NATIONAL LAW INSTITUTE UNIVERSITY, BHOPAL

TRIMESTER III

CONSTITUTINAL LAW 1
PROJECT-II

Freedom of religion under the India Constitution

SUBMITTED TO
Miss Kuldeep Kaur

SUBMITTED BY
Srajan Tyagi
(2019BALLB107
CHAPTERIZATION

The constitution of India is most elaborate constitution of the world it consist of various pious
rights for the protection and welfare of citizen in India. There are various sectors of Indian
constitution which devoted to protection of fundamental as well as other constitutional rights
of person. “The freedom of religion guaranteed under Indian constitution is most liberty
guaranteed to individuals. The world secular under Indian constitution is very crucial phrase
used by the person who doesn't want India as fundamentalist state regarding religious
matters. We have not intentionally adopted a particular religion as national or as official
religion of state to adhere the concept of secular state. The concept of secular state is
borrowed from western countries. There secularism is true secularism because they use adopt
complete neutrality in the matter’s religion and vice versa. Every word inserted under Indian
constitution has is having special status and meaning hence, it is the duty of judiciary to
interpret the phrases used in widest sense. Whatever binds a man to his conscience and
whatever moral and ethical principles regulate the lives of man, they alone can constitute
religion as understood in the constitution1”. In plethora of cases Apex court and high courts
adjudicate the constitutional maters which have direct impact of fundamental rights of
citizens. The freedom guaranteed is subject to public order, morality, and health.

1. Preamble to the Constitution

Preamble is the "gate way" and sacred sector of India constitution. It is also called the
soul of the Indian constitution, expressing in very few words the elaborate
expectations of the Indian constitution. Interestingly, in the last stage of constitution-
making, the preamble of the Indian constitution was written and adopted.

Preamble of Indian constitution runs as under:

“WE THE PEOPLE OF INDIA having solemnly resolved to

constitute India into a SOVEREIGN SOCIALIST SECULAR
DEMOCRATIC REPUBLIC and to secure to all its citizens:
JUSTICE, social, economic, and political;
LIBERTY of thought, expression, belief, faith and worship;
EQUALITY of status and of opportunity;
and to promote among them all FRATERNITY assuring the dignity of
the individual and the unity and integrity of the Nation;
1
Ratilal Panchand Gnadhi v. State of Bombay, AIR 1954 SC 388
 IN OUR CONSTITUENT ASSEMBLY this twenty-sixth day of
November 1949, do HEREBY ADOPT, ENACT AND GIVE TO
OURSELVES THIS CONSTITUTION.”

Preamble of Indian constitution is key to read mind of makers of Indian Constitution.

By 42nd Amendment Act 1976-word secular was added and there by India became
secular country. In the Re Berubari2 case Supreme court of India was encountered
with a crucial question, “whether preamble is a part of Indian constitution and what
kind of role is played by it in the interpretation of other provisions of constitution.
Apex court unanimously held that preamble is not the part of constitution and it can’t
play vital role while interpreting constitutional provisions’ what then is the nature of
the treaty-making power of a sovereign State? That is the next problem which we
must consider before addressing ourselves to the questions referred to us for our
opinion.” As we have already pointed out it is an essential attribute of sovereignty
that a sovereign state can acquire foreign territory and can, in case of necessity, cede
apart of its territory in favour of a foreign State, and this can be done in exercise of
its treaty- making power' cession of national territory in law amounts to the transfer
of sovereignty over the said territory by the owner-State in favour of another State.
There can be no doubt that such cession is possible and indeed history presents
several examples of such transfer of sovereignty. It is true as Oppenheim has
observed that hardship is involved in the fact that in all cases of cession the
inhabitants of the territory who remain lose their old citizenship and are handed over
to a new sovereign whether they like it or not3 , and he has pointed out that “it may
be possible to mitigate this hardship by stipulating an option to emigrate within a
certain period in favour of the inhabitants of ceded territory as means of averting the
charge that the inhabitants are handed over to a new sovereign against their will”.
“But though from the human point of view great hardship is inevitably involved in
cession of territory by one country to the other there can be no doubt that a sovereign
state can exercise its right to cede a part of its territory to a foreign state. This power,
it may be added, is of course subject to the limitations which the Constitution of the
state may either expressly or by necessary implication impose in that behalf in other
words, the question as to how treaties can be made by a sovereign State in regard to a
cession of national territory and how treaties when made can be implemented would
2
AIR L960 SC 845
3
Oppenheim's "International Law" - by Lauterpacht, Vol. I, p.551 (8th Ed.)
 be governed by the provisions in the Constitution of the country.” The treaty-making
power, specified broadly, would have to be exercised in the manner envisaged by the
Constitution and subject to the restrictions imposed by it. Naturally, whether the
treaty may be applied by ordinary law or by constitutional amendment would depend
on the terms of the Constitution itself.. We must, therefore, now turn to that aspect of
the problem and consider the position under our constitution4.

