The purpose of this article is to list out the legal boundaries of the fundamental rights of freedom of expression and religious freedom as recognised by Indian constitution and laws.
The seven fundamental rights recognised by the Indian constitution are
1) Right to equality, including equality before law, prohibition of discrimination on grounds of religion, race, caste, sex or place of birth, and equality of opportunity in matters of employment, abolition of untouchability and abolition of titles.
2) Right to freedom which includes speech and expression, assembly, association or union or cooperatives, movement, residence, and right to practice any profession or occupation (some of these rights are subject to security of the State, friendly relations with foreign countries, public order, decency or morality), right to life and liberty, right to education, protection in respect to conviction in offences and protection against arrest and detention in certain cases.
3) Right against exploitation, prohibiting all forms of forced labour, child labour and traffic in human beings;
4) Right to freedom of religion, including freedom of conscience and free profession, practice, and propagation of religion, freedom to manage religious affairs, freedom from certain taxes and freedom from religious instructions in certain educational institutes.
5) Cultural and Educational rights preserving Right of any section of citizens to conserve their culture, language or script, and right of minorities to establish and administer educational institutions of their choice.
6) Right to constitutional remedies for enforcement of Fundamental Rights.
7) Right to education which ensures that children up to the age of 14 get education. It can also be free of cost.
These seven fundamental rights are required to be protected at any cost in India. This means that even other laws passed by the legislature cannot impede into the fundamental rights of a citizen of India.
Before we dig deep into more legalities of fundamental rights and religions, it is also necessary for us to understand what a religion is as per our constitution.
The fact is there is no precise definition of religion. ‘Religion’, it is said, is a matter of faith and belief in God is not essential to constitute religion [In Shirur Mutt case (AIR 1954 SC 282)]
Often the activities of religious bodies are based on one of the above mentioned fundamental rights, the freedom to profess, practice, and propogate religion. So better clarity on these matters is also required. The next paragraph looks into this matter.
The freedom of conscience and the right to profess, practise and propagate religion is enshrined in Art.25 of the Constitution. The equality of all religions is expressly recognized by Art.25 thereby emphasizing the cherished ideal of secularism. The expression ‘practice’ is concerned primarily with religious worship, ritual and observations. Propagating the religion connotes the right to communicate the religious beliefs to others by expounding the tenets of that religion.Of course, in the name of propagation, no one has a right to convert a person to another religion under pressure or inducement (vide Rev. Stainislaus v. State of Madhya Pradesh, AIR 1977 SC 908). Religious practices are as much a part of religion as religious faith or doctrines (vide The Commissioner, Hindu Religious Endowments, Madras v. Shri Lakshmindra Thiratha Swamiar of Shirur Mutt, AIR 1954 SC 282). The fundamental right to freedom of conscience and the right to profess, practise and propagate a religion is subject to the 6 considerations of public order, morality and health. Clause (2) of Art.25 preserves the power of the State to make a law regulating any economic, financial, political or other secular activity which may be associated with religious practice. Art.26 gives effect to the concomitant right of the freedom to manage religious affairs and this right is again subject to public order, morality and health. Articles 25 and 26 undoubtedly extend to rituals also and not confined to doctrine. It is well-settled that the freedom of conscience and the right to profess a religion implies freedom to change the religion as well. It is pertinent to mention that Art. 18 of the Universal Declaration of Human Rights specifically lays down that the freedom of conscience and religion includes freedom to change the religion or belief. The right to freedom of conscience thus implies the individual right of a person to renounce one’s religion and embrace another voluntarily.
It is also necessary to know what are the restrictions applicable to freedom of speech and expression.
Security of the State: Reasonable restrictions can be imposed on the freedom of speech and expression, in the interest of the security of the State. All the utterances intended to endanger the security of the State by crimes of violence intended to overthrow the government, waging of war and rebellion against the government, external aggression or war, etc., may be restrained in the interest of the security of the State. It does not refer to the ordinary breaches of public order which do not involve any danger to the State.
Friendly relations with foreign States: This ground was added by the Constitution (First Amendment) Act of 1951. The State can impose reasonable restrictions on the freedom of speech and expression, if it tends to jeopardise the friendly relations of India with other State.
Public order: This ground was added by the Constitution (First Amendment) Act, 1951 in order to meet the situation arising from the Supreme Court’s decision in Romesh Thapar, s case (AIR 1950 SC 124). The expression ‘public order’ connotes the sense of public peace, safety and tranquillity.
In Kishori Mohan v. State of West Bengal, the Supreme Court explained the differences between three concepts: law and order, public order, security of State. Anything that disturbs public peace or public tranquillity disturbs public order.But mere criticism of the government does not necessarily disturb public order. A law punishing the utterances deliberately tending to hurt the religious feelings of any class has been held to be valid as it is a reasonable restriction aimed to maintaining the public order.
