1.

INTRODUCTION: RIGHT TO FREEDOM OF RELIGION

India is a pluralistic society and a country of religions. It is inhabited by people of many religions.
The framers of the Constitution thus desired to introduce the concept of secularism, meaning state
neutrality in matters of religion. They also wanted to confer religious freedom on various religious
groups. The Constitution therefore seeks to ensure state neutrality in this area. 1 It is through several
provisions that the Indian Constitution upholds the spirit of secularism. The Article 25 is one of the
pillars of fundamental rights guaranteed by the Constitution. The relevance of this legislation can be
gauged only when one understands the importance of preserving the pluralistic ethos of the country
and the idea of harmonious coexistence of different religions.

India most popularly acknowledged as the land of spiritual beliefs, philosophical thinking, culture,
has also been the birthplace of quite a few numbers of religions out of which some of them exist in
this era as well. ‘Religion’ is entirely a matter of choice, perception and belief. Paying heed to the
Indian scenario we can conclude that, people in this country have a strong faith and dependence
when it comes to their religion as they perceive that religion adds meaning and reason to their lives.
When it comes to people who are extremely devoted to their religion, they leave no stone unturned in
showing fidelity towards their respective religion.

The right to “freedom of religion” is contained in Articles 25 to 28 of the Indian Constitution.

Various rights which go to constitute the “right to freedom of religion” are:

A. Freedom of conscience and right to freely profess, practice and propagate religion (Article
25);

B. Right of a religious denomination to manage religious affairs (Article 26);

C. Freedom from payment of taxes for promotion of any religion (Article 27); and

D. Freedom from attendance at religious instructions in certain educational institutions (Article

28).

Articles 25 to 28 use the term “person”. Therefore, freedom of religion is secured, is available to
every person, citizens or non-citizens or aliens.2

1
M.P. Jain, Indian Constitutional Law (Lexis Nexis Butter Works, 2010) Pg.- 1315.
2
Ratilal Panachand Gandhi v. State of Bombay, AIR 1954 SC 388.
 2. INDIA – A SECULAR STATE

It is made explicit in the very Preamble that India is a secular State. It does not mean that it is an
irreligious or atheistic State. Nor, it means that India is an anti-religious State. It merely explains that
the State has no religion of its own. That, in matters of religion, State is neutral. It neither promotes
nor practices any religion, nor does it interfere with any religious practice. That the State is not
concerned with the relationship of men with other men.

The Constitution ensures equal freedom to all religions at the same time, it is declared that the
religion of a person has nothing to do in the matters relating to social and economic welfare of the
people, which matters can be regulated to restrict by the State by law.

“Secularism”, the Supreme Court explained in, St. Xavier’s College v. State of Gujarat, 3 “is
neither anti-God, nor pro-God; it treats alike the devout, the agnostic and the atheist. It eliminates
God from the matters of the State and ensures that no one shall be discriminated against on the
ground of religion”. That, every person is free to mound or regulate his relations with God in any
manner. He is free to go to God or to Heaven in his own ways. And, that worshipping God is left to
be dictated by his own conscience.

In, kesavananda Bharti v. State of Kerala, 4the Supreme Court held that secularism was one of the
basic features of the Constitution. To make it expressly clear the Constitution (forty-second
Amendment) Act, 1976 inserted the term “secular” in the Preamble to the Constitution of India.

Secularism means developing, understanding and respect for different religions.

In Aruna Roy v. Union of India,5the validity of the new National Education Policy, 2002 which
provided for value-based education to school children on basis of all religions was challenged as
violative of Art. 28 and anti-secular. The Court held that the study of religions in school education is
not against the secular philosophy of the Constitution. Justice Dharmadhikari said that from the
experience of the working of Constitution for more than fifty years the complete neutrality towards
religion and apathy for all kinds of religious teachings in institutions of the State have not helped in
removing mutual misunderstanding and intolerance inter se between sections of the people of
different religions faiths and beliefs. Secularism therefore, is susceptible to positive meaning that is
developing, understanding and respect towards different religions. The essence of Secularism is non-

3
AIR 1974 SC 1389.
4
AIR 1973 SC 1461.
5
AIR 2002 SC 3176.

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discrimination of people by the State based on religious differences. Secularism can be practiced by
adopting a complete neutral approach towards religions or by positive approach by making one
section of religious people to understand and respect religion and faith of another section of people.
Based on such mutual understanding and respect for each other’s religious faiths, mutual distrust and
intolerance can gradually be eliminated. His Lordship quoted Gandhiji who said “the real meaning of
Secularism is Sarva Dharma Sambhav meaning equal treatment and respect for all religions. But we
have misunderstood it as Sarva Dharma Abhav meaning negation of all religions. In a society
wedded to Secularism ‘study of religions’ would strengthen the concept of secularism in its true
spirit.6

3. FREEDOM OF RELIGION

DEFINING RELIGION

The term religion is not defined in the Constitution. It is not susceptible of any rigid definition. In
Commissioner, H.R.E. v. L.T. Swamiar7, the Supreme Court explained: -

Religion is 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 Clause. A religion undoubtedly has its basis in a system of beliefs
or doctrines which are regarded by those who profess that religion as conducive to their spiritual
well-being. It will not be correct to say that religion is nothing else but a doctrine or belief. A
religion may not only lay down a code of ethical rules for its followers to accept, it might prescribe
rituals and observances, ceremonies and modes of worship which are regarded as integral parts of
religion, and these forms and observances might extend even to matters of food and dress.

A religion is, therefore, not merely an opinion, doctrine or belief. It has its outward expression in acts
as well. Religious practices or performance of acts in pursuance of religious belief, are as much a
part of religion as faith or belief doctrines. 8 Religion is the belief which binds spiritual nature of men
to super-natural being. It includes worship, belief, faith, devotion etc. and extends to rituals. 9

It has also been said that the word religion in Articles 25 and 26 must be understood not as is
colloquially understood by the word religion, but in the sense of it comprehending our concept of

6
J.N. Pandey, Indian Constitutional Law (Lexis Nexis Butter works, 2002) Pg. 294.
7
AIR 1954 SC 282.
8
Ratilal v. State of Bombay, AIR SC 388.
9
P.M.A. Metropolitan v. Moran Mar Marthoma, AIR SC 2001.

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dharma. Marking the difference between religion and dharma, Justice Hansaria explained in
Narayana case that a “sectarian religion is open to a limited group of people whereas dharma
embraces all and excludes none.” The learned Judge further said that the word religion in the
Articles 25 and 26 had to be understood not in a narrow sectarian sense but encompassing out ethos
of.

In Lily Thomas v. Union of India,10 the Supreme Court explained that religion was a matter of faith
stemming from the depth of the heart and mind and that religion, faith and devotion were not easily
interchangeable. The Court further said that if the person feigned to have adopted under religion just
foe some worldly gain or benefit, it would be religious bigotry. Looked at from this angle, the Court
ruled that a person who mockingly adopted another religion where plurality of marriage was
permitted to renounce the previous marriage and desert the wife, he could not be permitted to take
advantage of his exploitation, as religion was not a commodity to be exploited. Prosecution of the
apostate-husband under Section 494 of IPC, 1860, did not violate freedom of religion, the Court
held.

Practices which are regarded by a religious community as part of its religion are also matters of
religion. For instance, right to bury dead bodies in a manner with rites in consecrated places is part
and parcel of certain religions

Where members of certain denomination had existing right to cremate dead bodies of their near and
dear ones on plot allotted to them, denial of that right would amount to abridgement of their
fundamental right to freedom of religion. So, ruled, the Gauhati High Court in Worter Kharmalki
v. State of Meghalaya, held that the petitioner had the right to freedom of religion to cremate dead
bodies of their near and dear ones on plot allotted to them. However, it was found to be undesirable
and was resulting in polluting the atmosphere, the authorities would be under a duty to provide them
adequate cremation ground.

