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The Constitutional Struggle
for Religious Freedom:
A Comparative Study of India
and Indonesia
Neha Tripathi*
Maharashtra National Law University, Aurangabad, India
neha.tripathi@mnlua.ac.in
Anubhav Kumar**
Maharashtra National Law University, Aurangabad, India
anubhav@trinayalegal.com
Received: 30 October 2021 | Last Revised: 29 March 2022 | Accepted: 31 Maret 2022
Abstract
Constitutions tend to regulate the relationship between religious and state
authorities. Before the rise of the modern state, it was dicult to make proper
distinctions between law, religion and morality. With the emergence of Western
liberalism, the concept of democracy and secularism gained newfound attention,
becoming ingrained and in tune with modern constitutional frameworks.
Establishing the relationship between state and religion is a thorny issue for
constitution-makers. Opponents of constitutional recognition of religion view
religion as a private matter, relating to personal beliefs and conscience. This
paper studies the comparative constitutional frameworks of India and Indonesia
in relation to the right to religious freedom. As vibrant democracies comprised
of ethnically diverse populations, both India and Indonesia grapple with issues
concerning religious majorities and minorities. In India, Hindus are the majority,
then Muslims, Christians, Sikhs and Buddhists; whereas in Indonesia, Muslims
are the majority, then Christians, Hindus and Buddhists. Both India and
Indonesia have ratied the International Covenant on Civil and Political Rights.
The judgments of the constitutional courts in these countries have prompted
constitutional law scholars to analyze the status of constitutionally recognized
Constitutional Review, Volume 8, Number 1, May 2022
P-ISSN: 2460-0016 (print), E-ISSN: 2548-3870 (online)
https://doi.org/10.31078/consrev811
* Assistant Professor (Law), Maharashtra National Law University, Aurangabad (MNLUA), India. PhD Candidate,
National Law University, Delhi, India. Former Faculty, National University of Study and Research in Law, Ranchi,
India.
** Advocate and Researcher, Bar Association of India (BAI); LL.M. Constitutional Law (2021), Maharashtra National
Law University, Aurangabad, (MNLUA), India.
e Constitutional Struggle for Religious Freedom: A Comparative Study of India and Indonesia
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freedom of religion and its enforceability. This article rst studies the relationship
between state and religion in the contemporary sphere, thereby engaging in
a comparative study of the formation of constitutional provisions in relation
to religious freedom in India and Indonesia. Second, it aims to establish the
importance of religious freedom within a constitutional framework. Third, it will
discuss the issues surrounding recognition and enforcement of religious freedom
in India and Indonesia, as well as providing an analysis from the perspective
of majoritarianism and religious intolerance. Fourth, it will analyze landmark
judgments of the constitutional courts of India and Indonesia in formulating and
establishing the basic tenets of religious freedoms in the two nations. The role
of the judiciary and governmental institutions in dealing with issues of religious
freedom remains a central question in democratic countries such as India and
Indonesia. Keeping in mind the need for a more holistic study and contributing
to the literature in this area, the authors will present a comparative analysis of
religious freedom in both these nations for nuanced understanding of religious
rights and their interplay with the respective constitutions.
Keywords: Blasphemy, Essential Practice, Judiciary, Religion, Religious Rights.
I. INTRODUCTION
The relationship between religion and politics remains highly debated in the
eld of political philosophy as well as in contemporary constitution processes.1
During the Middle Ages, specically in Europe, religion was perceived as the
ultimate power source, determining the legitimacy of religion and state; gradually,
during the reformation and enlightenment era, the inuence of religion declined.
Today, democracy and rule of law are the fundamental pillars of a constitutional
state.2
Respect for another person’s beliefs is “one of the hallmarks of a civilized
society”.3 Religious liberty is commensurate as a triumph of liberal democracies.4
Regarded as the “ultimate freedom” and the “cornerstone of all human rights”,
religious freedom is deeply rooted in human dignity and enjoys a special status
1 Aernout Nieuwenhuis, “State and Religion, a Multidimensional Relationship: Some Comparative Law
Remarks,” International Journal of Constitutional Law 10, no. 1 (2012): 153–174.
2
Constantin Fasolt, “Separation of Church and State: The Past and Future of Sacred and Profane” (Fourth National
Conference of the Historical Society, 2004).
3 R v. Secretary of State for Education and Employment, ex p Williamson (2005) UKHL 15 [15].
4
Refah Partisi [the Welfare Party] v. Turkey (2003) 37 EHRR 1, [90].
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in the maintenance of social stability.5 Religious freedom and religious tolerance
are equally important and have been center stage in the secularized modern
state.6 With the secularization of the state and a revived interest in discourse
surrounding religion toward the end of twentieth century, if we attempt to analyze
the meaning of religion or importance of religious freedom in constitutional
theory, then its foundational basis has to be seen from the prism of the right
to equality.7
Religion, considered integral to existence in India and Indonesia, is often
perceived as a mode of self-identication and establishing faith and belief in
a value system, enforced through constitutional recognition.8 However, with
the homogeneity of society and especially in a post-colonial world, the right to
religion has emerged as a primary right, denial of which, historically as well as
in the contemporary world, has caused major crises, often leading to human
rights violations and subsequently used as justication for state actions.9
The discourse surrounding religious freedom is not relatively new; rather,
it was a gradual process of incorporating and recognizing such a right within
the domestic framework. In the light of the complex development of the state
and its entities, today, the ongoing crisis over the right to religious freedom
cannot be ignored. Unique cultural and political settings, as well as the
complex inter-relationship between religion, state and society, have posed much
greater challenges to the maintenance of the sanctity of religious freedom in
a constitutional state. These crises often emerge in constitutional democratic
states by way of exceptions created in the name of other rights with respect
to the exercise of religious freedom. After all, religion is here to stay, it is
5 James Wood Jr., “Religious Human Rights and a Democratic State,” Journal of Church and State 46, no. 4 (2004):
739-764. Also see, Rex Ahdar and Ian Leigh, Religious Freedom in the Liberal State Second edition (Oxford: Oxford
University Press, 2013).
6 Jürgen Habermas, “Religion in the Public Sphere,” European Journal of Philosophy 14, no.1 (2016): 15.
7 See, Yashomati Ghosh and Anirban Chakraborty, “Secularism, Multiculturalism and Legal Pluralism: A Comparative
Analysis between the Indian and Western Constitutional Philosophy,” Asian Journal of Legal Education 7, no.1
(2019): 73-81.
8 See generally, Mariam Rawan Abdulla, “Culture, Religion, and Freedom of Religion or Belief,” The Review of
Faith & International Affairs 16, no.4 (2018): 102-115.
9 Arcot Krishnaswami, “Study of Discrimination in the Matter of Religious Rights and Practices,” (Special Rapporteur
of the Sub-Commission on Prevention of Discrimination and Protection of Minorities, 1960).
e Constitutional Struggle for Religious Freedom: A Comparative Study of India and Indonesia
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not withering away in a secularized world, as advocated in the past.10 Being a
global phenomenon, secularization raises important questions about the role of
government in connection with individuals and religious organizations having
religious aliations.11 In this light, constitutions are made to regulate and arm
the relationship between state and religious authorities. This relationship diers
from one nation to another and dierent approaches appear in their constitutions.12
In pluralistic societies, there is much debate over whether religion should be a
private or public matter, whether state agencies should handle religion or whether
a country should eschew having a state religion.13 It is therefore pertinent to
dissect the dichotomy of the two and understand their interplay.
Asia’s distinct post-colonial political, social, cultural and economic
establishment requires analysis to bring about a holistic understanding of the
relationship between state and religion.14 Unlike the Western experience of
religious pluralism, where the relationship between state and religion was often
simply based on diverse Christian creeds, the Asian experience poses a much
larger question in the light of distinct religious creeds, with the pressing need
to have their interests recognized and voices heard.15 Both India and Indonesia
have seen various instances where the interpretation of religious freedom, being
an indispensable constitutional feature, has been brought to question, which
drives the inquiry of this article. Obviously, diverse religious organizations and
their proponents and believers have their own demands, which raises important
questions regarding religious freedom, such as: What encompasses religious
freedom? Is religious freedom absolute? How should the state relationship with
10 W. Cole Durham Jr., “Religious Freedom in a Worldwide Setting: Comparative Reections, Universal Rights in a
World of Diversity,” The Case of Religious Freedom Pontical Academy of Social Sciences 17, (2012).
