1

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
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 particular 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

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 particular 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.

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.

Secularism, the Supreme Court explained in, St. Xaviers 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 mould 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 it is clear that 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- discrimination of people by the State on the basis of 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
others 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 AIR 1974 SC 1389.

4 AIR 1973 SC 1461.
5 AIR 2002 SC 3176.
6 J.N. Pandey, Indian Constitutional Law (Lexis Nexis Butter works, 2002) Pg. 294.

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 in particular 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 have to be understood not
as is colloquially understood by the word religion, but in the sense of it comprehending our
concept of 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.
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.
10 AIR 2000 SC 1650.

Looked at from this angle, the Court ruled that a person who mockingly adopted another
religion where plurality of marriage was permitted so as 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 particular manner with particular 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
(b) The right toi.
ii.
iii.

Profess religion;
Practice religion; and
Propagate religion.

(A) FREEDOM OF CONSCIENCE

The expression freedom of conscience means the inner freedom of a person to mould his
relations with his God in whatever manners he likes. It connotes a persons 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 particular religion or of any
faith in God. It also implies the right of a person not to be converted into another mans
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 ones belief in; as to profess Christ; to
accept into religious order. Thus, to profess a particular religion means to declare freely and
openly ones 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 ones 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 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
11 Punjab Rao v. D.P. Meshram, AIR 1965 SC 1179.
12 M. Ismail Faruqui v. Union Of India 1995 SC 605.

periodical ceremonies; recital of sacred texts; offering oblations to the sacred fire. For Sikhs,
the wearing of kara, 13the wearing and carrying of Kripans, recital of Holy Guru Granth
Sahib are 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.
In Masmood Alam v. Commissioner of Police, 15the 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 A 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 girls section, must wear head covering.16
In State of Bombay v. Narasu Appa Mali,17 the Bombay Pervention 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
13 Surjeet Singh Chhabra v. Union of India, AIR 1997 SC 2560.
14 AIR 2003 SC 2902.
15 AIR 1956 Cal 9.
16 Fathema Hussain Sayed v. Bharat Education Society, AIR 2003 Bom. 75.
17 AIR 1952 Bom 84.

contended that the impugned Act violated their fundamental right guarantee by Article 25(1).
They argued that the sacrifice of a cow on the occasion of 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 Ayodhya Act, 1993, the
Supreme Court by a majority of 3:2 in Ismail Faruqui v. Union of India 21 held that in view
of tempporary vesting in the Central Government of the disputed and adjacent land at
Ayodhya where Babri Masjid existed was not a violation of Article 25. It said:
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 particular 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 particular significance for that religion so as to form an
essential and integral part thereof. Places of worship of any religion having particular
significance for that religion, to make it an essential or integral part of that religion, stand on
a different footing and have to 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.
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.

(B)(iii) Right of Propagation of Religion

To propagate religion, means to spread and publicize ones 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 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 ones own religion. It merely meant the right to transmit or
spread ones religion by an exposition of its tenets.
In Ramesh Chotalal Dalal v. Union of India, 23the 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
22 1977 SCR (2) 611.
23 AIR 1988 SC 775.

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, was capable of
creating 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 particular
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.

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 untouchibility 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 ones religion does not give right to
anyone to forcibly convert any person to ones own religion. Forcible conversion of any
24 AIR 1995 SC 2001.

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person to ones 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
on the ground that 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 ones own religion. The appellant was prosecuted for the
commission of offences under the Madhya Pradesh Act. He contended that the right to
propagate ones religion meant the right to convert person to ones own religion and was a
fundamental right under Art. 25(1) of the Constitution. Secondly, he argued that the State
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 ones 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.,
on the ground that someone has been forcibly converted to another religion, it would, in all
probability, give rise to an apprehension of a breach of the public order, affecting the
community at large. Therefore, Legislation prohibiting forcible conversion of ones 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 particular 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 ones own religion but to transmit or spread ones religion by an exposition
of its tenets.

25 AIR 1977 SC 908.

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In Gulam Abbas v. State of U.P., 26 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 so as to separate the
places of worship of Shias and Sunnis was feasible. The Sunnis challenged the
implementation of the recommendation on the ground that it was violative of their rights
under Articles 25 and 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 Acharaya Jagdishwaranand Avadhuta v. Commissioner of
Police, 27Calcutta (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
26 (1984) 1 SCC 81.
27 (1984) 4 SCC 522.
28 Ibid, pg. 304.

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Two children norm for elective post not violative of Article 25In 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 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, on the ground that 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 am 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 Remya 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
29 AIR 2003 SC 3057.

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

14

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.

(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 are protected the latter are not.
Article 25(2)(b) enables the State to take steps to remove the scourage of untouchibility 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 as a whole, 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 into 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

33 State of Bombay v. Narasu, AIR 1952 Bom. 84.

34 M.P. Jain, Indian Constitutional Law (Lexis Nexis Butterworks, 2010) Pg. 1326.

15

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 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 Ajan in the morning had also come under Supreme
Courts 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 has
to 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 was connected with 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.

