CONSTITUTION

RIGHT TO FREEDOM OF RELIGION

(Article 25 to 28)

Submitted To: - Submitted By: -

Dr. Shruti Bedi Vikas Denia

Bcom LLB (Hons)

236/15

SECTION D

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 ACKNOWLEDGEMENT

Writing a project is one of the most significant academic challenges I have ever faced. Though this
project has been presented by me but there are many people who remained in veil, who gave their
all support and helped me to complete this project.

First of all I am very grateful to my Subject Teacher Dr. Shruti Bedi, without the kind support of
whom and help the completion of project was a herculean task for me.

I am very thankful to the Librarian who provided me several books on this topic. I acknowledge
my friends who gave their valuable and meticulous advice which was very useful and could not be
ignored in writing the project. I also owe special thanks to my parents for their selfless help which
was very useful in preparing the project.

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 TABLE OF CONTENTS
TABLE OF CONTENT 3
CASES 4
INTRODUCTION 5
FREEDOM OF RELIGION 6
Definition Religion 6

A. Freedom of conscience and the right to profess, practise and propagate

religion ( Article 25) 8
(a) Freedom of Conscience 8
(b) (i) Right to Profess Religion 9
(ii) Right to Practise Religion 9
Practices which constitute integral and essential part of religious practice 9
(iii) Right to Propagation of Religion 12

Restrictions on the Freedom of Religion 13

(a) Freedom of religion subjected to public order, morality and health 13

(b) Regulation of economic, or other secular activities 14
(c) Social Welfare and Reforms 16
Throwing open Hindu Religious Institutions 16
Explanation I to Article 25 17
Explanation II to Article 25 17

B. Freedom of religion of Religious Denominations ( Article 26) 17

Religious Denomination- Definition 18
(a) Right to establish and Maintain Institutions (Article 26 (a) ) 19
(b) Right to manage matter of Religion ( Article 26 (b) ) 20
(c) Right to own and administer Property ( Article 26 and (d) ) 22

C. Freedom from Payment of Taxes for promotion of any Particular Religion

(Article 27) 23
D. Prohibition of Religious Instruction in Educational Institutions
(Article 28) 25
E. Religious Freedom and Proselytistaion 26

BIBLIOGRAPHY .......29

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 Table of Cases

Cases

Aruna Roy v. Union of India, AIR 2002 SC 3176 ........................................ 4, 28

Azeez Basha v. Union of India, AIR 1986 Sc 662........................................... 20
Bramhchari Sideshwar Shai v. State of W.B. , AIR 1995 SC 2089................. 4, 19
Chinnamma v. D.P.I., AIR 1964 A.P. 277. ..................................................... 22
Gulam Abbas v. State of U.P AIR 1983 SC 1268 ............................................................... 4, 14
M.H. Quareshi v. State of Bihar AIR 1958 SC 731 ............................................................ 4, 11
Rev Stainslaus v. State of Madhya Pradesh AIR 1977 SC 908 ..................................... 12
Sri Jagannath v. State of Orissa AIR 1954 SC 400........................................................... 25

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 INTRODUCTION

Articles 29 and 30 of the Constitution are grouped under the heading "Cultural
and Educational rights". These both Articles protect and guarantee certain
collective rights for the minorities to help them preserve their language, religion
and culture. These rights also contribute to pr eserv e the rich diversity of the
country and give minority a sense of security. Over the decades, the interplay
of these two Articles has been the cause of intense debate, Firstly, touching on
issues such as secularism and secondly, the degree of control over private
educational institutions maintained by the State or receiving aid out of State
funds; on grounds only of religion, race, caste, language or any of them. This
chapter begins with the discussion of rights guaranteed under Articles 29 and
30 of the Constitution of India. Further it discusses judicial approach relating to
each Sub Clause of Articles 29 and 30. Subsequently, the researcher has
discussed the judicial interpretation relating to the relation between Articles i.e.

29 and 30.

Article 29(1) deal with right of any section of the citizens residing in India to
preserve their language, script or culture. In order to invoke Article 29(1), all
that is essential is that a section of the citizens, residing in India should have a
distinct language, script or culture of its own. If so, then they will have the
right to conserve the same. Article 29(2) prohibits discrimination in matters of
admission into educational institutions on grounds only of religion, race, caste,
language or any of them. This provision guarantees the rights of individual
irrespective of the community to which he belongs. Article 30 (1) provides that
all religious and linguistic minorities have the right to establish and administer
educational institutions of their choice. Article 30(2) prevents States from

145
 making any discrimination against any educational institution in granting
aid on the ground that it is managed by a religious or linguistic minority.

Article 29(1): Rights of citizens to preserve

their language, script and culture.

DefinitionReligion.

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 Swamiar,1 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.

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. 2 Religion is the belief which
binds spiritual nature of men to supernatural being. It includes worship, belief, faith, devotion,
etc. and extends to rituals.3 The word religion has different shades and colours. Important shade
is dharma (duty), duty towards the society and the soul.4

It has also been said that the word religion in Articles 25 and 26 has 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 case5 that a "sectarian religion is open to a limited group of people, whereas dharma

1
AIR 1954 SC 282. ( Shirur Math Case).
2
Ratilal v. State of Bombay , AIR 1954 SC 388.
3
P.M.A. Metropolitan v. Moran Mar Marthoma, AIR 1995 SC 2001.
4
Aruna Roy v. Union of India, AIR 2002 Sc 3176, per M.B. Shah, J. 3191.
5
A.S. Narayana v. State of A.P., AIR 1996 SC 1765.

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embraces all and excludes none." The learned Judge further said that the word religion in
Articles 25 and 26 had to be understood not in a narrow sectarian sense but encompassing our
ethos of.

