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Equality And Religion

India is a pluralistic society and a country of religions. It is inhabited by people of many religions. The framers of the Constitution thus desired to introduce the concept of secularism, meaning state neutrality in matters of religion. They also wanted to confer religious freedom on various religious groups. Religion has been a very volatile subject in India both before and after independence. The Constitution therefore seeks to ensure state neutrality in this area.

Religious tolerance and equal treatment of all religious groups are essential parts of secularism. Secularism in India does not mean irreligion. It means respect for all faiths and religions. The state does not identify itself with any particular religion. India being a secular state, there is no state or preferred religion as such and all religious groups enjoy the same constitutional protection without any favour or discrimination.

Articles 25 to 28 of the Indian Constitution confer certain rights relating to freedom of religion not only on citizens but also on all persons in India. These constitutional provisions guarantee religious freedom not only to individuals but also to religious groups. Arts. 25 to 28 seek to protect religion and religious practices from state interference. India has no preferred or state religion, as such; all religions are treated alike and enjoy equal constitutional protection without any favour or discrimination.

No specific protection has been accorded to any religious group as such. However, the policy of non-interference with religious freedom has not been taken to the length of allowing a religion to impinge adversely on the secular rights of the citizens, or on the state power to regulate socio-economic matters.

The constitutional provisions have raised several problems of interpretation. On the whole, the Supreme Court has interpreted these provisions with a view to promote inter-religious amity, harmony and accord. The court has, on the whole, leaned towards the minority groups and has conceded to them certain rights over and above the majority rights.

What Is Equality?

Right to Equality

The right to equality guarantees equal treatment to all people by prohibiting legal discrimination based solely on class, ethnicity, religion, gender, or birthplace. It is regarded as a fundamental component of the constitution. The right to equality includes both positive and negative equality necessitates equal treatment as well as forbids uneven treatment.

Right to Equality under Article 14

Article 14 embodies the concept of equality, stating that the government must not deprive any individual of equal treatment under the law as well as guarantee equal rights within India. Everyone has the right to equal treatment under the law, irrespective of gender, ethnicity, or nationality.

Equality under Law

This means that no one has any unique rights or benefits. There is no prejudice in the eyes of the court based on irrelevant factors such as status, position, and so on. Declares that all individuals, regardless of status or position, are susceptible to the exclusive jurisdiction of regular courts

Equal legal protection under the law

It is a logical extension of equal treatment under the law. It specifies that all individuals inside the legal boundaries shall be afforded equal protection. This indicates that such security must be provided without regard for favour or prejudice. This entails fair treatment in identical situations, both in terms of legal rights and duties. It is the government's affirmative responsibility, which it must fulfil by enacting essential economic and social reforms, to ensure that everyone receives such equitable protection

What Is Religion?

The term 'religion' has not been defined in the Constitution, and it is a term which is not susceptible of any precise definition. The Supreme Court has however given this term an expansive content.

The Supreme Court has observed in Lakshmindra 20 "Religion is certainly a matter of faith with individuals or communities and it is not necessarily theistic. There are well known religions in India like Budhism and Jainism which do not believe in God or in any Intelligent First Cause." The guarantee under Art. 25, subject to the exceptions mentioned, confers a Fundamental Right on every person not merely:
  • to entertain such religious beliefs as are allowed to him by his judgment or conscience, but also
  • to exhibit his beliefs and ideas in such overt or outward acts and practices as are sanctioned or enjoined by his religion, and further
  • to propagate and disseminate his religious beliefs, ideas and views for the benefit and edification of others.

Meaning of Religious Freedom and Religious Equality
Religious freedom, if it means anything at all, must mean the ability of people of all faiths and none to practice their religion, to form religious associations and perhaps, if necessary, to be exempt from some civil laws, as Sikhs are relieved of the requirement to wear motorcycle helmets. These exemptions should be offered uniformly, based upon the religious beliefs and the impact of the exemption, not on the constitutional status of the religious organization involved. Religious equality means treating all religions the same: Christians, Sikhs, Hindus, Buddhists Muslims and Jews, as well as all denominations within each of them.

Right to equality and freedom of religion, both are fundamental rights guaranteed by the Constitution. But these rights appear to be competing for precedence in the view of controversies surrounding entry of women at certain places of worship including Sabarimala Temple, fire temples of Parsis and mosque as well as the issue of genital mutilation among Bohra Muslims.

