Secularism’s Others: The Legal Regulation of Religion and Hierarchy of Citizenship criminal act.

al act. The petitioner further argued that the acquisition of the land including
By: Ratna Kapur the disputed area interfered with the right to worship of Muslims and was thus a
violation of their right to freedom of religion. The majority of the judges rejected
Secularism is a complex and extra ordinary concept that means different things the argument that the acquisition violated the constitutional principle of secularism.
in different constitutional jurisdictions. In constitutional discourse, secularism has The Hindu right has appropriated the dominant understanding of Indian secularism
been interpreted to accommodate a pluralist and tolerance approach towards to promote its vision of Hindutva and its agenda of stablishing a Hindu state. In its
different religions as well as to adhere to a stricter formal model of separation hands, the concept of equal respect for all religions is a method for attacking the
between the state and religion that implicitly endorses a majoritarian approach. rights of religious minorities and ultimately erasing their identities.
There are some of the contradictions in complexities present in the notion of Implications for citizenship
secularism, by comparing the works that has done in the two legal context: The Hindu Right has continuously regarded citizenship as an exclusively cultural
postcolonial India and the French republic. The analysis engages with two and religious enterprise, prioritizing religious identity in its definitions of citizenship
important questions: first, what does this concept mean in terms of constitutional in the hope of establishing Hindu state in India were religious minorities, especially
discourse more generally and how does it actually operate in the West as well as Muslims and Christians, would have to conform.
well as in the non- West? Second, what are the implications of the model of The” Migrant” subject of Citizenship
secularism adopted in post- colonial India and the French republic on the The issue of religious identity has become particularly significant in the debate
understanding of citizenship? over the migration of thousands of Bangladeshis into Assam since 1971. The story
Secularism in Indian Costitutional Law of migration into the north- east is a complex one, the Hindu Right has polarized the
In India, state neutrality is replaced with tolerance. Central to the ideology of issue by viewing it almost exclusively through the lens of religion- as a tension
the Hindu Right is the installation of all religion and culture as primary attributes between the insider and the Muslim insider.
of nationalism and citizenship identity. French Republic and Laicite/ Its Implication for Citizenship
Indian secularism has been largely premised on a substantive meaning of Laicite proclaims a rigid separation between state and religion, as it is based on
equality: not only are the various religious communities to be treated as equals but the French policy of cultural assimilation, it is not evident that it has managed to
the state provides a special protections extended to religious minorities as a means contain religion to the private sphere. And relegates linguistic, cultural, ethnic and
of addressing their relative disadvantage in relation to majority religion. religious difference to the private arena. It agreed with the Italian Administrative
The Legal Narrative Council’s decision that the crucifix was in fact a cultural symbol, representative of
The courts have weighted in the several points to give increasing validity to the the” Italian civilization” and its value system: liberty, equality, human dignity and
Hindu Rights interpretation of the various components of Indian secularism. religious toleration and accordingly also of the secular nature of the state.
Initially, the Supreme Courts position on secularism differed substantially from that The criteria for full citizenship include evidence of assimilation into the explicit
promoted by the Hindu Right, and demonstrated a commitment to pluralism, and cultural norms of majority embedded in the doctrine of Laicite.
to holding back the of intolerance and Hindu majoritarianism in the name of
secularism. In Ismael Faruqui, the court held a challenge to the constitutional THE MODERN ARCHITECTURE OF RELIGIOUS FREEDOM AS A FUNDAMENTAL
validity of the central government’s acquisition of a disputed site in Ayodhya, a RIGHT.
town of Northern part of India. Mobs of the Hindu Right had destroyed 16th century Political Secularism and State Neutrality Toward Religion
mosque, the babri Masjid, on the grounds that it was the site of which the central The separation of state and religion is a foundation to liberal democracy, the state
Hindu Deity, lord Ram was born. The central government acquired the land where understood its Political Authority towards the Religion, the formal relation between
the mosque once stood as well as surrounding land with the purpose of state and religion must be secular neutral.
