Legal Intern, Constitutional Rights Initiative
Prime Minister Jawaharlal Nehru had famously quoted on the eve of India’s independence, “At the stroke of the midnight hour, when the world sleeps, India will awake to life and freedom.” The people of India, however, were forced to undergo sleepless nights as the horrors of religious violence and the partition of the subcontinent engulfed any sort of triumph for many across the country newly free from the shackles of colonial rule.
The partition of India to the now millennial population seems like a distant event, which can be only heard through oral accounts of their grandparents, or seen through theatre performances and Netflix shows based on the accounts of survivors. However, too many, the threat of religious violence looms large even today.
During the formation of the Indian constitution, the framers had given much importance to how the country will protect the rights of the many religious communities that reside in it. Even though the followers of Hinduism are the majority in India, the country is home to Muslims, Christians, Buddhists, Parsis, Jews, and many more religious communities. This is why the secular approach was the most suitable one for India with a strong emphasis on religious and minority rights. Article 25 of the Indian constitution deals with the right to freedom of religion in India. According to this article, all persons are equally entitled to freedom of conscience and have a right to freely profess, practice, and propagate religion.
However, despite such safeguards provided by the law, discrimination against religious minorities grows in number. The burning to death of Christian missionary Graham Stuart Staines in 1999 and the 2002 series of religious violence between Hindus and Muslims that erupted in the state of Gujarat had not only shocked India but people around the world.
India in the current world scenario is aspiring to be a global superpower with a 5 trillion-dollar economy. However, within the country, however, archaic and often discriminatory customs and rules such as love Jihad and its entry into the country’s legal system through Prohibition of Unlawful Religious Conversion Ordinance along with the ever-present cases of religious violence such as mob lynching, portray a grim reality of the long way India has to come to enshrine a sense of inclusivity among the various religious communities that reside within its borders.
Nevertheless, any meaningful discussion on such an important topic is incomplete without a thorough consideration of the more difficult questions that it beseeches and such questions include: What restrictions are there in performing religious freedom? How the government of India handles cases where the religious freedom of one party conflicts with another?
The debate related to the Right to Freedom of Religion (Articles 25-28) and Right to Equality (Article 14) has been a long-standing one and one which had evoked an array of emotions during the framing of our Constitution. When we look into the case of “Indian Young Lawyers Association vs. The State of Kerala (2018)” it is clearly visible that there is a face-off between two important fundamental rights where there seems to be a fight for supremacy. Even though the ruling was praiseworthy but the conflict still remains on the grounds of equal opportunity, gender equality, and much more. Hence, the judgmenttries to make it clear that freedom of religion is contingent on the right to equality and in balancing the ‘right to freedom of religion’ and ‘right to equality’ the organs of the State viz. the Legislature and the Judiciary have taken into consideration the “necessities” of the people especially based on gender equality.
It is important in the current scenario that our people accept thefact thatwe live in a secular state where everyone has certain fundamental rights which cannot be violated, and it should be respected by each and every member of the society because that makes us “unity in diversity”. In “Navtej Singh Johar vs. Union of India (2018)”, the Supreme Court has proved that the constitution is equal for everyone, regardless of whether they are part of the minority or majoritygroup. Each section of society should be treated equally without any bias based on caste, gender, sex, etc.
In the current times,thegovernment and its right-wing policies havebeen often accused by scholars and activists of making legislations that undermine the secular nature of the country.Onesuch controversial legislation is on the topic of “Love Jihad” which has increased religious tensions between Hindus and Muslims. There are a lot of discourse over these topics amongst both the supporters and opponents of such policies.A key argument behind the support of suchcontroversial policies is to protect Hindu women from forceful marriages and domineering conversion of Hindu women to Islam. This sudden need of the state to protect the rights of women is often further asserted by the case of“ShayraBano vs UOI and Ors. (2017)” where the Supreme Court clearly declared the practice of triple talaq as unconstitutional because it violates the dignity and integrity of the women and at the same time discriminate based on gender. However, the arguments for the validation of Love Jihad should not be viewed in the same light as that of the judgment of ShayaraBano case which stopped a discriminatory practice. Creating barriers between the establishing of communion between the people of a different religion is the most basic infringement of a secular ideology. Such infringement cannot hide behind the veil of women empowerment and enshrinement of equality. Lastly, it can be argued that the idea of Love Jihad not only demonizes the Muslims in India but also is in a way the state’s unwanted encroachment on a women’s freedom to choose her lifelong partner. Furthermore, as a result of portraying the Muslims in such negative lights through Love Jihad, many hate crimes against them have also increased throughout the country.
If westudy the landmark judgments such as “Navtej Singh Johar vs. Union of India (2018)”, “ShayraBano vs UOI and Ors. (2017) we can get an understanding of the factthat no discriminatory laws can be practiced in a country like India. The strength and foresight of our constitution are one of the reasons as to why its ideals always continue to prevail even after all the upheavals that it has been subjected to. It is very important to understand that the rights of the people should always be protected regardless of them being from the community of majority or a minority community. However, recent political trends have often been taking a controversial stance to such principles of equality and secularism that form the basis of Indian legislation. Concepts of love Jihad and many hate crimes that have spurred about because of this have been deeply undermining the secular nature of the country. There is hence an immense need for change in the Indian legislation, a change that helps re-establish the essence of unity in diversity amongst the 1.3 billion people of various caste, creed, religion, and color that live within the country. This achievement will be in line with the very essence of Indian society.