Freedom of conscience and right to profess, practice and propagate religion

Article 25(1) provides: “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.”

Therefore, this Clause secures to every person-

(a) Freedom of conscience; and

10
AIR 2000 SC 1650.

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(b) The right to-

i. Profess religion;

ii. Practice religion; and

iii. Propagate religion.

(A) FREEDOM OF CONSCIENCE

The expression “freedom of conscience” means the inner freedom of a person to mound his
relations with his God in whatever manners he likes. It 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. Every person in India therefore, has the freedom to have faith and belief in religious tenets of
any sector community.

“freedom of conscience”, simply speaking, means the freedom to entertain religious beliefs. Any
belief which is genuinely and conscientiously held, attracts the protection of Article 25(1). It means
the freedom of religious opinion, the right to hold or to entertain religious beliefs as may be approved
by his judgment or conscience. Until this inner belief is expressed in any outward form, it is merely
the “freedom of conscience.”

Freedom of conscience has no necessary connection with any religion or of any faith in God. It also
implies the right of a person not to be converted into another man’s religion or to bring to any
religion at all.

(B)(I) RIGHT TO PROFESS RELIGION

Article 25(1) guarantees the right to profess religion. To “profess” means to avow publicity; to
make an open declaration of; to declare one’s belief in; as to profess Christ; to accept into religious
order. Thus, to profess a religion means to declare freely and openly one’s faith or belief in. when the
inner “freedom of conscience” becomes articulate and expressed in an outward form, it amounts to
profess religion. It is to declare one’s belief in such a way that it would be known to those whom it
may concern.11

(B)(ii) RIGHT TO PRACTICE RELIGION

To practice religion means to perform religious duties, rites or rituals. The protection is, thus, not
limited to matters of doctrine but extends to rituals and observances. The expression “practice of

11
Punjab Rao v. D.P. Meshram, AIR 1965 SC 1179.

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religion” signifies acts done in pursuance of religious belief. The guarantee contained in Article
25(1), not only, protects the freedom of religious opinion, but it also protects acts done in pursuance
of a religion. To enable a person to practice the beliefs and opinions which he holds, in a meaningful
manner, it is essential for him to receive the relevant information, otherwise, he may be prevented
from acting in consonance with his beliefs and opinions.

While offering of prayer or worship is a religious practice, its offering at every location where such
prayers can be offered, would not be an essential or integral part of such religious practice and not
protected under Article 25.12

Practices which constitute integral and essential part of religious practice

Religious practices to which Article 25(1) refers, includes practices which are an integral part of the
religion itself, i.e., the beliefs and doctrines which are regarded by those who profess religion, to be
conducive to their spiritual well-being. The integral or essential part of a religion is primarily to be
ascertained with reference to the doctrines of that religion itself. For example, for Hindus, these may
include offerings of food to the idol; performance of periodical ceremonies; recital of sacred texts;
13
offering oblations to the sacred fire. For Sikhs, the wearing of Kara, the wearing and carrying of
Kirpans, recital of Holy Guru Granth Sahib is the integral part of their religion. For Muslims, calling
Azan, performance of Hajj, are some of the integral practices in their religion.

Article 25(1) protects those rituals and observances, ceremonies and modes of worship, which are
considered by a religion, to be its integral and essential part. therefore, practices which, though
religious, have sprung from merely superstitious beliefs, may in that sense, be extraneous and
unnecessary accretions to religion itself.

Whether a religious practice constitutes essential 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.

The question would be decided by the Court, and the findings of the Court will depend on the
evidence adduced before it as to the conscience of the community and the tenets of its religion. For
instance, the Apex Court in John Vallamattom v. Union of India,14 held that disposition of
property for religious of charitable uses was not an integral part of Christian religion.

12
M. Ismail Faruqui v. Union of India 1995 SC 605.
13
Surjeet Singh Chhabra v. Union of India, AIR 1997 SC 2560.
14
AIR 2003 SC 2902.

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 15
In Masmood Alam v. Commissioner of Police, the Calcutta High Court held that the use of a
loudspeaker for calling Azan was not an integral part of the Muslim religion and therefore,
suppression of the use of loudspeaker did not offend the right of the petitioner guaranteed by an
article 25(1). No religion prescribes for performing prayers through amplifiers and beating drums.
Likewise, it is not an obligatory overt act enjoyed by Muslim religion that an Islamic girl, studying in
all girl’s section, must wear head covering. 16

In State of Bombay v. Narasu Appa Mali, 17 the Bombay Prevention of Bigamous Marriages Act,
1946, which forbade bigamy among Hindus, was challenged as violative of the freedom of religion
of the respondent as guaranteed by Article 25(1). The Bombay High Court held the Act valid and
said that the birth of a natural born son was not an essential and integral part of Hindu religion. It
was why the institution of adoption was created.

In M.H. Quareshi v. State of Bihar, 18 the petitioners challenged the constitutional validity of the
Bihar Prevention and Improvement of Animals Act, 1956. The petitioners inter alia contended that
the impugned Act violated their fundamental right guarantee by Article 25(1). They argued that the
sacrifice of a cow on their Bakri Idd Day was an integral part of their religion. The Supreme Court
rejected the contention and held that there was no material on the record before the Court which
would enable them to say that the sacrifice of a cow on that day was an obligatory act for a Muslim
to exhibit his religious belief and idea.

The Muslim Law permits marrying four women. However, nowhere the law mandates or dictates it
as a duty to perform four marriages. 19

In Jagdishwaranand v. Police Commissioner, Calcutta, 20 the Court, after going into the religious
book and practices of the Ananda Margis, held that tandava dance in public is not an essential part of
Ananda Marga.

Upholding the validity of the Acquisition of Certain Areas at Ajodhya Act, 1993, the Supreme Court
by a majority of 3:2 in Ismail Farooqui v. Union of India21 held that in view of temporary vesting
in the Central Government of the disputed and adjacent land at Ajodhya where Babri Masjid existed
was not a violation of Article 25. It said:

15
AIR 1956 Cal 9.
16
Fathema Hussain Sayed v. Bharat Education Society, AIR 2003 Bom. 75.
17
AIR 1952 Bom 84.
18
AIR 1958 SC 731.
19
Narender Kumar: Constitutional Law of India (Allahabad Law Agency, 2010) Pg. 324.
20
(1983) 4 SCC 522.
21
(1994) 6 SCC 360.

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 “The right to practice, profess and propagate religion guaranteed under Article 25 of the
Constitution does not necessarily include the right to acquire or own or possess property. Similarly,
this right does not extend to the right of worship at any and every place of worship so that any
hindrance to worship at a place per se may infringe the religious freedom…

While offer of prayer or worship is a religious practice, its offering at every location where such
prayer can be offered would not be an essential or integral part of such religious practice unless the
place has a significance for that religion to form an essential and integral part thereof. Places of
worship of any religion having significance for that religion, to make it an essential or integral part of
that religion, stand on a different footing and must be treated differently and more reverentially….

A mosque is not an essential part of the practice of the religion of Islam and namaz (prayer) by
Muslims can be offered anywhere, even in open. Accordingly, its acquisition is not prohibited by the
provisions in the Constitution of India….”

(B)(iii) Right of Propagation of Religion

To propagate religion, means to spread and publicize one’s religious views. Holding public meetings
by persons for propagating their religion is held to be guaranteed under Article 25(1). But to
propagate religion indicates persuasion and exposition without any element of coercion. It does not
include the right to insult the religion of others. Azan given by the Imam or the person in charge of
the Mosques, though an essential and integral part of Islam, but, not a form of propagation.

