FREEDOM OF RELIGION

India is a pluralistic and religious society consisting of various ethnic and religious
groups. In India there is no separation between religion and the State like the US
and the state is not hostile to any religion but adopts the policy of equal respect
from all religions. Indian State is an interventionist State and has the power to set
limits to religion in order to promote social equality, social reforms, national
integration and cultural synthesis. In India there has been a long tradition of State
supporting the religion. The Indian secularism seeks reformation of the society
through State action by taking positive measures to secularize the Indian society
and by preventing communalism. In India both Hinduism and Islam govern every
aspect of life from birth to death through religious idioms and fail to distinguish
between religious and temporal matters. Practices such as Untouchability ,
Devadasi system, denial access to lower castes in Hindu temples, practice of
human sacrifice, widow burning would have claimed the protection of freedom of
religion and would have stalled the process of social reforms.

The makers of our Constitution were committed to making India a modern nation
based on social equality and freedom of the Individual. Therefore of all the
fundamental rights listed in Part III the right to freedom of religion begins with the
limitation on this right on the ground of public order, morality health and other
fundamental rights. In India one cannot claim an absolute right to hold religious
congregation or a procession and such right can be regulated by the State in the
interest of public order. For example no one can refuse to take anti-small pox
injection on the ground that it is against his religion. A ban on bursting of crackers
on Diwali day is justified to protect health. Similarly a ban on use of loudspeaker
during namaz is valid restriction. Punishing bigamy among Hindus or punishing
Sati or Devadasi practice are measures of social reform.

The essential conditions of a secular state are found in our Constitution.

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  The State should have no religion. Article 27 debars the Indian State from
promoting any religion. Imparting of religious instruction in State or State
aided educational institutions is prohibited by Article 28 of the Constitution.
 There should be no discrimination on the ground of religion. This has been
ensured by Articles 14,15(1) and (2), Articles 16(2) .29(2) and 325
 The individual shall have freedom to profess, practice and propagate
religion. This has been secured by Article 25

FREEDOM OF RELIGION

Article 25 should be read along with Article 26. Article 25 guarantees rights to an
individual and Article 26 gives such right to an organized body or religious
denomination (followers of Ramanuja known as Vaisnava, Shia, Sunni, Chisti,
Dawoodi Bohra Community, Anand Marga, Ram Krishna Mission, Roman
Catholic)

Religion is a matter of faith with individuals and communities. It is not necessarily

atheistic. Buddhism and Jainism do not believe in God.

A religion has its basis in a system of beliefs and doctrines which are regarded by
those who profess that religion as conducive to their spiritual well-being. It also
includes rituals and observances, ceremonials, and modes of worship which are
regarded as integral part of religion.

Article 25 (1) guarantees to every person freedom of conscience and the right
freely to practice, profess and propagate religion. This right is subject to public
order, health, morality and other fundamental rights. Article 25 (2) (a) allows the
State to make laws regulating or restricting any economic, financial, political or
secular activity which may be associated with religious practice. Article 25(2) (b)
reserves the power of the State to make laws to provide for social welfare and
social reform even though they might interfere with religious practice.

Freedom of conscience means a person’s right to entertain beliefs and doctrines

concerning matters which are conducive to his spiritual well-being A person can
profess his religion by freely declaring his faith. He can practice religion by
observing rituals, observances, ceremonies and modes of worship which are
essential or integral parts of his religion.

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Article 26 guarantees to religious denominations (a) right 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 moveable and immoveable property
and(d) to administer such property in accordance with law.

The right of religious denomination is also subject to public order, health and
morality. Surprisingly the Constitution makers did not subject these rights to
fundamental rights as in the case of freedom of individuals under Article 25.

ESSENTIAL AND NON ESSENTIAL PART OF RELIGION

The State can regulate secular or temporal matters associated with religion but not
essential religious practices. How to decide whether a religious practice is secular
or religious? The courts have resolved this problem by protecting only essential
religious practices. Non-essential religious practices can be regulated or restricted
by the State.

Under Article 25 and 26 the protection is limited to matters of doctrines or beliefs

which constitute the essential parts of religion. What constitutes essential or
integral part of his religion is a matter for court to decide with reference to the
doctrines of a particular religion and includes practices regarded by community as
part of religion.

