Freedom of Religion (Article 25-28)

Articles 25-28: Freedom of Religion:

Articles 25 to 28 of the Indian Constitution lay down the provisions relating to the

“Freedom of Religion”.

The word Religion is not defined in the Indian Constitution.

India is a Secular State:

The word “Secular” was inserted in the preamble of the Indian Constitution by the Constitution (42nd Amendment) Act 1976.In India, a secular state was never considered as an irreligious state.It only  means that, in the matters of the religion, it is neutral.The state can have no religion of its own. It should treat all the religions equally.The state must extend similar treatment to the church, the mosque and the temple.In a secular state, the state is only concerned with the relation between man and man.

In SR Bommai

V

Union of India

The Supreme Court held that the secularism is the basic feature of the constitution.

In Aruna Roy

V

Union of India

The secularism means developing, understanding and respect for different religions.

Freedom of Religion:

The rights provided for the freedom of religion under Article 25 to 28 are:

Article-25: Freedom of conscience and the right to freely profess, practice and propagate the religion.

Article -26: Right of a religious denomination to manage religious affairs.

Article-27: Freedom from payment of taxes for the promotion of any particular religion.

Article-28: Freedom from the attendance at the religious instructions in certain educational institutions. Freedom of conscience and the right to freely profess, practice and propagate the religion.

Article-25:

Article-25(1) and 25(1) clause 2:

Article-25(1):

It guarantees to every person the freedom of conscience and the right to freely profess, practice and propagate the religion.The right guaranteed under Article-25(1) like any other constitutional rights, is not absolute.The expression “Freedom of Conscience” means, the inner freedom of a person to mould his relations with his god in whatever manner he likes.The word “Profess” means, to allow the publicity or to declare openly one’s own faith or believe.The expression “Practice to Religion” signifies the acts done in pursuance of the religious belief.

In Bijoe Emmanuel

V

State of Kerala

(National Anthem Case)

In the instant case, 3 children’s belonging to the “Jehovah’s Winesses” of the Christian community was expelled from the school for refusing to sing the National Anthem.They challenged the validity of their expulsion on the grounds that it was a violation of the fundamental rights under Article-25. According to them, it was against their religious faith. The Supreme Court held that no person can be compelled to sing the National Anthem, if he has a genuine religious objection.

Restrictions on Freedom of Religion:

Article-25:

25(1) Religious liberty, subject to public order, morality and health.

25(2) Nothing in this article shall affect the operation of any existing law or prevent the state from making any law:

a) Regulation or restricting any economic, financial, political or other secular activities which may be associated with religious practice.

b) Providing for social welfare and social reform.

Article-25(1) Religious liberty, subject to public order, morality and health:

In Rev Stanislaus

V

 State of Madhya Pradesh

The freedom guaranteed under Article-25 is to profess, practice and propagate the religion. It is concerned primarily with religious worship, ritual and observations. Propagation is concerned with the right to communicate beliefs to another person but does not include a right to forcible conversions.

Article-25(2) (a) Regulation or Restricting any economic, financial, political or other secular activities which may be associated with religious practice:

In Mohd. Hanif Quareshi

V

State of Bihar

The petitioner challenged the constitutional validity of the Acts i.e., U.P.Prevention of Cow Slaughter Act 1955, has violated the fundamental rights guaranteed under

Article-25(1).

The petitioner contended that the impugned acts prohibited the slaughter of cows of all ages.The argued that the sacrifice of a cow on Barked day was an integral part of their religion.

The Supreme Court rejected the contention of the petitioners and held that the sacrifice of a cow on the bakrid day was not an essential part of the Muslim religion.

In Church of God (Full Gospel) in India

V

KKRMC Welfare Association

(Use of Loud Speaker)

No religion prescribes that prayer should be performed by disturbing the peace of others.

Article-25(2)(b) Providing for social welfare and social reform:

Article-25(2)(b) of the constitution provides that the state is empowered to pass a law providing for the social welfare or social reforms or throwing open of religious institutions of a public character to all the classes and sections of Hindus.

In Vaguapurushadji

V

 Maldas

It was observed that the state cannot regulate the manner in which the worship is performed by the authorized pujaris of the temple or the hours and days on which the temple is to be kept open for puja or darshan for the devotees.

Explanation on Article-25:

1. Right of Sikh to wear and carry Kirpans:

The right of Sikh to wear and carry kirpans is recognized as a religious practice. This does not mean that he can keep any number of kirpans. He is entitled to keep one sword. He cannot keep more than one kirpans without a license.

2. Hindu and Hindu Religious Institutions:

It provides that the reference to the Hindus including Sikh, Jainism or Buddhist religion and reference to Hindu religious institutions shall be construed accordingly.

Article-26

Freedom to manage Religious Affairs:

Article-26 says that, subject to public order, morality and health of every religious denomination of any section of it shall have the following rights:

a) To establish and maintain institutions for the religious and charitable purposes.

b) To manage its own affairs in matters of religion

c) To own and acquire a movable and immovable property

d) To administer such property in accordance with the law.

