Economic and
Political Weekly, Vol. 53, Issue No. 38, 22 Sep, 2018
– Anurag Bhaskar and Shubham Kumar
Though atheism has been socially prevalent in India, it has
remained a grey area in the legal context. There are no specific laws catering
to atheists and they are considered as belonging to the religion of their
birth. The Constitution provides for “freedom of conscience” under Article 25
since 1950, but constitutional rights of “non-believers” were never
substantiated by courts until recently.
To understand the true spirit and purpose of “freedom of
conscience” provided under the Constitution, reference must be drawn to the
Constituent Assembly Debates (CAD). On 17 October 1949, H V Kamath had proposed
an amendment to the current form of the Preamble to the Constitution that the
words “In the name of God” be added before “We, the People of India.” The
members of the Constituent Assembly asserted strongly against the said
amendment, thus rejecting it. One member, Pattom A Thanu Pillai, stated that
said amendment would amount to compulsion in the matter of faith. He added, “It
affects the fundamental right of freedom of faith. A man has a right to believe
in God or not, according to the Constitution.” Another member, pandit Hirday
Nath Kunzru, said that invoking the name of god in the Preamble shows “a
narrow, sectarian spirit, which is contrary to the spirit of the Constitution.”
The rejection of Kamath’s proposed amendment was a conscious decision, which
clearly indicates that the Constituent Assembly recognised the constitutional
rights of “non-believers.” The “right not to believe” is a matter of choice,
which was protected in the “freedom of conscience.”
Judicial Precedents
However, the Indian courts often confused this basic
understanding of the Constitution by considering atheism or agnosticism as a
facet of religion. The Supreme Court in Commissioner, Hindu Religious
Endowments, Madras v Sri Lakshmindra Thirtha Swamiar of Sri Shipur Mutt (1954),
concluded that “religion” is certainly a matter of faith for individuals or
communities and it is not necessarily theistic. Referring to well-known
religions in India which do not believe in god, it was observed that “it would
not be correct to say that religion is nothing else but a doctrine or belief. A
religion may not only lay down a code of ethical rules for its followers to
accept.” This view was reiterated in Ratilal Panachand Gandhi v State of Bombay
(1954), where it was observed further that our Constitution-makers have made no
attempt to define what “religion” is and, therefore, it is not certainly
possible to frame an exhaustive definition of the word “religion” which would
be applicable to all classes of persons. In Atheist Society of India v Govt of
Andhra Pradesh (1992), the Andhra Pradesh High Court expressly stated that
absence of faith in any religion and god may itself be called a “particular
faith.” It also stated: “There is no constitutional guarantee to the faith of
the Atheists who worship the barren reason that there is no God.” This approach
by the courts was quite contrary to the principles enshrined in the
Constitution.
A shift towards the correct approach was seen in the
judgment of the Bombay High Court in Ranjit Suryakant Mohite v Union of India
(2014). While defining “conscience” as “moral sense of right or wrong as
applied to one’s own judgment and actions,” the high court held that “freedom
of conscience” under Article 25 of the Constitution “encompasses in itself a
freedom to an individual to take a view that he does not belong to any
religion.” The court made it clear that Article 25 of the Constitution includes
the right to be an atheist and that the “freedom of conscience” includes a
right not to profess, practice or propagate any religion. It was also held that
no one can be compelled to follow any religion.
The recent judgments of the Supreme Court now specifically
recognise and protect the fundamental right of an individual to be an atheist
or a non-believer. In its nine-judge bench decision in the right to privacy
case, Justice K S Puttaswamy (Retd) v Union of India (2017), the Supreme Court
held that the citizens of India have a fundamental right to privacy, which also
includes “the ability to choose a faith and the freedom to express or not
express those choices to the world.” The Court, while affirming the individual
as the bearer of the constitutional guarantee of rights, held that privacy,
being the core of the human personality, recognises the ability of each
individual to make choices and to take decisions governing matters intimate and
personal. Being an atheist is an expression of individual autonomy and choice.
The Supreme Court in Shafin Jahan v Asokan K M (2018) reiterated that choices
of faith and belief “lie within an area where individual autonomy is supreme.”
