Freedom of Religion Under Indian Constitution: Whether Freedom of

Religion or Freedom From Religion

India has been the birth place of quite number of religions and also it is acknowledged as the

country which is the land of spiritual beliefs, culture and philosophical thinking. Perception

relating to ‘Religion’ varies person to person; it is entirely a matter of choice and belief. If we

pay heed to the Indian scenario, it can be concluded that when it comes to their religion, people

in this country have a strong faith and dependence. The reason behind having strong faith may be

that they perceive that religion adds meaning and reason to their lives. People who are having

strong faith leave no stone unturned in showing their fidelity towards their respective religion.[1]

Freedom of Religion Under Indian Constitution

Various fundamental rights are provided as well as guaranteed by our Indian Constitution under

Part III. Amongst them, freedom of religion is also the one provided which is given under Article

25-28 of the Indian Constitution. India, being a secular nation gives every citizen the right to

follow the religion he believes in.

Constitutional Provisions

Articles 25-28 of the Indian Constitution guarantee the right to freedom of religion to all citizens

who all are residing within the territory of India.

1
[1] https://legaldesire.com/freedom-of-religion-in-india/.
[2] AIR 1994 SC 1918.
1.Freedom of conscience and free profession of religion.( Article 25)

2.Freedom to manage religious affairs (Article 26)

3.Freedom from payment of taxes for promotion of any particular religion( Article 27)

4.Freedom to attend religious instructions ( Article 28)

·In the case of Mohd . Hanif Quareshi v State of Bihar[6],wherein it was claimed by the

petitioner that the sacrifice of the cows during Bakr- id was an essential part of hi religion but

this argument was rejected by the courtas the sacrifice of cow on the Bakri-Id day was not an

essential part of the Mohammedan religion and hence could be prohibited by State under clause

(2) (a) of Article 25.

·In the case of L. T .Swumiar v Commr. H.R.F . Madras[7],wherein it was held that even if a

tax is imposed on persons belonging to a particular religion, in order to meet the expenses of that

particular religion, such tax is void.

·In the case of RobasaKhanum vs. Khodabad Irani[8], it was held that the conduct of a spouse

who converts to Islam has to be judged on the basis of the rules of justice equity and good

conscience.

·In the case of Sarla Mudgal V. Union of India[9], it was held that conversion to any other

religion by either one or both the spouses is not at all a ground to have the marriage dissolved.
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, 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 accordingly.[10]

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.[11]

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 religions denomination.

[12]
2

Article 28

Freedom as to attendance at religious instruction or religious worship in certain educational

institutions

(1) No religion 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 recognized by the State or receiving aid out

of State funds shall be required to take part in any religious instruction that may be imparted in

such 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 Cultural and Educational Rights.[13]

2
[10] https://indiankanoon.org/doc/631708/.
[11] https://indiankanoon.org/doc/1858991/.
[12] https://indiankanoon.org/doc/211413/.
[13] https://indiankanoon.org/doc/1734560/.
DEFILEMENT OF PLACES OF WORSHIP OR OBJECTS OF VENERATION

Section 295. Injuring or defiling place of worship with intent to insult the religion of any class

Whoever destroys, damages or defiles any place of worship, or any object held sacred by any

class of persons with the intention of thereby insulting the religion of any class of persons or

with the knowledge that any class of persons is likely to consider such destruction, damage or

defilement as an insult to their religion, shall be punishable with imprisonment of either

description for a term which may extend to two years, or with fine, or with both.

Section 297. Trespassing on burial places, etc

Whoever, with the intention of wounding the feelings of any person, or of insulting the religion

of any person, or with the knowledge that the feelings of any person are likely to be wounded, or

that the religion of any person is likely to be insulted thereby,commits any trespass in any place

of worship or on any place of sculpture, or any place set apart from the performance of funeral

rites or as a depository for the remains of the dead, or offers any indignity to any human corpse,

or causes disturbance to any persons assembled for the performance of funeral ceremonies,shall

be punished with imprisonment of either description for a term which may extend to one year, or

with fine, or with both.