It is, thus, a settled proposition of law that the protection of Articles 25 and 26 is not limited to
matters of doctrine. They extend also to acts done in furtherance of religion and, therefore, they
contain a guarantee for rituals and observances, ceremonies and modes of worship which are
integral parts of the religion.

The Apex Court in Ratilal v. State of Bombay,6 explained that religious practices or
performances of acts in pursuance of religious belief were as much a part of religion as faith or
belief in particular doctrines. It was further impressed that no outside authority had any right to
say that those were not essential parts of religion and it was not open to the secular authority of
the State to restrict or prohibit them in any manner they liked under the guise of administering
the trust estate.

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 abridgment of their
fundamental right to freedom of religion. So, ruled, the Gauhati High Court in Worter
Kharmalki v. State of Meghalaya,7 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, if 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.

In Lily Thomas v. Union of India,8 the Supreme Court explained that religion was a matter of
faith stemming from the depth of the heart and mind and that religion, faith or devotion were not
easily interchangeable. The Court further said that if the person feigned to have adopted another
religion just for some worldly gain or benefit, it would be religious bigotry. Looked at from this
angle, the Court ruled that a person who mockingly adopted another religion where plurality of

6
AIR 1954 SC 388.
7
AIR 2010 Gau. 51.
8
AIR 2000 SC 1650.

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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.

A. Freedom of conscience and the right to profess, practise and propagate

religion

Clause (1) of Article 25 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, practise and propagate religion."

This Clause secures to every person

a) freedom of conscience; and

b) the right to
I. profess religion;
II. practise religion; and
III. 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 manner 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. It means to believe in one religion or another or none. Every person in India,
therefore, has the freedom to have faith and belief in religious tenets of any sect or community.

"Freedom of conscience", as stated above, means the freedom to hold or to, entertain religious
beliefs. Any belief which is genuinely and conscientiously held,9 or any religious belief, as may
be approved by his judgment or conscience,10 attracts the protection of Article 25(1). It simply
means the freedom of religious opinion. Until this inner belief is expressed in any outward form,
it is merely the "freedom of conscience".

9
BIjoe Emmanuel v. State of Kerela, AIR 1987 SC 748
10
Ratilal v. State of Bombay, AIR 1954 SC 388.

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Also, freedom of conscience has no necessary connection with any particular religion or any
faith in God. It also implies the right of a person not to be converted into another mans religion
or to belong to any religion at all.11

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".12 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 profession of religion. It is to declare ones belief in such a way
that it would be known to those whom it may concern.13

(b)(ii) Right to Practise Religion

To practise religion means to perform religious duties, rites or rituals. The protection is, thus, not
limited to matters of doctrines but extends to rituals and observances. The expression "practise 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 protects also acts done in
pursuance of a religion. To enable a person to practise 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.14

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 25.15

Practices which constitute integral and essential part of religious practice

Religious practices to which Article 25(1) refers include practices which are an integral part of
the religion itself,16 i.e., the beliefs and doctrines which are regarded by those who profess

11
See Stainslaus v, State of M.P., AIR 1975 MP 163.
12
Websters New World Dictionary, quoted in Punjab Rao v. D.P. Meshram, AIR 1965 SC 1179.
13
Punjab Rao v. D.P. Meshram, AIR 1965 SC 1179.
14
See Ozair Husain v. Union of India, AIR 2003 Del. 103.
15
M. Ismail Faruqui v. Union of India, AIR 1995 SC 605.
16
John Vallamattom v. Union of India, AIR 2003 SC 2902.

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religion, to be conducive to their spiritual well-being.17 It is upon the cornerstone of essential
parts or practices that the superstructure of religion is built.18 It means the core beliefs upon
which a religion is founded.19 The integral or essential part of a religion is primarily to be
ascertained with reference to the doctrines of that religion itself.20 For example, for Hindus, these
may include offerings of food to the idol; performance of periodical ceremonies; recital of sacred
texts; offering oblations to the sacred fire. For Sikhs, the wearing of Kara, 21 the wearing and
carrying of Kripans,22 recital of Holy Guru Granth Sahib, are the integral part of their religion.
For Muslims, calling Azan,23 performance of Hajj, are some of the essential practices which are
integral part of their religion.

Therefore, practices which, though religious, have sprung from merely superstitious beliefs, may
in that sense, be extraneous and unnecessary accretions to religion itself.24

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. It is for the
court to decide whether a part or practice is an essential part or practice of a given religion 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.

To determine as to whether a part or practice is essential to the religion, the Apex Court in
Commr. Of Police v. Acharya Jagadeshwarananda,25 explained :

the test is to find out whether the nature of religion will be changed without that part or practice.
If the taking away of that part or practice could result in a fundamental change in the character of
that religion or in its behalf, then such part could be treated as an essential or integral part.

Holding that Anand Margi Order was in existence between 1955 to 1966, without the practice of
Tandava dance, which was introduced in 1966, the Apex Court ruled that it was not the core
upon which Anand Margi order was founded and therefore, practice of Tandava dance in public

17
A.S. Narayanan v. State of A.P., AIR 1996 SC 1765.
18
Commissioner of Police v. Acharya Jagadishwarananda, AIR 2004 Sc 2984.
19
Ibid.
20
Commissioner, H.R.E. v. L.T. Swamiar, AIR 1954 SC 282.
21
Surjeet Singh Chhabra v. Union of India, AIR 1997 SC 2560.
22
See Explanation I to Article 25.
23
But not the use of a loudspeaker for calling Azan.
24
Durgah Committee, Ajmer v. Syed Hussain Ali, AIR 1961 SC 1402.
25
2004 (3) SCALE 146.

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was not an essential point of that order/faith. Likewise, permitting women to enter the Shree
Guruvayoor Temple, by wearing churidar, could not be prohibited, since the wearing of
traditional saree for entry into the temple was not found to be a customary rule.26

In John Vallamattom v. Union of India,27 the Apex Court held that disposition of property for
religions/charitable uses was not an integral part of Christian religion.