2. Fundamental Rights
 Article 19 (1)(a)
Freedom of speech and expression is a very important freedom from  one of
the six golden freedoms. Freedom of religion is also a part and parcel of
freedom of expression and speech.. “Since the dawn of human civilization,
we have been seeking justice, liberty, and equality. Especially 'liberty' is
considered a milestone in a civilized society. Man is a rational animal. He
thinks, he imagines, he believes; so, for his growth he needs liberty. For
expressing himself he needs freedom of expression, as many people believe
in religion or supernatural powers, so they need liberty of faith and belief for
satisfying their emotions.” In a demo critic society for the participation of
people - as the democracy is of the people, by the people and for the people-
they need to express their views and for that they should be free to do that. In
a welfare state, state must guarantee the personal liberty of people. Thus,
liberty is a very dynamic concept. “It is useful for both individual growth
and for a democratic society. Considering all these things our Indian
constitution grants us liberty of thought, expression, belief, faith, and
worship. It protects our personal liberty and grants us some freedoms.”
Liberty, however, requires freedom of speech and expression, which in a
democratic society is important. The media is considered to be the fourth
pillar of democracy, and freedom of speech and expression is important to
reinforce the fourth pillar, which ultimately strengthens democracy. This
liberty is, however, subject to certain limitations. Individual freedom is sin
qua none for national development, if citizens are given more freedom then

4
AIR L960 SC 845
 people's creativity will inevitably increase, hence Article 19 devoted to six
golden freedoms for every Indian citizen.

 Article 25: “Freedom of conscience and free profession, practice and

propagation of religion”
“Liberty of belief, faith and worship viz. freedom of religion and
conscience”
As the preamble of Indian constitution guarantees liberty of belief, faith
worship, so Article 25 of the constitution gives – “freedom of conscience
free profession, practice and propagation of religion, Since inception of
human beings on earth has certain basic needs he not only biological and
intellectual needs but also have psychological needs. Religion viz. faith,
belief and worship are such kind of need and hence it was equally necessary
to provide liberty of belief faith and worship along with freedom of speech
and expression. But personal belief faith and worship shall not create law
and order situation or shall not violate fundamental rights of others.”
The purview of freedom, therefore, is rather broad, and we need to look at all
its aspects in depth so that we can check for exactly what kind of freedom
we have? What are the 'reasonable restrictions' on it? Are these limitations
really in the interest of social peace and national security? Whether the
restrictions are misused? And what changes do we need with regard to
freedom, along with its constraints? A right without limitations is in vain, so
the freedoms of individuals should be limited. “Proper restrictions can be
proved as better safeguards for freedom of persons. Religious freedom is
most sacred freedom through which persons can exercise liberty. It is the
duty of state to mention law and order situation in the society. If state is
encountering frequent religious or communal riots and violence, then state is
duty bound to mention peace so that persons can exercise their freedom of
religion.” Article 25 is providing freedom to individual as well as freedom to
religious denominations as well as religious institutes. In Church of God
(Full Gospell) in India v. K.K.R. Majestic Colony Welfare Association 5the
Supreme Court was hearing A Public Interest Litigation concerning the use
of voice amplifiers and the beating of drums was heard. The court held that

