5 Right to Freedom of Religion under the Constitution of India

Prof. Abhishek Sudhir

1. Learning Outcomes

The purpose of this chapter is:

• To give the students an overview of the constitutionally recognized components of an individual’s right to freedom of religion and conscience as laid down by the Supreme Court of India;
• To help the students understand the manner in which the right to freedom of religion and conscience is protected by the constitution and understand the scope and limit of the said right.

2. Introduction (Voice Over)

While the makers of the Constitution of India set out abstract principles guaranteeing the individual’s right to freedom of religion and conscience, it is the Supreme Court of India that has played a key role in safeguarding this right through judicial interpretation. The Court has managed to discharge its duties commendably so far by putting in place an Indian model of secularism by applying the principles set out in the Constitution.

The Supreme Court has held that secularism is a basic feature of the Constitution and that a government, which is not secular, cannot be said to be a government that is being carried on in accordance with the provisions of the Constitution. This module seeks to explain the scope of religious liberties in India by introducing students to judicial decisions on Articles 25, 26 and 28 of the Constitution.

3. Religious Freedom and Constitution of India

3.1 Article 25 – Freedom of Religion and Conscience

Article 25 of the Constitution reads as follows:

“Freedom of conscience and free profession, practice and propagation of religion

• 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
• Nothing in this article shall affect the operation of any existing law or prevent the State from making any law
  • regulating or restricting any economic, financial, political or other secular activity which may be associated with religious practice;
  • providing for social welfare and reform or the throwing open of Hindu religious institutions of a public character to all classes and sections of Hindus

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

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

It is evident that right to religious freedom is comparatively weaker fundamental right as it is not only restricted by Article 25(1) and 25(2) but restricted by all other rights given in Part III of the constitution. This is important so as to protect the encroachment of basic fundamental rights of one group by another group in the name of its right to practice religious freedom. The court in order to balance this has taken a broad view of religion. It has defined religion as a “matter of faith with individuals or communities and it is not necessarily theistic1”. The court in order to support its assertion cited the example of religions like Buddhism and Jainism which do not believe in God.

The court has held that religion is the belief which binds spiritual nature of men to a super-natural being. Religion includes worship, belief, faith, devotion, etc. and extends to rituals. Thereby, religious right of a person believing in a particular faith is his/her right to practice, preach and profess that particular faith.

In advocating the principle of toleration, the Court has held that there is no justification for interfering in someone’s belief by ‘use of force’, provocation, conversion, and incitement or upon a flawed premise that one religion is better than the other.

In order to identify what is protected under Article 25 and what is not Court has come up with an inventive solution called ‘essential practice’ test. The test prescribes that only those practices that are essential to a religion are protected under Article 25 and other ancillary activities cannot be given the constitutional protection under Article 25. In the case of Commissioner of Police v. Jagdishwarananda Avadhut,4 the Commissioner of Police, Calcutta imposed a ban on the “Tandava Dance”, a divine dance attributed to the Hindu God Shiva, from being performed in public places and streets. The Commissioner’s order was challenged by the followers of Anand Marga as infringing their rights under Articlse 25 and 26. The Court went traced the origins of the Ananda Marga and found that Tandava dance performed by carrying trident, snakes,damroo, lathi, and human skull in public was not an essential rite of the Ananda Marga faith.

Similarly, when a Hindu man tried to challenge the constitutionality of an act criminalizing bigamy on the ground that it violated his religious freedom, it was held by the Court that bigamy was not an essential feature of Hinduism and accordingly the man could not claim protection under the Constitutional to avoid serving his sentence.

The right has been used to deny admission to male students who had shorn their hair and female students who had plucked their eyebrows in Sikh educational institutes as Court held that keeping unshorn hair is an essential component of the Sikh religion6. On the other hand, the right of temple attendants to be given a share of the offerings to the deity in the temple has been held to be not a part of their religion.

To give some illustrations court has upheld the following customs as constituting an “essential practice” of the Hindu religion:-

• periodical ceremonies be performed in a certain manner
• total prohibition of the slaughter of the progeny of cows

The following practices have been held as not being a part of certain religions:-

• Right to perform prayers through loudspeakers
• Bursting firecrackers without any restriction

As far as the right to propagate one’s religion is concerned, the Court has held that there is no fundamental right to convert another person to one’s own religion because if a person purposely undertakes the conversion of another person to his religion, that would impinge on the freedom of conscience guaranteed to all citizens of the country alike.

3.2 Article 26 – Freedom to Manage Religious Affairs

The constitution in Article 26 has given the right to religious denomination to manage their own affairs subject to certain restrictions. The text of the constitutional provision is as follows:-

“Freedom to manage religious affairs Subject to public order, morality and health, every religious denomination or any section thereof shall have the right

• to establish and maintain institutions for religious and charitable purposes;
• to manage its own affairs in matters of religion;
• to own and acquire movable and immovable property; and
• to administer such property in accordance with law”

It is pertinent to note here that this right is not available to ‘persons’ as in Article 25 but to ‘religious denominations’. In order to for a group to be qualified as a religious denomination following conditions has to be met:-

• Collection of individuals forming a religious sect having a common faith and organization and designated by the distinctive name
• Common faith of the community based on religion
• Common religious tenets peculiar to themselves

The question whether a community constitutes a ‘religious denomination’ or not is a mixed question of law and fact. For example, Anand Marga (discussed above in the context of Article 25) who claimed the right to perform Tandava on street were considered to be a religious denomination of Hinduism but not a separate religion.

