CONSTITUTIONAL RIGHTS OF ATHEISTS AND NON-BELIEVERS
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.
In India, the rights of “non-believers” have never been considered a part of the mainstream, despite 13% of “Indians being non-religious, and 3% being convinced atheists (WIN-Gallup Report 2012). Besides, atheism has existed in India since centuries with many schools of Indian philosophy being explicitly non-theistic: Charvaka (also known as Lokayata), M?m.s?, Samkhya and Buddhism. This tradition has continued in the present times as prominent leaders like Periyar E V Ramasamy, Bhagat Singh and Ram Manohar Lohia espoused atheism as a social philosophy. 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”1under 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.
Anurag Bhaskar (anuragbhaskar007@gmail.com) is an LLM student at Harvard Law School. Shubham Kumar (kumarshubham2309@gmail.com) is an undergraduate student at Dr Ram Manohar Lohiya National Law University, Lucknow.
https://www.epw.in/journal/2018/38/commentary/constitutional-rights-atheists-and-non.html
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