AD- Appellate Division
AIR- All India Report
BLD – Bangladesh Legal Digest
DLR.- Dhaka Law Reports
HCD- High Court Division
ICCPR- International Covenant on Civil and Political Rights
PLD- Pakistan Legal Decision
SC- Supreme Court
UDHR- Universal Declaration of Human Rights
UN- United Nation
List of Cases
Abdul Ghani v. Islamic Republic of Pakistan PLD 1958 Lah 584
Alver v. U.S., 245 US 366; davis v. Benson, 133 US 333
charanjit Lal v. Union of India AIR 1951 SC 41
commissioner H.R.E. v. Lakshmindra, AIR 1954 SC 282
Commissioner, H.R.E. Vs. L.T. Swammiar AIR 1954 SC 282
Durgah committee v. Syed Hussain Ali, AIR 1961 SC 1402
Dewanbagh Darbar Sharif vs Bangladesh 7 MLR (HC) 309
Digyadarson v. A.P.,AIR 1970 SC 181.
jibendra kishor v. East Pakistan 9 DLR(SC) 21
Jibendra Kishore v. the Province of East Pakistan PLD 1958 SC ( Pakistan)533
McGowan v. Maryland 366 US 420
Md. Hanif v. State of Bihar AIR 1958 SC 731
Naseem Mahmood v. Principle, King Edward Medical College PLD 1965 Lah 272
Rijoe Emmanual v. State of Kerala (1986) 3 SC 615.
RatiLal Panchand Vs. State of Bombay AIR 1954 SC 388
Ramani Kanti v. Guhate University AIR 1951 Assam 163
Sasankala v. Pakistan, 21 DLR 108
St. Xavier’s College v. State of Gujarat AIR 1974 SC 1389 page 14
Saifuddin Shhaheb v. State of Bombay AIR 1962 SC 853
West Verginia Board of Education v. Barnette (1943) 319 W.S. (624) (1943) U.S.L Ed 1628
Right to Religion under Bangladesh Constitution
The fundamental rights of the citizen are granted in the constitution of the people’s republic of Bangladesh. Right to freedom of religion is also a fundamental right of a citizen. Article 26 of the constitution made all existing laws inconsistent with the provisions of the fundamental rights void. Any person or citizen aggrieved as a result of an infringement of any fundamental right may seek remedy before the High Court Division of the Supreme Court under article 102(1) of the constitution. Article 102 of the constitution provides the means of enforcement of the fundamental rights granted by the constitution.
The right to freedom of religion is an important right of the citizens of every modern state. Article 41(1)(a) protects the citizen’s fundamental right freely to profess, practice, and propagate religion. The protection given to this right is not absolute. It is subject to law, public order and morality as article 41(1) itself denotes. The freedom enunciated in this article 41 is a personal freedom. It is a freedom which a person can claim for his personal exercise at will. The freedom guaranteed in this article is the right of man to entertain such religious views as appeal to his individual conscience without interference by any person or power, civil or ecclesiastical, is as fundamental in a free state as is the right life and liberty. Religion, in this article, includes all form of belief in the existence of superior beings exercising power over human beings by violation, and imposing rules of conduct, with regards in the present life as well as with future rewards and punishments in life hereafter. Budhism and Jainism are religions without belief in God. The religion under the constitution need not be theistic. Citizens irrespective of their religious beliefs are entitled to the right envisaged in this article. All shall enjoy equal constitutional guarantee<href=”#_ftn1″ name=”_ftnref1″ title=””>.
The language of article 41(1) is exactly the same as used in article.18 of the Pakistan constitution of 1956 and in the fundamental right no.10 of the Pakistan constitution of 1962. on the other hand, the language of article 41 is exactly similar to the language of clause(1) of the fundamental right no.12 of the Pakistan constitution of 1962. the guarantee provided by article 41(1) is not absolute. It provides that subject to law, public order and morality, (a) every citizen has the right to profess, practice or propagate any religion and, (b) every religious community or denomination has the right to establish, maintain and manage its religious institution. As the guarantee under article 41(1) is stated to be ‘subject to law’ one may argue that parliament has full plenary power even to take away this right. But such an argument was rightly rejected by the Pakistan supreme court in respect of article 18 of the Pakistan constitution of 1956.<href=”#_ftn2″ name=”_ftnref2″ title=””> the expression subject to law does not mean that the right to profess, practice and propagate can be taken away by law; it merely means that parliament may by law regulate the manner of professing, practicing and propagating religious beliefs and the working of religious institution like waqf and debuttar.<href=”#_ftn3″ name=”_ftnref3″ title=””> Regulation of the manner of professing, practicing and propagating religious belief, however, does not mean that there may be a law which would regulate the actual performance of religious rites; it means that if in the performance of the religious duties or rites certain secular steps have to be taken, then these steps may be regulated by law.<href=”#_ftn4″ name=”_ftnref4″ title=””> The right is not confined to religious belief, but extends to religious act and observance and the propagation of religion.<href=”#_ftn5″ name=”_ftnref5″ title=””>In order to constitute a violation of the right there must be some tangible interference with religious acts and observances. Where a micro-wave relay station on the government land established near a temple does not interfere with the pilgrims’ visit t the temple, the freedom of religion is not infringed.<href=”#_ftn6″ name=”_ftnref6″ title=””>
No religion prescribes that prayers or religious act shall be performed by disturbing the peace of others, nor does it preach that these shall be performed through voice amplifiers and hence a law to curb noise pollution by the use of voice amplifiers or loudspeakers can be vocative of the right under article 41. Article 41(2) provides an absolute guarantee which can neither be restricted nor taken away. It provides that no student in an educational institution shall be required to receive religious instruction or to take part in or attend any religious ceremony or worship other than those of his own religion.<href=”#_ftn7″ name=”_ftnref7″ title=””>
1.2 Research Methodology
I followed such type of methodology in my research paper.
1. Historical study.
2. Analytical study.
Historical study means discussion of the history. Analytical study means the analysis of the matter discussed. At the time of this research I have search in internet and explore web sites, and collect some books from Nilkhet and our library and worked on those books and I also have discussed a lot with my teachers, university senior brothers and friends.
