Introduction
The establishment and free exercise clauses of the first Amendment are considered the cornerstones of American secularism. In the US, freedom of religion is primarily an equality right. This equality has two aspects— State neutrality in religious matters and tolerance of free exercise of religion. The establishment clause secures the former, whereas the latter is secured by the free exercise clause. Thomas Jefferson defined neutrality as “a wall of separation between Church & State”. Actions involving a collusion of the two— such as public funding of religious institutions or religious instruction in public schools— are prohibited. To decide whether a state action violates the establishment clause, courts have traditionally relied upon the three-pronged lemon test. It states that a statute should be neutral in text and purpose, have general applicability and not intrude substantially into religious practices. Recently, courts have taken into account other factors like long-standing traditions.
For Free Exercise Clause violations, the doctrine of accommodationism as developed by the Supreme Court in Sherbert v. Verner remains fundamental, at least for federal laws. As per the doctrine, there must be a compelling government interest to disturb the free exercise of religion. Additionally, the government must act in the least interfering manner. In Wisconsin v. Yoder, the state goal of compulsory education was weighed against the Amish belief that schooling should end after the 8th grade. Applying the Sherbert test, the court held that the government could explore less-interfering means to achieve its goal, like home schooling, while respecting the Amish religious beliefs.
In India, Article 25 of the Constitution confers a broad range of rights related to the freedom of religion, akin to the Free Exercise Clause. These include the freedom of conscience, and to profess, practice and propagate any religion. The prohibition on public funding (Article 27) and religious instruction in public schools (Article 28) along with the freedom of denominations to manage religious affairs, resemble the protections under the Establishment Clause. However, the Indian notion of religious freedom does not emphasize a strict “wall of separation.” Understanding this flexible neutrality reveals the true nature of Indian secularism.
Gaps in the Indian Wall of Separation
Firstly, by subjecting Article 25 to public order, morality, health and other provisions of Part III, the constitution makers have clarified that the right is not absolute. Notably, freedom of religion is the only fundamental right explicitly subordinated to other rights.
These vaguely worded restrictions have generated significant constitutional litigation. The criminalization of religious conversions by force, fraud or allurement (which includes any monetary gain) have been justified on the ground of public order. The interpretation of “morality” has evolved. Earlier cases equated it with societal or public morality, but in the landmark Sabarimala judgment, the Court held that it refers to constitutional morality, and that all religious practices inconsistent with the preambular notions of equality, liberty, fraternity and justice were unconstitutional.
In comparison, the free exercise and establishment clauses in the US have not been subjected to any proviso. Technically, the compelling interest test infringes upon the wall of separation, but its threshold is much higher than ambiguous notions of constitutional morality in India. Besides, the freedom of conscience, which Madison calls “the most sacred of all property”, is given an almost absolute protection in the US. In India, the status of conscience is not higher vis-à-vis other religious freedoms. However, Article 25(2)(a) does make a similar distinction, scrapping secular activities associated with religious practices of constitutional protection.
Secondly, social reform has been recognised as a valid restriction on freedom of religion in the Indian constitution—a feature which has no parallel in the American framework. As argued by Uday Mehta, this treatment is representative of the character of the two constitutions, which use different strategies to get societal legitimacy.[i] While the American state is supposed to guarantee public freedom by setting well-defined boundaries on the exercise of power, the Indian state relies on the effectiveness of constitutional means to resolve social means. This philosophy of social reform also manifests in other constitutional provisions, including Articles 17 and 44. Whether the state can reform a religion out of existence and whether the judiciary can initiate social reforms are questions still open to debate. Nevertheless, such an activist state policy is hardly compatible with a rigid doctrine of wall of separation. Social reforms necessarily involve making laws regarding the ‘establishment’ of religion.
Thirdly, in India, religion-specific legislation is not inherently unconstitutional. Article 25(2)(b), by excluding non-Hindu religious institutions of public character, and Articles 29 and 30, by giving special rights to minorities, harbour clear constitutional sanction for making religion-specific laws. Moreover, in Narasu Appa Mali vs State of Bombay, it was held that a reasonable social reform legislation need not uniformly apply to all religions. The social context as well as the potential impact of the reform must be taken into account. By empowering the state to make community-specific laws, the constitution transgresses the principle of neutrality in a more fundamental sense.
On the other hand, if an American statute does not meet the twin conditions of neutral language and general applicability, it is held to be violative of ‘freedom of religion’. General applicability means that even if a statute has a secular purpose, it must not disproportionately impact religious institutions. Thus, ordinances against animal sacrifice were struck down as they targeted specific religious communities. In India, the ordinances might have escaped scrutiny under Article 25 and be hailed as “social reform laws’’.
Fourthly, Indian judiciary has adopted an activist approach in adjudicating religious freedom cases. In the USA, if a plaintiff believes in good faith that a practice is part of their religion, the court accepts the assertion. In India, the court itself decides whether the claimed practice is fundamental to the religion, through the so-called essential practices doctrine. The practice is said to be essential only if the fundamental character of the religion would change in its absence. Ways to find out include interpretation of scriptures and prevalence of the said practice among the followers. Of late, the doctrine has received much criticism for its ambiguous standards, lack of constitutional authority and unwarranted curtailment of religious autonomy. In Fasi vs Superintendent of Police, the court declared that keeping beard is not an essential Islamic practice, based on the anecdotal evidence that many prominent members of the Muslim community did not keep a beard.