Ingredients

Section 295 compels people to respect the religious susceptibilities of persons of different

religious persuasions or creeds by making destruction, damage or defilement of a place of

worship or an object held sacred, with the intent to insult the religion, by a class of persons,

punishable.[ii] Section 297 extends the principle in Section 295 to places which are treated as

sacred. It punishes a person who, with the intent to insult the religion of another or hurt the

religiou feelings of a person, commits trespass in any place of worship or of sepulture, or any

place of burial or place set apart for burial rites.[iii]3

The essential ingredients of this section are:

1. Intention or knowledge.

2. Destruction, damage or defilement of:

1. A place of worship

2. A place of veneration

3. An object held sacred

4. Trespass into:

1. A place of worship

3
Gopinath Puja Panda Samanta v. Ramchandra Deb AIR 1958 Ori 220

[ii]S VeerbhadraChettiar v. EV RamaswamyNaicker AIR 1958 SC 1032

[iii]Mustaffa Rahim v. Motilal (1909) Cr LJ 160

[iv] (1883) All WN 39

[v]Saidullah Khan v. State of Madhya Pradesh, AIR 1955 Bhopal 23

Soban Ram v. Crown, 67 IC 686

[vii]Atmaran v. King Emperor, AIR 1924 Nag 121

[viii] AIR 1961 Ker 28

[ix]Ram Prasad v. State of Uttar Pradesh, AIR 1952 All 878

 2. A place of sepulture

3. A place set for performing funeral rites or a depository of remains of the dead

1. INTENTION OR KNOWLEDGE

The essence of the offence under Section 295 is the intention to destroy, damage or defile a place

of worship or an object held sacred. Without the requisite mens rea, mere defilement of a place

of worship is not an offence. The intention to insult is a question of fact which can be judged

depending on the facts and circumstances of the case.

In the case of Jan Mohammed v. Narain Das[iv]the accused removed some rubble and old

building materials belonging to a mosque that was in rotten condition and consequently in

disuse. The accused was held not liable under these sections as he had no intention of insulting

the Mohammedan religion or any of its practitioners. He also had no knowledge that his actions

may cause insult or hurt to any class of people.

But, throwing a lit cigarette by a Mohammedan on the ‘Viman’, an object sacred to the Hindus

cannot be said to be an unintentional act or one without guilty knowledge. Such an action is an

insult to the Hindu religion and its practitioners. Hence the accused was held guilty.[v] Also,

committing sexual intercourse within or inside a mosque or a temple is an offence under Section

297.[vi]

2. DESTRUCTION, DAMAGE OR DEFILEMENT

The words destroy or damage usually mean an act physically or materially affecting the property

concerned but it should also be understood in the sense of making property dirty, unclean or foul.

The word ‘defilement’ would not only mean physical destruction but also situations wherein the
place of worship or the object of worship would be rendered ritually or ceremonially impure. The

presence of a person belonging to a lower caste in a Hindu temple open to only those of higher

castes was held not to be defilement under the ambit of Section 295.[vii]

3. TRESPASS INTO PLACE OF WORSHIP OR PLACE OF  SEPULTURE

Section 297 makes any trespass into a place of worship or a place of sepulture a criminal offence.

This means that the trespass committed need not amount to criminal trespass for it to come

within the scope of Section 297.[ix] The word ‘trespass’ has been used in this section to indicate

an unjustifiable intrusion upon a property in the possession of another.[x] Sexual intercourse

within a place of worship would make the actors liable under this section.[xi]

4. INDIGNITY TO HUMAN CORPSE AND DISTURBING FUNERAL RITES

Showing any manner of disrespect to a human corpse disturbing the performance of funeral rites

is a criminal offence under Section 297. The word ‘disturbance’ means any form of active

interference or the hindrance to the performance of the funeral ceremonies. In Basir-ul-Huq v.

State of West Bengal[xii] the mother of one DhirendranathBera died. He along with others took

the corpse to the cremation grounds. In the meantime, the accused filed a complaint with the

police stating that Dhirendranath had throttled his mother to death. When the pyre was ablaze,

the accused along with the sub-inspector arrived at the crematorium. The accused persuaded the

policeman that if the flames were extinguished that the marks of injury would be found on the

body. The fire was hence extinguished but no marks were found. Dhirendranath filed a complaint

against the accused under Section 297 and stated that a prior enmity caused a mala fide intention

to hurt his religious sentiments which caused him to trespass on the cremation grounds and cause
the dead body to be desecrated. The accused was convicted and sentenced to three months

rigorous imprisonment.4

OUTRAGING OR WOUNDING RELIGIOUS FEELINGS

Section 295A. Deliberate and malicious acts, intended to outrage religious feelings of any class

by insulting its religion or religious beliefs

Whoever, with deliberate and malicious intention of outraging the religious feelings of any class

of citizens of India,by words, either spoken or written, or by signs or by visible representations

or otherwise, insults or attempts to insult the religion or the religious beliefs of that class, shall be

punished with imprisonment of either description for a term which may extend tothree years, or

with fine, or with both.

