Does the freedom of religion include the freedom to propagate?

Gehan Gunatilleke

Propagation is one of the most contentious issues within the domain of religion or belief. The freedom to manifest one’s religion or belief through ‘worship’, ‘observance’, ‘practice’, and ‘teaching’ is clearly recognised under international law and Sri Lanka’s constitution. The inclusion of the freedom to propagate one’s religion within that broader freedom, however, is highly contested. This article explains the international and domestic law on the issue, and makes the case for including propagation within the scope of freedom of religion or belief (FoRB).

Scope and limitations

In Sri Lanka, the freedom to propagate one’s religion, i.e., to evangelise or proselytise, is not considered part of the scope of FoRB. This position is clearly reflected in the recent judgment of the Supreme Court involving the Jehovah’s Witnesses community, and in previous Bill determination cases. The Court considered each aspect of the freedom to manifest religion or belief, and concluded that propagation of one’s faith is not part of the scope of FoRB. It observed that propagation cannot be considered an act of ‘worship’ or ‘observance’ as contemplated in article 14(1)(e) of the constitution. Moreover, it suggested that ‘practice’ in article 14(1)(e) only refers to ‘a customary or traditional ritual, ceremony or act which is performed in the course of or allied to or consequent to acts of “worship” and “observance” of a religion or a set of beliefs’. It also observed that ‘teaching’ involved ‘a process of the education of a student[s] by a teacher who, by means of instructions, lessons and training, imparts knowledge and skills to the student’, and that such teaching would necessarily be consensual and pre-arranged. Therefore, the Jehovah’s Witnesses practice of door-to-door evangelising was considered to be outside the scope of FoRB, and not specifically protected under the constitution. 

The Supreme Court had previously observed in the Menzingen case that there was no constitutionally protected right to propagate religion or belief. In that case, the Court assessed the constitutionality of a private member’s Bill to incorporate an institution with the stated purpose of spreading ‘knowledge of the Catholic religion’. The Court found that the Bill was inconsistent with article 9 of the constitution, which guarantees to Buddhism the ‘foremost place’. It held that article 9 restricted individuals of other religions from ‘propagating’ their faith by offering material benefits to those outside their religion. The Court concluded that ‘propagation and spreading Christianity [through the provision of material benefits] would not be permissible, as it would impair the very existence of Buddhism or the Buddha Sasana’.

The position adopted by the Supreme Court could be critiqued from two perspectives. First, the Court’s position does not appear to be in line with international legal doctrine on the scope of FoRB. The ability to distribute publications about one’s religion is often a fundamental aspect of manifesting religion or belief, and may be treated as falling within the scope of ‘teaching’. According to the UN Human Rights Committee in its General Comment No. 22 – Article 18 (Freedom of Thought, Conscience or Religion), practice and teaching include ‘the freedom to prepare and distribute religious texts or publications’. Therefore, for example, the distribution of pamphlets by visiting people—often a form of propagation—should be considered part of FoRB. Yet, like any aspect of the freedom to manifest religion or belief, this aspect of FoRB can be subject to limitations in terms of article 18(3) of the International Covenant on Civil and Political Rights (ICCPR). 

A court’s assessment of an act of propagation would then be a question of whether that act should be restricted or not, as opposed to a question of whether propagation fell within the scope of FoRB in the first place. Acts of propagation could indeed be restricted on the basis of some public interest, such as the rights and freedoms of others. For example, if propagation became coercive, it could be restricted in the interests of another person’s freedom to have or to adopt a religion or belief of their choice without coercion. In this context, the Supreme Court’s attention ought to have been focused on whether a particular act of propagation can be restricted under article 15(7) of the Sri Lankan constitution, and not on whether the act fell within the scope of the right guaranteed by article 14(1)(e).

