Subject: Constitutional Law-II
Topic: Fundamental Right to Religion- Articles 25-26, Unit-IV(C) B.A.LL.B-4th sem
Subject Teacher: Akhlaqul Azam
Fundamental Right to Religion- Articles 25-28
India has been the birth place of quite number of religions and also it is acknowledged as the country which is the land of spiritual beliefs, culture and philosophical thinking. Various fundamental rights are provided as well as guaranteed by our Indian Constitution under Part III.
Amongst them, freedom of religion is also the one provided which is given under Article 25-28 of the Indian Constitution. India, being a secular nation gives every citizen the right to follow the religion he believes in. 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. 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.
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. When comes to Secularism, our Constitution has high regard and utmost importance is given to this concept. Secularism is often seen as high regard and enjoys dignified recognition in the eyes of law. According to the Constitution, the allocation of this right is to provide an occasion to every person to declare in open and that too without any hesitation the religion he believes or he wants to profess.In S. R. Bommai v. Union of India, (1994) the 9 judge bench of SC 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 (Art. 25)
Article 25 (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, practise 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.
Analysis of Article 25
Article 25 of Indian Constitution gives the citizens of our country the freedom to choose or follow any religion. The word freedom to conscience simply means to follow any beliefs in regards to religion or others. Article 19 of Indian Constitution gave the right to freedom of speech and expression, it also drew a picture to the freedom of religion in India. This was due to the fact that even after the partition and creation of Pakistan, Muslims and people of different religions were scattered in different parts of our country. That’s why the constituent assembly made the right to choose one’s own religion very clear by incorporating a separate group of articles. They felt it necessary to do so after numerous points were made by the Advisory Committee on fundamental rights, leaders of minorities and tribes. The word secular, meaning, not connected with religious or spiritual matters, only appears in Article 25 of Indian Constitution.
Article 25 of Indian Constitution grants freedom to every citizen of India to profess, practice and propagate his own religion. The constitution, in the preamble professes to secure to all its citizen’s liberty of belief, faith and worship.
Profess, Practice And Propagate
To "profess" a religion means to declare freely and openly ones faith and belief. The constitutional right to profess religion means a right to exhibit one’s religion in such overt acts as teaching, practicing and observing religious precepts and ideals in which there is no explicit
intention of propagation involved. Taking out religious processions, worship in public places, putting on specific garments include within the ambit of profession of religion. The right to take out religious processions and to have religious gatherings in the public places fall under the right to profess religion as guaranteed in article 25 (1). The exercise of this right is, however, subject to public order and morality.
To 'practice' religion is to perform the prescribed religious duties, rights and rituals, and to exhibit his religious belief and ideas by such acts as prescribed by religious order in which he believes.
To 'propagate ' means to spread and publicize his religious view for the edification of others. But the word "propagation" only indicates persuasion and exposition without any element of coercion.
In nut shell Freedom of ‘profession’ means the right of the believer to state his creed in public whereas freedom of ‘practice’ means his right to give expression in forms of private and public worship. The right to propagate one’s religion means the right to communicate a person’s beliefs to another person or to expose the tenets of that faith, but shall not include the right to ‘convert’
another person to the former’s faith. In the Commissioner Hindu Religious Endowments Madras v. Sri L T Swamiar of Sri Shriur Matt (1954), the Court held that ‘profess’ means ‘right to freely declare of one’s faith”.
Religion
In India the need to define religion was raised for the first time by Dr.B.R. Ambedkar when the matter pertaining to personal law and its relation to religion came for discussion in the Constituent Assembly. He pointed out: The religious conceptions in this country are so vast that they cover every aspect of life from birth to death. There is nothing which is not religion and if personal law is to be saved I am sure about it that in social matters we will come to a standstill…There is nothing extraordinary in saying that we ought to strive hereafter to limit the definition of religion in such a manner that we shall not extend it beyond beliefs and such rituals as may be connected with ceremonials which are essentially religious. It is not necessary that the sort of laws, for instance, laws relating to tenancy or laws relating to succession should be governed by religion…I personally do not understand why religion should be given this vast
expansive jurisdiction so as to cover the whole of life and to prevent the legislature from encroaching upon that field.
