Right to Freedom of Religion - Indian Constitution

This post aims to cover all the Constitutional events that happened in Freedom of Religion starting from the commencement of the Constitution to up till now

Right to Freedom of Religion

Table of Content

• Introduction
• Secularism in the Indian Constitution
• Nature of Indian Secularism
• Case Laws
• Nature of Religious Freedom under the India Constitution
• Article 25
• Article 25 (1)
• What is Religion?
• What Constitutes an essential part of Religion?
• What does not constitute an essential part of religion?
• What is Freedom of Conscience?
• What are the rights protected under Article 25(1)?
• Restrictions on Freedom of Religion.
• Article 25(2)
• When can the state regulate religious practice?
• Restriction on religious freedom under Article 25(2)(a) and 25(2)(b)
• Article 26
• What is the meaning of a religious denomination?
• Right of religious denominations
• Restriction on Religious denomination
• Restriction on state power in matters of religious denomination
• Article 27
• State funds and their utilization in religious matters

• Article 28
• Restriction on Educational Institutions maintained wholly out-of-state funds.
• Exception to Article 28(1)
• Religious Instructions
• Religious freedom and Uniform Civil Code
• Meaning of Uniform Civil Code
• Case Laws
• Religious Conversion 

Introduction

Freedom of religion and secularism are fundamental principles that uphold the diversity and harmony of a society. In India, the right to practice and propagate any religion is a constitutional right, and the country follows a secular framework that ensures equal treatment and protection for all religions. With a rich tapestry of various faiths, India celebrates its cultural and religious diversity, fostering a spirit of unity and mutual respect among its people.

Secularism in the Indian Constitution

The 42nd Amendment of the Indian Constitution made India's secularism explicit in the preamble, which was previously implicit. The term secular is mentioned in preamble and in article 25(2)(b) but not defined anywhere in the constitution. In the preamble, it denotes that the state does not accept any religion as the basis of state action, and in Article 25(2)(b) it means religious activities that are not essential are worldly or mundane.

A secular state is not an irreligious state, it only means that in matters of religion, it is neutral

Nature of Indian Secularism

• Religious Neutrality and Impartiality towards all religions.
• Indian state does not have religion of its own.
• Concerned with the relationship between man and man not with man and god.
• Equal respect for all religions
• Equal protection without any favor or discrimination (Article 25- 28)
• Restricted interference in matters of religion concerned with the regulation of socio-economic matters

In Kesavananda Bharathi vs. the State of Kerala, AIR 1973 SC 1461, the SC declared Secularism as a Basic structure of the Indian constitution.

Case Laws

In S.R.Bommai vs. Union of India, AIR 1994 SC 1918 a nine-judge bench discussed the concept of secularism in the Indian context and held

• Religious tolerance, equal treatment of all religions, protection of life, property, and place of worship are essential parts of Indian and secularism.
• In matters of state, religion has no place.
• The state is neither pro-god nor anti-god.
• Purely religious matters can be left to Individuals or religious groups.
• Any state that pursues unsecular policies or courses of action is guilty of eroding the secular philosophy of the Constitution and hence renders itself amenable to action under Article 356.
• Secularism is not static but an elastic concept.

In M. Ismail Faruqui vs. Union of India, (1995) 6 SCC 2098 the court held that the constitution guarantees equality in the matter of religion and that equality is one facet of secularism and it also held secularism is a creed of the Indian people embedded in the ethos.

In A.S. Narayana Deekshitutlu vs. State of A.P. (1996) 9 SCC 548 the SC differentiated the terms 'Secularism' and 'Secularization'. It stated that secularization is the process of decline in religious activity, belief, ways of thinking and in the restructuring the institution. Non religious or anti-religious practices are antithesis to secularism.

Nature of Religious Freedom under the Constitution

• Every mundane and Human activity will not be considered an essential practice of Religion. Articles 25 and 26 must be viewed with pragmatism Sri Adi Visheshwara etc., v. Uttar Pradesh 
• Freedom of religion under the Constitution is not merely the freedom to hold opinions, beliefs, etc., but it also includes the freedom to perform certain acts in pursuance of the faith. Shirur Mutt Case AIR 1954 SC 282
• It does not encroach upon the similar rights of other individuals and is subject to fundamental rights under the constitution Lily Thomas vs. Union of India (2000) 6 SC 224.
• Its intention is to guide a community's life and to establish social order based on its cultural and social demands Sri Adi Visheshwara of Kashi Vishwanath Temple
• It includes not only the right to entertain his belief but also to exhibit and propagate it in a proper manner  Sri  Sri Lakshamana Yatendrulu vs, State of Tamil Nadu.

