Last week, in a brief and interesting judgment, the Bombay High Court held that Article 25 of the Constitution requires the government to allow persons to declare “No Religion” on governmental forms that require declarations of religion. The petitioners were the members of the “Full Gospel Church of God”, which believes in Jesus Christ, but not (!) in Christianity, or any other organised religion. The Petitioners made an application to the State Government printing press to issue a gazette notification stating that they were not Christians but, rather, belonged to “No Religion”. This application was rejected. Consequently, they approached the Court, via PIL. Their prayer, which the Court quotes in its judgment, was as follows:
“That this Hon’ble Court be pleased to issue writ of mandamus or any other appropriate writ, order or direction thereby directing the respondents to recognise “No Religion” as a form of religion and not to insist on writing/mentioning/specifying/quoting religion in any of its forms or declarations.”
The judgment follows a standard Article 25 framework. It cited precedent for the proposition that the term “religion” under Article 25 is not limited to theistic religions, or religions centred upon a God. Subsequently, it noted:
“The right of freedom of conscience conferred upon a citizen includes a right to openly say that he does not believe in any religion, and therefore, he does not want to practice, profess or propagate any religion.”
Since the requirements of stating a religion impinged upon the freedom of conscience of atheists, the Court held that it was unconstitutional, and set aside the order of the government printing press.
So far, so unexceptionable. The Court’s judgment follows the trend in most liberal democracies that have a freedom of religion and conscience clause: the question of what constitutes a religion is for neither the courts or the clergy to decide, but for the individual. The Courts will not inquire into whether an individual’s belief system tallies with any one of a list of approved religions, but will only initiate a prima facie enquiry into the depth and sincerity of her beliefs (whether, for instance, they are central enough to her life to properly be understood as having “religious” significance), and go no further before extending constitutional protection.
If that was all, this would be a fairly straightforward case. But the position is significantly complicated by the fact that throughout its judgment, the Court runs together two very different concepts, as if they were one: the right to declare no religion, and the right against compelled disclosure of religion. In its opening paragraph, the Court states:
“The contention of the petitioner is that the State cannot compel any citizen to disclose his religion while submitting forms and/or declarations. The Contention is that the petitioner has a right to claim that he does not believe in the philosophy of any religion and therefore he does not practice or profess any religion. The contention in short is that a citizen can always claim that he belongs to “No Religion”.”
But these are not the same contentions at all! Given that the Court’s own argument is that religion – in the Article 25 sense – need not be theistic at all, the fact that you are stating, on a form, that you belong to “No Religion” does not mean that you are not disclosing your religion – in fact, it means exactly the opposite: you are disclosing your “religion” as being non-theistic or a-theistic.
Even without this strained reading of “religion”, the distinction should be clear. It is the same as the difference, for instance, between asking for “Other” under the “Gender: M or F” category, and asking that nobody should be compelled to declare their gender. A guarantee against compelled disclosure of religion would amount not to an extra box stipulating “No Religion”, but either a removal of the question from forms altogether, or still another Box stating “I Prefer Not to Disclose”.
The distinction is crucial, because admittedly, the freedom to state “No Religion” – asking for parity of treatment between theists and atheists – is an Article 25 claim; but the freedom from compelled disclosure is an Article 21 privacy claim (or, to a lesser extent, an Article 19(1)(a) claim against compelled speech). The privacy claim – unlike the Article 25 argument – is not restricted to religion. It would extend to other features of one’s personality that are as central as religion, and which one could, conceivably, want to keep private: ethnicity, race, sex (perhaps). That is certainly a tenable argument (and the legal scholar Jed Rubenfeld has a brilliant conceptual defence of it here), but would require the Court to go into the niceties of privacy law, and carve out a new concept of privacy, one which goes beyond privacy-as-freedom-from-surveillance (under the Gobind-PUCL line of cases), and privacy as a private right against disclosure of sensitive medical information (the Mr X vs Hospital Z-Sharda vs Dharmpal line of cases). That, again, would be an exciting (and in my opinion, correct) development, but it would require substantially more reasoning and argument than the Bombay HC has engaged in.
The two different issues are conflated throughout the judgment, and even plague the prayer. Under clause (a) of the Prayer, the Court holds:
“We issue a writ of mandamus directing the Respondents not to compel any individual to declare or specify his religion in any form or any declaration.”
Whereas clause (b):
“We declare that by virtue of Article 25 of the Constitution of India, every individual has right to claim that he does not belong to any religion and that he does not practice or profess any religion.”
It is clear from the context that what the Court meant was only (b), and it (mistakenly) considered (a) equivalent to (b). But it has done both (a) and (b) – provided a guarantee against compelled disclosure, as well as brought atheists on par with theists in terms of disclosure. It will be interesting to see if this issue is subsequently resolved, and if so, in which way.