Freedom Of Religion

Comparison of constitutional provisions on Freedom of religion

In drafting a constitutional article on Freedom of Religion, I will compare the constitutions of India, Kenya and South Africa. The comparison will be based on three main points; namely the content of the right, the limitations on the right and the relationship between the state and religion as determined in the articles. In each I, will highlight what aspects will be essential to the protection of the right and vice versa.

Content

The South African and Kenyan constitution start in a similar way; the right in both consists of the freedom of conscience, religion, thought, belief and opinion . The South African constitution doesn’t provide anything further than stating what freedoms

Such provision is not provided neither in the South African nor in the Indian constitution. This is a nondiscrimination clause, the components of which are very important to the full recognition and exercise of freedom of religion.

The Kenyan constitution also states that “a person shall not be compelled to act, or engage in any act, that is contrary to the person’s belief or religion” . This is not mentioned in the other constitutions. However, it is very important to include this in a constitution provision to guarantee freedom of religion. Some religious beliefs prohibit people from being part of the military or receiving blood transfusion. This forms a component of a person’s religion or belief which should be protected.

Finally, the Indian constitution illustrates the entitlement of institutions established for religious purposes. This gives religious institutions the right to establish and maintain institutions, manage its affair, own and administer its own property. This is important to how religious institutions function and shall be guaranteed in the

The constitutions did not make this distinction making all aspects of the right subject to limitations. The Kenyan and South African constitutions allow limitations if it is provided by law and can be reasonable and justifiable in a democratic society. This is a very broad limitation that can be extended and applied to many things. The Indian limitation clause, in contrast; provides the right subject to ‘public order, morality and health’. Morality as ground for limitation is very broad; as there is no universal definition of morality, anything may be justified on this ground.

State and religion

The Indian and South African constitution allow state involvement in the exercise of religion in different capacities . While, the Kenyan constitution makes no mention of the relationship between state and religion. The South African constitution allows religious observance to be conducted at a state or state aided institutions so long as it is on equitable basis and voluntary and free.

Under the Indian constitution, the state can make laws that regulate or restrict any economic, financial, political or other secular activity which may be associated with religious practice . It also allows the state to make law that provide for social welfare and reform of Hundu institutions with a public character