mod08lec17 - Free Speech and Religious Freedom

Summary

This lecture, part of the series on constitutional studies by NPTEL-NOC IITM, delves into the themes of free speech and religious freedom as encapsulated in the Indian constitution. It highlights the complexities surrounding the scope and limitations of these fundamental rights as laid out in Article 19, clause 1a, which extends the right to free speech but not without exceptions outlined in clause 2. The discussion covers various legal interpretations and challenges brought to court regarding speech, religious beliefs, defamation, and sedition. The narrative further dissects Indian religious freedom under Article 25, focusing on personal belief versus group rights, while emphasizing ongoing legal and cultural debates.

Highlights

• Free speech and expression is fundamental, protected under Article 19, but limited by national interests like public order and decency. 📜
• The Indian Constitution's free speech clause was influenced by historical precedents worldwide, including the US Constitution. 🌎
• Religious freedom in India is nuanced, balancing individual conscience with the rights of religious groups. 🕊️
• Significant court cases have shaped the interpretation of these rights, often involving high-profile figures and controversial laws. 📚
• Legal restrictions on speech, such as hate speech laws, aim to balance freedom with public safety. 🚦

Key Takeaways

• Free speech in India is expansive yet bounded by several limitations under the Constitution. ⚖️
• Article 19, clause 1a of the Indian Constitution articulates the right to free speech, but it's limited by clause 2 with exceptions. 📜
• The courts play a crucial role in interpreting the extent and limitations of free speech rights. 🏛️
• The balance between individual rights and group rights is a recurring theme in discussions of religious freedom. 🔄
• Ongoing debates around legal provisions such as defamation, sedition, and religious practices emphasize the dynamic nature of constitutional rights. 🎙️

Overview

The lecture begins by outlining the constitutional guarantee of free speech and religious freedom in India. These rights, while fundamental, come with limitations that are subject to interpretation and legal challenges. Article 19 clause 1a grants the right to free speech, but clause 2 outlines specific exceptions, prompting ongoing legal debates.

Through historical context and comparative analysis, the lecture dives into how India's laws were shaped by other international constitutions, including the US. It examines the critical role of the judiciary in interpreting these rights and the scope of various forms of expression—verbal, non-verbal, and through different media, highlighting the court's role in protecting mediums of expression.

Moving on to religious freedom, the lecture discusses how the Indian Constitution navigates individual and group rights under Article 25, amidst a secular governmental framework. The session concludes by addressing current legal controversies surrounding religious practices, defamation, and sedition, emphasizing the evolving nature of constitutional debates.

Chapters

• 00:00 - 03:00: Introduction and Overview The introduction chapter welcomes back students to the course 'PK to Constitutional Studies' as they approach the final three weeks of lectures and materials. It emphasizes the importance of keeping updated via the course website, as additional materials will be provided.
• 03:00 - 18:00: Understanding Free Speech in the Constitution This lecture is the final part of a series focused on fundamental rights, specifically on free speech and religious freedom in the Constitution. The series has covered some key constitutional rights, including life and liberty, equality, and concludes with free speech. The emphasis is on understanding these rights, particularly free speech, within the context of the Constitution, in preparation for an upcoming exam.
• 18:00 - 28:00: Reasonable Restrictions on Free Speech The chapter discusses the concept of reasonable restrictions on free speech as outlined in the constitution. It emphasizes the importance of revisiting and examining various rights, including religious freedom, and understanding their detailed implications. The lecture aims to conclude the series on fundamental rights by focusing on free speech and expression as a core liberty, while acknowledging the presence of other liberties in the constitution.
• 28:00 - 48:00: Hate Speech, Defamation, and Sedition The chapter discusses fundamental rights, focusing on free speech, as enshrined in the Indian Constitution. Article 19 1a sets out the scope of this right, alongside other rights such as assembling peacefully and forming associations. These rights support the practice of a profession or conducting a business. However, the chapter specifically aims to explore how free speech intersects with issues of hate speech, defamation, and sedition.
• 48:00 - 50:00: Transition to Religious Freedom The chapter titled 'Transition to Religious Freedom' discusses the concept of religious freedom as not being an unlimited right. It highlights the presence of limitations or exceptions as outlined in article 19 clause 2. During the drafting process, members of the constituent assembly debated whether the extensive list of exceptions significantly weakened the right. Different perspectives emerged within the assembly regarding these exceptions.
• 50:00 - 70:00: Religious Freedom under the Constitution The chapter discusses the approach of the Constitution's framers regarding religious freedom. They decided against granting an absolute right to free speech to avoid leaving the responsibility of determining exceptions to the courts. Instead, they preferred to frame the exceptions themselves. This resulted in a two-part structure to the right to free speech, involving both scope and limitation.
• 70:00 - 74:00: Balancing Religious Freedom and Equality This chapter explores the intricacies of balancing religious freedom with the principle of equality, as dictated by the constitution. Article 191a plays a critical role by outlining the right to freedom of speech and expression, alongside other associated freedoms. The discussion examines how these rights apply to all citizens equally, promoting a nuanced understanding of freedom and equality in a diverse society.
• 74:00 - 76:30: Conclusion and Next Steps The final chapter delves into the fundamental right to freedom of speech and expression, examining why it is essential. It expands on how this right is not limited to verbal communication but also encompasses non-verbal forms such as clothing choices and other personal expressions. The chapter highlights the broad interpretation of this right, underscoring its importance in a free society.