In State of Bombay v. Narasu Appa Mali,28 the Bombay Prevention of Bigamous Marriages
Act, 1946, forbade bigamy among Hindus, was held valid. The Bombay High Court 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,29 the petitioners challenged the constitutional validity of the Bihar
Prevention and Improvement of Animals Act, 1956. The petitioners inter alia contended that the
impugned Act violated their fundamental right guaranteed 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 overt act
for a Mussalman to exhibit his religious belief and idea.

The Muslim law permits marrying four women. However, the Apex Court in Javed v. State of
Haryana,30 held: "nowhere the law mandates or dictates it as a duty to perform four marriages,
or that marrying less than four women or abstaining from procreating a child from each and
every wife, in case of permitted bigamy or polygamy, would be irreligious or offensive to the
dictates of the religion." Therefore, a statutory provision casting disqualification for holding an
elective office, on ground of having more than two living children, cannot be held violative of
Article 25.31

Likewise, wearing of "Purdha" (BURQA) has been held not forming part of Islam.32 As a result
the Election Commission Photo Identity Cards Scheme was held as not violative of freedom of
religion guaranteed under Article 25. Again, it is not an obligatory overt act enjoined by Muslim
religion that an Islamic girl, studying in all girls section, must wear head covering.33

(b) (iii) Right to Propagation of Religion

26
See K. Mohandas v. State of Kerela, AIR 2007 Ker. 289.
27
AIR 2003 SC 2902.
28
AIR 1952 Bom 84.
29
AIR 1958 SC 731.
30
AIR 2003 SC 3057.
31
Ibid.
32
M. Ajmal Khan v. State of T.N., The Tribune, January 23, 2010.
33
See Fathema Hussain Sayed v. Bharat Education Society, AIR 2003 Bom 75.

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To propagate religion, means to spread and publicise ones religious views.34 Holding public
meetings by persons for propagating their religion is held to be guaranteed under Article 25(1)35.
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.36 Azan given by the Imam or the
person in charge of the Mosques, though an essential and integral part of Islam, but, is not a form
of propagation.37

In Rev Stainslaus v. State of Madhya Pradesh,38 while upholding the Madhya Pradesh Dharma
Swatantratya Adhiniyam, 1968 and the Orissa Freedom of Religion Act, 1967, which prohibited
the forcible conversion of any person to ones own religion, the Supreme Court said 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.39

In P.M.A. Metropolitan v. Moran Mar Marthoma,40 the Supreme Court held that the right to
practise and propagate religion includes the right to ex-communicate the person belonging to that
religion. The Court said all religious bodies were regarded by 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 a Court of law.

It may be noted that the right to freedom of conscience and to profess, practise and propagate
religion, is not restricted or qualified with reference to the number of persons living in a

34
Commissioner, H.R.E. v. L.T. Swamiar, AIR 1954 SC 282.
35
Sri Lakshamana Yalendrulu v. State of A.P. , AIR 1996 SC 1414.
36
Ramjilal v. State of U.P., AIR 1957 SC 620.
37
Moulana Mufti Syed Md. Noorur Barkati v. State Of W.B. , AIR 1999 Cal. 15.
38
AIR 1977 SC 908.
39
Ramesh Chotalal Dalal v. Union of India, AIR 1988 SC 775.
40
AIR 1995 SC 2001.

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particular locality.41 Therefore, refusal of permission for construction of Church in a locality, on
ground that only few Christians live therein, is illegal and unconstitutional.42

Restrictions on the Freedom of Religion

The "freedom of conscience" and the right to "profess, practise and propagate religion",
guaranteed by Article 25(1) is subjected to

a) public order, morality, health and other provisions of Part III,43

b) Any law regulating or restricting any economic, financial, political or other secular
activity associated with religious practice.44
c) 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.45
Article 25, thus, obligates the State to ensure that communal atmosphere be kept clean and
unpolluted.46

(a) Freedom of Religion subjected to public order, morality and health

The free exercise of religion is subjected to State regulation imposed to secure order, public
health and morals of the people. It means that the fundamental right to freedom of religion must
yield to the maintenance of public order, morality and health of the people.47 Therefore, when a
persons speeches or actions are likely to trigger communal antagonism and hatred, resulting in
fissiparous tendencies gaining foot-hold, undermining and affecting communal harmony,
prohibitory orders need necessarily to be passed, to effectively avert such untoward
happenings.48

It has been held that any custom, for instance, the custom of devadasi, or usage, irrespective of
even any proof of their existence in pre-Constitutional days, cannot be countenanced as a source
of law, to claim any rights when it is found to be violative of human rights, dignity, social
equality and the specific mandate of the Constitution and law made by Parliament.49

41
Albert Raj v. District Collector, Kanyakumari, AIR 2005 Mad. 444.
42
Mohd. Gani v. Supdt. Of Police, AIR 2005 Mad. 359.
43
Opening words of Clause (1) of Article 25.
44
Clause (2) (a) of Article 25.
45
Clause (2) (b) of Article 25.
46
Ramesh Chotalal Dalal v. Union of India, AIR 1988 SC 775.
47
Ratilal v. State of Bombay, AIR 1954 SC 388.
48
See State of Karnataka v. P.B. Thogadia, AIR 2004 SC 2081.
49
See N. Adithayan v. T.D. Board, AIR 2002 SC 3538.