Rev Stanislaus v. Madhya Pradesh, 22 is a matter where the Supreme Court of India considered the
issue whether the fundamental right to practice and propagate religion includes the right to convert,
held that the right to propagate does not include the right to convert and therefore upheld the
constitutional validity of the laws enacted by Madhya Pradesh and Orissa legislatures prohibiting
conversion by force, fraud or allurement.

Reverend Stanislaus of Raipur challenged the Madhya Pradesh Dharma Swatantrya Act by refusing
to register conversions. The Madhya Pradesh High Court upheld the Act by stating that the freedom
of religion must be guaranteed to all, even those who are subject to conversions by "force, fraud, or
allurement." When the Orissa Freedom of Religion Act was challenged in the Orissa High Court, the
decision went in the opposite direction on grounds that the definition of "inducement" was too broad
and that only the parliament had the power to enact such legislation and the state legislature did not
have the power to legislate on this matter. The Supreme Court of India heard both these cases

22
1977 SCR (2) 611.

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together and ruled in favor of both the Acts. The Supreme Court held that the right to propagate
religion did not grant the right to convert another person to one’s own religion. It merely meant the
right to transmit or spread one’s religion by an exposition of its tenets.

23
In Ramesh Chotalal Dalal v. Union of India, the Supreme Court accepted that Article 25
guaranteed the right to draw attention of the Court to ensure that the communal atmosphere was kept
clean and unpolluted.

In this case, the petitioner moved the Court for a writ of prohibition restraining the concerned person
from telecasting or screening of the serial titled “tamas” and to enforce his fundamental rights under
Articles 21 and 25. The serial based on a novel written by Sri Bhisma Sahni, deputed how during the
partition of India communal violence was generated by fundamentalists and communalists of both
communities.

The Court held that there was no danger to communal atmosphere by telecasting or screening the
said serial and that there was no violation of Article 25. The respondents had not acted with malice
or bad motive in screening the serial. That, there could not be any apprehension that it was likely to
affect public order, or it was likely to incite the commission of any offence. Instead, the serial viewed
in its entirety, the Court held, can create lasting impression of the message of peace and coexistence
and that it was more likely that the serial would prevent the incitement of such offences in future by
extremists and fundamentalists.

In P.M.A. Metropolitan v. Moran Mar Marthoma, 24 the Supreme Court held that the right to
practice and propagate religion includes the right to ex-communicate the person belonging to that
religion. The Court said all religious bodies were regarded by the courts of law in the same position
in respect of the protection of their rights and the sanction given to their respective organizations.
That, discipline of a Church, however could not affect any person except by express sanction of the
civil power or by voluntary submission of the person. The Court said that one of the effects of ex-
communication was that the person concerned was deprived of the right of worship. It was, under our
Constitution, a fundamental right. Therefore, the Court said that any interference with this right or its
deprivation could be challenged in the court of law.

23
AIR 1988 SC 775.
24
AIR 1995 SC 2001.

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 4. RESTRICTIONS ON THE FREEDOM OF RELIGION

The “freedom of conscience” and the right to “profess, practice and propagate” religion, guaranteed
by Article 25(1) is subjected to: -

▪ Public order, morality, health and other provisions of Part III

▪ Any law regulating or restricting any economic, financial, political or other secular activity
associated with religious practice.

▪ Any law providing for social welfare and reforms or the throwing open to all persons the
religious institutions, belonging to their religion, of a public character.

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

In the name of religion, no act can be done against public order, morality and health of the public.
Section 34 of the Police Act prohibits the slaughter of cattle or indecent exposure in public place.
These acts cannot be justified on plea of practice of religious rites. Likewise, in the name of religion
‘untouchability or traffic in human beings’ e.g., system of devadasis cannot be tolerated. This
freedom is also subject to the “other provisions of this part’. E.g., right to freedom of speech and
expression, freedom to assembly and association, freedom to carry on a profession, trade and
business. The freedom to practice religion cannot affect the exercise of these freedoms by others.
These rights are subject to the reasonable restrictions under Clause (2) of Article 19. Right to
propagate one’s religion does not give right to anyone to “forcibly convert any person to one’s own
religion. Forcible conversion of any person to one’s own religion might disturb the public order
hence could be prohibited by Law.

Forced conversion not allowed

In Rev Stainislaus v. State of M.P.,25 the validity of the two Acts- the Madhya Pradesh Dharma
Swatantrya Adhiniyam, 1968 and the Orissa Freedom of Religion Act, 1967—passed by the State
Legislatures of Madhya Pradesh and Orissa respectively was challenged claiming they were violative
of the fundamental right of the appellant guaranteed under Article 25(1) of the Constitution. These
Acts were passed to prohibit forcible conversion of any person to one’s own religion. The appellant
was prosecuted for the commission of offences under the Madhya Pradesh Act. He contended that
the right to ‘propagate’ one’s religion meant the right to convert person to one’s own religion and
was a fundamental right under Art. 25(1) of the Constitution. Secondly, he argued that the State

25
AIR 1977 SC 908.

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Legislature had no competence to enact such a Law as it did not fall within the purview of Entry I so
Parliament alone had the power to make the Law and not the State Legislature.

Rejecting the contentions of the appellant the Supreme Court held that impugned Acts fell within the
purview of Entry I of List II as they were meant to avoid disturbances to the public order by
prohibiting conversion from one’s religion to another in a manner reprehensible to the conscience of
the community. These two Acts do not provide for the regulation of religion and therefore do not fall
under Entry 7 of List I. declaring with the meaning of the words ‘public order’ the Court held that if
a thing which disturbs the current of the life of the community and does not merely affect an
individual it would amount to disturbance of the public order. Thus, if an attempt is made to raise
communal passions, e.g., claiming someone has been “forcibly” converted to another religion, it
would, probably, give rise to an apprehension of a breach of the public order, affecting the
community at large. Therefore, Legislation prohibiting forcible conversion of one’s own religion in
the interest of public order can be passed and is valid.

Following Rev Stainislaus ruling the Supreme Court bench comprising of Chief Justice V.N. Khare
and Justice S.B. Sinha held that the Orissa Freedom of Religion Act, 1967 which provided that a
person wanting to convert to a religion must make a personal declaration which would be verified by
the Police also, is valid and overruled the decision of the Orissa High Court. The Court said, “What
Article 25 grants is not the right to convert another person to one’s own religion but to transmit or
spread one’s religion by an exposition of its tenets.”

26
In Gulam Abbas v. State of U.P., it has been held that the direction given by the Supreme Court
for shifting a property connected with religion to avoid clashes between two religious communities
or sects does not affect religious rights being in the interest of public order. In that case the facts
were that there had been a long-standing dispute between the Shias and Sunnis of Mohalla
Doshipura, Varanasi, regarding the performance of religious rites by members of Shia sect on certain
plots and properties situated in the Mohalla. There had been violent clashes between the two
religious communities leading to proceeding and several petitions before the Supreme Court. To find
a permanent solution to the problem the Supreme Court appointed a committee of seven persons
consisting of three nominees of Shias and three nominees of Sunnis and the Divisional
Commissioner as Chairman. The committee recommended that the shifting of two graves of Sunnis
to separate the places of worship of Shias and Sunnis was feasible. The Sunnis challenged the
implementation of the recommendation claiming it was violative of their rights under Articles 25 and

26
(1984) 1 SCC 81.