The expression “religion” has not been characterized in the Constitution and it is not helpless of any unbending definition. The Supreme Court has characterized it in several cases. A religion is positively a matter of confidence and is not really mystical. Religion has its premise in “an arrangement of the convictions or conventions which are respected by the individuals who pronounce that religion as helpful for their profound prosperity”, however, it would not be right to state that religion is nothing else except for a teaching or conviction. A religion may not just set out a code of moral principles for its devotees to acknowledge, it may endorse customs and observances, services and methods of love which are viewed as a fundamental piece of religion and these structures and observances may degree even to issues of sustenance and dress. Subject to specific confinements, Article 25 presents a major ideal for everyone, not only to engage such religious convictions as might be affirmed by his judgment or soul yet, in addition, display his convictions and thoughts by such unmistakable acts and practices which are authorized by his religion.
In A.S. Narayan v. State of Andhra Pradesh,(1996) 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.”
Freedom of Conscience
Freedom of 'conscience' is absolute inter freedom of the citizen to mould his own relation with god in whatever manner he like. The Courts have defined freedom of conscience as the freedom of a person to entertain any belief or doctrine concerning matters, which are regarded by him or her to be conducive to his or her spiritual well being. The wording of article 25 of the Indian Constitution, however, seems to suggest that the individual’s right to hold such belief is subject to public order, morality and health and to the other provisions of part III of the Constitution.
Doctrine or Belief
In Hasan Ali v. Mansoor Ali(1947) 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(1954) 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,(1983) 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.
In Sardar Suedna Taiiir Saifiiddin v State of Bombay(1962) SC observed Articles 25-30 embody the principles of religious tolerance that has been the characteristic feature of Indian civilization from the start of history. They serve to emphasize the secular nature of Indian democracy which the founding fathers considered should be the very basis of the Constitution
In Ratilal Panachand Gandhi v State of Bombay(1954) Court held Freedom of conscience connotes a person’s right to entertain beliefs and doctrines concerning matters which are regarded by him to be conducive to his spiritual well being. Court further observed religious practices or performances of acts in pursuance of religious beliefs are as much a part of religion as faith or belief in particular doctrines
Bijoe Emmanuel v. State of Kerala (1986)
It is also known as 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 (2018) 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.
Ramesh v. Union of India, (1988)
In this case 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(2002)
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., (1997)
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 (1994) 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 (2019) 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(1981), 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(2017)
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.
Noise pollution
The Supreme Court in Church of God (Full Gospel) v. K.K.R. Majestic Colony Welfare Association(2000) 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(1998) 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.
Essential/Integral Part of Religion
What is protected under article 25 is the belief and faith that are integral part of religion. In deciding the question as to whether a given religious practice is an integral part of the religion or not, the test always would be whether it is regarded as such by the community following the religion or not. This question will always have to be decided by the court and in doing so, the court may have to enquire whether the practice in question is religious in character and if it is, whether it can be regarded as an integral or essential part of the religion, and the finding of the court on such an issue will always depend upon the evidence adduced before it as to the conscience of the community and the tenets of its religion.
In Ratilal Panchand Gandhi v. State of Bombay(1954) Justice Mukherjea provided the definition of religion as Religious practices or performance of acts in pursuance of religious belief are as much a part of religion as faith or belief in particular doctrine. This Justice has stated that doctrines of religions are essential part of religion. The performance any religious rite or practice of any belief is a part and parcel of religion. Justice Mukahrjea also provided another observation of religion “A religion may not lay down a code” of conduct of ethical rules for its followers to accept, it might prescribe rituals and observations ceremonies and modes of worship which are regarded as integral parts of religion and these forms and observation might extend even to matters of food and dress. This is the impact of religion over the behavior of individual’s life in society.
In Mohammad Hanif Qureshi v. State of Bihar(1958) cow slaughter on the day of Bakr-Id was claimed as fundamental right under Islam. There were various laws passed by the state legislatures to prohibit cow slaughter. Appellants in this claimed that scarifies of cow is practice and custom under Islam and further it is claimed that this right is enjoyed by all Muslims on the day of Bakr-Id. The question before the judiciary was that what is the importance of Bakr-Id under Islam. SC held held that slaughter of cow is not essential part or integral part of Islam hence the applicants cannot claim it as a matter of fundamental right guaranteed under Article 25 of Indian constitution.
Restrictions on Freedom of Religion
Right to religion can be restricted on following grounds:
Health, morality, or public order.
Social reform.
Social welfare.