1.3 Limitation of the Research
Every research has some limitations in true sense. The limitations reduced the scope of study of the research. The time of study of the research is limited. The time is not sufficient for the study of research. Our University Library has not sufficient book for study of the research.
1.4 Object of the Research Paper
The main object of the research paper is to aware people about right of their freedom of religion.
It help to discuss that what is the right to freedom of religion and what steps should be taken for protection of those right that there are national and international laws for protection of religious right.
In our country we see that the minority’s religious right is neglected by the majority people, and the minority people are not so much conscious about their right so this research tries to make them understood about the right.
People will understood by reading this research that minority people have some right and if those rights are violated then they will be punished according to law.
By this research people will know that what are the means of violation of religious right and how those means can be prevented.
By this research people will know that every people has the right to freedom of religion and any person may freely convert his religion.
By this research we will able to know that what is the remedy in case of violation of the right to freedom of religion of one person.
The Concept of Right to Religion
2.1 What is Religion?
Religion sometimes used interchangeable with faith, is commonly defined as belief concerning the supernatural, scared, or divine and the practice and institutions associated with such belief. In its broadest sense some have defined it as the sum total of answers given to explain humankind’s relationship with the universe. Religion takes an almost infinite number of forms in various culture and individuals, but is dominated by a number of major world religions.
A number of modern scholars of religion have commented on the difficulty of defining what religion is. Over the centuries, influential thinkers have offered their own definitions, with greater or lesser degrees of assurance, but virtually all of these definitions have been found wanting by the majority of scholars. In some cases the definitions are too narrow, defining religion in terms of the speaker’s religious beliefs or those of his or her culture and tending to exclude the religious beliefs of other cultures. In other cases the definitions are so vague and inclusive that they do not sufficiently delimit religion from other areas of human thought such as psychology, law, economics, physics, etc.
According the David V. Barrett
“A social construct encompassing beliefs and practices which enable people, individually and collectively, to make some sense of the Great Questions of life and death.”<href=”#_ftn8″ name=”_ftnref8″ title=””>
Nelkin defines religion as:
“a belief system that includes the idea of the existence of ‘an eternal principle … that has created the world, that governs it, that controls its destinies or that intervenes in the natural course of its history”.<href=”#_ftn9″ name=”_ftnref9″ title=””>
The term ‘religion’ has a reference to ones views of his religion with his Creator and to the obligation they impose of reverence of his being and character and of obedience to his will.<href=”#_ftn10″ name=”_ftnref10″ title=””> The freedom of religion embraces the concepts of freedom to believe and and freedom to act. Religious practices or performance of acts in pursuance of religious beliefs are as much part of a religion as faith and belief in particular doctrines.<href=”#_ftn11″ name=”_ftnref11″ title=””> The freedom also includes the right to hold no religious belief at all.<href=”#_ftn12″ name=”_ftnref12″ title=””>
In McGowan v. Maryland,<href=”#_ftn13″ name=”_ftnref13″ title=””> the court said that “the constitutional guarantee of freedom of religion includes freedom from religion, with the right to believe, speak, write, publish, and advocate anti religious programmes.”
2.2 Meaning of Constitution
The origin of the word “Constitution” is form Latin word “statuere” meaning ‘set up’. The prefix ‘con’ in front of statuere makes the words stronger.
Constitution forms the backbone of the public law which determines the nature of the state, division of powers among different organs of the state, there relationship to each other and also the relationship between the state and the individuals ( public law regulates and determines the relationship between the state and its subjects. If any party to a matter is the state, it is regulated by public law).<href=”#_ftn14″ name=”_ftnref14″ title=””>
Constitution is the supreme law of the land, containing the principles upon which the government is founded and regulating the divisions of the sovereign powers, directing to what persons each of these powers is to be confided and the manner it is to be exercised. State is the political organization which is administered by the group of person known as the government. When we say the government of a state, it means basically the executive, the legislative and the judiciary. But this government cannot run the state according to their whim and caprice. There has to be certain rules and principles on the basis and under the authority of which the government can run the state. This set of principle is called the Constitution.
According to the Black Law Dictionary,
“The fundamental and organic law of a nation or state that establishes the institution and system of government, defines the scope of governmental sovereign powers, and guarantees individual civil rights and civil liberties.”
According to Lord Bryce,
“Constitution is the aggregate of laws and customs under which the life of the state goes on.”
The constitution of the people’s republic of Bangladesh is a result of long epoch-making “struggle for national liberation” and a product of a historic War for national independence. After the successful end of the war all the members of the constituent Assembly of Bangladesh sitting in a session of the assembly set up “the constitution drafting committee” for the purpose of preparing a draft constitution and for submission of the draft to the constituent Assembly. While preparing the draft the members of the drafting committee examined many records, documents, judicial precedents and constitutional conventions. The draft constitution in the form of a Bill was ultimately adopted by the Constituent Assembly on the fourth November 1972, A.D.<href=”#_ftn15″ name=”_ftnref15″ title=””>
2.3 What is the Right
Right means a claim of some interest’s adversed by an individual or a group of individuals which has either moral or legal basis and which is essential for his development in the society. In a sense right is not created by law, it originates itself as an obvious result of mutual interaction between men and society. Right are primarily divided into two categories these are moral and legal rights. Moral right are those which have there basis on the rule of the natural justice and the violation of which results in moral wrong. On the other hand legal are those which are recognized by the positive law of the country and can be claimed on legal basis and the violation of which results in legal wrong. As mentioned earlier right originates in the society and remains as a moral right so long it is not recognized by law. Whenever a law recognizes it and secures its protection, its transforms into a legal right<href=”#_ftn16″ name=”_ftnref16″ title=””>.
