Right to Freedom of Religion (Article 25-28) under Constitution of India

This article explores about Right to Freedom of Religion under Constitution of India enshrined in Article 25-28 along with landmark Supreme Court judgements

 

Introduction

 

The Right to Freedom of Religion is a fundamental and cherished aspect of human rights and democracy, enshrined in the Constitution of India. India, with its rich tapestry of religious diversity, has long recognized the importance of granting its citizens the freedom to practice and propagate their faiths without discrimination or coercion. This article explores the significance and legal framework of the Right to Freedom of Religion in India.

 

Secularism in India:

 

Religious tolerance and equal treatment of all religious groups are essential part of secularism. Secularism in India does not mean irreligiousness, rather it means equal respect for all religions. Arts. 25 to 28 of our Constitution confer certain rights relating to religion and these articles protect the religious activities from state interference. So, the policy of non-interference of state is also a part of secularism. India has no preferred or state religion as such.

 

S.R. Bommai Vs. Union of India AIR 1994 SC 1918

 

9 Judges bench decision discussed the concept of secularism.

 

J Sawant said – “religious tolerance and equal treatment of all religious groups and protection of their life, property and place of their worship are the essential part of secularism enshrined in our constitution”.

 

Justice B.P. Jeevan Reddy said while the citizens of this country are free to profess, propagate and practice such religion, faith or belief as they choose, so far as the state is concerned i.e., from the point of view of the state, the religious faith of belief of a person is immaterial for state all are equal and all are entitled to be treated equally.

 

The concept of secularism is not merely a passive attitude of religious tolerance; it is also a positive concept of equal treatment of all religions.

 

Earlier it was not explicit but now it is explicit in Preamble, fundamental rights and DPSP. It was made explicit by the 42nd Constitution Amendment Act, 1976. This concept is variable, flexible and it cannot be defined in certain words, it is best to leave it undefined.

 

In M. Ismail Faruqui Vs. Union of India AIR 1995 SC 604: Justice Verma delivering the majority opinion said that it is clear from the Constitutional scheme that it guarantees equality in the matter of religion to all individuals and groups irrespective of their faith emphasising that there is no religion of the state itself. The preamble read with Art. 25 to 28 emphasizes this aspect. The concept of secularism is one of the facets of the right to equality woven as central golden thread in the fabric depicting the pattern of the scheme in our Constitution.

 

There are various cognate articles on secularism in our constitution

 

Art. 14, 15, 16, 25, 26, 27, 29,30 44, 51-A.

 

The Supreme Court in S.R. Bommai Vs. Union of India held secularism to be a basic feature of our Constitution. If a state cannot fulfil its fundamental obligations under the Constitution, then Art. 356 may be invoked.

 

Article 25

 

Article 25: Freedom of conscience and free profession, practice and propagation of religion:

(1) Subject to public order, morality, and health and to the other provisions of this Part, all persons are equally entitled to freedom of conscience and the right freely to profess, practice and propagate religion.

(2) Nothing in this article shall affect the operation of any existing law or prevent the State from making any law-

(a) regulating or restricting any economic, financial, political or other secular activity which may be associated with religious practice;

(b) providing for social welfare and reform or the throwing open of Hindu religious institutions of a public character to all classes and sections of Hindus.

Explanation – I: The wearing and carrying of kirpans shall be deemed to be included in the profession of the Sikh religion.

Explanation - II: In sub-clause (b) of clause (2), the reference to Hindus shall be construed as including a reference to persons professing the Sikh, Jaina or Buddhist religion, and the reference to Hindu religious institutions shall be construed accordingly.

 

This article talks of four things i.e.,

 

1. Freedom of Conscience it is the inner freedom of a person to mould his relation with God in whatever manner he likes. He can have any kind of belief or faith.
2. Profess The right to declare freely and openly one's faith.
3. Practice to perform religious duties, rites, rituals, ceremonies, religious believes.
4. Propagate means to spread and publicize one’s religious view.

 

Now, the question arises “What is religion and which religious practise is protected under the constitution?”

 

Religion is not defined anywhere in the Constitution. In Commissioner, H. R. E. vs. L.T. Swamiar, AIR 1954 SC 282.

 

 

The Supreme Court said that religion is certainly a matter of faith with the individuals or communities but it is not necessarily theistic. A religion, undoubtedly, has its basis in a system of belief and doctrines which are regarded by the person professing that religion as conducive to his spiritual well-being but it is also something more than merely doctrine or belief.

 

Article 25 confers a fundamental right on every person not merely to entertain such religious belief but also exhibit, beliefs and ideas in such overt acts and further more to propagate and disseminate his religious beliefs, ideas and views.

 

The Religious Practises (Essential & Non-essential)

 

Sri Lakshamana Yatendrulu Vs. State of AP AIR 1996 SC 1414, State does not protect all religious practices, if protects only essential and integral part of religion only with reference to the doctrines of that religion and the task of dividing is on Supreme Court and the test to decide is, whether the community of that religion feels/considers it essential or not? State can interfere with respect to other mattes, which are not essential part of religion like, economic, political and financial matters.