Social approval for such intimate personal decisions, thus, cannot be a basis
to deny the right to be an atheist or non-believer.
Constitutional morality, which overrides public or religious
morality, as expressly held in the concurring opinions of Justice D Y
Chandrachud in Government of NCT of Delhi v Union of India (2018) and Navtej
Singh Johar v Union of India (2018), will protect and promote the fundamental
right of an individual to be an atheist under Article 25. Moreover, even if the
population of the atheists or non-believers is less, it does not have any
effect on the importance of their constitutional rights. Justice Chandrachud
(speaking for the Court) in the K S Puttaswamy case had held that a
constitutional fundamental right cannot be denied, even if there is a
“miniscule fraction of the population” which is affected. This view has been
reiterated by the recent constitution bench decision in the Navtej Singh Johar
case, which has recognised and protected the constitutional rights of the
lesbian, gay, bisexual, transgender, and queer (LGBTQs).
The jurisprudence evolved by the Supreme Court in these
judgments, which places individual rights as supreme, must be seen as an
extension of B R Ambedkar’s vision, when he stated before the Constituent
Assembly (4 November 1948), “I am glad that the Draft Constitution has …
adopted the individual as its unit.” It is, therefore, obvious that being an
atheist or a non-believer is a separate identity under the Constitution.
Article 25 and Atheism
Another important aspect of “freedom of conscience,” which
must be considered here, is the second part of Article 25(1) which provides for
the right to freely “profess, practice and propagate religion.” This right to
propagate one’s religion, however, cannot infringe upon another person’s right
to freedom of religion. It was held by the Supreme Court in Lily Thomas v Union
of India (2000) that an individual’s fundamental right to “entertain the
religious belief of his choice” and “to exhibit his belief and ideas” shall not
“infringe the religious right and personal freedom of others.” Since it has
been made clear that atheism is distinct from religion (in legal terms) and
implies absence of religion, a question arises: Would propagating atheism be
said to be violative of Article 25? The answer would be in the negative. There
are four main reasons in support of this assertion.
First, the secular character of the Constitution preserves
the rights of atheists. In St Xaviers College v State of Gujarat (1974), the Court
had held, “Secularism is neither anti God nor pro God; it treats alike the
devout, the antagonistic and the atheist.”
Second, as stated earlier, India has legacy of great
leaders, freedom fighters and revolutionaries who believed in atheism and
propagated it. In P D Sundaresan v The Principal Secretary to Government
(2012), the petitioner had challenged a government order granting permission to
install the statue of Periyar, a strong proponent of atheism, in a school
premises. It was contented that the installation of Periyar’s statue will give
room for developing atheism in the minds of students. The Madras High Court,
while rejecting the plea, emphasised the necessity of the schoolchildren to
know about the life and mission of Periyar. The high court held that
understanding the philosophy of Periyar will help children in “having
scientific temper, humanism and the spirit of inquiry and reform,” which is a
fundamental duty of every citizen under Article 51A(h) of the Constitution.
Therefore, saying that India has no place for atheism would be defeating the
rich legacy which these leaders have created, and would also undermine the
fundamental duty enshrined under Article 51A(h).
Third, as held in Sanjay Ananda Salve v The State of
Maharashtra (2015) and reiterated in Ranjit Suryakant Mohite v Union of India
(2015), the freedom of conscience and belief of an individual is a part of
freedom of speech and expression under Article 19(1)(a).2
Fourth, the judgments in NALSA v Union of India (2014), and
the K S Puttaswamy and the Navtej Singh Johar cases recognise
self-determination, realisation of one’s own abilities, and rejection of
external views in accordance with constitutional values as the core of one’s
identity. Rejecting religious and social beliefs on the basis of scientific
temperament is integral to the constitutional identity of atheists.
Therefore, not allowing the propagation of atheism will be a
clear violation of fundamental rights of the freedom of speech and expression,
the freedom of conscience, the fundamental duties and the secular character of
the Constitution. To state it succinctly, propagating atheism does not encroach
upon anyone’s right to profess, practise and propagate religion. It is a
combination of the freedom of conscience and the fundamental right to speech
and expression. However, Article 19(2)3 puts certain restrictions on the
fundamental right to speech and expression. It is here that the conflict between
the constitutional rights of atheists and Section 295A IPC4 comes into the
picture.