There seems to be a "clash" between fundamental rights guaranteed by the Constitution. Fundamental rights under Articles 14 and 15 seem to be competing with those under Articles 25 and 26 -- Article 26 in particular.

The key question that needs to be addressed:
Which fundamental right takes precedence over the other in such cases where two fundamental rights appear to be competing and conflicting in application?
Let us first see what these four Articles of Constitution broadly say.

Articles 14 and 15 guarantee an individual the right to equality in all matters including access to public places. Article 14 declares that the state shall not deny any person equality before the law or equal protection of laws in India. This right is available to everyone including the foreigners and even a corporation or a company. Article 15 says there cannot be any discrimination among citizens (not foreigners) on the grounds of religion, caste, sex or their place of birth.

Articles 25 and 26 ensure freedom of religion to everyone in India. Article 25 guarantees every person the freedom of conscience and gives her the right to freely profess, practice and propagate any religion. This is the fundamental right that allows even a foreigner to carry on religious missionary activities in India. Article 26 gives the freedom to manage religious affairs, guaranteeing individual as well as collective freedom of religion. The only restrictions to the right to religious freedom are public order, morality, and health. There is no mention of this right being subject to provisions relating to other fundamental rights.

So, is right to religious freedom absolute or right to equality is more fundamental?
"If one go by pure jurisprudence, then the right to religious freedom should take precedence over the right to equality, However, no rights as guaranteed in Part III of the Constitution is absolute. They are rather subject to reasonable restrictions and they are inter-dependent also, and therefore we need interpretations of these Articles in the given context, In plain reading of the Articles may look like competing with and conflicting to each other, but in reality, in its deeper understanding and interpretation, they supplement each other. Right to religious freedom is more fundamental and emanates from right to equality too-equal protection of law"

Religion gave birth to the ethics which further developed as rules and with passage of time found their way into the constitution of respective countries. Religious freedom is most basic in historical context than the principle of equality. Among the issues - besides entry of women of all groups into the Sabarimala temple - pending before the Supreme Court are genital mutilation of women belonging to Bohra Muslim community, entry of Muslim women into mosques for prayer and similar unfettered access to women into agiyaris or the fire temples of Parsis.

What the Court Says:
Conventionally, the Supreme Court has guaranteed protection to distinct religious practices in sync with the "Secular" declaration of the Preamble.

"In a 1955 verdict, the Supreme Court though recognised that women have hereditary rights to success to the priestly office of a pujari in a Hindu place of worship. But that judgment fell short of recognising her equal right to perform sacred rituals as a pujari."

Many years later, in another famous case -- of Goolrukh Gupta, a Parsi woman who married outside the community -- the Gujarat High Court, in a majority judgment, upheld the Parsi Trust's assertion that a Parsi woman loses her Parsi status if she marries a non-Parsi man. This 2013 judgment was criticised for ignoring the right to equality as the Parsi Trust does not issue a similar prescription for a Parsi man.

However, in recent times, the courts seem to be giving the right to equality more weight. In 2016, a Bombay High Court bench opened the sanctum sanctorum area of the Haji Ali Dargah to women, prohibited until then on the ground of religious freedom under Article 26. The court held that rights under Articles 14 and 15 were superior.

In 2017, the Supreme Court declared instant triple talaq as unconstitutional. The argument that Muslim personal law enjoyed protection of the rights to religious freedom did not hold against the right to gender equality.

In 2018, the Supreme Court opened the doors of Sabarimala Temple in Kerala to women of all age groups including those in menstruating phase of life. Earlier, temple entry rules in Kerala prohibited women aged 10-50 from entering the Sabarimala Temple to recognise the right to religious freedom as claimed by the shrine board.

The same case has returned to the Supreme Court in the form of more than 50 review petitions each claiming protection under Articles 25 and 26 and arguing that these are more fundamental than the right to gender equality guaranteed under Articles 14 and 15.

One must always consider Religious freedom as a human right and the need to accord special protection to religion. It considers the implications of a single-minded pursuit of equality for human rights and the principles of democracy, along with the idea of a secular state that is neutral to all religion.

It looks at modern human rights law and how it is supposed to protect religious beliefs as well as religious conscience, the failure of courts in different jurisdictions to respect the apparent dictates of conscience when they are in conflict with public policy, and the profound connection between religious understandings and human nature. It argues that real sticking points of conscience, and especially objections arising from important religious beliefs, must be respected in a democracy.

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