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This article is written by Sharad Yadav from the Institute of Law, Nirma University. This article will help you to understand how the courts develop the rights of the Atheists when there is not any specific provision in the Constitution that gives them rights.


In India, there are no specific laws that directly give the rights to atheists. Everyone is considered as belonging to some religion by birth. According to the World values survey, 2006 around 6.6 % of people had not stated their religion. Some people believe to be atheist but do not express themselves openly due to fear. Since 1950, The Indian Constitution has spoken of “freedom of conscience” under Article 25 but as the right of the Atheist is a concern this has not been substantiated until recently.

Philosophical schools in the Indian context

If we see in the India context there are:

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  • Six ‘Astika’ schools of Hindu philosophy are there which are-Nyaya, yoga, Mimamsa, Vedanta, Samkhya, Vaisheshika.
  • Five major ‘Nastika’ schools of sramana which are Jain, Buddhist, Ajivika, Ajnana, Carvaka.
  • Four ‘Nastika’ schools which reject the doctrine of Vedas are the Jainism, Buddhism, Carvaka, Ajivika

Surveys related to atheists

Census of 2011

Although in the 2011 census there was not any separated column that gives the exact percentage of atheists in Indian. In the form, there were six options given to choose religion. There was the “other” option which was for the tribal religions, minor and atheist as well. When census data was released by the government around 2,870,000 people stated no religion which accounts for about 0.27% of the indian population. Some experts stated that the atheist number is higher than the survey result because some people don’t want to reveal that they are atheist due to societal pressure.

World values survey

According to the World values survey 2006 which was conducted by the Dentsu communication institute, Japan research centre. Around 6.6% of people in India stated no religion.

WIN-Gallup global index of religion and atheism

According to the Religion and atheism report (2005) from WIN-Gallup, 87 percent of Indian were religious and 4 percent of people atheist. Again the survey conducted by the WIN-Gallup in 2012 found around 81 percent Indian were religious and 13 percent were not religious other than that 3 percent were convinced atheists and 3 percent were unsure about it.

Scientists in India

In 2007 a survey was conducted by the Institute for the study of secularism in society and culture of Trinity college with the help of the Center for inquiry. Total around 1100 scientist surveys were conducted from 130 institutes. Around 59% identified themselves as a secular or somewhat secular whose percentage was 16%. Only 11 percent of scientists called themselves completely non-spiritual.

Whether propagation of atheism violate Article 25

Article 25(1) of the Indian Constitution states that all the person is equally entitled to freedom of conscience and the right freely to profess, practise and propagate religion. In the case of Lily Thomas v.UOI, the court stated that it is the basic right of the person to entertain the religious faith as per his/her choice but not violate the religious and personal individual freedom of the others. While dealing with the issue of whether the propagation of atheism is a violation of Article 25. Court gives the answer is negative and stated that when it comes to the constitutional secular character, it preserves the atheist people’s rights.

In the case of Sundaresan v The Principal Secretary to Government the petition came to the Madras court questioning the government’s order to grant permission for building the Periyar’s (Strong proponent of atheism)  statue in the school campus. It was contented by the petitioner that the statue’s permission was given to spread atheism in the students. The court rejected the plea of the petitioner and emphasised the necessity of the school children to be aware and explore the life of the Periyar. Court also stated that this will help the children to develop the scientific temper. If we are saying that there is no space for atheism in India then we are not only undermining the legacy of such leaders but also the fundamental duty (Article 51A(h)) which is enshrined in the Indian Constitution.

Section 295-A

There are religious groups, who are not happy with the propagation of atheism. In October 2016 there was a private meeting of atheists was going on but was cancelled by the administration after being attacked by the religious extremist. Section 295A of the Indian Penal Code gives the punishment for deliberate and malicious act intended to outrage reli­gious feelings of any class by insulting its religion or reli­gious beliefs. Either by the words, spoken, written or visual representation or otherwise.

In Ramji Lal Modi v. State of UP the constitutional bench upholds the constitutionality of Section 295A. The court states that it is a reasonable restriction upon the freedom of speech in the interest of public order. The court stated that” Law may not have been designed to maintain public order and yet it may have been enacted in the interest of the public order”. There are some experts such as Gautam Bhatia who have argued that the judgment needs to be reconsidered. He states that the court in Ramji Lal ignored the “qualifying constraints” placed by the term reasonable restriction and later decision consistently undermined and discarded the stand taken in the Ramji Lal case.

The Constitutional bench in Superintendent, Central Prison, Fatehgarh v. Ram Manohar Lohia held that the Ramji Lal case does not mean that any remote or fanciful connection between the restriction and public order would be sufficient to uphold the validity of the restriction. The restriction which has become reasonable on freedom of speech and expression must have a proximate relationship to the achievement of public order. The stand which was taken by the constitutional bench in Ram Manohar Lohia is opposite to the view of the Ramji Lal case.

