Freedom of religion should be of constitutional concern is not surprising. However, how a government can proceed with its legislative as well as executive plans for social benefits and yet remain ‘secular’ is of great concern for countries whose prevalent population is in need of much intervention with the government side for their socio-economic betterment. This article tries to identify such challenges and seeks to address them although it is not and can not be exhaustive.So, looking into the experience of India that is one of the most religiously diverse country, with society whose culture is based on religious principles, that adopted the concept of secularism with its own ground reality and managed to strike balance between religious and secular interests would present best example to a country like Ethiopia, with young constitution and without any developed tradition with respect to constitutional values in general and fundamental rights, freedom of religion included, in particular, who shares common characteristics, that is Ethiopia too have diversified society with different culture and religions within Federal form of government structure alike India.

B. Secularism

The wikitionary[2] defines secularism as: one as “A position that religious belief and practice should be kept in the private” and as ‘The related political belief in the separation of church and state.”

However, the notion of secularism differs from country to country. For example in the former communist Russia besides state’s abstinence from sponsoring any religion the state actively encourages anti-religious beliefs. Though religion is tolerated there was no freedom to propagate one’s religion. And except considerations of practicability and policy there is nothing in the constitution to prevent the state from altogether abolishing religion.[3]  The term secularism, though, is not employed in the US constitution the concept of state-secularism presents a significantly different pattern, based on the principle of freedom for the individual in the exercise of religion as a segment of general scheme of individual liberty.[4]  It is customary in the constitutions of many countries guaranteeing freedom of religion to specify two aspects of this liberty- freedom of conscience and freedom of religious practice. The term ‘freedom of conscience’ when used in the context of constitutional provision connotes much more than the mere act of individual belief in an abstract sense. It implies an individual’s right which has a corresponding duty on other ‘person’, primarily the Sate. This corresponding duty on the state constitutes the frame of relationship between the state and religion. And this relationship involves the principle of secularism. Thus, for understanding the implications of secularism as envisaged by the Indian constitution, it provides for three essential conditions; namely, one, the state shall have no religion;[5] two, there shall be no discrimination on the grounds of religion;[6] and three, the individual shall have freedom to practice, profess, and propagate religion. It did not provide for strict separation between the state and church as is found in the secular constitutions, particularly the constitutions of the United States and the Federal Democratic Republic of Ethiopia. 

When we analyze the constitution of Ethiopia against the above three essential conditions of secularism;

The state shall have no religion (Art. 27 of the Indian constitutional par provision under the Ethiopian constitution is Art. 11, on top of the non-existence of state religion it declares further that state and religion are separate and one won’t interfere into another’s affair and such makes the Ethiopian concept of secularism different in relation with separation of sate and religion because unlike in Ethiopia in India there is no such a wall.

In relation with the prohibition of discrimination on the basis of religion. Both constitutions have laid down such principles in various provisions. While the Indian provisions like Arts. 14, 15(1) and (2), 16(1) and (2), 29(2), and 325 and almost the same have been endorsed in the preamble, in Arts. 25, 34(1), 35(1), (2), (7), and (8), and 38 of FDRE constitution.

Regarding the individual freedom to practice, profess, propagate one’s religion, while the Indian laid such freedom in Art.25 the Ethiopian did so in Art.27(1) and (3).   

The principle that governs the religion-State relationship in India is some what different from the Ethiopian as well as that of US, who erected ‘a wall of separation’. India has separation in its proper aspect, such as there is no recognition to any State-religion, no power to establish any religion or teach any religious doctrine in exclusively state educational institutions. However looking into the prevalent situation that the state being not financially capable enough to provide for education to the vast population of the country, which is poor and illiterate. So many private bodies could share this responsibility by contributing large sum, for the consideration of being permitted to impart religious knowledge to the willing. Thus, India didn’t adopt the American pattern whose general conditions are vastly different from India.

 The Indian experience with this respect is that, Art 28, provides for three types of educational institutions; these are, (1) in institutions of a completely public nature, there is absolute prohibition of religious education, (2) in institutions where the state acts as a trustee, religious instruction is permitted and (3) in state aided denominational institution, religion instruction on a voluntary basis is permitted. Article 28 (3) thus supplements Art. 30(1), [which provides the right of minorities to conserve their identity so that they can establish religious school in the exercise of such right]. Regarding the Ethiopian Constitution it is generally stated that education [public or private,] has to be provide in a manner free from religious influence, (see Art.90 (2)). What appeared here in the framers mind seems only state funded public education. However, the fine line demarcation between ‘education free from religious influence’ on one hand, and ‘religious education’ on the other would raise specific issues that would have to be tackled in future.[7] 

C. Freedom of Religion

Articles 25 to 28 particularly devoted for the right to freedom of religion under part three of Indian constitution, which are provisions of fundamental rights.

