Anda di halaman 1dari 18

1

Constitution project
Freedom of religion

Submitted to:- submitted by:-


Dr Shruti badi komaljit kaur
Class:- 4 sem
th

243/17
2

Acknowledgment
3

Content pages

Freedom of religion 4-5

Article 25 6-9

Restriction on the freedom of 9-11


religion
Article 26 11-14

Article 27 14

Article 28 15-16

Bibliography 17

Webliography
18
4

RIGHT TO FREEDOM OF RELIGION


(ARTICLE 25 TO 28)
The “right to freedom of religion” is contained in article 25 to 28 of the constitution various
rights which go to constitute the “right to freedom of religion” are –

 Article 25. Freedom of conscience and free profession, practice and propagation of
religion.
 Article 26. Freedom to manage religious affairs.
 Article 27. Freedom as to payment of taxes for promotion of any particular religion
 . Article 28. Freedom as to attendance at religious instruction or religious worship in
certain education institutions.

Article 25 to 28 use the term “person”. therefore ,freedom of religion , so secured ,is available
to every person , citizens or non-citizens or aliens 1

The provisions relating to “Right of Freedom of Religion” of the Articles 25 & 28 of the
amendment of the constitution inserts the term “secular” in the preamble of the constitution.2
Constitution of India make India a secular state. To make assurance doubly sure, the 42nd of
the constitution inserts the term “secular” in the preamble of the constitution.

1
Ratilal Panachand Ghandhi v. State of Bombay, AIR 1954 SC 388
2
https://www.importantindia.com/2025/right-to-freedom-of-religion-in-indian-constitution/
5

FREEDOM OF RELIGION
Definition – religion

The term “religion” is not defined in constitution . It is not susceptible of any rigid
definition

The Indian Constitution guarantees various fundamental rights to the citizens. One of the
fundamental rights guaranteed by the constitution also includes right to freedom of religion.
India is a secular nation and therefore every citizen residing within the territory of India has
the right to follow the religion he believes in. The right basically entitles every Indian citizen
and gives him the liberty to preach practise and propagate the religion of his choice. This
right gives leisure to sermonize about his religion , gives him the opportunity to spread it
among everyone without any fear of governmental vengeance and also gives him the
assurance to practise it in an amicable manner within the jurisdiction of the country3.

It has also been said that the word religion in article 25 and 26 has been 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 CASE4 that a “sectarian religion is open to a limited group of
people, whereas dharma embraces all and excludes non”.

LILY THOMAS V. UNION OF INDIA5 the supreme court explained that religion was a
matter of faith or devotion were not easy 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.

3
http://www.legalservicesindia.com/article/2254/Freedom-of-Religion.html
4
A.S Narayana v. State of A.P., AIR 1996 SC 1765
5
AIR 2000 SC 1650
6

Article 25:-
25. Freedom of conscience and free profession, practice and propagation of religion
(1) 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
(2) Nothing in this article shall affect the operation of any existing law or prevent the State
from making any law
(a) regulating or restricting any economic, financial, political or other secular activity which
may be associated with religious practice;
(b) providing for social welfare and reform or the throwing open of Hindu religious
institutions of a public character to all classes and sections of Hindus Explanation I The
wearing and carrying of kirpans shall be deemed to be included in the profession of the Sikh
religion Explanation II In sub clause (b) of clause reference to Hindus shall be construed as
including a reference to persons professing the Sikh, Jaina or Buddhist religion, and the
reference to Hindu religious institutions shall be construed accordingly6

Article 25(1)-This clause secure to every person

 Freedom of conscience
 The right to-
(a) Professor religion

(b)Practiced religion

(c)propagate religion

(1)Freedom of conscience

6
https://indiankanoon.org/doc/631708/
7

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 cannot a person's right to entertain brief
and doctoral,concerning matters, which are regarded by him to be conducted to his spiritual
well being. It means to believe in one region or another or none. Every person in India
,therefore have the freedom to have faith and belief and religion tenants of any sect or
community.

"Freedom of conscience" means the freedom to hold or to entertain religious beliefs any
believe which is genuinely and conscience previously held or any religious belief as many as
made to approved by his judgement or conscience attracts the protection article 25(1) it
simply means the freedom of religious opinion until this inner belief is expressed in any
outword form it is merely the "freedom of consigns"

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 man religion or to
belong to any religion at all7.

(1)(a)Right to Profess religion

Article 25 (1) guarantees the right to Profess religion. To profess means "to do avow
publicity to make an open declaration of,to declare ones believe in; as to process Christ; to
accept into religious order" Thus to Profess a particular religion means to declare freely and
open any one state or believe in when invent the inner "freedom of consigns" becomes
articulate and expressed in an outward form it amounts to do profession of religion. It is to
declare one believe in such a way that it could be known to those whom it may concern8.

