Chapter - religious minority and freedom of 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 an essential part of
secularism. Secularism in India does not mean irreligion. It means respect for all faith and
religion. The state does not identify itself with any particular religion 1. 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 favor 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. 

Articles 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
constitutional protection without any favor or discrimination. No specific protection has been
accorded to any religious groups as such. However, the policy of non-interference with
religious freedom has not been taken to the length of allowing 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-religion
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.

1
V.K. SINHA, SECULARISM IN INDIA 127 (1968)
4.1 SECULARISM

In Bommai2", a nine-Judge Bench of the Supreme Court referred to the concept of secularism
in the Indian context. According to SAWANT, J.: “….religious tolerance and equal treatment
of all religious groups and protection of their life and property and of the places of their
worship are an essential part of secularism enshrined in our constitution…”

BP. JEEVAN REDDY, J., observed:

“...while the citizens of this country are free to profess, practice and propagate such religion,
faith or belief as they choose, so far as the state is concerned, i.e., from the point of view of
the state, the religion, faith or belief of a person is immaterial. To it, all are equal and all are
entitled to be treated equally”.

The concept of secularism is not merely a passive attitude of religious tolerance. It is also a
positive concept of equal treatment of all religions.

The concept of secularism was not expressly incorporated in the Constitution at the stage of
its making. However, its operation was visible in the Fundamental Rights and Directive
Principles. The concept of secularism, though not expressly stated in the Constitution, was,
nevertheless, deeply embedded in the constitutional philosophy.

In 1976, through the 42nd Amendment of the Constitution, the concept of secularism was
made explicit by amending the Preamble. By this Amendment, the word “secular” was
introduced in the Preamble to the Constitution and, thus, what was hitherto implicit was made
explicit.

The Constitution does not define the term secular as it is a very elastic term and not capable
of any precise definition and so it is best left undefined.

A secular state does not extend patronage to any particular religion. The state is neither pro
any particular religion nor anti any particular religion. The state maintains neutrality in

2
AIR 1994 SC 1918
matters of religion and provides equal protection to all religions subject to the regulation of
secular parts.

The state guarantees to individuals and corporate religious freedom. It deals with an
individual as a citizen irrespective of his faith and religious belief. The state neither promotes
nor prefers any we specific religion. For the successful functioning of a democratic system,
the concept of secular ale is very essential. There can be no democracy if anti-secular forces
are allowed to have played as will divide followers of different religious faiths who will then
be fighting with each other. Therefore, the Constitution leaves the purely religious matters to
the individual and permits the state to take charge of the secular matters.

VERMA, J., delivering the majority opinion in M. Ismail Faruqui v. Union of India 3,
observed in relation to the concept of secularism:

"It is clear from the Constitutional scheme that it guarantees equality in the matter of religion
to all individuals and groups irrespective of their faith emphasizing that there is no religion of
the state itself. The Preamble of the Constitution read in particular with Article 25 to 28
emphasizes this aspect and indicates that it is in this manner the concept of secularism
embodied in the constitutional scheme as a creed adopted by the Indian people has to be
understood while examining the constitutional validity of any legislation on the touchstone of
the Constitution. The concept of secularism is one facet of the right to equality woven as the
central golden thread in the fabric depicting the pattern of the scheme in our constitution. 

Reference may be made in this connection to Article 25-28, 29-30, to Article 14 well as to
Article 44 and 51A. These various constitutional provisions promote the idea of secularism
and by implication prohibit the establishment of a theocratic state. The state is under the
obligation to accord equal treatment to all religions and religious sects and denominations,

To underline the great significance of secularism, in Bommai," the Supreme Court declared it
as the “basic” feature of the Constitution. “Any step inconsistent with the constitutional
policy is, in plain words, unconstitutional”. And, further, the Supreme Court has gone to the

3
AIR 1995 SC 604
extent of ruling that any State Government which pursues unsecular policies or unsecular
course of action acts contrary to the constitutional mandate and renders itself amenable to
action under Art. 356.

The teaching of Sanskrit language as an elective subject is not against the concept of
secularism.

The concept of secularism is not static; it is elastic in connotation. In this area, flexibility is
most desirable as there cannot be any fixed views on this concept for all time to come. The
courts decide from time to time the contours of the concept of secularism and enforce it in
practice.

In Aruna Roy v. Union of India4, the Supreme Court has ruled that the concept of secularism
is not endangered if the basic tenets of all religions all over the world are studied and learnt.
Value-based education will help the nation to fight against fanaticism; ill-will, violence,
dishonesty and corruption. These values can be inculcated if the basic tenets of all religions
are learned.

The Supreme Court upheld an order of the Additional District Magistrate, Dakshina Kannada
restraining Dr. Thogadia from entering the district and from participating in any function in
the district for a period of 15 days. PASAYET, J. speaking for the court said:

[W]henever the authorities concerned in charge of law and order find that a peu speeches or
actions are likely to trigger communal antagonism and hatred resulting in fissiparous
tendencies gaining foothold, undermining and affecting communal harmony, prohibitory
orders need necessarily to be passed, to effectively avert such untoward happening”5

4
(2002) 6 SCALE 408
5
JAIN M.P, INDIAN CONSTITUTIONAL LAW, NAGPUR, PUBLISHED BY WADHWA AND COMPANY,
7TH EDITION 1246 (2014)
4.2 FREEDOM OF RELIGION

The concept of secularism has been discussed above. Now let's establish a correlation
between religion and secularism. One of the rights guaranteed by the Indian Constitution is the
right to Freedom of Religion. As a secular nation, every citizen of India has the right to freedom
of religion i.e. right to follow any religion. As one can find so many religions being practiced
in India, the constitution guarantees to every citizen the liberty to follow the religion of their
choice. According to this fundamental right, every citizen has the opportunity to practice and
spread their religion peacefully. And if any incidence of religious intolerance occurs in India,
the Indian government must curb these incidences and take strict actions against it. The right
to freedom of religion is well described in Articles 25, 26, 27 and 28 of the Indian
constitution.

Article 25 reads:
(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, practice
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 (2), the reference to Hindus shall be construed as
including a reference to persons professing the Sikh, Jain or Buddhist religion, and the
reference to Hindu religious institutions shall be construed accordingly.6

Article 26 reads:
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;
6
CONSTITUTION OF INDIA, 1950.
(c) To own and acquire movable and immovable property; and
(d) To administer such property in accordance with law7.

In this chapter, the focus is on Article 25 and Article 26 as the Articles of the Constitution of
India are central Articles guaranting Religious Freedom in India. These Articles are also
important as they provide Freedom of religion irrespective of being a member of Religious
Minority Community.

The religious freedom of the individual person guaranteed by the Constitution of India is
given in clause (1) of Article 25 that reads: 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, practice and propagate religion. In precise terms, the Constitution
makes it clear that the rights provided in clause (1) of Article 25 are subject to public order,
morality, and health and to the other provisions of Part III of the Constitution that lays down
the fundamental rights. Clause (2) of Article 25 is a saving clause for the State so that the
religious rights guaranteed under clause (1) are further subject to any existing law or a law
which the State deems it fit to pass that (a) regulates or lays restriction on any economic,
financial, political or other secular activity which may be associated with religious practices,
or, (b) provides for social welfare and reform or the throwing open of Hindu religious
institutions of a public character to all classes and sections of Hindus8.

