Lecture - Religion Through the Lens of Law

7/27/2019 Lecture - Religion Through the Lens of Law

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Justice M.Seshachalapathy Endowment Lecture delivered on 19 th February,2011 at NALSAR Law University, Hyderabad

by

Shri Justice M.N.Rao*

Reminiscences about Justice M.Seshachalapathy:

Justice M.Seshachalapathy was one of the outstanding Judges of the

Andhra Pradesh High Court. He contributed in a great measure to the growth

of jurisprudence, especially in the field of public law during the earlier stages of

the A.P. High Court. Known for great mastery over English Language, Justice

Seshachalapathi always was the object of admiration by senior members of the

Bar and adoration by juniors. His knowledge of law was really encyclopedic

and his memory, phenomenal. In the Court room he would reel off many an

important decision on constitutional law, administrative law rendered by the

English Courts and the American Supreme Court. As an youngster at the Bar I

used to marvel at the astounding learning of Justice Seshachalapathy. His

Court Hall would always attract knowledge seekers. Every discussion on

constitutional adjudication in his Court was an intellectual treat. At the end of

the arguments, he used to sum up what was argued by both sides and that

invariably enhanced the regard of the Advocates for the great learning and

articulation of the Judge.

Justice Seshachalapathys English accent was almost anglicized. He

was the most sought after Judge of the High Court to preside over intellectual

gatherings. His speeches were always heard with rapt attention not only for the

contents but also for the flavour of the language.

I had the fortune of appearing in a few matters before him independently

and in many with my Senior late Shri P.Babulu Reddy. He used to like juniors

very much and always encouraged them to study and analyze complicated

questions of law and facts which in itself was a great inspiration and support for

the junior members of the Bar.

Former Chief Justice of Himachal Pradesh and Chairperson, NationalCommission for Backward Classes.

Religion Through the Lens of Law:Neutrality of the State Secularization of

Religion


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None was equal to him in passing remarks very apt to the occasion

resulting in immediate laughter relieving the tedium of the Court atmosphere.

One instance I remember very clearly. One of the Advocates was struggling to

express a question of law in a Writ Petition he was arguing. Justice

Seshachalapathy immediately discerned the point and started giving hints to

enable the Advocate to catch up and present the correct proposition of law. But

the Advocate could not measure upto the task. Justice Seshachalapathy while

almost reaching the point of disgust shot a question at the Advocate what is

your good name?. The Counsel promptly answered Paropakari. Justice

Seshachalapathys immediate response was Calls himself Paropakari but

cannot help himself. The case was admitted and interim order granted. Thewhole Court Hall went up in peels of laughter.

In those days whenever an interim order was granted by a Judge, it was

common practice for the Advocates to ask for permission of the Court to

communicate the result by wire to the Respondent/Authority. Some Judges

used to grant permission and some judges used to decline. In Justice

Seshachalapahys Court the common response one used to get was By

wireless if you can.

For a long period Justice Seshachalapathy sat in the admission Court.

Many an eminent Counsel specialized in constitutional law had their initial

training in his Court. They later blossomed into famous lawyers Shri

Ramachandra Reddy, Shri Babulu Reddy, Shri Anantha Babu and Shri

P.A.Choudhary, to name a few.

In his Court English and American decisions were cited frequently by the

Advocates. Even in those days foreign Case law was cited before two or three

Judges only. At that time youngsters like me used to discuss in hushed tones

that with the exception of two or three knowledgeable judges others were not

conversant with English and American decisions and therefore no Counsel

could take the trouble of citing foreign decisions before those judges.

It is indeed a great privilege for me to deliver todays Endowment Lecture

instituted in the name of Justice Seshachalapathy, by his son Padma

Vibhushan Shri M.Narasimham garu, an internationally renowned economist

and former Governor of the Reserve Bank of India. I am immensely grateful to

Shri Narasimham for inviting me to deliver the Endowment Lecture this year.


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Religion Through the Lens of Law: Neutrality of the State Secularization of Religion:

It is commonly believed by Constitutional lawyers in all liberal

democracies governed by Rule of Law that there is total disengagement

between religion and law. This belief to a great extent is true of all

countries governed by written Constitutions and following Anglo

American- jurisprudence. In this lecture it is my endeavour to examine

this aspect and support my conclusion that religion and law irrespective of

the nature of the democratic system of government prevalent and the

phraseology found in the Constitution of any country, are inextricably

intertwined and no nation has so far succeeded totally in keeping the two

strictly apart. Religion and human kind are inseparable.

Considering the contours of the study you may be interested in

knowing why I have given this title: Religion through the Lens of Law.

Lenses are generally of two types - concave and convex. Concave ishollow -it is the interior of a circle or sphere i and convex is vaulted or

arched outline or surface curved like the exterior of a circle or sphereii. A

person with normal vision sees objects and things in their proper

dimensions- correct perspectives, unlike the one with defective vision. If

the defect is Hyper Metrophia (long sight) he cannot see nearer objects

since images fall behind the retina: to have correct vision he needs

convex lenses. If the defect is Myopia (short sight) he cannot clearly seedistant objects. For correct vision he needs conclave lenses. A person

with no defective vision, but wearing convex lenses sees objects and

things in magnified dimensions: if conclave lenses are used things and

objects appear smaller. In other words a short sighted person without

correction glasses will not see distant objects and one with long sight

cannot see nearer objects. Both categories need correction glasses to

have clear vision. Mirror, a third category is not relevant: we dont see

through the mirror since its back side is coated making it impossible for

light to pass through. You dont look through the mirror: you only look into

it. Religion as impacted by law looks differently in the mirror of law

depending upon the judges who interpret it and the lens through which

the question is viewed by them. As we examine the divergence of judicial

opinion on religion as impacted by law and the intertwining between the

two as revealed in judicial decisions, what emerges is a foggy picture.


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That is why I thought it appropriate to give the title Religion Through the

Lens of Law: Neutrality of the State Secularization of Religion to this

lecture.

Religion according to Encyclopedia Americana iii is

. the pattern of belief and practice through whichmen communicate with or hope to gain experience of thatwhich lies behind the world of their ordinary experience.Typically it focuses on an ultimate or absolute, thought ofby some believers as God.

In ancient societies the Rule of law was nothing but the rule of

religion. Social harmony was achieved and maintained mainly due to all

the members having full faith in a common religion which was a

cementing factor leaving no scope for emergence of plurality of religions.

Religion as everyone accepts is founded on faith and reason cannot

explain its rational basis. There is no universally acceptable definition of

religion: its meaning and interpretation differed vastly- Scientists,

Philosophers, Saints and Statesmen viewed religion from different

angles. Sir Julian Huxley, a renowned scientist who synthesized

philosophy with science expressed the view-

religion is the product of a certain type of interactionbetween man and his environment. It always involves anemotional component- the sense of sacredness. It alwaysinvolves a more than intellectual belief a sense ofcompulsive rightness. It is always concerned with a sense ofhuman destiny and with a way of life. It always brings thehuman being into some sort of felt relation with powers oragencies outside his personal self. It always involves somesort of escape from inner conflict

From the point of view of theology religion has dual functions :

(1) Rationalism giving coherent explanations in rationalterms for acts and feelings which arise from instinctive andtherefore irrational sources,

(2) Providing satisfactory emotional relation to humanbeings with non human environment, regarded as utter destinyor fateiv.

The great Saint Shri Aurobindo believed that the essential function

of religion is:


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the search for God and the finding of God.

According to him the present knowledge being imperfect the validity

or correctness of any religious concept cannot be proved or explained

with the help of reasonv. No scientific analysis of any religion will yield

absolute truths and that accounts for the existence of plurality of religions.

Religion did not abruptly surface in the primitive societies. The evolution

of religion according to Huxley was determined principally due to the

influence of:

(1) Material and social conditions of the period; and

(2) Its own emotional and intellectual momentum- theresultant situation compelled the necessity of recognizingthe existence of a supernatural being God and total

surrender to him.

