GLOBAL EXPANSION OF HUMAN RIGHTS AND ITS IMPACT ON

FREEDOM OF RELIGION IN INDIA-A CONTENT ANALYSIS STUDY

(Dr.R.Srinivasan, Assistant Professor, Department of Constitutional Law & Human Rights, Tamil Nadu Dr.Ambedkar Law University, Chennai-600029, E Mail: srinialu@yahoo.co.in)

Abstract

Religious freedom has been a cherished dogma since the days of Emperor Asoka. It has

been found its place both in the fundamental rights and directive principles of the Indian

Constitution, even before the ratification of human rights as ‘International Bill of Right’ at the

global level. Freedom of religion is part of human rights when the latter expands correspondingly

freedom of religion also gain its momentum and expands. Therefore, corresponding to the

developments of human rights at the global level, India attempts to internalize such laws into the

domestic system either by amending the Constitution or through legislative enactments. In spite

of that there is a persisting gap between the evolving global laws and the existing laws. Global

human rights are far ahead of the national human rights. In this context this research attempts to

analyze the role of the Supreme Court in assimilating, internalizing and harmonizing the global

laws in order to harmonize them. In this analysis certain research questions crop up which are

sought to be answered. They are:

1. What are the constitutional rights including fundamental rights related to religious freedom in

India?

2. What are the relationship between the religious freedom provided in India and the religious

freedom contemplated at the global level in the human rights documents?

3. What are the changing dimensions of religious freedom in the Indian legal system?

***************

Introduction:

Life, Liberty, Equality and Dignity are the basic tenets of human rights. These concepts evolved

at the global level and are internalizing by the legislature and harmonized by the judiciary at the

domestic level. The genesis and growth of modern human rights law can be traced from the wake

of 20th century. The birth of the United Nations gave a new impetus to the expansion of human

rights in the international sphere. It is the first instrument categorically formulated the concept of

human rights and incorporated it in the Charter. Article 1 of the Charter provides that “to achieve

international cooperation …in promoting and encouraging respect for human rights and for

fundamental freedoms for all without distinction as to race, sex, language, religion etc. Despite

the protective provision, human rights violations could not be stopped as this Charter is a non-

self-executor instrument. The UN Charter just gave the basic concept of human rights.

The Human Rights Commission, a subsidiary body of UN drafted the Universal Declaration of

Human Rights, 1948. The objectives enshrined in the UN Charter were promoted by the

Commission in the document. It prescribe common minimum standard which may be protected

by all member states. According to the preamble of the UDHR, each and every member State

recorded the pledge to protect these rights. But it was also a declaratory in nature. To rectify the

situation, UN adopted two international covenants in 1966 as Civil & Political and Economic,

Social & Cultural Rights. The evolution of human rights at the global level and the process of

drafting the Constitution of India were parallelly and UDHR influence in moulding the

Constitution.

The UDHR and two International Covenants constitute International Bill of Rights. It ensures the

rights and right of the individual including freedom of religion. Article 18 of the UDHR

prescribed that “everyone has the right to freedom of thought, conscience and religion; the right

includes freedom to change his religion or beliefs and freedom either alone or in the community

with others and in public or private to manifest his religion or belief in teaching, practice,

worship and observance.” Article 2 of the ICCPR, 1966 prescribes the State to recognize the

rights without any distinction of race, colour, sex, language, religion etc. Article 27 of the

Covenant says that “(1) everyone shall have the freedom of thought, conscience and religion.

The right shall include freedom to have or to 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; (2) practicing and teaching; (3) Non one shall be subject to

coercion, which would impair his freedom to have or to adopt a religion or belief of his choice.”

Despite this, there are certain other UN instruments concerning the freedom of religion. Most of

these instruments are ratified by the Government. Some of the instrument not ratified or reserved

by India are International Convention on Elimination of All forms of Racial Discrimination,

1965, Declaration of Elimination of All Forms of Discrimination based on Religion or Belief,

1981 and Declaration on the Rights of Persons belonging to National or Ethnic, Religious and

Linguistic Minorities, 1992. Further Article 27 of the Vienna Convention on the Law of Treaties

says that a State party may not invoke the provisions of its internal law as justification for its

failure to perform a treaty.

The Indian Constitution gives protection for religious freedom and minority rights. Article 25 of

the Constitution provides freedom of conscience and free profession, practice and propagation of

religion; Article 26 provides for freedom to manage religious affairs; Article 27 provides for

freedom as to payment of taxes for promotion of any particular religion; Article 28 for freedom

as to attendance at religious instruction or religious worship in certain education institutions;

Article 29 for the protection of interest of minorities and Article 30 for rights of minorities to

establish and administer educational institutions. There are many theocratic countries where

equal rights are not extended to all of its citizens. They categorized the citizens according to their

belief, religion, culture, language etc. But the father of the Constitution envisioned equal rights to

all its citizens and added special rights to religious minorities to protect against majority

encroachments. To ensure peaceful coexistence of divergent religious groups in India, the

Constitution provides a comprehensive set of provisions. However in this research work it is the

judiciary more particularly the Supreme Court and its role is taken for analysis. It is the Supreme Court of

India that has been internalizing the global human rights in securing the freedom of religion in India. The

approach of the judiciary is analyzed under three phases as stated in the methodology.

Research Methodology

It is an ex-post facto research. The cases related to freedom of religion decided by the

Supreme Court in the background of global expansion of human rights from 1950 to 30th Aug,

2014 have been taken for study. The process of interpretation by the judiciary in ongoing process

is explored, analyzed and formulated only through the cases decided by the Supreme Court.