11 Nieuwenhuis, “State and Religion,” 153–174.
12 Dawood Ahmed, Religion–State Relations (Sweden: International IDEA Constitution-Building Primer, 2017). Available
at https://www.idea.int/sites/default/les/publications/religion-state-relations-primer.pdf.
13 Veit Bader, “Religious Pluralism: Secularism or Priority for Democracy?” Political Theory 27 no. 5 (1999): 597-633.
14 J. Neo, A. Jamal, and D. Goh, Regulating Religion in Asia: Norms, Modes, and Challenges (Cambridge: Cambridge
University Press 2019). “…in terms of demography, the Asia-Pacic region has the most religiously diverse prole
in the world. The Index is based on the “percentage of each country’s population that belongs to eight major
religious groups, as of 2010”, i.e. Buddhism, Christianity, Hinduism, Islam, Judaism, folk or traditional religions,
adherents of other religions, as well as the religiously unaliated (including atheists and agnostics).
15 See, Veronica Louise B. Jereza, “Many Identities, Many Communities: Religious Freedom amidst Religious Diversity
in Southeast Asia,” The Review of Faith & International Aairs 14 no. 4 (2016): 89-97.
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religion be governed? What protection does a constitution accord to religion
and by what means? Should religious freedom be allowed to be curtailed by
other prominent rights? In a pluralistic society, how can the needs of majority
and minority stakeholders be balanced with respect to religious freedom? Does
the essentiality of religious practice only need to be accorded protection within
a constitutional framework? How can equality in treatment be maintained
with respect to diverse religious institutions? What role and limitations can be
attributed within a constitutional framework to state and its entities when it
comes to religious freedom?
In this light, let us analyze the constitutional status of religious freedom
in India and Indonesia, thereby seeking to delve into the contemporary issues
relating to the relationship between state and religion, which remains a central
question in the light of armation of constitutional values and ethos. First,
while the relationship between state, religion and politics is often discussed, the
issue remains fundamental in analyzing and understanding the constitutional
status of religious freedom in a state. Second, with religious freedom being
internationally recognized as a fundamental human right, the state’s obligation to
it cannot be neglected. Third, the constitutional recognition of religious freedom
in a state can take various forms depending upon historical circumstances, while
socio-economic, political and cultural factors can duly aect such recognition
and implementation. Fourth, analyzing the constitutional provisions relating
to religious freedom in India and Indonesia, looking into the originalist
understanding and the subsequent developments has highlighted the role of
governmental institutions and landmark judgments by constitutional courts in
both these nations.
II. RELIGION, STATE, AND POLITICS: AN OVERVIEW
“In a free government, the security for civil rights must be the same as that
for religious rights. It consists in the one case of the multiplicity of interests,
and in the other in the multiplicity of sects. The degree of security in both
cases will depend on the number of interests and sects.”16
16
See, Hamilton et al. The Federalist Papers (New York: Penguin Publications, 1961).
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One of the essential features of democracy is separation of religion and
state.17 The relationship between state and religion is a complex one. Durkheim
argued that religion provides a social cohesion, as it is a source of solidarity in a
society.18 Initially, John Locke believed religious tolerance would inevitably lead
to conict and disorder in a society with diverse religious beliefs; however, later
he argued that suppression of religious practices provokes disruptive behavior,
and maintained that religion and the state have distinct ends.19 John Rawls saw
religion as illiberal and having a destabilizing potential, thereby he advocated
for excluding religion from politics.20
Plato and Aristotle saw the state as a vehicle for human fullment. Augustine,
on the other hand, believed that political instability is closely related to the
development of theological and philosophical reasons. He used this reasoning
to analyze the relationship between the individual and society.21 Traditionally,
religion and state were interdependent. Religious institutions used to accord
validity and legality to the laws passed by the government, thereby establishing
the supremacy of those governing the state. In turn, the state should nancially
assist these religious institutions. Gradually, with the need to limit the power
of the state amid the rising prominence of the individual’s right to conscience,
there arose a need to establish separation between religion and state, considering
religion a matter of the private realm.22
In the post-Cold War era, religion has emerged as a signicant political
actor. Ignoring religion can have a negative political impact, nationally as well
as globally.23 The change in the dynamics of society due to industrialization,
globalization and modernization, brought about a need for secularization,
17 Michael D.P. Driessen, “Religion, State and Democracy: Analysing Two Dimensions of Church-State Arrangement,”
Politics and Religion 3, no. 1 (2010). Also see, L Carl Brown, “Religion and State,” The Muslim Approach to Politics
(Columbia: Columbia University Press, 2000).
18 Wilson Dallam Wallis, “Durkheim’s View of Religion,” Journal of Religious Psychology, including its Anthropological
and Sociological Aspects 7, no.2 (1914): 252-267.
19 See, Phillip Abrams, John Locke: The Two Tracts on Government (Cambridge: Cambridge University Press, 1967),16-17.
20 Tom Bailey and Valentina Gentile (eds.), Rawls and Religion (Columbia: Columbia University Press, 2014).
21 See, Raymond Plant, Politics, Theology and History (Cambridge: Cambridge University Press, 2001). Also see,
John M. Rist, Augustine: Ancient Thought Baptised (Cambridge: Cambridge University Press, 1994), 205.
22 Michael Walzer, “Liberalism and the Art of Separation,” Political Theory 12, no.3 (1984), 315-330.
23 Eric O. Hanson, Religion and Politics in the International System Today (Cambridge: Cambridge University Press, 2006).
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based on considerations of structural and social dierentiation, individualism,
socialization, social and cultural diversity, privatization, and the rise of liberal
democracies and rationality.24 Secularization changed the political structure of
the state. In a pre-modern society, the individual was placed on the social ladder
depending upon his or her religious aliation, whereas in the modernized world,
the individual’s religious belief is a private matter, thereby creating a constitutional
structure wherein individual liberties cannot be denied solely on the ground
of one’s religious belief.25 However, in reality, secularism remains contentious,
depending upon the cultural, social and economic conditions prevailing in a
state. The only one thing which remains common is respect toward human rights,
accepting that each individual has the right to maintain their own religious belief,
faith and worship. Secularization has in no way marginalized religion; rather, it
has brought to the forefront complex questions regarding the functionality of
religious institutions and their relevance to politics.26
2.1 Private-Public Discourse
“Everyone has the right to freedom of thought, conscience and religion; this
right includes freedom to change his religion or belief, and freedom, either
alone or in community with others and in public or private, to manifest his
religion or belief in teaching, practice, worship and observance.”27
According to Bader, the institutional separation of the state should be
based on three guiding principles: a libertarian principle (the state must permit
the practice of any religion), an equalitarian principle (the state must not give
preference to one religion over another), and a neutrality principle (states should
not favor or disfavor religion).28 Paul Weithman believes religion has the capacity
to destabilize democracy because religious segregation makes social cooperation
24 Steve Bruce, “Secularisation and Politics,” in Routledge Handbook of Religion and Politics, Jerey Haynes (ed.),
(London: Routledge 2009).
25 Mark Chaves, “Secularization as Declining Religious Authority,” Social Forces 72, no.3 (1994), 749-774. Secularization
has to be understood not as reducing religion, but as reducing the scope of religious authority.
26 George Moyser (ed.), Politics and Religion in the Modern World (London: Routledge, 1991).
27 Universal Declaration of Human Rights/Article 18, available at https://www.un.org/en/about-us/universal-
declaration-of-human-rights (accessed on 28.08.2021).