God is a human product arising inevitably from a certainkind of ignorance and a certain degree of helplessness withregard to mans external environmentvi.

Social behaviour was controlled by faith in religion leading to the

evolution of religious tenets metamorphosing into legal rules compelling

obedience in all walks of life. The merger of law and religion was thus

total and complete. This congenial situation ensured full social control.

The ruler was the law giver and his command carried implicit obedience

and failure to do so resulted in punishment. Knowledge of law which

emanated thus was confined only to a few mostly belonging to priestly

class without any necessity of codification. In course of time the priestly

class gained power as administrators of law since priesthood involvedduties relating to religion which also had the imprimatur of law.

The next stage of development was towards codification of law, the

propelling force chiefly being invention of writing. When rules regulating

the social behaviour were codified the posterity enjoyed the great

advantage of knowing what the law is. Diffusion of legal tenets thus

ensured certainty and prevented abuse of the system. Roman law, it is


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universally recognized is one of the earliest to have a written code. Hindu

Law in this regard suffered to a great extent absence of codification

made it almost impossible for the future generations to understand what

precisely the legal rules are. Even the authenticity of Manusmiriti was

doubted on the ground that it contained the views of many commentators

who engrafted their personal views attributing their source to Manu. The

uncertainty was so great that the Hindu Mythology described Manu as an

emanation from the Supreme God. About this Sir Henry Maine said:

the compilation which bears his name (Manu), though its

exact date is not easily discovered, is in point of the relativeprogress of Hindu jurisprudence, a recent productionvii,

Roman Code was compiled while the usage was still thewhole some.

Comparing Hindu and Roman jurisprudence Sir Henry Maine said :

The Roman code was merely an enunciation in words of theexisting customs of the Roman people.the fate of Hindu Law

is in fact the measure of the value of the Roman code

viii

.

Evolution of Law:

The nineteenth century had seen the emergence of law in a

different incarnation. The relevance and usefulness of legal system came

under scrutiny with reference to social utility and social good. The science

of society called Sociology emerged with the demand that law should

cater to the needs of society and social control should not be confined to

social status quo which was a medieval concept. The science of

sociology owed its growth to the social philosopher Comte in the

nineteenth century. The development of sociology resulted in the existing

basic tenets of legal system coming under attack from the people

demanding structural changes in law to suit social advancement. Thus

law came to be considered as an instrument of social change. Social

cohesion would be possible only by social control through properly

structured law. Religion, law and morals are some of the well recognized

agencies of social control. Examination of legal system from sociological

perspectives necessarily resulted in religious principles distancing from

legal principles.


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In theocratic States, social cohesion became possible because of

fusion of law, religion and morals which are interconnected with no

possibility of separation. Social cohesion became possible because of the

entire edifice resting on a single religion. The raison d etre of the nation

and the religion being one and the same, no part of human activity was

left out of the purview of the religion.

The birth of pluralistic societies had changed the position radically

distancing religion from law.

Discernable in the decisional law is wide range of views expressed

by judges, sometimes adhering to traditional concepts and at other times

giving new interpretations depending upon their views on the question.

When an abstract emotive and subjective topic like religion which is

associated with the very way of living and thinking of everyone in society

comes up for judicial interpretation we find many manifestations of

religion and law- the narrowing of the distance between social forces and

religious forces with law lending legitimacy to both. Various

manifestations of religion intertwined with law emerge- religious customs,

usages, beliefs, right of worship, marriage, succession, adoption, right to

livelihood in the form of employment, reservation of claim to elective

offices and struggle of secularism to extricate from religion.

Attempts to wipe out religion by means of temporal power and

political philosophy aimed at social transformation have failed. The

appeal of Karl Marx that the society should get rid of religion did not

succeed. His exhortation failed to change the people in the communist

countries.

Marx said it is the opium of the people.. the abolition of

religion as the illusionary happiness of people is required for their real

happiness. The demand to give up the illusions about its conditions is the

demand to give up conditions which need illusions ix.

The three important religions in India are Hinduism, Islam and

Christianity. It is universally accepted that the word Hindu is referrable to


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the people living on the Indian side of Sindhu River (Indus)x. About

80.5% of Indias population belong to Hinduism. Chief Justice

Gajendragadkar speaking for the Constitution Bench in Sastri

Yagnapurushadji & Ors. Vs Muldas Bhudardas Vaishya & Anrxi while

stating that it was difficult though not impossible to define Hindu religion

observed:

Unlike other religions in the world, the Hindu religion does notclaim any one prophet; it does not worship any one God; itdoes not subscribe to any one dogma; it does not believe inany one philosophic concept; it does not follow any one set of

religious rites or performances; in fact, it does not appear tosatisfy the narrow traditional features of any religion or creed.It may broadly be described as a way of life and nothingmore.

It implied residence in a well defined geographical area.Aboriginal tribes, savage and half- civilized people, thecultured Dravidians and the Vedic Aryans were all Hindus asthey were the sons of the same mother. The Hindu thinkers

reckoned with the striking fact that the men and womendwelling in India belonged to different communities,worshipped different Gods, and practiced different rites(Kurma Purana).

The Learned Chief Justice also approvingly referred to the views of

Monier Williams:

The Hindu religion is a reflection of the composite character ofthe Hindus, who are not one people but many. It is based on theidea of universal receptivity. It has never aimed ataccommodating itself to circumstances, and has carried on theprocess of adaptation through more than three thousand years.It has first borne with and then, so to speak, swallowed,digested, and assimilated something from all creedsxii.

Hinduism despite the above description believes in the existence ofone Supreme Being. In the words of Dr.Radhakrishnan :

The maintenance of the Hindu faith is to permit imageworship as a means to the development of the religious spirit,to the recognition of the supreme who has His temple in allbeingsxiii.


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Islam and Christianity adhere to monotheism. Almost 13.4% of

Indias population practice the faith of Islam. Islam is an Arabic word

meaning submission, surrender and commitment. Mohammad is the

prophet and the followers of Islam are known as Muslims i.e submitters to

Godxiv. Quran is the holy book of Islam, it is a divine revelation to prophet

Mohammad, the messenger of God.

Christianity was founded by Jesus Christ. The three major divisions

among Christians are Roman Catholic, Protestants and Eastern orthodox.

Christians believe in the reality of God. Christians constitute 2.3% of our

total population. Christians believe in one God and follow one book- the

Bible.

At the foundation of Christian structure of belief is theaffirmation of God in terms of creation and of fatherly concernfor manxv.

Buddhism, Jainism and Sikhism aim at reforming Hinduism: they

came into being as reformist movements.

The Sikh religion combines elements of Islam and Hinduism... Guru

Nanak, founder of Sikh religion and its first Guru (teacher), was a

sixteenth century Hindu mystic who had studied both Hinduism and

Islam.. The core of his beliefs was Hindu but he was undoubtedly

greatly influenced by Islam Nanak believed in a monotheistic deity

whom he designated Sat Nam (true name) and He who had created all

men equalxvi.

The Sikhs constitute 1.9% of Indias population; Buddhists number

is very negligible only 0.8%, while that of Jains is much smaller 0.4%.

Approximately 18% of Indias population belong to religious minorities.

Buddhism was founded by Siddhartha Gautam who became after

enlightenment Lord Buddha. The religion he preached was a kind of

Protestantism aimed against the religious- social monopoly of the

Brahmanic caste of priests. As Gautamas views were egalitarian, he

maintained that dharma was not a religious or social preserve of a few,

but an entity available to all. The core of the doctrine is the realization of

certain basic truths: the universality of suffering and its cause and the


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practical way by which suffering may be overcome. Thus Buddhism is at

once a philosophy of life and a practical discipline. At the same time it is a

religion, in that the practice of the way leads to salvationxvii.

