Articles

Right To Freedom Of Religion (Article 25-28)

India is abode of various religions. Hinduism, Buddhism, Jainism and Sikhism have originated in India. There are also followers of Islam, Christianity and other religions . Even within these religions there are different denominations. For example, within Hinduism there are Shaivism, Vaishnavism etc. Indian Constitution grants every person, irrespective of whether he is citizen of India or not,  right to freedom of religion, which have been dealt under Article 25 -28.

What is nature of Indian Secularism ?

The word “secular” has been added in the preamble vide 42nd Amendment.  But Indian secularism is not similar to secularism as existing in the United States and other western countries, where there is complete separation of state and religion. Indian secularism has to be understood in light of Articles 25-28 of Indian Constitution.  Indian State grants right to freedom of religion but at the same time regulates the secular aspects of the religion.  In S R Bommai Vs Union of India (1994 AIR 1918) the Supreme Court analysed Indian secularism in detail. The Supreme Court observed that under the Constitution encroachment of religion into secular activity is prohibited. The freedom of religion allows citizen to pursue spiritual life which is different from secular life.

What are rights to profess, practice and propagate religion under Article 25 ?

Article 25 grants right to freedom of conscience and right to profess, practice and progate religion of   his/her choice to every person irrespective of whether he is citizen or non-citizen.

Every person, whether he is a citizen of India or not, has freedom of conscience and right to profess, practice and propagate religion. But this right is not absolute but subject to public order, morality and health.

Although the state cannot interfere with right to profess, practice and propagate religion, the State can regulate or restrict any economic, financial, political or other secular aspect. State can also make laws in respect of providing for social welfare and reform and throwing open Hindu Religious institutions of public character to all classes and sections of Hindus.  

The term Hindu for purposes of this Article includes Sikh, Jain or Buddhist religion and Hindu religious institutions include Sikh, Buddhist and Jain Religious Institutions.

This Article makes it clear that wearing and carrying kirpan is part of professional of Sikh Religion.

Essential Part of Religion

Article 25 only protects essential and integral part of religion. Other aspects i.e economic, financial, political and secular aspect can be regulated by the State. But is an uphill task to segregate economic, financial, political or secular aspect from religion as religion has pervasive impact on social life of persons.    Supreme Court in Govindlal Vs. State of Rajasthan 1963 AIR 1638   has held that whenever a claim is made on behalf of an individual citizen that the impugned statute contravenes his fundamental right to practice religion or a claim is made on behalf of the denomination that the fundamental right guaranteed to it to manage its own affairs in matter of religion is contravened, it is necessary to consider whether the practice in question is religious or the affairs in respect of which the right of management is alleged to have been contravened are affairs in matters of religion, then of course, the rights guaranteed by Aer 25 (1) and Art 26 (b) cannot be contravened.

In Md Hanif Quraishi Vs. State of Bihar (1958 AIR 731) the Supreme Court held that slaughtering of cows on Bakr-Eid is not essential or integral practice of Islam.

In S. P. Mittal Vs. Union of India (1983 SCR (1) 729) the Supreme Court held that teaching of Sri Aurovindo constituted philosophy and not a religion.

In Bijoe Emmamuel Vs. Union of India  (1987 AIR 748) some students had been expelled by school authorities for not singing National Anthem. The students had claimed that their religion do not allow to sing national anthems. The Supreme Court upheld that student’s right to freedom of religion.

In Acharya jagdishwaranand Avadhuta Vs. Commr. of Police (1984 AIR 512), the Supreme Court held that tandav dance is not essential part of Anand Marg.

In Indian Young Lawyers Association & Ors. Vs. State of Kerala  & Ors.((2019) 11 SCC 1) (Sabrimala Case) the Supreme Court held that women belonging to age group of  10 -50 years can not be barred to worship at Sabrimala Temple.

Right to propagation does not include right to conversion

The Supreme Court in Re. Stainislaus Vs. State of M.P  ((1977) 1 SCC 677)  has held that right to propagate one’s religion did not grant the right to convert another person to one’s own religion, but to transmit or spread one’s religion by and exposition of its tenets.

What are rights to manage religious affairs under Article 26 ?

