This article is written by Sachi Ashok Bhiwgade, B.A.LLB (Hons.) student of Hidayatullah National Law University, Raipur. This article gives an overview of the fundamental right of freedom of religion guaranteed by the Constitution of India under Article 25 to Article 28.
Table of Contents
Introduction
“India has a great heritage and it is a model for religious harmony where people of different religions live peacefully and in harmony.”
-Dalai Lama
Religion is a matter of belief or faith. The constitution of India recognizes the fact, how important religion is in the life of people of India and hence, provides for the right to freedom of religion under Articles 25 to Article 28. The Constitution of India envisages a secular model and provides that every person has the right and freedom to choose and practice his or her religion. In a number of cases, the Apex Court has held that secularism is the basic structure of the Constitution, the most important being the Kesavananda Bharati case. People in India mainly practice Islam, Hinduism, Jainism, Buddhism, Sikhism and, Christianity. In India, there are religion-specific laws and Goa is the only state to have a Uniform Civil Code known as the Goa Civil Code. The Constitution supports religious harmony which means the people of India show love and affection to different religions of the country.
What is Secularism?
Secularism means developing, understanding and respect for different religions. It is believed that the word ‘Secularism’ has its origin in late medieval Europe. In 1948, during the constituent assembly debate, a demand was made by the KT Shah to include the word ‘Secular’ in the Preamble to the Constitution. The members of the assembly though agreed to the secular nature of the constitution but it was not incorporated in the Preamble. Later, in 1976 the Indira Gandhi government enacted the 42nd Amendment Act and the word ‘Secular’ was added to the Preamble. The 42nd Amendment Act also known as the ‘Mini Constitution’, is the most comprehensive amendment to the Constitution.
In the much-disputed Ayodhya case, it was held by the apex court that the constitution postulates equality of all faiths. Through Tolerance and mutual co-existence, the secular commitment of our country and its people can be nourished.
S. R. Bommai v. Union of India, AIR 1994 SC 1918
The 9 judge bench, in this case, ruled that Secularism is the basic feature of the Constitution of India. It also observed that religion and politics cannot be mixed together. If the State follows unsecular policies or courses of action then it acts contrary to the constitutional mandate. In a State, all are equal and should be treated equally. Religion has no place in the matters of State. Freedom of religion as a fundamental right is guaranteed to all persons in India but from the point of view of the State, religion, faith, and belief are immaterial.
Constitutional Provisions relating to Right of Religion
- Article 25: Freedom of conscience and free profession, practice and propagation of religion.
- Article 26: Freedom to manage religious affairs.
- Article 27: Freedom as to payment of taxes for promotion of any particular religion.
- Article 28: Freedom as to attendance at religious instruction or religious worship in certain educational institutions.
Freedom of Religion in India (Art. 25)
Article 25 of the Constitution guarantees freedom of religion to all persons in India. It provides that all persons in India, subject to public order, morality, health, and other provisions:
- Are equally entitled to freedom of conscience, and
- Have the right to freely profess, practice and propagate religion.
It further provides that this article shall not affect any existing law and shall not prevent the state from making any law relating to:
- Regulation or restriction of any economic, financial, political, or any secular activity associated with religious practice.
- Providing social welfare and reform.
- Opening of Hindu religious institutions of public character for all the classes and sections of the Hindus.
The Supreme Court in Tilkayat Shri Govindlalji Maharaj V. State of Rajasthan held that the test to determine the question in deciding what is an integral part of a religion is whether it is regarded as integral by the community following that religion or not.
Doctrine or Belief?
In Hasan Ali v. Mansoor Ali the Bombay High Court held that Articles 25 and Article 26 not only prevents doctrines or beliefs of religion but also the acts done in pursuance of religion. It thus guarantees ceremonies, modes of worship, rituals, observances, etc which are an integral part of religion. What is the essential or integral part of a religion has to be determined in the light of the doctrines and practices that are regarded by the community as a part of their religion and also must be included in them.
The Supreme Court in Commissioner, Hindu Religious Endowments, Madras v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt ruled that there is no doubt that religion finds its basis in the system of doctrines regarded by those who profess that religion, but it will not be correct to say religion is nothing but a doctrine or belief.