There are various stages in this research:

Firstly, Supreme Court judgments in which “freedom of religion”, “international human

rights instruments” and other regional instruments mentioned are explored;

Secondly, such explored cases are arranged chronologically and classified into four

groups, which constitute four phases namely, First phase from 1950-79 i.e. From the

commencement of the Constitution to the year of ratification of International Covenants in 1979

by India. Second phase commenced from 1979 i.e. after the ratification of the two covenants and

before the enactment of Protection of Human Rights Act, 1993, the Third phase commences

from the enactment of Protection of Human Rights Act, 1993 to 2014;

Thirdly, the phase wise classified cases are grouped into five categories namely

“Essential and Non-essential Religious Practice, ‘Freedom to Administer Religious Property’

‘Personal Laws’, ‘Religious Conversion’ and ‘Secularism’;

Fourthly, all the above categories cases are further classified into ‘Reference’ and

‘Expansion’.

If the Supreme Court merely mentioned the global human rights instruments in the cases

on freedom of religion are categorized as ‘Reference’. Suppose the Court expanded the religious

freedom at the domestic level in the light of international human rights are ‘Expansion.’

In this research for the purpose of exploring and identifying various Supreme Court

decisions on religious freedom in the context of international human rights “AIR- Info tech” has

been relied. It has published cases decided by the Supreme Court on various subjects besides

High Court cases. With the help of <AIR-Info tech> content analysis technique is applied to find

out the number of judgments delivered by Supreme Court under the heading “religious freedom

and human rights”. The entire analysis have been studied under two divisions namely Qualitative

Analysis and Quantitative Analysis of Cases from 1950 to till date.

Qualitative Analysis of the Supreme Court decision from 1950 to till date

A. First Phase (from 1950 to 1979)

In this phase Supreme Court stuck on to the British tradition of ‘Black tradition’ or

‘Positivist Tradition’ i.e of applying or declaring laws initially. It consistently adopted a self-

restraint approach. The style of functioning of the Court during the 1950’s and 1960’s did not

question the legislative enactments. It rarely took up the cudgels against the legislature. During

this period the Court played a secondary role in Indian politics and it was projected as

conservation and status quoists branch of the State. In this period Indian Judiciary’s tryst with

international law began a positive note. But is has to be accepted that in jurisprudence, till the

dawn of UNO, international law was only existing on paper. The fact made jurists to declare that

International law was vanishing point of jurisprudence. In this period Universal Declaration of

Human Rights was the guiding principles of the judiciary.

The moot point for consideration in this period was what religion is? and what are the

matters of religion? and what are not? Our Constitutional framers have no attempt to define

‘what religion is’ and it is certainly not possible to frame an exhaustive definition of the word

‘religion’ which would applicable to all classes of persons. Hence the judiciary proposed a

holistic approach of participatory management to expound the word and phrases of the ‘religion’

in Sri Shirur Mutt case as “a matter of faith with individuals or communities and it is not

necessarily theistic.”1 While discussing the conception in this case, Justice B.K. Mukerjea quoted

the statement of US Deputy Secretary statement stated that “the efforts should be directed to the

most fundamental and important human rights all of which are internationally recognized in the

Universal Declaration of Human Rights which the United Nations approved in 1948”, in the

American Bar Association in Chicago in 1950.2

In Ratilal Panachand Gandhi v. State of Bombay, the Court reiterated the phrase religion and

also examine the phrases like ‘profess’, ‘practice’ and ‘propagation’ of religion. While

explaining the word ‘practice’ the Court said it is primarily with ‘religious worship’, ‘rituals’

and ‘observations’ and the integral and ‘essential part’ of the religious practices including the

forms and observances in dress and food. In explaining the concept of the phrase ‘practice’ the

Justice B.K.Mukerjea quoted that the religious practices or performances of acts in pursuance of

religious belief are as much a part of religion as faith or belief and no outside authority has any

1 Commissioner, Hindu Religious Endowments, Madras v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt, AIR 1954 SC 282.2 Vide Davis v. Beason, (1888) 133 US 333 at p.342(G), it has been said that the term ‘religion’ has reference to one’s view of his relation to his Creator and to the obligations they impost of reverence for His Being and character and of obedience to His will. It is often confounded with ‘cultus’ of form or worship of a particular sect, but is distinguishable from the latter.

right to say that these are not essentials and it has been guaranteed under Article 18(2) of the

Universal Declaration of Human Rights.3 The essential and non-essential of the religion is

deduced by the Court subject to public order, morality and health and other provisions of the Part

III of the Constitution. In this phase the

a. Essential and Non-essential Religious Practice:

In the determination of essential and non-essential part of the religion, the Court had gone

through four cases in this phase. Mukerjea J., explaining the essential and non-essential part of

the religion Ratilal Panachand Gandhi case, rituals, religious worship and observations are

treated to be integral part of religion including dress and food. It was reiterated in Shriur Mutt

case also. In Sri Venkararamana Devaru case, the prohibition of entry of Harijan into the

Hindu temple dedeicated to the public is determined as non-integral part of the religion.

Similarly in Syedna Taher case, the practice of excommunication of individuals in Da-ul-

Mustaq was not essential part of religion.4 All these cases are decided by the Court based on

Universal Declaration of Human Rights document. \

b. Freedom to Administer Property:

This phase also witnessed for considerable number of cases relates to administration of property.

For instance in Sri Lakshmindra Thirtha Swamiar case, the Court held right to manage the affairs

of the religious denomination is fundamental human rights, Also in Ratilal Panachand Gandhi

case, the Court imported the ‘Doctrine of Cy pres’ as the principle of equity and enable the

Court to amend the objective of testator who bequeathed the property to the charitable trust 5 In

Tilkayat Shri Govidnlalji Maharaj case, the Court held that the right to manage the properties of

a temple was a purely secular matter.6 Yet in another case Acharya Maharajshri Narendra

Prasadji Anandprasadji Maharaj v. State of Gujarat, the Court discussed the role of the State to

acquire the property of religious denomination compulsorily under Article 31(c) was not conflict

3 Jagannath Ramanuja Das v. State of Orissa, AIR 1954 SC 100; Ratilal Panachand Gandhi v. State of Bombay, AIR 1954 SC 388.