(2)(b) Right to practise religion

To practice religion means to perform religious duty rites or rituals the protection is does not
limited to matters of doctrines but extended to rituals and observance .The expression
practice of religion signifies act 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 practice the belief and
opinion which he holds in a meaningful manner, it is essential for him to receive the relevant

7 Stainslaus v. State of MP AIR 1975 MP 163


8 Pumjab rao v. DP meshram AIR 1965 SC 1179
8

information , otherwise , he may be prevented from acting in consonance with his beliefs and
Opinion9.

MH QUARESHI v . STATE OF BIHAR10 (1958)

The question involved in this case was that weather slotter of cow and giving it to the god is a
practice on bakri day and will it be covered under the freedom of religion ? It was held by the
court that it is not an essential practice and it is against the public order

SHAYAR BANU v. UNION OF INDIA

The muslim practice their religion and in their religion they can give divorce to their wife by
saying talaq 3 times. The question involved in this case was that weather such practice of
taking divorce is an integral part of their religion or not? It was held by the court that it is not
an essential practice and it cannot be protected under article 25(1)

SABRIMALA CASE ( INDIAN YOUNG LAWYER V. UNION OF INDIA)

In this case it was held by the court that the practice of baring the women in temples is not an
essential practice

(2)(c)Right to propagation of religion

To propagate religion means to spread and publicise once religious views. Holding public
meeting by persons for propagating their religion is held to be guaranteed under article 25(1)
but to propagate religion indicates persuasion and its position without any element of
coercion. It does not include the right to insert the relation of father's Azan given by the
Imam or the person in charge of Mosque through an essential an integral part of Islam but is
not a form of propagation.

The right to freedom of conscience and to Profess, practice and propagate religion is not
restricted for qualified with reference to the number of persons living in a particular locality
Therefore, refusal of permission for constitution of church in a locality on ground that only
few Christians live there in gerund is illegal and unconstitutional

Right to renounce one's religion and to adopt another:-

9
Qzair Husain v. Union of india, AIR 2003
10
AIR 1958 SC 731
9

The process of renouncing one religion and adopting and otherwise genuine, voluntary and
purified and free from inducement it, coercion and fraud rules were made under the Orissa
freedom of religion act,1968

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 -

(a) public order, morality ,health and other provisions of part 3

(b) any law relating for restricting any economic, financial, political or other secular activity
is associated with religious practice

(c) any law providing for social welfare and forms for throwing open to all persons the
religious Institutions, belonging to their religion, of a public character

 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
and models of the person. It means that the fundamental right to freedom of religion must
healed to the maintenance of public order, morality and health. Therefore, when a person
features or actions are likely to Trigger communal antagonism and hatred, resulting in
fissiparous tendencies gaining foothold, undermining and affecting communal harmony,
prohibitory orders need necessarily to be passed , to effectively avert such untoward
happenings .It , thus ,follows that the over-riding and governing principles of public order
morality and health condition the right to freedom of conscience, drive sleep professor
practice and propagate religion11. A practice, however, ancient, cannot be allowed to violate
the right to life of individual12.

11
Nikhil soni v. State of rajasthan
12
ibid
10

Ghulam Abbas v. State of UP13,

The freedom of religion was subjected to the maintenance of public order. The facts of the
case were that there had been a long standing dispute between the members of the Shia and
Sunni set of Muslim, pertaining to the performance of religious rites, practices and
observation by the members of Shia set on certain plot 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 in 1982, appointed a
committee seven persons consisting of three Nominees of shias and three Nominees of
Sunnies and the Divisional Commissioner as its chairman. The committee sport wear and he
recommended that the shifting of the two Graves of Sunny from its original place, so as to
separate the place of worship of shias and sunnis was feasible.

The supreme court held that the order of the court, what implementing the committee is
recommendations, was not violative of their rights guaranteed by article 25 and 26. The court
laid down that the rights under article 25 and 26 were not absolute but subjected to the
maintenance of public order.

 Regulation of economic or other secular activities

Article 25 (2) enables the state to regulate the economic ,financial , political or other secular
activities associated with religious practice. 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)14 The word “economic , financial, political, or other secular activities” in article
25(2) (a) means those activities which are not of essence of religion.

In SP. Mittal v. Union of india15 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.

13
AIR 1983 SC 1268
14
Venkataramana Devaru v. State of mysore
15
AIR 1983 SC 1
11

 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, explains that where there is a conflict between a social welfare and reforms
and a religious practice, religion must yield.

“Social reforms” means eradication of practices which stand in the way of countries progress
as a whole and which do not constitute integral and essential part of religion.