28 Vieit Bader, “Religious Pluralism: Secularism or Priority for Democracy?” Political Theory 27, no.5 (1999): 597-633.
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more dicult.29 Even Bruce Ackerman advocates for the separation of religion
and state, arguing for religious convictions to be private, thereby suggesting that
religion should not have an appropriate place in the public realm.30
Hollenbach on other hand, conceives the private realm as being outside the
purview of society and the public realm as consistent with society, and accordingly
he believes that privatization of religion would hinder the exercising of religious
freedom as a means of social freedom and that freedom of religion includes
within itself right to seek to inuence the policies and laws under which people
are governed.31 In this light, religion cannot be denied as being part of society
and in turn inuencing society; thus, privatizing religion would undermine the
vibrancy of civil society, in turn aecting democracy.32
Now, the questions regarding the limitations on manifestations of religion
or beliefs only arise in cases where religion is manifested in the public sphere,
like carrying out street processions or the use of loudspeakers for religious
purposes. In such cases, it comes in contrast or conict with other aspects of
societal harmony and other people’s ways of living. It must be noted here that
denial or restraint of freedom of religion, thought, belief or conscience can
also stem from deeper social factors rather than governmental actions, which
we shall inquire into in subsequent sections, as there are illustrations of social
ostracism and other social pressures hampering the recognition and enforcement
of freedom of religion.33
III. UNDERSTANDING RELIGIOUS FREEDOM: A
CONSTITUTIONAL PERSPECTIVE
“When we speak of religious liberty, specically, we mean freedom of
worship according to conscience and to bring up children in the faith of
their parents; freedom for the individual to change his religion; freedom to
29 Paul J. Weithman, Religion and the Obligations of Citizenship (New York: Cambridge University Press, 2002).
30 Bruce Ackerman, Social Justice in the Liberal State (California: Yale University Press 1980).
31 David Hollenbach, The Global Face of Public Faith (Washington, DC: Georgetown University Press, 2003), 259.
See also, Hollenbach, “Public Reason/Private Religion? A Response to Paul J. Weithman,” The Journal of Religious
Ethics 22, no. 1 (1994): 39–46.
32 Barbara Ann Rieer, “Religion, Politics and Human Rights: Understanding the Role of Christianity in the Promotion
of Human Rights,” Human Rights and Human Welfare 6 (2006): 31-42.
33 Krishnaswami, "Study of Discrimination," 11-12.
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preach, educate, publish, and carry-on missionary activities; and freedom to
organize with others, and to acquire and hold property for these purposes.”34
The original understanding established by Protestantism and then furthered
by enlightenment liberalism, was to protect mutual tolerance of Christians
in their distinct profession of religion.35 This original approach was based on
the fundamental duty man owed to God. To this end, religious freedom was a
political freedom to achieve a stated objective. With the advent of globalization,
this original paradigm has been subjected to change, leading to the need to
expand the scope of religious freedom as originally understood, to include even
non-religious believers and creeds.36 This expansion was gradually encompassed
by the Universal Declaration of Human Rights (UDHR), International Covenant
on Civil and Political Rights (ICCPR), and Declaration on the Elimination of All
Forms of Intolerance and of Discrimination based on Religion or Belief, 1981.37 In
view of this expansion, the foundation of religious freedom has been correlated
with the inherent dignity of an individual, rather than being connected with
the existence of God, as was the case originally.38
Now, here the question which arises is, why and how did religious freedom
get accorded constitutional recognition and protection within the array of other
freedoms? According to Steven D. Smith, there is a religious justication behind
this. He presents two claims to elaborate this point: the priority claim and the
voluntariness claim. The priority claim asserts that religious goods are more
valuable than other goods and that religious duties take precedence over other
duties. The voluntariness claim asserts that religious goods or duties involves
34 The original citation is attributed to G. Bromley Oxnam, “Liberty: Roman or Protestant,” Churchman (1947),
cited in Anthony Gill, The Political Origins of Religious Liberty (Cambridge University Press, 2008), 28.
35 John Locke, “A Letter Concerning Toleration,” in the Selected Political Writings of John Locke (2005), 126.
36 See, Rafael Domingo, “A Right to Religious and Moral Freedom?”, I•CON 12, no.1 (2014): 226–247.
37 “Universal Declaration of Human Rights,” G.A. res. 217A (III), UN Doc A/810 at 71 (1948); “International Covenant
on Civil and Political Rights,” G.A. res. 2200A (XXI), 21U.N. GAOR Supp. (No. 16) at 52, “UN Doc. A/6316,” (1966),
UNTS Vol. 999, 171, entered into force Mar. 23, 197. Also see, “Declaration on the Elimination of All Forms of
Intolerance and of Discrimination Based on Religion or Belief, G.A. res. 36/55, 36 UN GAOR Supp.,’ (No. 51) at
171, “UN Doc. A/36/684,” (1981).
38 “A Letter Concerning Toleration” in The Selected Political Writings of John Locke, Paul E. Sigmund (New York:
W.W. Norton & Company, 2005), 126.
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freedom of choice.39 Accordingly, it is these claims that support constitutional
recognition and justify constitutional enforcement of religious freedom.40
Thomas Jeerson stated “the constitutional freedom of religion is the most
inalienable and sacred of all human rights.”41 In “Why Tolerate Religion?” Brian
Leiter argues that religion as such does not warrant any special treatment and
that when it comes to accommodating practices, it will not be practicable to
accommodate all claims based on conscience and that it will be unfair, arbitrary
and unreasonable to single out claims grounded in religious beliefs.42
I V. RIGHT TO RELIGIOUS FREEDOM: CONSTITUTIONAL
FRAMEWORKS OF INDIA AND INDONESIA
Friction between religion-state relationships has dominated contemporary
discourse surrounding constitution-making process around the world. With
the advent of secularization, religion remained pivotal in shaping a concrete
liberal democratic framework in its own form in dierent jurisdictions. Even
though the prominence of religion in a modernized state has been deduced as a
private matter, it still poses some important constitutional questions. The issue
surrounding religious freedom, the mode and extent of imposing restrictions
and limitations, remain central to the constitutionally guaranteed protection of
religious freedom.
India and Indonesia have had a checkered history of colonialism. Upon
independence, these nations undertook the task of formulating a constitution
for themselves. Being culturally, socially and religiously diverse, they conducted
the constitution-making process by trying to avoid a repetition of history and
instead sought to establish a robust national structure. With the aspiration of
maintenance of unity at the core, constitutional recognition of religious freedom
39 Steven D. Smith, “The Rise and Fall of Religious Freedom in Constitutional Discourse,” University of Pennsylvania
Law Review 140 (1991): 149-210.
40 Ibid.
41 “Minutes of University of Virginia Board of Visitors, 29 March 1819,” Founders Online, National Archives. See,
“Thomas Jeerson: Virginia Board of Visitors Minutes,” (1819). Also see, Philip B. Kurland, “The Origins of the
Religion Clauses of the Constitution,” William and Mary Law Review 27, (1986): 839.
42 Brian Leiter, “Why Tolerate Religion?” (Princeton, New Jersey: Princeton University Press, 2012). Also see, Michael
W. McConnell, “Why Protect Religious Freedom?” The Yale Law Journal 123, no.3 (2013): 530-861.
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as an integral aspect of fundamental human rights remained an important task
to be undertaken as a part of constitutional design.
India proclaimed itself constitutionally to be a secular state, whereas the
Constitution of Indonesia is based on the belief of “the one and only God”.
India has a majority Hindu population with the presence of other religions
like Islam, Christianity, Sikhism, Jainism, Buddhism and with secularism as the
basic structure. The Constitution of India therefore guarantees every individual
religious freedom subject to constitutionally imposed restrictions. Indonesia,
on other hand, has a majority Muslim population with the presence of other
religions. The Constitution of Indonesia refers to the term “religion” in various
provisions but nowhere proclaims Islam as the state religion. In accordance
with laws of Indonesia, there are six ocially recognized religions; however,
there are indigenous minority groups which fall outside the purview of the six
ocially recognized religions. Although there is freedom to choose and practice
one’s own religion, in accordance with the Constitution of Indonesia, the ocial
recognition of selected religions restricts the implementation and recognition
of religious freedom.
