The United States and England have moved towards separating law from the influence of religion, while India still stands at the threshold of creating a mechanism for reducing religious influence on its democratic functioning

 

Religion and the State are two different components, which do not overlap in the United States of America. The first amendment to the US Constitution categorically highlights the theoretical perception of the idea of secularism. The Establishment Clause prohibits the State to create any law with respect to any religion with regards to its establishment, or prohibiting the free exercise thereof. The clause insists on the separation of the ‘Church’ and the ‘State’. Further to this, Article 6 of the United States Constitution prohibits the use of religious test as a basis of qualification of a public office. These underlining factors in the law imply that the Government of the USA is independent from the practices of the religious bodies, that the State is anti-religious and does not provide recognition to any religious activities whatsoever in the matters concerning the State and law. The functioning of the State is not deemed to be influenced by religious activities.

 

General law has trumped religious practices in the United States whenever there has been a conflict. The Sikhs construction workers refused to wear a hard hat owing to their religious needs of wearing a turban, where the law deemed it mandatory for every construction worker to wear a hard hat. The Supreme Court adjudged that the Sikhs construction workers, while on duty, have to forgo the turban for the hard hat, since the law was very clear on the safety of the construction workers. The room for compromise did not exist here and the principles of the First Amendment were upheld. The US Courts over ruled the Sikh religious law and this is an underlining factor demarcating that the Constitution stands above religions and is equally followed in cases of various religious activities.

 

England, however, is less progressive than the USA with respect to secularism due to the involvement of the Church in the activities of the State as per their administrative theory. Unlike the USA, in England there are officially two state recognized Christian denominations – the Church of England and the Presbyterian Church of Scotland. The Queen is both Head of State and Supreme Governor of the Church of England. Twenty-Six unelected bishops of the Church of England who sit in the House of Lords influence laws that affect the democratic functions in the UK. It is clear that the Church and the State are not exactly separated in the UK, along with having a right to influence the decision making in the Parliament.

 

Article 9 of the European convention states that the people have the right to follow, change or manifest a religion, subject to certain restrictions that are in accordance with law and necessary in a democratic society. A Pentecostal couple in England was forced to withdraw their application to adopt a child by the High Court as they opposed homosexuality and when they said they could not tell a child a homosexual lifestyle was acceptable. The laws protecting people from discrimination because of their sexual orientation took precedence over the right not to be discriminated against on religious grounds. Article 9 of the European convention took center stage and a restriction on the basis of law and necessity as a means to provide equal treatment to individuals irrespective on the basis of their gender overruled the freedom of religious practice. The laws of the State underlining such principles trumped the ideas governing religious freedom, once again putting progressive development over conservative religious beliefs. Even though in theory, England has not been able to separate the Church from the State, in practice, things have been much more idealistic and progressive as a march towards 21st century beliefs.

 

In India, Article 25 allows an individual the freedom to practice any religion akin to his/her beliefs. However, unlike the USA, the ‘State’ and the ‘Church’ are not separate in theory or practice. India has legislated various anti-conversion laws addressing the issues of conversion but not catering to reconversion to Hinduism. Along the same lines, there are personal laws for Muslims, Parsis, Sikhs and Hindus on issues such as marriage, divorce, inheritance etc. So while there are laws such as the Indian Divorce Act, Indian Succession Act and the Special Marriage Act, personal laws governing various religions take precedence over such laws in the matter concerning those religions. Also, the aforementioned laws specifically cater to different religions at particular points. As an example, under the Divorce Act, if one party is a non-Christian, marriage cannot take place inside a church. In the Special Marriage Act, there are certain provisions, which deprive the converts to non-Hindu religions of certain rights and privileges. As general legislations, such national laws discriminate particular religions, which goes against the principle of Secularism enshrined in the Constitution.

 

True religious freedom can only exist when the State does not seek to interfere in these matters, and should leave it to the followers alone. Once the State starts framing laws on religious factors, giving precedence to these laws over and above general legislation, then the issue of religion enters the political scenario, thus affecting the democratic functioning of the country, which India is facing as of today. Article 44 envisages a uniform civil code, which would be a progressive move towards the separation of the State and the ‘Church’; however, India still has a few miles to go before it leaps towards reduced religious influence on its democracy.