Article 25-28

developing understanding and respect to other religion

Word ‘secular’ in the Preamble to the Indian Constitution was inserted by 42nd Amendment
Act, 1976 and further declaration was made by the judiciary in case of S.R. Bommai v.
Union of India, 1994,( 9 judge bench) that secularism is part of the basic feature of Indian
Constitution. It also observed that “religion and politics cannot be mixed together. If the State
follows unsecular policies or courses of action then it acts contrary to the constitutional
mandate. In a State, all are equal and should be treated equally. Religion has no place in the
matters of State. Freedom of religion as a fundamental right is guaranteed to all persons in
India but from the point of view of the State, religion, faith, and belief are immaterial.”

Article 25 guarantee to every person freedom of conscience (Conscience refers to choice. It

refers to that subjective sense of what is right or wrong.)and right to profess, practice ( equal
includes guarantee to everyone to freely and openly profess and practise one’s religion or belief) and
conversion
without coercion. propagate religion of their choice However, these rights under Article 25 are not absolute
and are subject to following limitations: reasonable restrictions
Public order
Morality
Health
Other provisions of Part III of the Indian Constitution
Laws regulating or restricting economic, financial, political or other secular
activity which may be associated with religious practice
Laws providing for social welfare and reform
Laws providing for throwing open of Hindu religious institutions of a public
character to all classes and sections of Hindu (sabrimala)

religion In Commissioner Hindu Religious Endowments v Sri. Lakshmindra Thirtha Swamiar

religuous (Shirur Mutt case) 1954, the Seven Judge Constitutional Bench of the Apex court observed
denomination
religious that religious practices may lay down ethical rules, dress codes, rituals, ceremonies and
pratice modes of worship. The court, however clarified that in order to determine which religious
practice are integral part of the religion, one has to look at the tenets of that particular
religion. Following propositions were laid down by the court:
(1) Religion means “a system of beliefs or doctrines which are regarded by those who
profess that religion as conducive to their spiritual well-being";
(2) A religion is not merely an opinion, doctrine or belief. It has its outward expression in
acts as well;
(3) Religion need not be theistic; relating to or characterized by belief in the existence of a god or gods.
(4) "Religious denomination" means a religious sect or body having a common faith and
organisation and designated by a distinctive name;
(5) A law which takes away the right of administration from the hands of a religious
denomination altogether and vests in another authority would amount to violation of the
right guaranteed under clause (d)of Article 26
In the wake of alleged conversions by allurements and inducements some States have enacted
freedom of religion Acts to prevent such conversions. In Rev. Stainislaus v. State of
Madhya Pradesh, 1977 such Acts were challenged. The Supreme Court of India upheld both
the legislations rejecting the challenge under Article 25(1) and held that right to propagate
religion did not include right to make conversion on the ground that such an attempt
would violate the freedom of conscience guaranteed equally to all the citizens. The court
opined that there could be no fundamental right to convert any other person to one’s own
religion.
In case the propagation tends to insult with deliberate or maliciously intention of outraging
the religious feelings of others, the same can be punished under 295 and 295-A of Indian
ART259A- Deliberate and malicious acts, intended to outrage religious feelings
Penal Code. of any class by insulting its religion or religious belief. ART259- 295. Injuring or defiling
place of worship with intent to insult the religion of any class.
In the case of Sarla Mudgal V. Union of India 1995, 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.
Bijoe Emmanuel v. State of Kerala,1986 (national anthem case): According to these,
children singing Jana Gana Mana was against the tenets of their religious faith which did not
allow them to sing the national anthem. 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.