4.1 Right to Religious Freedom in India
Religion, as claimed, has long been an indispensable part of society.43 It is
no exaggeration to say that religion has played a central role in the existence of
humanity. Today, in liberal democracies, religious liberty has assumed a great
signicance, often referred to as third most important civil liberty after right
to life and freedom of speech and expression.44 Constitutions too, across the
globe have recognized the inseparable interplay of religion and the individual.
It is interesting to note that while the word ‘God’ nds a place in a signicant
number of constitutions in the world, freedom of religion forms an essential
43 Scott Arran, In God We Trust: The Evolutionary landscape of Religion (Oxford: Oxford University Press, 2005).
44 Faizan Mustafa and Jagteshwar Singh Sohi, “Freedom of Religion in India: Current Issues and Supreme Court
Acting as Clergy,” Bringham Young University Law Review 9 (2017); Also see, Wood Jr., “Religious Human Rights
and a Democratic State,” 739-764.
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facet of most constitutions.45 Religious freedom in modern constitutions is,
therefore, a ubiquitous concept.46 Constitution-making is always faced with the
perennial question of religion’s intersection with law, quintessentially because
globally, a state’s “identity” is reected through its constitution.47 The challenge
with it is not limited to accommodating religious freedom as a right but also to
reconciling the fabrics of individual and group rights with religious practices.48
The elusive concept also raises a multitude of questions on whether religion can
be quantied or dened and what would be the scope of such freedom, etc.49
This becomes extremely dicult in countries with complex social and religious
structures, such as India.
India, with its fair share of major religious tensions, has been considered
a land of ‘religious harmony’ and culture. Many of the major religions are said
to have originated from there. It is therefore impossible to appreciate the way
religious freedom is engineered in India’s Constitution unless it is contextualized
with the historic task of its framers. With its multiple religions, India has some
inherent individual practices which contribute to bewildering diversity.50 Perhaps,
Sir Harcourt Butler’s comment that, “The Indians are essentially religious as
Europeans are essentially secular. Religion is still the alpha, and the omega of
Indian life,” would be the best representation of the impact of religion in India.51
With tremendous religious inuence on the everyday lives of people, it is quite
remarkable how India has managed to constitutionally guarantee religious rights
and establish a secular state, a task which involved a perpetual debate on values,
45 A comparative study reveals that the word “god” appears in 109 out of 192 constitutions documented on the
Constitute Project. Version of the term “freedom of religion” appears in 186 constitutions. See: "Constitute, the
World Constitutions to Read, Search, and Compare,” available at https:// www.constituteproject.org/."
46 Asli Bali and Hanna Lerner, “Religion and Constitution Making in Comparative Perspective,” in Handbook on
Comparative Constitution Making, David Landau and Hanna Lerner (eds.), (Cheltenham: Edward Elgar, 2019).
47 Tom Ginsburg and Rosalind Dixon, Research Handbook on Comparative Constitutional Law (Cheltenham: Edward
Elgar Publishing, 2011), 141; Garry Jeery Jacobson, “Constitutional Identity,” The Review of Politics 68, no. 3
(2006).
48 Rajeev Dhavan, “Religious Freedom in India,” American Journal of Comparative Law 35, no.1 (1987): 209-254.
49 Coleman D. Williams, Freedom of Religion and the Indian Supreme Court: The Religious Denomination and Essential
Practices Tests (Thesis, University of Hawai'i at Manoa, 2019).
50 Ibid.
51 Rajendra K. Sharma, Indian Society, Institutions and Change (New Delhi: Atlantic Publishers and Distributors,
2004): 186.
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culture, religion and practices in the Constituent Assembly while drafting the
constitution.52
India does not only guarantee fundamental rights to individuals against the
state under its Constitution but also guarantees certain ‘group rights’ to practice
religion, in addition to minority rights.53 With these two sets of rights, it also
gives the state the power to regulate these rights. The Constitution of India
provides to every person freedom to practice, profess, and propagate religion54
and to establish and manage their religious aairs.55 Like every fundamental
right, these are also not absolute, and the state can intervene in the religious
freedom if it aects public order, morality and health, in addition to a general
restriction under the Indian Constitution’s Part III on Fundamental Rights. The
nature of religious freedom is such that many have written that these articles
(25 and 26) very well constitute a code in itself.56 These rights therefore are the
embodiment of not only the deliberations which took place in the Constituent
Assembly but also reect the inspiration from various constitutions around the
world and the Universal Declaration of Human Rights.57
4.1.1 Secularism in India
The essence of religious freedom is rooted in the idea of individual liberty
and ‘secular’ identity. However, all of these are subject to the basic principles of
dignity, equality and liberty of the individual, indispensable values of the Indian
Constitution.58 Religious freedom therefore is that the individual is free to choose
and practice, profess and propagate a religion or reject it altogether.59 Religious
freedom in India is a value inherent from time immemorial.60 It is testament to
52 Constitution of India, Article 25-28.
53 Constitution of India, Part III.
54 Constitution of India, Article 25.
55 Constitution of India, Article 26.
56 R. Dhavan and F.S. Nariman, “The Supreme Court and Group Life,” in Supreme but Not Infallible: Essays in
Honour of the Supreme Court of India, B.N Kripal et al. (eds) (New Delhi: Oxford University Press 2000), 256–87;
M Galanter, “Hinduism, Secularism, and the Indian Judiciary,” Philosophy East and West 1, no.4 (1971): 467.
57 J. Patrocinio de Souza, “The Freedom of Religion Under the Indian Constitution,” The Indian Journal of Political
Science 13, no. 3/4 (1952).
58 Indian Young Lawyers Association v State of Kerala 2018 SCC Online SC 1690 [231] (Chandrachud, J).
59 Donald Eugene Smith, India as a Secular State (Bombay: Oxford University Press, 1963); Also see John Milton,
Areopagitica (Cheltenham: AMG Press, 1966), 1644.
60 See, Aijaz Ahmad, Lineages of The Present: Political Essays (New Delhi: Tulika Publishers, 1996), 313.
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its unique ‘secular’ attribute which is diers from the Western conceptualization
of secularism in many ways, such as retaining personal laws or maintaining
religious institutions while ensuring a distance from intervening in religion.61
This idea of secular structure is guaranteed in form of constitutional right to
religious freedom envisaged under Articles 25 and 26 of the Constitution.62
Secularism in India in its own way has become one of the essential attributes
of the Indian Constitution, having assumed constitutional identity, as the
framers wanted, while basing the country on the idea of “inward association”
with a “spiritual connection to higher power”.63 The word “secular” might have
been added years later64 to the Constitution, but its sentiment was dominant
while deliberations were undertaken in the Constituent Assembly.65 It was the
central character of the ‘secular state’ which led to defeat of a motion by H.V.
Kamath, who moved an amendment to begin the Preamble with the phrase, “In
the name of god”.66 Secularism in India is the separation of state from religion
and not the ‘non-existence of religion’. In simpler terms, it can be described as
the absence of ‘state-sponsored religion’ but it is not departure from religion.
On the other hand, to secure basic rights of equality and dignity, in certain
circumstances the state can intervene to regulate. The Constituent Assembly
did not want to indulge in intellectual exercise around religion or prevent the
state from engaging with religious groups because the right was premised on
religion being a “personal choice”, as believed by Gandhi himself.67
61 Asli U. Bali and Hanna Lerner, “Constitutional Design without a Constitutional Moment: Lessons from Religiously
Divided Societies,” Cornell International Law Journal 49, no.2 (2016): 49(2), 227–308; Gary Jerey Jacobson, The
Wheel of Law: India’s Secularism in Comparative Constitutional Context (New Jersey: Princeton University Press,
2003), 286; Also see, Rajeev Bhargava, “The Distinctiveness of Indian Secularism,” in The Future of Secularism, ed.
T.N. Srinivasan (Delhi: Oxford University Press, 2006), 2; Also see, Partha Chatterjee, “Secularism and Toleration,”
Economic and Political Weekly 29, no. 28 (1994), 772; Also see Donald Eugene Smith, “India as a Secular State,” 159.
62 Ranbir Singh and Karamvir Singh, “Secularism in India: Challenges and Its Future,” the Indian Journal of Political
Science 69 (2008): 597-603.