4

5 Durgah Committee, Ajmer v. Syed Hussain Ali, AIR 1961 SC 1402.

6 AIR 1963 SC 1638.

with Article 26 of the Constitution.7 All the four cases are decided by the Court based on

Universal Declaration of Human Rights instrument. In this phase the religious freedom of the

minorities in India received a boost in this period.

It kicks start from In Re Kerala Education Bill, 1958 case. By referring the report of UN

Sub-Commission on the Prevention of Discrimination and Protection of Minorities, 1947, the

Court stated that withholding aid or demand the surrender of the right to administer the

institution is contravene under Article 30 of the Constitution.8 Again in Rev. Sidhrajbhai v. State

of Gujarat, the Court reiterated the same view9 However, in Ahmedabad St.Xavier College

Society v. State of Gujarat, the Court held that the minorities have fundamental right to

education, but it does not include the fundamental right to affiliation for minority institution. In

this case the counsel for the petitioner relied on the decision of the Permanent Court of

International Justice in Case No.182 referred to in the Annual Digest of Report of International

Law Cases (years 1935-1937) by Launterpact Article 5 of the Declaration relating to the Position

of minorities in “Albania provided that Albanian nations who belong to racial, religious of

linguistic minorities will enjoy the same treatment and security in law and in fact as other

Albanian nationals. In particular they shall have an equal right to maintain, manage and control

at their own expense or to establish in future, charitable, religious and social institutions,

schools and other educational establishment, with the right to use their language and to exercise

their religion freely therein.”10 In all these three cases the Supreme Court relied the international

instrument and expanded the domestic human rights law.

c. Religious Conversion:

This period the Court tries to establish the equality of religious freedom and prohibiting

religious conversion by objectionable activities such as conversion by force, fraud and by

allurement. The meaning of ‘freedom of conscience’ came up for the consideration of the Court

7 AIR 1974 SC 2098.

8 AIR 1958 SC 956.

9 AIR 1963 SC 540.

10 AIR 1974 SC 1389.

in Ratilal Panachand Gandhi case that every person have fundamental right to exhibit religious

belief, faith an propogatinon of ideas. But not enticing in any others means to convert his own

religion.11In Rev. Stainislaus v. State of M.P. the Court held the “freedom of conscience is not

the right to convert another person to one’s own religion by an exposition of its tenets. In all the

two cases the Court merely referred the Universal Declaration of Human Rights, and there were

no expansion of religious conversion in the domestic law.12

d. Secularism:

The historic decision in Keshavananda Bharathi case popularly called Fundamental

Rights case, the Court held “Article 25 and 26 by their opening words show that the right to

freedom of religion is subject to paramount interest of society and there is no part of the right

however important to devotee which cannot and in may cases have not been denied in civilized

society …. The freedom of religion in Article 26 will lose a great deal of its efficacy if the

institutions maintained by the community for its religious and charitable purposes could be

acquired without compensation”. It is the first time the Court quoted the phrase ‘Secularism’ in

India.13 In the decision of Sikri C.J. it was noted that the fundamental features of the Constitution

namely, secularism, democracy and freedom of the individual would always subsist in the

welfare State and it cannot be abrogated through the process of amendment. Further the Court

held ‘Secularism’ had been declared as basic feature of the Constitution.

In Ahmedabad St Xavier College, the Court held there is no mysticism in the secular

character of the State. It is neither anti-god, nor pro-god. It treated equally all religion. In short in

the context of our Constitution, it means “an attitude of live and let live developing into the

attitude of live and help live.” These two cases were the Supreme Court synchronized the

concept of ‘Secularism’ and ‘Secularization’ followed by the other countries in the world.14 In

this phase the Court introduced the phrase ‘Secularism’ in India and described in the Indian

11 AIR 1954 SC 388

12 AIR 1977 SC 908

13 His Holiness Keshavananda Bharathi Sripadgalvaru v. State of Kerala, AIR 1973 SC 1461.

14 Ahmedabad, St.Xavier College Society v. State of Gujarat, AIR 1974 SC 1389

context with the aid of the international instruments like Bill of Rights of the American

Constitution and Universal Declaration of Human rights.

B. Second Phase: (From 1979 to 1993)

The impact of the international instruments the Government of India was evident when the

National Minority Commission was established in India in 1992, under the National Commission

of Minorities Act, 1992. On 23rd October, 1993, the Indian Government notified Muslims,

Christians, Sikhs, Buddhists and Zoroastrians as minority communities. This phase witnessed

few cases.

Once again the relationship of religious freedom and Universal Declaration of

Human rights was asserted by the Court in Minerva Mills Ltd v. Union of India, Chandrachud,

C.J. quoted that “What the Constitution demands and expects is perfect equality between one

section of the community and another in the matter of political and civil rights, equality of liberty

and security in the enjoyment of the fundamental freedom, worship and the pursuit of the

ordinary applications of life” and noted that “the fundamental freedom confer in the Constitution

are elementary for the proper and effective functioning of a democracy. They are universal so

regarded as is evident from the Universal Declaration of Human Rights.”15

In S.P.Mittal v. Union of India, the Court tried to understand the basis of the fundamental rights;

it referred to the Universal Declaration of Human Rights. It observed that the conferred rights

which were elementary for the purpose and effective functioning of the democracy and were

universally so regarded, as being evident from the Universal Declaration of Human Rights.16

a. Essential and Non-essential part of religion:

Initially the Supreme Court was hesitant to interfere in the personal laws. In Gulam Abbas Case,

the question of interference in the customary religious rights was raised before the Supreme

Court. The Court observed that the State could not interfere with the established customary rights

to perform the religious functions. Such practices are treated as integral part of every religion.