About Jainism Encyclopedia Americanaxviii says:

Jainism, is an ancient monastic religion of India. It is aheterodox religion denying the validity of the Vedic(ancient Hindu) scriptures, pantheon, and ritual and theauthority of the Brahman priesthood. Its approximately twomillion followers are known as Jains (Sanskrit Jaina).

United Kingdom:

The official religion in the United Kingdom is protestant faith of

Christianity. The British sovereign must be a protestant by faith. Inspite of

this the State guarantees to every individual the freedom to practice any

religion. The United Kingdom being the oldest democracy in the world

although has a titular monarchy has been for over a long period

maintaining high traditions in the matter of protecting religious freedom.

The absence of written Constitution and the absolute power of British

Parliament did not hamper the rights of religious minorities and the

sections of Christianity not belonging to the protestant faith.

United States of America

In the United States it was felt by the Founding Fathers of the

Constitution that religion must be separated from the State and that there

should be a wall of separation between religion and State. The State

should not make any decisions affecting religion based values or tenets.

James Maddison who introduced the First Amendment of the

Constitution in the Congress expressed the view:

the religion of every man must be left to the conviction andconscience of every man. In matters of religion no mans rightis to be abridged by the institution of civil society; religion iswholly exempt from its competencexix.


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The provisions concerning religious freedom and non discrimination

by the State were not engrafted in the original Constitution enacted in

1787. Religious freedom and prohibition against establishment of religion

by the State are found in the First and the Fourteenth Amendments and

to a certain extent Article 6 of the Constitution also adverts to religion:

Section 2 of Article 6, commands that .no religious test shall ever be

required as a qualification to any office or public trust under the United

States. The first ten amendments which are popularly called Bill of

Rights- containing the universally accepted fundamental freedoms were

added in 1797. The Fourteenth Amendment which became part of the

U.S Constitution in 1868 extended the application of the First Amendment

to the States also.

The First Amendment in so far as it deals with religion reads:

Congress shall make no law respecting anestablishment of religion, or prohibiting the free exercise

thereof; .

Section 1 of the Fourteenth Amendment which is relevant reads:

Section 1. All persons born or naturalized in the UnitedStates, and subject to the jurisdiction thereof, are citizens of theUnited States and of the State wherein they reside. No Stateshall make or enforce any law which shall abridge the privilegesor immunities of citizens of the united States; ..xx.

The prohibition contained in the First Amendment against the

Congress is two fold:

(1) No law can be made by the Congress to establish areligion,

(2) It cannot also make any law prohibiting not only theexercise of a religion but the free exercise of any religion.

The above Constitutional restrictions have positive and negative

contents. Free exercise of religion implies not only ordinary exercise of

religion but it is something more; what is guaranteed is the free exercise

of religion. It is a positive guarantee in favour of the citizens. Negatively

restriction is placed on the Congress forbidding not only to establish a

religion but also to ban any existing religion. How judicial interpretation

enlarged and amplified the scope of the content and amplitude of the


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above makes an interesting study. Non-establishment of a religion and

disfavouring of any religion are both covered by the same prohibition.

Non discrimination in respect of all religions and religious institutions is

the mandate of the Constitution.

It is a historical fact that the early settlers of the United States were

Catholics from Britain who founded the nation. They suffered the tyranny

of Protestantism practiced in England and that experience made them

realize that State should not mix religion with any secular activity. They

could well have established a Catholic State, but they formed a truedemocracy guaranteeing freedom and liberty to all sections, they

consciously opted for separation of religion from the State. It is significant

to note that there was no religion worth mentioning other than Christianity

when the Americans adopted their Constitution in 1787.

How the United States Supreme Court interpreted Religious Freedom:

Whether religious belief is a valid defense when charged with a

crime:

The first case that arose in the United States in which the

proposition whether religious belief could prevail over the enacted law of

the land was in 1878 in Reynolds Vs United Statesxxi. The Legislature of

the State of Utah enacted a law making bigamy an offence carrying

punishment of imprisonment for a term of not more than five years and a

fine not exceeding $ 500. One of the pleas taken by George Reynolds-

the accused- Defendant is that he was a member of the Mormon Church

and it was an accepted doctrine of that Church to practice polygamy

which they believed was ordained by the almighty God in a revelation tothe founder of the Church, Joseph Smith. The doctrine prescribed the

penalty of damnation in the life to come for failure on the part of any

male member of the Church to practice polygamy when circumstances

permitted.

The Supreme Court considered the question whether religious

belief can be accepted as a justification of an overt act made criminal by


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the law of the land. Chief Justice Waite who delivered the opinion of the

court while accepting the proposition that the First Amendment to the

Constitution guarantees religious freedom everywhere throughout the

United States squarely posed the question for consideration: what is the

religious freedom which has been guaranteed? The Chief Justice

referred to the Constitutional developments leading to the passing of the

First Amendment and accepted the view expressed by Thomas Jefferson

as the authoritative declaration of the scope and effect of the

amendment. The view of Jefferson is:

Believing with you that religion is a matter which lies solelybetween man and his God; that he owes account to noneother for his faith or his worship; that the legislative powers ofthe government reach actions only, and not opinions, --Icontemplate with sovereign reverence that act of the whole

American people which declared that their legislature shouldmake no law respecting an establishment of religion orprohibiting the free exercise thereof, thus building a wall ofseparation between church and State. (emphasis added)

Adhering to this expression of the supreme will of the nation on

behalf of the rights of conscience, I shall see with sincere satisfaction the

progress of those sentiments which tend to restore man to all his natural

rights, convinced he has no natural right in opposition to his social

duties. (emphasis added)

The Chief Justice adverted to the fact that at common law the

second marriage is always void and declared polygamy has always been

odious among the northern and western nations of Europe,---and until the

establishment of the Morman Church, was almost exclusively a feature of

the life of Asiatic and of African people --- from the earliest history of

England polygamy has been treated as an offence against society.

He concluded that

it is impossible to believe that the Constitutionalguarantee of religious freedom was intended to prohibitlegislation in respect to this most important feature ofsocial life.


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While upholding the constitutionality of the law the Chief Justice posed

the next question:

Whether those who make polygamy a part of their religion areexcepted from the operation of the statute?

The clear answer furnished is that laws made by the State cannot

interfere with mere religious beliefs and opinions but they can interfere

with religious practices. Examples of Barbarian practice like human

sacrifices and Sati were cited in the judgment.

It is significant to notice that in the Reynolds case the question of

legislative competence of the Congress prohibiting polygamy was not an

issue and this was made explicit in the course of the judgment. What fell

for consideration was whether a person who knowingly violates a law

properly enacted can escape the punishment because of his religious

belief that the law is wrong. Laws will not be struck down on the basis of

belief that they are wrong: the universally accepted test is whether the

impugned law was in breach of any of the provisions of the Constitution.

Judging from that point of view the court rightly accepted the view of

Jefferson that no one has a natural right in opposition to his social duties.

The supreme will of the nation as manifested in the Constitution would

not permit anyone to assert anything in breach of social duties. The

conclusion of the court leaves no one in doubt that the congress was

free to reach actions which were in violation of social duties or

subversive of good order. The finding of the Court that polygamy is an

offence against the society warranting severe punishment was based

upon the acceptance of the view of Prof. Lieber that polygamy leads to

patriarchal principle, which when applied to large communities, fetters the

people in stationary despotism, while that principle cannot long exist in

connection with monogamy.

The court correctly visualized the situation that if the plea of

religious belief is accepted: those whose religious belief is polygamy

would be acquitted and others whose religious belief is not polygamy but

practice the same would be punished. Apart from introducing a new

element in criminal law it would also be in breach of the Fourteenth

Amendment equal protection of law. Thus Reynolds case remains an


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authority for the proposition that any and every religious belief is not

protected by the First Amendment and that the court can examine the

substance and contents of the religious belief pleaded in defense.