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26 of the Constitution. The Supreme Court however, rejected their contention and held that the order
of the Court was not violative of the Constitution as the rights under Article 25 and 26 are not
absolute but subject to maintenance of public order.

Similarly, in the case of Acharya Jagdishwaranand Avadhuta v. Commissioner of Police,

27
Calcutta (ANAND MARGA CASE), the Supreme Court held that the tandava dance in
procession of public places by ananda margis carrying lethal weapons and human skulls was not an
essential part of their religion and hence, the order under Section 144, Cr.P.C. prohibiting such
practice in interest of public order and morality was not violative of Article 25(1) of the
Constitution. 28

Also, the issue of alleged forced conversions in Agra rocked India in December 2014, and the
government proposed an anti-conversion law at both the central and state levels. On 8
December 2014, Hindu nationalist groups affiliated to the Rashtriya Swayamsevak Sangh (RSS)
were reported to have converted 250 Muslims to Hinduism in Agra. The incident was condemned by
all the opposition parties. The functioning of the Indian Parliament was log-jammed in December.
News reports indicated that Muslim right-wing groups in India have received a `lease of life' in
trying to protest the conversions. After a full investigation, the Uttar Pradesh Minorities Commission
concluded that the Muslims had not converted as they continued to "remain Muslims. “At present
only Arunachal Pradesh, Gujarat, Madhya Pradesh, Himachal Pradesh and Odisha currently
have anti-conversion laws

Two children norm for elective post not violative of Article 25-

In Javed v. State of Haryana,29 the Supreme Court has held that Section 175(11)(q) of the Haryana
Panchayati Raj Act, 1994 which disqualifies person having more than two children from contesting
election for the post of Sarpanch and Panch does not violate Article 25 of the Constitution as it is in
the interest of social welfare and reform.

(2) Regulation of economic, financial, political and secular activities associated with religious
practices – Clause (2)(a)

It enables the State to regulate or restrict the economic, financial, political or other secular activities
associated with religious practice. Therefore, a Law which falls within Article 25(2)(a) or (b) will be
Constitutionally valid, even if it is found to be inconsistent with the right guaranteed by Article

27
(1984) 4 SCC 522.
28
Ibid, pg. 304.
29
AIR 2003 SC 3057.

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25(1). However, the words economic, financial, and political or other secular activities mean those
activities which are not of the essence of religion.

In Mohd. Hanif Quareshi v. State of Bihar, the Supreme Court held that the Law prohibiting the
slaughter of cow did not violate the freedom of religion of the Mohammedan and therefore, the
practice could be regulated.

In S.P. Mittal v. Union of India, the petitioners challenged the constitutionality of the Auroville
(Emergency Provisions) Act, 1980, claiming it was violative of their fundamental rights under
Articles 25 and 26. The Auroville (Emergency Provisions) Act, 1980 was enacted for taking over the
management of Auroville for a limited period. The question before the Court was whether Sri
Aurobindo Society and Auroville Township constituted religious denomination and that whether the
impugned Act violated the rights of the petitioners under Articles 25 and 26.

The Supreme Court by a majority of 4:1 held that the teachings of Shri Aurobindo constituted a
philosophy and not religion and that the society and Auroville Township were not religious
denominations, the Court held that the Auroville (Emergency Provisions) Act, 1980, did not curtail
the freedom of conscience and the right freely to profess, practice and propagate religion. Therefore,
there was no question of the impugned Act being the secular matters, which matters could be
regulated by law under Article 25(2) (a).

In g Raju v. State of Kerala, students belonging to Seventh Day Adventist denomination, a

worldwide Protestant Christian denomination, contended that in terms of the core faith of the
members of that denomination, they had to abstain from any activity from 6 a.m. to 6 p.m. on
Saturdays and, therefore, claimed that special arrangements be made for them for appearing for the
SSLC Examination, March, 2008, after 6 p.m. Rejecting the contention, the Kerala High Court held :
that the Kerala Education Act, 1959 and the Kerala Education Rules, 1959, were nothing but secular
laws to be enforced, without any classification on the basis of caste, religion etc., except to the extent
provisions were made in tune with the constitutional goals and provisions.

Scheduling of examination, on a day, not acceptable to a class of citizens professing a religion, did
not infract the fundamental right guaranteed by Article 25(1), the Court ruled.

In Raja Bira Kishore Dev v. State of Orissa, the Sri Jagannathan Temple Act, 1954, divested the
Raja of Puri of the sole control and management of the temple and vested it in a Committee
constituted under the Act. The Supreme Court held the Act valid, for it merely regulated the secular
activities relating to the temple.

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In Sri Adi Viseshwara of Kashi Vishwanath Temple, Varanasi v. State of Uttar Pradesh, 30 the
U.P. Sri Kashi Vishwanath Temple Act, 1983, which divested the Pandas of their right to manage the
temple and receive offerings, was challenged as violative of their right under Article 21. The Court
explained that religious freedom guaranteed by Articles 25 and 26, was intended to be a guide to a
community life and ordained every religion to act according to cultural and social demands to
establish an egalitarian social order. So, interpreted, it was held that the right to manage a temple or
endowment, was not integral to religion or religious practice. The Court further said that the right to
receive offerings was not a vested right of the Pandas but a right coupled with duty to render service,
which could be regulated by the State by Law.

The Apex Court in N. Adithayan v. Travancore, Devaswom Board, 31 held that a person well
versed, properly trained and qualified to perform pooja, in manner conducive and appropriate to
worship of a deity, not be denied the appointment as a Priest because he was not a Brahmin by birth
or pedigree.

In Bhuri Nath V. State of Jammu and Kashmir,32 Court while dealing with the validity of J & K
Shri Mata Vaishno Devi Shrine Act, 1988, and the abolition of the right of Baridars to receive share
in the offerings made by pilgrims to Shri Mat Vaishno Devi, observed their right to perform pooja is
only a customary right coming from generations which the State can and have by legislation
abolished and that the rights seemed under Articles 25 & 26 are not absolute or unfettered but subject
to legislation by the State limiting or regulating any activity, economic, financial, political or secular
which are associated with the religious behalf, faith, practice or custom and that they are also subject
to social reform by suitable legislation. It was also reiterated therein that though religious practices
and performances of acts in pursuance of religious beliefs are, as much as, a part of religion, as
further belief in a particular doctrine, that by itself is not conclusive or decisive and as to what are
essential parts of religion or behalf or matters of religion and religious practice is essentially a
question of fact to be considered in the context in which the question arise on the basis of materials-
factual or legislative or historic if need be giving a go bye to claims based merely on supernaturalism
or superstitious beliefs or actions and those which are not really, essentially or integrally matters of
religion or religious belief or faith or religious practice.

30
JT 1997 (4) SC 124.
31
AIR 2002 SC 3538.
32
AIR 1997 2 SCC 745.

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(C) Social Welfare and Reforms and throwing open of temples

Article 25(2)(b) contains the following two ideas:

(1) Measures of social reform are permissible and would not be void on the ground of interfering
with freedom of religion. Thus, the Hindu Marriage Act which introduces the principle of monogamy
for the Hindus is undoubtedly a law providing for social welfare and social reform. It is a Legislation
intended for the benefit of the class of persons to whom the Act applies. 33 Thus, legislative
interference with law of marriage does not constitute an infringement of Hindu religion. Succession
like marriage is a secular matter and is not within the guarantee contained in Article 25.

In Krishna Singh v. Mathura Ahir, the Supreme Court has said that the Fundamental Rights do not
touch upon the personal law of the parties. Article 25 thus involves a separation between religious
activities, on the one hand, and secular and social activities, on the other. While the former is
protected the latter are not.

