SCHOOL OF EXCELLENCE IN LAW

NAME :MANIBALAN.S

SUBJECT : CONSTITUITIONAL LAW - I

TOPIC : RIGHT TO FREEDOM OF RELIGION

COURSE : 1st LLB ( Hons)

SECTION : B

REGISTER NO : H320068

DATE : 25.06.2021

STUDENT’S SIGNATURE FACULTY SIGNATURE

1
 DECLARATION

I hereby declare that the Assignment about “Right to Freedom of religion” is submitted to

The Tamilnadu Dr. Ambedkar Law University is originally the work done by me and assure

the further works is done with my own effort.

Date: Name of the Student

Place: VILLUPURAM MANIBALAN.S

2
 TABLE OF CONTENT
S. no CONTENT Pg
No

1 Introduction 5

2 Fundamental Rights 6

3 Article 15 6

4 Right to the Freedom 7

 Article 25

5 Religion 8

6 Right under Article 25 8

7 Article 26 14

8 Article 27 16

9 Article 28 16

10 Conclusion 17

3
 TABLE OF CASES

S.no CASELAWS CITATION

1 Bijoe Emmanuel v. State of Kerala AIR 1986 3 SCC 615

2 Church of God (full Gospel)in India v. AIR 2000 SC 2773

K.K.R.M.C Welfare Association

3 Shayara Bano v Union of India AIR 2017 S.C.4609

S.C.C.684

4 Rev stainislaus v. State of M.P AIR 1977,SC 908

5 Lily Thomas v. Union of India AIR 2000, 6 SCC 224.

4
 RIGHT TO FREEDOM OF RELIGION

INTRODUCTION:
The Constitution of India is the supreme law of India. This is also regarded as
supreme power. This came into force on 26th January, 1950. The constitution is the very
basic in which the laws of the country become powerful. It’s an elaborative document and
contains 395 Articles, divided into 22 Parts and 12 schedules. Our constitution contains
various features of other country constitution; mainly it contains British laws and some
jurisdiction. Most of our rule of law is adopted by United Kingdom. Our Indian constitution
is a written constitution .It almost took 2 years to draft the constitution. After attaining the
independence the main struggle was to protect the country and to regulate the laws in our
country. Thus in the aim of assuring the protection of individuals and to protect them
constitution came into existence with the basic idea of Justice, equality, liberty and fraternity.

It establishes the main organs-Executive, Legislature and Judiciary, defining their

powers, responsibilities and regulating the inter- se relationship. It lays down basic structure
of governance and the relationship between the government and the people .The rights and
duties of the citizens are also mentioned in the constitution.

Our Indian constitution is the lengthiest constitution in the world. It contains detailed
description of the features. Constitution lays down the structure not only of central
Government but also of the States. The constitution contains many Fundamental rights and
also a number of Directive principles.

Another main component of the constitution is Preamble. Preamble is nothing but the
basic structure of the constitution .The Preamble of the constitution declares India to be a
Sovereign, Socialist, Secular and Democratic Republic.

The term ‘Secularism’ means a state which has no religion of its own as a recognised
religion of the state. It treats all religion equally. And there won’t be any discrimination on
the ground of religion.

In the further passages to come , Right to freedom of religion and how it is claimed as a
fundamental right will be discussed vividly.

5
 FUNDAMENTAL RIGHTS:

Fundamental Rights are required for the all round development of a human being.
There are six fundamental rights governed by our constitution. Part III Articles 12- 35 deals
with the fundamental rights. The basic fundamental rights are

 Right to Equality (Article 14-18)

 Right to Freedom (Article 19-22)
 Right against Exploitation (Article 23-24)
 Right to freedom of religion(Article 25-28)
 Cultural and Educational Right(Article 29-30)
 Right to constitutional Remedies(Article32)

These are the basic Fundamental right of the citizen belonging to India. There was also one
more fundamental right in the constitution i.e. Right to Property. However this was removed
from the fundamental right list by the 44th constitutional amendment. Now this is a legal right
and not a fundamental right.