Similarly, Article 26 is the main article that provides the corporate freedom of religion
governing the relation between the State and 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 the law. Clause (b) of Article 26 guarantees to
every religious denomination or any section thereof the right to manage its own affairs in
matters of religion and clause (d) gives them the right to administer their property
(institutions) in accordance with laws passed by the State. It is obvious from the language of the
clauses (b) and (d) of Article 26 that there is an essential difference between the right of a
denomination to manage its religious affairs and its right to manage its property.

7
Ibdi.
8
V.D.MAHAJAN, CONSTITUTIONAL LAW OF INDIA P.232-241.
This means that a religious denomination’s right to manage its religious affairs is a
fundamental right protected by the Constitution. No legislation can violate it except for
health, morality and public order. But the right to administer property associated with religion
can be exercised only “in accordance with law”. In other words, the State can regulate the
administration of religious property by way of validly enacted laws.

4.3 THE FREE EXERCISE OF RELIGION

Article 25(1) a person has a two-folded:- [a] freedom of conscience, [b] freedom to profess,
practice and propagate religion. As a general rule, it has maintained a liberal definition of
religion - as assumed in most of the liberal democratic States - covering in its ambit belief,
doctrines and moral codes, rituals, and observances, ceremonies, and modes of worship9.
However, in some cases, the Supreme Court did not hesitate to pass a strict definition of
‘matters of religion’ as protected under clause (b) of Article 26 of the Constitution limiting
them only to those essentials and obligatory overt acts necessary to express one’s faith 10.
These are the instances where the Court found that certain acts of rituals though sanctioned
by a particular religion, if allowed to perform would violate, on reasonable grounds, social
solidarity and even cause harm to life.

In the context of a religiously plural society like India, where conflicting value systems often
compete with each other, the principled approach of the Supreme Court on religious matters
is to promote religious freedom that secures human dignity. Therefore, the Court may apply a
liberal or a conservative approach towards religion depending on which of the two better
promotes religious liberty consistent with a set of values that protect the sanctity of human
life and provide a life-affirming space for all to live in dignity.

Hence, the Indian judiciary tells in unambiguous language that the Constitution recognizes
the importance of religion in people’s lives, and that it holds religious liberty as a
fundamental value of the Indian political community but not at the cost of certain substantive

9
COMMISSIONER, HINDU RELIGIOUS ENDOWMENTS, MADRAS V. LAKSHMINDRA TIRTHA
SWAMIAR OF SHRI SHIRUR MUTT, AIR 1954 SC 282, AT 290.
10
MHD. HANIF QURESHI VS. STATE OF BIHAR, AIR 1958 SC 731.
principles which are necessary for the society for all to lead a life worthy of human dignity.
Religion thrives in India and it remains an integral aspect of Indian ethos. Its popular
practices are multifarious and often unrestrained as shown by Dr. B.R. Ambedkar during the
debates in the Constituent Assembly11. In this context, the principled approach founded on
reason as held by the Indian Supreme Court regarding religion is an important requirement to
keep religions to be authentic in their practices. Such an interpretation of religion would
remind believers to shed away non-religious and, at times, even unreligious accretions added
to religious practices. It would enlighten the followers of various faith traditions not to thwart
the legitimate activities of the State to further the cause of human dignity. The individual
person’s religious freedom as guaranteed by the Constitution of India is provided in clause
(1) of Article 25.

The religious freedom guaranteed under Article 25 is not limited to the citizens of India only
but also applies to “all persons” as spelt out in clause (1) of the said article. Question was
raised in the Ratilal case12 whether the aliens and in particular, the foreign Christian
missionaries who were exclusively engaged in propagating their religion, were also protected
under clause (1) of articles 25 of the Indian Constitution. Mr. Justice Mukerjea who spoke for
the Court said, “Article 25 of the Constitution guarantees to every person and not merely to
the citizens of India, the freedom of conscience and the right freely to profess, practice and to
propagate religion”. Hence in the next section, we shall discuss the different aspects of the
religious freedom protected under article 25 (1).

4.4 FREEDOM OF CONSCIENCE

Freedom of 'conscience' is absolute inter freedom of the citizen to mold his own relationship
with God in whatever manner he likes. The Courts have defined freedom of conscience as the
freedom of a person to entertain any belief or doctrine concerning matters, which are
regarded by him or her to be conducive to his or her spiritual well being 13. The wording of
article 25 of the Indian Constitution, however, seems to suggest that the individual’s right to
hold such belief is subject to public order, morality, and health and to the other provisions of
part III of the Constitution.

11
CONSTITUTENT ASSEMBLY DEBATES VOL.7, p. 781.
12
RATILAL PANACHAND GANDHI V. STATE OF BOMBAY, AIR 1954 SC 388.
13
V. D. MAHAJAN., OP.CIT. PP. 233-234.
Under the terms of article 25, it may be asked whether the State may claim any power over an
individual’s freedom of conscience. Dr. Donald E. Smith argued that the State could have no
power over an individual’s freedom of conscience, and, therefore, the wording of article 25
which apparently implied State’s restriction was due to inaccurate drafting 14. It seems,
nevertheless, the restrictions to which freedom of conscience may be submitted as implied in
article 25 of the Constitution of India, are not resulting from such inaccuracy in drafting;
rather the said article did not intend to protect freedom of conscience on religious scruples
when it stands opposed to protecting the public welfare, because the protection guaranteed to
religious freedom is at the same time subject not only to public order, morality and health but
also to the other provisions of Part III of the Constitution.

4.5 FREEDOM TO PROFESS OF RELIGION

To "profess" a religion means to declare freely and openly ones faith and belief. The
constitutional right to profess religion means a right to exhibit one’s religion in such overt
acts as teaching, practicing and observing religious precepts and ideals in which there is no
explicit intention of propagation involved. Taking out religious processions, worship in
public places, putting on specific garments include within the ambit of profession of
religion15. The Constitution of India, for example, provides the wearing and carrying of
kirpans16 as part of the profession of Sikh religion. The phrase ‘profess a religion’ as given in
article 25 means according to the Supreme Court “to enter publicly into a religious state”17.

In the Quareshi case18 the appellants contended that sacrificing a cow on BakrId day
amounted to profession and practice of Islam, which is protected by article 25 of the
Constitution. Tracing the history of the custom of offering a sacrifice of a cow on the Bakr-Id
day, the Supreme Court ruled, “We have, however, no material on the record before us,

14
DONALD E. SMITH, OP.CIT, PP. 103-104.
15
P.C. JAIN, OP.CIT. P. 177.
16
“THE WEARING AND CARRYING OF KIRPANS SHALL BE DEEMED TO BE INCLUDED IN THE
PROFESSION OF THE SIKH RELIGION”. ARTICLE 25 (B), EXPLANATION - I, THE CONSTITUTION
OF INDIA. KIRPAN IS A SWORD, ONE OF THE FIVE EMBLEMS, WHICH AN ORTHODOX SIKH
MUST WEAR.
17
PUNJAB RAO V. D.P. MESHRAM, AIR 1965 SC 1179, AT 1184.
18
MOHAMMAD HANIF QUARESHI V. STATE OF BIHAR, AIR 1958 SC 731.
which will enable us to say… that the sacrifice of a cow on that day is an obligatory overt act
for a Mussalman to exhibit his religious belief and idea”.