Article 25(2)(b) enables the State to take steps to remove the scourge of untouchability from amongst
the Hindus. The word “public” here includes any section of the public. Public institutions would thus
mean not merely temples dedicated to the public, but even those which are founded for the benefit of
sections thereof, and denominational temples would thus fall within the scope of this Clause.

Article 25(2)(b) protects the right to enter a temple for purposes of worship. This, however, is not an
unlimited right. Thus, for instance, no Hindu can claim, as part of the right protected by Art.
25(2)(b), that a temple must be kept open for worship at all hours of the day and night, or that he
should personally perform those religious services in a temple which the archakas or pujaris are only
entitled to perform.34

A restriction on the freedom of religion can be upheld only if it falls within the exception of Clause
(1) and (2) of Article 25. It cannot be imposed on any other extraneous consideration. Further, that
the restriction must have the authority of law. 35

In Bijoe Emmannel v. State of Kerala, 36 the Supreme Court explaining the scope of the restrictions
which might be imposed on the freedom of religion observed: “these could be imposed either to give
effect to the other provisions of Part III of the Constitution or under the authority of a law made to

33
State of Bombay v. Narasu, AIR 1952 Bom. 84.
34
M.P. Jain, Indian Constitutional Law (Lexis Nexis Butterworks, 2010) Pg. 1326.
35
Ibid 19, Pg. 330.
36
AIR 1987 SC 748.

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regulate or restrict any economic, financial, political or secular activity associated with religious
practice.”

Use of loudspeakers in temples / mosques etc.

Using the loudspeakers for making noise is not guaranteed by the Constitution. The protagonists of
this thought took shelter of Article 19(1) freedom of speech and right to expression. However,
nobody can claim a fundamental right to create noise by amplifying the sound of his speech with the
help of loudspeakers. In this context, cracking of fireworks on Diwali & using loudspeakers for
Azhan in the morning had also come under Supreme Court’s scrutiny. The Court restricted the time
of bursting the firecrackers, and it does not in any way violate the religious rights of any person as
enshrined under Article 25 of the Constitution. The festival of Diwali is mainly associated with Pooja
performed on the auspicious day and not with firecrackers. In no religious textbook it is written that
Diwali must be celebrated by bursting crackers. Diwali is considered as a festival of lights not of
noises. In this context, the Government of India framed and published Noise Pollution Control and
Regulation Rules, 1999. This legislation was amended in 2002 and empowered the State
Governments to permit use of loudspeaker or public-address system during night hours (between 10
pm and 12 pm mid-night) on or during the cultural or religious occasions for a limited period not
exceeding 15 days.

The Supreme Court in Church of God in India v. K.K.R. Majestic Colony Welfare Assn. held
that the Court may issue directions in respect of controlling noise pollution even if such noise was a
direct result of and related to religious activities. The mandate included the following lines:
“Undisputedly, no religion prescribes that prayers should be performed by disturbing the peace of
others nor does it preach that they should be through voice amplifiers or beating of drums. In our
view, in a civilized society in the name of religion, activities which disturb old or infirm persons,
students or children having their sleep in the early hours or during daytime or other persons carrying
on other activities cannot be permitted”.

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 5. FREEDOM OF RELIGION OF RELIGIOUS DENOMINATIONS (ARTICLE
26)

Article 26 provides: “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 may be noted that Article 25 is available to all persons while Article 26 is confined to religious
denominations.

(a) Meaning of religious denomination

The word “denomination” has been defined in the Oxford Dictionary to mean “a collection of
individuals classed together under the same name: a religious sect or body having a common faith
and organization and designated by distinctive name.” a religion can have several sects or sub-sects
and each one of them can certainly be called a religious denomination. In many cases, they are
known by the name of founder and have a common faith and common spiritual organization. Thus,
the followers of Ramanuja, who are known by the name of Sri Vaishnavas, undoubtedly constitute a
religious denomination; and so, do the followers of Madhavacharya and other religious teachers.
Article 26 contemplates not merely a religious denomination but also a section thereof. The “math”
or the spiritual fraternity represented by it can legitimately come within the purview of this Article. 37
A religious denomination need not owe allegiance to any parent religion. The entire following of a
religion may be no more than the religious denomination. This may be particularly so in the case of
small religious groups or developing religions, that is, religions in the formative stage.

While dealing with “religious denomination”, the Andhra Pradesh High Court held that it was the
distinct common faith and common spiritual organization and the belief in a religious teacher of
philosophy on which the religious denomination was founded or based, that was the essence of the
matter; but not any caste or sub-caste or a deity worshipped by a caste or community. 38

37
Commissioner, HRE v. L.T. Swamier, AIR 1954 SC 282, 289.
38
Ramalingayya v. Commissioner, C & HRE, ILR (1971) Andh Pra 320.

17 | P a g e
It was held in S.P. Mittal v. Union of India,39 that the words religious denomination takes their
color from the word religion and must satisfy three conditions:

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

b) Common organization; and

c) Designation by a distinct name.

In this case, the Supreme Court on a consideration of Association, income tax and other teachings or
writings concluded that neither the Aurobindo Society nor Auroville constitute a religious
denomination. The teachings of Shri Aurobindo only represent his philosophy and is not a religion.

A judicial view has been expressed that followers of the Hindu religion, as such, even though
numerous and divided into many sects and sub-sects, can be regarded as a ‘religious denomination’,
for if it were not so, then while an institution belonging to a sect or a sub-sect of Hindus would get
the protection of Art. 26, an institution belonging to the Hindus generally would be deprived of that
protection. The term denomination can be used in a larger or narrower sense depending on the
context, and therefore, all the followers of a religion may quite appropriately be regarded as
constituting a religious denomination. 40

In Shastri Yognapurushdasji v. Muldas Bhundardas Vaishya, the Swaminarayan Sampradaya

was held not to be a religion distinct and separate from the Hindu religion. A law enacted by the
Bombay Legislature threw open every place of worship which was open to all sections and classes of
Hindus. The Court ruled that as the Swaminarayan Sect was not a distinct and separate from the
Hindu religion, the temples belong to the sect fell under the ambit of this Act.

In Sri K.P.A.S. Committee v. Commissioner of H.R.C.&E,41 the Supreme Court held that Arya
Vysya Community, the Hindus worshipping Goddess Matha Kanya Kaparameswari were not
denominational section for Article 26(b) and 26(d) of the Constitution. They were held to be an
institution covered by the provision of the Endowments Act. The Court relied on the decision in Sri
Adi Visheshwara f Kashi Vishwanath Temple, Varanasi v. State of Uttar Pradesh, 42 wherein the
Court had held that the Hindu worshippers of Lord Shiva were not a denominational section and
therefore, not entitled to the benefit of this Article.

39
AIR 1983 SC 19.
40
Ramchandra v. State of Orissa AIR 1959 Ori 5.
41
AIR 1997 SC 2332.
42
JT 1997 (4) 124.

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The benefit of Article 26 is not confined to minority groups only. Sikhs, though in majority in
Punjab, constitute a ‘religious denomination’ and can thus, take the benefit of this Article.

It has been explained that for a community to be a religious denomination, the common faith of the
community, should be based on religion and in that they should have common religious tenets and
the basic cord, and the basic cord which connects them, should be religion and not merely
considerations of caste or community or societal status. So, said, the Apex Court in Nellor
Marthandam Vellalar v. Commissioner Hindu Religious and Charitable Endowments 43, ruled
that Vellala Community could not be said to be a religious denomination to seek the protection under
Article 26.