Section 295A
Propagating atheism can cause tensions between the religious
individuals/groups and non-believers, as it did in October 2016, when a private
meeting of atheists, after being attacked by religious extremists, was made to
be cancelled by the local administration on the grounds that it could pose a
“law and order problem” (Hindu 2016) and “could have promoted communal
disharmony” (Scroll 2016). Though India has no specific blasphemy law, Section
295A IPC, provides that acts done with “deliberate and malicious intention of
outraging the religious feelings of any class of citizens of India” are
punishable.
Therefore, a question would be: To what extent would
propagating atheism be permissible? The constitutionality of Section 295A was
upheld by a constitution bench of the Supreme Court in Ramji Lal Modi v State
of UP (1957) on the grounds that, under Article 19(2) of the Constitution, it
is a reasonable restriction upon the freedom of speech “in the interests of
public order.” While giving wider interpretation to the phrase “in the
interests of public order,” the Court held that “[a] law may not have been designed
to directly maintain public order and yet it may have been enacted in the
interests of public order.”
However, Gautam Bhatia (2016) has argued that the judgment
has “outlived its utility” and needs to be reconsidered. He has argued that the
decision of the Supreme Court in the Ramji Lal Modi case, while holding that
there is no requirement of proximity between speech and public disorder,
ignored the “qualifying constraints” placed by the term “reasonable
restrictions” and that the subsequent decisions have “consistently undermined
and discarded” the stand taken in the Ramji Lal Modi case. In a subsequent
decision by a constitution bench in Superintendent, Central Prison, Fatehgarh v
Ram Manohar Lohia (1960), it was held that the Ramji Lal Modi case did not mean
that “any remote or fanciful connection” between the restriction and the public
order would be sufficient to uphold the validity of the restriction. The Court
held that a restriction, in order to be a reasonable restriction on the freedom
of speech and expression, must have a “proximate relationship” to the
achievement of public order and “not one [which is] far-fetched, hypothetical
or problematical or too remote in the chain of its relation with the public
order.” The stand taken by the constitution bench in the Ram Manohar Lohia case
is opposite to the view of a coordinate constitution bench in the Ramji Lal
Modi case.
Another constitution bench judgment in Kedar Nath Singh v
State of Bihar (1962) read down the provisions of Section 124A5 (sedition) of
the IPC. The Court held that a speech or comment criticising public measures on
government action, however strongly worded, would not amount to sedition and
would be within the domain of the fundamental right of freedom of speech and
expression, unless it has an element of inciting violence and creating
disturbance in law and order. A bench of three judges in S Rangarajan v P
Jagjivan Ram (1989) held that a restriction sought to be imposed on freedom of
speech must have a “direct nexus” with public order and should not be merely
“remote, conjectural or far-fetched.” This nexus, the Court held, must be
equivalent to a “spark in a powder keg.” The scope of above discussed
“proximate nexus” between speech and public order was further restricted in a two-judge
bench decision in Arup Bhuyan v State of Assam (2011), wherein the Court agreed
that only a speech which leads to “imminent lawless action” would be illegal.
These judgments, as Bhatia (2016) has aptly stated, indicate
that it requires “a very high threshold for the state to fulfil before invoking
public disorder as a ground for restricting speech.” The ratio of these
judgments is contrary to that in the Ramji Lal Modi case. Moreover, the Court
in Shreya Singhal v Union of India (2015), while distinguishing “discussion”
and “advocacy” with “incitement,” held that “[m]ere discussion or even advocacy
of a particular cause howsoever unpopular [unless it reaches the level of
incitement]” would always remain at the heart of the fundamental right to speech
and expression. The Court, while striking down Section 66A of the Information
Technology Act, held that when a provision suffers from vagueness and over
breadth in the sense that it criminalises protected speech and speech of
innocent nature, it has a potential to create “a chilling effect on free
speech” and is therefore liable to be struck down. The Court had also held that
“a restriction in order to be reasonable must be narrowly tailored or narrowly
interpreted so as to abridge or restrict only what is absolutely necessary.”