Second, the Supreme Court’s position on propagation does not lend itself towards a harmonious interpretation of the Sri Lankan constitution. A more harmonious reading of the various norms that are found in the constitution is, however, possible. Article 9 imposes a duty on the state to grant Buddhism the foremost place, and to protect and foster the Buddha Sasana. The freedom of Buddhists to propagate their faith is consequently protected as a direct result of this article. The preferential treatment of one faith is no doubt problematic; but it remains an undeniable feature of the Sri Lankan constitution. Excluding the freedom to propagate, such as the ability to distribute publications, from the scope of article 14(1)(e) exacerbates the inequality that is already entrenched in article 9, where only Buddhism benefits from a state duty to protect and foster it. 

One way to diminish this apparent inequality is to recognise the freedom of adherents of other faiths to foster their faiths on their own initiative. Although such recognition would not grant all religious groups total equality considering article 9, it would at least narrow the extent of the inequality. Such a reading is congruent with the fact that the state’s duty under article 9 is subject to the condition found in article 9 itself: it must be fulfilled in a manner that assures to all ‘other religions’ the rights granted by articles 10 and 14(1)(e) of the constitution. If at least propagation was recognised as part of the scope of article 14(1)(e), the state would be dutybound to protect and foster the Buddha Sasana while respecting the freedoms of other religious groups to propagate their own faiths, albeit without state support.

The marketplace of ideas

A paradox emerges when the freedom to propagate is excluded from the scope of FoRB.  On the one hand, religion is afforded a special status in society, and is often treated as if it is more important than other ideologies or beliefs. For instance, there is heightened sensitivity around criticising or lampooning religion. This sensitivity underlies some of the offences found in Sri Lanka’s Penal Code, which refers to ‘wounding religious feelings’. Yet, on the other hand, religion appears to be given less protection in the marketplace of ideas than political discourse or economic discourse. It then becomes increasingly clear that this so-called special status is only afforded to established or orthodox religions. The current approach to propagation is thus inherently establishmentarian.

In the domain of politics, political parties are generally permitted to propagate their message, particularly during an election. Such propagation is considered part of political freedom including the right to political participation and the freedom of expression, and is connected to the right to vote. In the domain of economics, manufacturers and service providers are generally permitted to advertise their goods and services. This ability is considered an integral part of a competitive market’s functioning. 

It would be antithetical to political freedom to permit large and more established political parties to deny a smaller, newer political party the freedom to contest them by propagating an alternative message. Societies have come to accept political contestation despite the fact that such contestation could be extremely heated or even violent. Meanwhile, it would be unthinkable in a market economy to permit a large business to monopolise the market, and prevent newer manufacturers and service providers from advertising. 

Therefore, in the political and economic domains, propagation is considered a healthy facet of a vibrant marketplace. Yet the analogous freedom to propagate is denied to religious groups that wish to spread their message and encourage others to adopt their faith. 

The denial of the freedom to propagate a religion seems to favour the status quo, and serves the interest of the already established religious groups. In this context, the notion that the freedom to propagate is outside the scope of FoRB reflects an intolerance of unorthodox or new religious groups, which naturally need to propagate their message to gain a foothold within the religious marketplace.

We might recall that all established religions were at some point challenges to the status quo. Buddhism challenged Hinduism, Christianity challenged Roman Paganism and Judaism, and Protestantism challenged Catholicism. All religious ideas came forth through a great deal of contestation and competition. Religions are thus merely part of the marketplace of ideas. Perhaps they do not deserve a special place above other ideologies and thought systems. Yet neither should their adherents be denied the basic freedoms we have come to recognise in other spheres where competing ideas are tolerated, and even welcomed. 

Conclusion

The freedom to propagate is not an absolute freedom, as it can be subject to legitimate limitations. But it is undoubtedly part and parcel of FoRB. Excluding propagation from the scope of FoRB is not only doctrinally problematic, but also harmful to the growth and evolution of the religious sphere. For FoRB cannot just be for the established or orthodox religious groups. In fact, it is the smaller, unorthodox religious groups that need FoRB the most; their freedom to propagate surely remains an integral part of FoRB.