Religion is something which is very individual. It is one’s interest as to whom he believes in or does not believe in. It is usually believed as inner faith of a one and one’s relation  to supreme power. There are various divisions within a religion such as Vaishnav, Shaiva, Lingayat in Hinduism among Jains, Digamabara and Svetambara. Division or sects within a religion follow a different faith from other sects by following different customs, practices and traditions. Therefore, it becomes necessary to protect and secure rights regarding faith of every religion and it should not be curtailed by somebody else or some sort of external force in any healthy society.

 Keeping this point of idea in mind, in India the members of constituent assembly had decided to formulate India as a secular state because it has diverse but composite culture of people from so many different religious, cultural, linguistic and regional backgrounds. So Constituent Assembly incorporated some basic provisions and Articles in the Constitution of India which represent the secularism of Indian democracy. These provisions protect the religious freedom of each and every person of India. Moreover, Forty Second Amendment of the Constitution of India also incorporated the word “ secularism” in the Preamble of the Constitution in 1976 which strengthened the Indian secularism more.

The provisions of the Indian Constitution incorporate  fundamental right of religion in Part III under Article 25 to 28 . Article 25 impart not only freedom of conscience but also freedom of profess, practice and propagate of religion. Article 26 provides freedom to manage religious affairs. Article 27 sets freedom as to payment of taxes for promotion of any particular religion. Article 28 gives freedom as to  attendance at religious instruction or religious worship in certain educational institutions. Thus, we could say that Indian secularism is a positive kind of secularism which is neutral with respect to each and every religion and does not discriminate on the basis of religious faith. Indian secularism is based on “ Sarv Dharm Sambhav”. Although Indian Secularism is not absolute and it is subject to certain reasonable restrictions but it does not mean that those restrictions can be imposed unreasonably.

But now a days, this secularism and religious freedom is in extreme danger. Few anti-social and anti-national elements who have a secret agenda to create disturbance in the society are misusing various legislations and legal system to intimidate progressive and patriot citizens of the country. They are abusing criminal laws in huge amount to curtail the religious freedom which is not very fair for a healthy society.

Some latest instances could be referred with respect to attack on religious freedom by legal authorities. The banner of “ Hindu Fruit Shop” by a fruit seller in Jamshedpur attracted attention suddenly of the entire nation. This photograph was made viral on social media  tagging to local police authorities. Local police immediately removed that banner partially and without any prima facie indication of social disharmony. But the same police could not remove any banner and take any legal action against “ Muslim Dhaba ”. Another instance is from Chennai where an FIR was lodged by local police against an owner of a bakery. He is the owner of a Jain Bakery and he does not have any Muslim staff member. The poster had gone viral on social media and many had called action against the owner. Being proactive local police filed an FIR under section 504 of IPC (intentionally insulting and thereby provoking any person, intending or knowing it to be  likely that such provocation will cause him to break the public peace) and section 295 A of IPC( deliberate and malicious acts intended to outrage religious feelings of any class by insulting its religion).

This is the present scenario of abuse of laws particularly criminal law to assault on religious freedom. A new trend of attacking on religious freedom has started recently by abuse of legal process and filing FIRs against the persons. But this sort of approach is very unfair and unjust for the sake of a healthy society and democratic setup where secularism is being targeted intentionally by a few people. Although in the above-mentioned instances there was no intention or motive to hurt religious sentiments of anybody and to cause social disharmony, legal action was still taken without going through any prima facie indication. The accused had just utilized their fundamental right of religion and expressed their faith. They did not mention anything which was against any particular religion. They did just express about their faith positively wherein they believe and which is their fundamental right. They had not mentioned any negative thing in their banner which could hurt religious sentiments and insult any particular religious faith. However, legal action was taken against them just because of pressure of social conscience which is not very fair and just for a healthy and progressive legal system and democratic country.

Finally, it may be concluded that legal authorities must investigate priorly about prima facie causes before lodging FIRs and taking legal action in these sort of cases and must not work partially being adversely affected by any pressure group or media platform irrespective of electronic media , print media or social media as well. For a healthy, rich and progressive secular country it is very required not to curtail religious freedom of anybody without any reasonable cause and should not give any person opportunity to abuse legal process of the country.

About the Author: This Legal Article is prepared by Alankar Upadhyay, Assistant Professor at Institute of Law, Nirma University. She can be reached at alankar.upadhyay@nirmauni.ac.in. 

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