Right to freedom of religion

The concept of secularism is implicit in the preamble of the constitution which declares the resolve of the people to secure to all its citizens “Liberty of thought, believe, faith and worship”. a 42nd amendment act 1976 has inserted the word secular in the preamble. however even without this amendment secularism was implicit in the Indian constitution.

Secular state means that in matters of religion it is neutral. It is an ancient doctrine in India that the state protects all religions but interferes with none. The Supreme Court explaining the secular character has said “there is no mysticism in the secular character of the state. Secularism is neither anti-god nor pro-god, but treats alike devout, the antagonistic and the atheist, it eliminates God from the matters off the state and ensures that no one shall be discriminated against on the ground of religion. The state can have no religion of its own. It should treat all religions equally. The state must extend similar treatment to the church, most call mother temple.

In a secular state, the state is only concerned with the relation between man and man. It is not concerned with the relation between man and God. It is left to the individual’s conscience. Worshiping God should be according to the dictates of one’s own conscience. Man is not answerable to the State for the veriety of his religious views.” in S.R. Bommail v. Union of India (1994 SC), the Supremem Court has held that secularism is a basic feature.

In M. Ismail Farugui vs Union of India (1994 SC), popularly called the Ayodhya Case the Supreme Court after detailed discussion has summarized the true concept of secularism under the Constitution. There is no religion of the State. The preamble of the Constitution read in particular with Article 25 to 28 emphasizes this aspect. The concept of secularism is one facet f the right to equality and is woven as the central golden thread in the fabric depicting the pattern of the scheme in our Constitution.

Sanskrit language not Anti-Secular.

In a landmark judgment, in Santosh Kumar v. Secretary, Ministry of Human Resources Development (1995 SC) the Supreme Court has held that introduction of Sanskrit language as a subject in CBSE is not against secularism as it is the mother of all Aryan languages.

The Court set that without learning Sanskrit language it is not possible to decipher the Indian philosophy, culture and heritage. All the classics of Hindu religion such as Vedas, Puranas, Upanishads are written in Sanskrit.

State tolerance of religion, does not make it either areligious or a theocratical state.

Freedom of Religion in India.

Right to freedom of religion

Article 25(1) guarantees to every person the freedom of conscience and the right to profess, practice and propagate religion. The right is guaranteed under Article 25(1). Like the other constitutional rights, it is not absolute. That right is subject to public order, morality and health and to the other provisions of part III of Constitution.

Religion-

The term religion is not defined in the Constitution and indeed it is a term which is hardly susceptible to any rigid definition. Religion is a matter of faith with individuals or communities and it is not necessarily theistic. Religion is a matter of personal faith and belief.

Thus under Article 25(1) a person has a two fold freedom:

1. Freedom of conscience
2. Freedom to profess, practice and propagate religion.

The freedom of conscience is absolute inner freedom of the citizen to mould his own relation with God in whatever manner he likes. To “profess” a religion means to declare freely and openly ones faith and belief. To”practice” religion is to perform the prescribed religious duties, rites and rituals, and to exhibit his religious belief and ideas by such acts as prescribed religious order in which he believed. To”propagate” means to spread and publicise his religious view for the edification of others. But the word propagation only indicates persuasion, and exposition without any element of coercion. The right to propoage one’s releigion does not give a righ to convert any person to one’s own religion.

Article 25 guarantees ‘freedom of conscience’ to every citizen and not merely to the followers of one particluar religion. There is no FR to convert another person to one’s religion because if a person purposely undertakes the conversion of another peron to his religion, as distinguished from his effort to transmit or spread the truths of his religion that would impinge on the ‘freedom of conscience’ guaranteed to all the citizens of the country alike. (Case: Rev. Stanisians vs State of M.P. (1977.SC)

The protection of Articles 25 and 26 is thus not limited to matters of doctrine of belief.

Right to freedom of religion

Restrictions on the Freedom of Religion

1. Religious Liberty is subject to public order, morality and health.

In the name of religion no act can be done against public order, morality and health of public. in the name of religion untouchability or trafficking human beings, example system of Devadasis cannot be tolerated. This freedom is also subject to the other provisions of the part example right to freedom of speech and expression, freedom of assembly and association, freedom to carry on a profession, trade and business.

Gulam Abbas vs State of U.P: The exercise of Fundamental Rights under Article 25 & 26 is not absolute but subject to the maintenance of public order and impugned suggestion for the shifting of graves was in the large interest of society for the purpose of maintaining public order on the occasion of the performance of religious ceremonies and functions by members of boh sects.