The term “Denomination” is not defined in the constitution. In oxford dictionary, it means, a collection of individuals classed together under the same name, a religious sect or a body having a common faith and organization and designated by a distinctive name.

The right guaranteed by Article-25 is an individual right while the rights guaranteed by Article-26 are the right of an “organized body” like the religious denomination.

a) To establish and maintain institutions for the religious and charitable purposes:

Under clause (a) of Article26, every religious denomination has a right to establish and maintain the institutions for the religious and charitable purposes.

The word “Establish and Maintain” in the Article-26(a) must be read together and therefore it is only those institutions in which a religious denomination establishes that it can claim the right to maintain those.

In Azeez Basha

V

Union of India

The Aligarh Muslim University was established by the Central Government under the Aligarh Muslim University Act 1920 enacted by the central legislature.

The Supreme Court held that since the university was not established by the Muslims, there was no question of the university being maintained by them.

b) Right to manage the matter of religion:

Clause (b) of the Article-26 guarantees to every religious denomination,

“The Right to manage the matter of religion”.

The expression “matters of the religion” means, religious practices, rites and ceremonies that are essential for the practicing of the religion.

In Sri. Adi Visheshwara of Kashi Vishwananth Temple

V

State of U.P

It was held that, the right to manage a temple is not an integral part of the religion and it can be regulated by the state.

c) and d) Right to own and Administer the property:

Clause (d) further strengthens this right by guaranteeing to the denomination “the right to administer such a property in accordance with law”

In Ratilal Gandhi

V

State of Bombay

It was held that a law which took away the right of administration from the religious denomination and vested it in other secular authority is the violation of a right guaranteed by Article-26(d) of the constitution.

In DM Ismail Faruqui

V

Union of India

It has been held that mosque is not an immune from the acquisition by the state.The court held that the mosque is a place of worship like other religions in a secular India.

A mosque is not an essential part of the practice of religion of Islam and Namaz by Muslim; it can be offered anywhere, even in the open.Accordingly, the acquisition of mosque is not prohibited by the provision of the constitution of India.

Cases on Religious Denomination:

In Bramchari Sidheswar Sahai

V

State of W.B

(Ramakrishna Mission Case)

The Supreme Court held that the followers of Ramakrishna, who are a collection of individuals and who adhere to a system of beliefs as conducive to their spiritual well being, who have organized themselves collectively and who have an organization of a definite name as Ramakrishna Mission can be regarded as a religious denomination.

Article-27:

Freedom from the payment of taxes for the promotion of any particular religions:

Article-27 provides that no person shall be compelled to pay any tax for the promotion or for the maintenance of a particular religion.

This Article emphasis the secular character of the state.

The public money collected by the way of tax cannot be spent by the state for the promotion of any particular religion.

In Sri. Jagannath

V

State of Orissa

It was held that the levy of fees and not the taxes under the Orissa Hindu Religious Endowments’ Act 1939.

The payment was demanded only for the purpose of meeting the expenses of the administration of the affairs of the religious institution.

In BK Deb

 V

 State of Orissa

It was observed that, where the state granted money for the renovation of a water tank belonging to lord Jagannath Temple was used by the general public for bathing and drinking purposes.

It is not a violation of Article-27 because in such circumstances the state could not be taken to have promoted or maintained the Hindu religion, as the tank is used for general public and its renovation was necessary to maintain the hygienic conditions.

Article- 28:

Prohibition of religious instruction in a state-aided institution:

Restrictions of Article-28:

28(1) Article-28 provides that, “No religious instructions shall be given to any educational institutions which are wholly maintained by state funds.

28(2) It provides that, “No person attending any educational institution recognized by the state or receiving an aid out of the state funds, shall be required to take part in any religious instructions or to attend any religious worship that may be conducted in such institution unless such a person or if such a person is a minor, is given a consent by his guardian”.

Clause (2) is an exception to clause (1)

It provides that the prohibition contained in clause (1) would not apply to an educational institution which is administered by the state but has been established under any trust which requires that the religious instruction shall be given in such institution.

Thus Article-28 mentions 4 types of educational institutions:

1) Institutions wholly maintained by the state.

2) Institutions recognized by the state.

3) Institutions that are receiving aid out of the state fund.

4) Institutions that are administered by the state but are established under any trust or endowments.

In DAV College

V

State of Punjab

The Supreme Court observed that the provision for an academic study of the life and teachings of Guru Nanak could not be considered as providing religious instructions.

The instructions which give the rituals, the observances, the ceremonies and modes of worship of a particular denomination are religious instructions.

In Aruna Roy

V

Union of India

The validity of National Curriculum Framework for school Education 2000,Which provided education upon all the religions and also made a comparative study of philosophy of all the religions was challenged on the grounds that it was a violation of Article-28 of the constitution.

The Supreme Court rejected the contention and held that the National Framework for the School Education is neither a violation of Article-28 of the constitution nor it is against the concept of secularism.