15 AIR 1980 SC 1789

16 AIR 1983 SC 1; See also: Bramachari Sidherwar Shai v. State of West Bengal, AIR 1995 SC 2089.

Otherwise the non-essential and non-secular aspects will be clothed with religious sanction and

may claim to be treated as religious practices which may not be an essential and integral part of a

religion.17 Hence the Court preferred to maintain a careful balance between the freedom of

individual or the group in connection with their religion. Here also the Court expanded the

domestic instruments.18

b. Freedom to Administer property:

The impact of Bill of Rights of the American Constitution is also extended in this phase. In

Ahmedabad St. Xavier College Case, the Court observed that “the religious freedom of the Bill

of Rights of the American Constitution terminated disabilities; it did not create new privileges. It

gave religious equality, not civil immunity in establishing institution.” 19In National Anthem

Case, the Court quoted that “to sustain the compulsory flag salute we are required to say that a

Bill of Rights which guards the individual’s right to speak his own mind…”20 The Supreme

Court expanded the

c. Personal laws:

The phase saw a gender sensitized judiciary swinging into action to provide equality for women.

In Shao Bano Begum case the Supreme Court playing an active role to bring uniform personal

laws for women, irrespective of religion to attain gender equality as guaranteed by Uniform Civil

Code in Article 44 of the Constitution.21 This case was also witnessed for expansion.

C. Third Phase: (From 1993 to till date)

Again there was much instability of government in the Center as well as State level. It made

the judiciary to forge new tools and methods in safeguarding the rights of the citizens and for

that it looked at international human rights law as a key instrument in interpreting domestic law

also. While in the past, the International law like declarations and Conventions was used only as

17 Tilakayat Shri Govindalalji Maharaj v. State of Rajasthan, AIR 1963 SC 1638.

18 A.S. Narayana v. State of A.P., AIR 1996 SC 1765.

19 Ahmedabad St.Xavier College Society v. State of Gujarat, AIR 1974 SC 1389.

20 Bijoe Emmanuel v. State of Kerala, AIR 1987 SC 748.

21 Mohmed Ahmed Khan v. Shao Banu Begum, AIR 1985 SC 945.

a “tool of interpretation” or at the most a “source of interpretation” as pointed out by Rajeev

Dhawan. However after the enactment of the Protection of Human Rights Act, 1993 the Supreme

Court signal a new trend the use of international law as a “source of law” by itself.

”22

a. Essential and Non-essential part of religion:

In this phase the essential and non-essential part of the religion is again expounded by the

Court in this phase also. For instance in Bramachair Sidheswar Shai case, the establishment of

educational institutions for Ramakrishna Mission is not to be essential part of the religious

denomination. In another interesting case “the right to worship at any and every place of

worship so that any hindrance to worship at a particular place per so may infringe the religious

freedom guaranteed under Article 25 and 26 of the Constitution.”23In Ashutosh Lahiri case, the

slaughtering of healthy Cows on Bakrid Idd day is not essential or required for religious purpose

of Muslims.24In A.S. Narayana Deekshitulu v. State of A.P., the hereditary right to appointment

of Archak (Priest) in the Hindu temple is not essential part of religion or matter or religious

practice.25 In Pannalal Bansilal Patil case, the administration of religious institution or

endowment or specific endowment being a secular activity is not a essential part of religion.26 In

all these cases the Court relied UDHR document and also the UN Declaration on the elimination

of All Forms of Discrimination based on Religion or Belief, 1981”27 In all these five cases the

Court expanded the freedom of religion based on UDHR instrument.

b. Freedom to Administer Institutions:

22 AIR 1994 SC 1918.

23 M.Ismail Faruqui v. Union of India, AIR 1994 SC 640.

24 State of West Bengal v. Ashutosh Lahiri, AIR 1995 SC 464.

25 A.S.Narayana Deekshitulu v. State of A.P., AIR 1996 SC 1765.

26Pannalal Bansilal Patil v. State of A.P. AIR 1996 SC 1023

27 AIR 2004 SC 2984

While the Court discussed the Constitutional guarantee of right to education in Unni

Krishnan case, it observed that the right to education flows directly from right to life and it is the

constitutional mandate to provide educational institutions at all levels for the benefit of citizens.

The Court refers Article 26(1) of the Universal Declaration of Human Rights; the right to

education is fundamental human rights of the citizens which includes the minorities’ rights.

In T.M.A. Pai Foundation v. State of Karnataka,28the Court relied Article 27 of the

ICCPR, and held that the State should adopt legislative and administrative measures for

conserving the rights of minorities in the national legal system for the observance of the principle

of equality. Otherwise the passive attitude on the part of State would render such rights as

inoperative. 29 In its judggement the Court also relied the optional protocol of ICCPR.

In Islamic Academy of Education,30 the court considered the rights of minorities as

rights of minorities on the one hand and the rights of persons to have higher education and right

to development on the other. The Court invoked Article 26 of Universal Declaration on Human

Rights, 1948 on free and compulsory education for all31 and Article 3 of the UNESCO

Convention Against Discrimination in Education, 1960, to ensure that there is no discrimination

in admission of students in educational institutions etc and read it into the national legal system.

The Court also referred the UN Declaration on Right to Development, 1986. It describes

development as a comprehensive economic, social, cultural and political process, which aims at

constant improvement and well-being of people and of individuals on the basis of their active,

free and meaningful participation in the process. The Court further referred Article 14 of the

European Convention on Human Rights, 1950 provides for ‘association with a national minority’ 28 AIR 2003 SC 355

29 AIR 2003 SC 355

30 Islamic Academy of Education v. State of Karnataka, AIR 2003 SC 355.

31 Article 26 of the UDHR, 1948 stated as follows: (1) everyone has the right to education. Education shall be free, at least in the elementary and fundamental stages. Elementary education shall be compulsory. Technical and professional education shall be made generally available and higher education shall be equally accessible to all on the basis of merit. "(2) Education shall be directed to the full development of the human personality and to the strengthening of respect for human rights and fundamental freedoms. It shall promote understanding, tolerance and friendship among all nations, racial or religious groups, and shall further the activities of the United Nations for the maintenance of peace. (Parents have a prior right to choose the kind of education that shall be given to their children). "

Article 5(c) of UNESCO Convention Against Discrimination in Education, 196032 and Article 27

of the ICCPR,33to strengthen its stand.