CASE LAW

Bijoy Emmanual v State of Kerala (1986)

For boys of a school belonging to Jevoha’s Witness faith in Kerala refused to sing
the National Anthem. The school authorities rusticated them. The Supreme Court
upheld the religious beliefs of Jevoha’s Witness not to sing national anthem. The
Court held that belief should be genuinely held the religious practice of not singing
national anthem was an essential part of the followers of Jevoha’s Witness and was
therefore protected under Article 25 (1).Their silence did not constitute an offence
under Prevention of Insults to National Honor Act 1971 as they had not shown any
disrespect to national anthem. The court held that not singing the national anthem
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was an aspect of free speech under Article 19(1) (a) which includes a freedom of
silence which could be curtailed only under the grounds mentioned under Article
19(2)

Commissioner of Police v Jagdishwarananda Avadhut (2004) . The Commissioner

of Police, Calcutta imposed a ban on Tandava Dance performed in public place
and streets. This order was challenged by the followers of Anand Marga as
infringing their rights under Article 25 and 26. The Court went through the origins
of Ananda Marga and found that this sect was formed by Anand Murti in 1955 and
Tandava Dance had originated 6500 years ago by Lord Shiva. Tandava Dance is
performed in public carrying trident, snakes,damroo, lathi, and human skull.After
going through the religious books and texts and practice of Ananda Marga –
tandava dance in public place was held not to be an essential part of Anand Marga.
Anand Margis are followers of Lord Shiva and Anand Marga is a religious
denomination and sect of Hindus and not a separate religion according to the
Court.

M Ismail Faruqui v Union of India (1994)

The Supreme Court held that the temporary vesting in the Central Government the
disputed and adjacent land in Ayodhya where Babri Masjid existed was not a
violation of Article 25(1). The Court laid down the following principles:

1. Right to practice, profess and propagate religion does not include the right to
acquire, own and dispose of property
2. The State has power to a acquire Mosque/ Temple or other religious places
3. Right to freedom of religion does not extend to the right to worship at any
and every place of worship.
4. A mosque is not an essential part of practice Islam and Namaz can be
offered any where even in open

Sheshamal v State of Tamil Nadu (1972) A law made certain hereditary religious
offices non-hereditary and prescribed certain qualifications for them irrespective of
caste, creed or race. This law which was a social reform measure, was challenged
on the ground of violation of Article 25(1) and 26 (b). it was argued that under the
law a trustee could appoint any one as Archaka (priest) if he possessed requisite
qualifications irrespective of his being a Savaite or Vaisnavite which constituted a

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violation of freedom of religion. The petitioners asserted that the law which
abolished the hereditary principle for appointing an Archaka was infringing an
essential part of religion of the followers of Shiva (Saivites) and
Vishnu(Vaishnavites)

The Court agreed that there was a religious usage to which Archaka was appointed
according to the hereditary principle of next-in line of succession and purpose of
this law to abolish next on line principle. But the appointment of a priest was a
secular act and appointment of Archaka on hereditary principle was not an integral
part of religion. The Court upheld the validity of the law.

Rev Stanislaus v State of MP (1977) laws passed by MP and Orissa prohibited

conversion by force, fraud or inducement. These laws were challenged as violating
Article 25 of the Constitution. The Supreme Court held that right to propagate
religion guaranteed by Article 25(1) does not guarantee a right to convert another
to one’s own religion but to spread one’s religious tenets.

Lily Thomas v Union of India (2000) Freedom of religion is not violated by a law
to punish a Hindu convert to Islam for bigamy if he contracts another marriage
while the first marriage subsists.

Sri Adi Vishashwara of Kashi Vishwanath v State od UP (1997) A law providing

for board of trustees for the management of Kashi Vishwanath Temple after taking
over from Pandas was held not to an interference in matters of religion but only a
regulation of the administration of the temple which was in an awful condition.

Saifuddin Saheb V State of Bombay (1962) Dawood Bohra are a sect of Muslims
that is governed by the head prophet called Sayyedna. The head of Bohra
community has the power of to excommunicate a non-conformist excluding him
from sharing of communal facilities such as entry into prayer place or burial place
and social interaction. The Bombay government enacted a law called Prevention of
Excommunication Act to prohibit ex-communication on the ground of religion.
The Constitutional validity of this Act was challenged on the ground that interfered
with religious denomination’s right to manage its own affairs in matters of religion
The Supreme Court held the Act unconstitutional on the ground that the power of
the head of Dawood Bohra community to excommunicate was absolute and an
essential part of religion and the State could not interfere in the matter of religion.

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Here there was a conflict between the individual’s right to freedom of religion and
religious denomination’s right to manage its affairs in matters of religion. The
court gave primacy to the right of religious denomination over the right of the
individual. This judgment was another example of legal positivism of the Indian
Supreme Court.

Mohd Hanif Quareshi v State of Bihar (1958) A law passed by the State of Bihar
banning slaughter of cows was challenged as infringing the rights of Muslims to
sacrifice cows on Bakr-Id day. After going through the Islamic scripture Koran, the
Supreme Court held that sacrifice of cow on Bakr Id day was not an essential part
of Islam because there was an option of a cow, a camel or six goats to be sacrificed
on this day. Therefore slaughtering of cows could be restricted by legislation.

The Constitution makers had taken a meticulous care in drafting freedom of

religion so that necessary social reform may be undertaken by the State to make
India a modern secular State. And the Supreme Court of India has done a
formidable job in the process of secularization of Indian society and polity. By
asserting that secularism is basic feature of the Constitution of India in S R
Bommai v Union of India (1994) the Supreme Court has further the India’s
secularism.