Understanding the Times - Judgments Related to Religious Matters

Understanding the Times – Judgments Related to Religious Matters

John Amalraj K

Published in AIM magazine of EFI – February 2019 Issue

Unprecedented cases related to religious matters were brought up in the last two years in the Supreme Court for their decision that in the long term will define the political narrative in India.  Some of the politicians comment that this is unwarranted judicial activism while the religious leaders resent the court’s interference into the religious traditions and beliefs. Social activists who support the legal proceedings claim time has come for changes.  They argue that the government or the religious leaders are unwilling to bring a solution or initiate reforms and so the citizens have to approach the courts.   How do we as Christians understand and respond to this national discourse?  Do we have any opinion on these matters at all?   The outlawing of Triple Talaq, Babri Masjid / Ayodhya dispute, conversion for the sake of marriage and entry of women into Sabarimala temple are some of the critical matters on which the Supreme Court was asked to adjudicate.  Let us briefly look at the issues and our reflect on our responses.

Historical Background: Babylon was invaded by Cyrus the great in the year 539 BC[i].  On the occasion of his victory, Cyrus issued a declaration inscribed on a clay barrel, known today as the Cyrus Cylinder which recorded his victories and governance including his royal lineage.  This was discovered in 1879 AD in Babylon, and today is exhibited in the British Museum.  The cylinder of Cyrus is popularly known as the "first charter of human rights."  The United Nations translated and published it into all of its official languages in 1971. The cylinder contains the decrees related to Persian rule: religious tolerance, abolishment of slavery, freedom of choice of profession, and expansion of the empire.  It is interesting to note that the Jews living in Babylon at that time also received the benefits of Cyrus declaration of the religious freedom which allowed a ‘remnant’ to return to Jerusalem and re-build the temple and the city walls. (Ezra 1 & Nehemiah 2)

From the edict of Milan (312 AD) by Emperor Constantinople who proclaimed religious tolerance and acceptance of Christianity as a religion – Europe and America had to still evolve over many centuries to understand and practice the concept of religious toleration especially that of other sects and denominations within the larger Christian fold.   The Universal declaration of Human Rights adopted by the United Nations in 1948, inscribed the freedom of religion as a basic human right with freedom of thought, belief, practice, the right to change one’s religion etc.,   Globalization and the movement of people across the world has brought back the insecure feelings of the majority religious groups who now seem to challenge the fundamentals of religious tolerance.

In Indian history, it was Ashoka the great (304-232 B.C) who pioneered religious tolerance even though he was credited with spreading Buddhism all over India and into the East[ii].  After bloody wars of conquest of many kingdoms and becoming the ruler of most parts of South Asia, Ashoka converted to Buddhism.   He renounced violence and proclaimed welfare as a right for all his subjects, tolerance for other’s beliefs and religions, respect for human life including parents and teachers and the importance of spiritual awareness.  He also advocated inter-faith dialogue.  However the Mauryan dynasty did not last very long and eventually the Mogul empire took over which made Islam into a state religion.  The only respite during the thousand year rule of the Mogul empire in India was the rule of Akbar the great (1542-1605 AD).  Akbar went to great lengths in establishing religious tolerance by ending taxation on Hindu pilgrims and promoted dialogue among different religions[iii]. 

The colonial rule of the British empire practiced religious tolerance in India to the extent that both Hinduism and Islam revived significantly.  This resulted in the partition of India on religious loyalties that was intertwined with political ideologies.   The Indian constitution adopted ‘Freedom of Religion’ as one of the fundamental rights of its citizens and declared India to be a secular state.  But debates on religious freedom have continued in the national discourse.   Faizan Mustaffa, President of the Consortium of National Law Universities writing in the Indian Express on November 1, 2018 commented that “Despite Constitution’s text, on the ground, neither does freedom of religion mean “freedom from religion” nor does it include — at least for our women — “freedom within religion.”  In the last two decades, with the rise of the Hindutva movement, there is a change in the public opinion and we can notice that there is less tolerance of other’s religious beliefs.  

It is in the light of this that we need to reflect on the recent pronouncements of the Supreme Court of India on religious matters.