The right to take out religious processions and to have religious gatherings in public places
falls under the right to profess religion as guaranteed in Article 25 (1). The exercise of this
right is, however, subject to public order and morality. The police authorities, for instance,
have been empowered to regulate such overt acts of religious profession. Section 30 (1) of the
Police Act19 authorizes the police to regulate assemblies and processions and to prescribe the
routes and timings for such purposes. Under section 144 of the Code of Criminal procedure 20,
a magistrate can ban processions and meetings altogether where there is an apprehension of
breach of peace. Such orders are done during the times of communal tension that is endemic
in some parts of the country.

On some occasions of communal and public disturbances, the prohibitive orders can also
include banning of the use of loudspeaker and such electronic devices employed in religious
profession and practice. For instance, the Commissioner of Police in Calcutta prohibited the
use of loudspeakers for prayer in Mosques located in some residential areas in the city. On
challenge, his ban order was held constitutional21. The right to profess one’s religion includes
also the right to use all lawful means required for such acts provided they don’t destroy
public peace and order. The protection is given under Article 25 (1), however, it does not
divest the citizens from their duty to co-operate with the State to maintain public order so that
people may live their ordinary life in dignity.

4.6 FREEDOM TO PRACTICE OF RELIGION

To 'practice' religion is to perform the prescribed religious duties, rights and rituals, and to
exhibit his religious belief and ideas by such acts as prescribed by a religious order in which
he believes. The freedom to practice religion is protected under article 25 (1) of the Indian
Constitution. In the year 1952, the first case of this sort seeking protection under this
constitutional right as guaranteed in clause (1) of article 25 appeared before the High Court of
Bombay22.
19
POLICE ACT, 1861 (ACT 5 OF 1861).
20
CODE OF CRIMINAL PROCEDURE, 1898 (ACT 5 OF 1898).
21
MASUD ALAM V. COMMISSIONER OF POLICE,WEST BENGAL, AIR 1956 CAL. 9.
22
STATE OF BOMBAY V. NARASU APPA MALI, AIR 1952 BOM 84
The case arose out of the Bombay Prevention of Hindu Bigamous Marriage Act 23, passed by
the State of Bombay. The Act prevented bigamy among Hindus alone who resided in that
State while the Muslim community that practiced polygamy was left out of the operation of
the said Act. Therefore, Shri Narasu Appa Mali appealed before the High Court of Bombay,
because the Act infringed on the plaintiff’s religious freedom. The aggrieved plaintiff alleged
that by enacting the Bombay Prevention of Hindu Bigamous Marriage Act of 1946, the State
of Bombay discriminated between Hindus and Muslims residing in that State on the basis of
religious practice and, therefore, pleaded that the enactment was void.
The Court upheld the impugned Act constitutionally valid. Mr. M.C. Chagla, the Chief
Justice of the Bombay High Court, who gave the judgment of the Court in this case, indicated
that the freedom to practice religion as provided under article 25(1) was not absolute, in the
sense that if religious practices contravened to public order or to a policy of social welfare,
then they said practices could not claim State protection. He also opined, “a sharp distinction
must be drawn between religious faith and belief and religious practices. What the State
protects is religious faith and belief”24.

Subsequent to the Narasu Appa Mali case25, many cases came before the Supreme Court of
India for constitutional protection to “religion” and “matters of religion” as guaranteed in
Articles 25 (1) and 26 (b) respectively against certain state statutes. In these cases, the
Supreme Court had the occasion to deal with the question of “freedom of practice of religion”
protected under article 25(1).

First among them was the Shri Lakshmindra case26. The matter under dispute in the instant
case was on the rights of the head of a religious institution in the management of the affairs of
religious denominations in “matters of religion” given under Article 26 (b) of the
Constitution. In giving its judgment, the Supreme Court studied in great detail freedom of
religious practice as protected under Article 25 (1) of the Indian Constitution in comparison
with similar cases brought before the Courts in the United States of America and Australia.
The Supreme Court of India observed that the “practice of religion” as given in Article 25 (1)
23
BOMBAY PREVENTION OF HINDU BIGAMOUS MARRIAGE ACT, 1946 (BOMBAY ACT 25 OF 1946)
(AS AMENDED BY BOMBAY ACT 38 OF 1948)
24
THE STATE OF BOMBAY V. NARASU APPA MALI, AIR 1952 BOM. 84, AT 86.
25
Ibid.
26
COMMISSIONER, HINDU RELIGIOUS ENDOWMENTS, MADRAS V. SHRI LAKSHMINDRATIRTHA
SWAMIAR OF SHRI SHIRUR MUTT, AIR 1954 SC 282
and “matters of religion” as given in Article 26 (b) of the Indian Constitution have the same
scope.

Mr. Justice Mukerjea who spoke for the unanimous opinion of the Supreme Court said, “The
guarantee under our Constitution not only protects the freedom of religious opinion but it
protects also acts done in pursuance of a religion and this is made clear by the use of the
expression ‘practice of religion’ in Art.25”27. He further observed that the freedom of religion
in Article 25 included not only the “freedom to entertain such religious belief, as may be
approved of by his judgment and conscience, but also to exhibit his belief in such outward
acts as he thinks proper.”28

In some of the latter cases of this sort, the Supreme Court’s ruling seemed to have been
rather strict regarding the practice of religion protected under Article 25 (1) of the
Constitution. For instance, Mr. Justice Mukerjea who once again delivered the judgment of
the Supreme Court in the Ratilal case29 said:

Thus, subject to the restrictions which this Article imposes, every person has a fundamental
right under our Constitution not merely to entertain such religious belief as may be approved
of by his judgment or conscience but to exhibit his belief and ideas in such overt acts as are
enjoined or sanctioned by his religion and further to propagate his religious views for the
edification of others30. So, we notice that the space granted for the protection of religious
practice is getting restricted. In Shri Lakshmindra case31 the court decided that a person had
his \ her religious freedom protected in those overt acts of his \ her belief which he \ she
thought proper; and it was not required that such overt acts should be enjoined or sanctioned
by one’s religion. On the contrary, in the Ratilal case32 the court held that such overt actions
must be enjoined or sanctioned by one’s religion.

