Article 25 – 28 of the Indian Constitution

Introduction

• 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.

• These Constitutional provisions guarantee religious freedom

not only to individuals but also to religious groups.

• Before the Constitution 42nd amendment Bill added the word

“secular” in the constitution of India, the word “secular”
appeared only in “Article 25”. 

• India is a secular country and there is no state religion.

• India also does not patronizes any religion. 

• The Constitution 42nd amendment Act made the above thought

“explicit” in the constitution.

• Secularism means in India, state shall observe neutrality &

impartiality to all religions.

• All religions are respected and all beliefs & methods of worship
are accepted.

• All minority religions enjoy full freedom and in certain cases

protected.

• This is opposite in some neighbouring countries such as

Pakistan and Bangladesh which were part of India but later
became Islamic countries.
 • Secularism does not mean that state is hostile to a particular
religion. If a person is a Hindu, he / she do not cease to be a
secular.

• The Supreme Court in Pannalal Pitti v/s State of Andhra

Pradesh mandated that while Article 25 and 26 grants
religious freedom to minority religions such as Islam and
Christianity, yet they do NOT intend to DENY the same
guarantee to Hindus.

What is Religion ?

• The term religion has not been defined in the constitution.

• Religion has no precious definition.

• Religion is a matter of Faith but belief in God is not essential

to constitute Religion.

• Doctrines of each religion constitute its essential part, but the

court is competent to examine them.

• Philosophy is different from religion.

What is a Secular State?

• A secular state is said to be the one where there is no official

religion followed.

• To understand it more clearly, secularism is defined in the

case of S.R. Bommai v. Union of India [AIR 1958 SC 731],
where it was held that “Secularism is the basic feature of the
Indian Constitution. The State, in the interest of public order
can impose certain restrictions on the freedom of religion”.

• Religion is a matter of individual faith and cannot be mixed

with secular activities.

• Article 25 mandates that subject to public order, morality

and health, all persons enjoy the freedom of conscience and
 have the right to entertain any religious belief and propagate
it.

– There are plethora of judgments which specifically deals

with secularism like in the case of S.R.Bommai and the
case of Keshvananda Bharti v. Union of India[(1973) 4
SCC 225.], where it was held that secularism is the basic
feature of the Indian Constitution and no provision of
legislation can take away or abridge this right.

Right to Freedom of Religion   

1) Freedom of conscience and free profession, practice and

propagation of religion (Article 25)

2) Freedom to manage religious affairs (Article 26)

3) Freedom as to payment of taxes for promotion of any

particular religion (Article 27)

4)  Freedom as to attendance at religious instruction or

religious worship in certain educational institutions (Article
28) 

Analysis

• Article 25 of the Constitution guarantees freedom of religion to

all persons in India. It provides that all persons in India,
subject to public order, morality, health, and other provisions: 

– (i) Are equally entitled to freedom of conscience, and 

– (ii) Have the right to freely profess, practice and

propagate religion.

Meaning of Public order, morality and health

• This means that Article 25 & 26 are not absolute. No person

can do such religious things which affect the public order,
morality and health.
• For example no one has right to conduct human sacrifice.

• No one can perform worship on busy highway or other public

places which disturb the community.

• System of Devadasi etc.

• Nobody can claim a fundamental right to create noise by

amplifying the sound of his speech with the help of
loudspeakers.

• In this context, cracking of fireworks on Diwali & using

loudspeakers for Ajan in the morning had also come under
Supreme Court’s scrutiny.

• The Court restricted the time of bursting the firecrackers, and

it does not in any way violate the religious rights of any person
as enshrined under Article 25 of the Constitution.

• The Supreme Court in Church of God in India v. K.K.R.

Majestic Colony Welfar Assn., (2000) held that

– “the Court may issue directions in respect of controlling

noise pollution even if such noise was a direct result of
and was connected with religious activities. The mandate
included the following lines:

• “Undisputedly, no religion prescribes that prayers should be

performed by disturbing the peace of others nor does it preach
that they should be through voice amplifiers or beating of
drums. In our view, in a civilized society in the name of
religion, activities which disturb old or infirm persons,
students or children having their sleep in the early hours or
during daytime or other persons carrying on other activities
cannot be permitted”.
• State may abolish “Cow Slaughter” as sacrifice of Cow
on Bakrid is not an essential part of the religion – See Mohd.
Hanif Quareshi Vs State of Bihar AIR 1958 SC 731

• Possessing a Kirpan is an essential part of professing Sikkism

and it is protected right of Sikhs. (Article 25 Explanation I).

• Bijoe Emmanuel v. State of Kerala, air 1987 sc 748

• (Popularly known as the national anthem case.)

• The facts of this case: three children belonging to a sect

(Jehovah’s witness) worshipped only Jehovah (the creator) and
refused to sing the national anthem “Jana Gana Mana”. 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 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 51-A 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. 
 • (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.

Freedom to manage religious affairs - Article 26

• Article 26 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.

• The term “denomination” is not defined in the constitution.

• It means, according to Oxford dictionary, “a collection of

individuals classed together under the same name, a religious
sect or a body having a common faith and organisation and
designated by a distinct name” – See also Commissioner,
Hindu Religious endowment Madras v. Shri Laxmindra
Thirtha Swamiar of Shri Shirur Mutt. 
• N. Aditya v. Travancore Devaswom Board

• Appointment of Non-Brahmins as Pujari

• 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 violative 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 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.
• Triple Talaq: Shayara Bano v. Union of India

• By a 3:2 majority, the court ruled that the practice of Talaq-e-

biddat is illegal and unconstitutional

Right to establish and maintain-institutions for religious and

charitable purposes – Article 26 (a)

• 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: 

– They infringe on the fundamental right under Article

30 to establish and administer educational institutions.

– 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

• See for Article 26 (d): Bira Kishore Dev v. State of Orissa, AIR
1964 SC 1501.

• 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’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.

• The Supreme Court in the case of State of Rajasthan v.

Sajjanlal Panjawat observed that even though the state has
the power to administer or regulate the properties of a trust,
but it cannot by law take away the right to administer such
property and vest it in such other authority that does not even
comprise the denomination. This would certainly amount to a
violation of Article 26(d) of the Constitution.

Freedom as to payment of taxes for promotion of any

particular religion

• Article 27 states that “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”.

– See : Commissioner, Hindu Religious Endowments,

Madras v. Sri Lakshmindra Thirtha Swamiar of Sri
Shirur Mutt.

• It may be noted that Article 27 prohibits the levy of a Tax and

not the imposition of fee

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 – Article 28
(1). 
 – 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 – Article 28 (2)

• 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 - Article
28 (3).

Case laws

• 1. Teaching of Guru-Nanak: D.A.V. College v. State of Punjab,

(1971) 2 SCC 368

– Section 4 of the Guru Nanak University (Amritsar) Act,

1969 – challenged - 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”. 

• 2. Aruna Roy v. Union of India, (2002) 7 SCC 368.

– 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. 

Thank you…