Beyond The Reach Of Personal Law: The Unresolved Status Of Atheism In India
*Saloni Sharma
Introduction
India's Constitution guarantees freedom of religion to everyone. What remains uncertain is whether the constitutional framework also guarantees a genuine freedom from religion. While Article 25 affirms the right to profess, practise, and propagate any faith, it is strikingly silent on the position of those individuals who seek none of these and simply wishes to opt out of religion altogether.
Articles 25 to 28 of the Indian Constitution provide the framework governing freedom of conscience and religion, and secularism has been recognised as part of the Constitution’s basic structure. Nevertheless, the legal status of non-believers remains unclear, and the issue becomes more complex when examined alongside India’s personal laws. Even if freedom of conscience recognises the right not to choose any religion, it still does not resolve the consequences faced by a person after rejecting their religious identity, particularly in a system where personal laws are based on individual religion. Therefore, the major issue is not merely whether atheism or non-believers are constitutionally protected, but whether a person’s right to profess no religion gives them legal ability to detach themselves from personal laws tied to their religion of origin.
In this article, I examine the gap between the constitutional recognition of non‑belief and its consequences under religion‑based personal laws.
Judicial Recognition of the Right to Have No Religion
The Supreme Court has long recognised freedom of conscience as an important component of Article 25, but its adjudicatory corpus has mainly concerned itself with an individual’s freedom of choice, belief, practice, and profession of religion, rather than with the freedom to choose “no religion”. In Bijoe Emmanuel v. State of Kerala, the Court protected individuals’ religious beliefs and affirmed that freedom of conscience safeguards an individual’s right to act in accordance with their sincerely held beliefs. Similarly, in S.R. Bommai v. UOI, John Vallamattom v. UOI, and Indian Young Lawyers Association v. State of Kerala, the Supreme Court recognised secularism and individual religious autonomy, demonstrating the constitutional importance accorded to freedom of conscience and religious choice. Yet these decisions do not answer our question, i.e., whether freedom of conscience under article 25 also protects the freedom not to choose any religion whatsoever? This question gets more attention before the High Courts. The starting point is the Bombay High Court's 2014 decision in Ranjeet Suryakant Mohite (Dr.) v. UOI, wherein the petitioners objected to being classified under any organised religious label and requested the Government Printing Press to record, in an official gazette notification, that they belonged to no religion; however the Press refused. In this case, the Court interpreted Article 25 as protecting freedom of conscience independently of the right to profess, practise or propagate religion and expressly held that an individual has the right to claim that he or she does not belong to any religion and to state so publicly. Mohite is therefore significant because it moves the discussion beyond the Supreme Court's more general jurisprudence on freedom of conscience and addresses the legal recognition of non-religious identity more directly.
In Sandepu Swaroopa v. UOI the Telangana High Court followed this reasoning when parents of different religious backgrounds wanted their child’s birth certificate to state “no religion” and “no caste” rather than have a religion chosen by parents on behalf of the child. Relying on Mohite, the Court directed the government to build a “no religion, no caste” option into birth certificate applications. Together, Mohite and Swaroopa make it clear that the State cannot impose a religious identity on a citizen or a child, but neither make it clear whether such a declaration has any repercussions beyond the document in which it is recorded.
In H. Santhosh v. District Collector , the Madras High Court’s single judge bench initially refused to issue a formal “No Caste No Religion” certificate, and the Court reasoned that the revenue authorities lacked statutory authority to issue such a certificate and reasoned that issuing such a certificate without legislative authority would lead to a plethora of claims that the administration had no mechanism to address. However, subsequently the Division Bench set aside that decision and directed the District Collector and Tahsildar to issue a “No Caste No Religion” certificate. The judicial position has therefore moved from refusal, to recognition, and eventually to a direction for administrative issuance. Yet even this development does not resolve the deeper legal question.
Recognition of a person's non-religious identity is not the same as determining the legal consequences of that identity.
The Harder Question: Does “No Religion” Get You Out of Personal Law?
The official recognition of a person’s ‘no religion’ status is not sufficient; it answers only one question. Another question still remains: does such a certificate grant the freedom to opt out of personal laws that regulate civil matters based on a person’s religious identity? This distinction is crucial because India is not governed by a single uniform civil code; rather, various personal laws coexist, each applying according to a person’s religious belief. Consequently, a declaration of ‘no religion’ does not, by itself, provide a comprehensive statutory mechanism for stepping outside every religion‑based personal law.