It is also necessary that there must be a reasonable nexus between the restriction imposed and the achievement of public order. In Superintendent, Central Prison v. Ram Manohar Lohiya (AIR 1960 SC 633), the Court held the Section 3 of U.P. Special Powers Act, 1932, which punished a person if he incited a single person not to pay or defer the payment of Government dues, as there was no reasonable nexus between the speech and public order. Similarly, the court upheld the validity of the provision empowering a Magistrate to issue directions to protect the public order or tranquillity.
Decency and morality: The word ‘obscenity’ is identical with the word ‘indecency’ of the Indian Constitution. In an English case of R. v. Hicklin, the test was laid down according to which it is seen ‘whether the tendency of the matter charged as obscene tend to deprave and corrupt the minds which are open to such immoral influences’. This test was upheld by the Supreme Court in Ranjit D. Udeshi v. State of Maharashtra (AIR 1965 SC 881). In this case the Court upheld the conviction of a book seller who was prosecuted under Section 292, I.P.C., for selling and keeping the book The Lady Chatterley’s Lover. The standard of morality varies from time to time and from place to place.
Contempt of court: The constitutional right to freedom of speech would not allow a person to contempt the courts. The expression Contempt of Court has been defined Section 2 of the Contempt of Courts Act, 1971. The term contempt of court refers to civil contempt or criminal contempt under the Act. But judges do not have any general immunity from criticism of their judicial conduct, provided that it is made in good faith and is genuine criticism, and not any attempt to impair the administration of justice. In In re Arundhati Roy ((2002) 3 SCC 343), the Supreme Court of India followed the view taken in the American Supreme Court (Frankfurter, J.) in Pennekamp v. Florida (328 US 331 : 90 L Ed 1295 (1946)) in which the United States Supreme Court observed: “If men, including judges and journalists, were angels, there would be no problem of contempt of court. Angelic judges would be undisturbed by extraneous influences and angelic journalists would not seek to influence them. The power to punish for contempt, as a means of safeguarding judges in deciding on behalf of the community as impartially as is given to the lot of men to decide, is not a privilege accorded to judges. The power to punish for contempt of court is a safeguard not for judges as persons but for the function which they exercise”. In E.M.S. Namboodripad v. T.N. Nambiar ((1970) 2 SCC 325; AIR 1970 SC 2015), the Supreme Court confirmed the decision of the High Court, holding Mr. Namboodripad guilty of contempt of court. In M.R. Parashar v. Farooq Abdullah ((1984) 2 SCC 343; AIR 1984 SC 615.), contempt proceedings were initiated against the Chief Minister of Jammu and Kashmir. But the Court dismissed the petition for want of proof.
Defamation: The clause (2) of Article 19 prevents any person from making any statement that injures the reputation of another. With the same view, defamation has been criminalised in India by inserting it into Section 499 of the I.P.C.
Incitement to an offence: This ground was also added by the Constitution (First Amendment) Act, 1951. The Constitution also prohibits a person from making any statement that incites people to commit offence.
Sovereignty and integrity of India: This ground was also added subsequently by the Constitution (Sixteenth Amendment) Act, 1963. This is aimed to prohibit anyone from making the statements that challenge the integrity and sovereignty of India.
In the opinion of Brajesh Rajak, author of ‘Pornography Law: XXX Must not be Tolerated' “Freedom of speech and expression can not be an excuse for distribution of indecent and immoral content to average person of the society"
We also need to understand what can be punished as "utterances deliberately tending to hurt the religious feelings of any class" with respect to the restriction of freedom of expression for the sake of public order. The details are given below:
" s. 295A does not penalise any and every act of insult to or attempt to insult the religion or the religious beliefs of a class of citizens but it penalises only those acts of insults to or those varieties of attempts to insult the religion or the religious beliefs of a class of citizens, which are perpetrated with the deliberate and malicious intention of outraging the religious feelings of that class. Insults to religion offered unwittingly or carelessly or without any deliberate or malicious intention to outrage the religious feelings of that class do not come within the section. It only Punishes the aggravated form of insult to religion when it is perpetrated with the deliberate and malicious intention of outraging the religious feelings of that class. The calculated tendency of this aggravated form of insult is clearly to disrupt the public order and the section, which penalises such activities, is well within the protection of cl. (2) of Art. 19 as being a law imposing reasonable restrictions on the exercise of the right to freedom of speech and expression guaranteed by Art. 19(1)(a)"
I hope the listed points helps us to evaluate within our own conscience the role that religions should play in our life, to what extent we can legally challenge citizens who criticize religions and to what extent we can exercise our freedom of expression. These points should help us all evaluate whether we need to punish (atleast as per Indian law) the people who released the video on Islam released in US and whether the violent reactions from a section of the soceity on the basis of the video is justified? A view point on these would be released in the next iteration of the post. So the discussion is to be continued.....
