In this article, Aditya Bhushan pursuing B.A.LL.B. (Hons.) from Hidayatullah National Law University discusses the Freedom of Religion Under Indian Constitution.

How Independent is a Person to Practice his Religion

The degree of independence to practice a religion cannot be scaled as such, but what our constitution provides is that we can practice any religion in any way or manner we want, till the time it does not disturbs the social order either morally or politically and does not hamper the smooth running of the society which means that he does not commit any act of social misconduct which may lead to any threat to the ongoing peace, any immoral act or any other activity banned by the state. Practices like sati, child marriages, dowry, various sacrificial offerings have been banned owing to the fact that it has been classed as immoral social practices.

Who can Exercise the Right Given Under Article 25?

The said freedom to practice any religion of a person is enshrined under Part III of the Constitution in Article 25 which governs all the persons residing in the country irrespective of their status of citizenship. Hence, no one can question the religious inclination of any person irrespective of whether he is a foreign national or any person residing in the territory of India.

Constitutional Safeguards for Freedom of Religion

Religion has been dealt with very carefully by our constitution makers in order to avoid any clash between the state and its subjects. Hence, under Part III which talks about fundamental rights of a citizen, there are several provisions which provide for the safe and healthy accommodation of religious matters into the society.

Is Right to Profess and Propagate a Religion an Absolute Right?

Article 25 gives to all persons the right to freely profess, practice and propagate religion. This right, however, is not absolute. The opening words of Article 25(1) make this right subject to public order, morality, and health. The same restriction also applies to the other provisions of Part III of the Constitution. This would mean that the right given to a person under 25(1) can be curtailed or regulated if the exercise of that right would violate other provisions of Part III of the Constitution, or if the exercise thereof is not in consonance with public order, morality and health and it cannot be violated by any person in exercise of his freedom of conscience or his freedom to profess his religion. For example, a person cannot profess his religion in such a manner as to denigrate another religion or bring about dissatisfaction amongst people.
The freedom to profess any religion is a fundamental right, but in cases where a particular community is kept under minority status, the shield of freedom of religion cannot be used for the purpose of claiming minority status so as to avail the benefits of Articles 29 And 30 of the Constitution of India. The same principle was upheld in the case of State Of Rajasthan And Ors. v. Vijay Shanti Educational Trust, RLW 2003 (4) Raj 2568.

The Freedom to Manage Religious Affairs

The freedom to manage religious affairs is provided by Article 26. This Article gives the right to every religious denomination, or any section thereof, to exercise the rights that it stipulates. However, this right has to be exercised in a manner that is in conformity with public order, morality, and health. Clause (a) of Article 26 gives a religious denomination the right to establish and maintain institutions for religious and charitable purposes. There is no dispute that the establishment of an educational institution comes within the meaning of the expression “charitable purpose”. Therefore, while Article 25(1) grants the freedom of conscience and the right to profess, practice and propagate religion. Article 26 can be said to be complementary to it.
Article 26 does not deal with the right of an individual but is confined to a religious denomination. Article 26 refers to a denomination of any religion, whether it is a majority or a minority religion, just as Article 25 refers to all persons, whether they belong to the majority or a minority religion.

To What Extent can the State Restrict One’s Right to Practice, Profess or Propagate Religion

Each time the state plans to introduce restrictions to curb religious dealings, it gets a wide array of reactions from the society.
A careful reading of Article 25(2)(a) indicates that it does not prevent the State from making any law in relation to the religious practice as such. The limited jurisdiction granted by Article 25(2) relates to the making of a law in relation to economic, financial, political or other secular activities associated with the religious practice. This means that the state can regulate affairs related to religion indirectly.
Apart from above mentioned regulations state can intervene for social welfare reforms which tend toward off social evils prevailing in the society having their origin from religious dealings.