Remaining provisions of part 3 of the Constitution
Freedom of religion, like any other freedom, cannot be absolute. Perhaps, the complete protection of all religious beliefs might result in the disappearance of organized and orderly society. It might also interfere with social reforms aimed at eradicating objectionable practices perpetuated in the name of religion. The Constitution of India itself imposes drastic-limitations on the freedom of religion guaranteed by Article 25. This Article contains six grounds for restricting religious freedom.
Restriction on Grounds of Public order, Morality and Health
(a)Public order: No freedom can retains in a state of disorder, therefore, it is the duty of the State of maintain peace and order so that people can enjoy the rights given by the Constitution. “Public order” is an expression of wide connotation. It signifies a state of tranquility which prevails among the members of a political society.
Restriction on this ground implies that the State could pass a law to regulate religious meetings or processions in public places like roads, streets and parks. Under Article 19 (1) (c) all citizens have freedom to assemble for any purposes. This freedom also includes resembling for religious
purposes. However, this right is subject to a number of conditions viz. the Assembly must be peaceful, it must be unarmed and it must be held subject to the requirement of public order.
Sections 295 to 298153 of the Indian Penal Code, 1860 decree certain acts to be an offence if they tend to wound the religious feelings of any class of persons. Section 153 A of the code also makes it an offence to promote, on grounds of religion, race, language, caste or community, disunity between different religious, racial or language groups. This section also declared an act to be a criminal offence if it is prejudicial to the maintenance of harmony between different religious groups or is likely to disturb public tranquility. These sections are protected under the restrictive head of “public order”.
The cow-protection legislation and laws prohibiting propagation of religion for the purposes of conversion, by force, fraud, inducement or allurement, have been made with the objectives to maintain public order in the State.
(b)Morality: On the ground of Morality State legislation can validly prohibit immoral practices, although they may be approved by religion. The Hindu religion has sanctioned certain practices which would appear to be immoral. In South India many orthodox Hindus held belief that religious merit could be attained by dedicating girls to temples. Such girls were called devadasis (i.e. servants of the God). However, in the course of time, this led to temple prostitution. The practice of Sati (whereby a widow burnt herself to death on the funeral pyre of her husband) was also considered to have a basis in religion.
(c)Public Health: It is the paramount duty of a civilized State to furnish legal armor to protect individual’s life and to maintain good health of the human being. However, this life saving objective of the State may run counter to certain religious beliefs and practices. Death by starvation or by self-inflicted torture to attain spiritual ends is also an offence under the Indian Penal Code. The law, therefore, forbids suicide even if the act is motivated by religious intention.
In Rama Chandra v. State, the validity of the Ganga Sagar Mela or dinance of 1975 which was promulgated to enable the State of West Bengal to take measures for safeguarding the health, safety and welfare of pilgrims attending the Ganga Saga Mela (fair) was attacked. However, the court observed that the ordinance come within the scope of restrictions permitted by Article 25.
Restrictions Imposed by Part III
Clause (1) of Article 25 of the Indian Constitution declares that the exercise of religious freedom is subject to other Fundamental Rights guaranteed in part III of the Constitution. This requires a balancing of rights in the area of religion with other rights. Since the freedom under Article 25 has been made specifically subject to the provision of Part III if there is any conflict between the two, provisions of part III will prevail over Article 25. The limitation “subject to the other provisions of this part” occurs only in clause (1) of Article 25 and not in clause (2). Clause (1) declares the rights of all persons to freedom of conscience and the right freely to profess, practice and propagate religion. It is this right that is subject to the other provisions in the Fundamental Rights chapter one of the provisions to which the right declared in Article 25 (1) is subject to Article 25 (2). A law, therefore, which falls within Article 25 (2) will control the right conferred by Article 25 (1) and the limitation in Article 25 (1) does not apply to that law.
Regulation of Economic, Financial, Political or other Secular Activities associated with Religion
Article 25 (2) (a) empowered the State to regulate financial, political and secular activities associated with religion. The religious activities as such are not covered under the regulatory power of the State. It is not always easy to find out whether an activity will be covered under religious practice or under financial, political or secular activity associated with religion. Certain activities even if involve expenditure or employment of servants and priests or uses of marketable commodities cannot be said to be secular activities under Article 25(2).
Social Reform and Throwing Open of Temples
Clause (2) (b) of Article 25 deals with two exceptions: (1) laws providing for social welfare and social reforms, and (2) the throwing open of all “Hindu religious institutions of a public character” to “all classes and sections of Hindus.”