2.4 What is Fundamental Rights
Fundamental right are those of human rights which get specialized treatment by being written down in the constitution or some other basic document.<href=”#_ftn17″ name=”_ftnref17″ title=””> A right is called fundamental because an ordinary right may be changed, amended, altered or repealed by the legislature in its ordinary process of law making or legislation but a fundamental right being guaranteed by the constitution cannot be changed, altered, or abridged or amended by any process except in the manner laid down in the constitution itself. All men have right of life, liberty and the pursuit of happiness and these right are unalienable and inherent. When these right are protected by constitutional guarantees, they are called fundamental rights. They have been placed beyond the reach of any organs of the state, whether executive or legislative to act in violation of them.<href=”#_ftn18″ name=”_ftnref18″ title=””>
In Jibendra Kishore v. the province of East Pakistan<href=”#_ftn19″ name=”_ftnref19″ title=””> the supreme court of Pakistan held that “the very conception of a fundamental right is that it being a right guaranteed by the constitution cannot be taken away by the law, and it is not only technically inartistic but a fraud on the citizens for the makers of the constitution to say that a right is a fundamental but that it may be taken away by the law.”
Part 3 of the constitution has accommodated individual as well as collective rights of the citizens of Bangladesh. A total of 18 rights have been enlisted and guaranteed. Some of these are absolute and subject to no restriction. Some of them are qualified and the state may impose reasonable restriction on them for the sack of public policy, public health, public morality, public interest, etc. fundamental rights, if granted without any qualification or limitation, may be harmful as absolutely free exercise of such rights by one may destructive of similar rights of others and such fundamental rights would be a hindrance to governmental measures for the welfare of the community.<href=”#_ftn20″ name=”_ftnref20″ title=””> The fundamental rights have got a highly emphasized importance in the constitution of the Bangladesh. Article 26(1) ensures that no law existing in Bangladesh on the date of the commencement of the constitution shall be allowed to remain in force if it is found to be inconsistent with any of the fundamental rights mentioned in the constitution. Article 26(2) enjoys upon the state the duty not to legislate in violation of any of the fundamental rights. There is, however, the scope of reasonable restriction which may be imposed reasonably under the constitution. If any law is made in contravention of the fundamental rights, that law shall be void to the extent of inconsistency. Article 26(3) makes it clear that though parliament cannot make laws inconsistent with the fundamental rights, it should not necessarily mean that the parliament cannot alter, abolish or include one or more fundamental rights by amending the constitution itself. That is why it is provided that the restriction put in clause (1) and clause (2) shall not limit the Parliament’s power of amending the constitution under Article 142.<href=”#_ftn21″ name=”_ftnref21″ title=””>
2.5 Enforcement of Fundamental Right
Article 44 of the constitution guarantees the right to move the High Court Division in accordance with clause (1) of Article 102 for the enforcement of the fundamental rights. Under clause 1 of Article 102 the High Court Division may issue directive or order against any person or authority including any person performing any function in connection with the affairs of the Republic for the enforcement of the fundamental rights guaranteed in part 3 of the Constitution. As an additional benefit, a citizen is entitled to the benefit of writ<href=”#_ftn22″ name=”_ftnref22″ title=””> jurisdiction under Article 102(2) of the Constitution which may or may not involve a claim of fundamental rights. Here the High Court Division exercises its power of judicial review, if there is a violation of any relevant provision of the constitution.<href=”#_ftn23″ name=”_ftnref23″ title=””>
In charanjit Lal v. Union of India,<href=”#_ftn24″ name=”_ftnref24″ title=””> the court held that Article 44 aims at enforcement of fundamental rights guaranteed by the Constitution, no matter whether the necessity of such enforcement arises out of an action of the executive or the legislature.
In matters of enforcement of fundamental rights the person aggrieved has to apply and it is the obligation of the High Court Division to adjudicate upon and enforce fundamental rights. The only limitations placed by the Constitution if the High Court Division cannot suo motu declare any law or action violative of fundamental right. Parliament may provide for any other court to exercise the enforcement of fundamental rights. As per article 152 ‘court’ means ‘court of law’ and it does no include a Tribunal. Hence, in addition to the High Court Division Parliament is authorized by the Constitution to set up any other court, not Tribunal, for the enforcement of fundamental rights. The expression “without prejudice to the power of the High Court Division” shows that any such court cannot be granted exclusive jurisdiction, nor can finality be attached to the decision of such court.<href=”#_ftn25″ name=”_ftnref25″ title=””>
Constitutional provisions as to Right to Religion
3.1 Present Status of Right to Religion under Bangladesh Constitution
Article 41 of the constitution of the People’s Republic of Bangladesh confers the right to freedom of religion.
Article 41, runs as follows:-
(1) subject to law, public order and morality-
(a) every citizen has the right to profess, practice or propagate any religion;
(b) Every religious community or denomination has the right to establish, maintain and manage its religious institutions.
(2) No person attending any educational institution shall be required to receive religious instruction, or to take part in or to attend any religious ceremony or worship, if that instruction, ceremony or worship relates to a religion other than his own.
Article 41(1)(a) confers on citizens the right to profess, practice and propagate their religion.
