Right to Freedom of Religion(Articles 25-28 of the Indian Constitution)

Right to Freedom of Religion

(Articles 25-28 of the Indian Constitution)

Introduction

Religion is a matter of belief or faith. The constitution of India recognizes the fact, how important religion is in the life of people of India and hence, provides for the right to freedom of religion under Articles 25 to Article 28. The Constitution of India envisages a secular model and provides that every person has the right and freedom to choose and practice his or her religion. In a number of cases, the Apex Court has held that secularism is the basic structure of the Constitution, the most important being the Kesavananda Bharati case. People in India mainly practice Islam, Hinduism, Jainism, Buddhism, Sikhism and, Christianity. In India, there are religion-specific laws and Goa is the only state to have a Uniform Civil Code known as the Goa Civil Code. The Constitution supports religious harmony which means the people of India show love and affection to different religions of the country.

Secularism?

Secularism means developing, understanding and respect for different religions. It is believed that the word ‘Secularism’ has its origin in late medieval Europe. In 1948, during the constituent assembly debate, a demand was made by the KT Shah to include the word ‘Secular’ in the Preamble to the Constitution. The members of the assembly though agreed to the secular nature of the constitution but it was not incorporated in the Preamble. Later, in 1976 the Indira Gandhi government enacted the 42nd Amendment Act and the word ‘Secular’ was added to the Preamble. The 42nd Amendment Act also known as the ‘Mini Constitution’, is the most comprehensive amendment to the Constitution.

S. R. Bommai v. Union of India, AIR 1994 SC 1918

The 9 judge bench, in this case, ruled that Secularism is the basic feature of the Constitution of India. It also observed that religion and politics cannot be mixed together. If the State follows unsecular policies or courses of action then it acts contrary to the constitutional mandate. In a State, all are equal and should be treated equally. Religion has no place in the matters of State. Freedom of religion as a fundamental right is guaranteed to all persons in India but from the point of view of the State, religion, faith, and belief are immaterial.

Constitutional Provisions relating to Right of Religion

• Article 25: Freedom of conscience and free profession, practice and propagation of religion.

• Article 26: Freedom to manage religious affairs.

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

• Article 28: Freedom as to attendance at religious instruction or religious worship in certain educational institutions.

Freedom of Religion in India (Art. 25)

Article 25 of the Constitution guarantees freedom of religion to all persons in India. It provides that all persons in India, subject to public order, morality, health, and other provisions: 

• Are equally entitled to freedom of conscience, and 

• Have the right to freely profess, practice and propagate religion.

It further provides that this article shall not affect any existing law and shall not prevent the state from making any law relating to:

• Regulation or restriction of any economic, financial, political, or any secular activity associated with religious practice.

• Providing social welfare and reform.

• Opening of Hindu religious institutions of public character for all the classes and sections of the Hindus. 

The Supreme Court in Tilkayat Shri Govindlalji Maharaj V. State of Rajasthan held that the test to determine the question in deciding what is an integral part of a religion is whether it is regarded as integral by the community following that religion or not.

Doctrine or Belief?

The Supreme Court in Commissioner, Hindu Religious Endowments, Madras v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt ruled that there is no doubt that religion finds its basis in the system of doctrines regarded by those who profess that religion, but it will not be correct to say religion is nothing but a doctrine or belief.

In the case of SP Mittal v. Union of India, the court held that Religion need not be theistic. It is not merely an opinion, doctrine or belief but has an outward expression in the act as well.

Religion?

The German philosopher Immanuel Kant defines religion as “Religion is the recognition of all our duties as divine commands”. 

Milton Yinger, American sociologist defines religion as “a system of beliefs and practices by means of which a group of people struggles with the ultimate problems of human life”. 

The constitution does not define the term ‘religion’ and ‘matters of religion’. Hence, It is left to the Supreme Court to determine the judicial meaning of these terms.

A.S. Narayan v. State of Andhra Pradesh, AIR 1996 SC 1765

In this case, Justice Hansaria observed that “our constitution makers had used the word “religion” in these two articles (Articles 25 and 26) in the sense conveyed by the word ‘dharma’.” He further explained the difference between religion and dharma as “religion is enriched by visionary methodology and theology, whereas dharma blooms in the realm of direct experience. Religion contributes to the changing phases of a culture; dharma enhances the beauty of spirituality. Religion may inspire one to build a fragile, mortal home for God; dharma helps one to recognize the immortal shrine in the heart.”

Restrictions on Freedom of Religion

The Supreme Court in In re, Noise Pollution case, has given certain directions to be followed to control noise pollution in the name of religion:

• Firecrackers: A complete ban on sound-emitting firecrackers from 10 pm to 6 am.