5
AIR 2000 SC 2773.
 in any religion, all these items are not stated anywhere, hence all such
practises that cause nuisance and hence the use of loudspeakers is prohibited
or regarded as a violation of fundamental law.
 Article 26: “Freedom to manage religious affairs”
The religious endowments are also artificial personalities in the eye of law. It
can exercise all fundamental and other constitutional and other statutory
rights as a matter of right. “This Article provides an opportunity to own
property in the name of religious denominations. This is a supplementary
and complementary freedom enshrined under Article 25 of Indian
constitution. It is an extension what is substantially provided under Article
25. While exercising the freedom of professes, practice and propagate
religion, it requires certain freedom to religious denominations and
institutions e.g. religious education is required to impart by particular
community then it require in fracture and manpower so it will be the
responsibility of religious institution to acquire the movable and immovable
property in favour of religious institutions.” Without property no religious
institution can come into existence it requires the active support of the state.
This help is given by the Article 26 of Indian constitution. There are various
judicial decisions which conifers freedom as to manager religious affairs.
Mahant Ram Kishan Das v. State of Punjab6; S. Aziz Basha v. Union of
India7.
Article 26 confers liberty in the administration of religious affairs. It implies
that religious denominations should manage all religious subjects, and unless
there is a public order, moral and health issue, the state will not intervene.
The Indian judiciary played a crucial role in shaping the freedom of faith and
denominations to handle religious affairs. In Acharya Jagdhishwaranand
Avdhut v. Commissioner of Police, Calcutta8, apex court of India held that
religion and religious denominations are different from each other and
sometimes tenants plays very important still in this case Supreme Court of
India refuse to recognize Anand Margis as religious denomination and it was
held as part and parcel of Hindu religion. In Narendra v. State of Gujarat9
6
AIR 1981 SC 1576
7
AIR 1968 SC 662
8
AIR 1984 SC 512
9
AIR 1974 SC 2092
 apex court was encountered with a question, “whether religious endowments
property can be acquired procedure followed under Article 31A(1) (a), the
court replied in affirmative and held that the property of religious institutions
can be acquired for agrarian reforms.” Apex court also held that the state
ceiling laws are also applicable to property of religious denominations and
surplus land can be acquired and may be distributed among landless persons.
 Article 27: “Freedom as to payment of taxes for promotion of any
particular religions”
No person shall be obliged to pay any tax, the proceeds of which are
appropriated specifically for the payment of expenses for the promotion or
maintenance of any religion or religious denomination. Even, the state is
prohibited from raising such taxes from the public. The person may
judiciously determine the taxes that are eventually going to be spent on a
specific religion for promotion or maintenance. In Prafulla Garadia v.
Union of India 10apex court of India cleared its stance on compulsion on
payment of taxes for the welfare or propagation of any religion. “It also
stated that Article 27 attracted only when any law which is levied and
collected tax is going to utilize for specified religion. It means person can
decide the payment of taxes to any religion; it also includes religion of its
own. There are various trust Acts passed throughout India for some
charitable purpose.” If such law is passed by state, whether it will heat by
Article 27 of Indian constitution? The Supreme Court of India had cleared in
Mahant Moti Das v. S.P. Sahi11 and held “fee imposed by the Bihar state
under Bihar Hindu Religious Act. Where a fee was collected from person
and it was challenged as infringement of fundamental right, but apex court of
Indian held that fees collected under the Act is not a tax and hence not
violation Article 27 of Indian constitution.”
 Article 28: “Freedom as to attendance at religious instruction or
religious worship in certain educational institutions”
This article of Indian constitution provides ample freedom regarding
attendance of religious instructions or religious worship in certain
educational institution. “If any educational institution is imparting religious