Section 298. Uttering, words, etc., with deliberate intent to wound the religious feelings of any

person

Whoever, with the deliberate intention of wounding the religious feelings of any person, utters

any word or makes any sound in the hearing of that person or makes any gesture in the sight of

that person or places, any object in the sight of that person, shall be punished with imprisonment

of either description for a term which may extend to one year, or with fine, or with both.

4
Jhari Singh v. Emperor, AIR 1920 Pat 349

[xi]Maqsud Hussain v. Emperor, AIR 1924 All 9

[xii] AIR 1953 SC 293

[xiii]Public Prosecutor v. SunkuSeethalah, (1910) ILR 34 Mad 92

Ingredients

These sections of the Indian Penal Code relate to acts done deliberately with an intent to outrage,

wound or insult the religious feelings or sentiments of any persons. Section 295A deals with

actions intended to outrage the religious feelings or insult the religious beliefs or the religion of a

particular class of persons that can be termed as ‘deliberate and malicious’; whereas Section 298

makes punishable those ‘deliberate’ acts of verbal or visible representation that intend to wound

the religious feelings of another.

The difference in the two sections can be seen from the way they have been worded. Section

295A refers to ‘deliberate and malicious intention’ of ‘outraging’ the religious feelings of a

‘class of citizens of India’. Section 298 makes any utterances done or gestures made with

‘deliberate intention’ of ‘wounding’ religious feelings of a ‘person’ punishable. When

contrasted, it is seen that the word ‘outraging’ is much stronger than the word ‘wounding’ and

hence the offence under Section 295A is more serious than the offence under Section 298. As a

result, it is observed that the punishment under Section 295A is simple or rigorous imprisonment

extending up to three years whereas that under Section 298 is either type of imprisonment which

may extend to a term of one year or with a fine or both.

These sections allow fair latitude for religious discussions and debates but at the same time

prevents people from offering under the pretext of such discussion any intentional insults to what

is held sacred by others.

DISTURBING RELIGIOUS ASSEMBLIES

Section 296. Disturbing religious assembly

Whoever voluntarily causes disturbance to any assembly lawfully engaged in the performance of

religious worship, or religious ceremonies, shall be punished with imprisonment of either

description for a term which may extend to one year, or with fine, or with both.

Ingredients

The essential ingredients of this section are:

1. There must be an assembly which is engaged in the performance of religious worship or

religious ceremony

2. Such assembly and performance of such ceremony should be lawful

3. The accused must cause disturbance to such assembly

4. The accused must do so voluntarily

This section affords special protection to congregational worship. It does not cover individual

worship. A religious procession is regarded as a lawful assembly unless it interferes with the

ordinary use of the streets by the public or contravenes any rules or regulations.

Where a mosque situated on the banks of a highway, passing by in a procession with music

playing loudly at a time when prayers are going on will be an offence as such music would

necessarily disturb the congregation engaged in prayer.[xiii]

Trespassing on burial places, etc (Section 297 of IPC)

Trespassing on burial places, etc:

“Whoever, with the intention of wounding the feelings of any person, or of insulting the religion

of any person, or with the knowledge that the feelings of any person are likely to be wounded, or

that the religion of any person is likely to be insulted thereby, commits any trespass in any place

of worship or on any place of sepulture, or any place set apart for the performance of funeral

rites or as a depository for the remains of the dead, or offers any indignity to any human corpse,

or causes disturbance to any person assembled for the performance of funeral ceremonies, shall

be punished with imprisonment of either description for a term which may extend to one year, or

with fine, or with both.”

Section 297 punishes acts of three kinds:

i) Trespass in place of worship or upon the sepulture of the dead,

ii) Indignity to a human corpse, and

iii) Disturbance in a funeral ceremony.

Places reserved for the cremation or burial of the dead are universally regarded with veneration

as places sacred to the memory of the dead. They are regarded specially sacred by followers of

religions in which belief in the transmigration of the souls is a recognized doctrine. A trespass

upon such places is regarded as a sacrilege not lightly to be condoned.

With them the performance of the funeral obsequies in accordance with the orthodox formula is

a manner of strict religious injunctions, the slightest disturbance of which might imperil the

response of the disembodied spirit of the departed. With others, the feeling of respect due to

sympathy, and the refinement which dictates respect for the dead on account of their having

entered the great unknown.