Jehovahs Witnesses :

A religious group called Jehovahs witnesses started spreading its

doctrines in the 1930s. Apart from propagating bizarre views, the sect

resorted to virulent campaign of denouncing the organized religion of

Christianity and the Churches especially of Roman Catholics. Every State

action aimed at curbing their activities met with stiff resistance including

legal battles ostensibly for protecting the beliefs of its members. The

cases that came up before the Supreme Court concerning Jehovahs

witnesses cover a wide range from honouring the National Flag to the

sale of religious literature. What is astonishing is in about more than thirty

cases brought by Jehovahs witnesses they succeeded to a great extentin asserting their religious beliefs and the freedom to hold their beliefs

under the Constitution.

Respect to National Flag and Religious Belief-

The National Flag of any independent country is a symbol of itspride and the goals it cherishes. The whole nation accepts the flag as a

unified symbol reminding the people of their past sacrifices present pride

and future objectives. The National Flag reflects the dreams, deeds and

desires of the people. To uphold its honour no sacrifice is supreme and

history is replete with countless examples of people laying down their

lives to defend the honour of the flag since the flags honour is the

Nations honour.

The United States Supreme Court by an overwhelming majority of

8 against 1 in Minersville School District Vs Gobitisxxii, (1940) upheld the

action of the Pennsylvania District School Board in expelling two children

from the schools for their refusal to salute the National Flag as part of the

school exercise. The children belonged to a family of Jehovahs


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witnesses and the belief of the religious sect was that they should not

bow down before any graven image (carved image). Their refusal

because of their belief to salute the flag resulted in their expulsion. By an

overwhelming majority of 8 to 1 the Supreme Court upheld the action of

the school Board. Justice Frankfurtur who wrote the majority opinion

accepted the proposition that affirmative pursuit of ones convictions

about the ultimate mystery of universe and the mans relation to it is

placed beyond the reach of law and that such beliefs may not be

interfered by the Government. He also agreed that propagation of belief

or disbelief in the supernatural is protected. The conception of religious

duty according to him may conflict with the secular interest. He posed the

question: when does the promotion of some great common end which the

society thinks is necessary will prevail over religious belief?

The judges answer was: The Constitutional guarantee about

religious liberty has not excluded the legislation of general scope:

Conscientious scruples have not, in the course of the longstruggle for religious toleration, relieved the individual fromobedience to a general law not aimed at the promotion orrestriction of religious beliefs. The mere possession ofreligious convictions which contradict the relevant concerns ofa political society does not relieve the citizen from thedischarge of political responsibilities.

Answering the question whether Gobitis children must be excused

from conduct required of all the other children in the promotion of national

cohesion, he held :

National unity is the basis of national security.

Cautioning the judges that their personal notions should have norelevance in judicial determination, he expressed the view:

The ultimate foundation of a free society is the binding tie ofcohesive sentiment. Such a sentiment is fostered by all thoseagencies of the mind and spirit which may serve to gather upthe traditions of a people, transmit them from generation togeneration, and thereby create that continuity of a treasuredcommon life which constitutes a civilization. We live by

symbols. The flag is the symbol of our national unity,


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transcending all internal differences, however large, within theframework of the Constitution. (emphasis added)When the religious convictions are at variance with the concerns of

the political society the citizen is not relieved from the discharge ofpolitical responsibilities. Accepting the fact that there shall be no

independent judgment by the courts in educational matters concerning

the wisdom of training children in patriotic impulses, the Constitutional

philosophy declared by Frankfurtur is:

But the court-room is not the area for debating issues ofeducational policy. It is not our province to choose amongcompeting considerations in the subtle process of securingeffective loyalty to the traditional ideals of democracy, whilerespecting at the same time individual idiosyncrasies among apeople so diversified in racial origins and religious allegiances.So to hold would in effect make us the school board for thecountry. That authority has not been given to this Court, norshould we assume it.

Explaining what does the flag stand for and why flag salute is

important, Frankfurtur concluded:

The preciousness of the family relation, the authority andindependence which give dignity to parenthood, indeed theenjoyment of all freedom, presuppose the kind of orderedsociety which is summarized by our flag. A society which isdedicated to the preservation of these ultimate values ofcivilization may in self protection utilize the educationalprocess for inculcating those almost unconscious feelingswhich bind men together in a comprehending loyalty, whatevermay be their lesser differences and difficulties.

The only dissenting view was by Justice Stone who proceeded on

the assumption that the religious beliefs are genuine and the refusal to

salute the flag is in good faith and with all sincerity. Compelling the

children of the particular religious sect to do what their religion forbids

amounts to denial of their faith and deprivation to have religious

convictions. Viewing the question from this angle the dissenting judge

held that the coercion exerted by the State

violates their (children) deepest religious convictions.


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In times of war and for raising armies the State may compel

citizens to join military services despite the religious objections of the

citizens. If religious practices are dangerous to morals, public safety,

health and good order Government may interfere with the rights of the

First Amendment. But the supposed educational measure as a means of

disciplining the children, the State cannot compel public affirmations.

On the question that flag salute will contribute to national unity

justice Stone declared that even if it is believed to be so:

there are other ways to teach loyalty and patriotism which arethe sources of national unity than by compelling the pupil toaffirm that which he does not believe and by commanding aform of affirmance which violates his religious convictions.

The dissenting judges conclusion is:

The Constitution may well elicit expressions of loyalty to

it. And while such expressions of loyalty, when voluntarilygiven, may promote national unity, it is quite another matter tosay that their compulsory expression by children in violation oftheir own and their parents religious convictions can beregarded as playing so important a part in our national unity asto leave school boards free to exact it despite theconstitutional guarantee of freedom of religion.

Taking guidance from the reasoning and the principles laid down in

Gobitis case, the Legislature of West Virginia enacted a law requiring theschools to conduct courses of instruction in History, Civics, and

Constitution of United States. Both the private and public schools were

required to comply with this law. The Board of Education on 9.1.1942

adopted a resolution based upon the Gobitis opinion ordering flag salute

a regular part of the program of the activities in public schools. This was

the subject matter of challenge by Jehovahs witnesses in West Virginia

State Board of Education Vs Barnettexxiii. What is surprising is the total

change of view by the Supreme Court. The two justices - Black and

Douglas - who sailed with the majority in the Gobitis case and agreed

with the view of Frankfurtur suddenly opted for the opposite view. They

joined the majority in declaring the flag salute as unconstitutional. After

changing their minds speaking for the majority Justice Jackson declared:


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words uttered under coercion or proof of loyalty to nothing butself interest. ----Love of country must spring from willing heartsand free minds, inspired by fair administration of wise lawsenacted by the peoples elected representatives within the

bounds of express Constitutional prohibitions.

In a separate opinion Justice Murphy agreed with the majority.

Some of the events subsequent to Gobitis case compel our

attention. Justice Stone who was the lone dissenter in Gobitis case

became Chief Justice after the retirement of Chief Justice Hughes on 30 th

June 1940. Except three judges the rest have agreed with Justice

Jackson including Chief Justice Stone. The earlier dissenting view of

Justice Stone became the majority opinion now.

The reasoning for overruling the earlier view appears to be highly

unrealistic. The First Amendment is placed at a very high pedestal while

at the same time declaring that the legislature can impose restrictions onrational basis only to prevent grave and immediate danger to the

interest of the State. Referring to the earlier majority view of Frankfurtur in

Gobitis case that courts do not have expertise in matters pertaining to

education, the majority opinion in an inconsistent manner declares:

We cannot, because of our modesty estimates of our

competence in such specialities as public education, withholdthe judgment that history authenticates as the function of thiscourt when liberty is infringed.

Adherence to flag salute was viewed very disproportionately by

comparing it with Roman Empires attempt to stamp out Christianity and

Russias action in exiling dissidents to Siberia. The flag salute issue was

magnified as a totalitarian measure which would only achieve:

the unanimity of the graveyard.