mod08lec17 - Free Speech and Religious Freedom Transcription

• 00:00 - 00:30 [Music] hey there welcome back to pk to constitutional studies as we make a determined push through the last three weeks lectures and materials please stay updated on the website as we give you some additional materials
• 00:30 - 01:00 and prepare well for the upcoming exam this lecture is the third and the last in the series that we have done on free speech and and on fundamental rights this one is on free speech and religious freedom we made it clear at the very start that we would be unable to cover all the fundamental rights in the constitution but we have covered the primary ones life and liberty uh equality and now free speech
• 01:00 - 01:30 and religious freedom there are other rights in the constitution and we invite all of you to go back and look at them in detail in the ways that we have done elsewhere in this course but for the purposes of this course we are going to close the the series on fundamental rights with this with this lecture so free speech and expression is a code liberty in the constitution there are other liberties the right to
• 01:30 - 02:00 assemble peacefully the right to form associations the right to practice a profession conduct a business and so on but many of them rest on on a fundamental assurance that we have free speech expression the indian constitution sets out the free speech clause in article 19 1a that tells us the scope of the right
• 02:00 - 02:30 it is not an unlimited right and the limitations or exceptions are set out in article 19 clause 2. when this was being drafted many in the constituent assembly argued that the since the list of exceptions was rather long that effectively the right was emaciated and the view that that that others in the constitution assembly took
• 02:30 - 03:00 was that even if we were to give an absolute right to free speech inevitably we would leave it to the courts to determine the exceptions the constitution framers took the view that they were better off framing the exceptions and hence we get this two-part structure to the right to free speech a scope and a limitation let's dive right in to see what the what these provisions set up
• 03:00 - 03:30 article 191a of the constitution sets out the right to freedom of speech and expression as well as it's an article the other subclauses which contain other freedoms how does it read article 19 says the protection of certain rights regarding freedom of speech etc notice in clause 1 that all citizens have the right
• 03:30 - 04:00 the right to what freedom of speech and expression why should we have a right to freedom of speech and expression one would understand that the expanded phrasing of the clause is meant to include other forms of non-verbal expression might be the clothes that you wear the the way that you might the uh
• 04:00 - 04:30 that you might draw up and so on and so forth a song you might sing um all forms of non-verbal expression be captured in in that that expression in that word expression when the indian constituted assembly sat down to draft the free speech clause other constitutions had already done this and so we had much to learn from and and we made some strategic
• 04:30 - 05:00 choices in 1950. in 1788 the first amendment of the constitution of the united states set out a rather elaborate free speech clause without exception oftentimes we hear in the u.s that there is an unrestricted or an unlimited right to free speech this is a bit of an overstatement as it
• 05:00 - 05:30 simply means that the u.s supreme court and other courts have while interpreting the constitution inserted some limitations into what otherwise looks like an absolute free speech right in in ireland in other countries there is an even wider scope of the right to include not just free speech and expression but also opinion thought
• 05:30 - 06:00 and conscience and one might want to think what is that wider scope mean is it captured by that phrase speech and expression or should the indian constitution make us have gone on to include opinion thought and conscious the universal declaration of human rights is is a interesting uh and important document made in 1948 significantly it's article 19 in the
• 06:00 - 06:30 universal declaration as well as in the constitution of pakistan that deals with free speech the udhr does two important things first it clarifies for us that the right to free speech is includes the right to both speak that is to impart information but also to receive information now the indian constitution does not make that clear
• 06:30 - 07:00 in its text but the supreme court has stepped in and done so in interpretation further the udhr makes it very clear that this right extends to all mediums all mediums in which we may speak and express ourselves indian constitution their text says little or nothing about the medium in which this communication occurs and
• 07:00 - 07:30 as you will see uh the indian courts have had to clarify that the free speech and expression clause can apply to all mediums of expression um the south african constitution is the most recent version of a free speech clause and it it sets out wide goals about artistic encouraging artistic creativity and academic and scientific research but and also sets out