Article 25 

Article 25(1) 

What is Religion?

The term religion is not defined in the Indian Constitution.

In Commr. HRE, Madras vs. Sri Lakshmindra, AIR 1954 SC 282 the SC observed "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".

What Constitutes an essential part of Religion?

Shirur Mutt Case AIR 1954 SC 282

What constitutes an essential part of religion has to be determined by referring to the doctrines of the religions.

Sri Adi Visheshwara etc., v. Uttar Pradesh 

The right to observe, Right to practice rituals and the Right to manage religion are protected under Articles 25 and 26 but the Right to manage temples or endowments are not essential practices but are secular. Hence can be state-regulated by law.

In Commr. of Police vs. Acharya Jagadishwarananda, (2004) 12 SC 809 the SC court held

• Protection under Articles 25 and 26 is not confined to the matters of doctrine or belief but extends to acts done in pursuance of religion which includes a guarantee for rituals, observances, ceremonies, and modes of worship which are essential parts of religion.
• What constitutes an essential part of religion has to be determined by reference to religious doctrines, Historical background, etc.
• The essential part means the core belief upon which a religion is found without which the religion cannot exist
• The test to determine the essential part or practice of a religion is that the nature of religion will change without that part or practice
• There cannot be any addition or subtraction to essential parts of the religion as it will change the fundamental character of the religion

What does not constitute an essential part of religion?

In Mohd. Hanif Qureshi vs. State of Bihar, the court held that slaughtering of the cow during Bakrid day is not an essential part of religion.

In Commr. of Police vs. Acharya Jagadishwarananda, (2004) 12 SC 809 the SC court held tandava dance introduced in 1966 is not an essential practice upon which Ananda Marga was founded. Thus it is not a matter of religion. 

In the  Indian Young Lawyer Association & ors vs. State of Kerala, AIR ONLINE 2018 SC 243 the court held that  regardless of the ‘essentiality’ of a practice to the religion, discrimination cannot be allowed in violation of the basic structure of the constitution.

In Shayara Bano v. Union of India & Ors., (2017) 9 SCC 1 the SC held the practice of Triple Talaq is not an essential part of religion and Hence not protected under Article 25.

What is Freedom of Conscience?

Freedom of Conscience is a mental concept. It is the inner freedom of a person to mold his relationship with god, human beings, and other creatures in the manner he prefers. It is a person's right to entertain beliefs and doctrines concerning matters that are regarded by him to be conducive to his spiritual well being.

What are the rights protected under Article 25(1)?

Article 25(1) protects the Right to Profess, the Right to Practice, and the Right to Propagate religion

• Right to Practice 

The protection under Articles 25(1) and 26 extends not only to religious doctrine or belief but also to acts done in pursuance of those beliefs (Sardar Syedna Taher Saifuddin Saheb v. Bombay, 1962).

• Right to Profess Religion

It means to freely declare and openly express one's faith and belief. He has right to practice his belief in any physical manner without affecting the rights of others.

• The right to Propagate religion

In Yulitha Hyde vs. State of Orissa AIR 173 ORI 116, certain provisions in the Orissa Freedom of Religions Act of 1968 prohibited the conversion of religion by inducement. The SC held that Article 25(1) guarantees the propagation of religion and conversion as a part of the Christian religion, but also restricts the conversion by 'Force' or 'Fraud'. The term ' Inducement' under this act is vague and violates religious freedom under Article 25(1).

But this decision was reversed by SC in the Rev. Stainislaus v. State of Madhya Pradesh AIR 1977 SC 908 which held the right to propagate does not include the right to convert one person to another religion.

In Satya Rajan Mahji vs. the State of Orissa AIR 2003 SC 751,  the court reaffirmed its view of Rev. Stainislaus's case that the right to propagate religion does not include the right to convert any person to one's own religion. Hence law prohibiting conversion is not violative of Article 25(1).

The right to freedom of religion does not include a person converting to Islam and marrying a second wife and such a person is guilty of Bigamy. Sarla Mudgal vs. Union of India (1995), 3 SCC 635 and this view was reaffirmed in Lily Thomas vs. Union of India, (2000) 6 SC 224.

In P.M. Bhargava vs. University Grant Commission, AIR 2004 SC 3478 The SC held that the introduction of Jyotir Vigyan as a source of study by UGC is not propagation of religion merely because of its origin is traceable to cult.

Wearing and carrying of Kirpan

Wearing and carrying a Kirpan under Explanation I of Article 25 is deemed to be the profession of the Sikh Religion.

R. vs. Dhyan Singh - Any law made to prevent the carrying of a Kirpan shall be void and kirpans that a Sikh person can carry shall be one.