In the case of SP Mittal v. Union of India, the court held that Religion need not be theistic. It is not merely an opinion, doctrine or belief but has an outward expression in the act as well.
What is religion?
The German philosopher Immanuel Kant defines religion as “Religion is the recognition of all our duties as divine commands”.
Milton Yinger, American sociologist defines religion as “a system of beliefs and practices by means of which a group of people struggles with the ultimate problems of human life”.
The constitution does not define the term ‘religion’ and ‘matters of religion’. Hence, It is left to the Supreme Court to determine the judicial meaning of these terms.
A.S. Narayan v. State of Andhra Pradesh, AIR 1996 SC 1765
In this case, Justice Hansaria observed that “our constitution makers had used the word “religion” in these two articles (Articles 25 and 26) in the sense conveyed by the word ‘dharma’.” He further explained the difference between religion and dharma as “religion is enriched by visionary methodology and theology, whereas dharma blooms in the realm of direct experience. Religion contributes to the changing phases of a culture; dharma enhances the beauty of spirituality. Religion may inspire one to build a fragile, mortal home for God; dharma helps one to recognize the immortal shrine in the heart.”
The National Anthem Case
Bijoe Emmanuel v. State of Kerala, (Popularly known as the national anthem case.)
The facts of this case were that three children belonging to a sect (Jehovah’s witness) worshipped only Jehovah (the creator) and refused to sing the national anthem “Jana Gana Mana”. According to these, children singing Jana Gana Mana was against the tenets of their religious faith which did not allow them to sing the national anthem. These children stood up respectfully in silence daily for the national anthem but refused to sing because of their honest belief. A Commission was appointed to enquire about the matter. In the report, the Commission stated that these children were ‘law-abiding’ and did not show any disrespect. However, the headmistress under the instruction of the Dy. Inspector of Schools expelled the students.
The Supreme Court held that the action of the headmistress of expelling the children from school for not singing the national anthem was violative of their freedom of religion. The fundamental rights guaranteed under Article 19(1)(a) and Article 25(1) has been infringed. It further held that there is no provision of law which compels or obligates anyone to sing the national anthem, it is also not disrespectful if a person respectfully stands but does not sing the national anthem.
In another case of the Supreme Court, Shyam Narayan Chouksey v. Union of India It was averred in the petition filed before the Supreme Court that every person must show respect to the national anthem. The Supreme Court held that every citizen or persons are bound to show respect to the National Anthem of India, whenever played or sung on specific occasions the only exemption is granted to disabled people. It further held that playing of the national anthem in cinema halls is not mandatory but optional and directory.
Article 51A also recognizes the duty of every citizen to show respect to our national anthem. It states that every citizen of India is duty-bound to respect its ideals, institutions, National flag, National anthem, etc.
Telecast of serial: Ramesh v. Union of India, (1988) 1 SCC 668
The facts of this case were: The serial ‘Tamas’ was based upon a book that already screened four episodes that portray the communal violence between Hindu-Muslim and Sikh-Muslim and the tension, killing and looting that took place. A writ petition was filed under Article 32 of the Constitution for the issuance of the writ of prohibition or other appropriate writ or order restraining the further screening of the serial ‘Tamas’ and enforcing the fundamental rights of the petitioner under Article 21 and Article 25 and to declare the screening of Tamas as violative of Section 5B of the Cinematograph Act, 1952.
The Court while dismissing the petition held that there is no violation of Article 21 and 25 and the respondent has not acted improperly. The author tries to bring attention to the past history of our country and to emphasize the wish of the people to live in harmony and rise above religious barriers. It further held that when the serial is viewed in its entirety it creates an impression of peace and co-existence and that the people are not likely to be carried away by the violence shown in it.
Appointment of Non-Brahmins as Pujari: N. Aditya v. Travancore Devaswom Board
The issue, in this case, was whether the appointment of a non-Malayala Brahmin as ‘Santhikaran’ (Priest or Pujari) of the Kongorpilly Neerikode Siva Temple at Kerala is violative of the provisions of the constitution.
The court held as long as a person is well versed, properly qualified and trained to perform the puja in an appropriate manner for the worship of the deity, such a person can be appointed as ‘Santhikaran’ despite his caste. In the present case, it was also observed that the temple is not a denomination where there is a specific form of worship is required.