The existing order could be challenged by dissent which is constitutionally

protected is Justice Jacksons belief:


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We can have intellectual individualism and the rich culturaldiversities that we owe to exceptional minds only at the priceof occasional eccentricity and abnormal attitudes. When theyare so harmless to others or to the State as those we deal with

here, the price is not too great. But freedom to differ is notlimited to things that do not matter much. That would be amere shadow of freedom. The test of its substance is the rightto differ as to things that touch the heart of the existing order.

In a powerful dissent Justice Frankfurtur (a jew) gave vent to his

dissatisfaction and anguish. Striking a personal note he declared:

One who belongs to the most vilified and persecuted minorityin history is not likely to be insensible to the freedomsguaranteed by ourConstitution.

Cautioning that personal opinion should not colour the judicial

verdict he declared that the duty of a judge in deciding whether the claim

of the State to enforce laws within its competence or the refusal of an

individual to obey the law because of the demands of his conscience is

not that of the ordinary person.

The due process clause cannot give power to the court authority to

deny to the State of West Virginia to enact the law in question the object

of which is promotion of good citizenship. He drew support from Justice

Holmes who held the view that legislatures are ultimate guardians of the

liberties and welfare of the people in quite as a degree as the courts

which is the very essence of the American Constitutional system and

democratic conception of the society. Justice Frankfurtur also drew

support from the view of Justice Holmes that responsibility for legislation

lies with the legislatures answerable directly to the people and

this courts only and very narrow function is to determinewhether within the broad grant of authority vested in

legislatures they have exercised the judgment for whichreasonable justification can be offered.

Posing the precise question namely the right of the State to compel

participation in flag salute by those who choose to attend the public

schools, he declared that legislative power is not absent when a non

discriminatory civil regulation touches conscientious scruples or religious

belief of an individual or group. The States need not justify flag salute as


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the only measure for promoting good citizenship but merely as one of

diverse means for accomplishing a worthy end. He ruled that:

this court is not the organ of Government to resolve doubts asto whether it will fulfill its purpose. Only when a reasonablemind entertains doubt the court can deny to the State the rightto resolve doubts their way and not ours.

The refusal to salute the national flag on grounds of religious belief

was upheld by the Supreme Court as we have seen on the basis of the

First Amendment concerning Establishment clause and Free Exercise of

Religion. The second limb of the First Amendment prohibits the Congress

from making any law abridging the freedom of speech... Cases

dealing with the second limb do not fall within the ambit of the present

lecture, and so I have omitted them.

Compulsory Military Service and Religious Belief:

Duty to defend the nation by all able bodied persons by joining the

armed forces is considered in all countries as an act of patriotism. If a

person tries to avoid such a duty on the ground that his conscience does

not permit because of his religious belief whether he can be excluded

from military duty? The University of California by virtue of the provisions

contained in the State Constitution issued a direction that all able bodied

students below the age of twenty seven in the University should enroll in

and complete a course in military science. The guardians and the parents

of the students belonging to Methodist Episcopal Church and of the

Epworth League questioned the Constitutionality of the above direction in

Hamilton Vs Regents of University of Californiaxxiv. The above religious

organization passed resolutions between 1928 and 1933 renouncing war

as an instrument of National Policy and reiterating full faith in the efficacy

of Paris Peace Pact which had renounced war and opted for resolutionof disputes by peaceful means. The law was challenged on the ground

that persons belonging to the above religious organizations are bound by

the tenets and discipline of their religion that:

war, training for war and military training are immoral, wrongand contrary to the letter and spirit of ---- the Christian religion.


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The Supreme Court upheld the action of the University. The

opinion of the court was delivered by Justice Butler. The reasoning of the

court is very convincing. The court accepting the fact that the due

process clause includes the right to entertain beliefs and doctrines on

which students base their objections to join the Military training. There

was no compulsion for them to join the University and when they are

receiving education offered by the State they cannot insist upon

exemption from the prescribed course because of their religious belief. It

is the duty of the Federal and State Governments to maintain peace and

order and just enforcement of law:

every citizen owes the reciprocal duty according to itscapacity to support and defend the Government against allenemies.

The amplitude of the Fourteenth Amendment, the court held would

not allow a person to escape from his duty to the State however arduous

it may be. An earlier judgment of the Court in Jacobson VsMassachusettsxxv in which the view of the court Stated in a different

context was restated:

.And yet he may be compelled, by force if need be, againsthis will and without regard to his personal wishes or hispecuniary interests, or even his religious or politicalconvictions, to take his place in the ranks of the army of hiscountry, and risk the chance of being shot down in itsdefense.

When the duty of the State to protect its citizens and the

corresponding obligation of the citizen to support and defend the

Government was put on a high Constitutional pedestal justified by the

Fourteenth Amendment, objections based upon conscience and religion

do not arise out of the Constitution but from legislation enacted by theCongress and this was made explicit by the court in the Hamilton case xxvi.

Every State has got authority to train its able bodied citizens and entrust

them with a duty to serve in the army or police force is put beyond the

pale of any legal doubt.


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Justice Cardozo correctly reStated the legal principle that courts

should not interfere in matters of religious policy. He drew the distinction

between free exercise of religion and instruction in military science.

Instruction in military science is not instruction in the practiceor tenets of a religion. Neither directly or indirectly isgovernment establishing a State religion when it insists uponsuch training. Instruction in military science, unaccompaniedby any pledge of military service, is not an interference by theState with the free exercise of religion when the liberties of theConstitution are read in the light of a century and a half ofhistory during days of peace and war.

Misguided martyrdom in the words of Cardozo:

One who is a martyr to a principle which may turn out in theend to be a delusion or an error --- does not prove by hismartyrdom that he has kept within the law.

But in subsequent legislations enacted by the Congress and

different States where exemption was provided from military service on

the basis of conscience grounded in religious belief, the Supreme Court

watered down the above principle by giving sometimes narrow

interpretation and sometimes wider interpretation to the objections raised.

Supreme Being Discussed and Explained -

Whether religious belief could save a person from participation in

war was examined by the Supreme Court in United States Vs Seegerxxvii.

The Universal Military Service and Training Act by Section 6 (j) exempts

from combatant service in the armed forces those who are consciously

opposed to participation in war by reason of their religious training and

belief i.e an individuals belief in relation to a Supreme Being involving

duties superior to those arising from any human relation, but (not

including) essentially political, sociological, or philosophical views or a

merely personal moral code.

The exemption includes those who base their views on political,

sociological or economic considerations that war is wrong. The narrow


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question the court discussed is whether the expression Supreme Being

as used in section 6 (j) means the orthodox God or the broader concept

of a power or being a faith

to which all else is subordinate or upon which all else isultimately dependant.

The opinion of the court was by Justice Clark and a separate

opinion was given by Justice Douglas concurring with Clark. What was

the intention of the Congress in using the phrase Supreme Being wasconsidered by Justice Clark. The judge said that there are 250 sects

inhabiting the United States including Hindu religion which describes the

Supreme Being as transcendental reality which is truth, knowledge and

bliss and Buddhists who strive for a State of lasting rest through self

denial and inner purification and concluded that the Congress deliberately

substituted the phrase Supreme Being for the expression God.

Justice Clark observed that inspite of the illusive nature of the

enquiry, there are certain guidelines available. The Congress adopted the

language of Chief Justice Hughes in United States Vs Macintoshxxviii. The

essence of religion is:

belief in relation to God involving duties superior to thosearising from any human relation.

The test laid down was whether a sincere and meaningful belief

which occupies in the life of its possessor a place parallel to that filled by

the God of those admittedly qualifying for the exemption, comes within

the statutory definition.

This test was evolved in order to avoid imputing to the Congress an

intention to classify different religious beliefs, exempting some and

excluding others. Reference was made to the House debate on the bill

and the Statements made by some of the Congressmen. Two precedents

United States Vs Kauten and Herman Berman Vs United States were

referred to in which it was held that exemption must be based solely on

religious training and belief. The conclusion reached is that a valid

exemption from religious service should be based on grounds that can


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fairly be religious and that was the policy of the Congress in enacting the

law.