Article 26 gives freedoms to religious denominations

• to manage their religious affairs;
• to establish and administer institutions;
• to own, acquire and administer movable and immovable property. (ayodhya verdict)
In Shirur Matt Case,1954 the term religious denomination came for consideration. Relying
upon the definition given in Oxford Dictionary, the court pointed out three components of
this term viz.
Collection of individuals having common faith;
An organization; and
Designation of that organization by distinctive name.
Accordingly Radha Swamis, Lingayats and Vaishnavas have been held to constitute
religious denomination for the purposes of Article 26. Similarly, Zororashtrian,
 Swetamber Jains, Gowada Saraswat Brahmins and Dawood Boharas have been held
to be religious denominations for the purpose.
In S.P Mittal v. Union of India, 1983 it was contended that Aurobindo Society was religious
denomination and Auroville Township was religious institution. The Constitution Bench of
the Apex Court by majority judgment rejected both the claims on the ground that the society
was teaching internal yoga and the same cannot be said to practicing religion.
In Acharaya Jagdishwaranand Avdhoot v. Commissoner of Police, Calcutta,1984 the
question was whether Tandav dance to be performed with human skull, a damroo and trident
not essential and its performance at a public place is a fundamental right and whether it constitutes
practice +
reasonable essential religious practices of Anand Margi denomination. The Apex Court rejected the
restrictions claim of performing Tandav at the public place observing that no credible evidence was
furnished that Tandav was essential part of their belief. Immediately after the decision the
founder of Anand Margi sect declared expressly that Tandav was an essential element of
Anand Margi. Accordingly, in second Anand Margi case i.e. Jagdishwaranand Avdhoot
v. Commissoner of Police, Calcutta,2004 the question was again raised however, the
Supreme Court followed the earlier decision and by the majority 2:1 declared that essential of
religion do not change from time to time.
S. Azeez Basha And Anr vs Union Of India,1968: It was held by the Supreme Court that
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
AMU
not a Community as it was brought into existence by the central legislation and not by the Muslim
religious minority. Certain amendments were made in the Aligarh Muslim University Act, 1920. These
minority run amendments were challenged by the petitioner on the ground that: a)They infringe on the
institution fundamental right under Article 30 to establish and administer educational
institutions.b)Rights of the Muslim minority under Article 25, 26, 29 were violated.
In Mohd. Hanif Quareshi v. State of Bihar,1958, ban on cow slaughter was challenged on
the ground that it violated the religious freedom of Muslims. It was argued that sacrifice of
cow on Bakri-Id was an essential practice and an integral part of the religion. The court held
that the practice of cow sacrifice was not an essential part and hence it can be regulated.
(Also refer State of Guj. V Mirzapur Moti Qureshi case done under Article 19)
Though the seven judge Constitutional Bench in Shirur Mutt case declared that the
administration of property belonging to religious denominations can be regulated by law but
the administration itself has to be left with the denomination.
((The Supreme Court in Church of God (Full Gospel) v. K.K.R. Majestic Colony Welfare
Association,2000 held that nowhere in any religion, it is mentioned that prayers should be
performed through the beating of drums or through voice amplifiers which disturbs the peace
and tranquility of others.
In the case of Maulana Mufti v.State of West Bengal,1999 restrictions were placed on the
use of microphones before 7 am. It was held by the Calcutta High Court that Azan is an
integral and necessary part of the religion but certainly not the use of microphones. It violates
the basic human and fundamental right of the citizens to sleep and leisure. Must have done
in Torts under public nuisance))
 Jammu and Kashmir Mata Vaishno Devi Shrine Act, 1988 (Bhuri v. State of J. & K., AIR
1997) was challenged. took over the administration, governance, management of the shrine
fund and vested it with the Board constituted under the Act (Shri Mata Vaishno Devi Shrine
Board). The Supreme Court upheld the Act as constitutionally valid.The rights under Article
26 is not absolute but is subject to certain limitation.

both cases- Sri Jagannath Temple Puri Management CommitteeV v Chintamani Khuntia, 1997,
whether a resolving the issue of whether a non brahmin could be appointed as a priest or pujari, the
non-brahmin court held as long as a person is well versed, properly qualified and trained to perform the
can be puja in an appropriate manner for the worship of the deity, such a person can be appointed as
appointed
to a temple priest despite his caste.
In the case of N. Adithayan vs The Travancore Devaswom Board,2002, a two-judge bench
had upheld the appointment of a (non Brahmin) person from outside the Malayala Brahmin
community as priest of a Siva temple in Kerala. The State further contended that the
Petitioners’ rights under Article 25 were not violated by the executive order, as it was a
measure intended at bringing forth social reform and welfare—a feature, which the
Constitution specifically protects.

Article 27 secures the freedom from imposition of taxes for the purposes of promotion
of any specific religion. The Article prohibits the levy of tax but does not prohibit the levy
of fee. Equal aid to all the religions is not barred. The question came up before the Supreme
Court Seven Judge Bench in Shirur Mutt case wherein the court observed that the levy
under Madras Hindu Religious and Charitable Endowments Act, 1951 was in the nature of
tax but the court held that it was not for the purpose of preserving/promoting the Hindu
religion rather it was for the purpose of proper administration of religious and charitable
institutions wherever they existed and the levy was upheld.

Article 28 bars religious instructions in educational institutions run wholly by the

State. It also protects the individuals from compulsory attendance at religious instructions
and religious worships in state run educational institutions. A distinction has however, to be
drawn between attending religious instructions and academic study of religion. The question
cropped up in D.A.V. College, Jalandhar v. State of Punjab, 1971 wherein the question
was as to the constitutionality of the inclusion of the subject of Teachings and Life of Guru
Nanak Dev in the course curriculum of the colleges affiliated to the University (through
section 4 of the Guru Nanak University (Amritsar) Act, 1969). The Court held that it was an
academic pursuit and not the religious instruction being compulsorily imparted and hence
was not barred.
Aruna Roy And Others vs Union Of India,2002, a PIL was filed under Article 32 wherein
it was contended by the petitioner that the National Curriculum Framework published by the
National Council of Educational Research and Training is violative of the provisions of the
constitution. It was also contended that it was anti-secular as it provided basic human values,
social justice, non-violence, self-discipline, compassion, etc. by study of philosophy of all
religion. comparative study of all religions is not pro or against to any
Shayara Bano v. Union of India,2017 (Triple Talaq Case)
Talaq-e-biddat known as triple talaq, a kind of divorce through which a Muslim man could
divorce his wife by uttering the words talaq talaq talaq. A 5 judges bench of the Supreme
Court heard the controversial Triple Talaq case. The main issue, in this case, was whether the
practice of Talaq-e-biddat (triple talaq) is a matter of faith to the Muslims and whether it is
constituent to their personal law. By a 3:2 majority, the court ruled that the practice of Talaq-
e-biddat is illegal and unconstitutional. The court also held that, an injunction would continue
to bar the Muslim male from practicing triple talaq till a legislation is enacted for that
purpose. The Muslim Women (Protection of Rights on Marriage) Act, 2019 came into force
on July 31st, 2019 with an objective “to protect the rights of the married Muslim women and
prohibit the Muslim male to divorce the wife by pronouncing talaq”.

