EMERGENCE OF NEO-JURISPRUDENCE ON FREEDOM OF CONSCIENCE AS A HUMAN RIGHT

Azimkhan B. Pathan
Dean and Professor,
Faculty of Law, Kalinga University,
Naya Raipur

K.S. Puttaswamy vs. Union of India (2017), this Supreme Court landmark judgement and Justice Chandrachud’s opinion on the freedom of conscience is related to privacy right has made tremendous impact on the new judicial creativity to solve many problems emerging all over the world relating to the communalism and terrorism. New world order can be created where every individual possesses freedom of conscience from his birth as an inherent right. Parents cannot impose their ideology over the children instead there must be ways and means to be developed by the states to provide the children teaching and preaching of all religions from all over the world. Let the children attain majority and choose their own ways to profess, practice and propagate religions. If this will happen then only freedom of conscience is really be strengthen as birth right and as an integral part of right to privacy as a human right from the birth.
It is significant to note that freedom of conscience is deeply intertwined with human rights, forming a fundamental aspect of individual liberty and dignity. Universal Declaration of Human Rights (UDHR), 1948 in Article 18 explicitly states that every human being has the right to freedom of thought, conscience, and religion. This is inclusive of the freedom to change person’s religion or belief and to practice it in teaching, worship and in observance. International Covenant on Civil and Political Rights (ICCPR), in Article 18 also protects freedom of thought, conscience, and religion, emphasizing that these freedoms are essential for the development of personal identity and autonomy. Regional human rights instruments and various human rights treaties, such as the European Convention on Human Rights (ECHR), the American Convention on Human Rights, and the African Charter on Human and Peoples’ Rights, all enshrine the right to freedom of conscience.
Freedom of conscience is considered an immutable right, meaning it cannot be surrendered or transferred. It is integral to the dignity and worth of every individual, allowing people to think freely and make personal decisions without coercion and duress. Freedom of conscience is closely linked with other human rights, such as freedom of expression, freedom of assembly, and the right to privacy. These interconnected rights collectively support the ability of individuals to live authentically and pursue their beliefs and values.
In India in the landmark judgement of K.S. Puttaswamy vs. Union of India (2017), Supreme Court significantly impacted judicial creativity, especially regarding privacy rights and freedom of conscience. Justice Chandrachud in this case emphasized that freedom of conscience is an inherent right from birth, integral to the right to privacy.
This case also provides substantial outcome and soft guideline that parents should not impose their ideologies on children. Instead, states should develop ways to teach children about all religions. In furtherance of these outcomes, children should be allowed to choose their own religious paths upon reaching adulthood, strengthening freedom of conscience as a birth right.
It is also significant to note here that European Convention on Human Rights and the Charter of Fundamental Rights of the European Union have emphasized the protection of freedom of conscience. However, challenges persist, especially in balancing this freedom with other rights and societal norms. In USA, the 1st Amendment of the USA Constitution guarantees freedom of conscience which has been frequently interpreted as freedom of religion and expression. Historical cases, such as those involving Jehovah’s Witnesses, highlight the on-going struggle to protect these freedoms against societal and governmental pressures. In Middle East and North Africa, many countries in this region face significant challenges. Apostasy and conversion from Islam are often criminalized, leading to severe penalties, including imprisonment and, in some cases, death. This is very grave issue of freedom of conscience, faith, belief and worship as inalienable birth right.
In countries like China and North Korea, freedom of conscience is heavily restricted. Religious practices and beliefs that deviate from state-sanctioned norms can lead to persecution. The African Charter on Human and Peoples’ Rights protects freedom of conscience, but enforcement varies. In some countries, religious and ethnic conflicts pose significant challenges to these freedoms.
In conclusion, it is important to note that International conventions like the Universal Declaration of Human Rights and International Covenant on Civil and Political Rights (ICCPR) etc. have emphasized upon the importance of freedom of conscience. Moreover, various countries are making efforts through legislative and judicial creativity to strengthen freedom of conscience as a human right. However, the reality on the ground often reflects a complex interplay of cultural, religious, and political factors and there is long way to develop the common international legal framework to develop the hard law based on the consensus of the United Nations country parties to strengthen and implement freedom of conscience as a birth right.