35 Ibid 19, Pg. 330.

36 AIR 1987 SC 748.

16

FREEDOM OF
(ARTICLE 26)

RELIGION

OF

RELIGIOUS

DENOMINATIONS

Article 26 provides: subject to public order, morality and health every religious
denomination or any section thereof shall have the righta)
b)
c)
d)

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 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 organisation 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 organisation. 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 organisation and the belief in a
particular 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 particular
deity worshipped by a particular 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

It was held in S.P. Mittal v. Union of India, 39 that the words religious denomination take
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 organisation; and
c) Designation by a distinct name.
In this case, the Supreme Court on a consideration of Association, income tax particulars 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 Godess Matha Kanya Kaparameswari were
not denominational section for the purpose of 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

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.

18

worshippers of Lord Shiva were not a denominational section and therefore, not entitled to
the benefit of this Article.
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 Endowments43, ruled that Vellala Community could not be said to be a religious
denomination so as to seek the protection under Article 26.
An axpansive 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.
43 AIR 2003 SC 4225.
44 2002 8 SC 481: AIR 2003 SC 355.
45 AIR 1968 SC 662.

19

The Supreme Court held that since the University was not established by Muslims, there was
no question of the University being managed by them.
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 practces 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 organisation 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 organisation 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 particular rite or ceremony is regarded as essential by the tenets
of a particular religion.
The right, is, it is to be noted, is confined to matters of religion. The term matters of
religion includes 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 has to 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

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 also 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 Harijan 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.

21

In Athiest 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 petitioners 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 a 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. In regard to 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, as regards administration of property,
which a religious denomination is entitled to own and acquire, it undoubtly 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 has to 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.
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
50 AIR 1992 AP 310.

22

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 promote
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:
.in regard to 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, as regards 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.
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

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

23

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
In State of Rajasthan v. Sajjanlal, 55the 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 particular 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 Faruqui 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 particular
significance for that religion so as to form an integral part thereof.
Places of worship of any religion having particular significance for that religion, to make it
an essential or integral part of religion, stand on a different footing and have to be treated
differently and more 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
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

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 particular 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 particular
significance for that religion so as to form n essential or integral part thereof. Places of
worship of any religion having particular significance for that religion to make it an essential
or integral part of that religion stand on a different footing and have to be treated
differentially and more reverentially than the other places of worship of that religion.

Freedom from Payment of Taxes for Promotion of any Particular

Religion (Article 27)
No person shall be compelled to pay any taxes, the proceeds of which are specifically
appropriated in payment of expenses for the promotion or maintenance of any particular
religion or religious denomination.
Article 27 prohibits the levying of a tax the proceeds of which are meant specifically for
payment of expenses for the promotion or maintenance of any particular religion or religious
denomination.
The first condition for this Article to apply is that the levy must be a tax. But where the
imposition is in the nature of a fee it does not fall within the prohibition of this Article. There
is no generic difference between a tax and a fee and both are different forms in which the
taxing power of a State manifests itself. Our Constitution, however, has made a distinction
between a tax and a fee for legislative purposes and while there are various entries in the lists
with regard to various forms of taxation, there is an entry at the end of each one of these lists
as regards fees which could be levied in respect of everyone of the matters that are included
therein. A tax is undoubtedly in the nature of a compulsory exaction of money by a public
authority for public purposes the payment of which is imposed by law. But the essential
thing in a tax is that the imposition is made for public purposes to meet the general expenses
of the State without reference to any special benefit to be conferred upon the payers of tax.
The taxes collected are all merged in the general revenue of the State to be applied for

25

general public purposes. Thus, tax is a common burden and the only return which the
taxpayers get is the participated in the common benefits of the State. Fees, on the other hand,
are payments primarily in the public interest but for some special services rendered or some
special work done for the benefit of those from whom payments are demanded. Thus, in fees
there is always an element of quid pro quo which is absent in tax. Two elements are thus
essential in order that a payment may be regarded as a fee. In the first place, it must be levied
in consideration of certain services which the individuals accepted either willingly or
unwillingly. In the second place, the payments collected by way of fees must be specifically
appropriated for that purpose and must not be merged in the general revenue of the State to
be spent for general public purposes.
The Orissa Hindu Religious Endowments Act, 1939, passed for the better administration and
governance of certain religious endowments, imposed on every math or temple having an
annual income exceeding Rs 250, an annual contribution for meeting the expenses of the
Commissioner and the officers and servants working under him. It was held by the Supreme
Court in Shri Jagannath Ramanuj Das v. State of Orissa, that the contribution that was
levied by the Act had to be regarded as a fee and not a tax. The payment was demanded only
for the purpose of meeting the expenses of the Commissioner and his office which was the
machinery set up for due administration of the affairs of the religious institutions. The
collections made were not merged in the general public revenue and were not appropriated in
the manner laid down for appropriation of expenses for other public purposes. They went to
constitute the fund which was contemplated by Section 50 of the Act and to that fund the
State Government also contributed both by way of loan and grant and it was specifically set
apart for the rendering of services involved in carrying out the provisions of the Act.
But in Commissioner, Hindu Religious Endowments v. L.T. Swamiar, the Supreme Court
held that the contribution levied under the Madras Hindu Religious and Charitable
Endowments Act, 1951 was in the nature of a tax and not fee. The following reasons we
stated for holding the contribution of a tax :
i.

ii.

iii.