63 Ananya Mukherjee Reed, “Religious Freedom Versus Gender Equity in Contemporary India: What Constitutions
Can and Cannot Do,” Atlantis 25, no. 2 (2001): 42
64 Constitution of India, Preamble, the Constitution (Forty-Second Amendment) Act, 1976.
65 Adrija Roy Chowdhury, “Secularism: Why Nehru dropped, and Indira inserted the S-word in the Constitution,”
The Indian Express (2017).
66 Shefali Jha, “Secularism in the Constituent Assembly Debates,” Economics & Political Weekly 37, (2002): 3175.
67 Charless Freer Andrews, Mahatma Gandhi’s ideas: including selections from his writings, (London: Pierides Press,
1949).
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Secularism is also armed as a constitutional principle which encompasses
India’s basic structure and it accounts for more than being a merely passive attitude
towards religious tolerance. It is based on the concept of equal treatment of all
religions and is described as neutrality towards religion.68 Secularism, premised
in the concept of equality, neutrality and liberty, enables an individual to make a
personal choice and guarantees equal treatment of religion by state and its non-
interference.69 It is also important to note here that a greater degree of religious
freedom does not only ensure manifestation of liberal constitutional values but
also promotes social harmony, which if not granted may lead to imbalance in
society and consequently result in violence.70
It is also true that religion could be a threatening weapon to polarize and
destabilize society. There have been numerous instances in India, not only pre-
independence but also post-independence, when violence was sparked by cases
of inter-religious disputes, one of which the Supreme Court settled in 2019.71 A
complex country like India, with its plethora of religions and religious practices,
coupled with a constitutional guarantee to maintain a secular fabric, has often
faced multiple religious disputes going up to the Supreme Court to adjudicate.
Since religion is a contested term and cannot be dened it always leaves a scope
of interpretation with respect to its extent and this becomes pertinent when the
state in a certain situation is allowed to regulate religious aairs. In this context,
historically the role of the courts has been important but ‘controversial’ for their
determination of the ‘essentiality’ of religion.
4.1.2 Essential Religious Practice and the Supreme Court
Constitutional scholar Gautam Bhatia argues that the religious rights
guaranteed in the Indian Constitution are reconciliation between competing
68 S R Bommai v. Union of India (1994) 3 SCC 1 [Reddy J.].
69 Reed, "Religious Freedowm Versus Gender Equity," 42. See also, S.P. Sathe, Secularism, Law and The Constitution
of India (Pune: Indian Secular Society, 1991).
70 Amartya Sen, Identity and Violence: The Illusion of Destiny (New Delhi: W.W. Norton Company, 2006); Also see,
Brian J. Grim and Roger Finke, The Price of Freedom Denied: Religious Persecution and Conict in The Twenty-First
Century (Cambridge: Cambridge University Press, 2011), 212-13; Also see, Patrick F. Fagan, “Why Religion Matters
Even More: The Impact of Religious Practice on Social Stability,” Backgrounder 1992, no. 1 (2006).
71 The controversial religious dispute of Ram Mandir-Babri Masjid in Ajodhya was decided in 2019; M Siddiqui v.
Mahant Suresh Das.
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claims of individuals and groups over their right to practice, profess and propagate
religion.72 These claims and their extent are, however, not objectively dened
and are blurred, thus making Supreme Court the central gure in determining
religious claims and questions to manifest the scientic temper.73 Over the years,
the court has stepped in to decide such questions in many instances, which
has developed a constitutional understanding of religious freedom, apparently
dierent and narrower from what was envisaged in the Constitution.74 Articles
25 and 26 provide for the constitutional right of religious freedom but the
language is far from conviction. In this context, it is important to understand
that while Article 25(1), in tune with liberal constitutional values, guarantees
religious freedom, it is subjected to restrictions on the grounds of public order,
morality, health, and restrictions under Part III. Moreover, Article 25(2) allows
the state to intervene in managing religious aairs in order to ensure social
welfare. Deliberating upon the scope of Article 25, Bhatia relies upon B.P. Rao
and argues that Article 25 creates a dierence between religion and secular
practices that might be associated with religion.75 Plainly read, it appears that
Articles 25 and 26 protect a person’s individual and group rights but in practice
they fail to give a concrete answer on competing or conicting rights in Part
III.76 They also clearly highlight two reoccurring questions before the courts: the
rst, on what constitutes essential practice for an individual to practice religion;
and the second, on the extent of state intervention in temples, gurudwara,
mosques, and other religious institutes. It is also clear from textual reading that
the Constitution has left the question of determining the extent of intervention
and the dierence up to the courts completely.
To answer questions regarding whether religious practices are essential or
non-essential, and therefore whether or not they merit constitutional protection,
72 See generally, Gautam Bhatia, “Freedom from Community: Individual Rights, Group Life, State Authority and
Religious Freedom under the Indian Constitution,” Global Constitutionalism 2, no.3 (2016): 351–382.
73 Gandhi v. State of Bombay, 1954 SCR 1035, 1062 (India).
74 Mustafa and Sohi, “Freedom of Religion in India,” 931.
75 Bhatia, “Freedom from Community,” 356. See Also, B.P. Rao, “Matters of Religion,” Journal of the Indian Law
Institute 509, no. 5 (1963).
76 Suhrith Parthasarathy, “Secularism and the Freedom of Religion Reconsidered – Old Wine in New Bottles?”
Indian Constitutional Law and Philosophy (2015); Shrutanjaya Bhardwaj, “Individual Religious Freedom is Subject
to Other Fundamental Rights,” SCC 7, Part-4 J-29 (2019).
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the Indian Supreme Court devised a test of “essentiality” in the Shirur Mutt case.77
In determining where a line must be drawn and what constitutes part of religion,
the Court held that only essential practices to a religion shall be protected under
Article 25. The Supreme Court did not adopt a denite standard for essentiality,
but it can be reduced to three steps. First, the Court would dierentiate between
matters of religion and secular practice. Second, there should be a religious
community for a practice to be considered essential. Third, even if a practice
is considered essential it will not merit constitutional protection if it is based
on ‘superstitious’ belief.78 It is the third part of the test which has led to the
criticism of the apex court.
On rejecting the American “assertion test” – whereby a plainti can assert
that a particular practice is a religious practice – the seven-judge bench in Shirur
Mutt, cultivated the Doctrine of Essential Religious Practice.79 It is important to
note here that in doing so, the Supreme Court not only moved beyond its scope
of competence, but by entering into objective examination of religious practices, it
also narrowed the scope of religious freedom guaranteed by the Constitution.80 The
essentiality test is moreover against the foundation of constitutionally-mandated
religious freedom, which is premised on the “inward association to god”.81 It has
also placed the matter of one’s religious determination in the hands of judges
who rely on an ambiguous test, which is devoid of any ‘scientic evidence’, to
decide the essentiality of religious practice.
A shift was seen in the case of Dargah Committee,82 when the Supreme
Court started to determine if a practice was superstitious in nature. In this case,
while hearing the validity of the Durgah Khwaja Saheb Act of 1955, the Supreme
Court observed that when religious practices arise from superstitious belief, they
77 Comm’r, Hindu Religious Endowments, Madras v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt, 1954 SCR
1005, 1021.
78 Rao, “Matters of Religion,” 509.
79 Soumalya Ghosh, “Supreme Court on Women’s Right to Religious Freedom in India: From Shirur Mutt to
Sabarimala,” Indian Journal of Law and Justice 10, no. 1 (2019): 162-168; Dhavan, “Religious Freedom in India,”
209-254.
80 Faizan Mustafa, “The Unfreedom of Religion,” The Indian Express (2015).
81 Mustafa and Sohi, “Freedom of Religion in India,” 915.
82 Durgah Committee, Ajmer v. Syed Hussain Ali, (1962) 1 SCR 383 (India), 33.
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cannot claim protection under Article 26 as they are not “essential” to religion.
