Freedom of faith & reasonable restrictions

November 26, 2015 by  
Filed under newsletter-india

Religious freedomHaryana, November 25, 2015: Recently, a District Collector in Haryana passed an order prohibiting processions under Sec. 144 Criminal Procedure Code (Cr.PC), which resulted in a small local Church, being prevented from meeting. The High Court of Haryana in response to a Writ Petition upheld the right of the worshipers to congregate there and directed the police to provide them protection during their Sunday morning worship service. In another case, a District Collector in Tamil Nadu refused permission to continue worship services at a church premises on the grounds of purported communal disharmony and ill-will among people in the area. This action has been challenged and is presently pending adjudication in the appropriate Court of law.

Both these cases raise very important questions of law, on the reasonable restrictions that can be placed on the Fundamental Rights of every citizen recognized under Part III of the Constitution of India. No person can be divested of his Fundamental Rights. They are incapable of being taken away or abridged. The Constitutional protection available to the citizens of India for exercising their Fundamental Rights has great significance. Article 13 is indicative of the significance the framers of the Constitution intended to attach to the Fundamental Rights of the citizens. Article 13(2) emphatically states: The State shall not make any law which takes away or abridges the rights conferred by this Part and any law made in contravention of this clause shall, to the extent of the contravention, be void.

One should never lose sight of the fact, however, that there can be no unfettered personal right or liberty guaranteed to an individual without compromising the interests of the general public. There is a need to balance an individual’s liberties on one hand and the interests of the larger community on the other.

Hence, a person can claim Fundamental Rights against the State subject to the State imposing some permissible restrictions in the interest of social order. The term social order has a very wide ambit and includes “law and order”, “public order” as well as “security of the State”. The State can by exercise of its legislative power regulate these rights by imposition of reasonable restrictions on them.

A citizen can move the Supreme Court of India under Article 32 of the Constitution to enforce his Fundamental Rights. Every High Court is also conferred with the power to enforce Fundamental Rights by Article 226 of the Indian Constitution. The question that often requires the decision of the Courts in such matters is whether on the facts and circumstances of a particular case, the restrictions imposed on the Fundamental Rights by or under the authority of law actually lie in the sphere of “reasonableness” and whether their imposition was unavoidable for the greater common good.

The reasonableness of the restrictions are tested against the parameters provided for this purpose in Part III itself. For instance, the reasonable restrictions on the freedom of speech and expression guaranteed in Article 19(1)(a) are permitted by Article 19(2) only on the following grounds:
– In the interests of the sovereignty and integrity of India, the security of the State, friendly relations with Foreign States, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence.

In a pluralistic society like India, the Freedom of Conscience and free profession, practice and propagation of religion is vital and is guaranteed by Article 25 of the Constitution. However, this freedom is tempered by the following qualifiers – “Subject to public order, morality and health and to the other provisions of this Part”.

It is evident, therefore, that unreasonable and arbitrary restrictions imposed by the State will not stand up under judicial scrutiny. They are not valid unless they are unavoidable in a given situation and can never exceed the extent and duration essential to ensure public interest.

– adf india team

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