establishing two trusts for the construction of the Ram Temple, a mosque, a The Constitutional arrangement in the modern society today is scribing different
library, and a museum as well as providing amenities for the pilgrims. The forms of relation between the state and the religions around the world. In the result
petitioner, a Muslim , claimed that the act was anti secular and slanted in favour of of this outcome the neutrality of the state understood the terms of the religious
the Hindu community since it sought to simply accept the demolition as a fait freedom itself. The neutrality of the Political order is achieved by the constitutional
accompli, instead of rebuilding the mosque that had been destroyed as a result of bond towards the right of the religious activity, this applies to some European
states, which come from their traditional and historical Church and State Forum Internum as Rational Religion, meaning its regarded as absolute, and
entanglement. conventionally in the form of the unstable con-imbrication between autonomy and
The disciplinary structure and secular practices of the public sphere combine to belief or conscience. Encompasses religion in its rational form, which is internal to
produce the freely believing subject and concomitant. The history behind the the rational subject or depends on a particular genealogy of rationality, the integral
emergence of this conception of Political secularism originated in civil right to religious freedom is a phenomenon that cuts across the Western/non-
enlightenment of the mid-seventeenth century, the public sphere came to be Western divide. It also shown necessarily to involve the courts in making
understood in the terms of social peace and religious liberty in the jurisdictional substantive judgement on what falls within the protected category.
terms. The goal of the civil enlightenment was not to protect religious freedom as Forum Externum and Public Order, meaning it encompasses the manifestation of
natural right against the state, the goal was to end the religious civil war by religious belief and practice and is held to be subject to state limitation where
establishing a “neutral juristic mode” of governance over a multi-confessional necessary to protect public order, morals, or the rights of others. It also understood
society. The means of maintaining a legally enforced toleration between rival to be subject to the authority of the state in two respects first, in terms of state
religious communities. recognition of religious practices and rites second, in terms of state-imposed
The conception of religion emphasizes the priority of beliefs as a state of mind limitations on and regulation of such practices on grounds of public order.
rather than as constituting activity around the world. The boundaries between the The Double Structure of the Right to Religious Freedom, meaning the freedom
secular and religious has been constantly redrawn in the history of Christianity protected by the right in terms of secular neutrality, the claims of individuals and
when the Roman Church lost its authority to make distinctions. Ideas in Natural communities to religious liberty are in fact limited through a continuing praxis of
Religion is existing in every aspect in the society and individual in the deepest sense legal recognition and regulation. This also prioritizes the values and sensibilities of
in the inner beliefs of individual. The modern conception of the right to religious the majority religion through recourse to the secular concepts of public order and
freedom as essentially grounded in individual belief it has generated three the rights of others with corresponding discriminatory implications for minority
recurring paradoxes or puzzles for contemporary rights jurisprudence concerning religious traditions.
first the subject, second the object and third the justification or source of the right
itself.
The Individual as Subject of the Right, a person autonomously chooses as a classic CONSTITUTIONAL MODELS OF LAW AND RELIGION
liberal right or freely believing as a natural right of a that person. It also involves a RELATIONS IN WESTERN EUROPE by Silvio Ferrari
single form as universal human right to freedom of thought, conscience, and 1. Abstract
religion. This chapter starts from an analysis of the present situations, trying to identify the
Belief or Conscience as Object of the Right, belief is an object of choice by an principles that are common to the different legal and church state systems in
autonomous individual, freedom of “Thought, Conscience, Belief is an object of Western Europe. It is categorized on three parts; they are identified differently as
rights, these terms are also related in some self-evident way. separation systems, agreeing systems, and church systems. Then it moves to a
The Source of Justification of the Right, itself to be the proper source of normative description of three models of state-religion relations (France, Italy and England)
which simultaneously chooses autonomously as a matter of moral right and and concludes with a short assessment of their capacity to provide a stable legal
believes freely as a matter of theological conviction, object of choice knowing structure for these relations.
subject in the form of freely chosen conscience or belief. 2. Subject
Universal Right and Constitutional Adjudication The national legal systems had adjust to the socioreligious transformations of
The universality of the right that is understood in terms of construing and securing Europe and to adapt their content to the new situation. This begins from an analysis
neutrality of the public sphere towards religion, as a matter of legal praxis, this of the present situation and then moves to a description of three different models
requires the state or supranational judicial bodies to constantly recognize or limit of state-religion relations, those of England, France, and Italy. These three models
the claims regarding the manifestation of religious are most well-developed in Western Europe.