1. Regulation of economic, financial, political and secular activities associated with religious practices,Clause 2(a)-the freedom of practice extends only to those activities which are the essence of religion.

In Mohd. Hanif Quareshi vs State of Bihar, the petitioner claimed that the sacrifice of cows on the occasion of Bakrid was an essential part of his religion and therefore the state law forbidding the slaughter of cows was violative of his righ to practose religion.

The court rejected this argument and held that the sacrifice of cow on the Bakrid day was not an essential part of Mohammendan religion and hence could be prohibited by state under clause (2)-(a) of Artlcle 25.

1. Social welfare and social reforms, clause 2(b)- under this clause of Article 25 the state os empowered to make laws for social welfare and social reform. Social evils cannot be practices in the name of religion.

Under this sub-clause, the state is empowered to throw upon all Hindu religious institutions of a public character, to all classes and sections of Hindus,

The right protected under this clause is a right to enter into a temple for the purpose of worship.

The right of sikhs to wear and carry Kirpans is recognised as a religious practice in Explanation-I of Article 25. This does not mean that a Sikha can keep any number of Kripans. He is entitled to keep one sword only.

Right to freedom of religion

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.

1. To establish and maintain institutions for religious and charitable purposes.
2. To manage its own affairs in matter of religion.
3. To own and acquire movable and immovable property.
4. To administer such property in accordance with law,

The right guaranteed by Article 25 is an individual right while right guaranteed by Artilce 26 is the right an organized body like the religious denomination or any section thereof.

In Brahmachari Sidheswari Shai versus State of West Bengal 1995, popularly known as ram krishan mission case. The Supreme Court has held that the followers of ramakrishna, who are collection of individuals and who adhere to a system of beliefs as conducive to their spiritual well being who have organized themselves collectively and who have an organization of definite name as ramakrishna math or mission can be regarded as a religious denomination within Hindu religion or they satisfy the test regarding a denomination as religious denomination and would therefore be entitled to claim the FR conferred on them under article 26 of the constitution.

Right to establish and maintain- institutions for religious and charitable purpose

Under clause (a) of article 26 every religious denomination has right to establish and maintain institutions for religious and charitable purpose.

Right to manage matters of religion

Under article 26 B, a religious denomination or organization is free to manage its own affairs in matter or religion. The state cannot interfere in the exercise of this right unless they run counter to public order health or morality.

The right is confined to matters of religion. The term ‘matter of religion’ include religious practice rights and ceremonies considered essential for practice of religion. The right is subject to regulatory power of state under clause 2B of article 25 .

This means that secular activities connected with religious institution can be regulated by state by law. The state cannot be a passive spectator when exercise of right of religion threatens the public order, morality and health of the community. The constitution imposes a positive duty on the state to free many aspects of our life from the control of religion.

Right to administer property owned by denomination.

Under clauses C&B of article 26 a religious denomination has the right to acquire an own property and to administer such property in accordance with law. The right to administer property owned by a religious denomination is a limited right, and it is subject to the regulatory power of a state in clause 2A of article 25 and also any general property law.

Right to freedom of religion

Freedom from taxes for promotion of any particular religion- article 27

Article 27 provides that no person shall be compelled to pay any tax for the promotion or maintenance of any particular religion or religious denomination. This article emphasizes 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.

India being a secular state and there being freedom of religion guaranteed by the constitution both to individual and groups it is against the policy of the constitution to pay out of public funds any money for the promotion or maintenance of the particular religion or religious denomination. It is to be noted that what does article prohibits is the living of tax and not of frees. axe is a common binder and the only returns which the taxpayer gets is a participation in the common benefits of the state.

Prohibition of religious instruction in state aided institutions: Article 28

According to article 28 (1) no religious instruction shall be imported in any educational institution, wholy maintained out of state funds. This clause does 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 imported in such institution.

Article 28 refers to four types of educational institutions.

1. Institutions fully maintained by the state.
2. Institution recognized by the states.
3. Institutions that are receiving aid out of the state fund.
4. Institutions that are administered by the state but are established under any trust or endowment.

In the institutions of a type. No religious instruction can be imparted. In B&C, type Institutions religious instruction may be imported only with the consent of the individuals. In the d type institutions. There is no restriction on religious instruction.

Right to freedom of religion

Also Check: Basic Structure of Constitution of India