• 07:30 - 08:00 a list of exceptions which are quite different from the indian constitution but i'm not going to get into a detailed exploration of the points of difference but for those of you want to explore the specimen in greater depth article 16 of the constitution of south africa is the place that you want to turn to i said while discussing the question of medium which the indian constitution is silent about that the court has had to clarify
• 08:00 - 08:30 what does it mean to protect free speech and expression if one does not protect the medium in which the speech and expression takes place the earliest challenges to these questions arose in the context of the press notably the indian constitution did not expressly protect the printed press as as a medium of expression and hence even from the early 1950s
• 08:30 - 09:00 and tailing into the 1970s the indian government has indeed various indian governments have regulated the press in various ways one way of regulating the free speech and expression right would be to outrightly ban or censor something you might require the pre-registration of a newspaper before it begins circulation this kind of regulatory requirement the
• 09:00 - 09:30 courts have been willing to sanction but what if you control the way labor are employed and the way journalists are paid in a newspaper printing press the courts have been protective enough of the printed press to insist that even where there are regulations labor law regulations that adversely affect the the print industry this may be a
• 09:30 - 10:00 threat to free speech and should be regulated by by the courts in the 1970s in in the heyday of the emergency there was a further regulation of the volumes that that a printed press could circulate bennett and coleman which all of you know is the company that owns the times of india newspaper group complained about import
• 10:00 - 10:30 restrictions as well as the removal of subsidies to newsprint once again the court was willing to step in and say that protecting free speech and expression without protecting the medium of expression it would be meaningless and hence the core has extended the scope of protection of free speech to include the medium of expression
• 10:30 - 11:00 now does this only apply to the printed press and newspapers does this range of protection apply to all medium let's say broadcasting media let's see cable tv the internet film and so on and by and large the court's answer to this question has been yes the court is willing to step in and protect a wide range of media equally under the free speech
• 11:00 - 11:30 clause however it's important to recognize that not all mediums of expression are protected in the same way in some mediums of expression prior restrictions may be possible and permitted in other mediums of expression this may not be possible technologically or otherwise and may not be legally permissible and so one must pay attention to the
• 11:30 - 12:00 medium of expression when we think about the application of the free speech class the constitution as initially enacted in 1950 was quite quickly amended by the constitution first amendment act of 1951. the constitution first amendment act it includes a wide range of amendments but some part of it dealt with free speech
• 12:00 - 12:30 19 clause 2 which already provided for a range of of limitations on the grounds of morality decency or security of the state was further expanded and it was expanded in two ways first the clause reasonable restrictions was introduced now the phrase reasonable restrictions has been interpreted in several
• 12:30 - 13:00 decisions subsequently but much turns on what can and cannot be characterized as a reasonable restriction secondly the number of grounds in 19 clause 2 was increased to now include public order foreign relations and the rather broad ground national security the introduction of these additional grounds especially public order national security have
• 13:00 - 13:30 added have given the state much power to regulate free speech and expression and it's an issue that we will return to later in this lecture to get some further nuance and understanding of the constitution 16th amendment act and that's a mistake it's not 1951 but later in the 1960s expanded 19 clause 2 to protect the sovereignty and
• 13:30 - 14:00 integrity of india now not only do we have public order and national security we have the sovereignty and integrity of india as a ground on which free speech and expression may be restricted in a reasonable manner it's clear now that what some constitution framers were fearful of has indeed occurred in the indian context while we have a limited 19 o'clock 19
• 14:00 - 14:30 a free speech and expression clause we have a rather long list of ex exceptions and limitations in 19th clause 2. and this question has meant that this area of law is highly litigated and is one that is quite contentious in character so at this point what do the reasonable restrictions look like these are the reasonable restrictions
• 14:30 - 15:00 in the constitution in 19 clause 2. the interests of the sovereignty and integrity of india the security of the state friendly relations with foreign states public or the decency of morality contempt of court defamation and incitement to an offense all of these grounds are included in 19 clause 2 and as we will