beliefs. Constitutional and international jurisprudence both achieved doctrinally 3. A European Model of Relations between Stats and Religions
through the bifurcated structure of the right between putative “forum internum The national systems of relations between states and religions give the impression
and forum extremum.” of being extremely diverse. The first principle is the religious freedom and equality
of individuals. It presents itself as a key principle of modernity: every human being, this approach, the contract of accueil at integration states that each immigrant has
simply by virtue of being human, has the right to make, in absolute freedom, to sign when entering France lists laicite, together with democracy and equality,
choices in keeping with conscience, without being subjected to any discrimination among the non negotiable values on which the French republic is founded.
in relation to those choices. 8. “Unity from Diversity” in England
The second, the principle that the state has no competence in religious questions is English pattern is inspired by the French and Italian models. The conviction that this
more complex, but its constituent elements are clear. The convergence of Christian type of homogeneity is an outdated legacy of the past. In a multicultural and
thought and liberal thought on this point; different reasons, both affirm that it is not multireligious society, social cohesion can be founded only on different and even
task of the state to legislate on matters of dogmas, rites, and religious doctrines. competing sets of values, accepting as part of the bargain some degree of
The third is that the principle distinguishes relations between states and religions is dissociation between the national stat and the different cultural, ethnic, and
their cooperation. The readiness of the state to collaborate with religious groups is religious communities that live within it and that are conceived by their members as
greater where there is harmony between the values that regulate religious society the place of identity.
and those that lie at the basis of civil society.
4. A Model in Process of Transformation
The system of relationships between states and religions described in the previous Religious Freedom in Latin American Constitutions: From Freedom from the
section is now in the process of being subjected to growing tensions which threaten Catholic Church to Freedom from “Gender Ideology”
to unbalance its equilibrium. This transformation brought a sense of disorientation By: Julieta Lemaitre Ripoll
and uncertainty to a large part of the European population, followed by a marked This chapter reviews Latin American constitutional texts in the historical
demand for identity, by a quest for symbols by which people can recognize context, tracing the institutional changes in the Catholic establishment since the
themselves, and by a need for traditions that are shared and that will lead to early nineteenth century and the different modes of contemporary
sharing. This context religion has appeared to many people to be an important disestablishment in Latin America. It examines how constitutional texts, similar in
reservoir of values that can help them to respond to this demand. affirming religious freedom and separation of church and state, in practice have
5. The Juridical Scenario different meanings, depending on the paths of disestablishment in each national
The distance between the traditional and nontraditional religions at the level of history and on the results of the successive struggles over its meaning.
symbolic recognition and legal status tends to increase. It has no direct Confessional Constitutions in the Nineteenth Century
consequences on the religious freedom and equality of individuals. However, the In Latin American countries, the powerful presence of the church in
autonomy of the religious confessions and above all cooperation between them everyday life has significant influence, with “civilization” being used as a synonym
could become increasingly differentiated according to the social, cultural, and for Christianity. Laws were subsidiary to religious virtue and virtue defined by the
political roots that each religious group will be able to claim within a country. Catholic Church. The church controlled schools and universities, censored books
6. Catholicism as a “Civil Religion” in Italy and periodicals, and controlled hospitals, charities, and missions to indigenous
The central core of the Italian experiment is the attempt to govern the ethical, territories. In the Spanish colonies, the church was so central to the colonial regime
cultural, and religious plurality of the country the values of Catholicism, raised to that it provided the only legal and moral justification for conquest and colonization:
the rank of civil religion. More precisely, Catholicism supplies the cultural and converting indigenous peoples to Catholicism. The first Latin American constitutions
ethical principles on which citizenship is based; provided they are prepared to were confessional and declared Catholicism as the state religion, flourishing with
accept this condition, non-catholics can fully enjoy religious freedom rights support from the clergy.