In Tilkayat Shri Govindlalji Maharaj,83 the Court went on to categorically state
that the power to determine the essentiality of a religion remains with the courts
only, virtually elevating itself, as Prof. Faizan Mustafa and Prof. Jagteshwar Singh
Sohi said, to the status of clergy. A similar trend was observed in Mohd. Hanif
Qureshi v. State of Bihar.84
The criticism of essential religious practice is premised in the Supreme Court
allowing itself to sit on deciding theological questions on religious practices,
imposing an external opinion on whether a practice is religious or not.85 It is true
that common law countries have imposed certain limitation on religious freedom,
but the Indian courts have attracted criticism as they have curbed the individual
freedom to choose religious practice, thus hurting liberal constitutional values.
The Indian judiciary also failed to take into account that the competing rights
under Articles 25 and 26 would be balanced by the text of the Constitution and
Part III, whether or not explicitly provided for.86
4.1.3 Anti-Exclusion Test
In the recent Sabarimala case,87 the Indian Supreme Court in a 4-1 decision
held that the exclusion of women of a specic age range from entering Sabarimala
temple in Kerala state was not valid. In doing so, the Court struck down Rule
3b of Kerala Hindu Places of Public Worship (authorities of entry) Rules, 1965,
stating that it was an “exclusionary practice”.88
It is interesting to note that Justice D.Y. Chandrachud hinted of the need
to abjure the ‘essential religious practice test’ as he observed that “the religious
committees must be allowed to determine for themselves what constitutes
essential aspect of religion, and such practice must enjoy protection as a
matter of autonomy”. He advocated an ‘anti-exclusion test’ to manifest liberal
83 Tilkayat Shri Govindlalji Maharaj v. State of Rajasthan and Ors., AIR 1963 SC 1638 (India), 57.
84 Mohd. Hanif Qureshi v. State of Bihar, AIR 1958 SC 731.
85 Suhrith Parthasarathy, “An Equal Right to Freedom of Religion: A Reading of the Supreme Court’s Judgment in
the Sabarimala Case,” University of Oxford Human Rights Hub Journal 3, no.2 (2020).
86 H.M. Seervai, Constitutional Law of India (Universal Law Publishing, 1993), 1269.
87 Indian Young Lawyers Association v. The State of Kerala, AIR 2018, SC.
88 Ibid.
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constitutional values and to minimize the Court’s intervention in determining
essential practice. He observed that “the anti-exclusion principle allows for due-
deference to the ability of a religion to determine its own religious tenets and
doctrines... [but if] “a religious practice causes the exclusion of individuals in
a manner which impairs their dignity or hampers their access to basic goods,
the freedom of religion must give way to the over-arching values of a liberal
constitution”.89 In holding so, Justice Chandrachud also held that the religious
freedom clauses under Articles 25 and 26 are not standalone but are part of
“seamless web” of fundamental rights.
Deliberation of the anti-exclusion principle considers the extent of interference
with the freedom to participate in normal economic and social life, and if
it hampers such freedom, that practice cannot be permissible. However, the
autonomy to decide a religious practice shall be with the people. This conclusion
is reached by taking a cue from anti-discrimination laws, which state that an
individual’s access to basic guarantees cannot be taken away.90 The Sabarimala
was an example of exclusionary practice, as females of reproductive age had not
been permitted to worship there. Similarly, women at Haji Ali Shrine petitioned
Bombay High Court against an exclusionary practice. Based on such cases, it
can be said the major religious disputes are in some way or other rooted in
discrimination or exclusion rather than determining essentiality. It is, however,
interesting to note that scholars have relied upon a dissenting opinion of former
Supreme Court chief justice B.P. Sinha in Syedna Tahir Saifuddin v. State of
Bombay,91 which dealt with excommunication in the Bombay Prevention of
Excommunication Act, 1949. The Dawoodi Bohra community, through their head
priest, argued that his constitutional right of religious freedom would be violated
by taking away his power to excommunicate. The Court struck down the act,
stating the power of excommunication to be ‘essential religious practice’. Justice
Sinha in his dissent voiced that the excommunication per se does not only take
89
Ibid., 112.
90
Tarunabh Khaitan, A Theory of Discrimination Law (Oxford University Press, 2015).
91
Syedna Tahir Saifuddin v. State of Bombay 1962 SCR Supl. (2) 496.
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away a person’s religious right but also their civil right,92 and that Articles 25 and
26 are not standalone rights but are subject to the basic idea of constitution,
as are Articles 17 and 15(2), which forms the premise for Bhatia’s argument on
the exclusion test. The anti-exclusion test, endorsed by Justice Chandrachud,
manifests liberal constitutional principles by minimizing the court’s role in
religious determination. It can therefore be the test to determine the competing
rights, after deciding on the extent of intervention on the fact in question.
This mechanism as argued will enable the courts to determine the balance
between competing rights, respect religious autonomy and shall make way for
striking down legislation if any ‘practice’ would be against human rights or
discriminatory in nature. It will also ensure that the courts stick to their role
of securing the religious rights of the individual, which in these troubled times
has become a contentious issue both in and out of courts due to majoritarian
tendencies, rather than inquiring into facets of the individual. It could also be a
redemption of constitutional courts in India as champions of individual rights.
4.2 Right to Religious Freedom in Indonesia.
One of the most controversial human rights issues in Indonesia is that of
religious freedom. Being a member of the United Nations, Indonesia, has an
obligation to conform to the principles of international human rights. Also,
eorts have been undertaken in the past to ensure eective recognition and
implementation of human rights in the country.93
The Preamble of the Constitution of Indonesia proclaims: “…the independence
of Indonesia is formulated into a constitution of the Republic of Indonesia
which is built into a sovereign state based on a belief in the One and Only God,
just and civilized humanity, the unity of Indonesia, and democratic life led by
wisdom of thoughts in deliberation amongst representatives of the people, and
achieving social justice for all the people of Indonesia.”94 Chapter XI, Article
92 Bhatia, “Freedom from Community,” 353.
93 For Indonesia’s ratication status, see, https://tbinternet.ohchr.org/_layouts/15/TreatyBodyExternal/Treaty.
aspx?CountryID=80&Lang=EN. Last accessed on 30.08.2021.
94 See, Constitution of Indonesia, 1945, reinstated in 1959, available at https://www.constituteproject.org/constitution/
Indonesia_2002.pdf?lang=en. Last accessed on 28.08.2021.
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29, of the Indonesian Constitution, echoing the sentiments provided in the
Preamble, declares that the state is based upon the belief in the One and Only
God. Further, it goes on to provide that everyone will be guaranteed freedom of
worship according to religion or belief.95 Article 9 provides for the swearing of
an oath by the President and Vice-President in accordance with their respective
religions.96 Article 28 E provides for freedom to choose and practice religion and
that every person has freedom of belief, and to express their thoughts and tenets,
in accordance with their conscience.97 Article 28 I recognizes religious freedom
as a human right and accords protection under any circumstances.98 However,
it seems that Indonesia recognizes the monotheistic concept, although there
is no specic mention or imposition of the meaning of the phrase “One and
Only God”. Undoubtedly, the belief in a single deity is based on the premises
of devotion and faith in accordance with a person’s own religious belief.99 In
addition to constitutional provisions, Article 22 (1) of Law No. 39/1999 on Human
Rights states that “every person is free to choose their religion and worship in
accordance with their religion and beliefs”. Article 22 (2) further provides that
the state guarantees each person’s freedom to choose and practice religion and
worship according to their religious beliefs.100
4.2.1 Understanding Religion in Indonesia
In the wake of the central role played by Muslim organizations during the
struggle for the independence of Indonesia, achieved in 1945, there were strong
calls for Indonesia to become an Islamic state.101 However, the nationalists, which
comprised homogenous representations, demanded a unitary and neutral state
that separated state and religion.102 It was believed that establishment of a state
95 Constitution of Indonesia, Chapter XI, Article 29.
96 Constitution of Indonesia, Article 9.
97 Constitution of Indonesia, Article 28E.
98 Constitution of Indonesia, Article 28I.
99 See, Alexius Andang L. Binawan, “Declarations and The Indonesian Constitution on Religious Freedom,” Journal
of Islamic Studies 49, no.2 (2011).