The principal article on freedom of religion reads as follows:  

Article 25 freedom of Conscience and free profession, practice and propagation of religionSubject to public order, morality and health and to the other provisions of this Part, all persons are equally entitled to freedom of conscience and the right freely to profess, practice and Propagate religion. 

Nothing in this article shall affect the operation of any existing law or prevent the  State from making any law—       

(a) regulating or restricting any economic, financial, political or other   secular      activity which may be associated with religious practice;      

(b) providing for social welfare and reform or the throwing open of Hindu religious institutions of a public character to all classes and sections of Hindus. 

Explanation I—The wearing and carrying of kirpans shall be deemed to be included in the profession of the sikh religion. 

Explanation II—In sub-clause (b) of clause (2), the reference to Hindus shall be construed as including a reference to persons professing the Sikh, Jaina or Buddhist religion, and the reference to Hindu religious institutions shall be construed accordingly. 

The freedom to profess, practice and propagate religion would be empty unless there is further freedom to establish and maintain institutions for religious and charitable and to manage is own affairs in matters of religion like one guaranteed under Article 26 which read:  

Article 26 Freedom to mange religious affairs.Subject to public order, morality and health, every religious denomination or any section thereof shall have the right—

(a) to establish and maintain institutions for religious and charitable purposes;

(b) to manage its own affairs in matters of religion;

(c) to own and acquire movable and immovable property; and

(d) to administer such property in accordance with law 

The principle of giving primacy to the individual, placing him before and above religion and recognizing freedom of religion and of religious denominations as incidental only to his well being and to a general scheme of his liberty is a distinguished feature of Indian secularism conjointly with the principles of tolerance and equality. All these three elements of the constitutional philosophy are enshrined in the above mentioned Arts. 25 and 26. These two Articles form the core of the doctrine of Indian secularism.[8]    

Under Indian constitution the protections, in Arts. 25 and 26 of the constitution is not limited to matters of doctrines and beliefs, but they also extend to the act done in pursuance of religion and therefore contain guarantee for rituals and observances, ceremonies and mode of worship which are integral part of religion. As factors constituting essential parts is decided in Swami case and the performance of Tavada Dance in public is denied of being essential part of Anand Margi.[9]

With the right of individual freedom of conscience and religion provided under the Ethiopian constitution of 1995 Article 27 (1) read as:  

“Everyone has the right to freedom of thought, conscience and religion. This right shall include the freedom to hold or to adopt a religion or belief of his choice, and the freedom, either individually or in community with others, and in public or private, to manifest his religion or belief in worship, observance, practice and teaching.”                        

The above clause except for substituting the word ‘adopt’ for ‘have’ is similar verbatim to Article 18 (1) of the ICCPR. In which case, the Ethiopian constitution takes the enlightened liberal stand that every person has the right to freedom of thought, conscience and religion. This freedom encompasses both the inner personal belief as well as its external manifestations. That the right includes the freedom to hold or adopt a religion of one’s choice and to worship, observe, exercise, teach and proclaim, either individually or in fellowship with others, in public or private, makes the right complete.[10] 

D. Limitations or Exceptions

Obviously, by its very nature the right of practice admits and requires more limitations than the right to believe. The limitations can be categorized into three under the Indian constitution; namely, first, public order, morality and health; second, other provisions of part III of the constitution and thirdly, matters related with social reforms, sub-clause (a) and (b) of clause 2 of Art.25. 

The overriding public interests under the Ethiopian constitution is concerned to which freedom of religion is subject to; are namely, one, public safety, peace, health, public morality, and education; secondly, the fundamental rights of others; and thirdly, the guarantee of the independence of government from religion.

If we try to equate the limitations under both, Indian and Ethiopian, constitutions imposed against freedom of religion: while the Indian used the phrase ‘public order’ the Ethiopian employed ‘public safety’ and ‘peace’ the Supreme Court of India while comparing “public order” and “security of State”, in another case[11], the court held that the former is wider than the latter. And further, illustrated that ‘public order’ as virtually synonymous with public peace, safety and tranquility. Thus public safety and peace may mean public order in India.