An expansive opinion was expressed by an eleven-Judge Bench in T.M.A. Pai Foundation v. State
of Karnataka,44 in respect of Article 26(a) when it said:

“The right to establish and maintain educational institutions may also be sourced to Article 26(a),
which grants, in positive terms, the right to every religious denomination or any section thereof to
establish and maintain institutions for religious and charitable purposes, subject to public order,
morality and health.”

(b) Right to Establish and Maintain Institutions [Article 26(a)]

In Article 26(a), the words ‘establish and maintain’ go hand in hand. It means, therefore, that where
an institution has been established by a religious denomination, then it can claim the right to
maintain the same as well. The right to ‘maintain’ an institution includes the right to ‘administer’ as
well. A denomination has no right to maintain an institution which has not been established by it.

The words ‘establish’ and ‘maintain’ must be read conjunctively. A religious denomination can
claim to maintain only those institutions which it has established.

The right under this Article is a group right and is available to every religious denomination or any
section thereof, be it of majority or any section thereof.

In Aneez Basha v. Union of India,45 the Aligarh University was established by the Central
Government under the Aligarh Muslim University Act, 1920, enacted by Central Legislature. The
Supreme Court held that since the University was not established by Muslims, there was no question
of the University being managed by them.

43
AIR 2003 SC 4225.
44
2002 8 SC 481: AIR 2003 SC 355.
45
AIR 1968 SC 662.

19 | P a g e
The right guaranteed under this Article is subjected to “public order” and “morality” and “health”. It
means that the right under Article 26(a) may be restricted on these grounds only and not on some
other ground.

The right to maintain an institution for religious and charitable purposes includes the right to exclude
the profession or practices belonging to other religions. In Sanjib Kumar v. Principal, St. Paul
College, the Principal of the College established by the Christian Missionary Society, refused the
petitioner to perform saraswati puja in the College premises. The Calcutta High Court held that the
refusal of the Principal did not violate the fundamental right of the petitioner and Principal was
entitled to refuse the performance of such a religious practice in the exercise of his right to maintain
the institution under Article 26(a).

(b) Right to Manage Matters of Religion [Article 26(b)]

Clause (b) of Article 26 says that a religious denomination or organization is free to manage its own
affairs in ‘matters of religion.’ The State cannot interfere in the exercise of this unless they run
counter to public order, health or morality. Accordingly, every religious denomination or
organization enjoys complete freedom in the matters of deciding what rites and ceremonies are
essential according to the tenets of the religion they hold. The Court has the right to decide whether a
rite or ceremony is regarded as essential by the tenets of a religion.

The right, is, it is to be noted, is confined to “matters of religion”. The term matters of religion
include religious practices, rites and ceremonies considered essential for practice of religion. The
right, is however, subject to the regulatory power of the State under clause (2)(b) of Article 25. This
means that secular activities connected with religious institutions can be regulated by State by law.
The places of worship like temples, mosques, and gurudwaras cannot be used for hiding criminals or
carrying on anti-national activities. The State has power under Article to prohibit these activities in
the places of worship.

What constitutes an integral or essential part of religion must be determined with reference to its
doctrines, practices, tenets, historical background, etc., of the given religion.

In Commr. Of Police v. Acharya J. Avadhutta46, the Apex Court elucidated the expression “an
essential part or practice of a religion” to mean those practices which were fundamental to follow a
religious belief.

The Court observed:

46
AIR 2004 SC 2984.

20 | P a g e
 Freedom to manage religious affairs does not mean creation of any right which it never had. It
merely safeguards the existing rights.”

In Commissioner, H.R.E. v. L.T. Swamiar, 47 (popularly known as Shirur Math case) Section 21
of the Madras Hindu Religious and Charitable Endowments Act, 1951, which empowered the
Commissioner of Endowments and his sub-ordinate officers and persons authorized by them, to enter
the premises of any religious or any duty imposed by or under the Act, was struck down as violative
of the guarantee contained in Article 26(b).

Likewise, the appointment of a person of one sect, as achkara of another sect infringes the right of
the later sect to manage its religious matters, under Article 26(b).

In Saifuddin Sahib v. State of Bombay,48 the Court explained that Article 26(a) ensured a
denomination, the continuity of the denomination. Such continuity was possible only by maintaining
the bond of religious discipline, which would secure the continued adherence of its members to
certain essentials like faith, doctrines, tenets and practices. The right to such continued existence, the
Court held, would involve the right to maintain discipline by taking suitable action, inter alia Court,
thus, held that ex-communication of a member of a denomination, solely on religious grounds, and
formed part of the management of the matter of religion, through its religious head. The Bombay
Prevention of Ex-Communication Act, 1949, which prohibited the head of Dawoodi Bohra
Community, from ex-communicating the members of the community, was held to infringe the right
of the community secured under Article 26(b).

The Chinnamma v. D.P.I.,49 The Andhra Pradesh High Court upheld the expulsion of a nun
belonging to Roman Catholic Mission from sisterhood for the unbecoming conduct on her part.

The Bombay Hindu Places of Public Worship (Entry Authorization) Act, 1956, authorized every
Harijans to visit and worship in any temple coming under the Act, ground that it authorized the non-
Satsangis to enter the places of worship managed by them, who constituted a separate religious sect.
the Supreme Court upheld the validity of the Act as its object was to establish social equality
between all sections of the Hindus in matters of worship. However, the Court observed that actual
worshipping of the Deity would continue to be performed by the authorized pujaries of the temple in
accordance with the traditional and conventional manner and by no other devotee entering the temple
for darshan.

47
AIR 1954 SC 282.
48
AIR 1962 SC 853.
49
AIR 1964 A.P. 277.

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In Atheist Society of India v. Government of A.P,50 the petitioner, Atheist Society of India, prayed
for issuing a writ of mandamus directing the State Government to prohibit breaking of coconuts,
performing of pooja, chanting of mantras or sutras of different religions at State functions. The
Andhra Pradesh High Court rejected their prayer and held that these practices have been a part of the
Indian tradition and meant to invoke the blessings of Almighty for the success of the project
undertaken. Such noble thought cannot be found fault with as offensive to anyone. May be that the
petitioner’s society who claim to be atheist or do not appreciate the invocation of gods as they do not
believe in God. There is no Constitutional guarantee to the faith of the atheists who worship barren
reason that there is no god. It is not the object of the Constitution to turn the country into an
irreligious place. A secular place does not prohibit the practices of religion. If that is prevented it will
infringe the rights of crores of Indians which are granted to them under Article 25 and will run
directly contrary to the secular objectives of the preamble of the Constitution which is one of the
basic structures. It would deprive them of their right to thought, expression, belief, faith and would
amount to abolition of Indian tradition and religious practices.

Right to Own and Administer Property [Articles 26(c) & 26(d)]

Clause (c) of Article 26 secures to a religious denomination or any section thereof “the right to own
and acquire movable and immovable property.” Clause (d) further strengthens this right by
guaranteeing to the denomination “the right to administer such property in accordance with law.”

Reading these Articles together, it becomes obvious that a distinction has been drawn between the
right ‘to manage its religious affairs’ by a religious denomination and its right ‘to manage its
property.’ Regarding affairs in matters of religion, the right of management given to a religious body
is a guaranteed Fundamental Right which cannot be taken away by Law (subject to certain
restrictions). On the other hand, about administration of property, which a religious denomination is
entitled to own and acquire, it undoubtably has the right to administer such property only in
accordance with law.

While matters of religion are entirely outside the place of law, it is not so with respect to property
which must be held and enjoyed according to law. This means that the State can regulate the
administration of trust properties by means of laws validly enacted: but here again under Article
26(d), it is the religious denomination or general body of religion itself which has the right to
administer this property in accordance with any valid law.

