Right To Freedom Of Religion (Article 25-28): Constitutional Law Notes

Right To Freedom Of Religion (Article 25-28): Constitutional Law Notes- Prolawctor

Right To Freedom Of Religion: The concept of secularism is implicit in the preamble of the Indian Constitution which declares to secure to all its citizens “liberty of thought, expression, belief, faith and worship.”The word ‘secularism’ has been inserted by the 42nd Amendment Act, 1976. In S.R. Bommai v. UoI (1994), the SC has held that “secularism is a basic feature of the Constitution.”
The chief aspects of Indian Secularism are:-

  1. No State Religion – Separation of State and Religion,
  2. Peaceful co-existence of all religions,
  3. Treatment of all religions equally by the State,
  4. Equality of opportunity in the public field for all, irrespective of caste or creed or race or
    religion ensuring equal citizenship,
  5. Right To Freedom of religion both individual and corporate

To Know more about Right to Equality [Article 14-18] visit here

The Right to Freedom of Religion, covered in Articles 25–28, provides religious freedom to all citizens and ensures a secular state in India. According to the Constitution, there is no official State religion, and the State is required to treat all religions impartially and neutrally.

Article 25 guarantees all persons the freedom of conscience and the right to preach practice and propagate any religion of their choice. This right is, however, subject to public order, morality and health, and the power of the State to take measures for social welfare and reform. The right to propagate, however, does not include the right to convert another individual, since it would amount to an infringement of the other’s right to freedom of conscience.

Article 26 guarantees all religious denominations and sects, subject to public order, morality and health, to manage their own affairs in matters of religion, set up institutions of their own for charitable or religious purposes, and own, acquire and manage property in accordance with law. These provisions do not derogate from the State’s power to acquire property belonging to a religious denomination. The State is also empowered to regulate any economic, political or other secular activity associated with religious practice.


Article 27 guarantees that no person can be compelled to pay taxes for the promotion of any
particular religion or religious institution.

Article 28 prohibits religious instruction in a wholly State-funded educational institution, and educational institutions receiving aid from the State cannot compel any of their members to receive religious instruction or attend religious worship without their (or their guardian’s) consent.

RESTRICTIONS ON RIGHT TO FREEDOM OF RELIGION OF RELIGION

  1. Religious liberty subjected to public order, morality and health – In the name of religion, no act can be done against public order, morality and health of public. Thus Section 34 of the Police Act prohibits the slaughter of cattle or indecent exposure of one’s person 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 Dev-dasis cannot be tolerated. These rights are subjected to the reasonable restrictions under clause (2) of Article For instance, a citizen’s freedom of speech and expression in matters of religion is subjected to reasonable restrictions under Article 19 (2). 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 and hence could be prohibited by law.
  2. Regulation of economic, financial, political and secular activities associated with religious practices– Clause (2)(a) – The freedom to practice extends only to those activities which are the essence of religion. It would not cover secular activities which do not form the essence of religion. It is not always easy to say which activities fall under religious practice or which are of secular, commercial or political nature associated with religion practice. Each case must be judge by its own facts and circumstances.
  3. Social Welfare and Social Reforms- Clause (2)(b) – Under this clause, the State is empowered to make laws for social welfare and social reform. Thus under this clause the State can eradicate social practices and dogmas which stand in the path of the country’s onward progress. Such laws do not affect the essence of any religion. Prohibition of evil practices such as Sati or system of Devadasi has been held to be justified under this clause. The right protected under this clause is a right to enter into a temple for the purpose of worship. But it does not follow from this that, that right is, absolute and unlimited in character. No one can claim that a temple must be kept open for worship at all hours of the day and night or that he should be permitted to perform services personally which the Acharya alone could perform. The State cannot regulate the manner in which the worship of the deity is performed by the authorised pujaris of the temple or the hours and days on which the temple is to be kept open for Darshan or Puja for devotees. The right of Sikhs to wear and carry Kripan is recognised as a religious practice in Explanation 1 of Article 25. It does not mean that he can keep any number of Kripans. He cannot possess more than one Kripan without licence.

FREEDOM TO MANAGE RELIGIOUS AFFAIRS (ARTICLE 26)

Article 26 says that, subject to public order, morality and health, every religious denomination or any section of it shall have the following rights-

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

The right guaranteed by Article 25 is an individual right while the right guaranteed by Article 26 is the right of an ‘organised body’ like the religious denomination or any section thereof.

FREEDOM FROM TAXES FOR PROMOTION OF ANY PARTICULAR RELIGION (ARTICLE 27)

Article 27 provides that no person shall be compelled to pay tax for the promotion or maintenance of any religion or religious denomination. This Article emphasises the secular character of the State. The public money collected by way of tax cannot be spent by the State for the promotion of any particular religion.

PROHIBITION OF RELIGIOUS INSTITUTION IN STATE AIDED INSTITUTION (ARTICLE 28)

According to Article 28(1), no religious instruction shall be imparted in any educational institution
wholly maintained out of State funds. But this clause shall not apply to an educational institution
which is administered by the State but was not established under any endowment or trust which
requires that religious instruction shall be imparted in such institution. Thus Article 28 mentions four types of educational institutions:

  • Institutions wholly maintained by the State.
  • Institutions recognised by the State.
  • Institutions that are receiving aid out of the State fund.
  • Institutions that are administered by the State but are established any trust or endowment.

In the institutions of (a) type, no religious instructions can be imparted.
In (b) and (c) type of institutions, religious instructions may be imparted only with the consent of the individuals.
In the (d) type institution, there is not restriction on religious instructions.

  • N Aditya v. Travancore Dewaswom Board
    SC held that Brahmins do not have a monopoly over performing puja in a temple and said that a non-brahmin can be appointed as a pujari if he is properly trained and well versed with rituals and the mantras, as necessary to be recited for the particular deity.
  • Gulam Kadar Ahmadbhai Menon v. Surat Municipal Corporation (1998)
    The Gujarat HC held that the right to religion guaranteed to citizens under Art.25 and 26 does not prohibit State to acquire any place of worship for public purpose or a welfare purpose.
  • Moulana Mufti Sayeed v. State of West Bengal (1999)
    The Calcutta HC held that restrictions imposed by the State on the use of microphones and
    loud-speakers at the time of Azaan are not violative of Art. 25. Azaan is certainly an essential and integral part. Traditionally and according to the religious order, azaan has to be given by the imam or the person-in-charge of the mosques through their own voice and this is sanctioned under the religious order.
  • Church of God in India v. K.K.R.M.C. Welfare Association (2000)
    The SC has held that in the exercise of the right to religious freedom under Articles 25 and 26, no person can be allowed to create noise pollution or disturb the peace of others.
  • Mohd. Hanif Qureshi v. State of Bihar (1958)
    The petitioner claimed that the sacrifice of cows on the occassion of Bakrid was an essential part of his religion and therefore the State law forbidding the slaughter of cows was violative of his right to practise religion. The Court rejected this argument and held that this is not an essential part of the religion and the State can prohibit the same under Art.25 (2).
  • Rev Stainislaus v. State of M.P.(1958)
    Forcible conversion is not allowed in the name of propagation of religion.
  • Aruna Roy v. Union of India (2002)
    The validity of National Curriculum Framework for School Education, 2000 which provided for education for value development based upon all religions and also a comparative study of philosophy of all religions was challenged on the ground that it was violative of Art.28. Three judge bench of the SC held that the above-said policy was neither violative of Art.28 nor it is against the concept of secularism.

References

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