Introduction

Articles 25 to 28 of the Indian Constitution has conferred certain rights relating to freedom of religion not only to the citizens, but also on all persons in India. These constitutional provisions guarantee religious freedom not only to individuals, but also to religious groups. It seeks to protect religion and religious practices from the interference of State.

As India is a secular State, there is no State preferred religion as such and equal constitutional protection without any favour or discrimination has been guaranteed to all religions. However, rights guaranteed under these provisions are not absolute, but are subject to reasonable restrictions, which may be imposed by the State.

In Javed v. State of Haryana, (AIR 2003 SC 3057), the Supreme Court held that, right to freedom of religion is subject to reasonable restrictions which may be imposed by the State. So, two children norm for elective post of Sarpanch and Panch in Panchayat is not violative to Art. 25 of the Constitution. The right to contest election for any office in Panchayat is not a fundamental right and subject to qualifications and disqualifications.

Meaning of Religion. – The word `religion’ has wide connotation. Religion is a matter of faith with individuals. Religion lays down certain code of ethical rules for the observance by its followers. It is not confined to religious belief but extends to various rituals and ceremonies and modes of worship which the followers of a particular religion consider necessary and conducive for the members of their community.

Article. 25 :- Freedom of consciences and free profession, practice and propagation of religion (सदसद् विवेकबुद्धीचे स्वातंत्र्य, आणि धर्माचे मुक्त प्रकटीकरण, आचरण व प्रसार) :–

(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.

Article 25 can be discussed as under –

(1) Clause (1) guarantees to every person and not merely to the citizens of India the freedom of consciences and the right freely to profess practice and propagate religion. This right is subject in every case to public order, health, morality and any other provision of Part-III.

(2) Clause (2) says that, nothing in this article shall affect 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 institution of a public character to all classes and sections of Hindus.

Explanation 1 –

The wearing and carrying of Kripans shall be deemed to be included in the profession of the Sikh religion.

Explanation 2 –

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.

Comments

Freedom of consciences connotes a person’s right to entertain belief and doctrines concerning matters which are regarded by him to be conducive(हितकारक) to his spiritual well-being. It means the inner freedom of a person to mould his relations with his God in whatever manner he likes. It means to believe in one religion or another or none. Every person in India, therefore, has the freedom to have faith and belief in religious sect or community. In simple words, freedom of consciences means the freedom to entertain religious beliefs. Any belief which is genuinely and religiously held, attracts the protection of Art. 25.

In Ratilal v. State of Bombay, (1954), Court said that, freedom of conscience means the freedom of religious opinion, the right to hold or to entertain religious beliefs as may be approved by his judgment or consciences.

Again in Stainislaus v. State of M. P., (1975), the Court said that, freedom of consciences also implies the right of a person not to be converted into another man’s religion or belong to any religion at all. It has no necessary connection with any particular religion or of any faith in God.

In India all persons are equally entitled the right to freely profess, practice and propagate religion.

(a) To profess a religion means the right to declare freely and openly one’s faith or belief in. It is to declare one’s belief in such a way that, it would be known to those whom it may concern.

(b) To practice religion means to perform the prescribed religious duties, rights or rituals and to exhibit his religious beliefs and ideas by such acts as prescribed by religious order in which he believes.

(c) To propagate means to spread and publicize one’s religious views for the edification of others. It includes persuasion and exposition without any element of coercion.

Gulam Memon v. Surat Municipal Corp., (1998), it was held that, Arts. 25 and 26 does not prohibit State to acquire any place of worship for public purpose. So, an order of the demolition of certain portions of two mosques for widening the road was held as valid.

In Ismail Faruqui v. Union of India, (1994) the Supreme Court by a majority has held that the State can in exercise of its sovereign power, can acquire places of worship like mosques, churches, temples etc. which is independent of Article 300-A of the Constitution if it is necessary for maintenance of law and order. Such acquisition per se does not violate Articles 25 and 26 of the Constitution.

What is protected under Articles 25 and 26 is a religious practice which forms an essential and integral part of religion. A practice may be a religious practice but not an essential part of religious practice. While offer of prayer or worship is a religious practice, its offering at every location where such prayers can be offered would not be an essential religious practice.

Article. 26 : Freedom to manage religious affairs

Article 26 provides that, “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 matter of religion;

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

(d) to administer such property according to law.”

Comments

The right guaranteed by Article 25 is an individual right while right guaranteed by Article 26 is the right of an ‘organised body’.

