Article 25-28

Articles 25 – 28 

Secularism – Freedom of Religion, Judicial interpretation, Restrictions on freedom of religion. 

India is a country of religions. There exist multifarious religious groups in the country but, in spite of this, the Constitution stands for a secular state of India. Secularism has been inserted in the Preamble by reason of the Constitution (Forty-second Amendment) Act, 1976. Secularism is the basic structure of the Constitution. Thus, there is no official religion in India. Several fundamental rights guarantee freedom of worship, belief, faith and religion1. The state does not identify itself with, or favour, any particular religion. The state is enjoined to treat all religions and religious sects equally. No one is disabled to hold any office on the ground of religion. Religion is a matter of belief or faith. The Constitution of India recognizes the fact, how important religion is in the life of people of India and hence, provides for the right to freedom of religion under Articles 25 to Article 28. In a State, all are equal and should be treated equally. Religion has no place in the matters of State. Freedom of religion as a fundamental right is guaranteed to all persons in India. 

Secularism 

“Secularism is neither anti-God nor pro-God. It eliminates God from the matters of State and ensures that no one shall be discriminated on the grounds of religion.”‘Secularism’ means 

that the State shall observe an attitude of neutrality and impartiality towards all religions. Articles 25 and 26 embody the principles of religious tolerance that has been the characteristic feature of Indian civilization from the start of history. Besides they serve to emphasize the secular nature of Indian democracy i.e. equal respect to all religions. A secular State does not mean an irreligious State, it only means that in matters of religion it is neutral, the State can have no religion of its own, and the State protects all religions but interferes with none. In a secular State, the State is only concerned with the relation between man and man; it is not concerned with the relation of man with God. It is left to the individual’s conscience. 

D.E. Smith opinion that a secular state is a state which guarantees individual and corporate freedom of religion, deals, with the individual as a citizen irrespective of religion, is not constitutionally connected to a particular religion nor does it seek either to promote or interfere with it. 

What is religion?

Milton Yinger, American sociologist defines religion as “a system of beliefs and practices by means of which a group of people struggles with the ultimate problems of human life”. 

The constitution does not define the term ‘religion’ and ‘matters of religion’. Hence, it is left to the Supreme Court to determine the judicial meaning of these terms. 

Constitutional Provisions relating Freedom of Religion 

The decision of the Constituent Assembly to keep out God from the Constitution will doubtless please the atheists, who regard the existence of God as a metaphysical myth. But this is by no means the opinion of the bulk of the Indian people. In fact, one of the essential features of Indian culture is its deep concern with the super natural, and the whole of the Indian cultural tradition is embedded in the belief in and the worship of the Supreme Being in diverse ways. All persons are equally entitled to freedom of religion guaranteed under part III of Constitution. 

Article -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, practice 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 (2), the 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 accordingly. 

Article-26. Freedom to manage religious affairs.—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. 

Article-27. Freedom as to payment of taxes for promotion of any particular religion.—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-28. Freedom as to attendance at religious instruction or religious worship in certain educational institutions.— 

(1) No religious instruction shall be provided in any educational institution wholly maintained out of State funds. 

(2) Nothing in clause (1) shall 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. 

(3) 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. 

Judicial trends on Right to Freedom of Religion 

To ‘profess’ a religion means to declare freely and openly one’s faith and belief. He has right to practice his belief by practical expression in any manner he likes. To ‘practice’ religion is to perform the prescribed religious duties, rites and rituals. To ‘propagate’ means to spread and publicize his religious views for the edification of others. In other words, it means the right to communicate a person’s beliefs to another person or to expose the tenets of that faith. The right to propagate one’s religion does not give a right to convert another person to one’s own religion, as that would impinge on the “freedom of conscience” guaranteed to all persons. Our judiciary played an important role in balancing the freedoms and restrictions. In various cases court upheld the importance secularism and also the right to religion. 

In S.R Bommai v Union of India J.T. 1994(2) SC 215, held that the dismissal of the BJP Government in M.P., Rajasthan and H P. in the wake of the Ayodhya incident of Dec. 6, 1992 was valid and imposition of the President’s rule in these States was not unconstitutional. The court held that ‘secularism’ is a basic feature of the

Constitution and any State Government which acts against that ideal can be dismissed by the President. 

The National Anthem Case 

Bijoe Emmanuel v. State of Kerala, (Popularly known as the national anthem case.) 