The truth of a belief was not open to question but the question to

be considered was whether the belief was truly held. The use of the

words merely personal in the opinion of the court are intended to

restrict the exception to a moral code which is not only personal but

which is the sole basis for the registrants belief, and is in no way related

to a Supreme Being.

Justice Douglas in his concurring judgment referred to both

Hinduism and Buddhism among the faiths and reached the conclusion

that Hinduism believes in one single God, the eternally existent one

being, although Hindus worship many deities. The expression Supreme

Being has no narrow technical meaning. He also referred to the

philosophy of Sankara in which the material world is conceived as

illusion in highest truth. He referred to Buddhism that Buddhism knew no

God and that belief in God was not essential for Buddhism. The

Buddhists concept of Nirvana he equated with the State of oneness with

God, the belief of some Christian mystiques and he concludes that

Buddhism tolerates one God. The presence of Buddhist sect in Hawai

was also taken note of by Douglas to reach the conclusion that the

expression Supreme Being was not used in a narrow sense by the

Congress. He agreed with the majority opinion of the court that any

person opposed to war on the basis of a sincere belief, which in his life

fills the same place as a belief in God fills in the life of an orthodox

religionist is entitled to exemption under the Statute.

The abstract concept of Supreme Being was explained by the

Court in a realistic manner taking note of the fact that several religioussects are inhabiting the United States and that no single religious sect

should be allowed to take advantage of its own concept of Supreme

Being, to the exclusion of the other Sects. Both theists and non theists

beliefs have been referred to and the ultimate conclusion of the court is

that all religions believe in the existence of the Supreme Being whether

the same is worshipped as one God or the worship extends to

worshipping many deities as incarnation of one God.


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Justice Harlan who joined the opinion of the court in Seeger case

declared subsequently while writing his concurrent opinion in Welsh Vs

United Statesxxix that he had gravest misgivings whether what was done

was a legitimate exercise in statutory construction. In Welsh case the

question was whether the exemption on the basis of individuals

conscience is to be given effect to only when his views emanate from

theistic religious belief and whether Congress could enact such a law. In

his concurrent opinion Justice Harlan criticized the Seeger judgment very

severely on the ground that the benefit of exemption Congress intended

was only for those who entertain religious beliefs and not other beliefs.

Belief in Supreme Being must be confined only to religious belief and

theistic and non theistic beliefs should not be treated alike. He referred to

the dissenting opinion of Justice Hughes in United States Vs

Macintoshxxx, that the essence of religion is belief in a God involving

duties superior to those arising from any human relation. The language of

section 6(j) of the Military Training and Service Act dealing withexemption to conscientious objectors clearly draws a distinction between

theistic and non theistic religions. Having expressed his disagreement to

the view taken in Seeger on the question of construction of the statute

Harlan joined the others in holding that having chosen to exempt it (the

Congress) cannot draw the line between theistic or non theistic religious

belief on the one hand and secular belief on the other. Such distinction is

not compatible with the establishment clause of the First Amendment.

Conscientious objection to participate in a particular war:

Forty one years after Macintosh case the question presented for

resolution in Gillette Vs United Statesxxxi was: whether the exclusionary

provision concerning conscientious objectors to war and for military

service would cover an objector to a particular war but not war in

general? The Petitioner Gillette was convicted of willful failure to report

for induction into the armed forces. His defense was that he was entitled

for exemption from induction as a conscientious objector to war. He had

no objection to participate in a war of national defense or war sponsored

by United Nations as a peace keeping measure, but his opposition was to

participate in American Military operations in Vietnam, which he


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characterized as unjust. Justice Marshall (with the exception of Justice

Douglas who dissented) delivering the opinion of the Supreme Court

ruled that the exclusionary clause would not cover such an objector. The

exclusionary provision as contained in Section 6(j) is to the effect that

anyone by reason of religious training and belief is conscientiously

opposed to participation in war is exempt from the military service. The

Petitioners reliance upon Seeger and Welsh cases was held to be

misplaced. The question for consideration was not whether the

Petitioners beliefs concerning war are religious in nature. The court also

refused to go into the question whether conscientious objection to a

particular war falls within the ambit of Section (j). The intention of the

Congress was made the foundation for the decision. Marshall declared :

We hold that Congress intended to exempt persons whooppose participating in all war- participation in war in anyform and that persons who object solely to participation in aparticular war are not within the purview of the exemptingsection, even thought the latter objection may have such roots

in a claimants conscience and personality that it isreligiousin character. (emphasis added)

The argument of the Petitioner that when statutory sanction was

accorded to conscientious objection to all war but not objection to a

particular war it would amount to defacto discrimination amongst religions

did not find favour with the court. Explaining that neutrality in matters of

religion is also consistent with benevolence by way of exemption from

onerous duties, the conclusion was drawn: so long as an exemption is

tailored broadly enough that it reflects valid secular purposes--- the

relevant individual belief is simply objection to all war, not adherence to

any extraneous theological viewpoint.

The States contention that opposition to a particular war

necessarily involves a judgment that is political and particular, one

based on the same political, sociological and economic factors that the

government necessarily considered in deciding to engage in a particular

conflict was not fully accepted but the underlying principle behind that

contention received the acceptance of the court. The courts reasoning is:


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it is undoubted that the nature of conscription , much less waritself, requires the personal desires and perhaps thedissenting views of those who must serve to be subordinatedin some degree to the pursuit of public purposes. It is also true

that opposition to a particular war does depend inter alia uponparticularistic factual beliefs, and policy assessments, beliefsand assessments that presumably were overridden by thegovernment that decides to commit lives and resources to atrial of arms.

The conclusion reached is that

it is supportable for the Congress to have decided that the

objector to all war to all killing in war has a claim that isdistinct enough to justify special status while the objector to aparticular war does not.

In his dissenting judgment, Justice Douglas examined the question

of just and unjust war from a Christian point of view, adverted to the

horrors of modern war and the moral duty of Catholics not to participate

in an unjust war. He pointed out that the welfare of a single human soulwas the ultimate test of the vitality of the First Amendment. The

determination of just and unjust war must be viewed from the guidelines

provided by the Church. The personal decision of the individual on the

basis of his conscience must be the determining factor ascertained on the

basis of the evidence available.

Broadly Stated the majority view appears to be that objection basedupon conscience must be in relation to the very concept of war but not

with reference to the subjective notions of an individual. If the preference

of an individual to opt for the exclusionary provision is to be accepted, the

court felt that many a person without any genuine conscientious objection

may escape military training which would amount to undermining the

collective will of the society as reflected in the statute.

Prohibition of Bible reading in public school: and Neutrality of the State:

The Pennsylvania State by a law introduced compulsory reading of

Holy Bible on each school day in all public schools. The requirement of

the law was that Bible should be read without any comment and students


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were exempted only upon written request of the parents and guardians.

The reading of the Bible was broadcast to each room in the school

building followed by recitation of the Lords prayer together with the

pledge of allegiance to the flag in unisom. In Abington School District Vs

Schemppxxxii with the exception of Justice Stewart all the judges of the

American Supreme Court declared the same as unconstitutional. Justice

Clark who delivered the opinion of the court, after referring to the earlier

precedents analysed the concept of neutrality of the State in matters of

religion declared that neutrality is the requirement of both the

Establishment Clause and Free Exercise Clause in the First Amendment.

The former (Establishment Clause) prohibits official support to tenets of

any religion. The latter (Free Exercise Clause) recognizes the right of

every individual to choose his own religion and religious observances free

of any compulsion from the State. The two clauses may overlap. The test

is what are the purpose and the primary effects of the questioned

enactment? Applying the Establishment Clause principles to the

requirement of reading of Holy Bible and recitation of Lords prayer by thestudents, Justice Clark observed that they are held in the school building

under the supervision and participation of the school teachers. The

contention of the State that the law promotes moral values and achieves

secular purpose was negatived holding that the exercises are religious in

character.