These seven fundamental rights are required to be protected at any cost in India. This means that even other laws passed by the legislature cannot impede into the fundamental rights of a citizen of India.
Before we dig deep into more legalities of fundamental rights and religions, it is also necessary for us to understand what a religion is as per our constitution.
The fact is there is no precise definition of religion. ‘Religion’, it is said, is a matter of faith and belief in God is not essential to constitute religion [In Shirur Mutt case (AIR 1954 SC 282)]
Often the activities of religious bodies are based on one of the above mentioned fundamental rights, the freedom to profess, practice, and propogate religion. So better clarity on these matters is also required. The next paragraph looks into this matter.
The freedom of conscience and the right to profess, practise and propagate religion is enshrined in Art.25 of the Constitution. The equality of all religions is expressly recognized by Art.25 thereby emphasizing the cherished ideal of secularism. The expression ‘practice’ is concerned primarily with religious worship, ritual and observations. Propagating the religion connotes the right to communicate the religious beliefs to others by expounding the tenets of that religion.Of course, in the name of propagation, no one has a right to convert a person to another religion under pressure or inducement (vide Rev. Stainislaus v. State of Madhya Pradesh, AIR 1977 SC 908). Religious practices are as much a part of religion as religious faith or doctrines (vide The Commissioner, Hindu Religious Endowments, Madras v. Shri Lakshmindra Thiratha Swamiar of Shirur Mutt, AIR 1954 SC 282). The fundamental right to freedom of conscience and the right to profess, practise and propagate a religion is subject to the 6 considerations of public order, morality and health. Clause (2) of Art.25 preserves the power of the State to make a law regulating any economic, financial, political or other secular activity which may be associated with religious practice. Art.26 gives effect to the concomitant right of the freedom to manage religious affairs and this right is again subject to public order, morality and health. Articles 25 and 26 undoubtedly extend to rituals also and not confined to doctrine. It is well-settled that the freedom of conscience and the right to profess a religion implies freedom to change the religion as well. It is pertinent to mention that Art. 18 of the Universal Declaration of Human Rights specifically lays down that the freedom of conscience and religion includes freedom to change the religion or belief. The right to freedom of conscience thus implies the individual right of a person to renounce one’s religion and embrace another voluntarily.
It is also necessary to know what are the restrictions applicable to freedom of speech and expression.
Restrictions
The freedom of speech and of the press does not confer an absolute right to express without any responsibility. Lord Denning, in his famous book Road to Justice, observed that press is the watchdog to see that every trial is conducted fairly, openly and above board, but the watchdog may sometimes break loose and has to be punished for misbehaviour. With the same token Clause (2) of Article 19 of the Indian constitution enables the legislature to impose reasonable restrictions on free speech under following heads:- I. security of the State,
- II. friendly relations with foreign States,
- III. public order,
- IV. decency and morality,
- V. contempt of court,
- VI. defamation,
- VII. incitement to an offence, and
- VIII. sovereignty and integrity of India.
Security of the State: Reasonable restrictions can be imposed on the freedom of speech and expression, in the interest of the security of the State. All the utterances intended to endanger the security of the State by crimes of violence intended to overthrow the government, waging of war and rebellion against the government, external aggression or war, etc., may be restrained in the interest of the security of the State. It does not refer to the ordinary breaches of public order which do not involve any danger to the State.
Friendly relations with foreign States: This ground was added by the Constitution (First Amendment) Act of 1951. The State can impose reasonable restrictions on the freedom of speech and expression, if it tends to jeopardise the friendly relations of India with other State.
Public order: This ground was added by the Constitution (First Amendment) Act, 1951 in order to meet the situation arising from the Supreme Court’s decision in Romesh Thapar, s case (AIR 1950 SC 124). The expression ‘public order’ connotes the sense of public peace, safety and tranquillity.
In Kishori Mohan v. State of West Bengal, the Supreme Court explained the differences between three concepts: law and order, public order, security of State. Anything that disturbs public peace or public tranquillity disturbs public order.But mere criticism of the government does not necessarily disturb public order. A law punishing the utterances deliberately tending to hurt the religious feelings of any class has been held to be valid as it is a reasonable restriction aimed to maintaining the public order.