100 Law Number 39 of 1999 on Human Rights, available at https://peraturan.go.id/common/dokumen/terjemah/2019/
UU%2039%201999%20English.pdf.
101 See, R. E. Elson, “Another Look at the Jakarta Charter Controversy of 1945,” Indonesia 88, no. 105 (2009).
102 For further discussion see, Dian A.H. Shah, “Constitutions, Religion and Politics in Asia, Indonesia, Malaysia and
Sri Lanka” (Cambridge University Press 2017).
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religion would intensify political disputes and complicate the integration of
non-Muslims. On 1 June 1945, nationalist leader Soekarno introduced Pancasila
as the philosophical basis of the state. Pancasila, the Indonesian state ideology,
formulated by Soekarno, consists of ve principles, which can be summed up as:
belief in one God, internationalism or humanitarianism, nationalism, consensus
through consultation and deliberation, and social justice for all.103 These principles
were formulated to represent the constitutional aspirations of the people of
Indonesia. For Soekarno, achieving national unity was the ultimate goal, which
necessitated rejection of specic reference to Islam in the Constitution.104
There was a clarication issued by the Indonesian Ministry of Religious
Aairs, specifying the criteria for recognizing “religion”: acknowledgment of a
prophet, study of a canonical scripture or holy book, a standardized corpus of
ritual practices and beliefs, knowledge and performance of which are incumbent
on all believers, and a clear distinction of local custom from religion. Later,
an additional criterion was included: the tradition in question must enjoy a
signicant measure of international recognition rather than being simply regional
or local.105 Indonesia has a predominantly Muslim population; however, based
on the clarication issued by the Ministry of Religious Aairs, apart from Islam,
ocial recognition has been given to ve other religions: Hinduism, Protestantism,
Catholicism, Buddhism, and Confucianism.106According to Indonesian law,
other religions such as Judaism, Zoroastrianism, Shintoism, and Taoism are not
prohibited to be practiced, although the six ocially recognized religions are
treated dierently.107 Other religions, apart from those ocially recognized, need
to register with the Ministry of Home Aairs as Civil Society Organizations ,
which are required by law to uphold all principles of Pancasila. All ocially
103 Michael Mort, “Pancasila: The Indonesian State Ideology According to the New Order Government,” Asian
Survey 21, no.8 (1981): 838-851.
104 See, Nadirsyah Hosen, “Religion and the Indonesian Constitution: A Recent Debate,” Journal of Southeast Asian
Studies 36, no.3 (2005): 419-40.
105 Robert Hefner, “Islam and Institutional Religious Freedom in Indonesia,” Religions 415, no. 12 (2021).
106 See, Indonesia 2020 International Religious Freedom Report, available at https://www.state.gov/wp-content/
uploads/2021/05/240282-INDONESIA-2020-INTERNATIONAL-RELIGIOUS-FREEDOM-REPORT.pdf. Accessed on
30.08.2021.
107 Alexius Andang L. Binawan, “Declarations and the Indonesian Constitution on Religious Freedom,” Journal of
Islamic Studies 49, no. 2 (2011).
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registered religious groups must comply with the directives of the Ministry of
Religious Aairs.108
Indonesian adult citizens are required to hold a National Identity Card
(KTP), which identies the religion of the holder. Members of non-recognized
minority religious groups have diculty in obtaining these identity cards
denoting their actual religion, so they are forced to inadequately and incorrectly
identify themselves with recognized religious groups.109 Law No. 23 of 2006 on
Population Administration, allowed people from other religions to leave their
religion blank on their KTPs.110In 2017, the Constitutional Court of Indonesia,
in a landmark ruling, allowed citizens to put their indigenous faith on their
national identity card.111
According to Arskal Salim, there has been a misinterpretation of Presidential
Decree No. 1/PNPS/1965 (later made into law by Law No. 5/1969) on the Prevention
of Abuse and Disrespect of Religion, which listed six religions as ocial. Salim
maintains the decree was never meant to imply that only those six religions
were ocially acknowledged, but they came to be regarded as the only ocial
religions after a 1974 law made religion a perquisite for validating marriage.112
Of the six religions regarded as ocial, Confucianism was dropped from the
list by President Soeharto because of its alleged relationship with communism.
However, in 2001, President Abdurrahman Wahid allowed Confucianism to be
a recognized religion.113
108 Mort, “Pancasila,” 838-851.
109 "The Tandem Project, United Nations, Human Rights & Freedom of Religion or Belief," UN NGO in Special
Consultative Status with the Economic and Social Council of the United Nations, 2020.
110 Indonesia: Law No. 23 of 2006 on Population Administration, 29 December 2006. Also see, Hefner, “Islam and
Institutional,” 415.
111 “Indonesia: Constitutional Court Opens Way to Recognition of Native Faiths,” Library of Congress, published
November 17, 2017. Also see, Judicial Review of Constitutional Court of Indonesia, Decision 97/PUU-XIV/2016
(The Constitutional Court of the Republic of Indonesia, 2016).
112 Arskal Salim, “Muslim Politics in Indonesia’s Democratization: The Religious Majority and the Rights of Minorities
in the Post-New Order Era,” in Ross H. McLeod and Andrew MacIntyre (eds.), Indonesia: Democracy and the
Promise of Good Governance (Singapore: ISEAS, 2007), 116.
113 Bani Syarif Maula, “Religious Freedom in Indonesia, between Upholding Constitutional Provisions and Complying with
Social Considerations,” Journal of Indonesian Islam 7, no.2 (2013): 383-403. Also see, Hyung-Jun Kim, “The Changing
Interpretation of Religious Freedom in Indonesia,” Journal of Southeast Asian Studies 29, no.2 (1998): 357-373.
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Indonesia falls in such a category of a Muslim-majority country which has
not made any specic declaration in its constitution concerning an Islamic nature
of state.114 Despite having constitutional and legal protection of the right to
religious freedom, Indonesia has not seen full realization of religious freedom.
According to one report, there have been instances of religious discrimination,
which saw no active steps being taken by the government to punish or condemn
such actions.115
The Constitutional Court of Indonesia has been called upon to decide
on important issues in relation to the constitutional right to religion, such as
considering the constitutionality of restricting polygamy and prohibiting courts
from applying Islamic criminal and constitutional law.116 In both these cases, the
Constitutional Court highlighted that Islamic law does not have independent
recognition in Indonesia.117
The Court has also held that “irreconcilable dierence” is constitutionally
valid as a ground for divorce, even though Islamic law doesn’t provide for it.118
In another decision, the Court held that a biological father should have a legal
relationship with a child born out of wedlock.119
4.2.2 Blasphemy Law and the Right to Religious Freedom
As discussed above, each of the six recognized religions in Indonesia has its
own National Council, which lays down what is considered orthodox beliefs and
practices. Any deviation from these set standards attracts Article 156 (a) of the
Penal Code, which is complemented by Presidential Decree No. 1/PNPS/1965.
The Blasphemy Law covers two types of acts: deviation and defamation, provided
114 For discussion on categories of countries having majority Muslim populations, see, Tad Stahnke and Robert C.
Blitt, “The Religion-State Relationship and the Right to Freedom of Religion or Belief: A Comparative Textual
Analysis of the Constitution of Predominantly Muslim Countries,” Georgetown Journal of International Law 36
(2005): 947-1078.
115 Also see, US Department of State, Bureau of Democracy, Human Rights and Labour, Annual Report on International
Religious Freedom: Indonesia (2020), available at https://www.state.gov/reports/2020-report-on-international-
religious-freedom/, last accessed on 31.08.2021.
116 Constitutional Court Decision 12/PUU-V/2007, decided October 3, 2007, 35 Constitutional Court Decision 19/
PUU-VI/2008, decided August 12, 2008.