Constitutionality of Endowment Acts Controlling Affairs of Worship Places and Other Charitable Trusts

Every religion, denomination or organization is free to manage its own affairs and is confined to ‘matters of religious nature’. The state cannot interfere in the exercise of this, unless they run counter to public order, health or morality.
The term ‘matters of religion’ includes religious practices, rites, and ceremonies considered essential for the practice of religion. The right is however subject to the regulatory power of the state under Clause (2) (b) of Article 25. This means that the secular activities connected with the religious institution can be regulated by the state under the law. First of such acts was Madras Religious & Charitable Endowments Act, 1925 which, after opposition by Muslim and Christians communities, was renamed as Madras Hindu Religious & Endowments Act, 1925. The condition is acute in 7 states namely, Tamil Nadu (worst hit), Andhra Pradesh, Karnataka, Kerala, Odisha, and Maharashtra.
In the case of Bira Kishore Devi v. State of Orissa, AIR 1964 SC 1501, the Shri Jagannath Temple Act took management of secular activity of the Temple from Raja of Puri and vested it in committee constituted under the Act. The court held the Act valid as it did not affect the religious aspect.
The government may exercise his power to administer the temple or audit its assets but what it cannot do is to exercise a right to sell or give a lease to others, and cannot use temple assets for the welfare of people of others faiths. Article 26 of the constitution gave the right to denominations of religion to manage matters of religion and Article 25 allowed State to make any law to regulate.
Apart from control and regulations of Hindu religious institutions, there are various regulatory bodies working both at central as well as local levels to regulate the affairs of Sikh Gurdwaras and Islamic establishments as well.

Sikh Gurudwaras: All historical gurudwaras are being administered under following bodies:

1. Delhi Sikh SGPC: Controls Gurudwara of Delhi.
2. Haryana SPGC: Controls Gurudwara of Haryana.
3. Hajur sahib SPGC: Controls Gurudwara in Maharashtra.
4. Shiromani Gurdwara Parbandhak Committee: Controlling gurudwaras in Punjab and Himachal Pradesh.

Muslim Places: All Kabristan, Mosque, and Dargahs are being governed by Wakf Boards. Wakf Boards are established by both state and central governments. There are 30 wakf boards in India. Central Wakf Council is an Indian statutory body established in 1964 under wakf act 1954. Wakf is a permanent dedication of movable or immovable properties for religious, pious or charitable purposes as recognized by Muslim Law, given by philanthropists.
As secular activities connected with religious institutions can be regulated by state under law, there has been a conflict among the provisions of the constitution where Clause 2 of Article 25 empowers the state to regulate matters relating to secular practices of the religion and on the other side Article 26 provides freedom to manage religious affairs to individuals. Hence the conflict arises due to uncertainty in authority to manage the religious institutions.

The Legality of Ghar Wapsi Movements: Fate of Anti-Conversion Laws

Ghar Wapsi means homecoming or reconversion of non-Hindus into Hinduism. There are no such cases which prove that these conversions are fraudulent. Had such an activity being a result of undue influence or by forceful means, it would have been an illegal activity.
One question of importance which emerged during the same time was whether the converted person will be put back to his initial caste or will he lose all his prior cast designations. It was in the case of K.P. Manu, Malabar Cements Ltd v. Chairman, Scrutiny Committee for Verification of Community Certificate Civil Appeal no. 7065 OF 2008, where the bench held that even after reconversion the person can avail the benefits of reserved categories provided the person must fulfill three mandatory conditions to avail such benefits after reconversion:

• There must be clear proof that he belongs to a caste duly recognised as a Scheduled Caste.

• He has “reconverted” to the original religion to which his parents or earlier generations belonged.

• That he has been accepted by the community.