In Government of Andhra Pradesh v. P.Laxmi Devi, Justice Markandeya Katju observed that

“during feudal times citizens had no civil rights. There was no freedom of speech, no equality,

no freedom to practice one’s own religion, no liberty etc. The Great English Revolution of 1688

emphasized the importance of liberty and the Great French Revolution of 1789 underscored

equality and freedom of religion. The Great American Revolution championed all these rights.

Our founding fathers borrowed these lessons from history and provided for the fundamental

rights in our Constitution to protect the citizens liberties not only against the executive but even

against the legislature, if need be.34

In Court on its own Motion v. Union of India, the Court further expanded the freedom of religion

in the basis of health care, basic amenties and proper tracks for using of Yatris and it posed an

obligation over Centre, State Government of Jammu & Kashmir and Amarnath Shrine Board.35

In all this phase, the Court expanded the educational rights of the religious minorities in four

cases, practice of religious freedom in one case and provision for basic facilities in the place of

religious institutions based on international instruments.

c. Personal Law:

The religious rights of the Christian community in bequeathing their property for religious

and charitable purposes were discussed in John Vallamatom case. The Section 118 of the Indian

Succession Act, which prevented the Christian community from bequeathing their property for

religious and charitable purposes. The object of the Section is to ban ill-considered death bed

bequest under religious influence. In this context the Court relied Article 18 of ICCPR, and

32 Article 5(c) of the UNESCO Convention against Discrimination against Education stated that: it is essential to recognize the right of members of national minorities to carry on their own educational activities, including, the maintenance of, schools and, depending on the educational policy of each State, the use or the teaching of their own language," and set out the circumstances in which this right may be exercised.

33 Article 27 of ICCPR- In those States in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall ne be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practice their own religion, or to use their own language.

34 AIR 2008 SC 164035 Court on its own Motion v. Union of India, AIR 2012 SC 1012.

struck down the Section 118 as anamolous and no nexus with the classification and object of the

legislation sought to be achieved.36

It is the first time in Indian legal history the Supreme Court referred the international instruments

in protecting the gender equality under personal laws. In C. Masilamani v. idol of Sri

Swaminathaswamy,37 the Court referred the conflict of gender equality with the Hindu personal

laws. In this case the provisions of Universal Declaration of Human Rights (UDHR), Convention

on the Elimination of All Forms of Discrimination against Women (CEDAW) & UN Declaration

of Right to development are invoked for the interpretation of testamentary disposition of any

property in accordance with the Section 30 of the Hindu Succession Act.38 It expanded the

domestic law.

Again in Valasamma Paul v. Cochin University and others39, the Supreme Court quashed

Valamma appointment on the ground that she was not entitled to the benefit of reservation under

Article 16(4). It is found that the Court merely referred the international human rights

instruments in this case. In this the Court also rely the UDHR, CEDAW and UN Convention on

Right to Development apart from New International Economic Order also.

In Madhu Kishwar v State of Bihar,40 the Supreme Court invoked CEDAW and harmonized into

the Hindu personal laws and ensured the equal share of women in the ancestral property, even

against the existing statutory provisions. It drawn the inspiration of gender justice from CEDAW

36 AIR 2003 SC 2902.

37 C. Masilamani v. idol of Sri Swaminathaswamy, AIR 1996 SC 1697.

38 Section 30 of the Hindu Succession Act stated that: - Testamentary succession: Any Hindu may dispose of by will or other testamentary disposition any property, which is capable of being so disposed of by him, in accordance with the provisions of the Indian Succession Act, 1925 or any other law for the time being in force and applicable to Hinndus. Explanation – The interest of a male Hindu in a Mitakshara coparcenary property or the interest of a member of a tarwad, tavazhi, illom, kutimba or kavaru in the property of the tarwad, tavazhi, illom, kutumba or kavaru in the property of the tarwad, tavazhi, illom, kutubu or kavaru chall, notwithstanding anything contained in this Act or in any other law for the time being in force, be deemed to be property capable of being disposed by him or by her within the meaning of this section.

39 AIR 1996 SC 1011.

40 (1996) 5 SCC 125.

by ignoring India’s reservation on Article 5(a) and 16(1) of the Convention.41 By referring the

instrument, the Court stated that the same should be the integral scheme of the Fundamental

Rights and the Directive Principles of the Indian Constitution.

Again the nature of Hindu personal laws was examined by the Supreme Court in Gita

Hariharan and Another v. Reserve Bank of India.42 In this case the Court had to construe Section

6(a) of Hindu Minority and Guardianship Act, 195643 and Section 19(b) of the Guardian and

Wards Act, 1890.44 This Section were challenged as violative of equality clause of the

Constitution, in as much as the mother of the minor is relegated to an inferior position on the

ground of sex alone since her right, as a natural guardian of the minor, is made cognizable only

‘after’ the father. The Court relied upon the CEDAW and the Beijing Declaration, which directs

all State parties to appropriate measures to prevent discrimination of all forms against women is

quite clear. It was held by the Court that the domestic Courts are under an obligation to give due

regard to international convention and norms for construing domestic law when there is no

inconsistency between them. It is the first time the Supreme Court of India took a case on inter-

personal conflict of law, which is a bye-product of lack of Uniform Civil Code in India.

In Sarla Mudgal v. Union of India, the Court held the second marriage would be void in

terms of provisions of Section 494 of the Indian Penal Code and the apostate husband would be

guilty of the offence of bigamy under the above section.45 In Lily Thomas v. Union of India, the

Supreme Court ruled that the Uniform Civil Code is not desirable, but it is a counterproductive

41 The most obvious uses of CEDAW are in the area of gender equality. CEDAW has played an important role in the drafting, reform and judicial interpretation of the gender equality provisions in domestic constitutions in many countries. (Ruth Rubio-Martha I.Morgan, Constitutional Domestication of International Gender Norms, in Gender and Human Rights (Karen Knop, ed. Oxford University Press, 2004).

