Religious freedoms at the workplace

The Indian Constitution is described as a secular constitution although the term secularism has not been defined in the Constitution. The lack of a definition has made it possible for multiple meanings of secularism to be used. While on occasion it is understood to be the wall of separation, on other occasions it is distinguished from this and said to be a toleration of all religions rather than that State does not have a religion.

In fact it is quite evident from public discourse that religion is an important feature of public life and public law. The decision of a seven judge bench of the Supreme Court in its recent ruling on the Representation of Peoples Act, on what an appeal to religion means in Abhiramsingh vs.C.D.Commachen, is an indication that the issue of appealing to voters on the ground of religion has had a long history in India and continues to be litigated. The refusal to overrule the controversial ruling that Hindutva is a way of life while maintaining that no appeal to religion may be made during elections also indicates that the presence of religion in the public space remains contested.

The Indian Constitution secures the right to equality, non-discrimination as well as the right to practice, profess and propagate religion.

This ambivalent position of religion in the public sphere is also reflected in the law relating to the workplace. The workplace as a public space must balance the freedom of expression as well as the right to religious freedoms that are guaranteed under Part III of the Indian Constitution. Since the State may not make any law that is in violation of these fundamental rights, labour legislations operating in the workplace cannot violate these rights.

Thus both the principle of secularism and fundamental rights operate in the realm of work and law. Apart from the principles of public law, labour legislations are also bound by principles particular to labour, such as the definition of work, employment and scope of legislation. The International Labour Organisation (ILO) has set out fundamental principles and rights at work which include a right against discrimination.

The Indian Constitution secures the right to equality, non-discrimination as well as the right to practice, profess and propagate religion. The Supreme Court while adjudicating on religious freedoms has used the essential practices test to determine those practices, the non-observance of which alone will lead to violation of religious freedoms. In a decision in 2016 concerning Regulation 425 (b) of the Regulations of the Indian Air Force and policy letters the Court has held that they did not discriminate against a person of the muslim faith from growing a beard. Under A.33 of the Constitution, Parliament may modify the rights conferred under part III for personnel of the Armed Forces. Thus parliament may make regulations that restrict religious practices and the first clause in regulation 425 does specify that the personnel of the armed force must always be clean shaven. Clause b however permits the growing of a beard by those personnel whose religion prohibits the cutting of the hair or shaving of the face of its members. The appellant claimed that this applied to him as his religion considered the growth of a beard as desirable. The Court however distinguished between those religions such as Sikhism wherein the prohibition on the cutting of hair was mandatory and those where it was only desirable. The Court held that the regulations which were necessary to maintain discipline in the Armed Forces did not apply to the appellant. It observed that the regulations are not intended to discriminate against religious beliefs nor do they have the effect of doing so.

The decision of the Supreme Court appears to reflect the essential practices test that is widely used in India as well as in the European Commission on Human Rights on the issue of religious practices. The European Commission has in recent decisions such as Eweida moved away from the essential practice test to examining its impact on the workforce. The Commission is not insisting that it must be mandated by religion but must have been motivated or have a sufficiently close and direct nexus between the act and the religion concerned. This allows us to move away from examining a practice in terms of its significance for the religion to examining its significance for the individual member of the community.

The discussion on religious freedoms has often been situated in the context of discrimination or equality i.e articles 14 and 15. The Supreme Court has also discussed it in the context of discrimination on the basis of religion. The other space where the discussion happens is the context of religious freedoms under article 25. In the place of both these spaces and in consonance with them, it might be useful to locate the freedom to practice a religion as a question of freedom of expression and right to liberty i.e. article 19 and 21. The Supreme Court has held that only article 14, 19 and 21 stand between the heaven of freedom and the abyss of unrestrained power.

The freedom of expression must include the freedom to express religious beliefs and practices and the state may only impose reasonable restrictions on specified grounds. Similarly the right to liberty cannot be confined to bodily integrity alone but must include other facets of dignity such as the concepts of consent and agency. The right to dignity also carries within it the right to be respected irrespective of a disagreement on beliefs. Respecting religious practices as matters of choice, dignity and the right to take decisions and the right to freedoms will enhance the quality of discussions around religious freedoms and their interface with law in the place of the narrow essentiality test.

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N.Vasanthi is a law professor with NALSAR University of Law, Hyderabad.