Restrictions on Freedom of Religion.

Article 25(1) 

Restriction based on Public Order

In Ramji Lal Modi vs. U.P., 1957, the court held that the right to propagate one's religion does not entitle a person to deliberately insult other religions. Article 19(2) of the Indian Constitution protects section 295A of the Indian Penal Code. Not every insult to a religion is punishable under this section. Only those acts that are done with malicious intent and are aimed at causing public disorder are punishable.

The  Right to Profess, the Right to Belief, and the Right to Propagate religion do not include the right to worship at a specific place unless the place holds a specific significance. Due to public order state acquires a place of worship, such acquisition can be considered a secular act. M. Ismail Faruqui vs. Union of India, (1995) 6 SCC 2098.

Restriction based on morality and health

• Any religious freedom enjoyed under this constitution must pass the test of morality and health.

Restriction based on fundamental rights

• The right to Freedom of Religion is subject to other Fundamental Rights
• The freedom that is enjoyed by any person, group of individuals, or denomination is subject to the fundamental rights provided under part III of the constitution.

In Acharya Maharajshri etc., vs. State of Gujarat (1975) SC held that the Right to freedom of religion cannot have an isolated existence, it has to co-exist with other fundamental rights of another person.

Article 25(2) 

When can the state regulate religious practice?

The Religious freedom given under Article 25(1) is not an absolute right.

Restriction on religious freedom under Article 25(2) and Article 25(2)(b)

Article 25(2)(a) and Article 25(2)(b) places a restriction on religious freedom.

It does not prevent the operation of any existing law or the power of the state can make laws to regulate or restrict any 

• Economic
• Financial
• Political
• Secular

activities associated with religious practices under Article 25(2)(a).

In Commr. Hindu Religious Endowment, Madras vs. Sri lakshmindra Thirtha Swamiar of Sri Shirur Mutt case, 1954 (Shirur Mutt Case) SC opinioned that " What Article 25(2) (a) contemplates is not regulation by the State of religious practices as such, the freedom of which is guaranteed by the Constitution unless they run counter to public order, health, and morality, but regulation of economic activities, commercial or political in their character though they are associated with religious practices."

The court can be justified in the rejection of any claim on the grounds of irregular considerations if any matter in issue in the practice of religion is completely secular and does not form an essential part of the religion. (Tilkayat Shri Govindlalji vs. State of Rajasthan, 1964)

The state can acquire the property of a religious institution on payment of compensation. The transaction of an immovable property to money is in the form only and the institution does not suffer any prejudice and hence such acquisition does not violates the rights under Article 25 and 26. (Prankrishna v. Junior Assessor,1954)

Article 25(2)(b)

This Article gives the right to the state to make new laws and protects the operation of existing laws in matters relating to 

• Providing for social welfare 
• Reforms
• opening Hindu religious institutions of Public Character 

to all classes and sections of Hindus.

Social Welfare

In Fazru vs. State of Haryana, AIR 1998 P&H 133 provisions on a Haryana legislature that provides for disqualification of a person who is having more than two children to hold a position as sarpanch, up-sarpanch, or a panch of gram panchayat was challenged on the ground that it is violative of Muslims personal laws.

The High Court upheld the provision stating that the provision in question is a social reform and religious freedom is subject to Article 25(2)(b)

In Javed vs. State of Haryana (2003) 8 SCC 369 the SC upheld a statutory provision disqualifying a person having more than two children from contesting in the election or holding an office as not violative of Article 25.

Reforms

In Bombay vs. Narasu Appa Mali 1951, the Bombay HC upheld the Hindu Prevention of Bigamous Marriage Act of 1944 on the grounds of reform.

In Ram Prasath vs. U. P., the court held U.P government servants conduct rules that prevent the marriage of servants without state government permission during the existence of the first wife is protected under Article 25(2)(b). 

opening Hindu religious institutions of Public Character 

By adopting a rule of Harmonious Construction, the SC resolved an issue between Article 25(2)(b) and Article 26(2) in Sri Venkataramana Devaru vs. Mysore 1958, where the court held the term ' religious institutions of public Character' also includes Hindu religious denominations temple and Article 26(b) is subject to Article 25(2)(b).

Article 26

What is the meaning of a religious denomination?

In Shastri Yagnapurshadasu vs. Muldas Bhandardas Vaishya, AIR 1966 SC 1119, the SC court put forth the test for determining status of any group as a religious denomination.