Personal Laws:  The Government of India has over the years enacted several laws concerning marriage, divorce, adoption and succession for Hindus, Muslims, Christians, Parsis etc, codifying the various practices and traditions accepted within these religions[iv].   The supreme court of India in a landmark judgment on 22 August 2017 declared the practice of Muslim husbands, from pronouncing ‘talaq-e-biddat’ as a means for severing their matrimonial relationship. This practice owed its existence to traditions and did not have approval in their own scripture Quran.  Justice Kurian Joseph in his majority judgment declared that “What is held to be bad in the Holy Quran cannot be good in Shariat and, in that sense, what is bad in theology is bad in law as well.[v]”  The minority judgment of the Chief Justice Khehar gave a temporary injunction on this practice and appealed to the government to enact a law taking into consideration the religious practices.  Their concern was that the courts should not interfere into the religious affairs of the community and it was left to the government to do the needful in consultation with the leaders.   The government of the day has since promulgated a law to make the practice of ‘triple talaq” a criminal offence but limiting the complainant to the aggrieved ‘wife and the family members rather than any neighbours or other concerned persons.  There are a few other controversial provisions being debated by the Parliament.   This whole issue has been portrayed as protection of women’s rights and gender equality.   However sections of the Muslim leaders oppose any interference of the courts or the government into the personal affairs of their faith and traditions.  Divorce has become a major issue not just for Muslims but even among other religions including Christians. 

Jesus was once asked a question by the Pharisees on the practice of ‘divorce’ among the Jews as per the Mosiac law.  Jesus answered them saying that it was due to the hardness of the human heart that Moses gave a concession and provided for a ‘divorce’.  He goes onto emphasize God’s design of creation and the institution of marriage to bring a man and a woman together in union.  (Mark 10:1-12)   Whether it may be within the Scripture or by the various governments, laws are most often made to resolve some of the human weaknesses whether physical or psychological.   Jesus also raises the issue of equality of male and female.  Both have the right to expect chastity in the other person. Both are given the permission to divorce but none the right to it.  Jesus effectively sidelines the issue of divorce and focuses on God’s good purpose in the marriage relationship.  It is important as Christians to uphold the values of a family as designed by God and exemplify through our lives.  At the same time, we should be careful not to condemn or judge those involved in the breakdown of a marital relationships but find ways to redeem, restore, reconcile and renew family relationships.  Whenever this is not possible as Christ’s followers we must assist in creating a just settlement as allowed by the legal process and a new beginning.

Places of Worship:  The nearly twenty six year old dispute since the demolition of the Babri Masjid in Ayodaya has created a wave of electoral mileage for political parties and at the same time caused numerous riots killing thousands of innocent people in many parts of India.   In December 1992, a Hindu mob demolished the masjid.  After years of court battle, the issue has now become a property dispute than just a religious controversy. The criminal conspiracy cases against those involved in the demolition have not seen the light of the day.  But the property dispute continues. In 1991, the Uttar Pradesh government acquired land around the structure for the convenience of devotees coming for Ram Lalla darshan. In 1993, the Centre took over 67 acres around the area and sought the Supreme Court’s opinion on whether there existed a Hindu place of worship before the structure was built. In September 2010, the Allahabad High Court ruled that the main site where the mosque once stood should be split into three parts, one for Muslims and two for Hindus.  All the parties concerned have appealed to the Supreme Court against this decision.  The Muslims demand that the mosque must be re-built on the disputed site, while the Hindus demand that a temple must be built on the birth place of Lord Ram – called ‘Ram jhanmabhoomi’ since the mosque was built on a demolished temple site.  In 1994, the Supreme Court said that namaz could be offered anywhere and that a mosque was not necessary for this. It also ruled that the government could, therefore, if needed, acquire the land that a mosque is built on.  Muslim parties say that this verdict is unfair to them and appealed to the Supreme Court to review this decision.  The Supreme Court on September 27, 2018 declined to set up a larger bench to revisit the 1994 verdict which held that a “mosque is not an essential to the practise of Islam”, ruling that the top court had made the observation in the limited context of acquisition of land. “All mosques, all churches and temples are significant for the community,” the three-judge bench said in a 2:1 majority decision delivered by Chief Justice of India Dipak Misra and Justice Ashok Bhushan. The third judge, Justice S Abdul Nazeer, delivered a dissenting judgment.  The final decision on this dispute has been delayed for long and it is likely that a decision may be made during the coming year.

Places of worship are venerated by all religions and passions run high when the same is attacked, desecrated or demolished.  The freedom of religion guaranteed by the constitution provides for any faith community to have their own property for the purposes of their worship, but the government has the right to acquire the land for the common benefit of the society.  We have witnessed many more church buildings demolished or desecrated in recent years to target the Christian community.  