In India, there are various statutes for marriage, like for Hindus, the Hindu Marriage Act, 1955; for Muslims, the Muslim Personal Law (Shariat) Application Act, 1937. However, these laws are religion‑specific. The Special Marriage Act, 1954 provides a secular route to marriage irrespective of religious affiliation. However, the “neutral” alternative does not do any better. While, the SMA was intended to allow people to marry in a non-religious ceremony, but a number of its provisions reintroduce the very categories it was supposed to avoid. Section 6 requires a thirty-day public notice of the proposed marriage, which means that couples who often chose this route to escape the religious or family judgment are nevertheless subjected to it. Section 19 takes it one step further: it provides that a Hindu who marries under the Act automatically loses his or her coparcenary and ancestral property rights, including those of an atheist who was born a Hindu but only did so because he or she did not want to have a religious ceremony. However, Section 21A reinstates that protection only for those couples who continue to be Hindu. A law designed to be religion-neutral becomes a law that affects property rights based on religious retention.
Succession presents a more difficult problem. In Safiya P.M. v. UOI, the Supreme Court is considering a challenge concerning the application of Muslim personal law to a person who no longer believes in Islam. The petitioner seeks to have succession governed by the secular Indian Succession Act, 1925 instead of Muslim Personal Law. The case therefore directly raises the question whether constitutional freedom of conscience should have corresponding consequences in inheritance law.
The uncertainty extends beyond these two areas. Adoption, guardianship, maintenance and divorce continue to operate through a combination of religion-specific and secular statutes, while caste and religion can also have consequences for reservation and other legal entitlements. Yet there is no comprehensive statutory framework explaining which regime governs a person who officially identifies as having “no religion”.
The Statutory Gap, and a Possible Way through It
There may already be an answer in the statute book, but it is not a complete one. Indian law has several religion-neutral frameworks—the Special Marriage Act, 1954 for marriage, the Indian Succession Act, 1925 for succession, and secular laws governing areas such as guardianship. The problem is not necessarily the absence of alternatives, but the absence of a clear gateway to choose them. A person who has truly left every religion should logically fall back to the neutral laws. That is exactly what Safiya's petition is asking the Court to affirm. But a logical reading is not the settled law, and no court has yet ruled that a bare declaration of no religion is, by itself, enough to displace the personal law a person was born into.
Conclusion: A Right Without a Remedy
After analysing these cases it is now clear that Article 25’s guarantee of freedom of conscience recognises an individual’s right to profess no religion. However, Indian Personal laws provide no exit mechanism– no statutes allow an individual to formally declare “no religion” and if wanted then move from a religion-based personal law to an existing secular legal framework.
However, we do not need to create an entirely new set of ‘non‑religious personal laws’, because India already has various secular laws; they only require modification and the creation of a gateway for those who wish to opt out of religion‑based personal laws. The State should provide an express option to record both “No Religion” and “No Caste” in official records. Where an individual consciously chooses “No Religion”, that choice should be given legal effect by providing access to the existing neutral or secular laws applicable to matters of personal status.
In the case of children, their parents’ religion may continue to determine their legal framework during minority, since they cannot independently exercise such a choice. However, this should not permanently bind them to their parents’ religious identity. Upon attaining majority, every individual should be given a simple and accessible mechanism to independently choose whether to continue with the religion in which they were raised, adopt another religion, or identify as having no religion. Correspondingly, the law should provide a clear exit mechanism from religion-based personal laws for those who choose to identify as having no religion and wish to be governed by the applicable neutral legal framework.
Such a mechanism should operate prospectively and should not permit individuals to selectively change their applicable law for the purpose of obtaining an advantage in a particular dispute. Existing rights and obligations should therefore remain protected, while the individual's future personal-law framework may be determined by their freely exercised choice.
This approach would give practical effect to freedom of conscience by ensuring that the right to reject religious identity is not merely recognised on paper.
Such a step not only gives substantive effect to freedom of religion but also takes India closer to the constitutional aspiration of a Uniform Civil Code reflected in Article 44 of the Constitution.
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