While Art. 25 confers the particular rights on all persons, Art. 26 is confined to religious denominations or any sections thereof. Art. 26 thus, guarantees collective freedom of religion. The term ‘denomination’ means a collection of individual’s class together under the same name, a religious sect or body having a common faith and organization and designated by the distinctive name. To form a religious denomination three conditions must be fulfilled.

(1) It must be collection of individuals who have a system of beliefs or doctrines, which they regard as conducive to their spiritual well-being, that is, a common faith.

(2) It must have common organization and

(3) It must be designated by a distinctive name.

In Bramchari Sidheswar Sahai v. State of W.B., popularly known as the Ramkrishna Mission case, the SC has held that, the followers of Ramkrishna, who are collection of individuals, and who adhere to a system of beliefs as conducive to their spiritual well being, who have organised themselves collectively and who have an organisation of definite name as Ramkrishna Math or Mission can be regarded as a religious denomination within Hindu religion as they satisfy the tests regarding a denomination as ‘religious denomination’ and would therefore be entitled to claim the fundamental rights conferred on them under Art 26.

Right to establish and maintain-Institutions for religious and charitable purpose :- Under clause (a) of Art 26 every religious denomination has right to establish and maintain institutions for religious and charitable purposes. The words “establish and maintain” must be read together and therefore, it is only those institutions which a religious denomination establishes can claim to maintain it.

In Azeez Basha v. Union of India, (1968), the Supreme Court held that, Aligarh Muslim University was not established by the Muslim minority and therefore it could not claim the right to maintain it. The Aligarh Muslim University was established by the Central government under the Aligarh Muslim University Act, 1920.

Right to manage ‘matters of religion’ : Under Art 26(b) a religious denomination or organisation is free to manage its own affairs in matter of religion. The State cannot interfere unless they run counter to public order, health or morality. The term ‘matters of religion includes religious practices, rites and ceremonies considered essential for practice of religion.

Article. 27 : Freedom as to payment of taxes for promotion of any particular religion :

Article 27 provides that, “No person shall be compelled to pay any taxes the proceeds of which are specifically appropriated in payment of expenses for the promotion or the maintenance of any particular religion or religious denomination.

Comments

Article 27 emphasizes about secular role of the State in promoting religions. The object behind Art. 27 is to protect the secular characteristic of the Constitution of India, which prohibits the promotion or maintenance of any particular religion by the State or at State’s expenses. Therefore, if such a tax is imposed, no person can be compelled to pay it.

In Sri Jagannath v. State of Orissa, (1954), The Supreme Court said that, Art. 27 prohibits the levy of tax and not the imposition of a fee. So, where the payment was demanded for the purpose of meeting, the expenses of the Commissioner and his office which was the machinery set-up for the due administration of the affairs of the religious institution concerned, it is valid.

Article. 28 : Prohibition of religious instructions in educational institutions

Art. 28 can be read as under.

(1) No religious instructions shall be provided in any educational institution wholly maintained out of 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 instructions that may be imparted in such institution or to attend any religious worship that may be conducted in such institution or in any premises attached thereto, unless such person or if such person is a minor, his guardian has given his consent thereto.

In Aruna Roy v. Union of India, (2002), the Court distinguished between religious instructions and study of religion. The Court said that what is prohibited is the former and not the latter. So, comparative study of Philosophy of all religions does not offend Art. 28 of the Constitution.

Concept of secularism : The concept of secularism was not expressly incorporated in theConstitution at the stage of its making. However, its operation was visible in the fundamental rights and directive principles. In 1976 through the 42nd Amendment of the Constitution the concept of secularism was made explicit in the preamble of the Constitution.

The Constitution does not define the term ‘secular’, but generally the word secularism means that State has no religion of its own. That, in the matters of religion the State is neutral. The State is neither going to favour any religion nor it can act against any religion. That,the State is not concerned with the relationship of men with their God.It is concerned only with the relationship of men with other men. The State maintains neutrality in matter of religion and provides equal protection to all religions subject to the regulation of secular parts. Thus, secularism means that State will not favour any religion, but will treat all religions equally. It will treat temple, mosque or church equally without any kind of bias or favour.

In St. Xaviers College v. State of Gujrath, (1974), Supreme Court explained the concept of secularism. Court said that, secularism eliminates God from the matters of the State and ensures that, no one shall be discriminated against on the ground of religion.