50
AIR 1992 AP 310.

22 | P a g e
Any law which takes away the right of administration altogether from the religious denomination and
vests it in any other body or a secular authority, would amount to violation of the right which is
guaranteed by Article 26(d). Thus, imposition of land revenue on land belonging to a religious
denomination is not hit by Article 26 when the burden imposed ‘is a burden to be imposed on the
denominational institution. Burden of that nature is outside the right guaranteed by Article 26 of the
Constitution. 51

Takeover of the management of the Auroville Township for a limited period is not a matter of
religion as Auroville is not a place of worship. It is a township dedicated to promoting international
understanding and world peace. It is a secular and not a religious activity.

Although under Article 26(d), the State can regulate administration of property attached to a
religious institution, there is, nevertheless, the condition that the right of administration must always
vest in the concerned religious denomination itself which shall administer the property according to
law. The State can regulate property of a denomination but cannot divest it of its right to administer
the same and vest it in another body. Whatever restrictions and regulation a law might impose on the
denominational right to manage its property, the right of management must still be left with the
denomination itself. A law which takes away the right of administration from the hands of the
concerned religious denomination altogether and vest it in any other body violates Art. 26(d). In
Ratilal Panachand Gandhi v. State of Bombay,52 the Bombay Public Trusts Act, 1950, which
provided for the, appointment, by a Court, of the charity Commissioner as a sole trustee of religious
public trusts was struck down as violative of the right of the religious denomination under Article
26(d). The Supreme Court has explained the position in this regard as follows:

“…. regarding affairs in matters of religion, the right of management given to a religious body is a
guaranteed Fundamental Right which no legislation can take away. On the other hand, about
administration of property which a religious denomination is entitled to own and acquire, it has
undoubtedly the right to administer such property, but only in accordance with law. This means that
the State can regulate the administration of trust properties by means of law validly enacted: but here
again it should be remembered that under Article 26(d), it is the religious denomination or general
body of religion itself which has been given the right to administer its property in accordance with
any law which the State may validly impose. A law which takes away the right of administration
altogether from the religious denomination and vests it in any other or secular authority, would
amount to violation of the right which is guaranteed by Article 26(d) of the Constitution.”

51
M.P Jain, Indian Constitutional Law (lexis Nexis butter works) pg. 1330.
52
AIR 1954 SC 388, 391.

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The Muslim Wakfs Act which lays’ down that every member of the Wakfs Board is to be a Muslim
is valid as it does not deprive the religious denomination, namely, the Muslims, of its right to
administer the wakf property.53 Similarly, vesting of the administration of a Hindu temple in a
committee consisting of Hindus only does not contravene Article 26(d). 54

55
In State of Rajasthan v. Sajjanlal, the Supreme Court held a law valid vesting management of
Jain religious trusts in committees of management subject to the condition that the members of the
concerned committee should belong to the same denomination to which the trust belonged. The
government cannot nominate persons of one denomination to manage trust belonging to another
denomination. The person authorized to nominate the persons of the Managing Committee need not
be part of the denomination.

However, Article 26 does not interfere with the right of the State to acquire property. Also, the right
to own and acquire property under Article 26(c), is not a part of basic structure of the Constitution.

The Gujarat Legislature enacted an Act with a view to abolish inams held by a religious or charitable
institution. No compensation was payable. The Act was placed in the IX Schedule to the
Constitution. The Gujarat High Court declared the Act to be constitutionally valid in S.B.
Narayancharya Public Trust v. State of Gujarat. The Court ruled that right conferred by Article
26(c) is not a part of the basic features or structure of the Constitution; it is not absolute and
unqualified right to the extent that no agrarian reform can touch upon the lands owned by the
religious denomination. The impugned Act fell within the scope of Articles 31A (1)(a) and 31B. The
Act was also protected under Article 31C.

Acquisition of a religious place

In Dr. M. Ismail Farooqui v. Union of India, the Supreme Court has considered the question of
acquisition of a religious place by the State. A temple, church or a mosque, etc. are essentially
immovable properties and subject to protection under Articles 25 and 26. Every immovable property
is liable to be acquired. While offer of prayer or worship is a religious practice, its offerings at every
location where such prayers can be offered would not be an essential or integral part of such
religious practice unless the place has a significance for that religion to form an integral part thereof.

Places of worship of any religion having significance for that religion, to make it an essential or
integral part of religion, stand on a different footing and must be treated differently and more

53
Usman Khan v. Faezulla, AIR 1959 MP 377.
54
Ram Chandra v. State of Orissa, AIR 1959 Ori 5.
55
AIR 1975 SC 706.

24 | P a g e
reverentially. Nevertheless, “the acquisition of any religious place is to be made only in unusual and
extraordinary situations for a larger national purpose keeping in view that such acquisition should not
result in extinction of the right to practice that religion, if the significance of that place be such.
Subject to this condition, the power of acquisition is available for a mosque like any other place of
worship of any religion.” The right to worship is not at any and every place, so long as it can be
practiced effectively, unless the right to worship at a place is itself an integral part of the right.

In Gulam Kadar Ahmadbhai Menon v. Surat Municipal Corporation, the Gujarat High Court
has ruled that the acquisition of a religious place or a part thereof can be acquired in public interest
for widening of the road. Articles 25 and 26 protect religious practices which are essential and
integral part of practice of religion 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 or integral part of such
religious practice unless the place has a significance for that religion to form an essential or integral
part thereof. Places of worship of any religion having significance for that religion to make it an
essential or integral part of that religion stand on a different footing and must be treated differentially
and more reverentially than the other places of worship of that religion.

25 | P a g e
 6. PROHIBITION OF RELIGIOUS INSTRUCTIONS IN EDUCATIONAL
INSTITUTIONS

According to Article 28(1) no religious instruction shall be imparted in any educational institute
wholly maintained out of State funds. But this clause shall not 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 institutions. Under Clause 1(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 institutions or to
attend any religious worship that may be conducted in such institutions or to attend any religious
worship that may be conducted in such institution or to any premises attached thereto unless such
person or if such person is a minor his guardian has given his consent thereto. Thus Article 28
mentions four types of educational institutions:

a) Institutions wholly maintained by the State;

b) Institutions recognized by the State;

c) Institutions that are receiving aid out of the State fund; and

d) Institutions that are administered by the State but are established under any trust or
endowment.

In the institutions of (a) type no religious instructions can be imparted. In (b) and (c) type institutions
religious instructions may be imparted only with consent of the individuals. In the (d) type
institution, there is no restriction on religious instructions.

In D.A.V. College, Jullundhar v. State of Punjab,56 the validity of Section 4 of the Guru Nanak
University Act which directed the State to make provision for the study and research on the life and
teachings of Guru Nanak.

Supreme Court held that the Act establishing the University did not imply that religious instructions
would be imparted therein. It was to encourage an academic study of the life and teachings of Guru
Nanak, which did not necessarily amount to religious instruction or promotion of any religion. A
provision for an academic study of the life and teaching of the philosophy and culture of any great
saint of India in relation to, or their impact on the Indian and world civilization, the Court held, could
not be taken as providing for religious instructions relating to a religion.

56
AIR 1971 SC 1737.

26 | P a g e
In Aruna Roy v. Union of India,57 the Apex Court held that Article 28(1) did not prohibit education
of religion dissociated from “tenets”, the rituals, observances, ceremonies and modes of worship of a
sect or denomination. “The Court distinguished between “religious instructions” and “study of
religion.” What are prohibited are the former and not the latter. “recommending that students be
acquainted with the basics of all religions, the values inherited therein and a comparative study of
philosophy of religions”, the Court held “neither offends Article 28 nor brings secularism to peril.”

