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Right To Freedom of Religion - Article 25-28
Right To Freedom of Religion - Article 25-28
Table of Contents
Introduction
o What is Secularism?
o S. R. Bommai v. Union of India, AIR 1994 SC 1918
o Constitutional Provisions relating to Right of Religion
Freedom of Religion in India (Art. 25)
o
Doctrine or Belief?
o What is religion?
A.S. Narayan v. State of Andhra Pradesh, AIR 1996 SC 1765
o The National Anthem Case
o Telecast of serial: Ramesh v. Union of India, (1988) 1 SCC 668
o Appointment of Non-Brahmins as Pujari: N. Aditya v. Travancore Devaswom
Board
o Bhuri v. State of J. & K., AIR 1997 SC 1711
o Acquisition of place of worship by State
o Shifting of property connected with religion
o Triple Talaq: Shayara Bano v. Union of India
o Noise pollution in the name of religion
o Restrictions on Freedom of Religion
Freedom to manage religious affairs (Art. 26)
o Religious denomination
o Bramchari Sidheshwar Bhai v. State of West Bengal
o Right to establish and maintain-institutions for religious and charitable
purposes: Azeez Basha v. Union of India
o Right to manage its own affairs in the ‘Matters of Religion’
o Prevention of exCommunication
Saifuddin Saheb v. State of Bombay AIR 1962 SC 853
o Taking over management of secular activities of the temple: Bira Kishore Dev
v. State of Orissa, AIR 1964 SC 1501
o 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
o Right to administer property owned by the denomination
o Limitation of the Right
Freedom from taxes for promotion of any particular religion (Art. 27)
Prohibition of religious instruction in the State-aided Institutions (Art. 28)
o Teaching of Guru-Nanak: D.A.V. College v. State of Punjab, (1971) 2 SCC 368
o Education for value development based on all religions: Aruna Roy v. Union of
India, (2002) 7 SCC 368.
Conclusion
Introduction
“India has a great heritage and it is a model for religious harmony where people
of different religions live peacefully and in harmony.”
-Dalai Lama
What is Secularism?
Secularism means developing, understanding and respect for different religions.
It is believed that the word ‘Secularism’ has its origin in late medieval Europe.
In 1948, during the constituent assembly debate, a demand was made by the
KT Shah to include the word ‘Secular’ in the Preamble to the Constitution. The
members of the assembly though agreed to the secular nature of the
constitution but it was not incorporated in the Preamble. Later, in 1976 the
Indira Gandhi government enacted the 42nd Amendment Act and the word
‘Secular’ was added to the Preamble. The 42nd Amendment Act also known as
the ‘Mini Constitution’, is the most comprehensive amendment to the
Constitution.
In the much-disputed Ayodhya case, it was held by the apex court that the
constitution postulates equality of all faiths. Through Tolerance and mutual co-
existence, the secular commitment of our country and its people can be
nourished.
Doctrine or Belief?
In Hasan Ali v. Mansoor Ali the Bombay High Court held that Articles 25 and
Article 26 not only prevents doctrines or beliefs of religion but also the acts
done in pursuance of religion. It thus guarantees ceremonies, modes of
worship, rituals, observances, etc which are an integral part of religion. What is
the essential or integral part of a religion has to be determined in the light of
the doctrines and practices that are regarded by the community as a part of
their religion and also must be included in them.
In the case of SP Mittal v. Union of India, the court held that Religion need not
be theistic. It is not merely an opinion, doctrine or belief but has an outward
expression in the act as well.
What is religion?
The German philosopher Immanuel Kant defines religion as “Religion is the
recognition of all our duties as divine commands”.
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.
The Supreme Court held that the action of the headmistress of expelling the
children from school for not singing the national anthem was violative 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.
Article 51A also recognizes the duty of every citizen to show respect to our
national anthem. It states that every citizen of India is duty-bound to respect its
ideals, institutions, National flag, National anthem, etc.
The Court while dismissing the petition held that there is no violation of Article
21 and 25 and the respondent has not acted improperly. The author tries to
bring attention to the past history of our country and to emphasize the wish of
the people to live in harmony and rise above religious barriers. It further held
that when the serial is viewed in its entirety it creates an impression of peace
and co-existence and that the people are not likely to be carried away by the
violence shown in it.
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.
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 violative 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.
The Supreme Court held that the fundamental right guaranteed under Article 25
and 26 is not absolute and is subject to public order and if the court is of the
opinion that shifting of graves is in the interest of the public then the consent of
the parties is irrelevant even though the Muslim personal law is against shifting
of graves.
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
culled 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”.
Prevention of exCommunication
Ex-communication means the exclusion or expulsion of a person from a
community or group of which he or she was a member.
The Court observed that the power of Excommunication by the head formed the
essential affairs of the community and the Act clearly violated the fundamental
right under Article 25(1) of the Constitution. The Supreme Court held that the
Act was violative of Articles 25 and 26 and was therefore void.
Conclusion
India is the most diverse country with respect to religion. Being a secular
country it does not have its own religion and every citizen has the right to
choose, practice, propagate and even change his or her religion. However, these
rights are not absolute but subject to certain restrictions provided by the
constitution. No person in the name of religion can do any act that is opposed to
the public policy or creating any kind of disturbances or intolerance among the
people of India.