FREEDOM OF RELIGION UNDER CONSTITUTION OF INDIA

Submitted By: Submitted To:

Tushar Joshi Mr. Azim Pathan

Roll No. 160 Hidayatullah National Law University

B.A. LL.B (Hons) Raipur

Section - B 24-10-2011

Semester - I
 Freedom of Religion under Constitution Of India

DECLARATION

I, Tushar Joshi, hereby declare that, the project work entitled, „Freedom of
Religion under Constitution of India‟ submitted to H.N.L.U., Raipur is record of an
original work done by me under the able guidance if Mr. Azim Pathan, Faculty
Member, H.N.L.U., Raipur.

Tushar Joshi

Batch XI

Roll No. 160

24/10/2011

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 Freedom of Religion under Constitution Of India

Acknowledgements

Thanks to the Almighty who gave me the strength to accomplish the project with sheer hard
work and honesty. This research venture has been made possible due to the generous co-
operation of various persons. To list them all is not practicable, even to repay them in words is
beyond the domain of my lexicon.
May I observe the protocol to show my deep gratitude to the venerated Faculty-in-charge Mr.
Azim Pathan, for his kind gesture in allotting me such a wonderful and elucidating research
topic.

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 Freedom of Religion under Constitution Of India

TABLE OF CONTENTS

I) Declaration………………………………………………….1

II) Acknowledegements………………………………………..2

III) List Of Acronyms…………………………………………..4

IV) Scope, Objective and Research Methodology…………….5

V) Introduction…………………………………………………6

VI) Constitutional Assembly Debates………………………….10

VII) Article 25…………………………………………………….13

VIII) Article 26…………………………………………………….17

IX) Article 27…………………………………………………….21

X) Article 28……………………………………………………..23

XI) Conclusion……………………………………………………26

XII) Bibliography………………………………………………….27

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 Freedom of Religion under Constitution Of India

List Of Acronyms:
A.I.R. – All India Reporter

S.C.C. - Supreme Court Cases

S.C.R. – Supreme Court Reporter

C.L.R. – Commonwealth Law Reports

S.C. – Supreme Court

List Of Abbreviations:
Subs. – Substituted

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 Freedom of Religion under Constitution Of India

Scope Of Study:

The scope of my study includes the Constitutional Assembly Debates and the views of our
constitution makers in the matters of religion and drawing inferences from them. There is a
discussion on how the religion and secularism has been defined and how they have been
interpreted by the judiciary. The articles which define freedom of religion under Constitution of
India, i.e., Articles 25,26,27 and 28 have been discussed in respect to their bare provisions and
various interpretations by the judiciary in various cases.

Objectives of Study:
The basic objective of my study would be to discuss various judgments so that they promote a
better understanding of the topic. The bare provisions of the articles would be seen through the
eyes of the judiciary.

Research Methodology:
This project work is descriptive & analytical in approach. It is largely based on the analysis of
the judgements pronounced by the judiciary regarding „Freedom of Religion‟ in the past years.
Books & other references as guided by faculty of Legal Methods are primarily helpful for the
completion of this project.

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 Freedom of Religion under Constitution Of India

► Introduction:

“The state does not impose religion but rather gives space to religions with a responsibility
toward civil society, and therefore it allows these religions to be factors in building up society.”

Joseph Ratzinger1

The Oxford Dictionary2 defines „religion‟ as the belief in superhuman controlling power, esp. a
personal God or gods entitled to obedience and particular system of faith and worship. The
concept of religion being a wide concept, to each person the meaning of religion is different.
While there are scholars like Clifford Geertz, who simply called it a "cultural system" there are
others like Talal Asad who categorized religion as "an anthropological category." The
word religion is sometimes used interchangeably with faith or belief system, but religion differs
from private belief in that it has a public aspect. While the concept of religion and various
religions spread across the world through various means of social and cultural diffusion, the
concept of allowing a person follow his own religion. In Sanskrit literature the religion is called
„dharma‟ or the duties which a man must perform in his life. Thus emphasis is laid on
performing certain duties which are obligatory and living a life in accordance with established
principles of law. In Arabic there is „mazhab‟ (‫ )مذاهب‬or the schools of religious thoughts
established by Prophet Mohammad and his various contemporaries. In fact the very concept of
religion lies in helping a human being lead a virtuous life instead of living an animal existence.
This is where the difference lies between and human and an animal. The concept of religion
includes letting a person follow his or her religion without any compulsion or constraint. This
concept is more popularly known as the „Freedom of Religion‟. The basic idea can be derived
from the teachings of the religions itself. As “no religion preaches violence or hatred among
fellow beings. All religions are meant or rather expected to nourish mutual love and brotherhood

1
More popularly known as Pope Benedict XIV.
2
Reprint Edition 2006 published by Oxford university Press Inc., New York

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 Freedom of Religion under Constitution Of India

among human beings. No one can be permitted to unleash violence in the name of
religion. 3,4”