It is also necessary that there must be a reasonable nexus between the restriction imposed and the achievement of public order. In Superintendent, Central Prison v. Ram Manohar Lohiya (AIR 1960 SC 633), the Court held the Section 3 of U.P. Special Powers Act, 1932, which punished a person if he incited a single person not to pay or defer the payment of Government dues, as there was no reasonable nexus between the speech and public order. Similarly, the court upheld the validity of the provision empowering a Magistrate to issue directions to protect the public order or tranquillity.
Decency and morality: The word ‘obscenity’ is identical with the word ‘indecency’ of the Indian Constitution. In an English case of R. v. Hicklin, the test was laid down according to which it is seen ‘whether the tendency of the matter charged as obscene tend to deprave and corrupt the minds which are open to such immoral influences’. This test was upheld by the Supreme Court in Ranjit D. Udeshi v. State of Maharashtra (AIR 1965 SC 881). In this case the Court upheld the conviction of a book seller who was prosecuted under Section 292, I.P.C., for selling and keeping the book The Lady Chatterley’s Lover. The standard of morality varies from time to time and from place to place.
Contempt of court: The constitutional right to freedom of speech would not allow a person to contempt the courts. The expression Contempt of Court has been defined Section 2 of the Contempt of Courts Act, 1971. The term contempt of court refers to civil contempt or criminal contempt under the Act. But judges do not have any general immunity from criticism of their judicial conduct, provided that it is made in good faith and is genuine criticism, and not any attempt to impair the administration of justice. In In re Arundhati Roy ((2002) 3 SCC 343), the Supreme Court of India followed the view taken in the American Supreme Court (Frankfurter, J.) in Pennekamp v. Florida (328 US 331 : 90 L Ed 1295 (1946)) in which the United States Supreme Court observed: “If men, including judges and journalists, were angels, there would be no problem of contempt of court. Angelic judges would be undisturbed by extraneous influences and angelic journalists would not seek to influence them. The power to punish for contempt, as a means of safeguarding judges in deciding on behalf of the community as impartially as is given to the lot of men to decide, is not a privilege accorded to judges. The power to punish for contempt of court is a safeguard not for judges as persons but for the function which they exercise”. In E.M.S. Namboodripad v. T.N. Nambiar ((1970) 2 SCC 325; AIR 1970 SC 2015), the Supreme Court confirmed the decision of the High Court, holding Mr. Namboodripad guilty of contempt of court. In M.R. Parashar v. Farooq Abdullah ((1984) 2 SCC 343; AIR 1984 SC 615.), contempt proceedings were initiated against the Chief Minister of Jammu and Kashmir. But the Court dismissed the petition for want of proof.
Defamation: The clause (2) of Article 19 prevents any person from making any statement that injures the reputation of another. With the same view, defamation has been criminalised in India by inserting it into Section 499 of the I.P.C.
Incitement to an offence: This ground was also added by the Constitution (First Amendment) Act, 1951. The Constitution also prohibits a person from making any statement that incites people to commit offence.
Sovereignty and integrity of India: This ground was also added subsequently by the Constitution (Sixteenth Amendment) Act, 1963. This is aimed to prohibit anyone from making the statements that challenge the integrity and sovereignty of India.
In the opinion of Brajesh Rajak, author of ‘Pornography Law: XXX Must not be Tolerated' “Freedom of speech and expression can not be an excuse for distribution of indecent and immoral content to average person of the society"
We also need to understand what can be punished as "utterances deliberately tending to hurt the religious feelings of any class" with respect to the restriction of freedom of expression for the sake of public order. The details are given below:
" s. 295A does not penalise any and every act of insult to or attempt to insult the religion or the religious beliefs of a class of citizens but it penalises only those acts of insults to or those varieties of attempts to insult the religion or the religious beliefs of a class of citizens, which are perpetrated with the deliberate and malicious intention of outraging the religious feelings of that class. Insults to religion offered unwittingly or carelessly or without any deliberate or malicious intention to outrage the religious feelings of that class do not come within the section. It only Punishes the aggravated form of insult to religion when it is perpetrated with the deliberate and malicious intention of outraging the religious feelings of that class. The calculated tendency of this aggravated form of insult is clearly to disrupt the public order and the section, which penalises such activities, is well within the protection of cl. (2) of Art. 19 as being a law imposing reasonable restrictions on the exercise of the right to freedom of speech and expression guaranteed by Art. 19(1)(a)"
I hope the listed points helps us to evaluate within our own conscience the role that religions should play in our life, to what extent we can legally challenge citizens who criticize religions and to what extent we can exercise our freedom of expression. These points should help us all evaluate whether we need to punish (atleast as per Indian law) the people who released the video on Islam released in US and whether the violent reactions from a section of the soceity on the basis of the video is justified? A view point on these would be released in the next iteration of the post. So the discussion is to be continued.....
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