• 15:00 - 15:30 learn several statutes have been enacted that seek to be defended under each of these grounds uh and that is the question to which we will now turn reasonable restrictions it seems an innocuous enough phrase and you might think what does it mean it means any restriction that can be defended offering good reasons in court the court in ramana no here where where there was a question
• 15:30 - 16:00 about access to printed material in the prison took the view that there must be a good reason that connects the restriction access to printed material and the objective of the law which is simply to reform prisoners or to punish them for debtor and sick and the court took the view that you could not have that a prison manual could not have
• 16:00 - 16:30 too many restrictions that were that related to reading and writing in the prison that were unrelated to the periological purpose that the that that the law was set up to achieve so a law that had restrictions unrelated to the objective of the law would be struck down by the supreme court as not being a reasonable restriction and that was an early case that set the tone in this field in a recent case in sri single
• 16:30 - 17:00 in 2013 when the court was considering the nature of of restrictions that may be imposed under the information technology act the court took the view that the restrictions must be clearly defined not over broad and expansive so that a police station somewhere in india may interpret the clauses in a in a in a loose manner
• 17:00 - 17:30 and punish citizens across the country this kind of clause the court took to be an unreasonable restriction so any law must be narrowly defined and interpreted to only impose the necessary restrictions on speech so here is the first uh first element of an analysis of what free speech rights we have we have dealt with the scope of the free
• 17:30 - 18:00 speech protection and we know it's a rather wide scope so restrictions must first and foremost be reasonable let's explore a few of these exceptions and try and better understand how this field has evolved section 295 a of the indian female chord rather old section already restricts the kind of speech and i'll let me just read a little bit about from section
• 18:00 - 18:30 up to 95 deliberate and malicious acts intended to outrage religious feelings of any class by insulting its religion or religious beliefs this kind of clause section 295 a requires of some forethought and some mental intention to indeed outrage religious feelings section 153 a
• 18:30 - 19:00 of the indian penal code that deals more uh uh with red with 295 also criminalizes the the promotion of enmity between different groups not only on religious grounds but also on grounds of race place super residence language which affect harmony in society these two clauses are rather broad 295a
• 19:00 - 19:30 and section 153a of the indian penal code and have come to in a sense comprise the core of what we might consider a hate speech law please remember that in the context of in the in the ubiquitous internet communication the questions of hate speech have come back with a vengeance in recent times but it was in an early case in 1957 in ramji lal modi where the court
• 19:30 - 20:00 took a restriction on a magazine that it happened to be a magazine about gaurav shucks to be a reasonable restriction especially a restriction that said statements in a magazine like that that inflamed religious sentiment could be restricted to ensure the maintenance of public order so in 1957 the court was willing
• 20:00 - 20:30 to concede that this kind of clause is a reasonable restriction on free speech the court was particularly sensitive to the the multi religious and the multi-ethnic character in of india and was concerned that in the absence of these restrictions much harm could come but would section 295 a survive a scrutiny under the new shriya single standard in the last slide
• 20:30 - 21:00 we looked at how the court had insisted that any criminal restriction in the statute in that case the information technology act the it act must be narrowly construed and narrowly defined would section 295 is survive that kind of student is a question worth asking and exploring at greater detail a second area
• 21:00 - 21:30 where restrictions of speech become quite controversial and quite broad is in the area of defamation section 499 section 500 of the indian penal code deal with definition it reads whoever by words either spoken or intended to be read or by signs or by visible representations makes or publishes any imputation
• 21:30 - 22:00 concerning any person intending to harm or knowing or having reason to believe that such imputation would harm the reputation of the person is set except in cases here and after accepted to defame that person criminal defamation allows for a person to protect their reputation from uh offensive words from intending to harm the person
• 22:00 - 22:30 or uh their reputation and this kind of restriction has been tested the constitutionality has been tested in several cases most recently in the 2016 case where subramanyam swami a well-known political actor and commentator sought to to have section 499 declared unconstitutional the challenge before
• 22:30 - 23:00 the supreme court had two limbs first whether criminalizing defamation is an excessive restriction of freedom of speech and whether criminal defamation law under 499 and 500 was too vaguely phrased and hence arbitrary the court concluded that that that criminal defamation law was not an excessive restriction and that