The term “to profess religion” means the right to declare freely and openly one’s faith. A person may freely practice his religion. It has been held by the supreme court of India in ratilal v. state of Bombay<href=”#_ftn26″ name=”_ftnref26″ title=””> that religious practices of performances or acts in pursuance of religious belief are such a part of religion as faith or belief in particular doctrines. Thus a person has a right to practice his belief by practical expression in any manner he likes.<href=”#_ftn27″ name=”_ftnref27″ title=””>
No one can be compelled to salute the national flag against his religious belief and practice.<href=”#_ftn28″ name=”_ftnref28″ title=””>
The right to propagate one’s religion means the right to communicate his belief to another person or to expose the tenets of that faith, but would not include the right to ‘convert’ another person to his faith.<href=”#_ftn29″ name=”_ftnref29″ title=””> But a person is free to change his religion and free to adopt another religion in the free exercise of his conscience.<href=”#_ftn30″ name=”_ftnref30″ title=””> The right to propagate religion has to be exercised subject to the requirements of public order and safety. This Article does not protect any wrong practice in the name of religion, acts which are offences under the law.<href=”#_ftn31″ name=”_ftnref31″ title=””> While the legislature may not interfere with mere profession or belief, law may step in when profession breaks out into open practice inviting breach of the peace or when belief, whether in publicly practicing a religion or running a religious institution, leads to overt acts against public order.<href=”#_ftn32″ name=”_ftnref32″ title=””> The right under Article 41(1) is subject to law, but the state may not regulate religious practices unless those run counter to public order or morality or are economic, commercial or political activities associated with religious practices.<href=”#_ftn33″ name=”_ftnref33″ title=””> Hence it is necessary to consider whether the practices are essentially of a religious character or not. Whether a particular religious practice is really an essential or integral part of a religion is to be decided by the Court and the opinion of the leaders of the religious denomination is not final.<href=”#_ftn34″ name=”_ftnref34″ title=””> Without violating the Constitutional guarantee, the state may enact laws to promote general welfare, public convenience and comfort.<href=”#_ftn35″ name=”_ftnref35″ title=””>
Freedom of religion cannot be used as a protection against acts inimical to the public order and morality. Accordingly this Article begins with the declaration that the religious freedom shall be subject to law, public order and morality.<href=”#_ftn36″ name=”_ftnref36″ title=””>
Religious freedom does not include conduct which offends public morals.
In the national Anthem case<href=”#_ftn37″ name=”_ftnref37″ title=””> the Supreme Court of India has held that no person can be compelled to sing the national anthem “if he has genuine conscientious religious objection.” The case was that three children belonging to the “Jehova’s witnesses” of the Christian community were expelled from the school for refusing to sing the national Anthem. They challenged the validity of the order of their expulsion on the ground that it was violated of their fundamental Right under Article 25(1) of the constitution of India which is very much similar to the Article 41 of the Bangladesh Constitution. A circular issued by the Director of Public Instruction has made it compulsory for all children in schools to sign the National Anthem. The three boys did not sign National Anthem. They refused to sign the National Anthem on the ground that it was against the tents of their religious faith which did not permit them to join in any rituals except prayer to Jehova, their God.
The Kerala high court held that it was their Fundamental duty under the constitution to sign the National Anthem. The Head Mistress of the High school was within her right not to permit them to attend the class until they gave in writing that they will participate in the singing of the National Anthem in the school.
The Kerala High Court held that it was their fundamental duty under the constitution to sign the National Anthem. The Head Mistress of the school was within her right to permit them to attend the class until they gave in writing that they will participate in the signing of the National Anthem in the school.
On Appeal, a two judge bench of the supreme court of India reversed the High Court decision and held that there is no legal obligation in India for a citizen to sing the National Anthem. The court directed the authorities to readmit the three children in the school and to allow them to pursue their duty.
In durghah Committee v. Hussain Ali,<href=”#_ftn38″ name=”_ftnref38″ title=””> the court held that, what constitutes as an essential part of religion or religious practices has to be decided by the court with reference to a doctrine of particular religion and include practices which are regarded by the community as a part of his religion.
Every religious denomination or organizations enjoy complete freedom in the matters of deciding what rites and ceremonies are essential according to the tents of the religion they hold. If there is dispute or conflict5 the court is called upon to determine whether a particular rites or ceremony is regarded as essential by the tents of a particular religion.
In Saifuddin Shhaheb v. state of Bombay.<href=”#_ftn39″ name=”_ftnref39″ title=””> The petitioner, who was the Head of the Dewoodi bohra Community, challenged the constitutionality of the Bombay prevention of Ex-communication Act,1949, on the ground that the provision of the Act infringed his rights guaranteed in Article 25 and 26 of the constitution of India. The petitioner claimed that as the Head of the Dawoodi Bohra community he had the right to ex-communicate a member and this power was an integral part of the religious faith and belief of the Dawoodi Bohra Community. The Supreme Court of India struck down the impugned provision as violative of Articles 25 and 26 of the constitution of India. The position of the “Dia-ul-Mutlaq” is an essential party of the creed of the Dawoodi Bohra sect.
The Legislature of Bihar<href=”#_ftn40″ name=”_ftnref40″ title=””>. Uttar Pradesh and madhyo prades passed certain laws banning the slaughter of certain animals including cows. Some mussalmans challenged the validity of the laws under Art. 25(1) of the constitution of India. The Supreme Court of India held that the provisions was not violated as there was no material to substitantiate the claim that the sacrifice of a cow on a ‘bakr Idd’ day was enjoined or sanctioned by Islam to exhibit a Mussalman’s religious belief.
In 1958 objection was raised regarding the system of drawing lost by which candidates for Hajj were selected out of total number of applicants on the plea that the Article 18 of the 1962 Constitution of Pakistan the religious practice as a Fundamental Right. It is true that the performance of hajj at least once in a life time is an essential religious practice for an able and solvent Muslim and if Hajj were possible with the mere grant of a passport there would be little or no difficulty. But the intending candidate for pilgrimage needs foreign exchange, accommodation in plane or ship for the journey. It is not possible for the Government to arrange facilities for limitless number of candidates for Hajj pilgrimages in a particular year. In its refusal to secure foreign exchange or arrange for shipping the government is not obstructing the practice of religion. Considering the world position, the law regulating foreign exchange is a necessity. The system of drawing lots by which candidates are selected is not bad in law. The government was merely cutting its coat according to the cloth it possesses.<href=”#_ftn41″ name=”_ftnref41″ title=””>
Article 41 (1)(b) ; every religious community or denomination has the Right to establish, maintain and manage its religious institutions. It is clear that this Article ensures freedom to manage religious affairs, to every religious community or denomination or any section thereof. So long as a religious community or denomination is managing its own affairs in matters of religion the legislature cannot interfere unless the denomination is managing its affairs in such a way as to interfere with public order and morality.
Clause (1)(b) in this Article provides that every religious community or denomination has the right to establish maintain and manage its religious institutions.