The money raised by the levy of the contribution was not earmarked or specified for
defraying the expenses that the government had to incur in performing the new
services;
All the collections went to the Consolidated Fund of the State and all the expenses had
to be met not out of those collections but out of the general revenue by a proper
method of appropriation as was done in the case of other government expenses; and
There was total absence of any co-relation between the expenses incurred by the
government and the amount raised by contribution under the provisions of Section 76
and in those circumstances the theory of a return or counter-payment of quid pro quo
could not have any possible application to that case.

26

Another condition for the applicability of the Article is that the proceeds of the tax must be
specifically appropriated in payments of expenses for the promotion or maintenance of any
particular religion or religious denomination. In relation to this condition, the Supreme Court
has said:
What is forbidden by Article 27 is the specific appropriation of the proceeds of any tax in
payment of expenses for the promotion or maintenance of any particular religion or religious
denomination. The reason underlying this provision is obvious. Ours being a secular State
and there being freedom of religion guaranteed by the Constitution, both to individuals and
to groups, it is against the policy of the Constitution to pay, out of public funds any money
for the promotion or maintenance of any particular religion or religious denomination.56
In Commr., Hindu Religious Endowments v. L.T. Swamiar,57 the contribution levied
under the Act, though in nature of a tax, aws not hit by Article 27. The reason was that the
contribution levied under the Act was not for fostering or preserving of Hindu religion or any
denomination within it. The purpose was to see that religious trusts and institutions wherever
they existed were properly administered. It was the secular administration that the
Legislature sought to control so as to ensure that the endowments attached to the religious
institutions were properly administered and their income was duly appropriated for the
purposes for which they had been founded. There was no question of favoring any particular
religion or religious denomination.
For the same reason in Shri Jagannath Ramanuj Das v. State of Orissa, 58the contribution,
even if treated as a tax, did not come within the purview of the latter part of the Article at all.
The object of the contribution under Section 49 was not the fostering or preservation of
Hindu religion or of any denomination within it, and since there was no question of favoring
any particular religion or religious denomination, Article 27 had no application.
In Suresh Chandra v. Union of India,59the petitioner challenged the validity of the
programmed of celebration of the 2500 th anniversary of the attainment of salvation of the
founder of the Jain religion, Mahavira, as this celebration amounted to promotion and
maintenance of Jainism in contravention of Article 27. Rejecting the contention of the
petitioners, the Court held that commemoration of distinguished persons, who had
contributed to Indias cultural heritage, was done with a view to focusing attention on their
ideals, to kindle in our younger generation an awareness of our heritage and to promote
56 Commr., Hindu Religious Endowments v. L.T.Swamiar, AIR 1954 SC 282.
57 AIR 1954 SC 282.
58 AIR 1954 SC 400, 403.
59 AIR 1975 Del 168.

27

international understanding, and that the celebrations involved no religious rites or

ceremonies hence no infringement of Artifice 27.
It has also been held that the creation of an education fund under Section 27 of the West
Bengal Wakf Act, 1934 as amended in 1973 for the exclusive benefit of the Muslim boys and
girls did not amount to levy of tax for the promotion of a particular religion. It did not also
amount to the maintenance of that religion. 60 Again, in K. Raghunath v. State, 61expenditure
from the State fund for the reconstruction among others, of the religious and educational
places damaged during communal riots was upheld notwithstanding the fact that the
damaged places belonged to any one religion. Acquisition of land for construction of a
temple has also been upheld.62

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)
b)
c)
d)

Institutions wholly maintained by the State;

Institutions recognized by the State;
Institutions that are receiving aid out of the State fund; and
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.
60 Bashir Ahmed v. State of W.B., AIR 1976 Cal 142.
61 AIR 1974 Ker 48.
62 Papanna v. State, AIR 1983 Kar. 94.

28

In D.A.V. College, Jullundhar v. State of Punjab, 63 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 particular 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 particular religion.
In Aruna Roy v. Union of India, 64 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 particular 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 acquained with the basics of all religions, the
values inherited therein and also 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.

BIBLIOGRAPHY
Arvind P. Datar, Commentry on Constitution of India, 2nd Edition, 2007.
Dr. J.N. Pandey, the Constitution of India, Central Law Agency, 52nd Edition, 2015.
63 AIR 1971 SC 1737.
64 AIR 2002 SC 3176.

29

Dr. M.P. Jain, Indian Constitutional Law, Lexis Nexis, Butterworths, Nagpur, 2002.
Dr. V.N. Shukla, the Constitution of India, Eastern Book Company, 2008.
Narender Kumar, Constitutional Law of India, Allahabad Law Agency, 2014.