good legal perspective from sai deepak
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From: S G Naravane
From: S G Naravane
So which part of the Constitution is one supposed to look into to understand the rights and freedoms available to Hindus.
Over the years, one has heard a vast cross-section of Hindus express concern over the seemingly unfettered authority exercised by governments over Hindu religious institutions, in particular temples and their property.
These legitimate concerns broadly relate to governments' appointment of puppets to Temple Boards, control over the property and income of Temples, diversion of their funds to further political goals through subsidies for other religious groups, abysmal maintenance of Temples and interference in their day-to-day functioning and traditions.
Unfortunately, the expression of concern at best leads to hand wringing, as opposed to informed, intelligent, systematic and sustained advocacy by those interested in protecting the rights and interests of Hindu religious institutions. It must be borne that no government, notwithstanding its stated ideological moorings, can be expected to take up these causes in the absence of a political incentive or dogged pressure from groups advocating such causes.
This is something the so called Indic Right must learn and learn fast because it couldn't have asked for a more conducive combination of circumstances to pursue these causes and see them through to their logical ends or at least lay a formidable foundation for the future.
On this front, it needs to be said that barring a handful of examples of yeoman individual effort, the Indic Right has not employed legal and democratic means as widely and as effectively as the Left or non-Hindu groups.
Importantly, this is a shortcoming that Hindus need to work on to shatter the stereotype that it has little faith in Constitutional means and the rule of law. As I have consistently held elsewhere in my exhortations, free speech, free expression and methods rooted in democratic values are the best friends of the Right.
But for that, diligent spade work must be undertaken to collate facts and understand the legal/policy framework that applies to an issue. This approach, like it or not, calls for a fair amount of hard work. If the Indic Right is serious about achieving long-term goals or even short term ones, it must repose faith in concrete and focused action since idle lamentation and lazy analysis can never be substitutes for depth and rigour.
Since the first requirement of advocacy is that it must be "informed", beginning with this essay, this series will endeavour to set out the scope of the State's powers under the Constitution to interfere with Hindu rights and religious institutions.
Although the discussion involves making sense of certain provisions of the Constitution, in the interest of lucidity one shall attempt to keep the legalese and jargon to the minimum, hopefully without bulldozing nuances and subtleties. After all, in law, the devil lies in the detail and interpretation.
Hindu Rights and the Constituition
So which part of the Constitution is one supposed to look into to understand the rights and freedoms available to Hindus and the limits on the State's powers to interfere with the functioning of Hindu religious institutions?
In the Seventh Schedule to the Constitution, Entry 28 of the Concurrent List deals with "charities and charitable institutions, charitable and religious endowments and religious institutions".
Since these subjects form part of the Concurrent List, the Parliament as well as State Legislatures can pass laws relating to them. As for religious and cultural freedoms, these are specifically recognized in Articles 25-30 in Part III of the Constitution which deals with "Fundamental Rights". In this piece, I shall limit the discussion to Article 25.
Article 25 (1) recognizes every person's right to freedom of conscience and to freely profess, practise and propagate one's religion. However, these rights are not absolute because their enjoyment is subject to public order, morality, health and other provisions of Part III.
Those interested in addressing forcible or fraudulent conversions might be aware that in Reverend Stainislaus v. State of Madhya Pradesh, the Supreme Court held that while Article 25(1) guaranteed every person's right to practise and preach the tenets of her or his faith, it did not envisage a fundamental right to convert another person to one's own religion.
Simply put, while the right to religious freedom is a fundamental right, the right to convert is not.The basis of the Supreme Court's view was that the right to convert another person impinges on the latter's freedom of conscience and could lead to breach of public order.
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