Freedom of religion

This article is written by Ananya Choudhary. 


The Indian mainland is also considered as the land of spiritual beliefs, philosophical thinking, culture. Being a secular country, India is a land of plural religions with a highly religious society. There are 6 major religions being followed in India which are Hinduism, Jainism, Islam, Buddhism, Sikhism, and Christianity. Often religion is considered to be an indispensable and ineffaceable part of human existence. And considering the same, the Indian Constitution provides its citizens with freedom of religion and faith and acknowledges the relationship between an individual and his god.

With independence, the framers of the Indian constitution declared India as a secular state. A secular state is a state with no official religion. And thus, ensures that no one shall be discriminated against on the grounds of religion and all religions will be treated equally. And Secularism is the basic feature of the Indian constitution. And the same was upheld in the landmark case of S. R Bommai v. Union of India. And this basic idea of secularism is implicit in the preamble of the Indian Constitution which promises to secure to all the citizens liberty to thought, belief, faith, and worship and for the purpose of making the idea of secularism applicable and acceptable, along with multiple freedoms, The Indian Constitution also gave an important fundamental right of freedom of religion to its citizens. 

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Secularism and Indian law

The word “secular” was inserted in the preamble of the Indian constitution by the way of the 42nd Amendment Act, 1976. And the main motive behind the same amendment was to explicitly spell the idea of secularism in the Indian Constitution. And the idea of secularism means that there is no mysticism in the secular character of the state. And thus, there is no religion of the state and all the religions will be treated equally. By being secular, the state will neither be anti-god nor pro-god. And the state would not differentiate on the grounds of religion. It will treat alike the devout, the antagonistic, and the atheist. 

S.R Bommai v. Union of India

This case is one of the most landmark judgments of India’s legal history, dealing with the aspect of secularism. The nine-judge bench of the Supreme Court, in this case, held that secularism is a basic structure of the Indian Constitution. And establishing the supremacy of this idea of secularism, the apex court held that the president has the power to dismiss any state government which acts against the principles of secularism. And the positive concept of secularism has been embodied in the Indian Constitution that separates spiritualism from individual faith.

Aruna Roy v. Union of India

In this landmark case, the supreme court held that secularism as under the Indian constitution should be understood with a positive meaning that is developing, understanding, and respect towards different religions. In this case, the New education policy, 2002 that provides for value-based education to school children based on basis of all religions, was questioned. It was alleged that the same policy is violative of Article 28 of the Indian Constitution, and is thus anti-secular. And focusing on the positive meaning of secularism, the court held that it is not compulsory that the idea of secularism could be implemented only by way of neutral approach but can also be followed by way of making one section of a religious group understand and respect religion and faith of another section of people. And thus, the court in its judgment upheld the validity of the New education policy, 2002. 

Right to freedom of religion

With a lot of diversity in the country, it becomes the responsibility of the nation to equally protect and respect every religion in the country. And thus Article 25-28 of the Indian Constitution fulfills this purpose. Thus, the constitution of India by way of Article 25- 28, grants to all its citizens the right to freedom of religion.

What is religion

From time to time some great philosophers have attempted to define what religion is.

  • In the words of Immanuel Kant defines “religion is the recognition of all our duties as divine commands”. 
  • Milton Yinger defined religion as “a system of beliefs and practices by means of which a group of people struggles with the ultimate problems of human life”. 
  • George Bernard Shaw had a view that “There is only one religion, though there are hundreds of versions of it.”

The word religion has not been defined under the Indian Constitution, but from time to time, the honourable supreme court has attempted to define the same in a broader sense. Religion is considered more to be a matter of personal belief and faith. It is a matter of faith and belief with individuals. And every religion has its base in a system of beliefs or doctrines which are regarded by those who profess that religion as conducive to their spiritual well-being. And Indian constitution allows every citizen the fundamental right to entertain their respective religious beliefs and exhibit such beliefs and ideas, but very within the boundaries of the law.

Doctrine or belief

One of the most landmark judgments dealing with the aspect of religion was Commissioner, Hindu Religious Endowments, Madras v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt. In this case, the Apex Court held that it is certain that religion finds its basis in a system of beliefs or doctrines which are regarded by those professing the religion. Further, the court held that at the same time it would be completely wrong to term religion as nothing but only doctrine or belief.

In the case of S.P. Mittal v. Union of India, it was held that religion is a matter of faith with individuals or communities and it is not necessarily theistic. And apart from merely being a doctrine or belief, it is also an outward expression of beliefs.

Article 25

Article 25 of the Indian Constitution grants to all its citizens the freedom of conscience, the freedom to profess, practice, and propagate religion. But this right is not absolute. And further, this right is subjected to public order, morality, health, and to other provisions as contained under part III of the Indian Constitution.

And Article 25 (1) of the Indian Constitution grants 2-fold freedom to the citizens of India:

Freedom of conscience: The freedom of conscience is basically concerned with the inner freedom of its citizen, which allows him as per his wish to mold his relation with the god. And when this freedom takes outward form and is being expressed, then it is “to practice and profess religion”. To practice means to perform the duties, titles, etc. related to the religion and also includes exhibiting the religious beliefs and ideas of the religion, in which an individual believes. To profess means to freely and openly declares one’s faith and belief with respect to his/her religion. And to propagate religion means spreading and publicizing religious views to the greater public and that too without any coercion. And this right to propagate must not be confused with trying to convert any person to one’s religion with force, which is a wrong practice. And the fundamental right to freedom of religion neither approves the same.