Right to Freedom of Religion comes under Article 25-28. This is also explained in
Article 15 under the head right to equality which means that in India all the religions can
follow and practise without any discrimination and there is equal rights provided to all the
people.

ARTICLE 15:

Prohibition of discrimination on the grounds of religion, race, caste, sex or

place of birth –

Clause (1) The State shall not discriminate against any citizen on grounds only of
religion, race, caste, sex, place of birth or any of them.

In this Article the word ‘only’ is very important it indicates that no person in India shall
be deprived from the right to profess their own religion. This article clearly prohibits
discrimination. Discrimination means the difference between one to another when the
equality among people is curtailed. Thus this article is very important to avoid the differences
in our country.

6
 In this Article clause one is to be noted to deal with the ingredients to freedom of
religion. Whenever Article 15 clause (1) is read it should also be read with Article 25 which
explains about the religion. This right is a fundamental right to people. Any biased caused by
the discrimination will be punished by the State. State also power to impose certain powers to
impose restrictions if the right it misused or sometimes if it violates other right.

Our constitution is highly designed in the way that favours all and that spread peace
and unity of our country. Our Constitution is Quasi Federal and it helps in providing the unity
between state and Central in our Country. Our Preamble also assures to Dignity, Unity, and
Integrity. The term Dignity gives assurance to each citizen’s to live in dignified manner. The
term Unity means we all are together in this we strive to be as a single unit to face rejoice and
hardship. Integrity means the state of being indivisible. Our Constitution ensures that free
India cannot be divided and will be the same and whole. India will remain as a one.

RIGHT TO THE FREEDOM OF RELIGION:

ARTICLE 25:
This Article is the foremost and very important Article which describes the Right to
the Freedom of Religion.

“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

7
professing the Sikh, Jaina or Buddhist religion, and the reference to Hindu
religious institutions shall be construed accordingly”
This is an individual Right. This Article clearly provides that all the person in India are
equally entitled to practice, profess and any religion of their own. Any legal person or inform
of Trust has rights to establish their own institution.

Right in respect to Preamble:

This Article ensures the “Secularism” that is mentioned in Preamble. The State won’t
differentiate anyone concerned to the Mosque, Temple and Church the treatment will be same
to all. In the secular state the concern is in between only the man and the man. The State also
won’t compel any person to follow the particular religion.

RELIGION:
The term Religion means a matter of faith. Faith in God, it denoted the bond between
a man and God. Every religion has its own practice and its own personal faith. It not only
includes people who have faith in god but also it includes the person who denies their faith so
called “Atheist”. Generally religion is defined as,

“Faith is nothing but a mere Belief, Belief is entrusted with God”

Every person has liberty to have faith and worship without following any prescribed
form also. People are also given right or choice to choose any religion based on the
prescription of the religion.

RIGHTS UNDER ARTICLE 25 :

Article 25(1) has two folds namely,

 Freedom of conscience
 Freedom to profess, practise and propagate religion.

And Article25 (2) contains about the restrictions that can be made by the state in order to
maintain peace and harmony between individuals.

All the persons are equally entitled to the freedom of conscience based on the three
elements Faith, Religion and Belief. To profess a religion means to declare freely and openly
ones faith and belief in religion. Here practise denotes the duties, rites, religious practice and

8
rituals. The word Propagate denotes to spread and publicize his religious views. These are
key elements given in Article 25(1). 25(2) denotes about the restrictions that are made on
various ground. Law is given power to restrict. When the right is misappropriated, if at all the
money which is given for religious practices is used for financial, economical and other
secular activities law may come into force and it has the power to restrict.

There are also other grounds for restriction. If at all when the Speech and Expressions
propagates any bad idea then such things can be restricted. That is if the speech which is
obscene or that hurts the feelings of others or if the speech that causes friction between two
communities these can be reasonably restricted.