But even if its purpose is not strictly religious, it is sought tobe accomplished through readings, without comment, from theBible.

He accepted the reasoning that

Ones education is not complete without a study ofcomparative religion or the history of religion The Bible isworthy of study for its literary and historic quality.

But held that the exercises in question do not fall into this category.

It appears rather paradoxical that while admitting that without study

of religion ones education is not complete and Bible is worthy of study,

the court none the less ruled that recitation of ten verses from Bible every


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day in school forms part of religious exercise forbidden by the First

Amendment. How recitation of holy Bible without comment is different

from study of Bible, has not been dealt by the court.

In his concurrent judgment justice Douglas found that the State is

conducting a religious exercise under the impugned law and that cannot

be done without violating the neutrality required of the State. The public

schools are run with the State funds and if Bible reading and recitation of

prayer are permitted by law it amounts to State contributing money

although in a minor degree for religious purpose in violation of theEstablishment Clause.

Another judge Justice Brennan in his concurrent opinion quoting

the English political philosopher John Locke about the separation of the

religion from the business of civil government observed that:

the line which separates the secular from the sectarian inAmerican life is illusive.

The official involvement, according to Justice Brennan, should not

be to such an extent:

as to prefer, discriminate against, or oppress a particular sector religion.

The reasoning slightly strikes a different note. It is not clear whether

it could be said to be lawful if religious activity of the State did not fall

within the above parameters, namely, preference, discrimination or

oppression. Tracing the history of the American nation and the diverse

people inhabiting the United States as compared with the past, Justice

Brennan commented:

Today the nation is far more heterogeneous religiously,including as it does substantial minorities not only of Catholicsand Jews but as well of those who worship according to noversion of the Bible and those who worship no God at all.

Explaining that the public schools which are funded by the State

serve a uniquely public function facilitating an atmosphere enabling the


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children to assimilate a heritage common to all American groups and

religions, Justice Brennan declared:

This is a heritage neither theistic or atheistic , but simply civiland patriotic.

A clear distinction was made by Justice Brennan between Hamilton

case and Barnette case. In Hamilton case the requirement of military

service for young adults was upheld because of voluntary attendance at

college, whereas Hamilton case was concerned with involuntary

attendance ofyoung school children and that warranted a difference in

constitutional results.

The dissenting judge justice Stewart viewed the whole question

from a different angle. When there is a provision in the law allowing

students to abstain (enabling provision) the law should be upheld

especially when there is no evidence of any coercion upon students who

did not want to participate. On this aspect he wanted the matter to be

remitted for further evidence.

Legal compulsion to send children to schools and Religious Beliefs:

Religious beliefs are so diverse and may sound peculiar and

uncommon. There is a community in the United States owing allegiance

to Amish Mennonite Church which had refused to send their children to

public or private schools after they completed their eighth grade. It was

their belief that sending children to High School was contrary to their

religion and way of life and that it would endanger their own salvation.

The State of Wisconsin by legislation required compulsory attendance in

schools of all children until they attained the age of sixteen. The Amishcommunity in Wisconsin Vs U.Sxxxiii challenged the law as violative of the

Free Exercise Clause of the First Amendment. The evidence disclosed

that the Amish community insulated themselves from the modern world

rejected the competitive spirit and material success. Their devotion was

to a life in harmony with nature towards soil. Their objection was that their

values are at variance with the values taught at higher education level.

The community had accepted the importance of elementary education


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through first eight grades since the children must acquire basic skills in

the three Rs in order to read Bible, to be good farmers and citizens.

The majority opinion delivered by Justice Burger upheld the contention of

the Amish community and declared that their children were entitled to be

exempted from compulsory attendance. Whether the State interest is of

sufficient magnitude to override the claims based on the First Amendment

was the question considered and the answer given was that the States

interest in Universal compulsory education is not absolute to the

exclusion or subordination of all other interests. After going through the

evidence about the practices and beliefs of the Amish community, the

Court concluded:

Giving no weight to such secular considerations, however, wesee that the record in this case abundantly supports the claimthat the traditional way of life of the Amish is not merely amatter of personal preference, but one of deep religiousconviction, shared by an organized group, and intimatelyrelated to daily living

The way of life practiced by the majority of the population is not

always right was emphasized by the majority.

A way of life that is odd or even erratic but interferes with norights or interests of others is not to be condemned because itis different.

A factual finding was also recorded that Amish families employing

their children on family farms was not injurious to their health and that the

parents are not exploiting their children.

The dissenting opinion of Justice Douglas while accepting about

the sincerity of the practices of Amish religion, expressed the view that:

.if the parents in this case are allowed a religiousexemption, the inevitable effect is to impose the parentsnotions of religious duty upon the children.

The majority sought to get over this aspect by observing that it is

not an issue in this case and that children are not parties to the litigation,

a reasoning which sounds odd. Whether the rights of the children are

involved is the primary question that surfaced in this case since the

impugned legislation was for the welfare of the children. The dissenting


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opinion realistically highlights the undeniable truth that what is involved in

the case is the future of students not of the parents.

If a parent keeps his child out of school beyond the gradeschool, then the child will be forever barred from entry into thenew and amazing world of diversity that we have today. Thechild may decide that is the preferred course, or he may rebel.It is the students judgment, not his parents, that is essential ifwe are to give full meaning to what we have said about the Billof Rights and of the right of students to be masters of theirown destiny.

Religious Belief and the Right to claim employment benefits:

A lady by name Sherbert was removed from employment because

she would not work on Saturday the Sabbath Day of her faith. When she

failed to get any other employment because of her insistence that she

would not work on Saturday she claimed unemployment benefits under

the South Carolina Unemployment Compensation Act. The law providedthat the claimant should work and be available for work to be eligible for

benefits. If without good cause he failed to accept the available suitable

work when offered he would not be eligible for the benefits. This law was

challenged in Sherbert Vs Vernerxxxiv. The State Supreme Court ruled that

there was no restriction on her freedom of religion and therefore she was

not entitled to claim the employment compensation. That was reversed by

the Supreme Court. The majority speaking through Justice Brennanposed the question whether disqualification for benefits imposed any

burden on the free exercise of the appellants religion (Seventh Day

Adventist Church) and answered the question in the affirmative. Even if

the burden is indirect the law becomes unconstitutional. The choice for

the appellant was to follow the precepts of the religion and forfeit the

benefits or abandon the religious precepts and accept the work. Rejecting

the contention that unemployment benefits are only a privilege but not a

right, the majority held that:

it is too late in the day to doubt that the liberties of religionand expression may be infringed by the denial of or placing ofconditions upon a benefit or privilege.

The court also adverted to the aspect of discrimination. The law

permitted employees to abstain from work on Sunday if they are


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consciously opposed to Sunday work. A different yardstick was applied

in the case of those not willing to work on Saturday. The right to receive

public welfare legislation benefits should not be denied to any religious

group the majority concluded citing Everson Vs Board of Education.

Religious Belief and Employment in factories manufacturing military

vehicles:

In Thomas Vs Review Board of Indiana Employment Security

Divisionxxxv the question arose whether the right of free exercise of

religion under the First Amendment could extend to claiming

unemployment compensation benefits when a worker voluntarily left the

job of working in a Department that fabricated tarots for military tanks. He

was a Jehovahs witness and he claimed that according to his religious

belief he would not participate in the production of weapons. His initial

appointment was in a foundry which fabricated sheets for industrial trucks

and when that was closed he was transferred to the Department which

fabricated tarots for military tanks. Chief Justice Burger delivered the

opinion of the court. According to the majority opinion the State was

bound to justify the inroad on religious liberty in order to achieve some

compelling State interest. The plea of the State that the unemployment

fund could be overburdened if people were allowed to quit jobs for

personal reasons, was rejected holding that:

There is no evidence in the record to indicate that the numberof people who find themselves in the predicament of choosingbetween benefits and religious beliefs is large enough tocreate widespread unemployment, or even to seriously affectunemployment and no such claim was advanced by theReview Board.