In the words of DHARMADHIKARI, J.: “study of religions, therefore, in school education cannot be
held to be an attempt against the secular philosophy of the Constitution.”

57
AIR 2002 SC 3176.

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 7. APPRAISAL OF CASE LAWS

The Article 25 is one of the most misinterpreted articles of the Indian Constitution. Although it
guarantees the freedom to follow any religion and propagate it, yet this freedom comes with a
responsibility to ensure that the public order, morality and health are not compromised in the
process. In an unprecedented order, the Bombay High Court issued a directive allowing the entry of
women into the inner sanctum of the sacred Haji Ali Dargah in Mumbai, banned since 2011. While
most have celebrated the decision as a landmark victory for women’s rights, there are some who
question the constitutionality of the verdict. After all, they say, the Constitution of India protects the
rights of the trustees of the Dargah to manage its own affairs in matters pertaining to religion in
Article 26. Article 25(1) guarantees the right to freedom to profess, practice and propagate religion.
However, there is also a sub-clause which is often ignored. The wording of the clause reads as:
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.

It is important to note that unlike the language of Article 19 where the main article lists out all the
fundamental rights followed by the reasonable restrictions they are subject to, Article 25 begins with
restrictions subjective to judiciary’s discretion, in the case of conflict. In fact, Article 25(2)(a) allows
the state to make laws “regulating or restricting any economic, financial, political or other secular
activity which may be associated with religious practice.

In the case of the Haji Ali dispute, the petitioners belonging to Bhartiya Muslim Mahila Andolan
(BMMA) contended that Article 25(1) protects their right to practice religion, which includes the
right to worship. Since Article 26(d) mandates that the trust administers Haji Ali in accordance to the
law which demands the equality of all persons, the ban is de facto contentious. In the matter of the
trust having the right to manage its own affairs, the question comes down to -is the act of women
entering the dargah a religious matter? While it is true that Articles 25 and 26 were written to protect
not only matters of doctrine and belief but also acts followed in the pursuance of beliefs (forbidding
women to enter the inner sanctum, in this case), they are limited to “rituals and observances,
ceremonies and modes of worship which are integral parts of religion.” (Syedna Saiffudin vs State of
Bombay, 1962). Since the constitution does not define what can be termed as “integral parts of
religion”, the matter ultimately comes to judiciary to interpret on a case-to-case basis. In the case of
Lakshmindra Swaminath (1954), the Supreme Court ruled that “what constitutes the essential part of
a religion is primarily to be ascertained with reference to the doctrines of that religion itself.”

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In the Haji Ali dispute, the petitioners contended that neither the Quran nor the Hadith forbade
women from entering the mosque or gender inequality of any kind. In fact, the respondent’s main
claim was that a woman being so near the grave of a male Muslim saint is a “grievous sin” per
Shariyat Law, which, contrary to popular view, does not come from the basic scriptures of Islam; in
fact, most of them are man-made. Thus, by their own admission, the respondents preclude their main
argument from judicial consideration. At this point, any critical thinker will question the “essential
practices test” and whether the judiciary has the right or competency to decide what is essentially
religious and what is not; in fact, the term “essential religious practices’ finds no mentions in the
constitution at all, then why look to it?

The answer can be found, not very far, in the words of the father of the Indian Constitution, Dr BR
Ambedkar:
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. I do not think it is possible to accept a position of
that sort. 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 beyond beliefs and such rituals as
may relate to ceremonials which are essentially religious.58

With the Haji Ali verdict, not only has the court excluded the trust and its ban against women from
constitutional protection, by opining on whether the ban is essentially religious, has redefined the
religion itself in a more progressive direction. To say that this verdict is a case of judicial overreach
is to undermine the spirit of the religious freedom clauses written in the Constitution and is by no
means is violative of it. In fact, it is giving stalwarts like Ambedkar little credit for foreseeing such
disputes and wisely leaving enough space for the state to pass reformative and social legislature.

58
An excerpt from Ambedkar’s speech at the Constituent Assembly on 2 December 1948

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 8. CONCLUSION & SUGGESTIONS

This right basically entitles every Indian citizen and gives him the liberty to preach, practice and
propagate the religion of his choice. This right also provides him the leisure to sermonize about his
religion, gives the opportunity to spread it among everyone without any fear of governmental
intervention. But at the same time the State expects that the citizens practice it amicably within the
jurisdiction of the country

This constitutional provision does not give individuals the right to conduct animal sacrifice and
perform religious rituals on a busy street or public place that causes inconvenience to others.
Similarly, the use of loudspeakers in temples or mosques is not guaranteed in the Article 25. Bursting
fire crackers for religious occasions and using loudspeakers during religious prayers had come under
the scrutiny of the Supreme Court that restricted the time of bursting crackers.

The Article 25 should not be considered as absolute. Though the right to perform rituals is protected
under this Article, yet the state retains the power to formulate laws to regulate “economic, financial,
political” and other activities which are not directly related to a religion. That’s the reason why the
government controls the management of some of the temples.

Human rights activists and constitutional experts believe Article 25 dilutes the importance of
secularism that most Indians swear by. Their criticism of this Article stems from the fact that it
considers Sikhs, Jains and Buddhists as sections of Hindus and doesn’t acknowledge them as
independent religions.

The demand for amending clause (b) of Article 25 has started gaining momentum with the leaders of
the Sikh community and MPs making a fresh bid to get the Article amended. Adding fuel to this
demand, a US-based rights group has launched an online petition to garner more support. According
to the president of Shiromani Gurdwara Parbandhak Committee (SGPC), Sikhism is a religion which
has its distinct traditions and philosophy and the Sikhs are being deprived of their legitimate rights
due to this Article.

In the present scenario where India very closely observes the consequences of the communal clash,
the sense of respect and accommodation for other sects and communities must be inculcated in the
masses. The ambit of control exercised by the government over religious activities must be checked.
A sense of inclusiveness must be provided to the people belonging to minority community. The idea
of religion is very personal to individuals and it should be left personal only rather than bringing this
topic on stage and deriving political gains out of it. This right has already been protected by the

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Constitution of India and it is the duty of the court to uphold and enforce these rights. At the end I
would suggest that this provision is a rightful one and there is no need to amend or remove this
provision because India is a multiverse of religion and there must be someone to regulate them to
safeguard the citizens from any exploitation. Unlike other rights which can be practised against the
state, this provision can be practised against the individual by the state. The provision has therefore
helped to maintain the basic structure of the constitution and secularity of the country.

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 BIBLIOGRAPHY

Statutes

• The Constitution of India, 1950

Books

1. ‘Narender Kumar: Constitutional Law of India’ (Allahabad Law Agency, 2010)

2. ‘Constitutional Law of India: A critical Commentary’ – by H. M. Seervai, 4th Edition
(Universal Law Publishing, 2008)
3. ‘Constitution of India’ – by Dr. L.M Singhvi, 2nd Edition (Modern Law Publications, 2008)
4. Indian Constitutional Law’ - by Prof. M. P. Jain’ (Published by Wadhawa and Company,
Nagpur 8th Edition, Reprint, 2018)
5. J.N. Pandey, Indian Constitutional Law (Lexis Nexis Butter works, 2002)

Cases

1. St. Xavier’s College v. State of Gujarat

2. Kesavananda Bharti v. State of Kerala
3. Commissioner, H.R.E. v. L.T. Swamiar
4. M.H. Quareshi v. State of Bihar
5. S.P. Mittal v. Union of India
6. T.M.A. Pai Foundation v. State of Karnataka
7. Ratilal Panachand Gandhi v. State of Bombay
8. D.A.V. College, Jullundhar v. State of Punjab

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