Article 25(3) restricts when the elements of the religion is depriving the fundamental
rights of the citizens. This is mainly to bring social welfare and reform. For example System
like Sati which was essential custom of the religion was restricted because it was against
morality. And then custom of Triple Talaq1 was restricted because it caused total injustice to
woman. Hence to promote Reformation in religion any restrictions can be made by the State.

Explanation 1 explains about the right given to Sikh community to carry Kirpan a small
dagger as a part of their custom and belief.

Case law: - Freedom of Religion:

Bijoe Emmanuel v. State of Kerala

This case2 challenged the violation of Article 19& 25. This case is also called as National
Anthem case. This case deals with the main provision that include that Right to freedom of
speech of include freedom of silence also. Hence it was challenged before the supreme court
as it violates Article 19(1) (a) and Article 25.

Facts of the case:

In this case three children belonging to Jehovah group was expelled from the school on
the note that they failed to sing National anthem. There was a circular from Director of Public
Instructions Kerala that made compulsory for the students to sing national anthem and made
it compulsory to sing in schools. Here the three children didn’t sing the anthem but the stood
respectfully. The reason behind not singing was their religious practice didn’t allow them to
1
Shayara Bano v Union of India AIR 2017 S.C.4609 S.C.C.684
2
Bijoe Emmanuel v. State of Kerala, (1986) 3 SCC 615
9
praise others expect their lord Jehovah. Because of this reason they were expelled from the
school.

Issues before the court :

Whether their silence to sing national anthem brings disrespect to the country under the
law made in The Prevention of Insult to National Honour s Act, 1971 and is it is violating the
fundamental duties given under Article 51-A.

Held:

It was held that nothing was wrong with their silence. They can remain silence even
though it was against the rules of the school. They didn’t sing because of their religious belief
and their own conscience and religious obligation. Even though they didn’t sing but they
stood in line and didn’t disrespect. Here it was decided that right to speech include right to
remain silent.

Discussion:

From the above case it is clear that no one can give up their religious faith even though the
law tries to impose upon them. It can also be considered that the Constitution of India is very
keen in maintaining the dignity of the individuals. And our judiciary is in very effective
power in ensuring that fundamental rights of the citizens is not violated and tries to keep them
save and let them to practice their own religious practice without intervention of any other
law.

Case law:

Restriction made on grounds of freedom of religion

Church of God (full Gospel) v. K.K.R.M.C Welfare Association

This case3 deals with the Restrictions made by the state with the interference with
fundamental right of the citizen.

3
Church of God (full Gospel)in India v. K.K.R.M.C Welfare Association, AIR 2000 SC 2773
10
Facts of the case:

In this case the church placed some loud speakers in order to propagate their own
religion. But in the name of propagation they caused noise pollution around the surroundings.
This also amounts to nuisance.

Issues to be decided:

Whether such plea of nuisance upon them was valid or whether their right to freedom of
religion was curtailed.

Held :

Supreme court held that even though they have right to propagate religion they couldn’t
take it as a ground to cause nuisance to common public by taking away their harmony and
this type of propagation is indirect compulsion of religion. Hence this can be reasonably
restricted and if they want to preach they can keep them volume level low so the general
public won’t get disturbed.

Discussion:

Such type of restriction is a valid one according to my knowledge. Because this may
cause noise pollution to others and some time people get offended if there is continuous
preaching this may also cause some hatred towards that religion at some point of time so it is
necessary that our rights are practised in proper manner without hurting others and without
causing tension among the communities. Such will definitely create a good impact upon that
religion if it is practised in calm way.

Case law:

Restriction for social reform

Shayara Bano v Union of India

This case4 deals with the reasonable restriction that is made by the state for social welfare and
reform.

4
Shayara Bano v Union of India AIR 2017 S.C.4609 S.C.C.684

11
Facts of the case:
In this case petitioner filed a suit that the triple talaq was not a valid form of divorce and
her husband pronounced Triple Talaq and left without maintenance. This was challenged
before the court.

Issues before the Court:

Whether such type of Talaq is valid or not.