In the Quareshi case33 the Supreme Court further held that the religious practice under

27
Ibid. AT 290.
28
Ibid., AT 289
29
RATILAL PANACHAND GANDHI V. STATE OF BOMBAY, AIR 1954 SC 388.
30
Ibid., AT 391
31
COMMISSIONER, HINDU RELIGIOUS ENDOWMENTS, MADRAS V. SHRI LAKSHMINDRA TIRTHA
SWAMIAR OF SHRI SHIRUR MUTT, AIR 1954 SC 282, AT 289.
32
RATILAL PANACHAND GANDHI V. STATE OF BOMBAY, AIR 1954 SC 388.
33
MOHAMMAD HANIF QUARESHI V. STATE OF BIHAR , AIR 1958 SC 731.
question should not only be “enjoined or sanctioned” 34 by one’s religion but it must also be
“an obligatory overt act”35 of the concerned religion to exhibit its tenet. As seen earlier, in this
case the appellants pleaded for the sacrifice of a cow on Bakr-Id day36. After going through
the Islamic custom of animal sacrifice on Bakr-Id day and the tradition maintained by
Muslim rulers in India, the Supreme Court observed that cow sacrifice was sanctioned by
Islam but it was not an obligatory overt act to express Islamic faith and, therefore, it would
not be protected under practice of religion as given in clause (1) of Article 25. The criterion
adduced to the practice of religion, which might claim State protection. In giving the
judgment of the Court Dr. Justice P. B. Gajendragadkar observed:

In order that the practices in question should be treated as a part of religion they must be
regarded by the said religion as its essential and integral part; otherwise purely secular
practices which are not an essential or an integral part of religion are apt to be clothed with a
religious form and may make a claim for being treated as religious practices within the
meaning of Art.26. Similarly even practices though religious may have sprung from merely
superstitious beliefs and unessential accretions to religion itself37.

According to the criterion set by the Supreme Court an act is a religious practice, which
deserves protection under clause (1) of Article 25 of the Constitution of India, in so far as it is
held by a particular religion as essential and integral part of its tenet. This criterion was
proposed by the Court with the objective of saving true religious practices from non-religious
accretions and even superstitions. By 1963, the Courts in India have followed this approach
in dealing with matters related to the practice of religion, which is protected under right to
religious freedom. The test is that a particular religious community must regard it as
something essential of its religious tenet.

In the case of counter claims by competing individuals or groups on this matter, the court is
the proper forum to resolve it. This was brought out in the Tilkayat case38. The approach
pursued by the Courts in India towards matters pertaining to the practice of religion has come

34
Ibid AT 739
35
Ibid., AT 740
36
Mhd. HANIF QURESHI V. STATE OF BIHAR, AIR 1958 SC 731, pp. 142-146.
37
Ibid., AT 1415.
38
TILKAYAT GOVINDLALJI MAHARAJ V. STATE OF RAJASTHAN, AIR 1963 SC 1638, AT pp. 1660-
1661.
under severe criticism from Constitution experts. Dr. P.C. Jain has suggested 39 that in the
matter of doubtful religious practices, the Courts in India should accept the contention of a
believer who claims before the Court that certain practice has religious significance to the
plaintiff instead of restoring to judicial prove into plaintiff’s claim so as to see whether it is
an essential and an integral part of a religion, and in some other instances to ascertain
whether it is an obligatory overt act of a religious tenet.

4.7 Freedom to Propagate Religion

To 'propagate ' means to spread and publicize his religious view for the edification of others.
But the word "propagation" only indicates persuasion and exposition without any element of
coercion. The right to propagate ones religion does not give a right to convert any person to
one's own religion.

Unlike the Constitutions of many countries, Article 25 of the Indian Constitution specifically
provides the right to propagate religion. 40However, the original draft of this article did not
mention it explicitly that reads:

All citizens are equally entitled to freedom of conscience and to the right freely to profess and
practice religion in a manner compatible with public order, morality or health: “Provided that
the economic, financial or political activities associated with religious worship shall not be
deemed to be included in the right to profess or practice religion”.41

The insistence from the Christian minority seemed to have largely contributed to the specific
inclusion of this right. The joint Committee of the Catholic Union of India and the All India
Council of Indian Christians passed a resolution in October 1945, which practice and
propagation of religion should be guaranteed, and the change of religion should not involve
any civil or political disability.”42

Clause (13) of the Interim Report on Fundamental Rights submitted to the Constituent

39
P. C. JAIN, op.cit., p. 21.
40
M.V. PYLEE, INDIA’S CONSTITUTION, BOMBAY-ASIA PUBLISHING HOUSE 113 (1962).
41
SHIVA B. RAO, OP.CIT. VOL. II, p. 76.
42
SEE DONALD E. SMITH, OP.CIT. pp. 162-192.
Assembly in April 1947 included the right to propagate 43. Nevertheless, clause (17) of the
Report stated, “conversion from one religion to another brought about by coercion or undue
influence shall not be recognized by law”.44 When clause (17) was debated on the floor of the
Constituent Assembly, Mr. K.M. Munshi who composed the text, proposed a new
amendment to the clause during the debate which read, “Any conversion from one religion to
another of any person brought by fraud, coercion or undue influence or of a minor under the
age of eighteen shall not be recognized by law.’’45

The Christian members of the Assembly opposed Mr. K.M. Munshi’s amendment proposal,
because they voiced that it would nullify in large measure the freedom of religion guaranteed
under clause (13). Dr. B.R. Ambedkar, the Chairman of the Constituent Assembly, also
strongly opposed Mr. K.M. Munshi’s amendment proposal. The reluctance shown by some
members of the Constituent Assembly for the inclusion of the clause on the right to propagate
religion was conditioned by their fear that this right would help Christian missionaries to
convert Hindus and others to Christianity.46

Some other Hindu members of the Constituent Assembly, however, emphasized India’s
spiritual heritage, which is inclusive and open to all faiths. Therefore, they had no misgiving
to include the right to propagation under religious freedom. In his advocacy for the inclusion
of propagation clause under religious freedom, Pundit Lakshmikanda Maitra, referred to the
sayings of Swami Vivekananda and said: The great Swami Vivekananda used to say that
India is respected and revered all over the world because of her rich spiritual heritage…If we
are to educate the world, if we are to remove the doubts and misconceptions and the colossal
ignorance that prevails in the world about India’s culture and heritage, this right must be
inherent, - the right to profess and propagate her religious faith must be conceded.47

The Constitution when finally adopted, accepted only the positive statements related to
religious freedom as we have it in Article 25 of the Constitution. Article 25 provides to all
persons the right to propagate religion and Article 26, which guarantees collective freedom of
religion to denominations, or any section thereof, does not explicitly refer to the right for

43
CONSITUTENT ASSEMBLY DEBATES VOL. 7, p.427.
44
Ibid., p. 428.
45
Ibid., p. 480.
46
Ibid., pp. 818,
47
Ibid., vol. 7, p. 832.
propagation. In the Shri Lakshmindra case48, the Supreme Court held that the heads of
religious institutions had liberty to propagate their respective religious tenets because
institutions acted only through human agencies.105 Similarly, in the Ratilal case49, 106 the
Court said that the right to propagate religion applied to a person in one’s individual capacity
as well as on behalf of an institution.50

The right to propagate religion means the right to communicate one’s religious tenets to
others by way of preaching, teaching and writing with the explicit intention of convincing
others about the goodness of one’s religion. As propagation implies convincing others to
one’s point of view, it may involve underestimating others’ religion. This may produce
religious ill feeling and may lead to violence, which may place the maintenance of public
order and safety at stake. Hence, the task of the State is to maintain a balance between the
right to propagate religion and the right of the public for order and security of life. Article 25
of the Constitution, therefore, grants freedom to propagate religion “subject to public order.”

