Reviewing the views
Constitutional guarantees and religion: The ambit of Article 41
Shahmuddin Ahmed Siddiky
Bangladesh claims to be a secular state, being arguably neutral on the matter of belief. In a country with people with a wide range of religious beliefs, it is particularly important to guarantee their observances without discrimination. In Bangladesh, the Constitution makes such a provision in Article 41. It provides that subject to law, public order and morality, (i) every citizen has the right to profess, practice or propagate any religion, and (ii) every religious community or denomination has the right to establish, manage and maintain its religious institution.
While this might sound just about right, one is bound to trip on the phrase “subject to law, public order and morality”. What does this mean? What is obvious, however, is that it clearly indicates that this right is not absolute. This, in turn, raises a host of questions. What, for instance, is the extent of the legislature's power to revoke this right? When can the Parliament take away one's religious freedom? What is the standard for determining “morality” for the purpose of Article 41? Even at the very root of it, how does one define “religion”?
The Article guarantees the right to practice and propagate not only matters of faith or belief but also all those rituals and observances which are regarded as integral parts of a religion by the followers of a doctrine. Of course, religion is a matter of faith but it is not necessarily theistic. On the other hand, though a religion undoubtedly has its basis in a system of beliefs or doctrines, which are regarded by those who profess that religion as conductive to their well being, it would not be correct to say that religion is nothing else but a doctrine or belief. It, as the Indian jurist, Durga Das Basu professes, has its outer expression in acts as well. Religious practices or performance of acts in pursuance of religious beliefs are as much part of a religion as faith and belief in particular doctrines. The freedom of religion embraces the concept of freedom to believe and freedom to act. The freedom also includes the right to hold no religious belief at all.
The renowned lawyer and legal scholar Mahmudul Islam in his book, “The Constitutional Law of Bangladesh” writes that the right to propagate one's religion means the right to communicate his belief to another person or to expose the tenets of that faith, but would not include the right to “convert” another person to his faith. But the latter person has the right to adopt another religion in the free exercise of his conscience.
The right conferred by Article 41 however, as mentioned above, is not left unbridled. The freedom of religion is subject to the interest of public order that it would not authorize the outrage of the religious feelings of another class with deliberate intent.
The words “subject to law, public order and morality” save the power of a competent legislature to prohibit deleterious practices, such as the sacrifice of human beings in the name of religion, or to direct the exhumation or removal of graves or interred corpses for the purpose of detection of crime or for preventing breach of the peace between fighting communities. Moreover, the legislature may regulate the manner of professing, practicing and propagating religious beliefs and the working of religious institutions. This, however, does not mean that a law can be enacted for regulating the actual performance of religious rites. Where, nonetheless, certain secular steps have to be taken, then these steps may be regulated by law. In addition, this Article does not protect any wrong practiced in the name of religion. It does not extend to the doing of acts, in the name of religion, which are offences under the law. The violation of right to freedom of religion must also be tangible. There must be some actual interference with religious acts and observances.
In the end, while a glimpse into the local, Indian and Pakistani judicial decisions do provide some insight into the operative aspect of Article 41, there are still some fundamental questions that remain open to debate. This is particularly so when Article 41 is examined in context of the Constitution as a whole. The doctrine of “basic features” is not to be found in any of the express provisions of the Constitution. It has been engineered over the years. But the Supreme Court itself has not been yet been able to enumerate any definite list of basic features. How much of Article 41, for instance, constitutes a “basic feature”?
In the light of all this, it would be interesting to see how the law develops in this respect, and whether the judiciary is bold enough to break their conservative mould to clarify matters in this regard.
The writer is a Barrister-at-Law.