M Siddiq (D) Thr Lrs vs Mahant Suresh Das & Ors, 9 November, 2019 (Ayodhya Case)
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.

Issues:
(a) Whether a Hindu temple existed at the disputed site
(b) Whether the temple was demolished by Babur or at his behest by his commander for the
construction of the Babri Masjid
(c) Whether the mosque was constructed on the remains of and by using the materials of the
temple and
(d) What, if any are the legal consequences arising out of the determination on (a)(b) and (c)
above
• Whether the Muslims and or the Hindus have established the claim of worship and a
possessory title over the disputed property
• Whether the High Court was justified in passing a preliminary decree for a three way
division of the disputed property in equal shares between the Nirmohi Akhara, the
plaintiffs of Suit 4 and the plaintiffs of Suit 5

An Archaeological Survey of India probe submitted a voluminous report saying that proof
had been found of a massive structure just below the demolished Babri Masjid. The survey
claimed the presence of walls and pillars of a temple-like structure.

Held:
 • The Central Government shall, within a period of three months from the date of
this judgment, formulate a scheme pursuant to the powers vested in it under Sections
6 and 7 of the Acquisition of Certain Area at Ayodhya Act 1993. The scheme shall
envisage the setting up of a trust with a Board of Trustees The scheme to be
framed by the Central Government shall make necessary provisions in regard to the
functioning of the trust
• Simultaneously, with the handing over of the disputed property to the Trust or body
under clause 2 above, a suitable plot of land admeasuring 5 acres shall be handed
over to the Sunni Central Waqf Board, the plaintiff in Suit 4;

Indian Young Lawyers’ Association v. State of Kerala,2018 (Sabarimala Case)

Issues Involved:
1. Whether the exclusionary practice which is based upon a biological factor exclusive
to the female gender amounts to discrimination and thereby violates the very core of
Articles 14, 15 and 17 and not protected by morality as used in Articles 25 and 26
of the Constitution?

2. Whether the practice of excluding such women constitutes an essential religious

practice under Article 25 and whether a religious institution can assert a claim in that
regard under the umbrella of right to manage its own affairs in the matters of religion?

3. Whether Ayyappa Temple has a denominational character and, if so, is it

permissible on the part of a 'religious denomination' managed by a statutory board and
financed under Article 290-A of the Constitution of India out of the Consolidated
Fund of Kerala and Tamil Nadu to indulge in such practices violating constitutional
principles/ morality embedded in Articles 14, 15(3), 39(a) and 51-A(e)?

4. Whether Rule 3 of the Kerala Hindu Places of Public Worship (Authorization of

Entry) Rules permits 'religious denomination' to ban entry of women between the age
of 10 to 50 years? And if so, would it not play foul of Articles 14 and 15(3) of the
Constitution by restricting entry of women on the ground of sex?

5. Whether Rule 3(b) of the Kerala Hindu Places of Public Worship (Authorization of
Entry) Rules, 1965 isultra virusthe Kerala Hindu Places of Public Worship
(Authorization of Entry) Act, 1965 and , if treated to beintra virus, whether it will be
violative of the provisions of Part III of the Constitution?

Quotes from the majority judgment:

• CJI said devotion cannot be subjected to discrimination. Patriarchal rules have to
change. Patriarchy in religion cannot be allowed to trump right to pray and practice
religion, he said. Justice Khanwilkar concurred with the CJI's verdict.
 • Justice Nariman: To exclude women of the age group 10-50 from the temple is to
deny dignity to women. To treat women as children of lesser god is to blink at the
Constitution
• Justice Chandrachud: Religion cannot be used as cover to deny rights of worship to
women and it is also against human dignity. Prohibition on women is due to non-
religious reasons and it is a grim shadow of discrimination going on for centuries.
• All judgesruled that devotees of Lord Ayyappa do not constitute a separate
religious denomination.
• Justice Indu Malhotra, who wrote the dissenting judgment in the Sabarimala case, said
that the notions of rationality cannot be brought into matters of religion. She added
that the shrine and deity are protected under Article 25 of the Constitution and that it
was not upto the court to decide which religious practices should be struck down,
except in issues of social evil like 'Sati'. Justice Malhotra, the only woman on the
bench, was of the view that the petition does not deserve to be entertained.

Also Refer to the link:https://www.scobserver.in/court-case/sabrimala-temple-entry-

case/plain-english-summary-of-judgment-ee5ae148-9597-479f-84d7-35d398ed5e68