• 23:00 - 23:30 499 was not too vaguely drafted and upheld the law so criminal defamation stays on the statute and i think it's important at this stage for me to clarify that defamation can be of two types there is civil defamation for which we can claim damages in the civil court like commercial money you know money as compensation for damage to my reputation the challenge in this case is only to
• 23:30 - 24:00 criminal defamation that might result in imprisonment for a term which can extend to two years the court however decided that there were good reasons to sustain the defamation law and that stays on our books the third area which i will focus on and the last for this section is the area of sedition you remember that in the first amendment
• 24:00 - 24:30 in 1951 we introduced that exception relating to the sovereignty and integrity of india prior to that we had a very important section section 124 a of the indian people court which has a very broad phrasing reads like this whoever by words either spoken or written or by science or by visible representation very similar to to what we read before 999 or other
• 24:30 - 25:00 words brings or attempts to bring into hatred or contempt or excites or attempts to excite this affection to words the government established by law in india shall be punished with imprisonment for life to which find may be added much turns in this definition as to what means by the phrase bringing
• 25:00 - 25:30 into hatred or contempt or to excite disaffection towards this broad sedition law has been on the indian statute books from the colonial period and continues up to this time this sedition law has been tested in kedarnath versus state of bihar kedarnath had criticized the government of india for being capitalistic
• 25:30 - 26:00 for for generating social inequality and praised the the forward communist party as a solution uh to remedy these concerns this was considered to be a statement that incited uh uh distaste disaffection to the indian republic and section and kedarnath challenged section 124a as being unconstitutional unfortunately
• 26:00 - 26:30 in that case he failed what might otherwise be considered to be a criticism of the government of the day was was considered to be sufficient and a valid restriction on free speech and we we carry that legacy to this day however in sri singa in 2013 the court insisted that a sedition trial was only possible when
• 26:30 - 27:00 speech could be connected to an incitement to violence or a disruption to public order we are fully aware that currently there are several trials underway not only under the sedition law but under other criminal statutes for for a group that might be otherwise described as urban nexus and uh at least described by the government as being urban now and the question
• 27:00 - 27:30 remains what is the extent is it the mere expression of particular views that counts for a criminal offence or must there be an incitement to violence and a disruption public order so these questions are still with us they're very real questions and questions that remain to be relevant as we think about the appropriate balance between the right to free speech and the the limitations
• 27:30 - 28:00 on that speech so with these three uh three uh exceptions eight speech deformation and sedition we close the discussion on the freedom of speech and expression we have learned so far that the constitution protects both speech and expression across mediums of expression the printed press the internet and so on
• 28:00 - 28:30 but not absolutely as it is subject to some reasonable restrictions on the ground set out in article 19 clause 2. what we learn from the examples that we've studied so far is that the protection of these grounds is uh is not is slightly erratic in some contexts context of a hate speech the court might draw some
• 28:30 - 29:00 some tighter lines but on on questions of sedition or on questions of criminal defamation the court has has taken more relaxed so these are questions that are with us and questions that we should pay careful attention to as we move forward the next section however moves on to the questions of religious freedom and religious freedom is a very complicated area in the indian constitution
• 29:00 - 29:30 or in constitutions across the world and the best we can do in a shock session like this is to spend some time to understand the broad outlines of religious freedom for those of you who join me with it for the talk on the preamble you will remember that the word secular was introduced into the indian constitution by amendment in the 1970s but the indian constitution is quite significant notable both for
• 29:30 - 30:00 all constitutions or for that matter for new constitutions in that there is no invocation of god or religious belief anywhere in the preamble or for that matter in any part of the constitution so the constitution is avowedly secular but what kind of religious freedom should a secular constitution have
• 30:00 - 30:30 we understand that the word secular must mean that the indian constitution does not embrace a state religion we are not a theocratic country but how much freedom should such a secular constitution grant its citizens so to understand this complicated area we must understand that the indian constitution grants individuals freedoms in article 25 and assures
