems that govern society so as to simultaneously uphold equality before the law while recognising and respecting difference and diversity, and engaging with the conservation of minority rights in the country.