Freedom of conscience and its contours – A look into the legality of it
The Supreme Court of India has been dealing with multiple issues concerning freedom of conscience and religion as recognized under Article 25 of the Constitution in recent times.
The Supreme Court of India has been dealing with multiple issues concerning freedom of conscience and religion as recognized under Article 25 of the Constitution in recent times (Sabarimala, Hadiya & Dawoodi Bohra Case). The wording of Article 25 provides that “all persons are equally entitled to freedom of conscience and the right to freely profess, practice and propagate religion”.
On a broader canvas, this provision aims to provide commitment of the state to protect citizen’s moral sense of right or wrong, which is usually dictated by religious beliefs of particular sect of people. The framers of the Constitution conceived this idea in light of the prevailing pluralistic vibrant society and accommodating people from different religious beliefs under one state umbrella. Interestingly, however, Article 25 seems to suggest a wider scope of protection afforded to its citizen that goes beyond the religious beliefs alone. The phraseology of the provision indicates that the freedom of conscience is treated to be a separate, or rather an overarching principle that allows citizens to harbour and express beliefs which may not necessarily be religious in nature.
The question then arises, what sort of rights are sought to be protected under this provision which are devoid of any religious underpinning?
While the country is witnessing mass hysteria concerning rise of people from a particular minority religion, the latest census conducted (2011) reveals that around three million people in India categorise themselves under “religion not stated”. This figure is four times more than the previous census which amounts to an average annual increase 15%. This would clearly suggest that rather than a particular religion being the faster growing category, it is actually the people with ‘No Religion’ who have exponentially increased.
This situation poses a very intriguing situation with regards to the rights conferred under Article 25 for such people. For example, a doctor who does not practice any religion but refuses to perform abortion because he considers it to be immoral based solely on his conscience. Would such a situation warrant his termination on the ground of dereliction of duty? Would the state not protect his freedom of ‘conscience’ which is devoid of any religious belief?
Historically, Indian constitutional jurisprudence has dealt with issues concerning ‘conscience’ under Article 25 with the prism of a particular religion. In the absence of any direct judicial pronouncement by the Supreme Court on this issue, it prompts us to dwell into the constitutional scheme and philosophy underlying the scheme of Article 25. However, before dwelling unto the scheme of provision, it is imperative to appreciate the fine difference between the terms ‘freedom of conscience’ and ‘freedom of religion’ qua this provision.
Often, these two concepts seem to be two faces of the same coin. However, there is a stark difference between them. ‘Freedom of conscience’ allows a person to live in accordance with one's convictions about good and evil, which, necessarily, involves manifestation through an external act. This freedom allows a person to hold a particular thought, viewpoint, or a fact which may or may not be driven by a religious teaching. However, ‘freedom of religion’ is a concept granting the right to follow your faith or religion. Supreme Court has defined the term ‘Religion’ as a matter of faith, the established form of which gives a set of ethical norms to its followers and defines the rituals, observances, ceremonies and modes of worship.
[Shirur Mutt Case, AIR 1954 SC 282] ‘Freedom of conscience’ is not as straightforward as the freedom of religion since it largely transcends religion and irreligion. As Thomas Aquinas defined conscience to mean application of moral knowledge to activity, therefore it primarily denotes aligning to a particular belief irrespective of where they may come from. This includes beliefs such as pacifism, atheism, vegetarianism, humanism or ‘none of the above’. Therefore, there is a need to disentangle these two freedoms and discern the ambit of ‘freedom of conscience’ according to the constitutional scheme and philosophy.
James Madison, founding father of the United States, regarded ‘freedom of conscience’ as “the most sacred of all property; other property depending in part on positive law, the exercise of that, being a natural and inalienable right.” Thus, every person has a natural title to freedom of conscience which includes the right of a person to adopt or abandon any faith or belief as per his fancy. The Supreme Court, on similar lines, has opined that “no man possesses a right to dictate to another what religion he believes in; what philosophy he holds, what shall be his politics or what views he shall accept, etc.”[S.R. Bommai Case, AIR 1994 SC 1918] This guarantee poses an obligation upon the State to ensure that god is eliminated from the matters of the State [St. Xaviers College v. State of Gujarat, AIR 1974 SC 1389] and the failure to protect one’s right to “profess, practice and propagate his religion and freedom of conscience” will invariably compromise the rule of law. (State of Karnataka v. Dr. Praveen Bhai Thogadia, AIR 2004 SC 2081)
In terms of manifestation of ‘freedom of conscience’, the judicial pronouncement suggests that the Constitution acknowledges this right as a one of the fundamental precept of our constitutional scheme. In the case of Bijoe Emmanuel v. State of Kerala [National Anthem Case, AIR 1987 SC 748], the Supreme Court recognized the freedom of conscience right and held that a person cannot be compelled to sing the national anthem if the person’s religious conscientiousness did not permit to do so. Similarly, if an individual believes that if the prayers have religious overtone/flavour which is not consistent with his beliefs and compelling someone will violate ‘freedom of conscience’. (SANJAY ANANDA SALVE v. STATE OF MAHARASHTRA, (2014) 2 Mah LJ 178)
The ‘freedom of conscience’ encapsulates an individual’s right to be regarded under ‘no-religion’ category and Bombay High Court has, unequivocally, declared that this right “also confers a right on an individual to express an opinion that he does not belong to any religion” since “freedom of conscience conferred on a citizen includes a right to openly say that he does not believe in any religion and, therefore, he does not want to practice, profess or propagate any religion.”.
The Court further notes that this freedom allows an individual to act as per his conscience. (Ranjeet Suryakant Mohite, PIL No. 139 of 2010). The Supreme Court has even expanded this right to form part of right to liberty under Article 21 of the Constitution. There are areas other than religious beliefs which form part of the individual’s freedom of conscience such as political belief etc. which form part of the liberty under Article 21. (K.S. Puttaswami v. Union of India, 2017 10 SCC 1). Therefore, it seems that the constitutional scheme and philosophy clearly mandates that the rights of people who belong to the mushrooming ‘no-religion’ category ought to be guaranteed the same protection to live and express as per their convictions without any hindrance from State or society.
Despite the theoretical assurances provided, the manifestation of this right also carries a high potential to cause law and order issue as well. This is even more relatable to the current times where the political factions propagate ethno-religious xenophobia amongst the people.
The effective enforcement of this guarantee involves a nexus between individual, society and State and hence it becomes problematic to balance the interests of each component. The effective implementation of ‘freedom of conscience’ could also prove to be problematic owing to lack certainty/consistency in while interpreting this provision in relation to purely ‘conscience’ issues.
This is because conscience, unlike religious belief which lays down established practices to be recognized, can never have a set standard which may be attributed to a class of citizen. Humans conscience is bound yield different approaches to moral, ethical, legal and political issues.
For example, an individual who propagates freedom to leave a religion may still be persecuted or slapped with blasphemy charges for sharing his views which may depart from the accepted norm. It would be interesting to see how the courts interpret this provision by balancing it with the intolerance attitude plaguing our society and weakening the social fibre of our nation which has historically championed the cause of free thinking and expressing themselves in any manner people desire to.
As per the jurisprudence across jurisdictions, it is expected that the Courts will adopt the ‘intermediate approach’ while dealing with such issues which will shall pave way for the future jurisprudence of our Constitution.
(Udit Chauhan is a guest contributor. Views expressed are personal.)