117 See, Simon Butt, “Constitutional Recognition of ‘Belief’ in Indonesia”, Journal of Law and Religion 35, no.3 (2020).
118 Constitutional Court Decision 38/PUU-IX/2011, decided March 12, 2012.
119 Constitutional Court Decision 46/PUU-VIII/2010, decided February 13, 2012.
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under Articles 1 and 4 respectively. For these two acts, dierent mode of procedure
have been provided. Article 1 states that before a person can be prosecuted for
a blasphemous act, there needs to be an administrative warning under Article 2
(1). In addition, Article 2 (1) provides that the Minister of Religious Aairs, the
Attorney General and the Minister of Home Aairs can issue a joint decree to
warn a person who has violated Article 1 by promoting deviant teachings. If the
violation is committed by a religious organization, the President has the power
to ban the group on the recommendation of the aforementioned authorities. If
there has been a warning or ban and the person or persons in the organization
continues to act in breach of Article 1, then Article 3 provides that they can be
prosecuted and, upon conviction, can be imprisoned for a maximum of ve years.120
Further, Article 4 states that a person shall be punished with imprisonment
for ve years if they intentionally publicly express feelings or commit an act that
is hostile, abusive or blasphemous against a religion adhered to in Indonesia,
or with the intention that people do not adhere to any religion, which is based
on the belief in God Almighty.121 In 1966, this provision was incorporated as
Article 156(a) of the Indonesian Criminal Code in Section V on Crimes Against
Public Order, and unlike Article 1, no administrative warning is required under
this provision.122
Indonesia’s Blasphemy Law has attracted global attention and scrutiny,
and there have been demands in the recent past to repeal the law as it is seen
as threat to religious minorities. In this light, Article 28J of the Indonesian
Constitution states that in exercising their rights and freedoms, every person shall
be subject to any restrictions established by law for the purpose of ensuring the
recognition and respect for the rights and freedoms of others and of meeting
the just requirements of morality, religious values, security, and public order in
a democratic society.123
120 Melissa A. Crouch, “Law and Religion in Indonesia: The Constitutional Court and the Blasphemy Law,” Asian
Journal of Comparative Law 7 (2001): 3-5.
121 See, Zainal Abidin Bagir, “Defamation of Religion Law in Post-Reformasi Indonesia: Is Revision Possible?”
Australian Journal of Asian Law 13, no. 2 (2013): 153-168.
122 See, Penal Code of Indonesia, Article 156 (a).
123 Constitution of Indonesia, Article 28J.
e Constitutional Struggle for Religious Freedom: A Comparative Study of India and Indonesia
26 Constitutional Review, Volume 8, Number 1, May 2022
The Government of Indonesia has maintained the right to dene what
constitutes religion in the country, so in practice the constitutional guarantee of
freedom of religion has long been subjected to scrutiny and interpretations.124
Following a history of repressive authoritarian rule, which ended in 1998,
Indonesia ushered in a period of reform and democracy, which raised hopes of
the promotion of religious freedom. However, conservative Islamist groups rose
in power and used various modes of suppression against religious minorities.125
This is where the Blasphemy Law came in handy.
One of the cases which highlights the complexities of the Blasphemy
Law involves former Jakarta governor, Basuki “Ahok” Tjahaja Purnama, an
ethnic Chinese Christian, who was initially charged with hate speech and was
subsequently charged under the Blasphemy Law for desecrating religion126 North
Jakarta District Court reasoned that although one of the charges of blasphemy
was dropped, Ahok had nevertheless “legitimately and convincingly conducted
a criminal act of blasphemy”, felt no remorse for what he did and his action
caused unrest, hurt Islam and divided Muslims and groups.127
Indonesia’s Constitutional Court has upheld the validity of the Blasphemy
Law on the grounds of “public order” and “religious values”, stating that non-
regulation of blasphemous action can lead to “horizontal conict, social unrest,
social disunity and hostility within society”.128 However, the Court did caution
against the misinterpretation of the Blasphemy Law and emphasized the need to
revisit the framing of its provisions. The Court in this decision also highlighted
the limitation of human rights on the grounds of religious values, stating: “the
124 Nikolas K. Gvosdev, “Constitutional Doublethink, Managed Pluralism and Freedom of Religion,” Religion, State
& Society 29, no. 2: 81-90.
125 Nur Amali Ibrahim, “The Law and Religious Intolerance in Indonesia,” Baker Institute Blog, 2019.
126 Decision of North Jakarta District Court No. 1537/Pid.B/2016/PN. Jkt.Utr for Defendant Basuki Tjahaja Purnama
alias Ahok. See, Amnesty International at https://www.amnesty.org/en/latest/press-release/2017/05/indonesia-ahok-
conviction-for-blasphemy-is-an-injustice/. Also see, Osman, Mohamed Nawab Mohamed, and Prashant Waikar,
“Fear and Loathing: Uncivil Islamism and Indonesia’s Anti-Ahok Movement”, Indonesia 106, (2018), 89-109.
127 See, https://globalfreedomofexpression.columbia.edu/cases/public-prosecutor-v-basuki-tjahaja-purnama-aka-
ahok/. Also see, “Islam, Blasphemy, and Human Rights in Indonesia: The Trial of Ahok” (Routledge 2020). Also
see, Adam Tyson, “Blasphemy and Judicial Legitimacy in Indonesia, Religion and Politics Section of the American
Political Science Association”, Politics and Religion 1 (2020): 24.
128 See, Decision of the Constitutional Court No. 140/PUU-VII/2009. The validity of the Blasphemy Law has been
subsequently upheld even in 2013. See, Decision of the Constitutional Court No. 84/PUU-X/2012, 116-117 and 142-143.
e Constitutional Struggle for Religious Freedom: A Comparative Study of India and Indonesia
27
Constitutional Review, Volume 8, Number 1, May 2022
limitation of human rights on the grounds of ‘religious values’ as stipulated in
Article 28J (2) of the 1945 Constitution is one of the considerations to limit
implementation of human rights. This is dierent from Article 18 of the ICCPR,
which does not include religious values as a limitation of individual freedom.”129
The Blasphemy Law and its subsequent implementation has raised several
human rights concerns over recent years amid an increasing number of cases
and restrictions of religious freedom. The blasphemy provisions have often faced
a backlash as being against the constitutional aspirations of the framers, as well
as in violation of Indonesia’s international obligations.
V. CONCLUSION
This comparative study of Indonesia and India presents a tale of dwindling
constitutional status accorded to religious freedom in both the countries. In light
of the absence of any clear denition of the term “religion”, religious freedom
has been subjected to exacting judicial scrutiny by courts in India and Indonesia.
The Indian Supreme Court has devised the “Essential Religious Practices Test”
to determine the essentiality of religious practices as integral to a particular
religion to attract constitutional protection, which in turn strengthens the
constitutional recognition of religious freedom. In Indonesia, the Blasphemy
Law and its exercise has been subject to judicial scrutiny and has also received
huge ack for being in violation of human rights standards. Even though the
Constitutional Court of Indonesia has upheld the validity of the Blasphemy Law
on various instances, this law and its usage place a large question mark over the
constitutional recognition of religious freedom.
The status of religious freedom, especially with respect to religious minorities,
is highly questionable with various instances of suppression of religious freedom
and violations having been noted ocially. The dominance of a majority threatens
the existence of religious freedom and maintenance of liberal democracy in a
state. This duly calls for the establishment of a robust mechanism for balancing
129 Decision of the Constitutional Court No. 140/PUU-VII/2009, 276. Also see, Crouch, "Law and Religiion," 1-46.
e Constitutional Struggle for Religious Freedom: A Comparative Study of India and Indonesia
28 Constitutional Review, Volume 8, Number 1, May 2022
the interests and needs of religious minorities. Indeed, the judiciary, though faced
with opposition and challenges, and accused of corrupt practices, has played a
central role in adjudicating important constitutional questions arising on the
individual’s right to religious freedom. India and Indonesia, even though having
dierent constitutional designs, on various fronts share common experiences
and values, also furthered by the vision of their respective founders to establish
unity and respect for the human dignity of every individual. The challenges
and extremities posed in the name of religious freedom can be well tackled
by ensuring institutional strengthening of state machinery, and furthering and
fostering the need to respect constitutional values and ethos by keeping in
view international obligations, as well as mutual respect and tolerance for the
maintenance of harmony and peace.
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