One of the most bizarre cases involving the doctrine was of the Ananda Margis, in which the court remarked, “It is for the Court to decide whether a part or practice is an essential part or practice… it will create problematic situations if the religion is allowed to circumvent the decision of Court by making alteration in its doctrine.” Such an absolutist outlook of the judiciary reeks of a Hobbesian model, wherein the final authority to make and enforce sociocultural norms rests with the state. As per Faizan Mustafa, it has the effect of making the judiciary a clergy in matters of religion. However, despite criticism, courts continue to apply the doctrine in adjudicating Article 25 cases.
Why do their approaches differ so much?
There are two major reasons for the differences in approach in the two countries.
1. Nature of religion: The scope of religion in India extends much beyond its original meaning. It penetrates into every aspect of life. Indian religions have emphasised the importance of righteous actions or karma, and prescribed the rules of good conduct. These rules were often shaped by the prevailing morality and hence included many practices that deeply compromised individual dignity. In such a milieu, a liberal constitution could not afford to be indifferent to religion. Therefore, the constitution makers sought to limit ‘religion’ to what was essentially religious, as evident from an oft-quoted speech of Dr Ambedkar. Gautam Bhatia has explained how the constitution strives to end such social exclusions which undermine the access to basic goods. He argues that this anti-exclusion principle, instead of a vague essential practice doctrine, should guide the courts while deciding the constitutionality of a religious practice.
In the western religious thought, community practices are generally considered secondary to beliefs. Moreover, modernisation has made religion largely a private affair, further diminishing the relevance of community practices. However, even if a religious practice compromises human dignity, the state has no constitutional mandate to reform it, and any such measure would be unconstitutional unless it has general applicability.
2. Politics and religion: An overview of the history of the relationship between religion and politics in India and the west contributes significantly to our understanding of their secularisms. In India, the society has always been religiously diverse. Modern Hinduism emerged in the process of syncretic interaction between the Brahmanas and the multifarious communities and tribes of India. Hence, it exhibits a remarkable spirit of tolerance and inclusivity. This provided the ideological basis of secularism, which is popularly known as sarva dharma sambhava.However, Indian secularism owes its development as much to ideals as to the practical demands of governing an intricately diverse society. These demands arise because religious groups have often been important pressure groups in Indian politics. Most successful rulers acknowledged this and tried to address their demands through unifying ideological frameworks like the Dhamma and Sulh-e-Kul, or power sharing arrangements like secular distribution of jageers. The British, consistent with their ideas of secularism, adopted a policy of non-interference in religious matters.
The colonial period witnessed many social and political movements based on the assertion, reformation or rejection of religious identities. The conflicts ensuing from the religious revival on the eve of independence necessitated that the constitution makers, like their colonial and imperial predecessors, had to devise some unifying arrangements. However, as Aditya Nigam has shown, the constitution makers had limited de-facto autonomy and were bound by many externalities. Therefore, the arrangements resulted from extensive negotiations, rather than any enunciation of the sovereign’s will. Articles 29 and 30 can be seen as accommodation made in favour of the Muslims and Christians, as these communities had large networks of educational institutions. Respecting Christian sentiments was also a major reason why the right to propagate was included in the language of Article 25. The fact that the strongest leader of the Dalits was also the chairman of the drafting committee meant that Dalit concerns had to be given due importance. As a result, we see the explicit mention of temple entry rights and social reforms. The cow slaughter ban directed under Article 48 ensured that orthodox Hindu sentiments were not disregarded either.
In the west, religious affairs are governed by a centralized body called the Church. The development of western secularism has been shaped by two historical facts of western society. Firstly, the society was largely homogenous, which obviated the need for unifying arrangements such as ending discrimination or providing community-specific concessions. Secondly, the state and the Church enjoyed a close relationship. Monarchs claimed to be authorized by God and revered the clergy as spiritual guides of the state. Those who did hold different religious views, like the Jews, or Christians of less popular denominations, were often persecuted. Many such Christians eventually migrated to the US as ‘pilgrims’ to escape the persecution. For the American founding fathers, therefore, the biggest threat to religious liberty came from the church-state nexus, which was to be addressed by building a ‘wall of separation’ and permitting the free exercise of religion.
Learning from each other
Mass immigration from third world countries since the late twentieth century have presented unprecedented challenges to American or Western secularism. The values of the immigrants—many of whom view religion as a comprehensive code of social conduct— clash with ‘native’ values, leading to debates about the extent of freedom in matters such as praying and dressing in public places. Some believe that the conventional secular ideology must adjust itself according to the needs of a multicultural society. Rajeev Bhargava traces the future of western secularism in the lessons learnt by India during its long history of inclusive governance.
On the other hand, the Indian model has emphasized that the de-politicization of religion should not be equated with its de-publicization. In other words, politics and policymaking on the basis of religion is permitted, provided it advances the cause of justice and freedom. However, the Supreme Court, under the guise of protecting values, has erroneously assumed the role of a constitutional clergy. The court can ensure the access to basic goods without usurping upon the domain of religious denominations. Besides, as Indian society advances, the influence of religion on social behaviour is decreasing, akin to the developments in post-industrial Europe. Sooner or later, it will cease to have the ability to affect basic rights, and will begin to resemble voluntary associations. Therefore, the main argument for interference—that an unjust social system must be reformed—will no longer hold much weight. Hence, taking a leaf out of American jurisprudence, the Supreme Court should stop deciding on the essentiality or validity of religious beliefs and practices.
As we have seen, the question of religious freedom has been approached differently in India and the United States, due to the different roles played by religion in their politics and society. As these roles change, the two countries should ensure that the law adjusts accordingly.
The Author is a 1st-year student at National Law University Delhi
Image Credit: IAS Gyan
Constitutional Law Society 
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