The Samaritan woman asked Jesus a question as to which is the right place to worship God?  Is it Jerusalem or Mount Gerizim? (John 4: 20-24).  Jesus responds by turning the focus from a place to a person.  He counters the woman by saying that the Samaritans are worshipping an unknown God. He then goes on in the conversation to show the importance of worshiping God in the spirit and in truth and revealed himself as the expected ‘messiah’.  Paul exhorts the Corinthian believers that they are the temple of God (1 Cor 2:16).  As Christ’s followers we must respect and protect places of worship whether it is a church, temple, gurudwara or a mosque but never idolize it.  There are occasions when the government may acquire the land on which a church building is constructed for the purpose of widening the roads or constructing a flyover or other public purposes.  How we respond to such government action is an opportunity for witnessing to our faith.    It is also important that when we construct buildings for worship we should ensure that we follow the legal processes and ensure that we do not get involved into controversies that will tarnish our witness.  Any form of protest should be within the parameters of the Constitution rather than attempting to sensitize an issue on communal grounds. 

Religious Reforms:  The Supreme Court constitution bench on 27^th September 2018 held, by a 4 – 1 Majority, that the Sabarimala Temple’s practice of barring entry to women between the ages of ten and fifty was unconstitutional.  There was a time when Hindu temples were not open to people of the lower castes.  The government through various legislations opened the temple gates to allow the entry of the people for worship even before the Indian Independence.   However the Sabarimala temple barred the entry of women which was permitted by the local government.  This was challenged by the Young Lawyers Association that the practice was discriminatory[vi]. The Supreme Court considered three questions: 1) Whether the practice was essential to the practice of the religion and an ancient custom derived from the scriptures? 2) Whether the worshippers constituted a separate denomination or sect within Hinduism and 3) Whether the rights of the temple priests and trustees are important than that of the worshippers?  They concluded that there was no evidence that the practice of barring entry of women of menstrual age was essential to the religion or was an ancient custom.  They also did not agree that the worshippers were a denomination. Finally in considering the rights of the temple priests with that of the women, they upheld the principle of equality of all genders.    Justice Indu Malhotra who dissented said that she said issues with a deep religious connotation shouldn't be tinkered with to maintain a secular atmosphere in the country.  It's not for courts to determine which religious practices should be struck down -- except in issues of social evil like Sati, she said[vii].

Reforms in Hinduism like the banning of Sati, entry of lower castes into the temples were brought by legislation but also through a social change, moral pressure and religious reform led by reformers from within and outside.   The same holds true for other major religions like Islam and Christianity.  Every religion has traditional practices that need to be reformed.  Upholding constitutional morality and exercising fundamental rights may not always be the way forward.  Post - judgment, there has been massive protests, bandhs and violence in the state of Kerala.  A religious issue has now been politicized by various sections and it is being played out as a political drama.  Judicial processes may not always provide the right solution. 

Jesus once became very angry when he saw the sellers of cattle, sheep, oxen and pigeons and the money changers. They were serving and aiding the worship of God in the Temple. And everybody seemed to be happy with the situation except Jesus.  He is angered and reprimands them by saying “How dare you turn my father’s house into a market?” Jesus was saying that you may meet the needs of the worshippers but you are not fulfilling the purpose for which the temple existed.  Jesus then uses a whip to drive out the sellers.  The courtyard where all the sellers and money changers had occupied was the place where the Gentiles were allowed to enter and worship God.  However because of the market place environment the Gentiles were deprived of their opportunity to worship God.  Jesus as an insider challenged the religious leaders on the greater purpose of the temple worship that brings people to pray but warned them that the same temple may one day be destroyed.  

We need to introspect as to some of the age-old practices that we follow in our Christian worship places that deprive people of other faith the opportunity to come and worship along with us.

Conversion Laws: The Supreme Court upheld an individual’s right to convert in its judgment dated April 10, 2018 deciding on the case of Hadiya, a 26 year old girl who converted to Islam and married a Muslim man. The court observed that a person's right to choose a religion …..is an intrinsic part of her meaningful existence……Freedom of faith is essential to his/her autonomy; Choosing a faith is the substratum of individuality and sans it, the right of choice becomes a shadow,” . Neither the State nor “patriarchal supremacy” can interfere in her decision.  It is very interesting that this issue of a Hindu girl who converted to Islam was brought into the highest court of the law.  

In the past, several attempts have been made in the Parliament to bring in a law to ban conversion or regulate the freedom of religion. In the year 1968, Madhya Pradesh enacted a law called ‘Madhya Pradesh Dharma Swatantra Adhiniyam’ and Orissa enacted the ‘Orissa Freedom of Religion Act’. In 1978, Arunachal Pradesh enacted the ‘Arunachal Pradesh Freedom of Religion Act’, all with a view to regulate conversion. The Orissa High court had struck down the state Act in 1973 but the Supreme Court on appeal upheld the validity of the same, thus reversing the Orissa High Court judgment. Justice CJ Ray in his judgment in Rev Stainislaus vs Madhya Pradesh (1977) case concluded that the Constitution does not grant the right to convert15 another person to one’s own religion but only to transmit or spread one’s religion by an exposition of its tenets. Later several other states like Chhattisgarh, Gujarat, Himachal Pradesh, Uttarakhand and Jharkhand have enacted similar laws to regulate the freedom of religion. The state of Tamil Nadu enacted ‘The Tamil Nadu Prohibition of Forcible Conversion of Religion Act, 2002’ but later repealed the same in 2006.  

