From: vidynath@math.ohio-state.edu (Vidhyanath K Rao)
Newsgroups: soc.culture.indian
Subject: Fundemental rights and the Indian Constitution
Date: 10 Jan 1993 16:00:15 -0500
Organization: Me? Organized?
Distribution: world
NNTP-Posting-Host: function.mps.ohio-state.edu


Given the recent posts by Professor Kak and me, there might me some
interest in what the Indian Constitution says about freedom of religion
and related matters.

My reference, "Basu's Commentary on Indian Constitution", is dated 1961.
I would appreciate if people with access to more up-to-date material can
list the amendments and case law since then.

For the sake of completeness, I will list all the articles of Part III.
This is the part that enumerates the fundemental rights. An asterisk (*)
before an article number means that it is discussed further. Article 30,
because it is of some importance, is dealt with in a seperate article.

    12 Definition.
    13 Laws inconsitent with or in derogation of the fundemental rights.
    14 Equality before law.
(*) 15 Prohibition of discrimination on grounds of religion, race, caste,
       sex or place of birth.
    16 Equality of oppertunity in matters of public employment.
    17 Abolition of untouchability.
    18 Abolition of titles.
    19 Protection of rights.
    20 Protection in respect of conviction.
    21 Protection of life and personal liberty.
    22 Protection against arrest and detention in certain cases.
    23 Prohibition of traffic in human beings and forced labor.
    24 Prohibition of child labor.
(*) 25 Freedom of conscience and free profession, practice and propagation
       of religion.
(*) 26 Freedom to manage religious affairs.
(*) 27 Freedom from taxation for promotion of any particular religion.
(*) 28 Freedom from forced attendence at religious instruction/worship at
       certain educational institutions.
(*) 29 Protection of interests of minorities.
(#) 30 Rights of minorities to establish and administer educational
       institutions.
    31 Right to own propertiy.
    32 Remedies for enforcement of rights.
    33 Parlimentary power to restrict rights of active members of the
       armed forces.
    34 Restriction of rights in areas where martial law is in force.
    35 Legislation to effect the provisions of Part III.


After making some general remarks, I will give the text of each marked
article above, followed by remarks on that particular article.

Fundamental rights protect citizens against action by the State. "State" is
defined to mean any govermental body (union, state or local, legislature
or executive). In India, unlike in US, one apparently cannot appeal
alledged unconstitutional action by the Judiciary. Another gray area left
in my reference is discriminatory application of nondiscriminatory law:
For example, in US, if police pursue black suspects, but not white suspects,
then courts can intervene. This became standard only in the sixties and
statistical evidence is suffcient to start the action, but not sufficient
by itself as proof (except in blatant cases). I do not know what the Indian
courts say.

Another, very important point, is that there is no analog of the Ninth
Amendment to the US constitution. Indian Supreme Court has held that
>* only those rights that are explicitly listed are protected *<
Thus there is no right to establish parochial schools except as provided for
by Article 30.

Now to specific articles: capitalized words are what are called "weasel
words". These are words which leave a hole big enough to drive a truck
through.

-----------------------------------------------------------------------

Article 15: (1) The State shall not discriminate against any citizen on
grounds ONLY of religion, race, caste, sex, place of birth or any of them.

(2) No citizen shall, on grounds ONLY of religion, race, caste, sex, place
of birth or any of them, be subject to any disability, liability,
restriction or condition with regard to (a) access to shops, public
restaurants, hotels and places of public entertainment; or (b) the use of
wells, tanks, bathing ghats roads and places of public resort maintained
wholly or partly out of State funds or dedicated to the use of the
general public.

(3) Nothing in this article shall prevent the State from making any special
provisions for women and children.

(4) Nothing in this article or Clause (2) of Article 29 shall prevent the
State from making any special provisions for the advancement of any
socially and educationally backward classes of citizens or for the
Scheduled Castes and the Scheduled Tribes.

Comments: I have no idea of the role of the word "only" in clauses (1) and
(2). Apparently, if other considerations are present as well, the State
can discriminate. Why not remove those two "only"'s. This remark applies
to other articles also.

----------------------------

Article 25: (1) 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 to freely profess, practise and propagate
religion.

(2) Nothing in this article shall affect the operation of any existing law
or prevent the State from making any law (a) regulating or RESTRICTING
economic, financial, political or other secular activity which may be
associated with religious practice; or (b) providing for social welfare
and reform, or the throwing open of Hindu religious institutions of a
public character to all classes and sections of Hindus.

Explanation I: The wearing and carrying of kirpans shall be deemed to be
included in the profession of the Sikh religion.

Explanation II: In sub-clause (b) of clause (2), the reference to Hindus
shall be contrued as including a reference to persons prfession the Sikh
Jaina or Buddhist religion and the reference to Hindu religious institutions
shall be construed accordingly.

Comments: Is Explanation II of those things amended to exclude Sihks being
counted as Hindus? In any case, the purpose of clause (2.b) seems to be the
outlawing the exclusion of certain castes from temples. I am not sure as to
which religions practice this. Segregation has even happened in Jewish
temples of India during 19th century (Jews who migrated from the middle east
during the 19th century segregating themselves from cerntain other jews.)