‘Denomination’ means a collection of individuals classed together under the same name, especially a religious sect or body having a common faith and organization and distinguished by a distinctive name. for instance in a large sense, “Hinduism” is a denomination in contradistinction to Christianity and Islam. In limited sense, the various philosophies governing the Muslim society or Hindu society e.g. Shias and Sunnis among Muslims, Advaitas,Dwaitas and etc, can also be termed as denomination. The expression religious denomination was discussed and considered in the case of Muhammad mehdi Ali khan v. Province of East Pakistan, Waks-al-aulad is a Muslim religious trust for the benefit of the creator of the trust or his lineal descendants in the firtst instance, with an ultimate dedication to God to be applied for charitable purposes. Mr. justice Akbar agreed that the wakf-al-aulad is a religious institution but the thought that in order to qualify for protection under Article 18(b) of 1956 constitution of Pakistan. It was also necessary that such an institution should be one in which a religious denomination has an interest, using the expression denomination in the sense of religious sect or body having a common faith and organization and designated by a distinctive name. in the opinion of the learned judge a Wakf alal-aulad being a dedication substantially for the benefit of a Wakf’s family must be treated as a dedication for the benefit of individual, and could not be regarded as a dedication for public purpose. Mr. Justice Imam Hussain Chaowdhury differed and said that the expression “religious denomination” is of general nature for a class of individuals such as Christian, Muslim, etc. which means every individuals Christian as well as the Christian community. The learned judge proceeded to say, “in clause (a) of the Article, the right to profess, practice, propagate any religion is given to every citizen. Can it be imagined that such a right in respect of establishment, management and maintenance of a religious institution which forms part of a religion, is denied to a citizen?”
A difference arose. The matter was referred to Mr.Justice Ispahani who was of the view that every religious denomination and every sect thereof includes also individuals as well as religious denomination and every sect thereof have the right to establish, maintain and manage its religious institutions.
On appeal the Supreme Court of Pakistan allowed the appeal on the other points.<href=”#_ftn42″ name=”_ftnref42″ title=””>
Mr. Justice Cornnelins, as he then was, in a dissenting note referred to the decision in the case of Abdul Ghani v. Islamic Republic of Pakistan <href=”#_ftn43″ name=”_ftnref43″ title=””> and observed, in so far as I was associated with the determination of that case, I was perfectly clear in my mind that I was holding that Wakf and Wakf-al-aulad were religious institutions and consequently were entitled to be protected against any action by the executive, whether under statute or otherwise which would have the effect of interference with the basic existence of these institutions, according to law under which they were founded and administered. The learned Judge held that it would not be easy to escape the conclusion that the protection given in Article 18(b) extends to all religious institutions and that reference to denominations and sects is made in order to apply a rule of universality, as if the words had been the right to established, maintain and manage religious institutions is guaranteed, whatever be the religious denomination or sect to which they appertain.
The word religious denomination in Article 41 of our Constitution must take their colure from the word ‘religion’.
The expression ‘religious institution’ refers to organizations for religious purposes, such as mosques, churches, synagogues, temples, pagodas, monasteries and the like.
According to Article 41(2) no person attending any educational institutions is required to receive religious institution, or to take part in or to attend any religious ceremony or worship, if that instruction, ceremony or worship relates to a religion other than his own.
The decisions of U.S.A Supreme Court have greatly influenced the framers of Bangladesh Constitution while they were writing this Article. The Supreme Court of U.S.A by majority, ruled “the Constitution’s prohibition against laws respecting an establishment of religion must at least mean that in this country it is no part of the business of government to compose official prayer4 for any group of the American people to recite as part of a religious program carried on by government.”
The first Amendment was not written to destroy religion, but to protect religion against Government. It is neither sacrilegious nor antireligious to say that each separate Government in this country should stay out of business of writing or sanctioning official prayers and leave that purely religious function to the people themselves and those the people choose to took to for religious guidance.
The People’s Republic of Bangladesh is not a irreligious or atheistic state. “pleading that high ideals of absolute trust and faith in the Almighty Allah, nationalism, democracy and socialism shall be fundamental principles of the constitution” the second paragraph in the preamble and the Article 2A of our constitution reads “the State religion of the Republic is Islam but other religion of the republic may be practised in peace and harmony in the Republic.” Having the above expressions and provisions in the constitution we can legitimately say that in matters of religion the Republic is neutral and the government is neutral
The 42nd Amendment of the India Constitution inserted the word ‘secular’ in the preamble. This Amendment was intended to spell out clearly the concept of secularism in the Constitution of India. Secularism is not pro-God. It eliminates God from the matters of the state but Indian Constitution envisages that no one shall be discriminated against on the ground of religion.<href=”#_ftn44″ name=”_ftnref44″ title=””>
According to Article 28(1) of Indian Constitution no religious lesions shall be imparted in any educational institution wholly maintained out of the state funds. But this clause shall not apply to an educational institution which is administered by the state but has been established under any endowment which requires that religious instruction shall be given in such institution. Under Clause (3) of Article 28 of Indian Constitution no person attending any educational institution recogniosed by the State or receiving aid out of the state funds shall be required to take part in religious instruction that may be imparted in such institution or to attend any religious worship that may be conducted in such institution or to any premises attached thereto unless such a person or if such person is a minor his guardian has given consent thereto.<href=”#_ftn45″ name=”_ftnref45″ title=””>
Article 27 and 28 of the Indian Constitution are qualified by the words “educational institution” maintained out of state funds, “administered by the State” and recognized by the state etc. But Article 22(1) of Pakistan Constitution 1973 and Article 41(2) are not qualified with by any words. Article 41(2) is positive and categorical. No person attending any educational institution is required to receive religious instruction or to take part in any religious ceremony or attend any religious worship relating to religion other than his own.
In view of this provision admission in Madrashas is automatically restricted to Muslim students to the exclusion of students belonging to non-Muslim communities. But if an educational institution receives an aid from public revenues, it cannot refuse admission to a student merely on the ground of his race, religion, caste or place of birth. It may, however, regulate the admission on the ground of other factors, e.g. merit or residence.<href=”#_ftn46″ name=”_ftnref46″ title=””>
Regulation relating to sanitation, competence of teachers and financial position of the institution cannot be treated as a denial of the right to maintain institution.<href=”#_ftn47″ name=”_ftnref47″ title=””>
Freedom of Religion in Different International Instrument
4.1 Freedom of Religion in UDHR
The 1948 UN Universal Declaration of Human Rights in its Article 18 states “Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance.