(although not religious equality rights at the collective level). The confessional model not only made Catholicism the religion of the state
7. Laicite as the Civil Religion in France but also limited the rights of other faiths, with the assertion that “error has no
In France Laicite is conceived as the general principle that can include and reconcile rights.” Vatican’s staunch opposition to independence was rooted in its growing
the particular values of the religious, racial, ethnic, cultural, and political suspicion toward liberalism. This dogma was described as the "Romanization" of the
communities living in the country. Laicite is seen as a cluster of universal and Catholic Church, which had previously been highly Spanish and directly contributed
abstract values-among them, liberty, equality, and tolerance-that every citizen must to its formation in the new republics. The church’s response was to construct
embrace independently from his or her origins, preferences, and belonging. With
liberalism as an ideological rival to its doctrine and to reinforce the ongoing process privileges to the Catholic Church. The Catholic church receives funding from the
of “Romanization” of national churches. state through numerous generous tax exemptions and subsidies for its health and
Liberal Roads to Disestablishment and Religious Freedom education services and disestablishment has allowed the Catholic Church to flex its
Liberal proposals for disestablishment varied in each country in the region, political muscle and find political allies for the causes it defends, especially
depending on the different independence processes. The initial independence restrictions on sexual and reproductive rights.
forces soon split into roughly liberal and conservative forces in most countries. Conclusion
Conservatives opposed Republican versions of liberalism and Anglo-American In 2018, Argentina almost made abortion legal, with strong opposition
influence, including religious freedom. They tended to promote corporative forms from the Catholic Church. Pope Francis came out criticizing the law and countered
of representation, as in colonial government, and Hispanic and Catholic national with the feminist social movement of the Protestants. The pro-abortion movement
identity. has turned to a “Church and state are separate” campaign calling for stricter
Eventually, the political alliance between the Catholic hierarchy and disestablishment in the country. The church’s activism against sexual and
conservative parties bound the fate of establishment and religious freedom to the reproductive rights has also led to a revival of disestablishment as a liberal-
triumph or defeat of these parties. Liberals advanced two distinct modes of progressive cause in Latin America. Feminist and LGBTI activists have called for
disestablishment in the new republics: the radical anticlericalism of the French disestablishment as state neutrality toward religion, appealing sometimes to
Revolution and a more moderate church-state separation known as laicidad. historic hostility toward the Catholic Church. Any attempt to understand the
Laicidad reforms remain religion as an area of significant importance for people’s meaning of religious freedom in Latin America and its political meanings today
private lives, and many liberals were devout Catholics. Anticlericalism, on the other requires understanding the complex history of disestablishment and how this
hand, embraced a vigorous rejection of religion in general, and the Catholic Church arrangement symbolizes today’s conservative views on sexuality and reproduction.
in particular, as an enemy of Enlightenment.
Catholic Transformations of Establishment and Religious Freedom Three Models of Church-State Relations in Contemporary Russia
In the mid-twentieth century, the part of the clergy and the Catholic Three Models Of Religion-State Relations: State-Church; Selective Cooperation;
faithful advocated this mode of disestablishment. An independent church, they Disestablishment And Its Parallel Existence In Russia
reasoned, could provide protection – even literal sanctuary – to citizens threatened There are various conceptions of how religions and secular politics interact,
by the state. The first definition is religious freedom as liberty of conscience, and these ideas can be visualized and thought of as a continuum.
whereby individuals have the right to follow their conscience and cannot be The State Church Model, in which the state acknowledges one religion as
coerced to act against it. The second is that religious freedom protects the social the state religion, is at one extreme of the continuum. While the Disestablishment
expression of conscience in collective acts of religion. The third aspect defines Model, which holds that the state is neutral toward all religions on its territory and
religious freedom as protecting religion generally and creating the duty for accords them all equal status, is at the other extreme of the continuum. There are
governments to “show it favor.” Thus, the Catholic definition of religious freedom other varieties of Selective Cooperation Models that fall between these two
justifies its acceptance of disestablishment for a solid and free church that can extremes—the state church model and total disestablishment.
exercise moral stewardship. The State Church Model in which a state recognizes one faith as a state
Religious Freedom under a Regime of Friendly Cooperation religion. The state's guiding constitutional principles are jointly defined by the
By the late twentieth century, all countries in Latin America except Costa established church. A state church could, for instance, strive to defend its own
Rica had successfully disestablished Catholicism but abandoned most liberal ideals interests in relation to other religious groups on the territory by having a voice in
of laicidad and anticlericalism and adopted a disestablishment model of friendly creating laws as a favored partner of the state.