Bhuri v. State of J. & K., AIR 1997 SC 1711
In this case, the issue related to the constitutional validity of the Jammu and Kashmir Mata Vaishno Devi Shrine Act, 1988 which abolished the right of performing Pooja. The Act took over the administration, governance, management of the shrine fund and vested it with the Board constituted under the Act (Shri Mata Vaishno Devi Shrine Board). The Supreme Court upheld the Act as constitutionally valid and observed that right to pooja is a customary right and the state by enacting a legislation can abolish it. The rights under Article 26 is not absolute but is subject to certain limitation.
Acquisition of place of worship by State
The Supreme Court in the case of M Ismail Faruqi v. Union of India held that the mosque is not an essential part of Islam. Namaz (Prayer) can be offered by the Muslims anywhere, in the open as well and it is not necessary to be offered only in a mosque.
In M Siddiq (D) Thr. Lrs v. Mahant Suresh Das Supreme Court held that the State has the sovereign or prerogative power to acquire the property. The state also has the power to acquire places of worship such as mosque, church, temple, etc and the acquisition of places of worship per se is not violative of Articles 25 and 26. However, the acquisition of place of worship which is significant and essential for the religion and if the extinction of such place breaches their (persons belonging to that religion) right to practice religion then the acquisition of such places cannot be permitted.
Shifting of property connected with religion
In the case of Gulam Abbas v. State of UP, there was a dispute between the Shias and Sunnis regarding the performing of the religious rites by the Shias on a certain plot of land of mohalla Doshipura in Varanasi. In order to avoid clashes between these communities and to find a permanent solution to this problem, the Supreme Court appointed a 7 member committee with Divisional Commission as the Chairman and 3 members of the Shia sect and 3 members of the Sunni sect. The committee made a recommendation of shifting of the graves of Shias to separate the places of worship of the Shia and Sunni sect. The Sunni sect challenged these recommendations as violative of their fundamental right of freedom of religion under Article 25 and 26. The Court rejected these contentions.
The Supreme Court held that the fundamental right guaranteed under Article 25 and 26 is not absolute and is subject to public order and if the court is of the opinion that shifting of graves is in the interest of the public then the consent of the parties is irrelevant even though the Muslim personal law is against shifting of graves.
Triple Talaq: Shayara Bano v. Union of India
Talaq-e-biddat known as triple talaq, a kind of divorce through which a Muslim man could divorce his wife by uttering the words talaq talaq talaq. A 5 judges bench of the Supreme Court heard the controversial Triple Talaq case. The main issue, in this case, was whether the practice of Talaq-e-biddat (triple talaq) is a matter of faith to the Muslims and whether it is constituent to their personal law. By a 3:2 majority, the court ruled that the practice of Talaq-e-biddat is illegal and unconstitutional. The court also held that, an injunction would continue to bar the Muslim male from practicing triple talaq till a legislation is enacted for that purpose.
To which the government formulated the Muslim Women (Protection of Rights on Marriage) Bill, 2017. Later, Muslim Women (Protection of Rights on Marriage) Ordinance, 2018 was passed. As the 2018 ordinance was about to expire, the government formulated a fresh bill in 2019 and an ordinance was passed for the same in 2019 which was approved by the President and finally the Muslim Women (Protection of Rights on Marriage) Act, 2019 came into force on July 31st, 2019 with an objective “to protect the rights of the married Muslim women and prohibit the Muslim male to divorce the wife by pronouncing talaq”.
Noise pollution in the name of religion
The Supreme Court in Church of God (Full Gospel) v. K.K.R. Majestic Colony Welfare Association held that nowhere in any religion, it is mentioned that prayers should be performed through the beating of drums or through voice amplifiers which disturbs the peace and tranquility of others. If there is any such practice, it should be done without adversely affecting the rights of others as well as that of not being disturbed in their activities.
In the case of Maulana Mufti v.State of West Bengal restrictions were placed on the use of microphones before 7 am. It was held by the Calcutta High Court that Azan is an integral and necessary part of the religion but certainly not the use of microphones. It violates the basic human and fundamental right of the citizens to sleep and leisure.
Restrictions on Freedom of Religion
The Supreme Court in In re, Noise Pollution case, has given certain directions to be followed to control noise pollution in the name of religion:
- Firecrackers: A complete ban on sound-emitting firecrackers from 10 pm to 6 am.
