Summary: Article 25 of the Constitution has traditionally focussed on religious rights and the scope of protection they enjoyed from state intervention. However, there is one aspect of this right that has remained unexplored for the longest time – the right to conscience. Recently, there has been a renewed focus on the right to conscience with judicial opinions and lawyers’ arguments utilising this under-appreciated right. In this piece, the author explains the scope of the right to conscience, how it differs from other fundamental rights, and the impediments that exist to its application in the near future.
Article 25 of the Constitution has been one of the most debated fundamental rights, with many controversies over the scope of religious freedoms afforded to communities, and the limits of government intervention in the same. However, there is one aspect of this right that has remained unexplored for the longest time – the right to conscience. While the right to conscience has formed an integral part of the text of Article 25 from the very beginning, the limited manner in which it has been perceived till now is concerning the right of people to be atheists.
However, recently, there has been a renewed focus on the right to conscience with judicial opinions and lawyers’ arguments utilizing this under-appreciated right. In this article, I first look at recent enunciations of this right in the legal fraternity to indicate the purposes for which it has been utilized. Second, I analyse the differences between this right and other fundamental rights, specifically the freedom of religion under Article 25 and the right to privacy under Article 21. Finally, through examples, I highlight the problems associated with this right, and what impediments exist to its application in the near future.
The Right to Conscience in Contemporary Jurisprudence
After a period of dormancy in jurisprudence, the right to conscience has suddenly vaulted into significance through a string of references to it at the Supreme Court (“SC”). The first such reference was made in Aishat Shifa v. State of Karnataka (the Hijab case) in the opinion of Justice Hemant Gupta. A clear distinction was made between the right to religion and the right to conscience, with the latter going beyond the confines of established religions. The right to conscience was deemed to stem from the “moral and ethical principles” that governed the actions and lives of men.
While the reference to the right to conscience in Aishat Shifa was merely an obiter, a more substantial reference was made to this hidden right in Supriyo v. UoI (the same-sex marriage case) in the opinion of Chief Justice D.Y. Chandrachud. The right to religion was deemed to be a part of the right to conscience insofar as conscience was inherent in an individual, and religious beliefs were but a part of this conscience. This judgement is also crucial, since it expanded the scope of the right to conscience to include not only the right to hold a belief, but also to act and make decisions based on it. The right to conscience provides the freedom to have beliefs as well as the right to take actions for the physical manifestation of the same. The right to conscience was deemed to govern the aspirations of individuals and was to be exercised in accordance with the law. The real-world implication of this right was that queer persons would have the right to choose their life partner in a manner that their conscience dictated.
The most recent (and far-reaching) enunciation of the right to conscience was made in the written submission of Mr. Shadan Farasat in Association of Democratic Reforms v. UoI (the electoral bonds case). On the question of opaque donations by companies to political parties, Mr. Farasat argued that when shareholders’ investments in companies were being channelled to political parties without their specific knowledge, it was violative of their right to conscience. The essence of Mr. Farasat’s argument was that when a company donated to a political party in an opaque manner (where the shareholder does not get to know which party received the donation because of the nature of electoral bonds), it is possible that the shareholders’ money is being provided to a cause or ideology that is opposed to the conscience or moral beliefs of the shareholder. Insofar as this happens, the fundamental right to conscience of shareholders under Article 25 is impaired, and such a policy is ultra vires the Constitution.
In short, the right to conscience gives individuals the power to hold and act according to certain beliefs and moral standards that they value as part of their distinctive personalities. This right goes beyond religious freedoms, and is aimed at protecting the innermost beliefs of individuals. The focus of the right is on the individual’s core values, which are considered definitive of their identity. It is through these references that the right to conscience has emerged from the shadow of religious freedoms under Article 25 and attempted to claim a life of its own. However, it is vital to note that despite these recent references, there has been no comprehensive jurisprudence on the scope or the limitations of this hidden right either in judicial opinions or in academic literature. It is this gap that I seek to address in the sections below.