Freedom of Religion is an integral part of the Fundamental Rights granted to us by the

Constitution makers. These rights have been granted under the Articles 25, 26, 27 and 28 of the
Indian Constitution. The basic idea behind the provision of these rights were the establishment of
a secular state which was later recognized by the 42nd Amendment to the Indian Constitution
which inserted the word „secular‟ to the preamble of the Constitution. The preamble now aims at
making India a SOVEREIGN SOCIALIST SECULAR DEMOCRATIC REPUBLIC5. There is
no provision for an established religion of the country. Hence, Indian state observes an attitude
of impartiality and neutrality towards all religions. The Freedom of Religion is often treated as a
universal human right and has been declared so under the Article 18 of the Universal declaration
of Human rights6. It reads as follows:

“Everyone has the right to freedom of thought, conscience and religion; this right includes
freedom to change his religion or belief, and freedom, either alone or in community with
others and in public or private, to manifest his religion or belief in teaching, practice, worship
and observance”

Now the question which arises in the mind of thinkers is that what can be defined as a religion.
Referring to Justice Mukherjea‟s observation in the case of The Commissioner, Hindu Religious
Endowments, Madras vs. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt 7 “The word
"religion" has not been defined in the Constitution and it is a term which is hardly susceptible of
any rigid definition. In an American case (Vide Davis v. Benson 8), it has been said "that the term
'religion' has reference to one's views of his relation to his Creator and to the obligations they
impose of reverence for His Being and character and of obedience to His will. It is often

3
This judgment was given in the famous Marad Massacre case by the additional sessions Judge Babu Mathew P
Joseph being citing Lokeman Shah and Others vs. State of West Bengal reported (2001)5SCC235.
4
As reported by the Hindu on 22 Jan,2011. The website was accessed on October 5,2011. The mentioned
newspaper report can be viewed at http://www.hindu.com/2011/01/22/stories/2011012253160300.htm
5
Subs. by the Constitution (Forty-second Amendment) Act, 1976, sec.2, for “SOVEREIGN DEMOCRATIC
REPUBLIC” (w.e.f. 3-1-1977)
6
India was one of the members of the Drafting Committees and is a signatory to the Universal Declaration of
Human Rights.
7
AIR1954SC282:20(1954)CLT250(SC):[1954]1SCR1005
8
133 U.S. 333 at 342.

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 Freedom of Religion under Constitution Of India

confounded with cults of form or worship of a particular sect, but is distinguishable from the
latter." We do not think that the above definition can be regarded as either precise or
adequate. Articles 25 and 26 of our Constitution are based for the most part upon article 44(2) of
the Constitution of Eire and we have great doubt whether a definition of "religion" as given
above could have been in the minds of our Constitution-makers when they framed the
Constitution. Religion is certainly a matter of faith with individuals or communities and it is not
necessarily theistic. There are well known religions in India like Buddhism and Jainism which do
not believe in God or in any Intelligent First Cause. A religion undoubtedly has its basis in a
system of beliefs or doctrines which are regarded by those who profess that religion as conducive
to their spiritual well being, but it would not be correct to say that religion is nothing else but a
doctrine of belief. A religion may not only lay down a code of ethical rules for its followers to
accept, it might prescribe rituals and observances, ceremonies and modes of worship which are
regarded as integral parts of religion, and these forms and observances might extend even to
matters of food and dress.”

The court in the case of „A.S. Narayana Deeksitulu v. State of A.P9.’ held “The word 'religion'
used in Articles 25 and 26 of the Constitution is personal to the person having faith and belief in
the religion. The religion is that which binds a man with his Cosmos, his Creator or super force.
Essentially, religion is a matter of personal faith and belief or personal relations of an individual
with what he regards as Cosmos, his Maker or his Creator which, he believes, regulates the
existence of insentient beings and the forces of the universe. Religion is not necessarily theistic.
A religion undoubtedly has its basis in a system of beliefs and doctrine which are regarded by
those who profess religion to be conducive to their spiritual well-being. Right to religion
guaranteed under Article 25 or 26 is not an absolute or unfettered right but is subject to
legislation by the State limiting or regulating any activity -- economic, financial, political or
secular which are associated with the religious belief, faith, practice or custom. They are subject
to reform as social welfare by appropriate legislation by the State.”

9
AIR1997SC1711:(1997)2SCC745:[1997]1SCR138

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 Freedom of Religion under Constitution Of India

Secularism,which is one of the pillars on which the constitution of India can be defined as “the
principle of separation between government institutions and the persons mandated to represent
the State from religious institutions and religious dignitaries10.”

In one of the most famous case in the history of Indian judiciary,S.R Bommai v. Union Of
India11, the concept of secularism was discussed at length by the judges. The court observed:

“Notwithstanding the fact that the words 'Socialist' and 'Secular' were added in the Preamble of
the Constitution in 1976 by the 42nd Amendment, the concept of Secularism was very much
embedded in our constitutional philosophy. The term 'Secular' has advisedly not been defined
presumably because it is a very elastic term not capable of a precise definition and perhaps best
left undefined. By this amendment what was implicit was made explicit.”