 

In N. Adithyan Vs. Travancore Devaswom Board (2002) 8 SCC 106. The Supreme Court said that protection under Arts. 25 and 26 extends a guarantee for rituals and observances, ceremonies and modes of worship which are integral parts of religion and as to what really constitutes an essential part of religion or religious practice has to be decided by the courts with reference to the doctrine of a particular religion or practices regarded as parts of religion.

 

In H.H. Srimad Perarulal Ethiraja Ramanuja Jeeyar Swami Vs. State of Tamil Nadu AIR 1972 SC 1586. In this Supreme Court Said that “What constitutes an essential part of a religion or religious practice has to be decided by the courts with reference to the doctrine of a particular religion and includes practices which are regarded by the community as a part of its religion”.

 

In A.S. Narayana Vs. State of Andhra Pradesh AIR 1996 SC 1765. The Court, while interpreting Article 25 and 26 strikes a careful balance between the freedom of the individual or the group in regard to religion, matters of religion, religious belief, faith or worship, religious practice or custom which are essential and integral part and those which are not essential and integral and the need for the State to regulate or control in the interest of the community.

 

In Jagadishwaranand Vs. Police Commissioner, Calcutta AIR 1954 SC 51 Performance of Tandav dance by Anand Margis in public places is not essential or religious rights to be performed.

 

In Masood Ahmed Vs. Commissioner of Police AIR 1956 Calcutta 9. The Calcutta High Court held that use of loud speakers for calling Azaan is not integral part of Muslim religion and therefore suppression of use of loud speaker did not offend Art. 25(1).

 

In State of Bombay Vs. Narasu Appa Mali AIR 1952 Bom. 84. There was a Bombay (Prohibition) Marriage Act which prohibits the bigamous marriages by Hindu. Hindu claimed that bigamous marriages is their religious right, and challenged that it is violative of freedom of religion. The Question before the court was whether polygamy to have a natural son is religious right or not? The Court held that the Act was valid and birth of natural born son is not an essential part of Hindu religion, further so after creation of institution of adoption.

 

In M. H. Quareshi Vs. State of Bihar AIR 1958 SC 731. The Court held that sacrifice of cow on Bakarid day was not an obligatory act to exhibit his right belief and ideas. That means it is not an essential and integral part of Muslim religion it is optional for Muslim to sacrifice a goat and that for seven goats, a cow or a camel can be sacrificed contained in Hedaya, a religious text of Muslims.

 

In State of W.B. Vs. A. S. Ghosh AIR 1995 SC 9, No fundamental right of Muslim to sacrifice cow on bakrid day.

 

In M. Ismail Vs. Union of India AIR 1995 SC 605. The Supreme Court held that right to practice and profess guaranteed under Art. 25 did not necessarily include the right to acquire or own property and it also did not exclude at any and every place.

 

Conversion to other religion by Force and threat.

 

A person can exercise his religious freedom so long as it does not conflict with the other provisions of this part. One fundamental right of one person must co-exist in harmony with exercise of another fundamental right of another person.

 

In Rev. Stainislaus Vs. State of M.P. AIR 1977 SC 908. The Supreme Court in this case referring to the word propagate in Art 25(1) said what 25(1) guarantees is not right to convert another person to one’s own religion but to transmit or to spread one's religion by exposition of its tenets.

 

Art. 25(1) confers freedom of conscience also to every citizen and not to former of any particular religion, that means that there is no fundamental right to convert another person to one’s own religion because if any person under takes to convert another as distinguished from spreading tenets of any religion that would infringe on freedom of conscience guaranteed to every citizens. What is freedom for one is freedom for another in equal measure and there can therefore, be no such thing as fundamental right to convert to any person to one’s own religion. Therefore Supreme Court finally held an Act valid under 25(1) which prohibits conversion of one into another religion by force, threat, fraud or allurement.

 

Regulations of commercial activities associated with religious activities, means state can regulate economic political commercial activities relating to religious aspects. Management of property related with religions activities can be regulated by state and it was also held in Sri Jagnnath Temple Puri Vs. Chintamani AIR 1997 SC 3835 SC has summed up relevant laws and saif that, all activities in or connected with religious activities order in temple can be controlled by state and if a law is passed for this purpose then it cannot be said to be violative of Art 25(2).

 

Provision for Social Reform [Article 25(2)(b)]

 

1. Measures of social reforms are permissible and they are not held void on ground of interference of freedom of religion.

 

Krishna Singh Vs. Mathura Ahir AIR 1980 SC 707: In this case, a Haryana legislation was in question which has prescribed that a person having more than 2 children was disqualified for the post of Sarpanch, Upasarpanch etc. This was challenged as in Muslim religion there was no limit for children and it violates religion. The High Court upheld the Act on grounds of religious freedom is subject to health and Morality. It is on ground of health of female.

 

2. Under Art. 25(2) religious freedom is subject to social welfare and reform and the Supreme Court said that Art 25, separates religious practices from other activities and state has been given power to regulate the latter one.