The other limitation which is of much concern is ‘morality’ although it is commonly used under both constitutions the Ethiopian qualified it with the term ‘public.’ The term ‘morality’ has no fixed meaning and varies from society to society and time to time depending on the standards of morals prevailing in contemporary society. One can assume for granted that the same meaning can’t be procured since the societies in both countries have different culture.

Understandably, a person can exercise his religious freedoms so long as it does not come in conflict with the exercise of Fundamental rights of others: the limitations listed under the second category above, while the limitation under the Indian constitution by referring ‘other provisions of part III of the constitution’ is just to mean ‘fundamental rights of others’ as its used under the Ethiopian constitution. As part III of the Indian constitution consists seven groups of human rights; namely, the right to equality (Ats.14-18), right to freedom  (Ats.19-22), right against exploitation (Ats.23-24), right to freedom of religion (Ats.25-28), cultural and educational right (Ats.29-30), right to property (Ats.31-31c), and the right to constitutional remedy (Ats.32-35). The fundamental rights under the Ethiopian constitution divided into two; namely, ‘Human rights’ and Democratic rights.’ While under the former section are listed rights and freedoms of civil nature and the latter section comprises rights and freedoms that are by and large of political, economic, social, cultural and collective nature. 

Regarding such limitation, In Rev. Stalnislaus v. State of Madhy Pradesh[12], referring to the word ‘propagate’ in Art.25(1) it was noted that it doesn’t include the right to convert another persons to his religion, as distinguished from his effort to transmit or spread the tenets of his religion, according to the Supreme Court, that would impinge on the ‘freedom of conscience guaranteed to all the citizens’ in the country alike. Thus the court upheld as valid under Art 25(1) an Act prohibiting conversion of a person by force, fraud or allurement. In another case[13], it was also held that the use of loud speakers by a particular community at the time of prayers is subject to the provision of the Environmental (Protection) Act, 1986. Since any such practice should not affect the right of others. Further, in Lily Thomas v. Union of India[14], it was held that a second marriage solemnized under Muslim law by a Hindu convert infringes the religious rites and personal freedom of the Hindu wife.

With such types of limitations what both constitutions have in common is the fact that religion yields to the fundamental rights of others; fundamental rights under part III and chapter III of Indian and Ethiopian constitutions respectively. However, there are lot things to be done with this respect in Ethiopia, for example Churches, Mosques, and Protestants so often use loud speakers in a very much disturbing way. For the government fails to come up with a law like Environmental protection Act and problem related with the courts, that they adopt continental system, that they are passive unlike India.

In relation to the third type of limitation on the freedom of religion, while the Ethiopian constitution used the phrased, i.e “the guarantee of the independence of government from religion” which is vague and very broad, may raise question like can the state encroach upon any religious right and hold that it is independent to do so!. Whereas the limitation on the freedom of religion that stems from the power granted to the Indian state by sub-clause (a) and (b) of clause (2) of Art.25, the state is empowered to regulate secular activities associated with religious practices with the object to bringing about social reform. In relation with such limitations the Indian court tried to identify whether a certain activity at issue fell under ‘religious’ or ‘secular activity’ and the activity sought to be regulated is whether regarded as an essential and integral part of the religion in question. The distinction is important for what is religious can not be regulated. Thus, what the state can regulate under Art.25 (2) (a) are the activities really of an economic, commercial or political character though this may be associated with religious practices.[15] Management of property attached to a religious or endowment too is held to be, a secular activity which can be regulated by the state.[16]  Administration of property by a religious denomination; however, is distinguished from the right to manage its own affairs, as noted by the supreme court in Sardar Sarup Singh v. State of Punjap.[17] While the latter is a fundamental right which no legislature can take away except as in provided by the constitution, whereas the former can be regulated by law.

Further more; measures of social reform are permissible for the legislature’s interference under Art. 25 (2) (b) of the Indian constitution. For example, the Hindu Marriage Act which introduces the principle of monogamy for the Hindu is considered to be a law providing for social welfare and social reform. Since it is intended for the benefit of the class of persons to whom the Act applies.[18] The Haryana legislation disqualifying persons having more than two children from holding the position of a sarpanch, up-sarpanch or a panch of a gram panchayat(Positions of social courts) is upheld under clause 1, regarded as one for the health of the female and under clause 2 religious freedom being subject to laws made for social welfare and reform. And, thus, concluded that the provision in question does not interfere in professing their, religion, practice or propagating the same by the Muslims.[19] 

E. Conclusion  

This study brings into picture the content of religious freedom in both countries presents not only similarities but also some notable differences.