Justice Chinnappa Reddy12, delivering his Ambedkar Memorial Lecture on 'Indian Constitution
and Secularism' has observed that : "Indian constitutional secularism is not supportive of religion
at all but has adopted what may be termed as permissive attitude towards religion out of respect
for individual conscience and dignity. There, even while recognising the right to profess and
practise religion, etc., it has excluded all secular activities from the purview of religion and also
of practices which are repugnant to public order, morality and health and are abhorrent to human
rights and dignity, as embodied in the other fundamental rights guaranteed by the Constitution."

10
http://en.wikipedia.org/wiki/Secularism
11
(1994) 3 S.C.C. 1
12
Retired Judge, Supreme court of India

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 Freedom of Religion under Constitution Of India

►CONSTITUTIONAL ASSEMBLY DEBATES: Views of the founding

fathers of the Constitution13

The articles relating to freedom of religion i.e. Article No. 25,26,27 and 28 were the Articles
numbered from 19 to 22 respectively in the draft of the original constitution. On going through
the documents related to the Constitutional Assembly debates and discussions, we can observe
some important discussions and explanations which help us in understanding the viewpoints of
the Constitutional Makers and what in actual they wanted the Constitution to be like. In short,
these debates and discussions help us in understanding the nature and the heart and soul of the
Indian Constitution:

Mr. Tajamul Hussain, a member of the constituent assembly objected the provision of
propagation of one‟s religion and the visibility of marks of any kind which depict the religion of
an individual. These marks included the surnames of people which depicted their religion and the
caste to which they belonged. He cited the example of a Mukherjee surname meaning Bengali
Brahmin, Ojha/Jha a Brahmin, Pershad a Kayasth. He also called for uniformity of dressing to
avoid recognition of a person belonging to a particular religion or caste. Moreover he asked for
the word „private‟ be added to the Article 19 so that it looks like practicing the religion
privately. 14 This amendment of Mr. Hussain was rejected by the constituent assembly. Hence in
this way the constitution makers gave us the liberty to propagate our respective religions in a
reasonable manner. Moreover they provided us with the right to portray our faith via various
signs, symbols, surnames etc. The principle of „unity in diversity‟ was followed by disallowing a
uniform dressing code.

Shri Loknath Mishra questioned the very idea of a secular state. He raised his concerns on the
usage of word „propagate‟ in the article 19(1).15 His basic concerns were that it would destroy
the Hindu way of life. Moreover his view was that if India wants to be a secular state in the true
sense, it should recognize no religion and keep itself distanced from religious matter. He cited
examples from the Irish Constitution giving special status to religion followed by majority
13
These debates were accessed via Manupatra. These can be viewed at Manupatra under the Committee reports
section
14
As discussed in the Constituent Assembly on 3rd December,1948
15
As discussed in the Constituent Assembly on 6th December,1948

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 Freedom of Religion under Constitution Of India

population, and that of U.S.S.R. giving freedom of religious worship and restricted anti-religious
propaganda.

Shri H.V. Kamath, a member of the assembly from Central Provinces and Berar wanted the
separation of religion from the state citing the bloodshed in European nations during the middle
ages. He cited similar situation in India when King Ashoka identified himself with the Buddhist
religion which developed some sort of internecine feud between the Hindus and Buddhists,
which ultimately led to the overthrow and the banishment of Buddhism from India. Secondly he
demanded spiritual training of the people by the state.

The amendment 16 to article 19(2)(b) put forward by Mrs. G. Durgabai substituted the words
„any classes and sections of Hindu society‟ by „all classes and sections of the Hindu society‟.
Hence it helped in securing the benefits of Hindu religious institutions of public character like
temples, religious maths, and educational institutions or Pathasalas to all the sections of the
Hindu society.

During the debates Prime Minister Jawaharlal Nehru declared that secularism was an ideal to
be achieved and that establishment of a Secular State was an act of faith, an act of faith above all
for the majority community because they will have to show that they can behave towards others
in a enerous, fair and just way. When objection was sought to be voiced from certain quarters,
Pandit Laxmikantha Mitra explained :

"By Secular State, as I understand, it is meant that the State is not going to make any
discrimination whatsoever on the ground of religion or community against any person professing
any particular form of religious faith. This means in essence that no particular religion in the
State will receive any State patronage whatsoever. The State is not going to establish, patronize
or endow any particular religion to the exclusion of or in preference to others and that no citizen
in the State will have any preferential treatment or will be discriminated against simply on tile
ground that he professed a particular form of religion. In other words, in the affairs of the State
the preferring of any particular religion will not be taken into consideration at all. This I consider
to be the essence of a Secular State. At the same time we must be very careful to see that in this

16
Amendment number 609 discussed in the Constituent assembly as on 6 th December,1948

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 Freedom of Religion under Constitution Of India

land of ours we do not deny to anybody the right not only to profess or practice but also
propagate any particular religion."