• It must be a collection of Individuals who have a system of beliefs with regard to their spiritual well-being.
• There must be a Common Organization
• It must have a distinctive name, usually the founder

Right of religious denominations

• Article 26(a) - to establish and maintain institutions for religious and charitable purposes

Religious Denominations establishing educational institutions not just for religious education but also for general education is protected under Article 26(a) Ramakrishna Mission Case

Any religious denomination or any section thereof which do not fall under the ambit of Articles 29(1) and 30(1) can establish an educational institution. T.M.A. Pai Foundation vs. State of Karnataka, (2002) 8 SCC 481

• Article 26(b) -manage its own affairs in the matter of religion

Religious denominations can determine what constitutes essential rites and ceremonies within the tenets of the religion and is their fundamental right to administer their properties according to law and the state can regulate only the expenses incurred during the process through law.Shirur Mutt case, 1954.

Whether a religious practice is rational or irrational is to be determined by religious denomination and it is not open to the court to decide the rationality. (Tilkayat Shri Govindlalji vs. State of Rajasthan, 1964)

Article 25(2)(b) cannot subjugate any matters that are strictly denominational (Sri Venkataramana Devaru vs. Mysore 1958)

• Article 26(c) - To own and acquire movable and Immovable Property

Article 26(c) is subject to state power to acquire a private property. Hence property of religious denomination can be acquired by state

• Article 26(d) - Administer the religious property in accordance with law

(Tilkayat Shri Govindlalji vs. State of Rajasthan, 1964)

 

This case clarifies the distinction between religious belief (Article 26(2)(b)) and the right to manage property (Article 26(c) and (d)). While religious denominations determine the former, the state can regulate the latter through law.

Restriction on Religious denomination

If the right of a denomination under Article 26(b) diminishes the right conferred under Article 25(2)(b), any law under Article 25(2)(b) will prevail.

In Sri Venkataramana Devaru vs. Mysore 1958, a question was raised before the Supreme Court as to whether the term 'religious institution of public character' under Article 25(2)(d) includes temples governed by religious denominations. The Court held that the term not only covers temples of public character but also temples established for the benefit of a section of the public, including those of denominations. Therefore, the Madras Temple Entry Authorization Act of 1947, which permits the entry of Harijans, is not void.

Restriction on state power in matters of religious denomination

A state cannot make a law that takes away the administrative power of the religious denomination and vests it in another authority, as it is violative of fundamental rights under Article 25(1). 

In the Shirur Mutt case, 1954  Section 56 of the Religious Endowments Act was held invalid as it empowers the commissioner to call upon the trustee to appoint a manager to the administration of secular affairs of the institution and in case of default, he can appoint the manager.

In Jagannath vs. B.K. Bathra, 1958 SC court put forth requirements for any scheme in the management of a Mutt property.  

• The scheme should not be unreasonable.
• It should not render the Mahant of a mutt to a mere servant.
• It must not affect the spirituality of the mutt denomination.
• Mahant must be the one to decide the essential rites and ceremonies.
• The administration of Mutt can be regulated by law, but it cannot be taken away from the religious denomination.
• Mahant can dispose of surplus money without affecting the office he is holding.
• Fixing expenditure by law or scheme does not amount to unreasonable restriction.
• Gifts to the Mahant by disciples are his absolute property.

In Narayanan Nair’s Case, the court differentiated Clause (a) and (b) of Article 26 as religious matters and Clause (c) and (d) as secular matters, while the former need not be in accordance with law but later is explicit.

Article 27

State funds and their utilization in religious matters

This Article provides that no person shall be compelled to pay taxes when the proceeds (amount) are specifically collected to meet the expenses for the promotion and maintenance of any particular religion or religious denomination.

It restricts the power of the state and prohibits its use of state funds for the promotion and maintenance of any religion or religious denomination, which emphasizes the secularist nature of the Indian Constitution.

To attract Article 27 there has to be

• Particular preference for one religion over other religions.
• A substantial part of the collected tax is used.

In Jagannathan vs State of Orissa, AIR 1954 SC 4OO the court differentiated the 'fee' and 'tax' and held the amount demanded under the government act for meeting the expenses of the Commissioner and his office set up for the administration of affairs of a religious institution is a fee. Hence Article 27 is not attracted.

In Nasima Khatun Vs State of WB, AIR 1981 SC 302 the court held that the contribution required by the Bengal Wafks Act was a fee and is of secular nature. 

In Prafull Goradia v. Union of India  [2011 2 SCC 568] the court held the relatively small amount, which is not substantial in the tax collected used for providing some conveniences or facilities or concessions of any particular religion would not be violative of Article 27.

In The State of Gujarat vs I.R.C.G. AIR 2018 SC (SUPP) 596, the SC reversed the judgment of Gujrat HC directing the use of State funds for repair/ restructuring/ construction of any place of worship and compensation for the religious structures caused by Gujarat Riots and that it is violative of Article 27 of Indian Constitution.