Thus, to start with, both constitutions may be said, in a broader sense, to establish a secular state. While Ethiopia with a young constitution and for courts are not given expressly the power to interpret the constitution it remained without any accumulated tradition with respect to the concept of secularism, where as the concept of secularism in India has developed over the years its own unique concept which squarely fits with India’s own context, that is fundamentally different from direct replica of American concept of secularism which erected a wall of separation between church and state. India has ‘separation’ in its proper aspect, such as there is no recognition to any State-religion, no power to establish any religion or teach any religious doctrine in exclusively state educational institutions. However looking into the prevalent situation that the state being not financially capable enough to provide for education to the vast population of the country, which is poor and illiterate. So many private bodies could share this responsibility by contributing large sum, for the consideration of being permitted to impart religious knowledge to the willing. Thus, India didn’t adopt the American pattern whose general conditions are vastly different from India. Thereby allowing religion and state to interact and intervene in each other’s affairs within legally and judicially establish frameworks; the Indian secularism does not assume the total expulsion of religion from the societal or state affairs unlike the case is in Ethiopia, at least constitutionally. The Indian constitution, thus, warrants the treatment of all religions and religious denominations’ with equality and without discrimination in all matters under its direct or indirect control.

Where as, the Ethiopian concept of secularism, as laid down in the constitution, is stricter than that of the Indian constitution which didn’t erect “wall of separation” as that of the US constitution in order to avoid the pitfalls the latter has experienced. Ethiopia, too, whose situation is by far different from developed country, should have taken same lesson in order to avoid inevitable contradictions between freedom of religion and ‘non-establishment.’ And the possible inhibition to the implementation of some policy programs to certain community due to their religious background.     

In addition to religious neutrality of the state and religious liberties of the people, the constitution of India incorporates a number of religion-based and religion-related provisions for particular communities. (See Explanation I and II of Art.25 and Art. 30). Furthermore, to give practical application of constitutionally guaranteed rights there is also commission for minority groups who oversees the enforcement of such rights.

However, the Ethiopian constitution which provides for complete separation of state and religion would hardly allow religion and state to interact and intervene in each other’s affair. Even independent private schools are not clear with whether they could impart religious education along side with secular education, since the constitution demands, blindly either private or public without any distinction, ‘education shall be free of religious influence’, see Art.90(2), discourages  (or not constitutionally guaranteed, at least) those who could have shared the responsibility of educating the prevalent  population for the consideration they are permitted to teach religious education to the willing.

This coupled with the broadly phrased justification for the state’s interference, as a ‘guarantee state’s independence from religion’ could possibly affect religious freedom. Furthermore, the problem as a matter of fact will get exacerbated since courts are not expressly conferred with the right to interpret the constitution. Nonetheless, courts in discharge of their constitutional responsibility to implement and enforce the fundamental rights. Their passive policy is hoped to change and constitutionally guaranteed justiciable freedoms would be interpreted into practice.

There are also set of rules dealing with religion or that has something to do with various religions. The legislations and ramifications of the executive too are consistent with the constitutional dictates relating to secularism and demands of religious freedom lest they would be struck down by the judiciary. Thus, the judiciary in India has witnessed judicial activism in adjudicating religious affairs. In such processes, too many cases between various parties have been disposed; that is religious dispute between various communities, sects, and groups and between the people and the state as well.

In summary, in India while in the past time religion controls the legal and judicial system, whereas in today’s India it is the law of the land that determines the scope of religion in the society, and the courts that who judges what the laws is in relation with the limits of religion. The judiciaries caution activism and reconciliation reflected religion-state relations special and very interesting. That India’s version of secularism and freedom of religion shows an appreciable balance of religious and secular interests.[20]

It is also submitted that, decisions of courts with this respect generally witnesses the attitude of objectivity and impartiality, although the existence of some deviations as a result of not catching the sprit of the constitution or concept of secularism as exactly as the framers of the constitution contemplated which was the product of India’s own social experience and genius.[21]

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