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Gulam Abbas v. State of U.P.,50 is a clear instance, where the freedom of religion was subjected
to the maintenance of public order. The facts briefly were that there had been a long-Standing
dispute inter se between the members of the Shia and Sunni sects of Muslims, pertaining to the
performance of religious rites, practices and observances by the members of Shia sect on certain
plots and properties situated in Mohalla Doshipura, Varanasi. Purely for the purpose of finding
out some permanent solution to the perennial conflict between the two communities, the
Supreme Court, in1982, appointed a Committee of seven persons consisting of three nominees of
Shias and three nominees of Sunnies and the Divisional Commissioner as its Chairman. The
Committee Chairman submitted the report wherein he recommended that the shifting of the two
graves of Sunnies from its original place, so as to separate the places of worship of Shias and
Sunnies, was feasible.

The Supreme Court held that the order of the Court, for implementing the Committees
recommendations, was not violative of their rights guaranteed by Articles 25 and 26. The Court
laid down that the rights under Articles 25 and 26 were not absolute but subjected to the
maintenance of public order. The Court held that shifting of graves was neither un-Islamic nor
contrary to Koran.51

(b) Regulation of economic, or other secular activities

Clause (2) of Article 25 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
Articles 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).52 However, the words "economic, financial, political or
other secular activities" in Article 25(2) (a) mean those activities which are not of the essence of
religion.53 For example, a provision, directing the management of a Temple, to send a copy of
audit report, to the Government, does not violate the right conferred by Articles 25 or 26.54

In S.P. Mittal v. Union of India,55 the constitutionality of the Auroville (Emergency Provision)
Act, 1980, which was enacted for taking over the management of Auroville for a limited period,
was upheld.

50
AIR 1983 SC 1268.
51
See Abdul Jalil v. State of U.P., AIR 1984 Sc 882.
52
Venkataramana Devaru v. State of Mysore, AIR 1958 SC 255.
53
Saifuddin Sahib v. State of Bombay, AIR 1962 SC 853.
54
G.R. Nair v. State of Kerela, AIR 2008 Ker. 96.
55
AIR 1983 SC 1.

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The Supreme Court, by majority of 4 to 1, held that the teaching of Shri Aurobindo constituted a
philosophy and not religion and that the Society and Auroville township were not religious
institutions. Even assuming them to be a religious denomination, the Court held that the
Auroville (Emergency Provisions) Act, 1980, did not curtail the freedom of conscience and the
right freely to profess, practise and propagate religion. Therefore, there was no question of the
impugned Act being hit by Article 25. It had only taken over the management of the Auroville in
respect of the secular matters, which matters could be regulated by law under Article 25(2)(a).

In Remya Raju v. State of Kerela,56 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 to be made for them for
appearing for the SSLC Examination, March, 2008, after 6 p.m. Rejecting the contention the
Kerela High Court held: that the Kerela Education Act, 1959 and the Kerela 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).

In Sri Adi Viseshwara of Kashi Vishwanath Temple, Varanasi v. State of Uttar Pradesh,57
the U.P. Sri Kashi Vishwanath Temple Act, 1983, which divested the Pandas of their right to
manage the temple and receive offerings was upheld as not violative of their right under Article
21. The Court explained that religious freedom guaranteed by Articles 25 and 26, was intended
to be 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, the right to manage a
temple or endowment, was held 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.

56
AIR 2008 Ker. 192.
57
JT 1997(4) SC 124.

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Later, the Apex Court in N. Adhyayan v. Travancore, Devaswom Board,58 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 Brahman by birth or pedigree.

(c) Social Welfare and Reforms

Sub-clause (b) of Clause (2) of Article 25 empowers the State to make laws for social welfare
and reforms. It, therefore, explains that where there is a conflict between a social welfare and
reforms and a religious practice, religion must yield.59

"Social reform" means eradication of practices or dogmas which stand in the way of the
countrys progress as a whole and which do not constitute integral and essential part of religion.
For example, the prohibition of evil practices such as "sati" or the system of "Devadasi" might be
justified under Article 25 (2) (b).

Likewise, a statutory provision casting disqualification on contesting for, or holding an elective

office, on ground of having more than two living children, with a view to popularize family
welfare/family planning programme, has been held not violative of Article 25. The provision is
held to be enacted in the interest of social welfare and reform which are obviously part and
parcel of public order, national morality and the collective health of the nations people.60

Throwing open Hindu Religious Institutions

Article 25 (2) (b) further empowers the State to make laws for "throwing open of Hindu religious
institutions of a public character to all classes and sections of Hindus".

The expression "Institution of a public character" means an institution which is dedicated to the
public as a whole and to sections thereof. Article 25(2)(b) protects the right to enter into a temple
for worship. But, it does not follow that the right is absolute and unlimited in character. No
member of the Hindu public would claim under Article 25 (2)(b) that the temple must be left
open at all hours of the day and night and that he should personally perform those services which
the Acharya could alone perform.61 It is also well settled that the State cannot regulate the
traditional and conventional manner in which the worship of the deity is performed by the
authorized pujaris of the temple and by no other devotee, entering the temple for darshan. The

58
AIR 2002 SC 3538.
59
Yajnapurusdasji v. Muldas Bhudardas, AIR 1966 SC 1119.
60
Javed v. State of Haryana, AIR 2003 Sc 3057.
61
Venkataramana v. State of Mysore, AIR 1958 SC 255.

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State also cannot regulate the hours and days on which the temple is to be kept open for darshan
or puja for the devotees.62

In Venkataramana Devaru v. State of Mysore,63 the Madras Temple Entry Authorisation Act,
1947, was enacted with the object of removing the disability imposed on Harijans from entering
into temples which were dedicated to the Hindu public generally. The appellants, who were
Gowda Saraswath Brahmins established the temple in question known as Shri Venkatramana
Temple. They contended that it was a private temple belonging exclusively to the Gowda
Saraswath Brahmins and therefore, did not fall within the purview of the impugned Act.