While Article 25 talks about right of individuals, Article 26 talks about right of religious denomination or any section thereof.

Religious Denomination

Indian Constitution uses more inclusive term religious denomination or any section thereof. Thus not only religion but a denomination of a religion or a section thereof is also eligible to enjoy right granted by Article 26.

Test of  determine religious denomination has been developed by the Supreme Court in the Commissioner, Hindu Religious Endowmwnts, Madras  Vs. Sri Lakshmindra Thirth Swamiar of Sri Shirur Mutt (1954 AIR 282) , The Durgah Committee, Ajmer & Anr. v, Syed Hussain Ali & Ors  (1961 AIR 1402 ) and S. P Mittal  Vs. Union of India  (1983 SCR (1) 729).

The Supreme Court in S. P Mittal  has observed that expression “religious denomination” must fulfil three conditions. There should exist collection of individual having common faith. There should exist common orgnisation. There should exist distinctive name.

Every religious denomination has right to establish and maintain institution for religious and charitable purpose. Every religious denomination has right to own affairs in matter of religion.  Every religious denomination has right to own movable and immovable property. Every denomination has right to administer property in accordance with law.

What are rights against payment of taxes for any religion ?

Article 27 prohibits payment of taxes which can be used in payment of expenses for promotion or maintenance of any particular religion.

Indian judiciary has differentiated between taxes and fee. Tax is a compulsory exaction of money by a public authority for public purposes the payment of which is imposed by law. Tax is imposition for public purposes to meet the general expenses of State without reference to any special benefit to be conferred on the payers of taxes. The taxes collected are merged for in general revenue of state. On the other hand fee is levied for some services rendered or some special work done for the benefit of those from whom payment is demanded.

While Tax can not be imposed for promotion for any religion , fee can be imposed for administrative purposes.

The Orissa Hindu Religious Endowments Act imposed certain annual contribution on temples and math for meeting expenses of the commissioner.  The Supreme Court in Jaganath Ramanuj  Das Vs. State of Orissa  (1954 AIR 400)   held that contribution has to be regarded as fee not tax.

The Supreme Court in Prafull Goradia Vs. Union of India ( 2011) 2 SCC 568 held that subsidy given to Haj Pilgrims under Haj Committee Act, 2002 , being insignificant sum is not in violation of Article 27.

What is right to freedom from attendance at religious instruction in educational institutions ?

Article 28 identifies three categories  of educational institutions:

  1. Educational institution wholly maintained by the State Funds
  2. Educational institution which is administered by the State but has been established under any endowment or trust
  3. Educational Institutions recogonised by State or receiving aid out of State

In the first category of educational institution, religious instruction is totally prohibited. In education institutions falling under second category, religious instruction is permitted. In educations institutions falling under third category, no one can be forced to participate in religious instruction but by consent they can participate. In case such person is minor, consent has to be taken from guardian.

In DAV College Vs. State of Punjab (1971) 2 SCC 261 the Supreme Court held that Guru Nanak University Act ,which enjoined the State to make provision for the study and research on the life and teaching of Guru Nanak  was not violative of Article 28 as the same was to encourage academic study.

In Aruna Roy vs Union of India (2002) 7 SCC 368, education for value development in National Curriculum developed by NCERT has been challenged before the Supreme Court on the ground that it violates Article 28. The Supreme Court held that there is no prohibition for having study of religious philosophy and culture, particularly for having value based social life in a society which is degenerating for power, post or property.

________________________________________

Mukesh Kumar Suman is an advocate and legal author based at Delhi. He regularly appears before various Judicial Forums including NCLT, NCLAT, High Courts and the Supreme Court. He can be approached at mukesh_suman@outlook.com or +91 9717864570.

Mukesh Kumar Suman

Mukesh Kumar Suman

Mukesh Kumar Suman is an advocate based at Delhi. He has rich experience in civil, criminal, commercial, arbitration and corporate insolvency matters. He regularly appears before District Courts, NCLT, NCLAT, High Court and the Supreme Court. He can be approached at mukesh_suman@outlook.com or +91 9717864570.

Leave a Reply

Your email address will not be published. Required fields are marked *