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 Freedom of Religion under Constitution Of India

► ARTICLE 25: Freedom of conscience and free profession, practice and

propagation of religion

The article 25 of the Indian constitution grants freedom of conscience and free profession,
practice and propagation of religion to the citizens of India. The point to be noted is that this
freedom itself is restricted to public order, morality and health of the citizens. Along with it the
other provisions of the Article 25. Clause 2 sub-clause „a‟ of this article grants to make laws on
regulating or restricting any economic, financial, political or other secular activity which may be
associated with religious practice. On the other hand, sub-clause „b‟ provides for the social
welfare and reform of all the classes and sections of the Hindu society including opening of
religious institutions to all the classes and sections of the Hindu society. Hence the people are
free to follow their respective religions taking in view that it does not go against public policy,
morality, health or the right to propagate religion of others. Hence any religious activity which
disturbs the public order is violative of the Article 25. This can be implied by the S.C.‟s decision
in Church of God(Full gospel)in India v. K.K.R. Majestic Colony Welfare Association17 where
the Supreme Court identified use of loudspeakers as not necessary for carrying out religious
practices. “No religion prescribes that prayers should be performed by disturbing the peace of
others nor does it preach that they should be through voice amplifiers or beating of drums. In any
case if there is such practice, it should not adversely affect the right of others including that of
being not disturbed in their activities” A person can exercise his religious freedom so long as it
does not come into conflict with the exercise of Fundamental Rights of others.

The guarantee under our Constitution not only protects the freedom of religious opinion but it
protects also acts done in pursuance of a relation and this is made clear by the use of the
expression "practice of religion" in article 25. Latham C.J. of the High Court of Australian
while dealing with the provision of section 116 of the Australian Constitution which inter alia
forbids the Commonwealth to prohibit the "free exercise of any religion" made the following
weighty observations (Vide Adelaide Company v. The Commonwealth 18) :

17
AIR 2000 SC 2773: (2000) 7 SCC 282
18
67 C.L.R. 116, 127.

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 Freedom of Religion under Constitution Of India

"It is sometimes suggested in discussions on the subject of freedom of religion that, though the
civil Government should not interfere with religious opinions, it nevertheless may deal as it
pleases with any acts which are done in pursuance of religious belief without infringing the
principle of freedom of religion. It appears to me to be difficult to maintain this distinction as
relevant to the interpretation of section 116. The section refers in express terms to the exercise of
religion, and therefore it is intended to protect from the operation of any Commonwealth laws
acts which are done in the exercise of religion. Thus the section goes far beyond protecting
liberty of opinion. It protects also acts done in pursuance of religious belief as part of religion."

These observations apply fully to the protection of religion as guaranteed by the Indian
Constitution. Restrictions by the State upon free exercise of religion are permitted both under
articles 25 and 26 on grounds of public order, morality and health.

The Supreme Court explaining the scope of Article 25 of the Indian Constitution in Sri
Lakshamana Yatendrulu v. State of Andhra Pradesh19 observed:

“ Article 25, as its language amplifies, assures to every person subject to public order, health and
morality, freedom not only to entertain his religious beliefs, as may be approved of by his
judgement , but also exhibits his belief in such outwardly act as he thinks proper and to
propagate or disseminate his ideas for the edification of others.”

The word propagation of religions here means the „exposition of the tenets of the religion‟.
Quoting Justice Mudholkar in the case of Punjab Rao vs. D.P. Meshram and others20 “ It would
thus follow that a declaration of one's belief must necessarily mean a declaration in such a way
that it would be known to those whom it may interest. Therefore, if a public declaration is made
by a person that he has ceased to belong to his old religion and has accepted another religion he
will be taken as professing the other religion.”

Forced conversion of religion cannot be treated as propagation of one‟s religion under Article 25.
This view was vindicated by the Supreme Court in Rev. Stainislaus v. State of Madhya
Pradesh21 as Supreme Court observed “What is freedom for one, is freedom for others, in equal

19
AIR 1996 SC 1414: (1996) 8 SCC 705
20
AIR 1965 SC 1179:[1965]1SCR849
21
AIR 1977SC 908: (1977) 1 SCC 677

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 Freedom of Religion under Constitution Of India

measure, and there can, therefore, be no such thing as Fundamental Right to convert any person
to one‟s own religion”. Thus the S.C. held valid under Article 25(1) an Act prohibiting the
conversion of a person by force, fraud or allurement.