The Court held that though the temple was a denominational one, but it was a public institution.
Therefore, it was held that the appellant could not claim exclusive right for the members of their
community to worship in the temple and to exclude all others from the entry to the temple, as it
would be hit by Article 25 (2)(b).

However, the Court upheld that during certain ceremonies and on special occasions, it would be
only members of the Gowda Saraswath Brahmin community that would have the right to take
part therein and on those occasions, all other persons would be excluded. This, the Court held,
would clearly be a denominational right under Article 26(b).

A restriction on the freedom of religion can be upheld only if it falls within the exceptions of
Clause (1) and Clause (2) of Articles 25. It cannot be imposed on any other extraneous
consideration. Further, that the restriction must have the authority of law.64

Explanation I to Article 25

This Explanation provides: "The wearing and carrying of Kirpans shall be deemed to be included
in the profession of the Sikh religion". It thus recognizes the fundamental right of the followers
of Sikh religion to wear and carry Kirpan as a part of the profession of their religion. However,
neither the Sikh religion nor Article 25 entitles a Sikh to carry without licence, more than one
Kirpan.65

Explanation II to Articles 25

It declares that the expression "Hindus" for the purposes of Article 25(2) (b) shall be construed
as including persons professing the Sikh, Jains or Buddhist religion. It merely means that even
though the religions of the Sikhs, Jains and Buddhists arose out of dissent from the Hindu

62
Sastri Yagnapurushadji v. Muldas Bhudardas, AIR 1966 SC 1119.
63
AIR 1958 SC 255.
64
Bijoe Emmanuel v. Dtate of Kerela, AIR 1987 SC 748.
65
R. v. Dhyan Singh, AIR 1951 All 53.

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religion, for the generality of purposes, these religions should be considered to be different from
the Hindu religion.66 However, for the purposes of Article 25(2)(b), they should be considered to
be governed by the same laws as Hindus.67 This Explanation further declares that the reference to
Hindu religious institutions should be construed reference to institutions belonging to Sikh, Jains
or Buddhist religion.68

B. Freedom of Religion of Religious Denominations (Article 26)

Article 26 provides: "Subject to public order, morality and health, every religious denomination
or any section thereof shall have the right

a) to establish and maintain institutions for religious and charitable purposes;

b) to manage its own affairs in matters of religion;
c) to own and acquire movable and immovable property; and
d) to administer such property in accordance with law".
It may be noted that while Article 25 is available to all persons, Article 26 is confined to
religious denomination.69

Religious DenominationDefinition

The term "denomination" is not defined in the Constitution. In Oxford Dictionary, it means "a
collection of individuals classed together under the same name, a religious sect or body having a
common faith and. organisation and designated by a distinctive name".70 A "religious
denomination" may be 'denomination" which is based on some particular religion. It was held in
S.P. Mittal v. Union of India,71 that the words "religious denomination" in Article 26 must take
their colour from the word "religion." If this is so, the expression religious denomination must
also satisfy the following 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 spiritual well-being, that is, a common faith;
b) It must have a common organisation; and
c) It must be designated by a distinctive name.

66
C.W.T. v. Champa Kumari Singh, AIR 1972 SC 2119.
67
Punjab Rao v. D.P. Meshram, AIR 1965 SC 1179.
68
Ibid.
69
Narendra v. State of Gujrat, AIR 1974 SC 2098.
70
Quoted in Commissioner, H.R.E. v. L.T. Swamiar, AIR 1954 SC 282.
71
AIR 1983 SC 1.

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The expression "denomination" is also used for each of the sects and sub-sects of a religion.72 So
construed, the Arya Samaj,73 Ramakrishna Mission,74 Anandamarga75 Vaishnava (the followers
of Ramanuja), the followers of Madhawacharya, and other religious teachers, though not
separate religions, have been held to be separate religious denomination, and as such, have the
right to the protection of Article 26.76 Similarly, among the Muslims, Hanafee, Shia, Sunni or
Chisthi sects are held to be separate denominations. The Dawoodi Bohara Community has been
held to be a sub-sect of the Shias.77 Likewise, among the Christians, Roman Catholic,
Protestants, are separate denominations.

In Sri K.P.A.S. Committee v. Commissioner of H.R. C. & E.,78 the Supreme Court held that
Arya Vysya Community, the Hindus worshipping Goddess Matha Kanya Kaparameswari were
not denominational section for the purpose of Articles 26(b) and 26(d) of the Constitution. They
were held to be an institution covered by the provision of the Endowments Act.79 The Court
relied on the decision in Sri Adi Visheshwara of Kashi Vishwanath Temple, Varanasi, v.
State of U.P.,80 wherein the Court had held that Hindu Worshippers of God Shiva were not a
denominational section and therefore, not entitled to the benefit of Articles 26(b) and 26(d).

It has been explained that for a community to be a religious enomination, the common faith of
the community, should be based on religion and in that they should have common religious
tenets81 and the basic cord, which connects them, should be religion and not merely
considerations of caste or community or societal status.82 So said, the Apex Court in Nellor
Marthandam Vellalar v. Commissioner Hindu Religious and Charitable Endowments,83
ruled that Vellala Community could not be said to be a religious denomination so as to seek the
protection under Article 26.

72
Commissioner, H.R.E. v. L.T. Swamiar, AIR 1954 SC 282.
73
Arya Samaj Education Trust, Delhi v. Director of Education, AIR 1976 Del 207.
74
Bramhchari Sideshwar Shai v. State of W.B. , AIR 1995 SC 2089.
75
Commr. Of Police v. Acharya Jagdishawarananda, AIR 2004 SC 2984.
76
Commissioner, H.R.E. v. L.T. Swamiar, AIR 1954 SC 282.
77
Saifuddin Sahib v. State of Bombay, AIR 1962 SC 853
78
AIR 1997 SC 2332.
79
Ibid.
80
JT 1997 (4) 124.
81
See Ramasami Muliadar v. Commr. H.R. and C.E. Admn. Deptt. Madras, AIR 1999 Mad 393.
82
Nellor Marthandam Vellalar v. Commissioner Hindu Religious and Charitable Endowments, AIR 2003 SC
4225.
83
AIR 2003 SC 4225.