• 30:30 - 31:00 individuals religious equality in article 15 1 and article 29 clause 2. however when it comes to groups the indian constitution only gives groups freedoms in articles 26 29 and 30 but no equality there is no religious group equality that is assured by the constitution what we will find
• 31:00 - 31:30 as we go further is often there is a tension between individual equality guaranteed in the constitution and group freedoms guaranteed in the constitution and this is an issue to which we will on which we will spend some time but before we go there we must begin with article 25. article 25 makes it clear this is the core individual freedom clause
• 31:30 - 32:00 makes it clear that subject to public order morality and health into other provisions of this part that is part three of the constitution all persons are equally entitled to what to freedom of conscience remember we noted that free speech and expression didn't include conscience in article 19 1-8 here it is in article 25 and the right to freely profess practice
• 32:00 - 32:30 and propagate religion please notice this three four three pronged protection what we understand from this clause is that the freedom of conscience is internal to persons it's a freedom of belief we can believe anything we want either religious or atheistic there is no special privilege to religious belief anyone can believe what they want and the state has no business
• 32:30 - 33:00 regulating the nature of these beliefs however the constitution goes further it gives us the freedom to profess to practice and propagate religion when we turn to other constitutions around the world and other international instruments we get a a a rounder view of the nature of these protections so let's spend some time here in the united states
• 33:00 - 33:30 uh similar to the guarantee of free speech there is also a guarantee on the the freedom to practice the religion and there are no limitations so you might think that the freedom to practice religion in the united states is an absolute one but remind you that the caution is that the court has put in place some restrictions on the practice of religion in in to service public order
• 33:30 - 34:00 much like the indian constitution does in article 25 the articles uh the constitutions of ireland as well as the constitutions of south africa expressly invoke religious faith and belief uh as a part of the constitution while allowing the freedom to profess in practice the universal declaration of human rights allows a wide wide birth of rights
• 34:00 - 34:30 it allows the right to teach practice worship and observe religion in all its forms the key word that that one might pay attention to is the right to propagate what does it mean to propagate religion it ostensibly means to profess means to talk about a religion practice means an individual or
• 34:30 - 35:00 a group practice let's imagine a religious or a liturgical practice around the religion but to propagate a religion means to spread a religion how could you spread a religion you could spread a religion by just talking about it but you could also spread a religion by converting others to to your religion by professing its virtues [Music] the nepal constitution a very new
• 35:00 - 35:30 constitution by contrast in article 26 very specifically does not allow a propagation right it allows all groups the rights to preserve their religion but not to propagate their religion and you might notice that the debates in india about the scope of uh of from the propagation right and debates about proselytization and conversion have remained significant
• 35:30 - 36:00 ones and you can understand that indian constitution made a specific choice to protect the propagation of religion 1950. the indian court has interpreted the scope of the right to freedom of religion to be essentially restricted to what the court has defined as essential
• 36:00 - 36:30 religious practices not all religious practices are protected but key religious practices that are crucial to the to the uh the the theological core of a religion are protected now the debate about how one draws the line between essential and non-essential religious practices has has uh um extended as the image suggests right from the
• 36:30 - 37:00 early shiror math case in 1954 all the way into so of india in 2017. for a course like this i will not work through how the essential religious practices test has evolved during this period but it is both a colorful and instructive uh introduction to the nature of
• 37:00 - 37:30 religious practice in india and the complexity of state regulation of these religious practices and so i recommend to you to uh to acquaint yourselves with these cases and you will learn about indian culture and religion in um in insightful and interesting ways the essential religious practice phrase is a way for the court to limit the scope of the right under article 25
• 37:30 - 38:00 and prevent the range of practices that might be that might have adverse public consequences from being protected under article 25 let's now turn to group freedoms i mentioned that the india the indian constitution does not provide does not provides for individual religious equality in article 15 1 it's an article we've