42 Gita Hariharan v. Reserve Bank of India, AIR 1999 SC 1149.

43 Section 6(a) of Hindu Minority and Guardianship Act, 1956, stated that the natural guardian of a Hindu minor’s person as well as in respect of the minor’s property (excluding his or her undivided interest in joint family property) are in the case of a boy or unmarried girl- the father, and after him, the mother provided that the custody of a minor who has not completed the age of five years shall ordinarily be with the mother.

44 Section 19(b) of the Guardianship and Wards Act, 1890, describes that ‘Nothing in this Chapter shall authorize the Court to appoint or declare a guardian of the property of a minor whose father is living and is not in the opinion of the Court, unfit to be guardian of the person of a minor whose father is living and is not, in the opinion of the Court, unfit to be guardian of the person of the minor. 45 AIR 1995 SC 1531.

for resolving the conflicts and reforming the personal law like abolition of polygamy and

unilateral power of the Muslim husband to divorce his wife. This may not hurt Muslim sentiment

as this type of reform had already taken place in Islamic countries like Syria, Morocco, Pakistan

and Tunisia etc.46

d. Secularism:

The phase is also witnessed the impact of International Bill of Rights towards of the concept of

secularism. In S.R. Bommai v. Union of India, the Court equated the socialism as human rights in

the egalitarian order society. “it would suffice to state that the provisions of the Covenant, which

elucidates and go to effectuate the fundamental rights guaranteed by Our Constitution, can

certainly be relied upon by Courts as facet of those fundamental rights and enforceable as such.

In Valasamma Paul Case, the Court opined “the rigid Shastric prohibitions restrictions should

operate in harmony with Universal Declaration of Human Rights.”

In M.P.Gopalakrishnaan Nair v. State of Kerala, Justice S.B. Sinha observed that India is

a secular country. It has been inserted in the preamble by reason of the Constitution 42nd

Amendment Act, 1976. The object of inserting the said word was to spell out expressly the high

ideas of secularism and the integrity of the nation on the ground that these institutions are subject

to considerable stresses and strains and vested interests have been trying to promote their selfish

ends to the great detriment of the public good. It quoted the observation of nine judge Bence of

the Court in S.R. Bommai v. Union of India, it would suffice to state that the provisions of the

Covenant, which elucidates and go to effectuate the fundamental rights guaranteed by Our

Constitution, can certainly be relied upon by Courts as facet of those fundamental rights and

enforceable as such.47After 2006, the Court quoted the approach of S.R. Bommai case in several

cases.48

46 AIR 2000 SC 1650.

47 AIR 2005 SC 3053

48 P.a. Inamdar v. State of Maharashtra, AIR 2005 SC 3923; Kuldip Nayar v. Union of India, AIR 2006 SC 3127; Asok Kumar Thakur v. Union of India, AIR 2007 SC 227; Nair Service Society v. State of Kerala, AIR 2007 SC 2891; i.r. Cohelo v. State of Tamil Nadu, AIR 2007 SC 861; M.Nagaraj v. Union of India, AIR 2007 SC 71; Ashok Kumar Thakur v. Union of India, AIR 2008 SC 1

In 2006, Parliament of India amended the Protection of Human Rights Act, 1993 and inserted the

following words ‘and such other covenant on convention adopted by the General Assembly may

by notification, specify.’ Under this amendment India recognised that any other international

instruments enacted by the General Assembly of the notification and notified by the Government

of India is also a human rights law in India.

Interestingly in Court on its own Motion v. Union of India, and ruled that the Centre, State

Government of Jammu & Kashmir and Amarnath Shrine Board have an obligation upon yatris to

provide health care, basic amenities, and proper tracks to be used by the yatris.49

QUANTITATIVE ANALYSIS OF THE SUPREME COURT CASESFROM 1950 TO TILL DATE

For the content analysis, cases decided by the Supreme Court in which mention is made of any

one or more than one international human rights instruments have been collected with the help of

“AIR-Info-tech Software”. From Table 1 it is found that there are 10 international instruments

including regional instruments quoted by the Supreme Court in 46 cases since 1950 to till date.

Of these instruments Universal Declaration of Human Rights, 1948 have been frequently quoted

by the Supreme Court of India. It was quoted 20 times followed by Convention on Elimination

of All forms of Discrimination against Women, 1979 for 10 times, International Covenant on

Civil and Political Rights, 1966 was quoted 5 times and the American Bill of Rights is also

referred 6 times and other international instruments are quoted 1 time each.

49 Court on its own Motion v. Union of India, AIR 2012 SC 1012.

TABLE: 1

S.No Name of the Instruments Total No. of Cases referred

1 Bill of Rights of American Constitution 62 French Declaration of Rights of Man, 1791 13 Universal Declaration of Human Rights, 1948

(UDHR)20

4 International Covenant on Civil and Political Rights, 1966 (ICCPR)

5

5 Convention on Elimination of all Forms of Discrimination Against Women (CEDAW), 1979

10

6 UN Declaration on Right to Development, 1986 (UNDR) 17 New International Economic Order (NIEO) 18 Report of the Sub-Commission on Prevention of

Discrimination and Protection of Minorities, 19811

9 UNESCO Convention on Discrimination Against Education, 1960

1

TOTAL 46

Further in Table: 2 the Supreme Court cases are classified under three phases. The first

phase starts from 1950 to 1979 i.e. from the commencement of the Constitution to the ratification

of the International Covenant on Civil and Political Rights, 1966 which constitute 11 cases. In

this the Supreme Court relies Universal Declaration of Human Rights in more number of cases

as guiding principle, followed by the Bill of Rights of the American Constitution in 3 cases. The

second phase starts from 1979 to 1993 i.e. from the date of ratification of the International

Covenant on Civil and Political Rights, 1966 and before the date of enactment of the Protection

of Human Rights Act, 1993 which constitute 6 cases. In this again the Supreme Court relied

more on Universal Declaration of Human rights in 4 cases and followed by Bill of Rights of the

American Constitution in 2 cases. The third phase starts from 1993 to 31st July, 2014 i.e. from

the date of enactment of the Protection of Human Rights Act, 1993 to till date. In this the

Supreme Court relied more on Convention on Elimination of All Forms of Discrimination

Against Women, 1979 (CEDAW) followed by the Universal Declaration of Human Rights and

International Covenant on Civil and Political Rights in cases. CEDAW convention was relied in

10 cases followed by UDHR in 9 cases and ICCPR in 5 cases.