The freedom of religion under Article 25(1) is, therefore, subject to the power of the State to make laws for social welfare and social reforms. Thus, the banning of bigamous marriage was upheld as a measure of social reforms. Likewise, the provisions of the Hindu Marriage Act, 1955 are protected under Article 25 (2) (b). On the same basis the prohibition of evil of Sati or system of „devdasi‟ was upheld.
The right protected by Article 25 (2) (b) is a right to enter into a temple for purposes of worship and it should be construed literally in favor of public. But it does not follow from this that the right is absolute and unlimited in character. In Venkataraman Devaru v. State of Mysore, (1958) it was held that no member of the Hindu Public could, for example, claim as the rights protected by Article 25 (2) that a temple must be kept open for worship at all hours of the day and night or that he should personally perform those services which the acharyas alone could perform.
Explanations to Article 25
Explanation 1 to Article 25 of the Constitution recognizes the rights of the followers of the Sikh religion to wear Kripans as an emblem of their religion. Kripan means a Sword, but its size and shape has not been prescribed by the Sikh religion. It may, therefore, be a sword of any size or shape. But a Sikh cannot carry any number of Kripans or swords. He is not allowed to possess an extra sword without license.
Explanation II to Article 25 declares that the expression “Hindu” shall be constructed as including persons professing the Sikh, Jaina or Buddhist religion. The explanation is only for the purposes of Article 25 (2) (b) and for no other. Various statutes accord legislative recognition to the fact that even though Jains may not be Hindus by religion they are to be governed by the same laws as Hindus and cannot claim to be a separate religious minority
The Supreme Court in In re, Noise Pollution case(2005), 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.
Thus, subject to the restrictions which this Article imposes, every person has a fundamental right under our Constitution not merely to entertain such religious belief as may be approved of by his
judgment or conscience but to exhibit his belief and ideas in such overt acts as are enjoined or sanctioned by his religion and further to propagate his religious views for the edification of others.
Freedom to Manage Religious Affairs (Article 26)
Article 26 provides (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.
Article 26 is the main article that provides the corporate freedom of religion governing the relation between the State and 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. Clause (b) of article 26 guarantees to every religious denomination or any section thereof the right to manage its own affairs in matters of religion and clause (d) gives them the right to administer their property (institutions) in accordance with laws passed by the State. It is obvious from the language of the clauses (b) and (d) of article 26 that there is an essential difference between the right of a denomination to manage its religious affairs and its right to manage its property.
This means that a religious denomination’s right to manage its religious affairs is a fundamental right protected by the Constitution. No legislation can violate it except for health, morality and public order. But the right to administer property associated with religion can be exercised only
“in accordance with law”. In other words, the State can regulate the administration of religious property by way of validly enacted laws.
Under Article 26 (b), therefore, a religious denomination or organization enjoys complete autonomy in the matter of deciding as to what rites and ceremonies are essential according to the
tenets of the religion they hold and no outside authority has any jurisdiction to interfere with their decision in such matters.
Rights Guaranteed Under Article 26
Right to establish and maintain institutions for religious and charitable purpose.
The constitution makers believed that for the establishment of religious and charitable institutions it is vital to have the right to freely manage and administer thereof. For a religious denomination to maintain the religious institution, it has to be first established by the denomination claiming such right.
Right to manage its own religious affairs.
Article 25(2) (b) upholds the individual’s protection from discrimination and Article 26(b) on the contrary upholds the institutional right to an organised religious practice. This apparent inconsistency was resolved by the court in Devaru’s case where the court held that “matters of religion” in Article 26 includes those tenets and practices of a religion that are basic to the religion fall within its ambit. ceremonies when only members of the community are entitled to participate to the exclusion of all others.
Right to own and acquire movable and immovable property along with the right to administer it.
The right to own and acquire property is an important right for any institution to manage its own affairs. It is not possible for a body to function effectively if it does not have the freedom to manage and administer its property. This is not an absolute right in the sense that it does not take away the power of the state to acquire the property of the religious denomination. Therefore, not only the denomination but also the state can govern the property. The restriction, however, has to reasonable and not of nature so as to completely negate the right. Moreover, the clause (d) uses the phrase ‘in accordance with the law’ which entails that state can regulate the administration be means of a valid legislation. This is also the distinction between clause (b) and clause (d). The right to manage religious affairs cannot be abridged by any law.
