Column: Contours of Freedom of Conscience

Bar & Bench September 19 2019
kulbhushan Jadhav

Satvik Varma

A Supreme Court Judge, speaking at a conference on freedom of expression last week, observed that our Constitution doesn’t spell out the right to freedom of opinion. The Judge stated that the right of freedom of conscience included within it the right to dissent, and went on to say that,“in a secular country such as India, a non-believer, an atheist, an agnostic, ritualistic or a spiritualist person all have the right to expression.”

Coincidently, a few days prior, the Madras High Court, pronounced a judgment holding that divergent views on philosophy must be allowed, and noted that while one set of people have rights to maintain views on religion and God, another have the right to disagree. What exactly is the constitutional scheme around these rights, particularly freedom of conscience, and how is it to be understood in the current socio-political milieu?

Article 25 of our Constitution enshrines freedom of conscience and involves freedom of thought and opinion and the right to profess a chosen religion. Not restricted only to citizens, the Article affords personal freedom to “all persons” which includes everyone, even aliens. “Conscience is the inmost thought or the sense of moral correctness that governs or influences the actions of an individual. One of the articulate and outward expressions of the conscience is religion.” The freedom guaranteed under this Article allows a person to entertain beliefs which such individual regards as being conducive to his spiritual wellbeing. Broadly, what is enshrined is the commitment of the State to protect an individual’s moral sense of right or wrong, which oftentimes is dictated by religious beliefs. 

But there is a fine distinction between freedom of conscience and religion. The framers of our Constitution presumably conceived this considering India’s vibrant pluralistic society and the need to accommodate people from different sects with varying beliefs under one State umbrella. Hence, the scope of protection under Article 25 goes beyond religious beliefs. As drafted, this provision affords, to all persons, freedom to harbor and express beliefs which may not necessarily be religious. For example beliefs towards sexuality, eating habits, anti-superstition or black magic. Freedom of religion on the other hand grants one the right to follow one’s faith, the established form of which gives a set of ethical norms to its followers and defines the rituals, observances, ceremonies and modes of worship. 

The Sabarimala case was one which saw the overlap of these freedoms when the Supreme Court juxtaposed religious practices with equality before law. In doing so, it ignored the freedom of conscience of devotees who claimed to be practicing a belief for many centuries on grounds of morality, amongst others. 

As Thomas Aquinas, the noted Italian philosopher and Catholic priest who argued that reason is only to be found in God observed, conscience is the application of moral knowledge to activity, therefore it primarily denotes aligning to a particular belief irrespective of where they may come from. This includes beliefs such as pacifism, atheism, skepticism, humanism or ‘none of the above.’ These have nothing to do with religion.  

Our Supreme Court recognizes freedom of conscience and has held that “no man possesses a right to dictate to another what religion he believes in; what philosophy he holds, what shall be his politics or what views he shall accept, etc.” A compromise on any of these principles is an attack on the rule of law.

At a time when the country is facing mass hysteria over the growing numbers of Muslims, it may be interesting to note that per the last census conducted in 2011 around 3 million people categorize themselves under “religion not stated.” This figure is 4 times more than the previous census which amounts to an average annual increase of 15%. This clearly suggests that rather than Muslims being the faster growing category, it is actually people with ‘no religion’ who have exponentially increased. Indian Courts accept that the ‘freedom of conscience’ encapsulates an individual’s right to be regarded under the ‘no-religion’ category. 

Topics other than religious beliefs, like political views, social thoughts and moral values form part of an individual’s freedom of conscience. And since freedom of conscience is the mental process of belief or non-belief, in layman’s language the freedom of thought, it could potentially be problematic to adjudicate upon owing to lack of certainty/consistency while interpreting purely ‘conscience’ issues. Yet, there is no reason to give up on any of these beliefs, which. 

In conclusion, given the intolerance currently plaguing our society, which has historically championed the cause of free thinking and expression, observations of the Supreme Court Judge should be seen as a herald for societal and judicial evolution. And till constitutional jurisprudence on the freedom of conscience grows, Courts are likely to adopt an ‘intermediate approach’ when dealing with issues of the mind which will only add more sinew to the living nature of our Constitution. 

 

Satvik Varma is a lawyer based in New Delhi and author of the book, Yes, I’m Opinionated.