The protection of right to follow one‟s own religion includes the carrying out of rituals which are
an integral part of the religion. Thus the article not only guarantees freedom to follow any
religion of choice but also the freedom to follow the religion in a manner as integral to the tenets
of that religion. As recently stated by the court:

“The protection under articles 25 and 26 extends a guarantee for the rituals and observances,
ceremonies and modes of worship which are integral part of the religion and as to what really
constitutes and essential part of religion or religious practice has to be decided by the court with
reference to the doctrine of a particular religion or practices regarded as parts of religion”. 22

The practice of sacrificing a cow on Bakr-Id was declared was declared neither essential to nor
neither necessarily required in the religious ceremonies by the Supreme Court in the case of
State of Gujarat v. Mirzapur Moti Kureshi Kassab Jamat and Others23.The court also held that
an optional religious practice was not covered by Article 25(1) of the Indian Constitution. Here
the word „essential religious practice‟ refers to the practices which are sacrosanct and the
removal of such a practice results in the very change in the basic nature of the religion. A similar
view was presented by the apex court in the case of Commissioner of Police and others v.
Acharya Jagadishwarananda Avadhuta and others24. The court observed “Essential practice
means those practices that are fundamental to follow a religious belief. It is upon the cornerstone
of essential parts and practices that superstructure of a religion is built without which a religion
would be no religion.” The court gave a test to determine whether a part or practice is essential to
a religion by finding out whether the nature of the religion would be changed without that part or
practice. “If the taking away of these part or practice could result in a fundamental change in the
character of that religion or its belief, then such part can be treated as an essential or integral
part.” What constitutes an integral or essential part of a religion has to be determined with
reference to the doctrines, practices, tenets, historical background etc. of the given religion.

22
N.Adithyan v. Travancore Devaswom Board, (2002) 8 SCC 106
23
(2005) 8 SCC 534
24
(2004) 12 SCC 770

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 Freedom of Religion under Constitution Of India

To make sure that secularism does not remain only a bookish concept but is applied in toto
within the boundaries of the country, the Supreme Court in the case of R.C. Poudyal and others
v. Union of India and others25 held that the provision of separate electoral rolls on the basis of
religion would contravene Article 15(1) of the Constitution of India which states that “ The state
shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of
birth or any of them.” It would also contravene article 325 of the constitution which states that
“No person to be ineligible for inclusion in, or to claim to be included in a special, electoral roll
on grounds of religion, race, caste or sex.” The court observed that “a separate electorate for a
religious denomination would be obnoxious to the fundamental principles of our secular
Constitution. If a provision is made purely on the basis of religious considerations for election of
ar member of that religious group on the basis of a separate electorate, that would, indeed, the
wholly unconstitutional.”

Regarding the power of the state in managing the affairs of religion, the court in the case of
Bhuri Nath and others v. State of J&K and others26 observed “The sovereign power of the Slate
is to supervise and ensure proper administration or management of religious institution or an
endowment. Secularism, being a basic feature of the Constitution, the Constitution does not
permit the State to interfere with the management of religious affairs of any religion or
denomination. But the State has power to interfere with the same for proper supervision and
efficient management of religious institution or endowment which is secular in its character. The
abolition of the right to receive offerings is part of secular management of the religious
institution or endowment.”

25
AIR1993SC1804:[1993]1SCR891
26
AIR1997SC1711:(1997)2SCC745:[1997]1SCR138

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 Freedom of Religion under Constitution Of India

► ARTICLE 26: Freedom to manage religious affairs

The article 26 of the Indian Constitution grants freedom to manage religious affairs to the
citizens. The broad principle behind it is that a state made law can regulate the administration of
property of religious endowment but law cannot take away the right of administration altogether.

This freedom is subjected to public order, morality and health and grants every religious
denomination the right to establish and maintain institutions for religious and charitable
purposes, manage its own affairs in the matters of religion, own and acquire movable and
immovable property and to administer such property in accordance with law.

The word „religious denomination‟ here refers to sects and sub-sects of a religion having four
distinctive features:

1. Common faith

2. Common spiritual organization

3. Distinctive name

4. Belief in teacher of philosophy on whom the denomination was made.

Hence religious denomination may be defined as “A collection of individuals who have a system
of veliefs or doctrines which they regard as conductive to their spiritual well being, that is, a
common faith.”27

As the judiciary interprets the rights of a religious denomination, a religious denominations

enjoys full autonomy in matters of deciding as to what rites and ceremonies are essential
according to the tenets of the religion they hold and no outside authority has jurisdiction to
interfere with their decision in such matters. The same was decided in the case of The
Commissioner, Hindu Religious Endowments, Madras vs. Sri Lakshmindra Thirtha Swamiar
of Sri Shirur Mutt28. “This religious denomination has a fundamental right under article 26 to
manage its own affairs in matters of religious through the Mathadhipati who is their spiritual
head and superior, and those provisions of the Act, which substantially take away the rights of

27
Arvind P. Datar, Commentary On Constitution Of India, Para. 3,Pg. 450 , Wadhwa Nagpur(2007)
28
AIR1954SC282:20(1954)CLT250(SC):[1954]1SCR1005

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 Freedom of Religion under Constitution Of India

the Mathadhipati in this respect, amount to violation of the fundamental right guaranteed under
article 26”

However the above view of the judiciary was refined after a little time when the above
mentioned case was overruled in Sri Venkatramana Devaru and others v. The State of Mysore
and others29. The case related to right of worship of other communities in a temple established
by the Gowda Saraswath Brahmins.