Section 297 punishes a person who trespasses on burial place or on places of sepulture. The

trespass may be a civil trespass or mere encroachment or an unauthorized entry without

amounting to criminal trespass. Trespass here means any violent or injurious act, committed in a

place of worship with such intention or knowledge as is defined in Section 297. When some

persons had sexual connection inside a mosque, they were offenders under Section 297.

The essence of Section 297 is an intention, or knowledge of likelihood, to wound feelings or

insult religion and when with that intention or knowledge trespass on a place of sepulture,

indignity to a corpse, or disturbance to persons assembled for funeral ceremonies, is committed it

becomes an offence under Section 297.5

Where a patient dies while under operation by a doctor who after the death removes the liver of

the deceased for transplantation to another patient, without the knowledge and consent of

relatives, the doctor would be liable under Section 297 for offering indignity to human corpse.

In Basir-ul-Huq v. State of West Bengal [AIR 1953 SC 293], while, a person kept his dead

mother’s body on the funeral pyre, the accused accompanied by the Police, arrived at the

cremation ground after giving complaint that the woman was killed by throttling. When the body

5
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was examined after extinguishing the fire, there were no wounds or marks of injury on it. The

accused was convicted and sentenced to three months rigorous imprisonment for trespassing on

the cremation ground and caused the dead body to be taken out.

An offence under Section 297 is cognizable but summons should ordinarily issue in the first

instance. It is bailable but not compoundable, and is triable by any Magistrate.

Section 298 of Indian Penal Code, 1860 –

Explained!

Uttering words, etc., with deliberate intent to wound religious feelings:

This section punishes uttering words etc. with the deliberate intention of wounding the religious

feelings of any person. It says that whoever either utters any word, or makes any sound, which a

person can hear, or makes any gesture which a person can see, or places any object which a

person can see, with the deliberate intention of wounding the religious feelings of that person,

shall be punished with simple or rigorous imprisonment for a term extending up to one year, or

with fine, or with both.

The section requires either saying something, or making any sound which a person can hear, or

making any gesture which one can see, or placing any object which one can see. This must be

done with the deliberate intention of wounding the religious feelings of that person. The law

permits healthy discussions about religious matters.

But in the guise to such discussions, deliberate intention to wound the religious feelings of others

cannot be allowed. The section widens its ambit by including utterances or making of sounds or

gestures or placing of objects in such circumstances as have been stated in the provision.

It is important to note that knowledge of any kind has been given no importance whatsoever

under this section, and in all cases the requisite deliberate intention on the part of the accused has

to be established. An intention is deliberate when it is not conceived on sudden impulse but is

pre-meditated.6

Slaughtering a bullock in the open despite protests by the Hindus, killing a cow for a wedding

feast, and sacrificing a cow during ‘Bakrid’ and carrying its flesh openly within the sight of

Hindus, have been held punishable under this section. The Gujarat High Court has held that

writing an inflammatory article under the captain ‘Why Acharya Rajneesh leaves Pune’ in a

weekly ‘Asspass’ is not punishable under section 298 of the Code as the act does not fall within

the language of the section.

Throwing a shoe in a place where Hindus were about to start eating but they went away without

touching the food was held to be not punishable under this section. Parading a cow with garlands

openly, and then sacrificing the same and carrying the carcass openly on a cot with horns and

legs protruding, is punishable under this section as the required deliberate intention can easily be

inferred from the act itself.

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The offence under this section is non-cognizable, bailable and compoundable, and is triable by

any magistrate.

Recent cases related to section 295A

Kiku Sharda matter (2016):

Actor Kiku Sharda was recently arrested for mimicking Dera Sacha Sauda chief Gurmeet Ram

Rahim Singh on his show under section 295A of the Indian Penal Code. In Kiku Sharda matter,

he did an act which outraged the feelings of the followers of Dera Sachha Sauda Chief. Though

he said his intention was not to hurt the religious feelings of any class but just to entertain

people.

Girl arrested for questioning total shutdown on Bal Thackeray’s funeral (2012):

In year 2012, a girl posted on her facebook wall against the shutdown in the city on Bal

Thackeray’s funeral and some other girl signed it. The duo was booked under section 295A and

66A of the Information Technology Act 2000 and was arrested subsequently. This case created a

lot of hue & cry and led to the amendment in Section 66A of the Information Technology Act

2000.