If propagation is done in any form to outrage the religious feelings of any section of the
public, the same may be penalized. Section 295 A of the Indian Penal Code, 51 for example,
punishes deliberate and malicious acts intended to outrage the religious feelings of any class
of persons. In case of Ramji Lal Modi v. The State of Uttar Pradesh 52, 109the petitioner who
was the editor, printer and publisher of Gaurakshak, a monthly journal devoted for the
protection of cows, published an article, which the Supreme Court found deliberate and
malicious in intent to outrage the religious sentiments of the Muslims. Under Section 295 A
of the Indian Penal Code he was fined and sentenced to imprisonment. Upon appeal to the
Supreme Court, he challenged the constitutionality of the said section under Article 19(1) (a)
of the Constitution, which guarantees the right to freedom of speech.

Rejecting the petitioner’s contention, the Supreme Court held that clause (2) of Article 19 of
the constitution at the same time empowered the State to impose reasonable restrictions “in
the interest of” and not only “maintenance of” public order and, therefore, the intent of clause

48
COMMISSIONER, HINDU RELIGIOUS ENDOWMENTS, MADRAS V. SHRI LAKSHMINDRA TIRTHA
SWAMIAR OF SHRI SHIRUR MUTT, AIR 1954 SC 282.
49
RATILAL PANACHAND GANDHI V. STATE OF BOMBAY, AIR 1954 SC 388.
50
Ibid., at 391
51
SECTION 295A, THE INDIAN PENAL CODE AS AMENDED BY THE INDIAN PENAL CODE
(AMENDMENT) ACT, 1961 (ACT 41 OF 1961).
52
AIR 1957 SC 620.
(2) of article 19 covered section 295A of the Indian Penal Code 53. In its judgment in the
instant case, the Supreme Court emphasized: [T]he expression “in the interest of” makes the
ambit of the protection very wide. A law may not have been designed to directly maintain
public order and yet it may have been enacted in the interest of the public order … Section
295-A does not penalize any and every act of insult to… the religious beliefs of a class of
citizens but it penalizes only those acts of insult…which are perpetrated with the deliberate
and malicious intention of outraging the religious feelings of that class…It only punishes the
aggravated form of insult to religion.54

These above observations enable us to conclude that the religious freedom protected under
article 25 of the Constitution includes the right to propagate one’s religion by way of
preaching, teaching and writing with the explicit objective of convincing others about the
goodness of one’s religion that may lead to conversion.

However, incidents of competing claims of religions may cause religious ill feeling and social
unrest, which may jeopardize the life of ordinary people to live in dignity. As the Supreme
Court of India ruled in Ramji Lal Modi v. State of Uttar Pradesh,55 if religious propagation is
done in any way with deliberate intention to outrage the religious feeling of others, the same
can be penalized within the protection of clause (2) of article 19. Any act perpetrated with the
intention of outraging the religious feelings of the people is an attack on their dignity in their
self-identity because religious convictions are deep-seated values constitutive of one’s self-
identity. By protecting the people against such religious outrage, the State honors human
dignity, which is one of the primary objectives of the secular State, as referred to in the
Preamble of the Constitution of India.

53
Ibid., at 622
54
Ibid., at 623.
55
AIR 1957 SC 620
4.8 COMMUNITY-SPECIFIC CONSTITUTIONAL PROVISIONS

4.8.1 Nature of Special Provisions

Side by side with the foretasted general provisions relating to religious neutrality of the State
and religious liberties of the people, we find within the Constitution of India a number of
religion-based and religion-related provisions for certain communities who can be classified
as follows:
(a)The Hindus, Buddhists, Jains and Sikhs, who are mentioned in the Constitution by their
denominational names; and
(b)Certain groups who are mostly Christian by religion but the special provisions do not
mention them as denominational groups.

Since all these constitutional provisions relate to particular religious communities, these will
be considered at length, community wise, in Chapter IV which covers special laws meant for
various religious communities. Given here is a brief classified checklist of all such
provisions.

The community-specific provisions of the Constitution reflect the Indian concept of

secularism as discussed above and do not change or detract from the secular character of the
State in India.

4.8.2 Provisions for Hindus, Buddhists, Jains & Sikhs

The Constitution includes the following special provisions for the Hindu, Buddhist, Jain and
Sikh communities:
(a) Declaration of abolition of untouchability (mainly a Hindu religious custom) and
prohibition of its practice in any form - Article 1756.
(b) A Directive Principle of State Policy requiring the State to take steps to prohibit slaughter
of cows and calves (reverence for whom is customary among the Hindus) - Article 4857.
(c) Declaration of the validity of pre-existing and future laws made to throw open Hindu
places of worship to all sects and sections of the Hindus (with a supplementary provision

56
CONSTITUTION OF INDIA, 1950.
57
Ibid.
giving the power for the Buddhist, Jain and Sikh shrines) - Article 25, Explanation I58.
(d) A special provision for the grant of specified annual maintenance allowances to be given
from the State exchequer for the upkeep of Hindu temples of a certain denomination in two
South Indian states, Kerala and Tamil Nadu - Article 290A59.
(e) Declaration of wearing and carrying a kirpan (sword) a Fundamental Right for the Sikhs -
Article 25, 'Explanation II60.

4.8.3 Provisions for Mainly Christian Groups

The following special provisions were included in the Constitution for certain communities
which are mainly Christian by religion:
(i) Some special provisions of a transitory nature for the Anglo-Indian community - Articles
331, 333, 336-37, 366(2).61
(ii) A provision for the protection of the customary law and its administration among the
Nagas in the Christian-dominated State of Nagaland - Article 370A62.
(iii) A similar provision for the Mizos in the Christian- dominated State of Mizoram - Article
370G63.

4.9 CRITICAL ANALYSIS OF FREEDOM OF RELIGION ACT

Of the 29 states in India, seven—Gujarat (2003), Arunachal Pradesh (1978), Rajasthan

(2006), Madhya Pradesh (1968), Himachal Pradesh (2006), Odisha (1967), and Chhattisgarh
(1968)—have adopted a Freedom of Religion Act commonly referred to as an anti-
conversion law. These anti-conversion laws generally ban religious conversion by use of
force, inducement, or any fraudulent means; aiding any person in such a conversion is also
banned. However, these laws have resulted in inequitable practices against minorities. One of
the debated points linked with freedom of religion for many years in India is whether the
“right to freedom of conversion” is associated with the “right to freedom of religion”
envisaged in Article 25 of the constitution. Dissimilar with some other countries’

58
Ibid.
59
Ibid.
60
Ibid.
61
Ibid.
62
Ibid.
63
Ibid.
constitutions, which recognize freedom of conversion, there is no clear provision referring to
“conversion” in the Constitution of India. 64 Hence, Article 25 is usually cited with a
perception that the “freedom of conversion” emerges from “freedom of conscience.”