The term ‘matters of religion’ is of also particular importance here as matter which are not essentially religious or are of secular in nature will not be covered under this provision. Thus, excommunication on the ground of religion has been held to be a part of the right to manage religious affairs of a denomination15 but administration of denomination’s property is not. The Uttar Pradesh Legislature passed a law which transferred administrative control of a temple from a group of priests to a statutory board. The Court held that the actions of the Uttar Pradesh Legislature did not constitute interference in matters of religion, but only in matters of administration and was constitutional.

The Supreme Court summed up the scope of Articles 25 and 26 as follows:-

“Although the State cannot interfere with freedom of a person to profess, practise and propagate his religion, the State, however, can control the secular matters connected with religion. All the activities in or connected with a temple are not religious activities. The management of a temple or maintenance of discipline and order inside the temple can be controlled by the State. If any law is passed for taking over the management of a temple it cannot be struck down as violative of Article 25 or Article 26 of the Constitution. The management of the temple is a secular act.”

It is only the matters of religion that are entirely outside the pale of law, and not matters with respect to property which has to be held, administered and enjoyed according to law. Simply put, the State has the power to regulate the administration of trust properties by means of laws validly enacted but 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.

In Gulam Abbas v. State of Uttar Pradesh, it was held by the Supreme Court that the customary religious right of the Shia community on a piece of land to perform religious rites and practices is protected under Article 26. The Court said that the State could not interfere with the established customary rights of Shia Muslims to perform their religious ceremonies and functions. This rights has also been expanded to include in it he right to establish and maintain educational institutions to every religious denomination or any section thereof to establish and maintain for religious and charitable purposes, subject to public order, morality and health.

The rights under Article 26 are not absolute and an act which removed the disability of Harijans from entering into Hindu public temples when challenged as violation of rights of a religious denomination to manage its own affairs in matters of religion was held to be constitutional as rights under Article 26(b) are subject to and controlled by a law protected under Art. 25(2)(b)20.

3.3 Article 28 – Freedom from religious instruction

The text of the article goes as follows:-

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

• No religion instruction shall be provided in any educational institution wholly maintained out of State funds
• Nothing in clause (1) shall apply to an educational institution which is administered by the State but has been established under any endowment or trust which requires that religious instruction shall be imparted in such institution
• No person attending any educational institution recognised 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 institution or to attend any religious worship that may be conducted in such institution or in any premises attached thereto unless such person or, if such person is a minor, his guardian has given his consent thereto Cultural and Educational Rights.”

Supreme Court has held that Article 28 only imposes ban on imparting religious instruction and not ban a study of religions. In Aruna Roy v. Union of India, the petitioner had challenged the National Curriculum Framework for School Education published by National Council of Educational Research and Training as against the constitutional mandate and anti-secular on the grounds that it consisted of teaching of various religions. The Court held that there is no prohibition on study of religious philosophy and culture, particularly for having value-based social life in a society which is degenerating for power, post or property. The Court further held that the process of making the students acquainted with the basics of all religions should begin in middle-school and continue up to the university level. In the Court’s opinion this will help students realise that the basic concept behind every religion is common, only the practices differ and even if certain differences exist in terms of opinion, people should learn to coexist peacefully and cordially.

In another case, the Punjab Legislature passed the Guru Nanak University (Amritsar) Act under which a university was established. By a notification under the act the government of Punjab made DAV College affiliated to the said university. Section 4 of the Act that created the University was that the University “shall make provision for study and research on the life and teachings of Guru Nanak and their cultural and religious impact in the context of Indian and World Civilisation.” DAV College challenged the act contending that the act was violative of Article 28 as the main object of the Act was to propagate Sikh religion in educational institutions. The Court, rejecting the petitioner’s contention, held that to provide for academic study of life and teaching or the philosophy or culture of any great saint of India in relation to or the impact on the Indian and World civilizations cannot be considered as making provision for religious instruction.

4. Summary

The right to freedom of conscience and religion in the Constitution was stated in an abstract manner. In a country like India which is full of religious diversity, and even within these religions there is no consensus on what constitutes the essential characteristics of that religion, the Supreme Court has managed to strike the right balance between an individual’s freedom of religion and the need for social control.

Reference

• Basu, Durga Das. Introduction to the Constitution of India. (21st Edn. , 2013) Lexis Nexis Butterworths Wadhwa.”
• Jain, M. P. “Indian Constitutional Law,(6th Edn. Vol. 1, 2010) Lexis Nexis Butterworths Wadhwa.”
• Seervai, Hormasji M. Constitutional law of India: a critical commentary. Vol. 1. NM Tripathi, 1975.