10
(2011) 2 SCC 568
11
AIR L959 SC 942
 and if same is running out the funds of state consolidate fund of that state,
then religious instructions and religious worship is totally banned. But any
educational institution is established under religious endowment or trust then
it may impart religious instructions and worship.” In Aruna Roy v. Union of
India 12Supreme Court of India held that if philosophy of all religion is
teaching as apart of comparative study then it is not hit by Article 28 of
Indian constitution.
 Article 29: “Protection of interests of minorities” and Article 30: “Right
of minority to establish and administer educational institutions”
Article 29 guarantees the right of a citizen to protect and conserve its
language, script, or “culture also the right of a citizen not to be denied
admission into state maintained and state-aided institution on the ground of
religion”. On the other hand, Article 30 protects “the Right of all the
religious or linguistic minorities to establish and administer educational
institutions of their own choice” and  the Right of an educational institution
not to be discriminated against in the matter of State aid on the ground that it
is under the management of a minority
Thus, these articles are also a very important parts in the whole institution
protecting the freedom of religion as guaranteed by the constitution of India.
In the case of Azeez Basha v. Union of India13, the Supreme Court held that
if an educational institution is not been established by the minority
community then they have no right to administer it. The term “established”
and “administered” must be read in coordination. The University Grants
Commission Act prohibits the formulation of “University” established by the
educational institution unless and until it is governed by law. In the case
of Dr. Naresh Agarwal v. Union of India14, where 50% of the seats to be
filled based on entrance examination conducted by Aligarh Muslim
University and the other 50% of the seats was reserved for Muslim
Candidates. The petitioners in this case, who are Hindu by caste have been
deprived of their right to participate in the process of admission against that
50%. The Allahabad High Court followed the judgment of Azeez Basha v.

12
AIR 2002 SC 3176
13
2005 (4) ESC 2489.
14
AIR 1958 SC 956.
 Union of India and held that AMU is not a minority institution and struck
down the amendment which was made in the favor of Aligarh Muslim
University.
In St. Stephen’s College v. University of Delhi15, the preference is given to
Christian students by St. Stephen’s College was challenged.
By a majority of 1 to 4, the Supreme Court held that the college was not
obliged to obey the circulars of the university as it would deprive the college
of its minority character. An significant facet of administration is the right to
pick students for entry. It is also possible to regulate this power, but the
regulation must be reasonable and should be favourable to minority
institutions. The challenged University Directive on the uniform selection of
students on the basis of marks secured in the qualifying examinations would
deny the university the right to accept students belonging to the Christian
community. Unless the Christian students receive a certain concession.
The court decided the two categories for the selection process:
a) 50% reservation for minority religious community
b) Rest of the seats based on merit.
But in T.M.A Pai Foundation v. State of Karnataka16 , it was held that “A
minority institution may have its own procedure and method of admission as
well as selection of students, but such a procedure must be fair and
transparent, and the selection of students in professional and higher
education colleges should be on the basis of merit. The procedure adopted or
selection made should not be tantamount to maladministration. Even an
unaided minority institution ought not to ignore the merit of the students to
the colleges aforesaid, as in that event, the institution will fail to achieve
excellence”.
The court also overruled the decision in St. Stephen’s case. The court has
now granted the power to the state to fix quotas for minority students.