Held:

Supreme Court held that such type of Talaq is completely invalid. The triple Talaq which is
also called as Talaq-e-Biddat was unconstitutional and it is irrevocable. Such type of Talaq
bring immediate end to the marriage without an attempt to reconcile this is totally against the
constitution. Hence it declared that Triple Talaq was invalid and imposed three years
imprisonment to whoever does that. Because the Triple Talaq was not even in shariat
(Muslim Personal Law), so whichever is not recognised in the primary source won’t be the
perfect law and such Law couldn’t be recognised as good law.

Discussion:

In my knowledge Triple Talaq is a total injustice to woman. This makes the divorce so
easy and this is not a proper method for divorce. Because, there is no chance given for
reconciliation. This Talaq is similar to Talaq e Hasan under Talaq ul Sunnat. In this Talaq e
Hasan husband is given time for period of 4 month to pronounce talaq at three consecutive
periods during the Iddat time. This is the most proper form of Talaq because here husband is
given ample of time to think about divorcing his wife and second chance to live together. So
the triple Talaq was total injustice to Muslim woman. Hence the restriction made by Supreme
Court for social reform was a valuable one to my knowledge and I stand with the decision
made by them. I would suggest that Muslims laws should be codified so that it would avoid
certain troubles in upcoming future because there is still some confusion going on in muslim
law. If there is a codified text it would be easier rather than interpreting primary source to
each and every case.

Case law: Force conversion not allowed

Rev Stainislaus v. State of MP

12
In this case 5, petitioners raised the questions whether the provision in Article 25(1) inclde
right to convert.

Facts of the case:

In this case the validity of the act namely Madhya Pradesh Dharma Swantantrya
Adhiniyam, 1968 and the Orissa Freedom of Religion Act, 1967 passed by stated legislature
of Madhya Pradesh was violative of Article 25(1) and it questioned the fundamental right
guaranteed. He also contended that right to ‘propagate’ one’s religion was a fundamental
right.

Issues before the court:

Whether the fundamental right to practice and propagate religion includes Right to
convert.

Held:

It held that the right to propagate does not include the right to convert and therefore upheld
the constitutional validity of the laws enacted by Madhya Pradesh and Orissa legislatures
prohibiting conversion by force, fraud or allurement. Conversion cannot be secured to force,
fraud or allurement. The court observed that the word `propagate' that has been used in
Article 25(1), for what the Article grants is not the right to convert another person to one's
own the religion, but to transmit or spread one's of the religion by an exposition of its tenets.

Discussion:

The decision of Supreme Court is a valid one because no person can be compelled to
change their religion under Coercion. Since conversion is ones individual likes no one can
force them. Such type of force is punishable one that’s a bad idea to pull some one into the
religion because our personal likeness.

Case law:

Conversion for mala fide intention is an offence

Lily Thomas v. Union of India

5
Rev stainislaus v. State of M.P ,AIR 1977,SC 908
13
This is a very important case6 that discuss about the ill intention of religious conversion for
own benefit.
Facts of the case:

Here a Hindu man already having a subsisting marriage under Hindu Marriage Act
embraced Islam and married again under Islamic rites. He had only feigned conversion to
solemnise a second marriage as for all practical purpose, he continued to be a Hindu.

Issues before the Court:

Whether such kind of conversion with the ill intention to perform second marriage is void
marriage or not.

Held:

The court held that if a person is already married under monogamous (Hindu law)
marries a second wife under a religious faith which permits polygamy .Such man which is
done against the subsisting marriage is a void marriage and it is also an offence under Section
494 0f IPC. Section 494 is a punishment given for bigamy. It also held that right to practice
religious is there according to section 25(1) but if that is done with malicious motive then it is
unconstitutional.

Discussion:

According to this case it is perfect decision given by Supreme Court. Because one cannot
convert to other religious just because with a ill intention. When he is given right to convert
he should follow it in right way. He should accept the religion whole heartedly, Religion is a
purest one and we should not cause taint with these misappropriations. It is necessary that
right to religious is practised in good way. These kind of conversion may cause bad
reputation to the cultural norms of other community. Each religion has their sect of practise
so it is mandatory to check that right is not misused.

