Freedom of religion vs legislative enactments
From the very dawn of human civilization religion is considered as an inextricable part of human life. Undoubtedly, it embraces the whole gamut of our social and personal conduct and behaviour. Art 41 of our constitution guarantees to every citizen the liberty of religion. The article ensures that every citizen has the right to profess, practice or propagate any religion and every religious community or group can establish, maintain and manage its religious institution subject to reasonable restriction imposed by law on the ground of public order and morality. Clause 2 of this article further provides that a person attending any educational institution can receive religious instruction, or can take part or attend religious ceremonies but it cannot be other than those of his own religion. Art 41 amply creates option for every citizen of Bangladesh to observe his/her religion and protect acts done in pursuance of it. But this notion becomes frustrated when we see some enactments made by the parliament. For example: Sec 4(doctrine of representation) of Muslim Family Law Ordinance is a direct violation of Sharia law, the procedure of Talaq as mentioned in Dissolution of Muslim Marriage Act is also against the Orthodox Muslim law. Besides this, Sec 123 of Transfer of Property Act-1882 clearly makes the rule of Hindu and Buddhist subject to its provision. This instances obviously generates a question in mind that where freedom of religion is a fundamental right guaranteed by the constitution and where Art 26 clearly states that "All existing law inconsistent with the Fundamental Rights as provided in Part II shall to the extent of the inconsistency become void on the commencement of the constitution and state shall not make any law inconsistent with those rights" then how the parliament could make this kind of statute? It would be pertinent to mention that this kind of enactment is creating a lot of controversy in our country. For example -- if a husband gives her wife
three Talaq at a time, it will be considered as a valid talaq according to Islamic scholars but the Dissolution of Muslim Marriage Act does not permit this kind of Talaq. The common people of our country are in a great dilemma because of this kind of conflict between Sharia Law and statute law. The NGOs are trying to promote statute law whereas the Maulanas or Imams are in favour of Sharia Law. The dispute between these two sections is going from bad to worse and the ultimate victim is the common people. This kind of problem was raised in the case of Jibendro Kishore vs East Pakistan .It was contended that the freedom of religion incorporated in the constitution of Pakistan of 1956 didn't put any limitation on the power of legislature to legislate but the Supreme Court rejected the contention stating “it is not only technically artistic but also a fraud on the citizens from the makers of the constitution to say that a right is fundamental but it may be taken away by law”. But this judgment is open to question since the opening words of Art 41 have expressly provided for restrictions to be put by the state upon free exercise of religion.
However, Section 116 of the Australian Constitution and First Amendment to the United States Constitution declare the right to freedom of religion without any words of limitation. In those countries the limitations have been worked out by the judicial decision on the ground of morality, order and social protection. Now the question arises that whether the personal law should be kept outside the legislative power of the parliament or not? Strong argument can be placed from both sides. It can be said that the religious conceptions in this country are so vast that they cover every aspect of life from birth to death. There is nothing, which is not religion, and if personal law is to be saved in social matters we might come to a standstill.
Moreover in discussing the freedom of religion, the most difficult part is to define the term “religion”. It would be difficult to devise a definition of religion, which would satisfy the adherents of all religions, which exist or existed in the world. Many religious conflicts have been concerned with the matters of ritual and observance. What is religion to one is the superstition to another. Adherents of other creeds regard some religions as morally evil. In this regard it was decided in the Jehova's Witness's case that “the complete protection of all religious beliefs might result in the disappearance of organised society, because some religious beliefs …regard the existence of organised society as essentially evil”
Therefore, if the ethics of any religion stands as an obstacle to the achievement of welfare state or even the fundamental principle of state policy as enunciated by Part III of the constitution, such ethics will have to give way. A sharp distinction must be drawn between religious faith and belief and religious practice. We have to keep in mind that what the state protects is the religious faith and belief. If religious practices run counter to morality or health or a policy of social welfare upon which the state has embarked, then the religious practices must give way before the good of people or state as a whole. A religious practice could not be prohibited unless it was prejudicial to public order or morality..
But at the same time it can be said that the fate of religious belief or practice of a particular sect or group should not be in the hand of the legislatures who are not actually theologians. Because while legislating or imposing restriction they may damage the basic fabric of a religion which can be deduced as a great sin from the point of view of that particular religion. It can be mentioned here that the religious leaders of different religions are not politicians and therefore, they do not have any participation in law making while in case of deciding any question of religious practice their opinion should get the highest priority. From the recent report of TIB it is revealed that out of 330 members of the parliament 110 were blame for corruption. From this statistics it can easily be assumed how religious game of the legislatures are in their every day life. So, one can't be allowed to be the protector of a religion who himself may be a violator of the cherished norms of it. So there are arguments and counter arguments from both sides but the question is how to resolve this problem. There is only one way and that is we can have separate council for each religion, which will take decision about the disputed matter of that religion concerned. The council will consist, in part, of legislators and in part scholars of that religion. In this way, we can come to decision, which will be accepted by both scholars and the legislators. The decision of this council should be subject to the judicial review because this will pave the way for new dimension of thinking.
Actually, every religion is divine origin and shows in its own way to achieve spiritual uplift or religious benevolence. Hence, the state should not have any rights to insist its citizens to deviate from the practice prescribed by their religion. It should only interfere when the observance of a particular ceremony is harmful or prejudicial to public order or morality. Moreover, a religion may have many secular aspects, but these do not constitute religion as understood by the constitution. The state can be allowed to make laws regarding that secular aspect but otherwise, a religious denomination should enjoy complete autonomy in the matter of dealing as to what rights, ceremonies or practices are essential according to the tenets of the religion they hold and no outside authority should have any jurisdiction to interfere with their decision in such matters.
The author is a student of 3rd year, LLB, University of Dhaka.