The substantial question of law, which was sought to be decided in this case was whether the
right of a religious denomination to manage its own affairs in matters of religion guaranteed
under Art. 26(b), is subject to, and can be controlled by, a law protected by Art. 25(2)(b),
throwing open a Hindu public temple to all classes and sections of Hindus. The judgment of the
case which court held was that “matters of religion in Art. 26(b) include the right to exclude
persons who are not entitled to participate in the worship according to the tenets of the
institution. Under this Article, therefore, the appellants would be entitled to exclude all persons
other than Gowda Saraswath Brahmins from entering into the temple for worship.
Article 25(2)(b) enacts that a law throwing open public temples to all classes of Hindus is valid.
The word 'public' includes, in its ordinary acceptation, any section of the public, and the suit
temple would be a public institution within Art. 25(2)(b).” A balance was struck between the
rights of Gowda Saraswath Brahmins as they were granted the right to hold special rituals and
only at that particular time the public was disallowed to enter the temple. Rest of the time, the
temple was open to members of the hindu society as given under Article 25(2)(b) of the
constitution.

According to the harmonious construction of the parts article 25 and 26, it was decided that
article 26(b) of the constitution which provides for the freedom of religious denomination
to manage its own affairs in matters of the religion would be subject to article 25(2)(b) of
the constitution which provides for the opening of Hindu institutions of religious nature to
all sections and classes of Hindu society. That is a right conferred on "all classes and sections
of Hindus" to enter into a public temple, and on the unqualified terms of that Article, that right
must be available, whether it is sought to be exercised against an individual under Art. 25(1) or

29
AIR1958SC255:[1958]1SCR895

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 Freedom of Religion under Constitution Of India

against a denomination under Art. 26(b). The fact is that though Art. 25(1) deals with rights of
individuals, Art. 25(2) is much wider in its contents and has reference to the rights of
communities, and controls both Art. 25(1) and Art. 26(b).

Dawoodi Bohra is similarly a religious denomination in Shia Muslim. In the case of Sardar
Syedna Taher Saifuddin Saheb Vs. The State of Bombay30, petitioner, the head of the Dawoodi
Bohra community challenged the constitutional validity of Section 3 of the Bombay Prevention
of Excommunication Act, 1949, constituted for the prevention of excommunication. Ex-
Communication may be defined as „exclusion from fellowship in a group or community‟. 31
Excommunication is basically a religious tool that is used to maintain the purity of the
community. By excommunicating from the community, the community head removes unwanted
elements from the community which act as source of disturbance for the whole community.
Justice Das Gupta in this case made an interesting observation “in an article in the Encyclopedia
of the Social Sciences from the pen of Prof. Hazeltine. "Excommunication," says Prof. Hazeltine,
"in one or another of the several different meanings of the term has always and in all civilizations
been one the principal means of maintaining discipline within religious organizations and hence
of preserving and strengthening their solidarity.” Thus Excommunication was proved to be a tool
in usage by various communities in the past.

In the judgement the court observed that the said enactment infringed the fundamental rights of
members of the Dawoodi Bohra community and its religious head. It was held that the impugned
act violated Article 25 and 26 of the Constitution of India, hence it was void. “The impugned Act
makes even such excommunications invalid and takes away the power of the Dai as the head of
the community to excommunicate even on religious grounds. It therefore, clearly interferes with
the right of the Dawoodi Bohra community under clause (b) of Art. 26 of the Constitution.”

In the case of Dr. Ismail Faruqui vs. Union of India though the „Acquisition of Certain Area at
Ayodhya Act, 1993’ which was passed by the legislature to acquire the land where Babri Masjid
stood was declared unconstitutional, it was not on the basis of violation of Article 25 or 26 of
constitution but due to the unconstitutional nature of some other provisions of the act.

AIR1962SC853:[1962]Supp(2)SCR496
30
31
Available on http://www.merriam-webster.com/dictionary/excommunication as accessed on Oct. 16,2011

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 Freedom of Religion under Constitution Of India

The court held that subject to the protection under Articles 25 and 26 of the Constitution, places
of religious worship like mosques, churches, temples etc. can be acquired under the State's
sovereign power of acquisition. Such acquisition per se does not violate either Article 25 or
Article 26 of the Constitution. The decisions relating to taking over of the management have no
bearing on the sovereign power of the State to acquire property.

Citing Khajamian Wakf Estates v. State of Madras32 which held:

"It was next urged that by acquiring the properties belonging to religious denominations the
legislature violated Article 26(c) and (d) which provide that religious denominations shall have
the right to own and acquire movable and immovable property and administer such property in
accordance with law. These provisions do not take away the right of the State to acquire property
belonging to religious denominations. Those denominations can own or acquire properties and
administer them in accordance with law. That does not mean that the property owned by them
cannot be acquired. As a result of acquisition they cease to own that property. Thereafter their
right to administer that property ceases because it is no longer their property. Article 26 does not
interfere with the right of the State to acquire property."