In the case of Shreya Singhal v. Union of India the court while distinguishing the discussion and advocacy with incitement held that mere discussion or advocacy of a particular case would always be the heart of the Constitution. The court struck down Section 66A from the Information Technology act and stated that criminalizing protected speech that is of innocent nature, it has the potential to create a chilling effect on free speech and therefore this section needs to be struck down. In recently the court in Navtej Singh Johar Constitution bench of court partially struck down Section 377 of the Indian Penal Code and stated it is creating a chilling effect on the individual freedom of choice.

In 2018 Punjab assembly passed the bill for the insert of Section 295AA to the IPC which is” Whoever causes damage, sacrilege or injury to the Bhagavad Gita, Quran, Bible with the intention to hurt the religious feeling of the people shall be punished with the imprisonment of life. In the Section, the word sacrilege itself was vague and gave the wide power to the state to arrest the persons. As it is the constitutional right of the people to believe or not to believe in the teaching of the religious text. It can hamper the freedom of speech of the atheists and non-believer who can be arrested if questioned about the religious text.

Constitutional morality overrides public or religious morality

This heading has been provided with an explanation by means of landmark judgments delivered by the Supreme Court of India.

Navtej Singh Johar v. Union of India (2018)

Justice DY Chandrachud expressed the opinion concurrently that Constitutional morality and ethics will supersede the public and religious moral standard will always protect the fundamental right enshrined in Article 25 of the Indian constitution. Which carries the principal right of the individual to be an atheist.

Justice K.S.Puttaswamy (Retd) v. Union Of India (2018)

The judgement is also known as privacy judgment. In this Justice DY Chandrachud held that the fundamental right of the people can never be turned down even if it is “a tiny fraction of the population”.

The main jurisprudence evolved by the supreme court in these judgments which places the individual rights as supremes can be seen in the BR Ambedkar (Drafting chairman of the constitution). Before the constituent assembly on 4 November 1948, he said that” I am glad that the Draft constitution has. adopted the individual as its unit.”By the words of BR Ambedkar, we can conclude that atheist and non-believer has a separate identity under the constitution.

Rights under Special Marriage Act, 1954

The parliament has enacted a Special Marriage Act to deal with the issue of marriages. It provides a special form of marriage that can be taken advantage of by any person in India or Indian national in foreign countries irrespective of the faith of the person. There are separate marriage laws for Hindu, Muslims, Christians under the special marriage act. The non-religious person can do the marriage ceremonies without mention of the caste. Under the Special Marriage Act, it is not mandatory to have religious or ceremonial rites.

Case laws

Constitution preserves the rights of atheists

This has been reflected in the case of St Xaviers College v. State of Gujarat. In this particular case the court stated the secular nature of the constitution preserves the rights of atheists and held that “Secularism is neither anti nor pro god, it treats alike the devout, atheists and the antagonistic.

Individual personal belief

In the case of Sanjay ananda salve v. the State of Maharashtra and Ranjit Surya Kant mohite v. Union of India in both the scenarios court stated that when it comes to conscience as freedom guaranteed as a fundamental right and the individual’s personal belief it definitely matters of freedom of speech and expression which explicitly comes under the Article 19(1)(a) of the Indian Constitution.

Religion not necessary to be theistic

Commissioner, Hindu Religious Endowments, Madras v. Sri Lakshmindra Thirtha Swamiar of Sripur Mutt In this particular case the court said that when it comes to individual or communities “Religion” is ultimately a matter of belief and must not necessarily to be theistic. Courts stated and made the reference to well -known and established religions that exist in India that do not believe there is a god. It was examined that “It would not be correct to say that religion is doctrine or belief”.

Individual autonomy is supreme

In the case of Shafin Jahan v. Ashokan, the court stated that the choice of faith and belief lies on where individual autonomy is supreme. Social approval for such intimate personal decisions thus can not be the basis to deny the right of the individual who is atheist or who doesn’t believe in any religion.


The constitution of India has not stated the fundamental rights of the Atheist directly. Court ruling gives some rights to atheists. Atheists also have the right to propagate as stated in the Lily Thomas case where the court stated that the propagation of atheism does not violate Article 25 of the constitution. We live in the largest democracy in the world so why we can not give the rights to atheists also. There is some provision which is against the atheist people such as Section 295AA of IPC which apply in Punjab somewhat abridge the rights of the atheist in an indirect way. Some laws need to be reform so that atheists can live without any conflict and freely express their opinion.





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