• 38:00 - 38:30 spent some time on where the constitution says that the state shall not discriminate on the basis of religion and article 29 2 doubles up on the article 15 1 protection and says that the state shall not discriminate in the field of education admission to educational institutions on the basis of religion so those two equality clauses get clubbed with the individual freedoms clause
• 38:30 - 39:00 but how about group freedoms article 26 protects religious denominations in a particular way by giving them freedom over their affairs by which we mean religious affairs institutions and property so religious denominations have a protected freedom under 26. article 29 allows for cultural minorities to have their own distinct language script or culture
• 39:00 - 39:30 to preserve their culture you remember we noticed that the nepali nepal constitution allowed for the right to preserve religious uh right to preserve one's religion in article 29 this right is assured cultural minorities article 30 allows religious and linguistic minorities to establish and administer their own
• 39:30 - 40:00 educational institutions this special power to religious and linguistic minorities has generated considerable controversy and debates in india and oftentimes we we don't quite recognize that linguistic minorities are the the motive force behind private education in india and this clause article 30 has inadvertently maybe
• 40:00 - 40:30 become a gateway for professional private education in india apart from this the constitution asks for social reform of religion and permits the state to make that intervention while ensuring secularism preamble this mix of group freedoms as well as state power to engage in social reform uh and and ensure secularism means a
• 40:30 - 41:00 tight rope walk for any government in india which which may try to ensure a secular country while allowing for these both individual and group freedoms to be exercised it is not surprising then that we have a complex set of cases that have arisen where group freedom and individual in equality concerns
• 41:00 - 41:30 have have come to the fore as many of you might have read in shayarabanu versus the union of india in 2018 the supreme court took the view that the instantaneous triple talaq uh which which was a cultural or religious practice among a section of the muslim community was held to be unconstitutional among other reasons for violating
• 41:30 - 42:00 individual equality concerns in this case especially of women in the shayara barnum case the court took the view that while religious group freedom need to be preserved it need not be preserved in all its forms and manifestations when a particular practice which may have been in existence for a significant period of time is not essential for the protection of
• 42:00 - 42:30 the religion it must give way to individual equality concerns but in a similar case in uh in dealing with a very different religious practice in indian young lawyers association with the state of kerala in the same year in 2018 the court took the view that in in the shabarimala temples custom of preventing menstruating women from entering the temple during specific
• 42:30 - 43:00 their years of menstruation was declared unconstitutional once again as a violation of an individual quality guarantee to a men and women a gender discrimination so like shayara bharna the the shabri malaquis raises questions where religious group freedom claims rub up against questions of individual equality once again in shabrim allah the court
• 43:00 - 43:30 took the view that the religious freedom claimed for the temple was not one that was essential of core to the religious practice concern not surprisingly these cases have been the reviews have been filed and uh and very important decision needs to be made by the court in kantara rajivaru this is indian young lawyers association a large nine judge bench will resolve
• 43:30 - 44:00 some of these critical questions on the relationship between the fundamental right to freedom of religion and its relationship with other fundamental rights i am sure that many of you are familiar with these debates as they have occurred in in the media and i'm sure some of you have gone off and read these judgments online they're freely available but as you can tell this debate is not an idle one it's one that will have
• 44:00 - 44:30 significant impact on the evolution of a secular republic in india and we should all participate in these debates with interest and contribute to better understanding of the proper zone of division between religious group freedoms and individual freedoms and equalities so that's as much as i'm going to say about questions of religious freedom today we
• 44:30 - 45:00 have focused on the freedom of speech and expression and religious freedom in this session uh in previous sessions we have focused on life and liberty and equality as well as a general introduction to fundamental rights with that we conclude the broad uh discussion of fundamental rights and turn in in in the next session to to directive principles a much uh
• 45:00 - 45:30 ignored part of the indian constitution that we will spend um the next lecture thank you for joining us please look out for some additional videos and reading materials that we will place on them on the on your learning platform and look forward to having you back for week nine's lecture in a day or two thank you