The National Anthem case

The judgment of the case of Bijoe Emmanuel v. the State of Kerala holds a strong position in dealing with aspects of Article 25 of the Indian Constitution. The brief facts of the case were that three students belonging to Jehova’s witnesses refused to sing the national anthem. Even though they stood straight in respectful silence, but still they were expelled from the school for refusing to sing the National Anthem. Further the aggrieved challenged this order of expulsion on the grounds of Article 25 and Article 19. And in this case, the supreme court found the order of expulsion as against Article 25 of the Indian Constitution and held that no person can be forced to sing the national anthem if there is any genuine, conscientious religious objection.

Article 26

Article 26 of the Indian Constitution, provides every religious domination with some rights to manage their religious affairs being subjected to public order, morality and health. Article 26 grants freedom to an organized body as compared to Article 25 which grants rights to an individual.

Clause (a) of Article 26 of the Indian Constitution, grants every qualified religious denomination, the right to establish and maintain the institution for religious and charitable purposes.

And clause (b) of the Article 26, allow religious denomination to freely manage their own affairs in relation to matters of religion. But such freedom is subject to public order, health and morality. And until it is against public order, health or morality, the state has no power to interfere with the said right.

And clause (c) and (d) of Article 26 grant religious denominations the right to acquire and own property and also the right to administer such property in accordance with the law. Further, this right can be regulated by the state under Article 25 (2) (a) of the constitution or by any other general property law. These two clauses do not grant any new right to the religious denomination, but they aim to protect the continuance of the existing rights. And thus, these rights are confined to the existing rights to administer the property where they have been vested in a religious denomination. 

Religious Denomination

But the word “religious denomination” is not described under the Indian Constitution. However, the Supreme Court had attempted to give a broad definition of this term. Supreme Court had defined religious denomination as “a religious sect or body having common faith and organisation and designated by a distinctive name”.

And one of the landmark cases dealing with religious denomination was the S.P. Mittal case. In this case, the Apex Court after considering all the aspects refused to accept sage Sri Aurobindo as a “religious denomination” and further held that neither the teachings of Sri Aurobindo constitute to be a “religion”. And thus, it cannot seek protection under Article 25 and 26 of the Indian constitution

In the case of Bramchari Sidheshwar Bhai v. State of West Bengal, the Ramkrishna mission wished to be declared to be a non-Hindu minority. But t the same time they wanted that in matters relating to marriage and inheritance, members of the committee to be treated as Hindus, but in a religious sense to be recognized as non-Hindus. In this case, the Apex court found that the said community passes the test of being considered as a religious denomination. And thus, declaring the community to be a religious denomination, held that the community can seek the protection of Article 26 of the Indian Constitution.

Article 27 

Article 27 of the Indian constitution lay focuses on the secular character of a state. And this article establishes that no person for the purpose of promotion or maintenance of any religion or religious denomination is forced or compelled to pay any tax. And the money which is collected by the state in the form of tax must not be spent for the purpose of promotion of any religion. And the reason behind the same principle is that being a secular state and also granting the fundamental right to freedom of religion to individuals and groups, it is completely against the principles of the Constitution to spend out any money from the public funds for the purpose of promotion or maintenance of any particular religion or religious denomination. 

And the landmark judgment that dealt with the aspect of tax was Rati Lal v. the State of Bombay. In this case, the Apex Court differentiated between a tax and a fee. Further, the honourable court held that tax is in nature of a compulsory exaction of money for a public purpose by a public authority. And such imposition is made only in the interest of the general public. In order to meet the general expenses of the state without reference to any special advantage conferred upon the taxpayer. And the court further established that the fee may be for public interest but for special service rendered for the benefit of those from whom the payment is demanded. And the court also established a test to determine whether a levy is a fee. And as per the same test, it must be established whether the primary and essential purpose behind charging the fee is to provide service to a specified class or area. And ultimately or indirectly, the state must not be benefitted by the same. 

Article 28

Article 28(1) of the Indian constitution establishes that no educational institutions, maintained out of state funds, should impart any religious instruction. Under clause 1(3) no person attending any educational institution recognized by the state or receiving aid out of state funds shall be required to take part in any religious worship that may be imparted in such institution or to attend any religious worship that may be conducted in such institution or to any premises attached thereto unless such person or if such person is a minor his guardian has given his consent thereto.

Restriction on the freedom of religion

The Constitution of India grants to all its citizens the fundamental right to freedom of religion. But just like all other fundamental rights, this freedom is not absolute. The freedom of religion is subject to public order, health and morality. Thus, it means no action should be done in name of freedom of religion that is against the public policy, health, or morality of the society. Further, these rights are subject to some reasonable restrictions as dealt with under clause (2) of Article 19 of the Indian Constitution. If any religious practice tends to violate public order, morality, or health or a policy of the state intending to uphold the integrity and sovereignty of the nation, then such religious practice should be given up in the greater interest of people and the nation as a whole.

Some examples of valid restrictions are as follows:

  • Cow slaughter or indecent exposure of one’s person in a public place is prohibited as under Section 34 of the Police Act.
  • Untouchability or trafficking of humans in name of religion is completely prohibited.
  • Forcibly converting one’s religion is a punishable offence. 

It is also the duty of the state to ensure that, the freedom to practice religion does not affect the exercise of this freedom by others. 


India, a highly religious nation is a very religiously diverse nation. And the Constitution of India declares the nation to be a secular state, which treats equally all the religions and religious denominations equally. The Constitution of India embodies a positive concept of secularism. And in furtherance of the same status, the constitution of India grants to all its citizens the fundamental right to freedom of religion. And the said rights are dealt with under Article 25 – 28 of the Constitution. But the freedom granted under these sections is not absolute and is subject to reasonable restrictions on the grounds of public policy, health, and morality. In 73 years of independent India history, several cases have been raised, questioning different aspects and interpretations of the freedom of religion. And the Supreme Court had also succeeded in dealing with the same with great excellence and justice and had upheld the basic structure of the constitution and integrity and sovereignty of the nation.

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