Religion as Individual Affair and Constitutional Permissions in India: Gathering Comparative Perspectives of Practicing it and Religious Mark on the Body in Public Domain
Date
2025
Authors
Bhanu, A.P.
Sthapak, S.
Editors
Barker, R.
Andersen, C.
Alumari, M.
Andersen, C.
Alumari, M.
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Book chapter
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Comparative Approaches to Law and Religion: Methods and Epistemologies of Comparative Legal Analysis, 2025 / Barker, R., Andersen, C., Alumari, M. (ed./s), Ch.13, pp.322-349
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Arvind P. Bhanu and Sonia Sthapak
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Abstract
The freedom of religion has been guaranteed as a fundamental right since the inception of the Indian Constitution through its Article 25. It implies that the constitutional democracy has been set up on the pillars of secularism. In 1976, the term “secularism” was added to the preamble to make that express. Religion, as understood in the Indian Constitution, is a relation between an individual and God to purify one's spiritual conscience, meaning that what is essential to retaining this relation should be allowed. To ensure this, the “Essentiality Test” has been propounded by the Indian judiciary in order to know what is permitted by the Indian Constitution under Article 25. The United States leaves the question of what is essential and non-essential as to religious practice up to the individual. The debate over whether what constitutes essential features of the practice of religion should be left to the public or not, can be traced back to the debates of the Constituent Assembly of India, wherein it was proposed that an explanation should be attached to Article 25 that “no one would put on any religious mark on his body”. But as India was, and remains, a diverse country, this was not allowed. Since that time, it has been observed that religion has been occupying the central position in public life. Ideally, in a secular state like India, religion should be relegated to the private space, and it should not be allowed into any public space. The other side of this debate argues that increasing religion's occupation of the public domain encourages those who want to extract benefits by providing Marx's “opium to the masses”. This issue struggles with restrictions within the Indian Constitution, the rights of individual stakeholders, expectations of and from the judiciary, and the Indian state's political will and fundamental principles. The authors intend to find answers in this chapter through the application of a comparative methodology. It is contemplated that in order to identify the permitted beliefs, the formation of the Essentiality Test and the ‘face’ of belief in the public sphere, that comparative methodology involves finding the similarities and differences of secular character, analysing the secular aspects associated with religious practice, discovering the foundational basics of the Essentiality Test in the documents guaranteeing freedom of faith, examining conflicts against and within the Essentiality Test, analysis of fundamental statutes, case law and scholarly articles, identifying restrictive mechanisms to faith and religious practice, and the examination of other jurisdictions.
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© 2025 selection and editorial matter, Renae Barker, Camilla Baasch Andersen and Mohammad Rasmi Alumari; individual chapters, the contributors