By Mr. Mitesh Ravishankar
In the recent decades, many of the religious and other customary practices are restricted and prohibited from practicing. The universality of human rights regime has guaranteed the freedom of “thought, conscience and religion” and the principle of non-distinction which is key to the enjoyment of universal human rights. Religious faith and practices have a direct connection with Human rights, the Universal Declaration of Human Rights, including religious rights, which has now emerged as part of the common law, the ius gentium, of an emerging world culture.
2. HISTORICAL PERSPECTIVE
The concept of human rights was developed after the World War I. Many scholars and jurist of prominent nations were called for a declaration and accompanying international system “the League of Nations” to protect the basic fundamental rights and human freedoms. Atrocities during the world war II showed the inadequacy with the previous effort and gave birth to the Universal Declaration of Human Rights (UDHR)[i]. It was the first international instrument which recognized the “basic civil, political, economic, social and cultural rights that all human beings should enjoy. Later, the United Nations drafted two important covenants, the International Covenant on Civil and Political Rights (ICCPR)[ii] and the International Covenant on Economic, Social and Cultural Rights (ICESCR)[iii]. Together, the UDHR, ICCPR, and ICESCR are known as the International Bill of Human Rights.
In 1948 Universal Declaration provided the basic foundation for religious freedom as a human right. Four main international instruments contain the most critical protections of religious rights:
1. The International Covenant on Civil and Political Rights ("the ICCPR").
2. The United Nations Declaration on the Elimination of All Forms of Intolerance and Discrimination Based on Religion or Belief ("the 1981 Declaration on Religion and Belief").
3. The Concluding Document of the Vienna Follow-up Meeting of Representatives of the Participating States of the Conference on Security and Cooperation in Europe (the "1989 Vienna Concluding Document"), and
4. The Declaration on the Rights of Persons Belonging to National or Ethnic, Religious, and Linguistic Minorities ("the 1992 Minorities Declaration").
3. FREEDOM OF RELIGIOUS BELIEF AND PRACTICE
Freedom of religion or religious human rights is also known as Religious liberty. It is one of the oldest and most pre-eminent of the internationally recognized human rights. Freedom of religion is expressly recognized and protected in every international human rights instrument.The concept is taken as a set of legal and moral principles that regulates relations between individuals and societies.
All the international instruments of human rights which protects the freedom of religion gives a substantive right to freedom of religion or belief, right of individuals to associate with others and not to discriminated on basis of religion.
Freedom of religion has two components. The first is the right to freedom of thought, conscience and religion, which means an individual holds the to hold and change one’s religion. The second is the right to manifest one’s religion or belief.
4. PERMISSIBLE LIMITATIONS
The said rights are not absolute in nature, it is subject to restrictions and limitations as prescribed by law, which are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others.[iv]
Freedom of religion is closely related to other substantive rights. The rights to freedom of expression, assembly and association are fundamental to holding religious beliefs and practising one’s religion. Such rights can be restricted by a state through imposing permissible legal limitation.
Freedom of religion can be restricted but only if the restriction is prescribed by law and is necessary[v] – Article 9(2) adds here ‘in a democratic society’ – for the protection of public safety, public health or morals or for the protection of the rights and freedoms of others.
The ECHR has held that ‘necessary in a democratic society’ means that the interference must fulfil a pressing social need and must be proportionate to the legitimate aim pursued.[vi]This means that there must be a reasonable relationship between the aim of the restriction and the means used to achieve that aim.[vii]
In the last few years, political attention has been given to the freedom of religion, notably in India, Europe and France in the light of religious intolerance. Religious practices should be respected and shall not be restricted unless it provides harm for the public order or national sovereignty. It is also important for the state to prohibit certain cultural practice whichviolate human rights, whether or not they are based on religious belief, government should take necessary measures to forbid and prevent such practices. These includes practices such legitimizing forced marriage or polygamy, discrimination against women and girls in property and inheritance rights, legality of child marriage and etc.
Freedom of religion not only includes belief, right of individuals to practice and associate but also includes the right not to practice any religion have a space for pluralism of thought, conscience and religion.
[i]Universal Declaration of Human Rights, Dec. 10, 1948, 217A (III). [ii]International Covenant on Civil and Political Rights, Dec. 16, 1966, 999 U.N.T.S. 171. [iii]International Covenant on Economic, Social and Cultural Rights, Dec. 16, 1966, 999 U.N.T.S. 3. [iv]International Covenant on Civil and Political Rightsart 18(3), Dec. 16, 1966, 999 U.N.T.S. 171. [v]European Convention for the Protection of Human Rights and Fundamental Freedoms art 9(2), Nov. 4, 1950, E.T.S. 5. [vi]Handyside v UK, No. 5493/72. [vii]European Convention for the Protection of Human Rights and Fundamental Freedoms art 15, Nov. 4, 1950, E.T.S. 5; International Covenant on Civil and Political Rights art 4, Dec. 16, 1966, 999 U.N.T.S. 171.