A 1954 Supreme Court of India judgment in the case of Ratilal Panachand Gandhi v. State
of Bombay has made the provision of Article 25 clearer by confirming that “every person has
a fundamental right under our Constitution not merely to entertain such religious belief as
may be approved of by his judgement or conscience but to exhibit his belief and ideas in such
overt acts as are enjoined or sanctioned by his religion and further to propagate his religious
views for the edification of others”.65

However, in another judgment in the case of Digyadarsan Rajendra Ramdassji v. State of

Andhra Pradesh (1969), the apex court decided that “the right to propagate one’s religion
means the right to communicate a person’s beliefs to another person or to expose the tenets of
that faith, but would not include the right to ‘convert’ another person to the former’s faith.”66

In another case of Rev. Stainislaus v. State of Madhya Pradesh (1977), the Supreme Court of
India decided, “What Article 25 (1) grants are not the right to convert another person to one’s
own religion by an exposition of its tenets. It has to be remembered that Article 25 (1)
guarantees “freedom of conscience” to every citizen, and not merely to the followers of one
particular religion, and that, in turn, postulates that there is no fundamental right to convert
another person to one’s own religion because if a person purposely undertakes the conversion
of another person to his religion, as distinguished from his effort to transmit or spread the
tenets of his religion, that would impinge on the “freedom of conscience” guaranteed to all
the citizens of the country alike.”67

Although the anti-conversion laws do not explicitly ban conversions, in practice these laws
“both by their design and implementation, infringe upon the individual’s right to convert,
favor Hinduism over minority religions, and represent a significant challenge to Indian
secularism.”68 While the laws apparently protect religious communities only from efforts to
64
SHIV B RAO, THE FRAMING OF INDIA’S CONSTITUTION, VOL. II, P 173–174.
65
AIR 1954 SC 388.
66
AIR 1970 SC 181.
67
1977 SCR (2) 611.
68
UNITED STATES COMMISSION ON INTERNATIONAL RELIGIOUS FREEDOM, ANNUAL REPORT
2007, 244.
encourage conversion by inappropriate ways, the failure to clearly define what makes a
conversion inappropriate gives state government’s unregulated discretion to accept or reject
the legitimacy of religious conversions. State governments in India have described “subtle
forms of humanitarian aid and development carried out as a normal part of a Church’s
mission” as a cause of improper and unethical conversions. 69 India has always had this
negative view of Christian humanitarian efforts: even the “Father of the Indian Nation”
Mahatma Gandhi, before the transfer of power in India, once said,
“Who am I to prevent them? If I had power and could legislate, I should certainly stop
all proselytizing. It is the cause of much avoidable conflict between classes and unnecessary
heart-burning. But I should welcome people of any nationality if they came to serve here for
the sake of service. In Hindu households the advent of a missionary has meant the disruption
of the family coming in the wake of change of dress, manners, language, food and drink.”70

Since the inception of India in 1947, various efforts were made by the central government to
pass nationwide legislation to control religious conversions in India. In 1954, Jethalal
Harikrishna Joshi, a member of the then ruling Congress Party, moved in Parliament the
Indian Converts (Regulation and Registration) Bill, 1954, which enforced licensing of
missionaries and the registration of conversion with government officials. The bill was
opposed by Christians. It was also strongly opposed by B. Pocker Sahib Bahadur, a Muslim
member of the Indian legislature, on the basis of the fact that as a result of the bill,
registration of any conversion would be dependent upon the discretion of the state authority,
which he regarded as a “virtual denial of the right” in Article 25 of the constitution. 71 On
December 2, 1955, then Indian Prime Minister Jawaharlal Nehru spoke out against the
proposed legislation, reminding the House that various efforts to regulate conversion had
been made at the time of the Constituent Assembly, yet an adequate solution had not been
found. He cautioned the members that legislating against conversion would “cause great
harassment to a large number of people” by giving local authorities too much power. He
urged that the real solution for the uneasy feelings between religious communities was to
create an atmosphere of tolerance by “respecting the other person’s religion and avoiding any

69
TRACY HRESKO, “RIGHTS RHETORIC AS AN INSTRUMENT OF RELIGIOUS OPPRESSION,”
INTERNATIONAL & COMPARATIVE LAW REVIEW (2006): 123–127.
70
BERKLEY CENTRE FOR RELIGION, PEACE, AND WORLD AFFAIRS, “MOHANDAS GANDHI ON
PROSELYTIZING AS A SOURCE OF CONFLICT.”
HTTPS://BERKLEYCENTER.GEORGETOWN.EDU/QUOTES/MOHANDAS-GANDHI-ON-
PROSELYTIZING-AS-A-SOURCE-OF-CONFLICT ACCESSED ON 02.04.2020.
71
LOK SABHA DEBATES 2/9 (DEC 24, 1954), 4075–4083.
coercion,” and he suggested the mover of the bill should drop it 72. The bill was eventually
rejected by the members of the lower house of the Indian legislature.

Muslims and Christians in various parts of India have long protested against these acts. The
protests are based on the argument that although it was specified that the acts were meant to
forbid conversion by objectionable means, it is clear in the Odisha Freedom of Religion Act
(OFRA) that conversion itself is regarded as objectionable since it is said to undermine
another faith. So, it is quite clear that despite the government’s claims that there are no
objections to “genuine conversion,” the acts were intended to control or limit not only
conversion done by undesirable means, but also conversion in general. Christians argue the
meanings of the terms used in the acts have been exposed to misinterpretation, which leads to
serious fears within their community. They regarded conversion as a personal matter, but it
comes under the inspection of government officials without adequate protections against the
misuse of legislation. Probably the strongest point against the acts is that India’s first Prime
Minister, Jawaharlal Nehru, warned the acts could create more problems than they solve. As
the texts of the acts show, they were aimed to regulate the activity of the instigator of
conversion rather than the one who converts to another religion.

The Freedom of Religion Acts is applicable only in cases of conversion from the “original
religion,” and keep out of their purview reconversion to “the religion of one’s ancestors.”
Though “original religion” is not clearly defined, religious minorities interpret it to mean that
a non-Hindu could freely reconvert to Hinduism, while those assisting a Hindu in converting
to another religion may be punished.73 In August 2007, the state government of Gujarat
passed a bill that requires prospective converts from one religion to another to first seek
permission from a magistrate’s court.74

The Special Marriage Act of 1954 includes provisions that deny converts to non-Hindu
religions (e.g., Judaism, Islam, and Christianity) of certain rights and privileges. For instance,
under the act, if either parent of a Hindu child converts to Christianity or Islam, that parent
loses the right to guardianship over the child. The Hindu Minority and Guardianship Act of
72
LOK SABHA DEBATES 2/9 (DEC 2, 1955), 1093–1119.
73
DEUTSCHE PRESSE-AGENTUR, “ANTI-RELIGIOUS CONVERSION BILL IN INDIAN STATE HITS
ROADBLOCK,”2006.
74
VISHAL ARORA, “STATE IN INDIA MODIFIES ANTI-CONVERSION LAW: CHRISTIANS IN
GUJARAT FEAR LEGISLATION WILL BE MISUSED,” SECULAR INDIA, AUGUST 23, 2005.
HTTP://WWW.SECULARINDIA.COM/ NEWS/2006/09/23STATE.HTM.
1956 disqualify converts from Hinduism to be the guardians of their own children. 75
Similarly, under the law, a Hindu wife who converts to Christianity or Islam loses her right to
marital support from her husband. Conversion from Hinduism can even be a basis for
divorce.76 Article 19 of the Indian Constitution protects freedom of speech, expression, and
association. However, the Indian government has not allowed new resident foreign
missionaries since the mid-1960s.