Right to Conscience: A Standalone Right
Before identifying any limitations with the right to conscience, it is crucial to understand the ambit of the right, and how it is different from any other fundamental rights that have already been identified. In this regard, there are primarily two fundamental rights that the right to conscience must be distinguished from – freedom of religion under Article 25 and the right privacy under Article 21.
The distinction between the freedom of religion and the right to conscience has been sufficiently explained in Supriyo. Though the right to conscience is part of the text of Article 25, it is fundamentally different from the right to religious freedom, since it is premised solely on enabling individuals to uphold and act in accordance with their firm beliefs and inner morality. The right to religious freedom, on the other hand, relies on an individual’s membership in a religious group and is geared towards protecting any actions that are carried out as a result of such membership. Overall, the right to conscience is individual-centric, while the freedom of religion arises from group membership.
Article 21 has been held to include the right to privacy, which in turn includes aspects like autonomy and decisional privacy. The right to privacy involves an expectation to be free from any interference in certain realms of life that are considered sacrosanct for meaningfully enjoying the right to life and liberty. The right to conscience under Article 25 and the right to privacy under Article 21 are interrelated insofar as they seek to enable individuals to hold beliefs, as well as act and make decisions in accordance with the same. The only difference is that while the right to conscience is a positive right that facilitates the individuals to pursue their core beliefs, the right to privacy is a negative right that protects certain domains of the individual’s life (including their core beliefs, morals and principles) from state interference. In the author’s opinion, it is quite likely that these rights will be utilised simultaneously, and the development of their jurisprudence will be intertwined.
The right to conscience, insofar as it protects the core beliefs and values of an individual, is a valuable and powerful right. However, the lack of judicial opinion and literature on the same has meant that multiple aspects of this right continue to be uncertain.
Limitations of the Right to Conscience
The right to conscience, though powerful, has two major limitations. Both these limitations pertain to the nature of this right, with its central focus on intangible moral beliefs and conscience.
First, there is no clarity on the identification of what constitutes a part of the right to conscience. While the right intends to protect the moral norms and conscious beliefs of an individual, it is unclear how these will be identified or how the existence of the same will be proved. The SC has evolved the essential religious practice test for the ascertainment of the group-based freedom of religion. This test aims to confer the protection of the right to those practices which the followers believe are a part of their religion. Given the nature of religions and religious organisations, it may be possible to provide evidence of a consistent practice or firm belief through textual, oral and physical sources. However, in the case of the right to conscience (which is purely individual-centric), there may not be any sources or evidence that an individual may rely upon to prove the existence of a conscious belief or moral standard. In the absence of proof of the beliefs and standards that form the premise of the right, it might not be possible to decide which cases are worthy of the protection of the right and which are not.
Second, the question of to what extent the actions/manifestations of the right to conscience can be protected remains unanswered. Given that the right involves not only the holding of a belief but also acting according to the same, the extent of these manifestations needs to be determined. While the right to conscience (like the freedom of religion) is constrained by public order, morality, health and other fundamental rights, the issue arises when a person seeks to act contrary to a statutory obligation. The Indian Medical Council Regulations render the practice of euthanasia as unethical conduct. Would a qualified medical practitioner who strongly believes that the right to die is a part of an individual’s core rights be allowed to “pull the plug” for a requesting patient in line with his core beliefs? If an individual claims that it is his core moral standard to not pay allegiance to the national flag, would he be exempted from penalties under the Prevention of Insults to National Honour Act?
Thus, the right to conscience, despite being a valuable and powerful right, must contend with these issues before it can be routinely utilised as part of our fundamental rights jurisprudence.
Kanishk Srinivas is a third-year student at NLSIU, Bangalore, and an analyst for LAOT.
[Ed Note: This article has been edited by Sukrut Khandekar and published by Harshitha Adari from the Student Editorial Board.]