The right to change one’s religion or belief is accorded the status of a non-derogable right — a right that is protected unconditionally and is, at no time, subject to government regulation. The special measure of protection accorded to this right reflects its place in safeguarding the dignity of the human being. Indeed, the individual’s search for truth and meaning is an activity most intimately linked with the human conscience and with the desire to see the world through one’s own eyes and to understand it through one’s own faculties of perception and intelligence. As such, it is inextricably linked with all facets of human development.<href=”#_ftn48″ name=”_ftnref48″ title=””>
4.2 Freedom of Religion in ICCPR
The 1966 UN International Covenant on Civil and Political Rights not only repeats in its Article 18 the same provision as that of the Declaration but also explains the right further. In Article 18(2) of the Covenant, it provides that “No one shall be subject to coercion which would impair his freedom to have or to adopt a religion or belief of his choice.” Here the word “coercion” is significant. The dictionary meaning of “coercion” is act of compelling or restraining by force without regard to individual wishes or desires. This implies that no amount of threat or force is to be applied in restraining an individual to practise his/her religion. It is noted that the Covenant on Civil and Political Rights provides for immediate protection by requiring States to “respect and ensure all individuals within its territory” (Article 2 of the Covenant).<href=”#_ftn49″ name=”_ftnref49″ title=””>
Under Article 18 of ICCPR guaranted the following thing:-
1. Everyone shall have the right to freedom of thought, conscience and religion. This right shall include freedom to have or adopt a religion or belief of his choice, and freedom, either individually or in community with others and in public or private, to manifest his religion or belief in worship, observance, practice and teaching.
2. No one shall be subject to coercion which shall impair his freedom to have or adopt a religion of his belief or choice.
3. Freedom to manifest one’s religion or beliefs may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others.
4. The States Parties to the present Covenant undertake to have respect for the liberty of parents and, when applicable, legal guardians to ensure the religious and moral education of their children in conformity with their own convictions.
· advocacy of religious hatred which amounts to incitement to discrimination, hostility or violence must be prohibited by law (ICCPR article 20)
· everyone is entitled to equality before the law and equal protection of the law without discrimination on the ground of religion among other grounds (ICCPR article 26) and
· minority groups are entitled to profess and practice their own religion (ICCPR article 27).
4.3 Freedom of Religion in UN Declaration on Religion
The UN General Assembly on 25 November 1981 adopted a Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief. The Declaration in its preamble, among others, emphasizes that “Religion or belief, for anyone who professes either, is one of the fundamental elements in his conception of life and that freedom of religion or belief should be fully respected and guaranteed.
In Article 2(2) of the UN Declaration it provides that “No one shall be subject to coercion which would impair his freedom to have a religion or belief of his choice.
Freedom of Religion in Different religion
5.1 Freedom of Religion in Islam
The essential question before us is can a person who is Muslim choose a religion other than Islam? The answer is yes, they can, because the Quran says, “Unto you your religion, and unto me my religio and, “Whosoever will, let him believe, and whosoever will, let him disbelieve,” [Quran, 18:29], and, “There is no compulsion in religion. The right direction is distinct from error,” [Quran, These verses from the Quran discuss a freedom that God affords all people. But from a religious perspective, the act of abandoning one’s religion is a sin punishable by God on the Day of Judgment. If the case in question is one of merely rejecting faith, then there is no worldly punishment. If, however, the crime of undermining the foundations of the society is added to the sin of apostasy, then the case must be referred to a judicial system whose role is to protect the integrity of the society. Otherwise, the matter is left until the Day of Judgment, and it is not to be dealt with in the life of this world. It is an issue of conscience, and it is between the individual and God. In the life of this world, “There is no compulsion in religion,” in the life of this world, “Unto you your religion and unto me my religion,” and in the life of this world, “He who wills believes and he who wills disbelieves,” while bearing in mind that God will punish this sin on the Day of Judgment, unless it is combined with an attempt to undermine the stability of the society, in which case it is the society that holds them to account, not Islam.<href=”#_ftn50″ name=”_ftnref50″ title=””> All religions have doctrinal points that define what it is to be an adherent of that religion. These are divine injunctions that form the basis of every religion, but they are not a means for imposing a certain system of belief on others by force. According to Islam, it is not permitted for Muslims to reject their faith, so if a Muslim were to leave Islam and adopt another religion, they would thereby be committing a sin in the eyes of Islam. Religious belief and practice is a personal matter, and society only intervenes when that personal matter becomes public and threatens the well-being of its members.<href=”#_ftn51″ name=”_ftnref51″ title=””> After conquer the Egypt Khalifha Omar (Rm.) preserve all the movable and immovable property which is dedicated to the Christian Church. In time of Osman (Rm.), a Christian Priest said that Allah gave all the power to the Arabian ruler, and they were not try to destroy the Christian religion but they were try to help us.<href=”#_ftn52″ name=”_ftnref52″ title=””>
5.2 Freedom of Religion in Hinduism
A Hindu may change his or her sectarian views as one wish, and formally enter one sect or another without need for excommunication or a declaration of apostasy. The concept of apostasy is not existent in Hinduism. The reason there is no such thing as apostasy in Hinduism is because of the belief that there is One Supreme God who is the God of all religions. Despite what people of other religions think, Hindus belief that we are all praying to the same God, Who appears in different forms. Therefore, even if one gives up Hindu practices and enters another religion, say Christianity; it does not mean that that person is ‘leaving’ God. He is still considered faithful to God, but simply worshipping and believing in God in a way more intune with his or her nature. In Hinduism religion and the belief in God is a personal matter. It is left up to the individual to cultivate his or her closeness to God. There is no compulsion to either force or regulate belief. There is also no formality involved in getting out of any Hindu sect. There is however formality in getting into Hinduism, however this is mainly of cultural significance more than spiritual. There is no such formal punishment for leaving Hinduism.<href=”#_ftn53″ name=”_ftnref53″ title=””>