Ironically, the Freedom of Religion Acts is not enforced when the religious minorities are
converted to Hinduism, which instead is interpreted as “reconversion.” The terminology of
Ghar Wapsi (homecoming) is widely used by fundamentalist Hindu groups to refer to
“reconversion” to Hinduism. However, this term is “not included in the purview of any anti-
conversion law.”77 Such exclusion of reconversion from the purview of the freedom of
religion acts unavoidably suggests reconversion by use of force, fraud, or allurement is not
punishable under the provisions of these acts.

4.10 RELIGIOUS MINORITY AND PERSONAL LAWS

Before the colonial rule in India, Personal laws were widely applied in India, including Hindu
laws, Muslim Laws, and Jewish Laws78.The British also used the policy of non-interference
with these personal laws79. In the contemporary India also, the matters related to marriage,
divorce, succession and family affairs are mostly governed by the personal laws specific to
the certain communities.

The secular law of marital relations and property, India has retained the system of religion-
based and community-specific “personal laws,” offering individuals a choice between their
respective personal laws and the parallel secular laws. The personal laws applicable to
various communities have been codified and reformed to varying extents. Given below is an
account of the religious elements found in the codified personal laws currently in force.

75
CLAUSE 6 OF THE HINDU MINORITY AND GUARDIANSHIP ACT OF 1956.
76
FORUM18.ORG, “SITUATIONS OF RELIGIOUS FREEDOM IN INDIA.”
HTTP://WWW.FORUM18.ORG/PD F/INDIA.PDF.
77
CHRISTIAN SOLIDARITY WORLDWIDE, “BRIEFING: FREEDOM OF RELIGION LEGISLATION IN
INDIA,” MAY 2006.
78
CHRISTA RAUTENBACH, PHENOMENON OF PERSONAL LAWS IN INDIA: SOME LESSONS FOR
SOUTH AFRICA, THE COMPARATIVE AND INTERNATIONAL LAW JOURNAL OF SOUTHRN
AFRICA, VOL.39( JULY 2006), PG. 241-264.
79
Ibid.
The highly debated Article 4480 of the Indian Constitution provides that “The State shall
endeavor to secure for the citizens a uniform civil code throughout the territory of India”. If
ever fulfilled, Article 44 would almost certainly sound the end to religious personal law,
requiring all Indians to be governed by one secular civil code. There is, however, no
guarantee that this will ever happen because the Article is found in the Constitution’s
Directive Principles and is therefore not judicially enforceable. This designation of the
Article as a Directive Principle was driven by the Assembly’s desire to achieve national unity
by reassuring religious minorities that their personal laws would not be upset. The
Constitution provides no timeline for the implementation of Article 44, nor does it provide
any process by which it should be drafted.

Side by side with the secular laws of marital relations and property, India has retained the
system of religion-based and community-specific “personal laws,” offering individuals a
choice between their respective personal laws and the parallel secular laws. The personal
laws applicable to various communities have been codified and reformed to varying extents.
Given below is an account of the religious elements found in the codified personal laws
currently in force.

Christians and Parsis - In 1866, during the British rule in India, the Native Converts’
Marriage Dissolution Act was enacted and enabled married Indians converting to Christianity
to seek a divorce from their non-converting spouses who might have deserted them on
account of the change of religion81. In 1869, the British rulers enacted for the Christians an
Indian Divorce Act, and three years later a Christian Marriage Act, both based on
ecclesiastical law82. Both these Acts have remained in force in independent India but have
been subjected to certain amendments83. The Indian Succession Act of 1865, enacted mainly
for the Christians, was later incorporated as one of the chapters into the Indian Succession
Act of 1925, which remains applicable to the Christians in independent India84.
The British rulers had enacted an inheritance law for the tiny Parsi Zoroastrian community of
India. Known as the Parsi Succession Act of 1865, this law was also later incorporated as a

80
CONSTITUTION OF INDIA,1950.
81
CONVERTS’ MARRIAGE DISSOLUTION ACT, NO. 21 OF 1866,
82
INDIAN DIVORCE ACT, NO. 4 OF 1869, INDIAN CHRISTIAN MARRIAGE ACT, NO. 15 OF 1872,
83
MARRIAGE LAWS (AMENDMENT) ACT, NO. 49 OF 2001
84
INDIAN SUCCESSION ACT, NO. 39 OF 1925
special chapter into the Indian Succession Act of 1925, which is still in force. The old Parsi
Marriage and Divorce Act, also enacted in 1865, was replaced in 1936 by a new Act 85. Both
the special chapter on inheritance for the Parsis under the Indian Succession Act of 1925 and
the Parsi Marriage and Divorce Act of 1936 were retained in force after independence but
have now been subjected to some amendments86.

Hindus, Buddhists, Jains, and Sikhs- In 1955–56 Parliament enacted four religion-based
personal laws applicable to the Hindus, Buddhists, Jains, and Sikhs—viz., the Hindu
Marriage Act of 1955, and the Hindu Succession Act, the Hindu Adoption and Maintenance
Act, and the Hindu Minority and Guardianship Act, all three enacted in 1956 87. It was only
for the sake of brevity that the word “Hindu”—denoting the largest of the four communities
to be governed by these laws—was used in the titles of these Acts; this certainly had no
reflection on the independent religious status of the other three communities. Side by side
with their provisions commonly applicable to the four communities, these Acts in fact
protected quite a few of their different customs and usages.
Under the Hindu Marriage Act 1955, both parties to a marriage must be Hindu, Buddhist,
Jain, or Sikh, and conversion by either spouse from any of these to any other religion after
marriage would be a ground for divorce available to the spouse who retains his or her faith 88.
Conversion to any religion other than Hinduism, Buddhism, Jainism, or Sikhism is seen as a
civil offense also under each of the other three Hindu-law enactments of 1956, resulting in
loss of succession, guardianship, maintenance, and adoption rights. Thus, parents ceasing to
be Hindu, Buddhist, Jain, or Sikh lose guardianship of their minor children 89, while convert
wives and children are deprived of their right to be provided maintenance by their husbands
and parents, respectively90. While only a Hindu, Buddhist, Jain, or Sikh child can be adopted;
abandoned children and those of unknown parentage are presumed to belong to any one of
these religions so as to facilitate their adoption. If a Hindu converts to Christianity or Islam,
children born to him or her after his or her conversion cannot inherit from any of their Hindu
relatives unless they reconvert to Hinduism before the opening of the succession91.

Personal law of the Muslims- The Muslim Personal Law (Shariat) Application Act of 1937
85
PARSI MARRIAGE AND DIVORCE ACT, NO. 3 OF 1936
86
INDIAN SUCCESSION (AMENDMENT) ACT, NO. 26 OF 2002
87
CENTRAL ACTS, NO. 25 OF 1955; CENTRAL ACTS, NOS. 30, 32, 78 OF 1956
88
HINDU MARRIAGE ACT 1955, NO. 25 OF 1955, S-5, 13(1)(ii).
89
HINDU MINORITY AND GUARDIANSHIP ACT, NO. 32 OF 1956, SECTION 6(c).
90
HINDU ADOPTION AND MAINTENANCE ACT, NO. 78 OF 1956, SECTION 18(3), 24
91
HINDU SUCCESSION ACT, NO. 30 OF 1956, SECTION 26.
directs the civil courts to apply Muslim religious law to Muslims in all matters relating to
family relations, property, and succession92. The Dissolution of Muslim Marriages Act of
1939 specifies the grounds on which a woman married under Muslim law can seek a judicial
divorce93, including obstruction by a husband of his wife’s religious practices 94. Contrary to
the provision of the Hindu marriage law of 1955, which recognizes post-marriage conversion
by a spouse to an alien religion as a ground for divorce, this Act declares that the renunciation
of Islam by a woman married under Muslim law would not ipso facto dissolve her marriage95.
The Muslim Women (Protection of Rights on Divorce) Act of 1986 has codified the
traditional Islamic law on divorced women’s rights to dower, maintenance, and marital
properties to be speedily implemented by the lower criminal courts96.