cooperation instead. In some countries, disestablishment might coexist with The Russian Orthodox Church serves as the sole partner of the state and
Catholic control of religious education in public schools, the type of healthcare the representative of the vast majority of Russians in the unofficial state-church
services available, and the rules governing family life, sexuality and reproduction. In model.. The Russian Orthodox Church enjoys a privileged position among the
the strongest version of friendly cooperation in formerly officially Catholic nations, religious organizations in Russia. The foundation of the Russian Orthodox symphony
the state has no official religion, but recognizes that Catholicism is the majority of the twenty-first century is not an organized state church, but rather a network of
religion, and, without causing harm to other religious denominations, grants certain
informal church-state exchanges and close relationships between the church movements' hostility toward the state. The policies of withdrawal and cooperation
leadership and members of the political elite and the public administration. are incompatible, and those who support a hostile model of Christianity in the
The Selective Cooperation Model wherein a state will typically secular Russian state typically reject the public close links between the church
accept more than one religion as a partner in collaboration and will treat all of these leadership and the state. The church's leadership may, on occasion, combine
recognized religions as equal political actors with similar rights and obligations. In adversarial tactics with cooperative model.
such a model, one religious group will usually pursue only such goals in cooperation In conclusion, the key inference to be made from this complicated picture
with the state that reflect also to the interests of other state- recognized religions. is the Russian religious world's propagandistic clarity. The assertion that the Russian
In a form of selective cooperation, religious communities work together and with Orthodox Church uses unconventional methods of cooperation when dealing with
the government to achieve specific objectives on matters of mutual concern. the Russian government. It's crucial to restrict the claim to the church hierarchy.
The Russian Orthodox Church as One Public Religion Among Others and The current patriarchate deftly implements many, sometimes opposing patterns of
Deserving of Recognition of Equal Rights under the Official Selective Cooperation church-state relations. Some issues that require more research include the
Model in Russia. The Russian Orthodox Church represents only one, albeit the examination of the Russian Orthodox Church as a diverse, multivocal, and even
largest, religion group in Russia, in addition to other recognized faiths, according to conflicting public religion. Kristina Stoeckle assessed that research is needed on
the official legal status of religious groups in the Russian Federation. As a result, the some of the issues raised by this examination of the Russian Orthodox Church as a
Russian Orthodox Church, like all other state-recognized religious groups, has some diverse, multivocal, and even conflicting public religion. The sphere of religion-state
rights and obligations toward the government, and the government, in accordance relations in Russia, however, is never stable and full of paradoxes, and it never
with the paradigm of selective collaboration, also has some obligations toward the allows any actor to feel secure or in control—not even the Russian Orthodox
religious organizations. Church.
In order to obtain a religious studies curriculum into Russian public
schools, the Russian Orthodox Church collaborated with organizations representing Constitutions and Religion in Africa
Islam, Judaism, and Buddhism. However, in a system of selected collaboration, By: Charles Manga Fombad
faiths also serve to remind the government of its responsibility to respect the The global resurgence of religion in what is referred to as the “post-
citizens’ religious commitments in addition to providing access to public services. secular” era is particularly evident in Africa, a continent described as one of “the
The Disestablishment Model which maintains that the state is neutral most religious places in the world.” Religious freedom was one of the essential
towards all religions on its territory and grants equal status to all other faiths. In a rights that preoccupied constitutional designers when they revised African
Disestablishment Model, there are no legally recognized channels for cooperation, constitutions during the “third wave of democratization” in the 1990s.
and all religious groups are equally separated from the state, regardless of size. The From a comparative perspective, this chapter examines the manner and
only ways for religions to influence politics are through lobbying of legislators and extent to which religious rights are now recognized, protected, and entrenched in
electorate mobilization through civic engagement. Religious institutions frequently modern African constitutions. It has concluding remarks indicating that, as with
assume significant roles in civil society and are extremely visible in the public most fundamental rights formally deep-rooted in modern African constitutions, the
domain. full enjoyment of religious rights faces numerous practical challenges.