The view that law should not be used in such a manner that it has a chilling
effect on the freedom of speech and expression was also upheld in a previous
decision of a Bench of three judges in S Khushboo v Kanniammal (2010). More recently
in Navtej Singh Johar (2018), a constitution bench partially struck down
Section 377 of the IPC, while holding it is “manifestly not only overboard and
vague but also has a chilling effect on an individual’s freedom of choice.”
The right “not to believe” is also a reflection of an
individual’s choice, and provisions such as Section 295A, which is overbroad,
have a chilling effect on this choice. Section 295A has the potential to be
misused to suppress the atheist assertions. It is for these compelling reasons
that Section 295A IPC needs to be struck down. The decision in the Ramji Lal
Modi case ought to be reconsidered by a larger bench. Till the time Section 295
IPC is on the statute book, it ought not to be attracted until a speech
criticising religious beliefs or notions leads to imminent lawless action.
It is against the above background that a recent bill passed
by the Punjab assembly which seeks to amend Section 295A and also insert
Section 295AA must be analysed. The Indian Penal Code (Punjab Amendment) Bill,
2018 seeks to insert Section 295AA to the IPC to provide that, “whoever causes
injury, damage or sacrilege to Sri Guru Granth Sahib, Srimad Bhagwad Gita, Holy
Quran and Holy Bible with the intention to hurt the religious feelings of the people,
shall be punished with imprisonment for life.” The bill further states: “In the
Indian Penal Code, 1860, in its application to the State of Punjab, in section
295, for the words ‘two years,’ the words ‘ten years’ shall be substituted.”
The definition of the inserted provision is vague and suffers from overbreadth.
“Sacrilege” itself is a vague term. The provision gives sweeping powers to the
state to make arrests. It is a constitutional right of atheists and
non-believers to not agree to the belief and teachings of religious texts.
Section 295AA can have a “chilling effect” on these disagreements. It can be
used to silence atheists and non-believers who could question the notions of
religious texts. Moreover, in Punjab, around 32% of the population comprises
Dalits (Government of Punjab nd), whose struggle for social emancipation has
consistently involved challenging the notions of religions and religious texts.
Ambedkar had himself burnt a copy of Manusmriti as a symbolic move to challenge
the varna system which supported inequality in society.
Section 295AA and the amendment to Section 295A will have a
negative impact on the struggle of Dalits for equality. The overbreadth with
which Section 295AA suffers thus makes it liable to be struck down, when challenged
before a constitutional court. This would also give an opportunity to the
Supreme Court to reconsider its decision in the Ramji Lal Modi case.
Marriage and Succession
A petition filed by an advocate praying to abandon all
religious beliefs and be declared non-religious was struck down by the Court on
the grounds that, if sanctioned legally, it could complicate matters for his
family members as, after his death, they would be caught in a legal trap on
several issues like inheritance or rituals, etc (Times of India 2012). In this
regard, it must be noted that Parliament had enacted the Special Marriage Act
(SMA), 1954 to “provide a special form of marriage which can be taken advantage
of by any person in India and all Indian nationals in foreign countries
irrespective of the faith which either party to the marriage may profess”
(Statement of Objects and Reasons). It is stated that while there are separate
marriage laws for Hindus, Muslims, and Christians under the SMA, the
non-religious can have marriage ceremonies free from any mention of caste or
creed. A marriage solemnised under the SMA does not have mandatory requirement
of any religious or ceremonial rites, and is a type of civil contract.
Succession and maintenance are two important aspects of the
issue of marriage. Section 216 of SMA provides that succession to the property
of any person whose marriage is solemnised under the SMA and to the property of
the issue of such marriage shall be governed by the provisions of the Indian
Succession Act, 1925. Sections 367 and 378 of SMA provide for alimony and
maintenance for wives. Apart from this, the wife who has been married under the
SMA can also seek maintenance under Section 125 of the Code of Criminal
Procedure, 1973.