3. Fundamental Duties
 The Uniform Civil Code

15
AIR 1992 SC 1630
16
AIR 2003 SC 355
 “The State shall Endeavour to secure for the citizens uniform civil code
throughout the territory of India”. It was a directive to state to apply a
uniform code to all Indians so that all will be administered by the same laws
regarding marriage, divorce, maintenance, and guardianship. “It was
expected that personal religious belief faith and modes of worship shall not
interfere in the uniform matters of religion. In many cases apex court of
India directed to state to legislate on Article 44 of Indian constitution.” After
65 years of Indian republic still we are waiting for a masterpiece of
legislation form our highest legislatures so that all Indians can be treated
alike. In Sarala Mudgal's case17 Supreme Court was solving very important
question that whether a person can ramify during the lifetime of first wife,
because section 494 of Indian Penal Code 1860 rues as under “Marrying
again during lifetime of husband or wife. Whoever, having a husband or
wife living, marries in any case in which such marriage is void by reason of
its taking place during the life of such husband or wife, shall be punished
with imprisonment of either description for a term which may extend to
seven years, and shall also be liable to fine. Apex court of India had
delivered a landmark judgment and held that”. “It is also a matter of regret
that Article 44 of our Constitution has remained a dead letter. It provides that
"The State shall Endeavour to secure for the citizens a uniform civil code
throughout the territory of India”. There is no evidence of any official
activity for framing a common civil code for the country. “A belief seems to
have gained ground that it is for the Muslim community to take a lead in the
matter of reforms of their personal law. A common Civil Code will help the
cause of national integration by removing disparate loyalties to laws which
have conflicting ideologies.” No community is likely to bell the cat by
making gratuitous concessions on this issue. “It is the State which is charged
with the duty of securing a uniform civil code for the citizens of the country
and, unquestionably; it has the legislative competence to do so. A counsel in
the case whispered, somewhat audibly, that legislative competence is one
thing, the political courage to use that competence is quite another. We
understand the difficulties involved in bringing persons of different faiths
and persuasions on a common platform.” “But a beginning must be made is
17
AIR 1995 SC 1531
the Constitution is to have any meaning. Inevitably, the role of the reformer
must be assumed by the courts because; it is beyond the endurance of
sensitive minds to allow injustice to be suffered when it is so palpable. But
piecemeal attempts of courts to bridge that gap between personal laws
cannot take the place of a common Civil Code.” Justice Kuldeep Singh has
opined and directed to state to have a fresh look at Article 44 of Indian
constitution. The court was also of view that this is the correct time to enact
the common law for all Indians. In the judgment Supreme Court of India
held as “When Constitution was framed with secularism as its ideal and goal,
the consensus and conviction to be one, socially, found its expression in
Article 44 of the Constitution. But religious freedom, the foundation of
secularism, was guaranteed by Articles 25 to 28 of the Constitution. Article
25 is very widely worded. It guarantees all persons, not only freedom of
conscience but the right to profess, practice and propagate religion. What is
religion? The Court has expanded religious liberty in its various phases
guaranteed by the Constitution and extended it to practices and even external
overt acts of the individual. Religion is more than mere matter of faith. The
Constitution by guaranteeing freedom of conscience ensured inner aspects of
religious belief.” And external expression of it were protected by
guaranteeing right to freely, practice and propagate religion. Reading and
reciting holy scriptures, for instance, Ramayana or Quran or Bible or Guru
Granth Sahib is as much a part of religion as offering food to deity by a
Hindu or bathing the idol or dressing him and going to a temple, mosque,
church or Gurudwara. “Marriage, inheritance, divorce, conversion is as
much religious in nature and content as any other belief or faith. Going
round the fire seven rounds or giving consent before Qazi are as much matter
of faith and conscience as the worship itself.” It is a matter of faith and
conscience when a Hindu becomes converted by reciting qalma or a Muslim
becomes Hindu by reciting those Mantras. Any of these behaviours
encountered by members of one religion may seem to members of another to
be inappropriate and even vocative of human rights. These are matters of
faith, however. There is little role for reason and reasoning. Sentiments and
feelings must be cooled by sincere effort and tempered. But today, there is
no single-handed Raja Ram Mohan Rai who brought in the environment that
paved the way for the abolition of Sati. “Nor is a statesman of the stature of
Pt. Nehru who could pilot through, successfully, the Hindu Succession Act
and Hindu Marriage Act revolutionizing the customary Hindu Law. The
desirability of Uniform Code can hardly be doubted. But it can concretize
only when social climate is properly built up by elite of the society,
statesmen amongst leaders who instead of gaining personal mileage rise
above and awaken the masses to accept the change”. Every government
coming in power is thinking about the enactment of uniform civil code but
still there is coordination among the political parties on such an important
issue. “If it is enacted there will be uniformity in personal matters of religion
and its application in various matrimonial and property matters. Enactment
of uniform civil code is superhuman task before Indian legislature. It is
difficult to bring all faiths under single umbrella.” “The religion and
personal beliefs and faiths are most sensitive issue because there are
contradictory religious rites and rituals. If all these are to bring under
legislation hence after 65 years of independence, we are unable to legislate
on such important issue. The ideologies of different parties are responsible
for such apathy and appeasement policy of towards community. If we are
truly a secular country, then there is no problem in enactment of uniform
civil code for all citizens.” It is also a constitutional mandate which to be
followed but no political party including all major parties in India failed to
follow the intention of legislature. Supreme Court in Sarala Mudgal’s case
categorically directed to centre to take initiative and bring all persons at
equal footing in the matters of marriage, divorce, succession, and
guardianship.