32
1971 AIR 161, 1971 SCR (2) 790

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 Freedom of Religion under Constitution Of India

► ARTICLE 27: Freedom as to payment of taxes for the promotion of any

particular religion

Stating the provisions of the article:

“No person shall be compelled to pay any taxes, the proceeds of which are specifically
appropriated in payment of expenses for the promotion or maintenance of any particular religion
or religious denomination.”

Meaning thereby that no person shall be coerced or forced to pay any kind of tax, in kind or cash,
the same being used for some kind of religious purpose which may include the promotion,
maintenance, propagation of some specific religion or some specific religious denomination.

Article 27 is one of the essential outcomes of the concept of secularism enshrined by the Indian
constitution. A „tax‟ is exaction of money for some public purpose. Only the state has the right to
collect tax and no other body does. If the state uses the money collected by taxes in promotion of
some specific religion or some specific religious denomination, it means that the state is
patronizing and supporting that particular religion or religious denomination. This violates the
spirit of secularism enshrined by the Indian constitution. Hence the prohibition against any such
kind of tax is justified. The distinction between „tax‟ and „fee‟ has been adhered to in the context
of this article also so that fees for secular regulation can be charged for defraying expenses of
administrative regulation.

An observation made by Justice Mukherjea in the case of Sri Lakshmindra Theertha Swamiar
of Sri. Shirur Mutt v. The Commr. Hindu Religious Endowments 33 regarding article 27 of the
constitution “What is forbidden by the Article is the specific appropriation of the proceeds of any
tax in payment of expenses for the promotion or maintenance of any particular religion or
religious denomination. The reason underlying this provision is obvious. Ours being a secular
State and there being freedom of religion guaranteed by the Constitution, both to individuals and
to groups, it is against the policy of the Constitution to pay out of public funds any money for the
promotion or maintenance of any particular religion or religious denomination.”

33
Supra note 7

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 Freedom of Religion under Constitution Of India

The reconstruction of Hindu temples and Muslim mosques which were destroyed during some
clash between Hindus and Muslims done as a part of relief work would not amount to the
violation of Article 27 of the constitution which prohibits collection of taxes for religious
purpose. The same was held by the High Court of Kerala in the case of K.Reghunath v. State of
Kerala and Others34 .The line of reasoning followed by the court was that the welfare of the
public lies above everything and the resconstruction of religious sites of both the communities
which were destroyed during riots does not amount to the patronizing or promotion of any
religion.

“Houses, schools and places of worship belonging to both religious groups, Hindus and Muslims,
were damaged, and in restoring them to their original condition, there is no question of
promotion or maintenance of any particular religion or religious denomination: buildings of both
sections are repaired and restored: it is not because the buildings belonged to a particular
religious denomination that they are restored, but because they were damaged in the incidents.
Even otherwise, we mean, even if places of worship belonging to one religious denomination
alone were damaged and they alone are to be reconstructed even then there is no question of
promotion or maintenance of that particular religion or religious denomination. If a mad and
fanatic mob attacked only the places of worship of a particular religious denomination, then the
restoration or reconstruction has necessarily to be of the places of Worship of that particular
religious denomination: still (and this is evident), there is no question of promotion or
maintenance of that particular religion or religious denomination.”

34
AIR1974Ker48

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 Freedom of Religion under Constitution Of India

ARTICLE 28: Freedom as to attendance at religious instruction or religious

worship in certain educational institution

This article of the constitution under Clause 1 prevents giving religious instructions in any
educational institution wholly maintained out of the State funds. Clause 2 of this article prevents
application of clause 1 to any educational institution administered by the state but established
under any endowment or trust which requires that religious instructions be imparted in such
institutions. Moreover clause 3 of the article grants any person freedom to attend or not to attend
any religious instruction being granted in an institution being run wholly by state funds and for
the minors, if his guardian desires so or not.

Thus the state has granted freedom and made sure that it follows the principle of secularism
enshrined by it in the constitution by granting freedom to any individual in attending or not
attending any religious instruction which is being granted in an educational institution running
on funds granted by the state.

In the case of D.A.V. College Etc. v. State of Punjab35 it was held that the Guru Nanak Dev
University being a state funded university is not protected by article 28(2) of the Indian
Constituion, hence it cannot make it compulsory to study the life and teachings of Guru Nanak
Dev ji who was the founder of Sikh religion as this action of theirs promoted Sikh religion.
However as an academic field of study, it was allowed to continue the course offered on studies
of the teachings of Guru Nanak as it was nothing but a specialized field of study which persons
interested in could enroll them in.