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A 'religion is not the only common bond for the members of the community to be known as a
"denomination". There may be other basis on which the community are held together, such as,
profession, business or calling. Such a community may be a denomination, e.g. Senguntha
Mudaliar,84 Jehowahs Witnesses,85 the Aurobindo Society or Anroville.86 But, such
denominations are not "religious denominations" so as to attract the protection of Article 26.87

Article 26 contemplates not merely a religious denomination, but also a section thereof.
Therefore, a Math or the spiritual fraternity represented by it will be within the purview of
Article 26.88

(a) Right to Establish and Maintain Institutions [Article 26(a)]

Clause (a) of Article 26 guarantees to every "religious denomination" or any section thereof the
right "to establish and maintain institutions for religious and charitable purposes".

The right under Article 26(a), is a group right and is available to every religious denomination or
any section thereof, be it of majority or any section thereof. Article 26(a) thus, gives the right
both to the majority as well as minority communities to establish and maintain institutions for
charitable purposes, which would, inter alia, include educational institutions.89 It has also been
explained that "educational the Articles of the Constitution means and includes education at all
levels from the primary school level up to the post-graduate level, as well as, professional
education.90

The words "establish" and "maintain" in Article 26(a) must be read conjunctively. So, read, it
would mean that only those institutions which a denomination establishes, that, it can claim the
right to maintain those.91

The right guaranteed by Article 26(a) is subjected to 'public order"; morality and "health.92 It
means that the right under Article 26 a may be restricted on the ground only of public order,
morality or health and on no other ground.

The right to maintain an institution for religious and charitable purposes includes the right to
exclude the profession or practices belonging to other religions. In Sanjib Kumar v. Principal,

84
Assistant Commissioner H.R. & C.E., Salem v. N.K.S.E. Mudaliar, AIR 1987 Mad. 187.
85
Bijoe Emmanuel v. State of Kerela, AIR 1987 SC 748.
86
S.P Mittal v. Union of India, AIR 1983 SC 1.
87
Assistant Commissioner H.R. & C.E., Salem v. N.K.S.E. Mudaliar, AIR 1987 Mad. 187.
88
Commissioner, H.R.E. v. L.T. Swamiar, AIR 1954 SC 282
89
T.M.A. Pai Foundation v. State of Karnataka, AIR 2003 SC 355.
90
Ibid.
91
See Azeez Basha v. Union of India, AIR 1986 Sc 662.
92
Opening words of Article 26.

Page | 160
St. Paul College,93 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 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 guarantees to every religious denomination "the right to manage its own
affairs in matters of religion".

The expression "matters of religion" includes religious practices, rites and ceremonies essential
for the practicing of religion. It thus, not merely includes matters of doctrine and belief
concerning the religion, but extends to acts done in pursuance of religion and therefore contains a
guarantee for rituals and observances, ceremonies and modes of worship, which are essential and
integral parts of religion as also the practice thereof.94 "Matters of religion" however would not
include the religious practices unless those practices are found to constitute essential and integral
part of a religion.95

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. Avadhutta,96 the Apex Court elucidated the expression "an
essential part or practice of a religion" to mean those practices that were fundamental to follow a
religious belief.97

The Court observed:

Freedom to manage religious affairs does not mean creation of any right which it never had. It
merely safeguards the existing rights.98

The right to exclude persons who are not entitled to participate in the worship according to the
tenets of the institution, has been held to fall under the expression "matters of religion", protected
by Article 26(b).99

93
AIR 1957 Cal 524.
94
Commr. of Police v. Acharya J. Avadhuta, AIR 2004 SC 2984.
95
Venkataramana v. State of Mysore, AIR 1958 SC 255.
96
AIR 2004 SC 2984.
97
See supra, 392-394, for the test to determine whether a practice is integral to religion.
98
M.P.G. Nair v. State of Kerela, AIR 2005 Sc 3053.
99
Venkataramana v. State of Mysore, AIR 1958 SC 255.

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"Matters of religion" also includes acts done in pursuance of religion and therefore, contain a
guarantee for rituals, ceremonies, observances and modes of worshipping, which are regarded as
integral part of religion.100 A provision requiring the members elected to the Board of Devaswom
Temple to subscribe oath before the Secretary to the Government of Kerala, i.e., before a Secular
Government, who may be a Hindu but may be non-believer of God/temple worship, has been
held interfering with the right of the Hindu Denomination under Articles 25 and 26.101

In Commissioner, H.R.E. v. L.T. Swamiar,102 (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 subordinate officers and also persons authorized by them,
to enter the premises of any religious institution or place of worship, for the purpose of
exercising any power conferred 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 archaka of another sect infringes the right of
the later sect to manage its religious matters, under Article 26(b).103

In Saifuddin Sahib v. State of Bombay,104 the Court explained that Article 26(b) 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, of ex-communicating those who defied the fundamental basis of the
religion.105 The Court, thus, held The Bombay Prevention of Ex-Communication Act, 1949,
which prohibited the head of Dawoodi Bohra Community, from ex-communicating the members
of the community, solely on religious grounds, violative of the right of the community secured
under Article 26(b).