- Loudspeakers: Restriction on the beating of drums, tom-tom, blowing of trumpets, or any use of any sound amplifier between 10 pm to 6 am except in public emergencies.
- Generally: A provision shall be made by the State to confiscate and seize loudspeakers and such other sound amplifiers or equipment that create noise beyond the limit prescribed.
Freedom to manage religious affairs (Art. 26)
Article 26 (subject to public order, morality, and health) confers a right on every religious denomination or any section of such religious denomination of:
- Establishing and maintaining institutions for religious and charitable purposes;
- Managing its affair with regard to religion;
- Owing and acquiring property (movable and immovable);
- Administering the property in accordance with the law.
Religious denomination
The word ‘religious denomination’ is not defined in the constitution. The word ‘denomination’ came to be considered by the Supreme Court in the case of Commissioner, Hindu Religious endowment Madras v. Shri Laxmindra Thirtha Swamiar of Shri Shirur Mutt. In this case, the meaning of ‘Denomination’ was culled out from the Oxford dictionary, “A collection of individuals classed together under the same name, a religious sect or body having a common faith and organization designated by a distinctive name”.
Bramchari Sidheshwar Bhai v. State of West Bengal
In this case, The Ram Krishna Mission wanted to declare itself as a non- Hindu minority where its members were to be treated as Hindus in the matter of marriage and inheritance but in the religious sense to be recognized as non-Hindus. This would certainly mean that they are given the status of legal Hindus but religious non- Hindus, similar to Sikhs and Buddhists. To this, the Supreme Court ruled that it cannot be claimed by the followers of Ram Krishna that they belong to the minority of the Ram Krishna Religion. Ram Krishna Religion is not distinct and separate from the Hindu religion. It is not a minority based upon religion. Hence, it cannot claim the fundamental right under Article 30 (1) to establish and administer institutions of education by Ram Krishna Mission.
Right to establish and maintain-institutions for religious and charitable purposes: Azeez Basha v. Union of India
In this case, certain amendments were made in the year 1951 and 1965 to the Aligarh Muslim University Act, 1920. These amendments were challenged by the petitioner on the ground that:
- They infringe on the fundamental right under Article 30 to establish and administer educational institutions.
- Rights of the Muslim minority under Article 25, 26, 29 were violated.
It was held by the Supreme Court that prior to 1920 there was nothing that could prevent Muslim minorities from establishing universities. The Aligarh Muslim University was established under the legislation (Aligarh Muslim University Act,1920) and therefore cannot claim that the university was established by the Muslim Community as it was brought into existence by the central legislation and not by the Muslim minority.
Right to manage its own affairs in the ‘Matters of Religion’
Matter of religion includes religious practices, rituals, observances, ceremonies, mode and manner of worship, etc., regarded as the essential and integral part of the religion. For instance, in Acharaj Singh v. State of Bihar it was held that, if Bhog offered to the deity is a well-established practice of that religious institution, such a practice should be regarded as a part of that religion.
Prevention of exCommunication
Ex-communication means the exclusion or expulsion of a person from a community or group of which he or she was a member.
Saifuddin Saheb v. State of Bombay AIR 1962 SC 853
In this case, the State of Bombay passed the Bombay Prevention of Excommunication Act, 1949. Section 3 of this Act prevented the excommunication of the members of any community. The petitioner (religious head of the Dawoodi-Bohra Community) challenged the Act on the ground of violation of their fundamental rights guaranteed under Article 25 and 26.
The Court observed that the power of Excommunication by the head formed the essential affairs of the community and the Act clearly violated the fundamental right under Article 25(1) of the Constitution. The Supreme Court held that the Act was violative of Articles 25 and 26 and was therefore void.
Taking over management of secular activities of the temple: Bira Kishore Dev v. State of Orissa, AIR 1964 SC 1501
In this case, The validity of the Shri Jagannath Temple Act, 1954 was challenged on the ground that the Act is discriminatory in nature and violates Article 26 (d) of the Constitution. It was contended by the petitioner (Raja of Puri) that the temple was his private property and he had the sole right over management as well as superintendence of the temple. The Act took away the sole management of the temple from the appellant and vested it with the Committee. Dismissing the appeal the Supreme Court held that there was no violation of the fundamental right of freedom of religion of the petitioner and the Act only dealt with the secular management of the institution.