Hence if we see, the judiciary has tried to draw a line between compulsiveness and willingness to
study any course. It has tried maintain religious freedom as well as freedom of the institution to
carry out any special course related to the teachings of some religious leader. The judiciary has
interpreted the article as that mere offering to study any particular course related to some
religious instructions does not amount to violation of article 28 of the constitution but forcing
someone to study any teaching of religious character violates his right secured under article 28 of
the constitution. Moreover study life of great men should not merely be restricted because they

35
1971 AIR 1737, 1971 SCR 688

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 Freedom of Religion under Constitution Of India

were associated with some kind of religion. Instead their life and teaching act as a source of
inspiration for the members of the society.

The judiciary interpreted article 28 of the constitution in T.M.A. Pai Foundation and others vs.
State of Karnataka and others36 :

“Article 28(1) prohibits any educational institution, which is wholly maintained out of state
funds, to provide for religious instruction. Moral education dissociation from any demoninational
doctrine is not prohibited; but, as the state is intended to be secular, an educational institution
wholly maintained out of state funds cannot impart or provide for any religious instruction.

The exception to Article 28(1) is contained in Article 28(2). Article 28(2) deals with cases
where, by an endowment or trust, an institution is established, and the terms of the endowment or
the trust require the imparting of religious instruction, and where that institution is administered
by the state. In such a case, the prohibition contained in Article 28(1) does not apply. If the
administration of such an institution is voluntarily given to the government, or the government,
for a good reason and in accordance with law, assumes or takes over the management of that
institution, say on account of mal-administration, then the government, on assuming the
administration of the institution, would be obliged to continue with the imparting of religious
instruction as provided by the endowment or the trust.”

While article 28(3) was interpreted as “Article 28(3) gives the person attending any educational
institution the right not to take part in any religious instruction, which may be imparted by an
institution recognized by the state, or receiving aid from the state. Such a person also has the
right not to attend any religious worship that may be conducted in such an institution, or in any
premises attached thereto, unless such a person, or if he/she is a minor, his/her guardian, has
given his/her consent. The reading of Article 28(3) clearly shows that no person attending an
educational institution can be required to take part in any religious instruction or any religious
worship, unless the person or his/her guardian has given his/her consent thereto, in a case where
the educational institution has been recognized by the state or receives aid out of its funds.”

36
(2002) 8 S.C.C. 481

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 Freedom of Religion under Constitution Of India

The rights of a minority institution were declared as follows, “A minority educational institution
may choose not to take any aid from the State and may also not seek any recognition or
affiliation. Such institutions cannot indulge in any activity which is violative of any law of the
land. They are free to admit all students of their own minority community if they so choose to
do.” On one hand while the scope of governmental regulation in unaided educational institutions
was curtailed. The court held that the state cannot interfere if the admission was on merit and a
reasonable fee was being charged. On the other hand, however, minority educational institutions
receiving aid from the state would have to admit a reasonable number of students from non-
minority groups.

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 Freedom of Religion under Constitution Of India

CONCLUSION:

The „Freedom of Religion‟ as provided by the Constitution of India under articles 25, 26, 27 and
28 is a fundamental right granted to us by our constitution makers. The amount of freedom
provided to us by our constitution makers regarding freedom of religion is far more than the
freedom provided by any constitution in the world. A probable reason being the country‟s past
which is full of religious preaching of numerous philosophers. To different person these
teachings appear to be different, hence we have full right to observe and propagate any religion
we want to. But these rights provided under the above mentioned articles are not absolute. These
rights are subject to public peace, public policy, health, willingness of individuals and many
other factors. The Union of India observes secularism i.e. a policy which promotes neutrality of
the state in matters of religion. In any case the policy of public welfare clashes with the ideals of
state secularism, then the policy of welfare presides over the ideals of state secularism. Hence
welfare of its citizens is the utmost Dharma(Sanskrit for duty) of the state. The bulwark of
deciding the matters related to religion lies upon the shoulders of the judiciary.

In the past few years, Indian judiciary has acted in a very mature manner in dealing with matters
related to religion and the rights and obligations of various religious groups. Over the years, by
way of judicial precedents, the court has evolved a proper mechanism which has promoted
religious peace and camaraderie in India.

I love you when you bow in your mosque, kneel in your temple, pray in your church. For you

and I are sons of one religion, and it is the spirit.

Khalil Gibran

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 Freedom of Religion under Constitution Of India

BIBLIOGRAPHY

1. Swarup, Jagdish, Constitution of India 2nd Vol –1, II , III -New Delhi: Modern
Publications, 2006

2. Datar, Arvind P., Datar on Constitution of India: Wadhwa & Co.,2007.

3. Sujata V.Manohar,T.K. Tope‟s Constitutional Law of India

4. Jain, M.P. Indian Constitutional Law, New Delhi: Wadhwa and Company Nagpur, 2003

5. Constitutional Assembly Debates accessed via Manupatra

6. www.scconline.co.in

7. www.manupatra.com

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