The facts of this case were that three children belonging to a sect (Jehovah’s witness) worshipped only Jehovah (the creator) and refused to sing the national anthem “Jana Gana Mana”. According to these, children singing Jana Gana Mana was against the tenets of their religious faith which did not allow them to sing the national anthem. These children stood up respectfully in silence daily for the national anthem but refused to sing because of their honest belief. A Commission was appointed to enquire about the matter. In the report, the Commission stated that these children were ‘law-abiding’ and did not show any disrespect. However, the headmistress under the instruction of the Dy. Inspector of Schools expelled the students. 

The Supreme Court held that the action of the headmistress of expelling the children from school for not singing the national anthem was violation of their freedom of religion. The fundamental rights guaranteed under Article 19(1)(a) and Article 25(1) has been infringed. It further held that there is no provision of law which compels or obligates anyone to sing the national anthem, it is also not disrespectful if a person respectfully stands but does not sing the national anthem. 

Appointment of Non-Brahmins as Pujari: N. Aditya v. Travancore Devaswom Board 

The issue, in this case was whether the appointment of a non-Malayala Brahmin as ‘Santhikaran’ (Priest or Pujari) of the Kongorpilly Neerikode Siva Temple at Kerala is violation of the provisions of the constitution. 

The court held as long as a person is well versed, properly qualified and trained to perform the puja in an appropriate manner for the worship of the deity, such a person can be appointed as ‘Santhikaran’ despite his caste. In the present case, it was also observed that the temple is not a denomination where there is a specific form of worship is required. 

Acquisition of place of worship by State 

The Supreme Court in the case of M Ismail Faruqi v. Union of India held that the mosque is not an essential part of Islam. Namaz (Prayer) can be offered by the Muslims anywhere, in the open as well and it is not necessary to be offered only in a mosque.

In M Siddiq (D) Thr. Lrs v. Mahant Suresh Das Supreme Court held that the State has the sovereign or prerogative power to acquire the property. The state also has the power to acquire places of worship such as mosque, church, temple, etc and the acquisition of places of worship per se is not violation of Articles 25 and 26. However, the acquisition of place of worship which is significant and essential for the religion and if the extinction of such place breaches their (persons belonging to that religion) right to practice religion then the acquisition of such places cannot be permitted. 

Triple Talaq: Shayara Bano v. Union of India 

Talaq-e-biddat known as triple talaq, a kind of divorce through which a Muslim man could divorce his wife by uttering the words talaq talaq talaq. A 5 judges bench of the Supreme Court heard the controversial Triple Talaq case. The main issue, in this case, was whether the practice of Talaq-e-biddat (triple talaq) is a matter of faith to the Muslims and whether it is constituent to their personal law. By a 3:2 majority, the court ruled that the practice of Talaq-e- biddat is illegal and unconstitutional. The court also held that, an injunction would continue to bar the Muslim male from practicing triple talaq till a legislation is enacted for that purpose. 

To which the government formulated the Muslim Women (Protection of Rights on Marriage) Bill, 2017. Later, Muslim Women (Protection of Rights on Marriage) Ordinance, 2018 was passed. As the 2018 ordinance was about to expire, the government formulated a fresh bill in 

2019 and an ordinance was passed for the same in 2019 which was approved by the President and finally the Muslim Women (Protection of Rights on Marriage) Act, 2019 came into force on July 31st, 2019 with an objective “to protect the rights of the married Muslim women and prohibit the Muslim male to divorce the wife by pronouncing talaq”. 

Noise pollution in the name of religion 

The Supreme Court in Church of God (Full Gospel) v K.K.R. Majestic Colony Welfare Association held that nowhere in any religion, it is mentioned that prayers should be performed through the beating of drums or through voice amplifiers which disturbs the peace and tranquility of others. If there is any such practice, it should be done without adversely affecting the rights of others as well as that of not being disturbed in their activities. 

Article 25, Clause (1) – In the name of religion no act can be done against public order, morality and health of the public. For example, in the name of religion ‘untouchability or traffic in human beings’ e.g. system of devadasis cannot be tolerated.

Article 26-Religious denomination 

The word ‘religious denomination’ is not defined in the constitution. The word ‘denomination’ came to be considered by the Supreme Court in the case of Commissioner, Hindu Religious endowment Madras v. Shri Laxmindra Thirtha Swamiar of Shri Shirur Mutt. In this case, the meaning of ‘Denomination’ was called out from the Oxford dictionary, “A collection of individuals classed together under the same name, a religious sect or body having a common faith and organization designated by a distinctive name”. 