H. M. Seervai[viii], a well accepted constitutional expert writes that in free democracies it is a matter of free choice for an adult person, whether to belong to a religion or not.  He may not believe in any religion, or he may change his religion.  The Indian Constitution rests on the foundation of human rights and so when we talk of freedom of religion, we are talking of morality and civil liberties, which belong to the heart of our Constitution.  He corrects the misconception and says that the constitution has adopted a ‘system which allows free choice of religion’– a freedom not limited to the religion in which a person is born.  The right to propagate religion gives a meaning to freedom of choice, for choice involves not only knowledge but an act of will.  A person cannot choose if he does not know what choices are open to him.  Successful propagation of religion would result in conversion.  Conversion does not in any way interfere with the freedom of conscience but is a fulfilment of it and gives meaning to it.  We are not sure whether anyone will now challenge the Supreme Court to re-visit the earlier judgments and strike down some of the controversial provisions of ‘anti-conversion’ laws that seek to restrict the personal liberty of an individual to convert from one religion to another.   Given a different political climate and a different set of judges we may witness a revision of the earlier judicial pronouncements.

Concluding Reflection:  Constitutional rights are subject to limitations like any other freedom. Freedom and liberty has no meaning unless there are certain limitations. Every right is subject to public order, morality and health. These rights do not prevent the State from making any law imposing, reasonable restrictions on the exercise of any of the rights conferred either in the interests of the general public or for the protection of the interests of the scheduled castes and tribes, women, children, minorities, etc.  India claims to be a secular state but religion is at the core of its national life.  The separation of state from religion as practiced in the Western democracies is not what we follow, even though it was the intention of the constitutional drafters.  We have an integrated approach to life where the separation cannot become a reality.  We need to learn to respect each other in the midst of our diversity of beliefs and uphold the basic human rights.   Government legislation and judicial processes cannot reform our society.  It is important that in our everyday conversations we must seek to build peaceful communities wherever we live.   

‘Let my people go’ was the call that Moses gave to Pharoah as he led the movement to deliver the Israelites from slavery in Egypt (Exodus 5:1). The background to the ‘exodus’ event was the clarion call by God to His people to worship Him.  The country of Egypt and its slavery did not give the freedom for the Israelites to worship their God, the way they wanted to.  Freedom of religion is fundamental to the existence of human beings.  May we promote the inherent freedom given to us by God our creator to every person who lives in our country as we continue to profess our faith in Jesus and witness to the Good News!

John Amalraj, studied Law, Management and Theology and has served in corporate and mission organization leadership for more than 25 years.  He lives with his family in Pune and reflects on leadership and current affairs to serve as a resource person for churches and missions at large.

The views expressed in this article reflect the author’s personal opinions and are not necessarily the views of the publisher, editor or any of the associated church, society, institution or organization.

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[i] New World Encyclopedia contributors, "Cyrus the Great," New World Encyclopedia, http://www.newworldencyclopedia.org/p/index.php?title=Cyrus_the_Great&oldid=1007855 (accessed January 6, 2019).

[ii] New World Encyclopedia contributors, "Ashoka," New World Encyclopedia, http://www.newworldencyclopedia.org/p/index.php?title=Ashoka&oldid=1001690 (accessed January 6, 2019).

[iii] Pettinger, Tejvan. “Timeline of religious tolerance”, Oxford, UK – www.biographyonline.net. Last updated 3rd August 2014 (accessed January 6, 2019)

[iv] http://www.legalservicesindia.com/law/article/997/15/Hindu-Muslim-Christian-Personal-Laws-in-India, (accessed January 6, 2019)

[v] https://www.livelaw.in/supreme-court-said-triple-talaq-judgment-read-judgment/ (accessed January 6, 2019)

[vi] https://www.livelaw.in/the-sabarimala-judgment-i-an-overview/

[vii] https://www.indiatoday.in/india/story/sabarimala-indu-malhotra-dissenting-judgment-supreme-court

[viii] H. M. Seervai, Constitutional Law Of India, (Bombay: N.M.Tripathi Pvt. Ltd.), 1993, p. 1272.