The Bombay Hindu Places of Public Worship (Entry Authorisation) Act, 1956, authorised
every Harijan to visit and worship in any temple coming under the Act, as any other Hindu, in
general. The Act was challenged by the Satsangis on the ground that it authorised the non-

100
Sri Adi Vishwara, K.V.T. v. State of U.P., JT 1997 (4) SC 124.
101
G.R. Nair v. State of Kerela, AIR 2008 ker. 85.
102
AIR 1954 SC 282.
103
E.R.J. Swami v. State of Tamil Nadu, AIR 1972 SC 1586.
104
AIR 1962 SC 853.
105
See also Chinnamma v. D.P.I., AIR 1964 A.P. 277.

Page | 162
Satsangis in Sastri Yagnapurushdasji v Muldas Bhudardas Vaishya,106 to enter the places of
worship managed by them, who constituted a separate religious sect. The Supreme Court upheld
the validity of the impugned Act as its object was to establish social equality between all sections
of the Hindus in the matters of worship. However, the Court observed that actual worshipping of
the Deity would continue to be performed by the authorised pujaries of the temple in accordance
with the traditional and conventional manner and by no other devotee entering the temple for
darshan.

Apart from these express limitations in Article 26 itself, it has been settled, that Article 26
(b) should be read subject to Article 25(2).107 Article 26 (b) relates to "matters of religion". It,
therefore, indicates that there are other affairs as well, which are not matters of religion and to
which the guarantee given by this Clause would not apply.108

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".

The right contained in Clause (c) of Article 26 is distinguishable from the guarantee contained in
Clause (b) relating to management of religion

affairs. While, Article 26(b) guarantees a fundamental right which cannot be taken away except
on grounds mentioned in Article 25(2), the right contained in Article 26(c) can be regulated by a
law made by a competent Legislature.

The U.P. Sri Kashi Vishwanath Temple Act, 1983, inter alia, provided for vesting the entire
property, movable and immovable, in the deity Shri Kashi Vishwanath and the administration
and management of which was entrusted to a Board. The Allahabad High Court in Trivikram
Narain Singh v. State of U.P.,109 held the Act valid. The Court observed that Articles 26(c) and
26(d) protected the right of the denomination and not of Pujaris and Shebaits. When the

106
AIR 1966 SC 1119.
107
Venkataramana v. State of Mysore, AIR 1958 SC 255.
108
See K.V. Narayanan v. State of Kerela, AIR 1985 Ker 160.
109
AIR 1987 All 362.

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administration and management of temple property was entrusted to Board, the Court held, it
was not divesting the denomination of its right of administration.110

It may be noted that Articles 26(c) and 26(d) do not create rights, in any denomination or its
section, which it never had, they merely safeguard and guarantee the continuance of rights which
such denomination or its section had.

However, a law which takes away the right of administration altogether from the religious
denomination and vests it in some secular authority, would be violative of the guarantee
contained in article 26(d).

In Ratilal Panachand Gandhi v. State of Bombay,111 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 right of the religious denomination
under Article 26(d). The substitution of the Charity Commissioner for the Mathadhipati, the
Court held, would mean a destruction of the institution altogether.

Likewise, a law, which empowers the Commissioner of Endowments to deprive the mahant, at
any moment he choose, of his right to administer the trust property, even if there was no
negligence or maladministration on his part, would be opposed to the guarantee contained in
Article 26(d).

However, it has been held that Article 26 does not interfere with the right of the State to acquire
property.112 Also, the right to own and acquire property under Article 26(c), is not a part of basic
feature of the Constitution.113

C. Freedom from Payment of Taxes for Promotion of any Particular

Religion (Article 27)
Article 27 provides: "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".

110
The Act was passed in view of the off and on thefts in kasha Vishwanath Temple, Litigations between pujaris
and Shebaits, rumoured association of pujaries with thieves, unhealthy arrangement of pilgrims and unhygienic
conditions prevailing inside the Temple, its poor upkeep etc.
111
AIR 1954 SC 388.
112
M. Ismail Faruqui v. Union of India, AIR 1995 SC 605.
113
See S.B. Narayancharya v. State of Gujrat, AIR 2001 Guj. 208.

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The object behind Article 27 is to protect the secular characteristic of the Constitution of India
which prohibits the promotion or maintenance of any particular religion by the State or at States
expenses. Therefore, if such a tax is imposed, no person can be compelled to pay it.

It may be noted that Article 27 prohibits the levy of "tax" and not the imposition of a fee".

The Orissa Hindu Religious Endowments Act, 1939 was enacted "for the better administration
and governance of certain Hindu religious endowments". The Act imposed on every Math or
temple, the annual income of which exceeded Rs. 250/-, an annual contribution at certain
percentage of the annual income, for the purpose of meeting the expenses of the Commissioner
and his staff, appointed under the Act.

The Supreme Court in Sri Jagannath v. State of Orissa,114 upheld the levy and observed that
the annual contribution so imposed was in the nature of a "fee" and not a "tax". The payment was
demanded for the purpose of meeting the expenses of the Commissioner and his office which
was the machinery set up for the due administration of the affairs of the religious institutions
concerned.115

In Nasima Khatun v. State of West Bengal,116 the Bengal Wakfs Act, 1934, as amended by the
Amendment Act, 1973, provided for the creation of Wakf Fund and an Education Fund for the
education of poor and meritorious boys and girls professing Islam. Wakf-al-alaulad were
required to pay contribution towards this fund. The Calcutta High Court held that there was no
question of any religious affair involved in the education of poor Muslim boys and girls and that
the contribution that had to be made was not tax within the meaning of Article 27, but it was a
fee realised for a secular purpose for the proper management of the Wakf property and not for
the promotion or maintenance of any particular religion or religious denomination.

An imposition under Sections 3 and 4 of the Ganga Sagar Mela Ordinance, 1975, was held
incidental to the measures to be taken under the Ordinance. It was neither for a public purpose
i\or to meet the general expenses of the State. It was held to be a fee and hot a tax and therefore,
the imposition was not violative of Article 27.117

114
AIR 1954 Sc 400.
115
It was followed in Moti Dass v. S.P. Sahi, AIR 1959 SC 942.
116
AIR 1981 Cal. 302.
117
Ramchandra Pande v. State of W.B., AIR 1976 Cal. 164.