Bramchari Sidheshwar Bhai v. State of West Bengal 

In this case, The Ram Krishna Mission wanted to declare itself as a non- Hindu minority where its members were to be treated as Hindus in the matter of marriage and inheritance but in the religious sense to be recognized as non-Hindus. This would certainly mean that they are given the status of legal Hindus but religious non- Hindus, similar to Sikhs and Buddhists. To this, the 

Supreme Court ruled that it cannot be claimed by the followers of Ram Krishna that they belong to the minority of the Ram Krishna Religion. Ram Krishna Religion is not distinct and separate from the Hindu religion. It is not a minority based upon religion. Hence, it cannot claim the fundamental right under Article 30 (1) to establish and administer institutions of education by Ram Krishna Mission. 

Right to establish and maintain-institutions for religious and charitable purposes: Azeez Basha v. Union of India 

In this case, certain amendments were made in the year 1951 and 1965 to the Aligarh Muslim University Act, 1920. These amendments were challenged by the petitioner on the ground that: 

1. They infringe on the fundamental right under Article 30 to establish and administer educational institutions. 

2. Rights of the Muslim minority under Article 25, 26, 29 were violated. 

It was held by the Supreme Court that prior to 1920 there was nothing that could prevent Muslim minorities from establishing universities. The Aligarh Muslim University was established under the legislation (Aligarh Muslim University Act,1920) and therefore cannot claim that the university was established by the Muslim Community as it was brought into existence by the central legislation and not by the Muslim minority.

Breaking of coconuts and performing Pooja, chanting Mantras and Sutras in State functions: Atheist Society of India v. Government of A.P., AIR 1992 AP 310 

The petitioner (Atheist Society of India), in this case prayed for the issuance of writ of Mandamus to direct the Government of Andhra Pradesh to give instruction to all the concerned departments to forbid the performance of religious practices such as breaking of coconuts, chanting mantras, etc at the State function on the ground that the performing of these practices is against secular policy of the constitution. The petitioner’s prayers were rejected by the court on the grounds that it infringes upon the right to religion and if permitted it will be against the 

principle of secularism, which is the basic structure of our Constitution. It would lead to depriving of the right to freedom of thought, faith, worship. 

Limitations of the Right 

The right to religion under Article 26 is subject to certain limitations and not absolute and unfettered. If any religious practice is in contravention to any public order, morality or health then such religious practice cannot claim the protection of the state. 

Freedom from taxes for promotion of any particular religion (Art. 27) 

Article 27 of the Constitution prevents a person from being compelled to pay any taxes which are meant for the payment of the costs incurred for the promotion or maintenance of any religion or religious denomination. 

In the case of Commissioner, Hindu Religious Endowments, Madras v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt, the Madras legislature enacted the Madras Hindu Religious and Charita Endowment Act, 1951 and contributions were levied under the Act. It was contended by the petitioner that the contributions levied are taxes and not a fee and the state of madras is not competent to enact such a provision. It was held by the Supreme Court that though the contribution levied was tax but the object of it was for the proper administration of the religious institution. 

Prohibition of religious instruction in the State-aided Institutions (Art. 28) Article 28 prohibits: 

● Providing religious instructions in any educational institutions that are maintained wholly out of the state funds. 

● The above shall not apply to those educational institutions administered by the states but established under endowment or trust requiring religious instruction to be imparted in such institution.

• Any person attending state recognized or state-funded educational institution is not required to take part in religious instruction or attend any workshop conducted in such an institution or premises of such educational institution. 

Teaching of Guru-Nanak: D.A.V. College v. State of Punjab, (1971) 2 SCC 368 

In this case Section 4 of the Guru Nanak University (Amritsar) Act, 1969 which provided that the state shall make provisions for the study of life and teachings of Guru Nanak Devji was questioned as being violation of Article 28 of the Constitution. The question that arose was that the Guru Nanak University is wholly maintained out of state funds and Section 4 infringes Article 28. The court rejecting this held that Section 4 provides for the academic study of the life and teachings of Guru Nanak and this cannot be considered as religious instruction. 

Education for value development based on all religions: Aruna Roy v. Union of India, (2002) 7 SCC 368. 

In this case PIL was filed under Article 32 wherein it was contended by the petitioner that the National Curriculum Framework for School Education (NCFSE) which was published by the National Council of Educational Research and Training is violative of the provisions of the constitution. It was also contended that it was anti-secular and was also without the consultation of the Central Advisory Board of Education and hence it should be set aside. NCFSE provided education for value development relating to basic human values, social justice, non-violence, self-discipline, compassion, etc. The court ruled that there is no violation of Article 28 and there is also no prohibition to study religious philosophy for having value-based life in a society.