TABLE: 2: Phase wise distribution of Supreme Court cases

S.No Name of the InstrumentsFirst phase

Second phase

Third phase

1 Bill of Rights of American Constitution 3 2 12 French Declaration of Rights of Man, 1791 0 0 13 Universal Declaration of Human Rights, 1948

(UDHR)7 4 9

4 International Covenant on Civil and Political Rights, 1966 (ICCPR)

- 0 5

5 Convention on Elimination of all Forms of Discrimination Against Women (CEDAW), 1979

- 0 10

6 UN Declaration on Right to Development, 1986 (UNDR)

- 0 1

7 New International Economic Order (NIEO) - - 18 Report of the Sub-Commission on Prevention of

Discrimination and Protection of Minorities, 19811 0 0

9 UNESCO Convention on Discrimination Against Education, 1960

0 0 1

TOTAL 11 6 29Sources: Harmonization of cases: Annexure I

Besides this, the number of cases decided by the Supreme Court during the study period is

divided in to three phases wherein qualitative analysis is also made. For this, two concepts are

used namely ‘Reference’ and ‘Expansion’. In some cases the Supreme Court merely mentioned

international human rights instruments in its judgement that may implicitly harmonize domestic

law with the international human rights instruments. Such mentioned is termed as ‘Reference’

for the study. In the rest of the cases analysed, the Supreme Court not only referred, but used

such instruments for ‘expansion’ of domestic human rights. It is found that there are 46 cases in

which the Supreme Court has referred one or more human rights instruments as shown in the

Table: 3.

TABLE: 3

Classification of Reference and Expansion of Supreme Court Cases

Phases Essential and Non-essential Part of

Religion

Administration of Religious

Denomination Institutions

Religious Conversion

Personal Laws

Secularism Total

R E R E R E R E R E R EFirst Phase

0 2 0 5 2 0 0 0 0 2 2 9

Second Phase

0 1 2 0 0 0 0 1 0 2 2 4

Third Phase

0 3 0 9 0 2 0 8 0 7 0 29

Total 0 6 2 14 2 2 0 9 0 11 4 42

Source: Harmonization of Supreme Court Cases: Annexure I

(R- Reference, E-Expansion)

From the above Table No:3 reveals that the phase wise qualitative changing trend of the

Supreme Court cases from 1950 to till date. It is obvious that the Court expanded the freedom of

religious rights from the first phase onwards. Because the Constitution had not define the phrase

‘religion’, ‘religious denomination’, ‘profess’, ‘practice’, ‘propagation’, ‘secularism’ and what

constitute essential and non-essential part of religion For describing all the concept the Court

relies the global human rights including regional human right instruments. Hence in the first

phase and second phase the Court slowly expand all the concepts in India in consonance with the

global human rights except few cases that too related to religious conversion and administration

of educational institutions.

Further from the below Cluster Graph No.1 it is found that the impact of global human

rights in India is more in the administration and regulation of the religious institutions or

denominations including the educational institutions of the minorities in India from Phase I to

Phase III. It is followed by the classification of essential or integral part of the religion and non-

essential and non-integral part of the religion from Phase I to Phase III. It is also found that the

intervention of the Supreme Court of India is more in the last phase for reforming the personal

laws in India along with principle of secularism.

Figure: 1

Trend Analysis: Impact of Global Human Rights in the Freedom of Religion in India

Trend Analysis: Supreme Court decision from 1950 to till date

Source: Supreme Court decision from 1950 to till date

Conclusion:

The Indian judicial system is structured on the common law tradition. Accordingly, in the

process of adjudication, the Court can derive sources from the Constitution, or from the statutes

or from judicial precedents or even from the custom. Such an approach is considered as the

‘wednesbury approach’. It is pertinent to note here that the Indian Constitution empowers the

Supreme Court to render complete justice under Article 142. In furtherance of this task, the

Court, many a times deliberately drifted far away from the wednesbury’s approach to invoke

0

1

2

3

4

5

6

7

8

9

10

First Phase Second Phase Third Phase

Essential and Non-essentials of Religion

Administration of Religious Denominations

Religious Conversion

Personal Laws

Secularism

various international conventions, treaties, declarations, reports etc. At times, the judgements of

foreign courts have also been quoted in its judgement.

The Constitution of India confers freedom of conscience and the right to practice, profess and

propagate religion freely to all persons in India without defining the phrase ‘religion’, ‘profess’,

‘practice’ and ‘propagate’ of religion. For determining the definition for the concepts the Court

used the human rights instruments at the global level as tool of interpretation. For instance in Sri

Lakshmindra Thirtha Swamiar of Sri Shirur Mutt (1954) the Court interpreted the First

Amendment of the Bill of Rights of the American Constitution and Article 18 of the Universal

Declaration of Human Rights to describing the meaning of the word ‘religion’ in India. In Ratilal

Panachand Gandhi case the Court defining the phrase ‘profess’, ‘practice’ and ‘propagate’

religion with the aid of Bill of Rights of the American Constitution and Article 18 of the

Universal Declaration of Human Rights. In this case the Court synthesising the secularism and

secularization and evolved the essential and non-essential parts of the religion. In 1958, the

advisory opinion of the Supreme Court in In Sardar Syedna Taher (1962), the Court held the

validity of law which prohibits excommunication of individuals from the community based on

Universal Declaration of Human Rights document and this is the first case in India the Supreme

Court intervened in the affairs of the religion other than Hindu.