Justice Rehnquist in his dissenting opinion described the situation :

I believe that the decision today adds mud to the alreadymuddied water of First Amendment jurisprudence.

The welfare legislation has greatly magnified the potential for

conflict between the two clauses of the First Amendment - Free Exercise


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and Establishment clauses. The two clauses have received overly

expansive interpretation by the court.

By broadly construing both Clauses, the court has constantlynarrowed the channel between the Scylla and Charybdis throughwhich any State or federal action must pass in order to surviveconstitutional scrutiny.

Rehnquist held that the State has not discriminated on the basis of

the religious belief. It is a general statute to advance secular goals and

the Free Exercise Clause does not require the State to conform the

statute to the dictates of religious conscience of any group. One important

question raised by Rehnquist was that had the State of Indiana legislated

permitting unemployment benefits to those who quit their jobs for religious

reasons it would be plainly violative of the Establishment Clause. When

financial benefits have to be given the statute must necessarily enquire

whether the claimants belief is religious or whether it is sincerely held.

He referred to the finding of the State court that the basis and precise

nature of the belief of Thomas was unclear and it was more personal

philosophical choice. Since he left because of personal reason he was

not entitled to receive the benefits.

Prohibition of Ritual Sacrifice and Religious Beliefs:

The city council of Hialeah passed a resolution expressing concern

over religious practices inconsistent with public morals, peace or safety

and declared the citys commitment to prohibiting such practices. An

ordinance was issued making it punishable, anyone who unnecessarily or

cruelly kills an animal as a sacrifice. Sacrifice is defined as unnecessarily

killing an animal in a ritual not for the primary purpose of food

consumption. Licensed Food Establishments are exempted from the

operation of the slaughtering of animals. In the case of Church of Lukumi

Babalu Aye Vs City of Hilleahxxxvi the question was whether animal

sacrifices which was a public form of devotion of the members of Santeria

religion are liable to prosecution. The people of the religion kill animals by

cutting their carotid arteries, cook and eat them following Santeria ritual.

The claim of the Santeria religion is that the law was violative of the Free


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Exercise Clause of the First Amendment. The District court as well as the

First Appellate court held that the compelling governmental interest in

preventing public health risk and cruelty to animals fully justify the

absolute prohibition on ritual sacrifice.

Whether there is compelling interest of the State in order to justify

the law was examined by the Supreme Court. The opinion of the majority

was rendered by justice Cannery. If secular meaning is not discernible

from a law which refers to religious practice it lacks facial neutrality.

Admitting that the words sacrifice and ritual have a religious origin it

was held that the Free Exercise clause protects against governmental

hostility which is masked as well as overt. After examining the record

Justice Cannery held that the record compels the conclusion that

suppression of the central element of the Santeria worship service was

the object of the ordinance. There was an improper attempt to target

Santeria as evident from the citys resolution which mentioned the

concern of the citizens about the practices of certain religions. TheSanteria sacrifice was prohibited whereas killing of animals in general

was not prohibited. The legitimate governmental interest could be

achieved by measures that fall short of prohibition of all Santeria

sacrifices. The proceedings of the city council as to what happened the

fact that the people were jailed for practicing Santeria religion and also

the sayings in the Bible that animals are sacrificed only for consumption

was also relied upon to show that the Santeria religion was targeted. Thewords of the Chaplin of Hialeah Police Department exhorting the city

council not to permit Santeria Church to exist was cited in support of the

conclusion that there was animosity to Santeria religion. The majority

declared:

The principle that government, in pursuit of legitimate

interests, cannot in a selective manner impose burdens onlyon conduct motivated by religious belief is essential to theprotection of the rights guaranteed by the Free ExerciseClause.

The reference to other types of animal killings for non religious

reasons is cited in support of the conclusion that he law is invalid. The

aspect of health risk advanced by the city council was rejected observing

that:


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animal carcasses are the same whether Santeria sacrifice orsome non religious killing preceded it.

For rejecting the health risk argument the majority referred to the

fact that hunters were permitted to eat their kill and fishermen their catch

without undergoing governmental inspection. But Santeria was treated

differently. Striking down the challenged provisions the majority

concluded:

A law that targets religious conduct for distinctive treatmentor advances legitimate governmental interests only againstconduct with a religious motivation will survive strict scrutinyonly in rare cases.

The Position in India:

In the Indian Constitution, religion finds place in Articles 15(1)xxxvii,

15(2), 16(2)xxxviii, 25xxxix ,26xl, 27xli, 28xlii, 29xliii and 30xliv. Religion is

covered indirectly in Article 17 by which untouchability was abolished.

They are judicially enforceable fundamental rights.

The American example of the Constitution erecting a strict wall of

separation was not followed by the Founding Fathers of our Constitution.

In the judicial interpretation of the provisions concerning religious freedom

although in certain cases our Supreme Court referred to American

decisions but they have not been treated as precedents and our Supreme

Court followed a different line of approach preferring the views of the

Australian High Court.

The three important religions in India are Hinduism, Islam and

Christianity with considerable numerical strength. Buddhism , Jainism and

Sikhism, strictly speaking, are not religions totally different in all respects

from Hinduism: that is why Explanation II to sub clause (b) of clause (2) of

Article 25 says that reference to Hindus includes all persons professing

Sikhism, Jainism and Buddhism. The following are the population details

of various religions in India as per 2001 census (as quoted on page 14 of

the Report of the National Commission for Religious and Linguistic

Minoritiesxlv) (Justice Ranganath Misra Commission).


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Hindus 80.5%Muslims 13.4%

Christians 2.3%Sikhs 1.9%Buddhists 0.8%Jains 0.6%Zoarstrians 0.0069%,(a microscopic minority)

Article 25 to 28 which deal with religious freedom are largely based

upon clause (2) of Article 44 of the Irish Constitution. Article 44 reads as

follows:

Article 44: (1) The State acknowledges that the homage ofpublic worship is due to Almighty God. It shall hold His Name inreverence, and shall respect and honour religion.

(2.1) Freedom of conscience and the free profession andpractice of religion are, subject to public order and morality,guaranteed to every citizen.

(2.2) The State guarantees not to endow any religion.

(2.3) The State shall not impose any disabilities or make anydiscrimination on the ground of religious profession, belief orstatus.

(2.4) Legislation providing State aid for schools shall notdiscriminate between schools under the management ofdifferent religious denominations, nor be such as to effect

prejudicially the right of any child to attend a school receivingpublic money without attending religious instruction at thatschool.

(2.5) Every religious denomination shall have the right tomanage its own affairs, own, acquire and administer property,movable and immovable, and maintain institutions for religiousand charitable purposes.

(2.6) The property of any religious denomination or any

educational institution shall not be diverted save for necessaryworks of public utility and on payment of compensation.

It is a matter of Constitutional history that the Constituent Assembly

set up an Advisory Committee consisting of 75 members. This large body

in turn appointed sub committees to study and report on matters

concerning, interalia, Rights of Minorities and Fundamental Rights: Right


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to religious freedom came under the purview of the subcommittee on

Fundamental Rights. How the Members of Constituent Assembly viewed

matters concerning religion suitable for incorporation in the Constitution

may now be noticed. The following table indicates the draft Articles and

their corresponding numbers in the final Constitution.

Articles in Final Constitution Corresponding Articles in DraftConstitution.

Final Draft

15 9

16 10

25 19

26 20

27 21

28 22

29 23

30 23A

Pandit Jawaharlal Nehru, the First Prime Minister of In

Lecture - Religion Through the Lens of Law

Documents