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Article 27 not only prohibits the imposition of a tax but it also prohibits the utilisation of public
funds for the promotion or maintenance of a particular religion or religious denomination.
However, reconstruction of the religious and educational places damaged during communal riots,
at the cost of the Government had been held to be valid.118 Likewise, the acquisition of land for
construction of temple meant for the use of public in general had also been upheld as not
violative of Article 27.119

Again, the programme held by the Government for honouring the memory of great sons of India,
who had contributed to Indias cultural heritage, did not amount to favouring of any particular
religion.120

In P.M. Bhargava v. University Grants Commission,121 the Supreme Court ruled that
introduction of Jyotir Vigyan as a course of study, by the University Grants Commission, did not
mean teaching religion. The Court reiterated with approval the observations of the Madras High
Court in Dr. K. Natrajan v. Union of India,122 wherein Honble Justice F.M. Ibrahim Kalifulla
said that inclusion of Jyotir Vigyan as a course of study, would not result in propagation of a
particular religion, merely because the subject had got its basis or origin traceable to some cult.

D. Prohibition of Religious Instructions in Educational Institutions [Article

28]
Clause (1) of Article 28 provides "No religious instruction shall be provided in any educational
institution wholly maintained out of State funds".

Clause (3) further provides: "No person attending any educational institution recognised by the
State or receiving aid out of State funds shall be required to take part in any religious instruction
that may be imparted in such institution or to attend any religious worship that may be conducted
in such institution or in any premises attached thereto unless such person or, if such person is a
minor, his guardian has given his consent thereto".

Clause (2), an exception to Clause (1) provides that the prohibition contained in Clause (1)
would 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 institution.

118
K. Raghunath v. State of Karnataka, AIR 1974 Ker 48.
119
Papanna v. State of Karnataka, AIR 1983 Kant 94.
120
Suresh Chandra v. Union of India, AIR 1975 Del 168.
121
AIR 2004 SC 3478.
122
WP No. 135400 of 2001.

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Article 28 distinguishes between the following three types of educational institutions in respect
of holding religious instructions or worship.

i. Educational institutions wholly maintained out of State funds.

In these institutions, there is absolute prohibition against imparting of religious instruction.

ii. Educational Institutions which are either recognised by the State or getting aid out of
State funds.
In such institutions, there is no prohibition against imparting of religious instructions or holding
of religious worship. However, no person attending such educational institutions shall be
required to take part in religious instruction imparted therein or attend any religious worship held
therein unless such person has given his consent thereto. If such person is a minor, consent of his
guardian would be required for requiring him to attend the religious instruction.123

iii. Educational institutions which are administered by the State but have been
established under any endowment or trust which requires that religious instructions
shall be imparted.
As regards such institutions there is no prohibition against imparting of religious instructions.

Article 28 was enacted to ensure that the peaceful atmosphere of educational institutions should
not be disturbed by the controversies with regard to the truthful character of any particular
religion and the erroneous character of the other. It was to provide for a path of complete
safety.124

The Guru Nanak University Act, 1969, provided for the establishment of Guru Nanak University
at Amritsar, with a view to make provision for the study and research on the life and teachings of
Guru Nanak.

In DA.V. College, Jullundur v. State of Punjab,125 the 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 or 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.

123
See St. Xaviers College Society v. State of Gujrat, AIR 1974 SC 1389.
124
Dr. B.R. Ambedkar, CAD VII, 883-884.
125
AIR 1971 SC 1737.

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In Aruna Roy v. Union of India,126 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 is prohibited is the former and not the latter.
"Recommending that students be acquainted with basics of all religions, the values inherited
therein and also a comparative study of philosophy of all religions", the Court held "neither
offends Article 28 nor brings secularism to peril."

E. Religious Freedom and Proselytisation

Proselytisation literally means "conversion from one opinion, creed or party to another". The
question of "conversion" in reference to "freedom of religion" has gone to the Courts in matter of
a Hindu husband contacting second marriage after conversion to Islam, without getting his first
marriage dissolved. In such a matter, learned Justice Chagla, in Robasa Khanum v. Khodadad
Irani,127 ruled that the conduct of the husband would be judged on the basis of the rule of
"justice, equity and good conscience". Though, the Hindu husband had a right to embrace Islam
as his religion, but, the learned judge held that he had no right to marry again without getting his
earlier marriage dissolved. Relying on the observations of Justice Chagla, the Apex Court in Lily
Thomas v. Union of India128 held that prosecution of the apostate-husband under Section 494 of
IPC, 1860, did not violate freedom of religion.

126
AIR 2002 SC 3176.
127
AIR 1947 Bom. 272.
128
AIR 2000 SC 1650.

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 BIBLIOGRAPHY

BOOKS

Jain MP, Indian Constitutional Law (5th edition), Wadhwa Nagpur Publications, 2004
(reprint)
Pandey JN. Dr., The Constitutional Law of India (48th edition), Central Law Agency,
2011
Singh M.M., The Constitution of India, The World Press Private Ltd. Calcutta, 1975
Kumar Narender, Constitutional Law of India (reprint edition), Allahabad Law Agency,
2016
D.J. DE, The Constitution of India, Volume 2nd, 2005

WEBSITES

https://en.wikipedia.org/wiki/T_freedom-of-religion
https://indiankanoon.org/search/?formInput=bare%20acts
http://www.yourarticlelibrary.com/essay/freedom of religion-in-india-11-salient-features-
of-Freedom of religion/40371/
https://en.wikipedia.org/wiki/
https://en.wikipedia.org/wiki\Freeomofreligion

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