In issue of establishment of minority educational institutions in re The Kerala Education Bill

(1958) referred the UN Sub-Commission on the Prevention of Discrimination and Protection of

Minorities, 1947 for the protection of the rights of minorities to establish and administer

educational institution. In Tilkayat Shri Govidnlalji Maharaj case (1963), the Court ruled that

the right to manage the properties of a temple was a purely secular matter and could not be

regarded as a religious practice under Article 25(1) based on Article 18 of the Universal

Declaration of Human Rights.

In Keshavananda Bharathi Case (1973), the Court progressively interpreting Constitutional

guarantee of Secularism as fundamental features based on Universal Declaration of Human

Rights. In Rev. Stainislaus v. State of M.P (1977), the Court held it is not the fundamental rights

of any person to convert another to his own religion based on Article 18(3) of the Universal

Declaration of Human Rights. In the religious conversion the Court strictly implemented the

Anti-Conversion laws of the State in preventing illegal conversion.

In the first phase the Supreme Court devised essentials and non-essential as part of religion based

on international human rights. It is found that the frameworks of essential and non-essential part

of religion are only belonging to Hindu religion. Except religious conversion in all other aspects

the Supreme Court expanded the domestic human rights.

In the Second phase, it is found that in Auroville Emergency Act, 1980 was challenged in

S.P.Mittal v. Union of India (1983) as the Civil Government should not interfere with religious

opinions and it violates the Constitutional guarantee and the Universal Declaration document.

But the Court upheld the validity of the Act on the basis of regulatory measure. However in

Gulam Abbas case (1986), the state should not interfere in the established customary practices to

perform the religious function and held that such practices are treated to be integral part of

religion based on Universal Declaration of Human Rights.

In the past, global human rights was used as tool of interpretation, but the decision of the

Supreme Court in the third phase signal a new trend in the use of global human rights as a source

of law by itself. In this phase the Supreme Court expanded the provisions of Article 21 of the

Constitution of India and sustains the rights of women under personal law. It is found in the

primacy to the rights of the women with personal laws in India.

The Convention on Elimination of All forms of Discrimination against Women is relied by the

Court in 10 cases. For instance in Masilamani case, the Supreme Court directed the State to

abolish the gender discrimination in the existing laws, regulations, customs and practices based

on CEDAW to realize the development of Women. In Madhu Kishwar case, the Court interfered

in the personal laws of Hindu by harmonizing CEDAW principles and thus supporting equal

share for women in the ancestral property rights. It is against the policy of reservation of the

provision of CEDAW by the Government of India. In Gita Hariharan, the Hindu women’s right

of guardianship over minor child was accorded even during the life time of the father. Here too

there was expansion of domestic human rights in India based on CEDAW. Similarly, this phase

also witnessed for the educational rights of the minorities in India. It is found that the Supreme

Court internalized the CEDAW provisions which are reserved by the Government of India in the

name of ‘Judicial Activism’ that too belong to Hindu religion. This part in the third phase also

witnessed for expansion.

In T.M.A. Pai Foundation case (2003), the Court relied the report of the Human Rights

Committee (HRC) functioning under the Optional protocol of ICCPR and its general comment

adopted by the Committee on 6th April, 1994: “Article 27 establishes and recognizes a right

which is conferred on individuals belonging to minority groups and which is distinct from and

additional to all the other rights which, as individuals in common with everyone else, they are

already entitled to enjoy under the covenant.” Hence in this case the Court not only mentions the

international human rights norms, but cited it to support its decision. In Islamic Academy case

(2003), the Court invoked Article 26 of the UDHR, Article 3 of the UNESCO Convention

against Discrimination in Education, 1960 and UN Declaration on Right to Development, 1986

and European Convention on Human Rights, 1950 in emphasizing the educational rights of

minorities. It is found that the Supreme Court also intervened the rights of minorities in India in

the administering the religious denomination or institution as regulatory measure. The concept of

minority had not defined anywhere. But the Supreme Court of India defined the word minority in

T.M.A. Pai and expanded the domestic law on the rights of minorities in concomitant with the

global human rights.

In 2006, Parliament amended the Protection of Human Rights Act, 1993 and inserted the

following words ‘and such other covenant or Convention adopted by the General Assembly may

by notification specify’. This amendment embolden the judiciary to incorporate the international

human rights extend to other incidents of the freedom of religion. For instance in 2012 the

Supreme Court expanded the domestic human rights based on Article 25(2) for providing the

basic amenities for the Amarnath yatris as association of freedom of religion in Court on its own

Motion v. Union of India (2012). This action of the Court in this case is evident for ‘Judicial

Overreach’

In its long and arduous journey from 1950 to 30th August, 2014, the Supreme Court relied on the

global human rights law as obiter dicta in few only cases. But after that the Court follows the

global human rights laws or uses them as a support in reaching its decisions. It both incorporates

and enforces them into domestic human rights jurisprudence. The processof incorporation of the

global human rights are justified for the following reasons:

a. Concern for the Rule of Law;

b. Desire to promote universal values on freedom of religion;

c. Reliance on global human rights to help uncover values inherent with the religious

freedom in India;

d. Willingness to invoke the logic of judges in incorporating the global human rights;

In commenting this it is worth to quote the observation of Cardozo in his work on The

Nature of the Judicial Process as, “no doubt the limit of the judge is narrower. He legislate

only between gaps. He fills the open space in the law. How far he may go without travelling

beyond the walls of intertices cannot be staked out for him upon a chart. He must learn it for

himself as gains the sense of fitness andproposition that comes with years of habitude in the

practice of an act…the law which resulting product is not found but made. The process being

legislative demands the legislative wisdom.”

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