Anti-Conversion Legislations

All of the anti-conversion laws at present seek to prevent any person from converting or attempting to convert, either directly or otherwise, any person through “forcible” or “fraudulent” means, or by “allurement” or “inducement.”
The Constitution of India guarantees the freedom to profess, practice, and propagate one’s religion under Article 25. The Supreme Court in the case of Ratilal Panachand Gandhi v. State of Bombay 1954 S.C.R. 1035, 1063 clarified this provision by holding that “every person has a fundamental right under our Constitution not merely to entertain such religious belief as may be approved of by his judgment or conscience but to exhibit his belief and ideas in such overt acts as are enjoined or sanctioned by his religion and further to propagate his religious views for edification of others.”
The Supreme Court in Rev Stanislaus v. State of Madhya Pradesh (1977) 1 SCC 677 examined whether the right to practice and propagate one’s religion also included the right to convert. The Court upheld the validity of the earliest anti-conversion statutes: the Madhya Pradesh Dharma Swatantraya Adhiniyam, 1968, and the Orissa Freedom of Religion Act, 1967. The Court held that propagation only indicated persuasion/exposition without coercion and that the right to propagate did not include the right to convert any person.

What Legal Actions to take when Someone Restricts you from Practising your Religion? How to Report? Which Court to Approach?

If your fundamental right to practice your religion has been restricted you can approach the High Court under Article 226 of the Constitution. You also have the right to approach the Supreme Court under Article 32 but the Supreme Court has advised that you approach the High Court of your State before approaching the Supreme Court.
Apart from Constitutional safeguards, Indian Penal Code has also provided safeguards have which been stated under Chapter 15 from Sections 295 to 298 classified as offence any act such as:

• Damaging or defiling a place of worship or a sacred object with intent to insult the religion of a class or a person.
• For disturbing any religious worship or ceremony.
• For trespassing into any place of sepulture or place where funeral ceremonies are proceeding.
• For utterances in the presence of another person with the intention of wounding the religious feelings of that person.
• For insulting the religion of any class of citizens by spoken or written publication.

Even though it’s an important statutory provision, it comes with many conditions to prove. The term such as malicious, deliberate intentions and state of mind becomes hard to prove in the court. The last point dealing with insulting any religion through published or spoken expression also poses a problem, it varied the material expression by using the term outraging rather than wounding the feelings of any person.

Is Demolition of a Worship Place by Public Authorities Valid – Is it Violative of my Fundamental Rights?

Fundamental rights are there for the protection of one’s right to practice religion but no right can exist in absolute independence without any condition. Same way Article 25 of the constitution which calls for one’s rights to freedom of religion but it is subject to public order.
While deciding what public order is, if the court has been given two situations to prioritize from, it will choose the situation which is for the greater good of the public. So given the fact that the presence of any shrine is detrimental to the expansion of a runway for an international airport the court can order for removal of such worship places. Hence even if the right to practice any religion is a right protected under the constitution, it’s still not absolute and is subject to various conditions.

Issue of Illegal Encroachment: Land Grabbing in God’s Name

There have been instances where land has been encroached upon illegally using the excuse of religion. For example, in 2006 after the Vadodara Municipal Corporation demolished shrine of Syed Rashiduddin Chishti owing to its illegal expansion, there were casualties leaving 8 injured and 4 dead. Each time public authorities tried to remove illegal possessions it has met with violent oppositions from the public.
In the case of Union of India v. State of Gujarat & Ors SLP (Civil) No(s).8519/2006, the Supreme Court directed state government not to grant any permission for installation of any statue or construction of any structure in public roads, pavements, sideways and other public utility places. Obviously, this order shall not apply to the installation of high mast lights, street lights or construction relating to electrification, traffic, toll or for development and beautification of the streets, highways, roads etc. and relating to public utility and facilities.

Conclusion

In the present scenario where India very closely observes the consequences of the communal clash, the sense of respect and accommodation for other sects and communities must be inculcated in the masses. The ambit of control exercised by the government over religious activities must be checked. A sense of inclusiveness must be provided to the people belonging to minority community. The idea of religion is very personal to individuals and it should be left personal only rather than bringing this topic on stage and deriving political gains out of it. This right has already been protected by the Constitution of India and it is the duty of the court to uphold and enforce these rights.