The idea of legal uniformity has been espoused since the Constituent Assembly codified in
Article 4497 of the Constitution which directs the State to endeavor to secure a uniform civil
code for all citizens and even the Supreme Court in the Sarla Mudgal 98 case has supported this
view. Indian Muslims view the constitutional commitment to a Uniform Civil Code as
stipulated in Article 44 as an attempt to dilute the cultural identity of the Muslim community.

The Courts in India have issued various rulings about Muslim family law, in particular in
cases in which litigants claimed that some elements of Islamic law contradicted the
constitution99. However, very few Muslims, especially Muslim women would approach a civil
court over a family matter, so the opportunities become involved have been limited.

On the few occasions where the courts have issued judgments, they sparked the protest. A
1985 ruling in Mohammad Ahmed Khan v. Shah Others100, by the Supreme Court of India
92
CENTRAL ACT, NO. 26 OF 1937.
93
CENTRAL ACT, NO. 8 OF 1939.
94
Ibid. section 2(viii).
95
Ibid. Section 4.
96
REPRESENTATION OF THE PEOPLE ACT, NO. 25 OF 1951
97
CONSTITUTION OF INDIA,1950
98
SARLA MUDGAL V. UNION OF INDIA, AIR 1995 SC 1537.
99
Don Morrison, 'Don't Drink and Divorce', 60 Legal Affairs (2004).
100
MOHAMMAD AHMED KHAN V. SHAH BANO BEGUM AND OTHERS, AIR 1995 SC 1537.
Background of the Shah Bano case: Shah Bano was a daughter of a head constable and was married at the age
of 16 to Mohammed Khan. After 43 years of married life, Khan threw Shah Bano out of his house and took a
sec ond wife. For two years he paid her Rs 200 per month as maintenance, then stopped. In 1978, Shah Bano
sought relief in a local court under the Prevention of Vagrancy and Destitution Law and asked for the max imum
monthly allowance of Rs 500. The case was still outstanding when Khan divorced Shah Bano, after depositing
with the court Rs 3,000 that he owed her as her mehr. He then claimed that he was no longer obliged to pay her
anything. The magistrate, however, ruled that Khan should pay Shah Bano Rs 25 per month. On appeal by Shah
Bano, that amount was raised by the Madhya Pradesh High Court to Rs 179 per month. Mohammed Khan then
appealed to the Supreme Court against the judgment of the Madhya Pradesh High Court. He claimed that as a
created uproar among case the Court held that Shah Bano had a right to financial support
from who divorced her after 43 years of marriage and threw her from home a second wife.
The court relied on Section 125 of the Criminal Procedure Code (Cr.PC), which requires
husbands to pay 'maintenance' to their wives, including their ex-wives until the wives remarry
or die. By citing India's criminal code, which applies to all Indians, the Shah Bano decision
superseded Muslim law and sparked widespread protests.

A storm broke loose when the judgment was announced. Except for a small number of
committed individuals and organizations, all major Muslim parties, organizations, and leaders
came together in intense fury to protest the ruling, which they viewed as a violation of their
sacrosanct Shari'ah. There were strikes and demonstrations in the streets of all the major
cities and many turned violent. Protest meetings were commonplace and several Muslim MPs
demanded that Parliament amend the law in order to render null and void the decision of the
Supreme Court. Eventually, in May 1986, the government introduced and passed the Muslim
Women (Protection of Rights on Divorce) Bill, which effectively prevented Muslim women
from being able to obtain relief under Section 125 of Cr.PC 101. The Indian lawmakers did so
in the name of protecting the group rights of a religious minority, the Muslims102.

4.10.4 THE PROBLEM WITH RELIGIOUS PERSONAL LAWS

Preservation of the religious personal laws into the post-colonial era may have been
necessary under the circumstances at independence, but their continuation into the twenty-
first century has caused injury to India’s religious minorities. Failure to implement a uniform
civil code has reinforced differences between Hindus and Muslims. “Instead of moving
toward a secular, equality-based legal system, the recognition of personal laws under the
guise of protecting minorities from a dominant majority culture helped institutionalize
traditional practices that disadvantage religious minority communities in Indian” 103. This has
been rise to some problems, the three main problems that have resulted from maintaining
religious personal law systems in India. First, the laws have perpetuated a myth of state

Muslim he was governed solely by his religious law, the Shari'ah, under which he was required to pay Shah
Bano her maintenance during the period designated as 'idda ' (3 months), and that he had already done. It was in
consideration of this appeal that appeared before the Supreme Court of India.
101
C. M. NAIRN, 'MINORITY RIGHTS OR HUMAN RIGHTS?, SOUTH ASIAN BULLETIN (1992).
102
N. SUBRAMANIAN, 'LEGAL PLURALSIM, LEGAL CHANGE AND GENDER INEQUALITY:
CHANGES IN MUSLIM FAMILY LAW IN INDIA', www.profs-polisci.mcgill.ca\subramanian\papers>,
ACCESSED on 25th MARCH 2020.
103
JAMES CHIRIYANKANDATH, ‘CREATING A SECULAR STATE IN A RELIGIOUS COUNTRY
(2002).
neutrality, while in reality; the government inevitably takes sides in religion when it transfers
political power to religious leaders. Second, religious personal laws have had the effect of
“freezing” minority religious cultures, thereby silencing internal dissent. Lastly, the existence
of the laws has inflated the importance to Muslims of maintaining a group identity that is
distinct from the state, thus intensifying intergroup distrust and hostility.

4.10.5 NEED FOR UNIFORM CIVIL CODE

The hostile divide along religious and political lines in India regarding the adoption of a
uniform civil code.
Attempting to modify religious personal laws through the court systems of India is neither
ideal nor practical. As noted, relying on the courts for change requires that disadvantaged
group members come forward, overcoming strong community pressure to remain silent, and
then withstand years of litigation that will overburden the courts and further threaten the
identities of minority groups104. Moreover, even if the Constitution is made directly
applicable to the religious personal laws, the piecemeal fashion of evaluating such diverse
laws will be a never-ending process of litigation that cannot efficiently or effectively bring
about justice for women. Chief Justice Chandrachud himself admitted the Court’s limitations:
“Inevitably, the role of the reformer has to be assumed by the courts because, it is beyond the
endurance of sensitive minds to allow injustice to be suffered when it is so palpable. But
piecemeal attempts of courts to bridge the gap between personal laws cannot take the place
of a common Civil Code. Justice to all is a far more satisfactory way of dispensing justice
than justice from case to case”105.

104
MOHAMMAD AHMED KHAN V. SHAH BANO BEGUM AND OTHERS, AIR 1995 SC 1537
105
Ibid.