Clause (2) uses the word "restricting". This is problematic: management of
publications, funds etc. can be affected if this clause is used
indiscrimately or mischievously.

Another big weasel word is "morality": Who determines what is "moral"?
This is always the flash-point in secular societies. Is failure to support
ex-wives immoral? Is a woman married to more than one man at the same time
immoral? (apparently this practive is still current in some
Nepalese/Tibetian groups). This comment apllies to other articles also.

-----------------------

Article 26: Subject to public order, MORALITY and health, every religious
denomination or section thereof shall have the right (a) to establish and
maintain institutions for religious and charitable purposes; (b) to manage
its own affairs in matters of religion; (c) to own and acquire movable and
immovable property; and (d) to administer such property in accordance with
the law.

Comments: The conflict between 26(b) and 25(2.b) is resolved as follows: The
right to enter a temple may not be restricted; but the right to carry out
the rituals may be restricted in accordance with the religious regulations.

Subclause (d), interpreted striclty, as was apparently done till 1961,
would mean this: Regulations or restrictions that apply to all charitable
organizations will apply to religious organizations also. Disposal of
surplus income by the heads of maths cannot to restricted except in so far
as such restrictions apply to "unethical divertion". Nor can the funds be
diverted by the State for purposes unconnected with the religious
instituion. The State may not take over the administration of the
properties of a math. I wonder how far these provisions are being carried
out today in places like West Bengal, Kerala or Tamil Nadu.

-----------------------

Article 27: No person shall be compelled to pay any taxes, the proceeds of
which are specifically appropriated in payment of expenses for the promotion
or maintenance of any particular religion or religious denomination.

Comments: None.

------------------------

Article 28: (1) No religious instruction shall be provided in any
educational instituion wholly maintained out of State funds.

(2) Nothing in clause (1) shall apply to an educational institution which
is administered by the State but has been established under any endowment or
trust which requires that religious instruction shall be imparted in such
institution.

(3) No person attending any educational institution recognised by the State
or receiving aid out of State funds shall be required to tale part in any
religious instruction that may be imparted in such institution or to
attend any religious worship that may be conducted in such institution or
in any premises attached thereto unless such person or, if such person is a
minor, his guardian has given his consent thereto.

Comments: There was a recent post that complained about prayers in some
goverment run schools in Andhra Pradesh. If the school is maintained soley
by State funds, that practice may be actionable by clause (1). However, it
is possible that the parents are unwilling to bring legal actions. This is
also the case with compulsory prayers in Christian schools/colleges for
females in Madurai (this was the case till 1977; but American college, a
men's college did not have compulsory prayer). This is actionable under
clause (3) but no parent was apparently willing to bring legal action.

On the other hand, if the school is being admistered by the State, but was
established by a private/religious trust, clause (2) applies. Thus the
singing of Subrabhatam (by selected personnel) at institutions maintained
by the Tirupati Devasthanam is protected by clause (2) (and by 26(b)?).
That AP goverment keeps its hands off is in keeping with the constitution.

It is strange that clause (1) syas just "religious instruction" and not
"religious instruction or religious worship", like clause (3) does. I
think that clause (1) should be amended to say "religious instruction or
worship" (instead of just "religious instruction").

There is another point that is perhaps peculiar to India: The Indian
goverment is secular, but is the successor to non-secular states, either
directly or through the British colonial goverment. As such, it very
probably has fiduciary responsibility to administer certain religious
institutions/trusts. Abrogating such responsibility, especially in the case
of Hindus, or taking over the assets, wholly or in part, of such
institutions will fuel the "religious war" going on in India. [A related
question: Do temples adminstered by the State have consitutions that are not
alterable by the State?]

In US, the situation is different: All religious institutions, with one
notable set of exceptions, were started by private bodies. As such they have
governing bodies and constitutions beyond the purview of the State. The
tension noted in the previous paragraph does not exist in US. [The exception
is the status and control of the "holy grounds" of Native Americans. This
story is not settled yet. But it shows what can go wrong when a secular body
administers religious property.]

--------------------------

Article 29: (1) Any section of the citizens residing in the territory of
India or any part thereof having a disticnt language, script or culture of
its own shall the right to conserve the same.

(2) No citizen shall be denied admission into any educational institution
maintained by the State or receiving aid out of State funds on the grounds
ONLY of religion, race, caste, language or any of them.

Comments: It seems to me that the spirit of clause (1) is being voilated in
various parts of India. According to the decision in State of Bombay vs.
Bombay Education Society (in 1955), articles 29(1) and 30(1) prevent the
State from prescribing the medium of instruction.

It is to be notd that clause (2) does not include "place of birth" or "sex".
The State is free to restrict admission on the basis of those two. This is
in contrast to the situation in US.

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-- 
Vidhyanath Rao			It is the man, not the method, that solves
nathrao+@osu.edu		the problem. - Henri Poincare
(614)-366-9341			[as paraphrased by E. T. Bell]
Newsgroups: soc.culture.indian