• Loudspeakers: Restriction on the beating of drums, tom-tom, blowing of trumpets, or any use of any sound amplifier between 10 pm to 6 am except in public emergencies.

• Generally: A provision shall be made by the State to confiscate and seize loudspeakers and such other sound amplifiers or equipment that create noise beyond the limit prescribed.

Freedom to manage religious affairs (Art. 26)

Article 26 (subject to public order, morality, and health) confers a right on every religious denomination or any section of such religious denomination of:

• Establishing and maintaining institutions for religious and charitable purposes;

• Managing its affair with regard to religion;

• Owing and acquiring property (movable and immovable);

• Administering the property in accordance with the law.

Religious denomination

The word ‘religious denomination’ is not defined in the constitution. The word ‘denomination’ came to be considered by the Supreme Court in the case of Commissioner, Hindu Religious endowment Madras v. Shri Laxmindra Thirtha Swamiar of Shri Shirur Mutt. In this case, the meaning of ‘Denomination’ was culled out from the Oxford dictionary, “A collection of individuals classed together under the same name, a religious sect or body having a common faith and organization designated by a distinctive name”.

Right to manage its own affairs in the ‘Matters of Religion’ 

Matter of religion includes religious practices, rituals, observances, ceremonies, mode and manner of worship, etc., regarded as the essential and integral part of the religion. For instance, in Acharaj Singh v. State of Bihar it was held that, if Bhog offered to the deity is a well-established practice of that religious institution, such a practice should be regarded as a part of that religion.

Prevention of ex Communication

Ex-communication means the exclusion or expulsion of a person from a community or group of which he or she was a member.

Saifuddin Saheb v. State of Bombay AIR 1962 SC 853

In this case, the State of Bombay passed the Bombay Prevention of Excommunication Act, 1949. Section 3 of this Act prevented the excommunication of the members of any community. The petitioner (religious head of the Dawoodi-Bohra Community) challenged the Act on the ground of violation of their fundamental rights guaranteed under Article 25 and 26.

The Court observed that the power of Excommunication by the head formed the essential affairs of the community and the Act clearly violated the fundamental right under Article 25(1) of the Constitution. The Supreme Court held that the Act was violative of Articles 25 and 26 and was therefore void.

Limitation of the Right 

The right to religion under Article 26 is subject to certain limitations and not absolute and unfettered. If any religious practice is in contravention to any public order, morality or health then such religious practice cannot claim the protection of the state.

Freedom from taxes for promotion of any particular religion (Art. 27)

Article 27 of the Constitution prevents a person from being compelled to pay any taxes which are meant for the payment of the costs incurred for the promotion or maintenance of any religion or religious denomination.

In the case of Commissioner, Hindu Religious Endowments, Madras v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt, the Madras legislature enacted the Madras Hindu Religious and Charitable Endowment Act, 1951 and contributions were levied under the Act. It was contended by the petitioner that the contributions levied are taxes and not a fee and the state of madras is not competent to enact such a provision. It was held by the Supreme Court that though the contribution levied was tax but the object of it was for the proper administration of the religious institution.

Prohibition of religious instruction in the State-aided Institutions (Art. 28)

Article 28 prohibits: 

• Providing religious instructions in any educational institutions that are maintained wholly out of the state funds. 

• The above shall not apply to those educational institutions administered by the states but established under endowment or trust requiring religious instruction to be imparted in such institution.

• Any person attending state recognized or state-funded educational institution is not required to take part in religious instruction or attend any workshop conducted in such an institution or premises of such educational institution.

Teaching of Guru-Nanak: D.A.V. College v. State of Punjab, (1971) 2 SCC 368

In this case, Section 4 of the Guru Nanak University (Amritsar) Act, 1969 which provided that the state shall make provisions for the study of life and teachings of Guru Nanak Devji was questioned as being violative of Article 28 of the Constitution. The question that arose was that the Guru Nanak University is wholly maintained out of state funds and Section 4 infringes Article 28. The court rejecting this held that Section 4 provides for the academic study of the life and teachings of Guru Nanak and this cannot be considered as religious instruction.

Conclusion

India is the most diverse country with respect to religion. Being a secular country it does not have its own religion and every citizen has the right to choose, practice, propagate and even change his or her religion. However, these rights are not absolute but subject to certain restrictions provided by the constitution. No person in the name of religion can do any act that is opposed to the public policy or creating any kind of disturbances or intolerance among the people of India.

**Author:- Naveen Pratap, 2nd Year LLB Student, Prof. Rajendra Singh (Rajju Bhaiya) University,Prayagraj