Article 28

Restriction on Educational Institutions maintained wholly out-of-state funds.

Article 28 prohibits the imparting of religious instructions in educational institutions maintained wholly out-of-state funds.

Exception to Article 28(1)

Article 28(2)

Religious instruction may be provided in state-administered educational institutions established under a trust or endowment that requires it.

Article 28 (3)

This article gives a person attending an educational institution that is recognized by a state or receiving aid from the state

• to attend a religious worship conducted in such an Institution or its premises
• not to take part in the religious instructions that are imparted in the institutions 

In case a person attending is a minor, the consent of the guardian is necessary (St. Xavier College vs. State of Gujarat, AIR 1974 SC 1389)

Religious Instructions

In D.A.V. College, Juilundur Vs. State of Punjab, AIR 1971 SC 1737 The SC held that the Guru Nanak University Act, 1969, which provides for the establishment of Guru Nanak University with provision to study and research on life and teachings or the Philosophy and culture of Guru Nanak in relation to or their impact on the India and World Constitution does not constitute religious teaching.

In Aruna Roy vs. Union of India, (2002) 7 SCC 368 (The Textbook Case) the SC held emphasis on ' Education about religion', their basics, values inherent, and also the comparative study of the philosophy of all religion is not violative of Article 28 and does not affect secularism.

In T.M.A. Pai Foundation & Ors vs State Of Karnataka & Ors The SC held that moral education not associated with the doctrine of a religious denomination does not constitute religious Instruction.

Religious Freedom and Uniform Civil Code

• When the right to freedom of religion is explicitly provided under Fundamental rights, a contrary provision is given in the Directive Principles of State Policy which directs the states to secure a Uniform Civil Code for its citizens throughout the territory of India.

• Though the term 'Uniform Civil Code' is mentioned in Article 44 of the Indian Constitution, its meaning is not defined in the Constitution.

Meaning of Uniform Civil Code

• It means a set of common personal laws governing matters such as marriage, divorce, inheritance, and adoption for all citizens, regardless of their religion. In India currently, each religion has its own personal law. 

• Article 25 guarantees Freedom of Religion but Article 44 aims to divest personal laws, social relations, and such other secular matters from religion. There is no necessary relation between religion and personal law in a civilized society (Sarala Mudgal vs. Union of India, AIR 1995 SC 1531).

• Implementation of a Uniform Civil Code would promote gender equality, Secularism, and National Integration

Case Laws

In MS Jorden Diengdeh vs. SS Chopra, AIR 1985 SC 934 the SC opined that the law relating to divorce, judicial separation and nullity of marriage are far from being uniform, time has come to the enactment of the Uniform Civil Code of Marriage and Divorce.

In Mohd Ahmed Khan vs. Shah Banu Begum, AIR 1985 SC 945 the SC held that divorced Muslim women can claim maintenance under section 125 of CrPC from their husband even after the completion of the Iddat Period and emphasized that the common civil code will promote national integration by removing disparate loyalties to laws which have conflicting ideologies.

This caused a major uproar in the Muslim Community, so the Government enacted the Muslim Women (Protection of Rights on Divorce) Act, 1986 which provides for maintenance from persons who would be heirs to property of divorced Muslim women and in their no such person is present, then Wafks Board. The Government also promised the enactment of the Common Civil Code in due course which would be voluntary and not compulsory. This act nullified the judgment of the SC.

The law enacted by the legislature was challenged in the Danial Latifi vs. Union of India, AIR (2001) 7 SC 740 the SC court upheld the validity of the act and liberally constructed section 3 of the Muslim Women (Protection of Rights on Divorce) Act, 1986 which made husband liable to pay maintenance until the remarriage of the Muslim Women 

In this case, the SC court tried to fill the gap but it is not a substitute for a uniform civil code

In John Vallamathom vs. Union of India, AIR 2003 SC 2902 the SC expressed its regrets on lack of initiative on parliament for the enactment of the Uniform Civil Code.

Religious Conversion 

In Shafin Jahan v. Asokan K.M. and Ors, AIR 2018 SC 1933 (Love Jihad or Hadiya Case) a 24-year-old woman made a interreligious marriage with a Muslim man named Shafin Jahan. The father of the girl filed a case against the marriage in Kerala HC contending that she was forcibly converted to Islam and the marriage needed to be annulled.

The HC on hearing the petition passed an order annulling the Marriage. This order was challenged in the SC.

The SC on hearing this case upheld an individual’s right to marry a person of one’s own choice as well as the right to choose a religion and struck down the HC order.