5.3 Freedom of Religion in Christianity
The Catholic Church affirmed religious freedom for all in the Second Vatican Council Declaration Dignitatis Humanae. This was itself inspired by the work of the Jesuit theologian John Courtney Murray. Some Orthodox Christians, especially those living in democratic countries, support religious freedom for all, as evidenced by the position of the Ecumenical Patriarchate. Many Protestant Christian churches, including some Baptists, Churches of Christ, Seventh-day Adventist Church and main line churches have a commitment to religious freedoms. The Church of Jesus Christ of Latter-Day Saints (Latter-Day Saints) also affirms religious freedom. However others, such as African scholar Makau Mutua, have argued that Christian insistence on the propagation of their faith to native cultures as an element of religious freedom has resulted in a corresponding denial of religious freedom to native traditions and led to their destruction. As he states in the book produced by the Oslo Coalition on Freedom of Religion or Belief “Imperial religions have necessarily violated individual conscience and the communal expressions of Africans and their communities by subverting African religions.” Joel Spring writes about the Christianization of the Roman Empire, “Christianity added a new impetus to the expansion of empire. Increasing the arrogance of the imperial project, Christians insisted that the Gospels of the Church were the only valid source of religious beliefs. By the 5th century, Christianity was thought of as co-extensive with the Imperium Romanum. This meant that to be human, as opposed to being a natural slave, was to be “civilized” and Christian.<href=”#_ftn54″ name=”_ftnref54″ title=””>
Freedom of Religion in different south Asian Country
6.1 Freedom of Religion in India
The right to freedom of religion allows Indian citizens to choose any religion that he / she wants to choose. This fundamental right was chosen after lot of thought regarding the process of person choosing his / her own religion. This fundamental right is described in the constitution as, The right to freedom of religion is a fundamental right guaranteed under Article 25 of the Constitution of India.
Article 25 reads as follows:-
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 freely to profess, practise and propagate religion.
Article 25. (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 any economic financial political or other secular activity which may be associated with religious practice;
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.
This Article guarantees that every person in India shall have the freedom of conscience and shall have the right to profess, practice and propagate religion, subject to the restrictions that may be imposed by the State on the following grounds, namely:-
(1) Public order, morality and health;
(2) Other provisions of the Constitution;
(3) Regulation of non-religious activity associated with religious practise;
(4) Social welfare and reform;
(5) Throwing open of Hindu religious institutions of a public character to all classes of Hindus.<href=”#_ftn55″ name=”_ftnref55″ title=””>
The objective of this right is to sustain the principle of secularism in India. According to the Constitution, all religions are equal before the State and no religion shall be given preference over the other. Citizens are free to preach, practice and propagate any religion of their choice.
Religious communities can set up charitable institutions of their own. However, activities in such institutions which are not religious are performed according to the laws laid down by the government. Establishing a charitable institution can also be restricted in the interest of public order, morality and health. No person shall be compelled to pay taxes for the promotion of a particular religion. A State run institution cannot impart education that is pro-religion. Also, nothing in this article shall affect the operation of any existing law or prevent the State from making any further law regulating or restricting any economic, financial, political or other secular activity which may be associated with religious practice, or providing for social welfare and reform.<href=”#_ftn56″ name=”_ftnref56″ title=””> .
The Constitution of India, being the supreme law of the nation recognizes the religious liberty of both the individuals as well as associations of individual united by common beliefs, practices and discipline. The individual and collective aspects of freedom of religion can be summarized in this order:
6.1.1 Individual Freedom of Religion in India
The Constitution of India recognizes the freedom to profess, practice and propagate the religion under Article 25. Part (1) of Article 25 secures to every freedom of conscience: and the right to (i) profess religion; (ii) practice religion; and (iii) propagate religion. The term ‘religion’ has not defined in the constitution but the meaning given by the Supreme Court of India to the religion can be referred here, the Supreme Court in Commissioner, H.R.E. Vs. L.T. Swammiar<href=”#_ftn57″ name=”_ftnref57″ title=””> held:
Religion is a matter of faith with individuals or communities and it is not necessarily theistic. A religion has its basis in a system of beliefs or doctrines, which are regarded by those who profess that religion as conducive to their spiritual well being. A religion may not only lay down a code of ethnical rules for its followers to accept, it might prescribe rituals and observances, ceremonies and modes of worship, which are regarded as integral parts of religion and these forms and observance might extend even to matters of food and dress.
The freedom of religion guaranteed under Indian constitution is not confined to its citizens but extends to ‘all persons including aliens.’ This point was underlined by the Supreme Court in RatiLal Panchand Vs. State of Bombay<href=”#_ftn58″ name=”_ftnref58″ title=””> as it is very important because substantial number of foreign Christian missionaries in India were engaged at that time in propagating their faith among the adherents of other religions.
The Constitution thus declares that every person has a fundamental right not only to hold whatever religious belief commend themselves to his judgment, but also to express his beliefs in such overt acts, as are prescribed by his religion and propagate its tenets among others. The exercise of this right is, however subject to ‘public order, morality and public health.’ Here the constitution succinctly expresses the limitations on religious liberty that has been evolved by judicial pronouncements in the United States and Australia. In fact, the framers of the Indian constitution attempted to establish a delicate balance between ‘essential interference and impartial interference’ on the part of the state. They kept in consideration the possibilities of arising out of circumstances in which the government may have to impose restraints on the freedoms of individuals in collective interests.