Religious Denomination
A religious denomination is a subgroup within a religion that operates under a common name, tradition, and identity. 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”.
Thus if a body has a:
Common Faith
Common Organisation
Distinctive Name;
it categorises as a religious denomination.
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. In Jagannath Ramanuj Das v State of Orissa(1954) Court held that the expression ‘matters of religion’ in Article 26 extends to acts done in pursuance of religion and covers rituals, observances, ceremonies and modes of worship.
In Acharaj Singh v. State of Bihar (1966) 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.
Commissioner, Hindu Religious Endowments, Madras v. Shri Lakshmindra Tirtha Swamiar of Shri Shirur Mut (1954)
In this case Madras Hindu Religious and Charitable Endowments Act 1951 was passed by the Madras legislature in 1951. The object of the Act, as stated in its preamble, was to amend and consolidate the law relating to the administration and governance of Hindu religious and charitable institutions and endowments in the State of Madras. The Act contained sections
dealing with the powers of the State with regard to the general administration of the Hindu religious institutions, their finances and certain other miscellaneous subjects. The SC held that the Act had violated constitutional guarantees under articles 25 and 26 of the Constitution. Court observed that a law which takes away the right of administration from the hands of a religious denomination altogether and vests it in any other authority would amount to a violation of the right guaranteed under cl. (d) of Art.26.
Durgah Committee, Ajmer v. Syed Hussain Ali (1961)
In this case in 1955, the Parliament had passed the Durgah Khawaja Saheb Act, 37 to administer the Durgah and the endowment of the Durgah Khawaja Moinuddin Christi at Ajmer. This Durgah, which is a Muslim pilgrim centre built at the tomb of Khawaja Moinuddin Saheb who is a Christi saint, has been visited by both Muslim and Hindu pilgrims. Sections 4 and 5 of the Durgah Khawaja Saheb Act of 955, provided for the appointment of a Durgah Committee by the Central Government to administer and manage the Durgah endowment According to the terms of sections 4 and 5 of the Act, the members of the committee nominated by the Government were to be Hanafi Muslims. Section 15 of the Act laid down the instruction that the Committee should follow the Muslim rules and tenets of the Christi saint in performing and conducting the established rites and ceremonies at the tomb of the Christi saint.
The Supreme Court found that the provisions of the said Act were not violative of the Constitutional rights guaranteed to religious communities. The Court observed that the Act regulated only the secular practices associated with religion, which were not essential or integral part of religion.
Bramchari Sidheshwar Bhai v. State of West Bengal (1995)
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 (1967)
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:
1. They infringe on the fundamental right under Article 30 to establish and administer educational institutions.
2. 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.
Saifuddin Saheb v. State of Bombay (1962)
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.
Bira Kishore Dev v. State of Orissa, (1964)
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.
In State of Rajasthan v. Sajjanlal Panjawat (1973) SC 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.
Atheist Society of India v. Government of A.P., (1992)
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.
Indian Young Lawyers Association v The State of Kerala (2018)
The most recent judgment is with regard to the entry of women in the Sabarimala temple complex. The five-judge bench in its majority opinion held that prohibition on the entry of women within the sanctum sanctorum of the temple is unconstitutional.
According to the court, Sabarimala temple is not a separate religious denomination because it does not satisfy the requirement of a distinctive name. It is controlled by the States under Article 290-A of the constitution and regulated by a statutory Board constituted under Travancore- Cochin Hindu Religious Institutions Act, 1950.
Further, this cannot be saved under Article 26(b) since it is controlled by article 25. Barring of the menstruating women is violative of their right to equality (Article 14), right to freedom of religion (Article 25) and is patent discrimination on grounds of sex (Article 15(2)).
However Review Petition in the concerned case against the judgment is pending before larger Bench of SC.
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.
Probable Questions
1. Explain the ambit and scope of fundamental right to Religion given to the citizens
2. “All persons are equally entitled to freedom of conscience and the right freely to profess, practise and propagate religion”. Comment
3. Critically evaluate concept of Secularism in light of Article 25 and 26 of Constitution 4. Briefly explain the following with help of decided cases:
i. Freedom of Conscience ii. Religious Denomination
iii. Limitations on Fundamental Right to Religion iv. Integral and essential part of Religion
v. Right to manage its affairs in matter of religion