Conclusions
The Indian Constitution provides equal rights to all
citizens. Freedom of religion and conscience includes the freedom not to
believe. A person should be allowed to say that they belong to “no religion”
and are atheist. The rights of atheists and non-believers are of equal importance
as compared to fundamental right to religion. The citizens must not be
compelled by the state to fit into one religion or the other. In protecting the
rights of atheists, the people of the country will speak of the kind of country
they want to live in. This may require certain minimum efforts. For instance,
while filling up various forms for various purposes by various authorities, a
person should have a right to state that they belong to “no religion.”
Individuals, who are not willing to take oath in the name of god or by putting
their hands on any religious book, should be allowed to take oath in the name
of the Constitution.9 Further, provisions such as Sections 295A and 295AA (as
passed by Punjab assembly) undermine the constitutional rights of atheists.
Section 295AA particularly sets a bad precedent for other states to follow. If
in the future any government decides to expand such provisions to all religious
objects and beliefs, it would end any challenge to religious notions for all
practical purposes. It would also be defeating to the legacy of our leaders,
such as Ambedkar, Periyar, Bhagat Singh, Lohia, and others. Thus, it is high
time that the presence of these penal provisions on the statute book be
reconsidered.
Notes
1 Article 25(1) of the Indian Constitution states that:
“Subject to public order, morality and health and to the other provisions of
this Part, all persons are equally entitled to freedom of conscience and the
right freely to profess, practise and propagate religion.”
2 Constitution of India 1950, Article 19(1)(a) provides:
“All citizens shall have the right—(a) to freedom of speech and expression.”
3 Constitution of India 1950, Article 19(2) provides:
“Nothing in sub-clause (a) of clause (1) shall affect the operation of any existing
law, or prevent the State from making any law, in so far as such law imposes
reasonable restrictions on the exercise of the right conferred by the said
sub-clause in the interests of 4 [the sovereignty and integrity of India,] the
security of the State, friendly relations with foreign States, public order,
decency or morality, or in relation to contempt of court, defamation or
incitement to an offence.”
4 Section 295A of Indian Penal Code states: “Whoever, with
deliberate and malicious intention of outraging the religious feelings of any
class of citizens of India, by words, either spoken or written, or by signs or
by visible representations or otherwise, insults or attempts to insult the
religion or the religious beliefs of that class, shall be punished with
imprisonment of either description for a term which may extend to three years,
or with fine, or with both.”
5 Section 124A of Indian Penal Code states:
“Sedition—Whoever by words, either spoken or written, or by signs, or by
visible representation, or otherwise, brings or attempts to bring into hatred
or contempt, or excites or attempts to excite disaffection towards, the
Government established by law in [India], shall be punished with [imprisonment
for life], to which fine may be added, or with imprisonment which may extend to
three years, to which fine may be added, or with fine.”
6 Section 21, SMA provides: “Succession to property of
parties married under Act—Notwithstanding any restrictions contained in the
Indian Succession Act, 1925 (39 of 1925), with respect to its application to
members of certain communities, succession to the property of any person whose
marriage is solemnized under this Act and to the property of the issue of such
marriage shall be regulated by the provisions of the said Act and for the
purposes of this section that Act shall have effect as if Chapter III of Part V
(Special Rules for Parsi Intestates) had been omitted therefrom.”
7 Section 36 provides: “Where in any proceeding under
Chapter V or Chapter VI it appears to the district court that the wife has no
independent income sufficient for her support and the necessary expenses of the
proceeding, it may, on the application of the wife, order the husband to pay to
her the expenses of the proceeding, and weekly or monthly during the proceeding
such sum as having regard to the husband’s income, it may seem to the court to
be reasonable.”
8 Section 37(1) provides: “Any court exercising jurisdiction
under Chapter V or Chapter VI may, at the time of passing any decree or at any
time subsequent to the decree, on application made to it for the purpose, order
that the husband shall secure to the wife for her maintenance and support, if
necessary, by a charge on the husband’s property such gross sum or such monthly
or periodical payment of money for a term not exceeding her life, as, having
regard to her own property, if any, her husband’s property and ability 5 [the
conduct of the parties and other circumstances of the case], it it may seem to
the court to be just.”
