Supremacy of the Constitution v Supremacy of the Religion

What is a Constitution?

A Constitution means a document having a special legal sanctity that sets out the framework and principal functions of the government Constitution of a country gives an idea about the basic structure of the political system under which its people are to be governed It defines the powers of the main organs of the State, demarcates their responsibilities and regulates their relationships with each other and with the people. It is the ‘Supreme and Fundamental Law of the land’ that reflects people’s faith and aspirations.

A Constitution is the vehicle of a Nation’s progress. It is a legal and social document. It is intended to serve the needs of the day when it was enacted and also to meet the needs of the changing conditions in new circumstances. It has, thus, been said that the words and expressions, used in the Constitution, have no fixed meaning and must receive interpretation based on the experience of the people in the course of working of the Constitution.

A Constitution is thus, said to be a living and organic document, which, of all instruments, has the greatest claim to be construed broadly and liberally. Being a living organ, it is ongoing and with the passage of time, law must be changing. Horizons of Constitutional law, it is said, are expanding. It is required to be kept young, energetic and alive. Political social and economic developments can throw light on its meaning.

The Indian Constitution and Religion

The Constitution of India provides an essential Fundamental Right, which is Article 14, which talks about equality before the law or the equal protection of laws, therefore, embodies the principle of ‘non-discrimination.’ It says that everyone is equal which means whether it be a man or a woman or a child or a senior citizen, all are equal in the eyes of the law.

Another Fundamental Right that can be connected with the concept of religion in Article 15. Article 15 talks about the prohibition of discrimination on the grounds of religion, race, caste, sex, or place of birth. Article 14 and Article 15 read in the light of the preamble to the Constitution reflect the thinking of the Constitution makers and prevent any discrimination.

Article 21 of the Constitution of India guarantees the freedom of life and personal liberty except procedure established by law. According to this, everyone has the full right to go anywhere any worship any God and Goddess of their choice.

Article 25 and Article 26 are both the first Fundamental Rights that give protection to the religion of the citizens of India.

Article 25 states that subject to public order, morality and health and to the other provisions of the III Part of the Indian Constitution, all persons are equally entitled to freedom of conscience and the right freely to profess, practice and propagate religion.

Article 25 (2) (b) of the Constitution of India conferred a right on all classes and sections of Hindus to enter into a public temple.

Article 25 (2) (b) is much more comprehensive in its contents and has reference to the rights of communities. The right protected under this Article is a right to enter into a temple for purposes of worship, and that further it should be construed liberally in favour of the public. And Article 26 mainly talks about the religious denomination. 

Religion being a volatile subject in India

There’s always a fight in the country over the religious issues. Everyone in the country wants to enjoy the rights provided to them and preserve their religion, but sometimes it creates a situation where another person is infringing on the rights of others. Sometimes it becomes too difficult for the Courts to create a balance between the two. Almost all the countries in the world guarantee freedom of religion in some form or the other.

Such a guarantee assumes special importance in a multi-religion country like India which owes its religious diversity to history rather than any recent or contemporary phenomena any discussion on religion in public sphere in India (as opposed to religion being a subliminal human experience) automatically brings the spotlight on secularism or more specifically Indian model of secularism.

There can be no universal model of secularism as there is no universal religion. India is a nation of many religions and freedom of religion has been accorded constitutional protection. Articles 25 to 28 constitute significant constitutional provisions on freedom of religion. It is also pertinent to mention here that the term religion is nowhere defined in the Indian Constitution but the term has been given expansive content by way of judicial pronouncements.

Religion has been a volatile issue in the country capable of inciting sentiments which have often seen being translated into violent outpourings in the public sphere.

Supremacy of the Constitution 

The concept of secularism is implicit in the Preamble of the Constitution which declares the resolve of the people to secure to all its citizens “liberty to thought, belief, faith, and worship”. The Constitution (42nd Amendment) Act, 1976, has inserted the word ‘Secular’ in the Preamble.