ARTICLE 26:

Freedom to manage religious affair:

6
Lily Thomas v. Union of India, (2000) 6 SCC 224.
14
  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.

This Article deals with the managing and maintaining of religious denominations and
institution. Any Hindu, Muslims, Christians and any other religion for that matter has right to
have their own organisation and State wouldn’t interfere in any affairs among them unless if
they misappropriate the right conferred to them. This right is a fundamental right and it’s a
group right. It indicates a group of people rather than an individual. They can have their own
property and they can enjoy the rights.

26 (a) - Right to religious Denomination:

Any Religious group can have their own organisation and denominations for charitable
purpose and this right is guaranteed under this Article. They can claim and manage those
institution.

26(b) - Manage its own affairs:

The Religious institutions which are published has right to perform and maintain the
institution without interference of the State. State won’t interfere into them and exercise the
power to manage it. This power not only means that state won’t interfere but in some
circumstances State is given power under Article 25(2) to restrict under reasonable heads.
Such as activities that are unconstitutional and if it violates the law.

26(c) – To acquire property:

These institutions have rights to acquire movable and immovable property.

26(d) – To administer property:

15
 These institution and denomination has rights to administer any property which are
established for the religious matters.

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 religious denomination .

This Article 27 assures that no person shall be pay any taxes for the promotion or
maintenance of any particular religion or religious denomination. This public money that’s
collected by the way of tax cannot be spent by the state for the promotion of any particular
religion. This is because that the freedom is given that no other community would feel
inferior to other. State cannot make law and apply any tax to person on grounds of religion
i.e. freedom of being taxed.

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 recognised 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.

16
 This Article is about that no religious institution can impart any specified knowledge
about the specific religion on the base of imparting Religious education. No students will be
compelled to follow any specific religion. As India is a Secular State it is very mandatory that
everyone has right to follow their religion and no person is forced to follow the specific
religion.

Article 28(1) – Aided institutions:

Any State run institution which the primary fund is provided by the State, in such
institution no religious instructions will be imparted upon the student’s compulsorily. State is
highly exempted from this to impart any religious regarding instruction as a part of Secular
principle.

28(2) – Partly aided institution:

In this clause there is clear distinguish from the above clause. This clause defines that
any institution that is part funded i.e. when the primary fund is not from the State and it is run
by some trust then such type of aided institution can impart religious instructions that too on
the grounds that it doesn’t violate Fundamental Right. No students can be compelled to
follow or attend.

28(3) – No compulsion:

This clause defines that no religious institution has right to force any person to follow
any religious instructions or to compel them to attend. If this does so they state can interfere
and restrictions can be made. If it comes to minor then at least permission from guardian
should be obtained in such circumstances. Minor‘s guardian can do consent so that his ward
may attend religious participation in name of glorying the God.

CONCLUSION:

Thus Constitution of India is designed in such a way that it gives scope to all the
people in basis of Religion, language, sex, race, caste etc. Our constitution treats everyone
equally and this is greatest way how a constitution must be. Thus the above discussed
Articles are the Fundamental Rights given to each and every citizen of India on the basis of
Religion. Constitution of India is a complete blend of all the provisions, and thus the
provisions and articles in itself make it the apex law of the state. Through its rigidity and
flexibility it stands as a standard form throughout the World. The Indian Constitution is

17
unique in both spirit and content. Notwithstanding the fact that several features of the
constitution have been borrowed from other constitutions from all around the world, it is
really a unique piece of work. The Indian Constitution is a comprehensive draft of framework
a sovereign country needs to administer and run with. Though it is 67 years old it still
supports and gives a great foundation for any modern laws the Parliament wants to enact with
upcoming challenges.

REFERENCES:

 Dr. J. N. PANDEY- CONSTITUIONAL LAW OF INDIA

18