9 A PIL (public interest litigation) was filed in this
regard on the grounds that the Oaths Act, 1969 is violative of Articles 14, 19
and 21 of the Indian Constitution (Hindustan Times 2016).
References
Bhatia, Gautam (2016): “The
Constitutional Case against India’s Blasphemy Law,” 18 January, https://thewire.in/19508/the-constitutional-case-against-indias-blasphemy-law/.
CAD (1949): Constituent Assembly of
India, 17 October, http://parliamentofindia.nic.in/ls/debates/v10p10m.htm.
Government of Punjab (n d):
“Scheduled Caste Population in Punjab: An Overview,” Department of Welfare of
Scheduled Castes, Backward Classes and Minorities, http://welfarepunjab.gov.in/Static/SCPopulation.html.
Hindustan Times (2016): “Can
Atheists Swear in the Name of Constitution: PIL Filed in Bombay HC,” 14 April, http://www.hindustantimes.com/india/can-atheists-swear-in-the-name-of-constitution-pil-filed-in-bombay-hc/story-UcSbWiof7itguGKEkgOK7K.html.
Hindu (2016): “Hindutva Activists
Attack, Force Cancellation of Private Meeting of Atheists in Mathura,” 14
October, http://www.thehindu.com/news/national/other-states/Hindutva-activists-attack-force-cancellation-of-private-meeting-of-atheists-in-Mathura/article16071222.ece.
Indian Express (2014): “The Right
Not to Believe,” 2 October, http://indianexpress.com/article/opinion/columns/the-right-not-to-believe/.
Scroll (2016): “Hindu, Muslim Groups
Come Together in Violent Protest against Meeting of Atheists in Mathura,” 15
October, http://scroll.in/latest/
819082/hindu-muslim-groups-come-together-in-violent-protest-against-meeting-of-atheists-in-mathura.
819082/hindu-muslim-groups-come-together-in-violent-protest-against-meeting-of-atheists-in-mathura.
Times of India (2012): “Lawyer’S
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WIN-Gallup Report (2012): “Global
Index of Religion and Atheism,” http://www.wingia.com/web/files/news/14/file/14.pdf.
CASES CITED
Arup Bhuyan v State of Assam (2011):
SCC 3, p 377.
Atheist Society of India v Govt of
Andhra Pradesh (1992): AIR AP, p 310.
Commissioner, Hindu Religious
Endowments, Madras v Sri Lakshmindra Thirtha Swamiar of Sri Shipur Mutt (1954):
AIR SC, p 282.
Government of NCT of Delhi v Union
of India (2018): SCALE 8, p 72.
Justice K S Puttaswamy (Retd) v
Union of India (2017): SCALE 10, p 1.
Kedar Nath Singh v State of Bihar
(1962): AIR SC, p 955.
Lily Thomas v Union of India (2000):
SCC 6, p 224.
NALSA v Union of India (2014): SCC
5, p 438.
Navtej Singh Johar v Union of India
(2018): judgment delivered on 6 September.
P D Sundaresan v The Principal
Secretary to Government (2012): 5 MLJ 208.
Ramji Lal Modi v State of UP (1957):
AIR, p 620.
Ranjit Suryakant Mohite v Union of
India (2015): (6) Bom CR 609.
Ratilal Panachand Gandhi v State of
Bombay, (1954): AIR SC, p 388.
S Khushboo v Kanniammal (2010): SCC
5, p 600.
S Rangarajan v P Jagjivan Ram
(1989): SCC 2, p 574.
Sanjay Ananda Salve v The State of
Maharashtra (2014) (6) BomCR 142.
Shafin Jahan v Asokan KM (2018):
SCALE 5, p 422.
Shreya Singhal v Union of India
(2015): AIR SC, p 1523.
St Xaviers College v State of
Gujarat (1974): AIR SC, p 1389.
Superintendent, Central Prison,
Fatehgarh v Ram Manohar Lohia (1960): AIR SC, p 633.
About Authors:
Anurag Bhaskar (anuragbhaskar007[at]gmail.com) is an LLM
student at Harvard Law School. Shubham Kumar (kumarshubham2309[at]gmail.com) is
an undergraduate student at Dr Ram Manohar Lohiya National Law University,
Lucknow.