 

Article 26:

 

Article 26: Freedom to manage religious affairs:

 

Subject to public order, morality and health, every religious denomination or any section thereof shall have the right-

(a) to establish and maintain institutions for religious and charitable purposes

(b) to manage its own affairs in matters of religion;

(c) to own and acquire movable and immovable property; and

(d) to administer such property in accordance with law

 

It gives special protection to religious denominations. It provides that every religious denomination or a section thereof has the right

 

1. to establish and maintain institution for religious and charitable purposes:
2. to manage its own affairs in matters of religion.
3. to own and acquire movable and immovable property
4. to administer such property in accordance with law

 

Religious Denomination means religious sect having common faith and organization and designated by a distinctive name.

 

It means collection of individual who have common system of belief, having common organization and have common name. There are essentials to be fulfilled for a religious denomination

 

In Hindu religion the followers of Ramanuja known as Vishnavs, followers of Madhavacharya, Ram Krishna Math, denominate religious denomination. Among Mohammedans-Shia, Chisti, Sunni.

 

In S.P. Mittal V. Union of India held that Aurobindo Society is not a religious denomination.

 

Joginder Singh Vs. State of Punjab AIR 1973 P&H 465 - Sikh constitute a religious denomination and they can claim the benefit of Art 26

 

Rights of Religious Denomination

 

1. To establish and maintain institution for religious and charitable purpose.

 

In Aziz Basha Vs. Union of India, AIR 1968 SC 662. The Court said that Aligarh Muslim University has been established under a statute and it was not established by Muslim as such, so they can't claim the right to maintain the same.

 

2. Manage matters of religion.

 

The ‘matter of religion’ is not limited to matter of doctrine or belief, but it extends to acts done in pursuance of religion and therefore contains a guarantee for rituals and observances, ceremonies and modes of worship, which are regarded as integral part of religion.

 

3. Right to own, acquire and manage property:

 

With respect to administration of property, constitution guarantees to own and acquire property but it does not mean that they have open field as, this right can be used in accordance with law only and more significantly it has been placed on different footing from night to manage its own affairs in matter of religion.

 

Article 27

 

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

 

Article 28

 

Freedom as to attendance at religious instruction or religious worship in certain educational institutions:

(1) No religious instruction shall be provided in any educational institution wholly maintained out State funds.

(2) Nothing in clause (1) shall apply to an educational institution which is administered by the State but has been established under any endowment or trust which requires that religious instruction shall be imparted in such institution

(3) No person attending any educational institution recognized by the State or receiving aid out of State funds shall be required to take part in any religious instruction that may be imparted in such instruction or to attend any religious worship that may be conducted in such institution or in any premise attached thereto unless such person or, if such person is a minor, his guardian has given h consent thereto.

 

Conclusion

 

The Right to Freedom of Religion in the Constitution of India is a vital aspect of the country's commitment to secularism and pluralism. It reflects the values of religious tolerance and coexistence that have been an integral part of India's identity for centuries. While there have been challenges and controversies, the constitutional provisions continue to serve as a cornerstone for safeguarding this fundamental right and maintaining India's diverse religious fabric. As India continues to evolve, it is essential to uphold and protect this right for all its citizens, ensuring that they can practice their faith freely and without fear.

 

 

FAQ (Frequently asked questions)

 

Q: What is the Right to Freedom of Religion under the Indian Constitution?

A: It is a fundamental right that grants individuals the freedom to practice, profess, and propagate their religion.

Q: Which articles of the Indian Constitution primarily protect the Right to Freedom of Religion?

A: Articles 25 to 28.

Q: Can the state impose restrictions on the Right to Freedom of Religion?

A: Yes, the state can impose reasonable restrictions on religious practices for reasons of public order, morality, or health.

Q: What does Article 26 of the Indian Constitution guarantee?

A: Article 26 grants religious denominations and institutions the right to manage their religious affairs and establish institutions for religious and charitable purposes.

Q: Does Article 27 allow the government to fund religious activities or institutions?

A: No, Article 27 prohibits the use of state funds for promoting or maintaining any particular religion.

Q: Can religious instruction be provided in all educational institutions funded by the state?

A: No, Article 28 prohibits religious instruction in educational institutions wholly maintained by state funds but allows it in institutions not wholly funded by the state.

Q: What are some challenges associated with the Right to Freedom of Religion in India?

A: Challenges include issues related to religious conversions, communal tensions, and state intervention in religious matters.

Q: What fundamental value does the Right to Freedom of Religion uphold in India?

A: It upholds the fundamental value of secularism and religious pluralism in Indian society.

Q: Who played a key role in the framing of the Indian Constitution's provisions on religious freedom?

A: Dr. B.R. Ambedkar and the constituent assembly played a significant role in drafting and enacting these provisions.

Q: Why is protecting the Right to Freedom of Religion important in India?

A: It is important to maintain religious harmony and ensure that citizens can practice their faith freely, without discrimination or coercion.