The Russian Orthodox Church acting as the State's Opponent in the HISTORICAL BACKGROUND AND INFLUENCES ON THE CONSTITUTIONALIZATION
Unofficial Disestablishment Model. Perhaps the most perplexing and unexpected OF RELIGIOUS RIGHTS
tactic used by the Russian Orthodox Church in its interactions with the state and In 1990, Christianity and Islam were relatively minor religions on the
public policy is the last one, which is to portray. Orthodox Christians as soldiers continent. Most Africans adhere to one dominant religion, with several practicing
facing an aggressive state. Religious grassroots movements that are supported by traditional African religious doctrines like witchcraft and ancestor sacrifices. The
the Church hierarchy more often than not follow this tactic than the church itself. largest Christian denomination in Africa adopted enculturation, incorporating
These Christian organizations behave as though they were engaged in a "culture traditional African rites. Lacité, a French secularism idea, maintains neutrality
war" with the Russian government bureaucracy and the bulk of the population, between the state and religious views. Anglophone Africa's secularism focuses on
which still has a strong Soviet influence and is atheist in its outlook. Resistance to protecting religious freedom, but no separation of church and state exists.
the church hierarchy is frequently present in Russian Orthodox grassroots
Adherence to African traditional beliefs has declined, with the African state restrictions imposed on such vague grounds as “national security” or “public
marginalizing or eradicating African religions under the guise of secularism. policy.” Furthermore, certain limitations based on “public morality” and “public
THE SCOPE OF RECOGNITION AND PROTECTION OF RELIGIOUS RIGHTS health” date back to the colonial era and primarily target traditional African
The nature and scope of the recognition and protection of religious rights practices the colonialists found problematic. Nevertheless, religious diversity
in African constitutions are the Universal Declaration of Human Rights (UDHR), the remains a significant source of potential conflict in Africa’s multi-religious states.A
International Covenant on Civil and Political Rights (ICCPR), the Declaration of the In conclusion, the era of democratization and constitutionalism in Africa in the
Elimination of Intolerance and Discrimination Based on Religion or Belief; the 1990s led to the progressive constitutional entrenchment of religious freedom, in
African Charter on Human and Peoples’ Rights; and the African Charter on line with the growing human rights culture of religious tolerance. Most of the
Democracy, Elections, and Governance. The general impact of these instruments constitutions explicitly or implicitly provide for a secular state in which there is a
on the constitutional protection of religious freedom depends on their effective separation of religion from the state. Others provide for a state religion. The latter is
domestication. In interpreting and applying their provisions, the courts should refer the approach adopted by the northern African Arab-leaning states and some other
to international law, which African countries use in the international human rights states with a Muslim majority. Yet despite their differences in practice, most
instruments. constitutions provide for religious freedom and respect for the rights of religious
The usual means of protecting religious freedom is to entrench a provision minorities. In secular and non-secular states and those with Christian or Muslim
prohibiting discriminatory practices that favor or disadvantage individuals on majorities, constitutions have allowed too much scope for arbitrary interference
several grounds, including religion. However, most African constitutions contain with religious freedom.
provisions that guarantee equality of treatment and equal protection under the law
for every individual, regardless of their religious belief. In the absence of
constitutional provisions explicitly or implicitly establishing the right to equality of
treatment of all citizens or non-discrimination on the grounds of religious belief, it
becomes difficult to see how the right to freedom of religion could become a
practical reality in these countries. This is particularly relevant given various
legitimate and illegitimate restrictions on exercising religious freedom.
LIMITATIONS AND RESTRICTIONS ON FREEDOM OF RELIGION
Most fundamental human rights and religious freedom are subject to limitations
and restrictions. A majority of African constitutions contain vaguely worded
limitation provisions. Such constitutions allow for laws restricting religious freedom,
provided this is “reasonably required in the interest of defense, public safety, public
order, public morality or public health” or “for purposes of protecting the rights and
freedoms of other persons. Most African constitutions impose a confusion of
further restrictions on exercising religious freedoms. Although these limitations and
restrictions are designed to ensure they apply to all religious groups, many nations
have imposed additional restrictions that target African traditional religious
traditions.
PROSPECTS FOR THE FUTURE
The constitutional recognition and protection of religious freedoms today in Africa
reflect the growth of a new human rights-conscious culture following the wave of
democratization and constitutional reforms that swept through the continent in
1990.
They provide a wide variety of legal and non-legal restrictions to be invoked in
subjectively limit the exercise of the right. For example, it is difficult to challenge