This amendment is intended merely to spell out clearly the concept of ‘secularism in the Constitution. There is no mysticism in the secular character of the State. In India, a Secular State was never considered as an irreligious or atheistic State. It only means that in matters of religion it is neutral. It is the ancient doctrine in India that the State protects all religions but interferes with none.’ Explaining the secular character of the Indian Constitution the Supreme Court said,

“There is no mysticism in the secular character of the State. Secularism is neither anti-God nor pro-God; it treats alike the devout, the antagonistic and the atheist. It eliminates God from the matters of the State and ensures that no one shall be discriminated against on the ground of religion. The State can have no religion of its own. It should treat all religions equally. The State must extend similar treatment to the Church, the Mosque and the Temple. In a Secular State, the State is only concerned with the relation between man and man. It is not concerned with the relation of man with God. It is left to the individual’s conscience. Every man should be allowed to go to Heaven in his own way. Worshipping God should be according to the dictates of one’s own conscience. Man is not answerable to the State for the variety of his religious views”.

The right of worship was granted by God for man to worship as he pleased. There can be no compulsion in law of any creed or practice of any form of worship.

Case Laws that establish Supremacy of the Constitution over Religion

In Shayara Bano v. Union of India,‘ the Supreme Court by a majority of 3 to 2 declared Triple Talaq or Talaq-e-biddat being instant and irrevocable unconstitutional. Talaq-e-biddat is a kind of Talaq effected by one definitive pronouncement of Talaq’ such as “I Talaq you irrevocably” or three simultaneous pronouncements like “Talaq, Talaq, Talaq”, uttered at the same time.

The Court held-It is something innovative not in Sunna, being an irregular or heretical form of Talaq recognised by Hanafi school of Shariat law which itself states that though lawful it is sinful in that it incurs the wrath of God. Triple Talaq is manifestly arbitrary and violative of Article 14 of the Constitution in the sense that the marital tie can be broken capriciously and whimsically by a Muslim man without any attempt or reconciliation to save it.

Section 2 of the Muslim Personal Law Shariat (Application) Act, 1937 which recognises and enforces Triple Talaq is law in force within the meaning of Article 13(3)(b) and hit by Article 13(1) and is void to the extent it recognised Triple Talaq. Triple Talaq is against the basic tenets of the holy Quran and consequently, it violates Shariat. It forms no part of Article 25(1) of the Constitution.

The most famous case is the Indian Young Lawyers Association & Ors. v. State of Kerala & Ors, most famously known as Sabarimala Case. In this case, the women were not allowed the temple, and the Supreme Court has ruled that women of all age groups can enter the Sabarimala temple in Kerala. The apex court in a 4:1 majority said that the temple practice violates the rights of Hindu women and that banning entry of women to shrine is gender discrimination.

A five-judge Constitution bench, headed by Chief Justice of India Dipak Misra, said that the provision in the Kerala Hindu Places of Public Worship (Authorisation of Entry) Rules, 1965, which authorized the restriction, violated the right of Hindu women to practice religion. Justice Chandrachud said all individuals were created equal and observed that;

To exclude women from doing worship by allowing the right to worship to men is to place women in a position of subordination. The constitution should not become an instrument for the perpetuation of patriarchy.

Another case that can be taken is the Shani Shingnapur Case. In this case, the women were not allowed to enter the sanctum, but after four months, the efforts of finally permitted women to enter the temple and pray in the sanctum sanctorum putting an end to a 400-year-old custom. This comes after the Bombay High Court made it clear that it was incumbent upon the state government to ensure that the Maharashtra Hindu Places of Worship (Entry Authorisation) Act, 1956, was enforced correctly.

In the case of Mohd . Hanif Qureshi v State of Bihar, wherein it was claimed by the petitioner that the sacrifice of the cows during Bakr- id was an essential part of hi religion but this argument was rejected by the court as the sacrifice of cow on the Bakri-Id day was not an essential part of the Mohammedan religion and hence could be prohibited by State under clause (2) (a) of Article 25.

In the case of T .Swumiar v Commr. H.R.F . Madras,wherein it was held that even if a tax is imposed on persons belonging to a particular religion, in order to meet the expenses of that particular religion, such tax is void.

In the case of RobasaKhanum v. Khodabad Irani, it was held that the conduct of a spouse who converts to Islam has to be judged on the basis of the rules of justice equity and good conscience.

In the case of Sarla Mudgal v. Union of India, it was held that conversion to any other religion by either one or both the spouses is not at all a ground to have the marriage dissolved.

The article has been contributed by Anurag Pattnaik, a student at Xavier Law School, XIM University, Bhubaneswar.