Breaking of coconuts and performing Pooja, chanting Mantras and Sutras in State functions: Atheist Society of India v. Government of A.P., AIR 1992 AP 310
The petitioner (Atheist Society of India), in this case, prayed for the issuance of writ of Mandamus to direct the Government of Andhra Pradesh to give instruction to all the concerned departments to forbid the performance of religious practices such as breaking of coconuts, chanting mantras, etc at the State function on the ground that the performing of these practices is against secular policy of the constitution. The petitioner’s prayers were rejected by the court on the grounds that it infringes upon the right to religion and if permitted it will be against the principle of secularism, which is the basic structure of our Constitution. It would lead to depriving of the right to freedom of thought, faith, worship.
Right to administer property owned by the denomination
Article 26 (d) says that a religious denomination has the right to administer its own property but it should be in accordance with Law. In Durgah Committee Ajmer v. Syed Hussain Ali the Supreme Court observed that if the religious denomination never had the right to administer property or if it has lost its right then such right cannot be created under Article 26 and therefore cannot be invoked.
The Supreme Court in the case of State of Rajasthan v. Sajjanlal Panjawat observed that even though the state has the power to administer or regulate the properties of a trust, but it cannot by law take away the right to administer such property and vest it in such other authority that does not even comprise the denomination. This would certainly amount to a violation of Article 26(d) of the Constitution.
Limitation of the Right
The right to religion under Article 26 is subject to certain limitations and not absolute and unfettered. If any religious practice is in contravention to any public order, morality or health then such religious practice cannot claim the protection of the state.
Freedom from taxes for promotion of any particular religion (Art. 27)
Article 27 of the Constitution prevents a person from being compelled to pay any taxes which are meant for the payment of the costs incurred for the promotion or maintenance of any religion or religious denomination.
In the case of Commissioner, Hindu Religious Endowments, Madras v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt, the Madras legislature enacted the Madras Hindu Religious and Charitable Endowment Act, 1951 and contributions were levied under the Act. It was contended by the petitioner that the contributions levied are taxes and not a fee and the state of madras is not competent to enact such a provision. It was held by the Supreme Court that though the contribution levied was tax but the object of it was for the proper administration of the religious institution.
Prohibition of religious instruction in the State-aided Institutions (Art. 28)
Article 28 prohibits:
- Providing religious instructions in any educational institutions that are maintained wholly out of the state funds.
- The above shall not apply to those educational institutions administered by the states but established under endowment or trust requiring religious instruction to be imparted in such institution.
- Any person attending state recognized or state-funded educational institution is not required to take part in religious instruction or attend any workshop conducted in such an institution or premises of such educational institution.
Teaching of Guru-Nanak: D.A.V. College v. State of Punjab, (1971) 2 SCC 368
In this case, Section 4 of the Guru Nanak University (Amritsar) Act, 1969 which provided that the state shall make provisions for the study of life and teachings of Guru Nanak Devji was questioned as being violative of Article 28 of the Constitution. The question that arose was that the Guru Nanak University is wholly maintained out of state funds and Section 4 infringes Article 28. The court rejecting this held that Section 4 provides for the academic study of the life and teachings of Guru Nanak and this cannot be considered as religious instruction.
Education for value development based on all religions: Aruna Roy v. Union of India, (2002) 7 SCC 368.
In this case, a PIL was filed under Article 32 wherein it was contended by the petitioner that the National Curriculum Framework for School Education (NCFSE) which was published by the National Council of Educational Research and Training is violative of the provisions of the constitution. It was also contended that it was anti-secular and was also without the consultation of the Central Advisory Board of Education and hence it should be set aside. NCFSE provided education for value development relating to basic human values, social justice, non-violence, self-discipline, compassion, etc. The court ruled that there is no violation of Article 28 and there is also no prohibition to study religious philosophy for having value-based life in a society.
Conclusion
India is the most diverse country with respect to religion. Being a secular country it does not have its own religion and every citizen has the right to choose, practice, propagate and even change his or her religion. However, these rights are not absolute but subject to certain restrictions provided by the constitution. No person in the name of religion can do any act that is opposed to the public policy or creating any kind of disturbances or intolerance among the people of India.
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