Accordingly Article 25 (2) provides broad sweeping power of interference to the state in religious matters. This Article imposes drastic limitations on the rights guaranteed under Article 25(1) and reflects the peculiar needs of Indian society. It is important to mention here that law providing for the very extensive supervision by the state about temple administration has been enacted by virtue of this provision. Here it would not be out place to state that the extensive modification Hindu personal law (marriage, divorce, adoption, succession etc.) has been effected by legislation based on the provision permitting measures of social welfare and social reform. There is an interesting case on the validity of the Bombay Prevention of Hindu Bigamous Marriages Act of 1946, where the validity was upheld by the Bombay High Court. Chief Justice Chagla (Muslim, later appointed as Indian Ambassador to US) delivered his judgment as follows: it is only with very considerable hesitation that I would like to speak bout Hindu religion, but it is rather difficult to accept the proposition that polygamy is an integral part of Hindu religion. It is perfectly true that Hindu religion recognizes the necessity of a son for religious efficacy and spiritual salvation. That same religion also recognizes the institution of adoption. Therefore the Hindu religion provides for the continuation of the line of a Hindu male within the framework of monogamy.
The learned judge went on to argue, that even assuming that polygamy is a recognized institution according to Hindu religious practice, the right of the state to enact this legislation could not be disputed. The enforcement of monogamy among Hindu is a measure of social reform which the state is empowered to legislate by Article 25 (2) (b) ‘notwithstanding the fact that it may interfere with the right of a citizen freely to profess, practice and propagate religion.
The same constitutional provision permits legislation opening Hindu religious institutions of a public character to all classes and sections of India. Harijan temple entry laws have been enacted by many of the state legislatures. The Central Untouchability (Offences) Act of 1955 provides that any attempt to prevent Harijans from exercising their right to enter the temple is punishable with imprisonment or fine or with both. Therefore it must be clear that a secular civil law is equally applicable to all Indian citizens.
6.1.2 Collective Freedom of Religion in India
Religious denominations as well as individuals have certain important rights spelt out under Article 26. The term ‘religious denomination’ has not been defined under the Constitution. The Hon’ble Supreme Court has accepted the definition given in Oxford Dictionary, that defines as ‘a collection of individuals classed together under the same name a religious sect of body having a common faith and organization and designated by a distinctive name.’
The right under Article 26(a) is a group right and is available to every religious denomination. Clause (b) of Article 26 guarantees to every religious denomination the right to manage its own affairs in matters of religion. The expression ‘matters of religion’ includes ‘religious practices, rites and ceremonies essential for the practicing of religion.’ An important case that involved the right of a religious denomination to manage its own affairs in matters of religion was Venkataramana Devaru Vs. Stae of Mysore <href=”#_ftn59″ name=”_ftnref59″ title=””>. In this case, Venkatramana temple was belonging to the Gowda Saraswath Brahman Community. The Madras Temple Entry Authorization Act, supported by Article 25(2)(b) of the Constitution, threw open all Hindu public temples in the state to Harijans. The trustees of this denominational temple refused admission to Harijans on the ground that the caste of the prospective worshipper was a relevant matter of religion according to scriptural authority, and that under Article 26(b) of the Constitution they had the right to manage their own affairs in matters of religion. The Supreme Court admitted that this was a matter of religion, but when it faces conflict with Article 25(2) (b), it approved a compromise arrangement heavily weighted in favour of rights of Harijans and a token concession to the right of a religious denomination to exercise internal autonomy.
Further Article 26© and (d) recognize the right of a religious denomination to own, acquire and administer movable and immovable property in accordance with law. However it was held in Surya Pal Singh Vs. State of U.P<href=”#_ftn60″ name=”_ftnref60″ title=””>. that this guarantee did not imply that such property was not liable to compulsory acquisition under the U.P. Abolition of Zamindari Act. Similarly in Orissa, land reforms resulted in the expropriation of a village and surrounding agricultural land dedicated to the maintenance of a Hindu deity. Since compensation was paid, the High Court held that there was only a change in the form of the property.<href=”#_ftn61″ name=”_ftnref61″ title=””>
Article 30 deals with another aspect of collective freedom of religion:
“(1) All minorities, whether based on religion or language, shall have the right to establish and administer educational institutions of their choice.
(2) The state shall not, in granting aid to educational institutions, discriminate against any educational institution on the ground that it is under the management of a minority, whether based on religion or language.”
The object behind Article 29 & 30 is the recognition and preservation of the different types of people, with diverse languages and different beliefs, which constitute the essence of secularism in India.
6.2 Freedom of Religion in Pakistan
The main Article for freedom of religion in the Constitution of Islamic Republic of Pakistan is Article 20.
Article 20 runs as follows-
Freedom of profess religion and to manage religious institution
Subject law, public order and morality-
(a) Every citizen shall have the right to profess, practice and propagate his religion; and
(b) Every religious denomination and every seat thereof shall have the right to establish, maintain and manage its religious institution.
A person may freely practice his religion. A person has a right to practice his belief by practical expression in any manner he likes. No one can be compelled to salute the national flag against his religious belief and practice. a person has a right to practice his belief by practical expression in any manner he likes.
Freedom of religion in Pakistan has come into conflict with sharia law. Pakistan came into existence in 1947, and has subsequently become an Islamic republic. It is estimated that 95% of Pakistanis are Muslims (75% Sunni and 20% Shia), while the remaining 5% of the population are mainly Ahmadi Muslims, Christians and Hindus. Though The original Constitution of Pakistan did not discriminate between Muslims and non-Muslims. However, the amendments made during Zia-ul-Haq’s Islamization led to the controversial <href=”#Hudood_Ordinance” title=”Zia-ul-Haq’s Islamization”>Hudood Ordinance and Shariat Court. Later, Nawaz Sharif‘s government tried to enforce a Shariat Bill, passed in May 1991. After the incident of 9/11, Pervez Musharraf government took steps to curtail the religious intolerance among different factions of Islam and non-Muslims. The Pakistani government does not restrict religious publishing per se. However, it restricts the right to freedom of speech with regard to religion. Speaking in opposition to Islam and publishing an attack on Islam or its Prophet are prohibited. Pakistan’s penal code mandates the death penalty for anyone defiling the name of Muhammad, whom Muslims view as a prophet. This penal code mandates life imprisonment for desecrating the Koran, and up to 10 years’ imprisonment for insulting another’s religious