Article 26:-
Freedom of religion of religious denominations (article26)

Article 26 provides “subject to public order, morality and health , every religious
denomination or any section thereof shall have the right –

 To establish and to maintain religious institution


 To manage its own affairs of religion
 To own and acquire movable and immovable property
 To administer such property in accordance with law”

“Article 25 is available to all persons, Article 26 is confined to religious denomination16”

RELIGIOUS DENOMINATION-DEFINITION

The term religious denomination means denomination which is based on some particular
religion. It was held in the case SP mittal v. Union of india that the word “religious
denomination” in article 26 must take their own colour from the word “religion” and it was
held that the term religious denomination must satisfy 3 conditions :-

 Must have a common system of faith ,believe which binds them


 Must have an organisation
 Organisation must have a name

16
Narendra v. State of Gujarat AIR 1974 SC 2098
12

Bramchari sidheswar shai v. State of west Benga17l the question involved this case was that is
the Ramakrishna mission a religious domination or not? It was held by the court that it is a
religious domination as it fulfils all the conditions of religious dominations

(a)to establish and maintain religious institutions [article 26 (a)]

Clause (a) of article 26 guarantees to every “religious denomination” the right “to establish
and maintain religious institution” “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, be it of majority or any section. It gives right both to the majority as well as
minority communities to establish and maintain institution for charitable purpose which
would include educational institutions18.

Azeez Basha v. Union of India19 the question involved in this case was that do muslim only
has the right to run the university or not? It was held that they do not only have a right to run
the university because it is not established by muslim it is established through an act of
parliament.

(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 practising of religion. It not only includes matters of doctrine and belief
concerning the religion, but extends to acts done in pursuance of religion and contains a
guarantee for rituals and observances , ceremonies and modes of worship , which are
essential and integral parts of religion as also the practice. “matters of religion” would not
only include the religious practices unless those practices are found to constitute essential and
integral part of religion.

17
AIR 19595 SC 2098
18
TMA PAI foundation v. State of Karnataka, AIR 2003 SC 355
19
AIR 1968 SC 662
13

Commr. Of police v. Acharya j. Avadhutta 20

In this case the court elucidated the expression “an essential part or practice of a religion” to
mean those practices that were fundamental to follow a religious belief. The court observed:

Freedom of manage religious affairs does not mean creation of any right which it never had.
It merely safeguards the existing rights. The right to exclude person who are not entitled to
practice 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)21.

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-
satsangis in sastri yagnapurushdasji v. Muldas Bhudardas vaishya22, 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 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.

(C)Right to own and administer property [article 26(c) and 26(d)]

clause c of article 26 secures to a religious denomination or any section “the right to own and
acquire movable and immovable property” clause d further strengthens this right by
guaranteeing to the dinomination “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 religious affairs. 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 kasha vishwanath temple act,1983 , inter alia, provided for vesting the entire
property, movable and immovable, in the deity shri kashi vishwanath and the administration

20
AIR 2004 SC 2984
21
Venkataramana devaru v. State of mysore, AIR 1958 SC 255
22
AIR 1966 SC 1119
14

and management of which was entrested to a board. The Allahabad high court in Trivikram
Narain Singh v. State of U.P23 held the act valid.

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”

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
state expenses. Therefore, if such a tax is imposed , no person can be compelled to pay it .

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
an governance of certain Hindu religious endowment” . The act imposed on every 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 Orissa24 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 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.

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.

23
AIR 1987 ALL 362
24
AIR 1954 SC 400
15

Prohibition of religious institution


in educational institution (article
28)
Clause (1) of article 28 provides “no religious institution shall be provided in any educational
institution wholly maintained out of state funds”.

Clause (3) 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 institution
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) is an exception to clause (1) which 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 institution
shall be imparted in such institution.

Article 28 distinguishes between the following three types of educational institutions in


respect of holding religious instructions or worship.

(1) Educational institution wholly maintained out of state funds. In these institution there
is absolute prohibition against imparting of religious instruction.
(2) Educational institutions which are either recognised by state or getting aid out of state
funds. In such institutions there is no prohibition against imparting of religious
institutions
(3) Educational institutions which are administered by the state but have been
established under any trust which requires that religious instructions shall be
imparted. In such institutions there is no prohibition against imparting of religious
instructions.
16

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. It was to provide complete safety25.

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 .

D.A.V. Collage , Jullundur v. State of Punjab26,

In this case 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
life and teaching of Guru Nanak, which did not necessarily amount to religious instruction or
promotion of any particular religion.

Aruna Roy v. Union of India27,

In this case the court distinguished between “religious instructions” and “study of religion”.
What is prohibited is the former and not the latter. The court did not prohibited the study on
the philosophy of a religion in article 28

25
DR. BR. Ambedkar, CAD VII , 883-84
26
AIR 1971 SC 1737
27
AIR 2002 SC 3176
17

Bibliography
18

Webliography

 https://www.importantindia.com/2025/right-to-freedom-of-religion-in-indian-
constitution

 https://indiankanoon.org/doc/631708/

 http://www.legalservicesindia.com/article/2254/Freedom-of-Religion.html