Article 25-28 Freedom of Religion

Concept of Secularism
Secularism is most commonly defined as the separation of religion from the state. Thus with
respect of the relationship between religion and the state, countries can be divided into 3
categories –
(A) Atheist State – A state that actively denies the existence of God and Religion. And
denies to its citizen the practice of any religion. Example – North Korea.
(B) Theocratic State - A state where political leadership is drawn from the clergy of a
particular religious group. Example – Vatican City.
(C) Secular State – A state which tolerates religion but is not bias towards any particular
religion.

Indian Secularism
 Indian Philosophy of secularism is related to “Sarva Dharma Sambhava” which
means the destination of the paths followed by all religion is same, though the path
themselves may be different. Thus it means equal respect to all religions.
 Indian does not recognize any religion as official and nor does it owe allegiance to
any particular religion.
 India does not have an official state religion. However, different personal laws on
matters such as marriage, divorce, inheritance, alimony varies with an individual’s
religion.
 Indian secularism is a means to address religious plurality and is not an end in itself. It
soughts to achieve the peaceful coexistence of different religious.

Constitutional Provisions
 The term ‘religion’ is not defined in the constitution and indeed it is a term which is
hardly susceptible to any rigid definition. A religion has its basis in “a system of
beliefs and doctrines which are regarded by those who profess that religion as
conductive to their spiritual wellbeing”.
 The Constitution (42nd Amendment) Act, 1976 inserted the word ‘Secular’ in the
Preamble. The amendment is intended merely to spell out clearly the concept of
‘secularism’ the Constitution. There is no ambiguity regarding the secular status of
India.
Article 25
Article 25 says that all persons are equally entitled to –
(A) Freedom of conscience – Inner freedom of an individual to mould his relation with
God or Creatures in whatever way he desires.
(B) Right to profess – Declaration of one’s religious beliefs and faith openly and freely.
(C) Right to practice – Peformance of religious worship, rituals, ceremonies, and
exhibition of beliefs and ideas.
(D) Right to propogate – Transmission and dissemination of one’s religious beliefs to
other but does not include a right to convert another person to one’s own religion.
Forceful conversions infringes a person’s freedom of conscience.
From the above it is clear that Article 25 covers not only religious beliefs (doctrines) but also
religious pratices (rituals). They are available to citizens as well as non-citizens.
Bijoe Emmanuel v. State of Kerala – National Anthem Case
 A circular issued by the director of public Instruction made it compulsory for all
children in schools to sing the National Anthem. Three children belonging to the
“Jehovs’s witness” of the Christian Community stood up respectfully during the
national anthem but refuse to sing it. As a result of such refusal they were expelled
from the school. The validity of their expulsion was challenged on the grounds that it
was violative of their fundamental right under Art.25.
 The Kerala High Court upheld the validity of the expulsion as it was fundamental
duty to sing the National Anthem.
 However, The Supreme Court reversed The High Court’s decision directing the
authorities to readmit the children in the school. It held that there is no legal
obligation in India to sing the National Anthem. By standing while the National
Anthem was being sung, the children showed proper respect and had not violated the
fundamental duties laid down in Article 51-A of the constitution.
Reasonable restrictions
The rights guaranteed under Article 25 are not absolute and are subject to reasonable
restriction on the grounds of –
(A) Religious liberty subject to public order, morality and health
(B) Regulation of economic, financial, political, and secular activities associated with
religious pratices
(C) Social welfare and Social reforms

(A)Religious liberty subject to public order, morality and health

In the name of religion no act can be done against public order, morality, and health of the
public. Section 34 of the Police Act prohibits slaughter of cow and indecent exposure in
public place. Acts like these cannot be justified on plea of practice of religious rites.
(B)Regulation of economic, financial, political, and secular activities associated with
religious pratices
 The freedom to pratice religion extends only to those pratices which are the essence of
religion. Thus rights under Article 25 are guaranteed only against ‘essential religious
pratices’
 Essential religious pratices means all those pratices that are fundamental to a religion
and not following them would result in the change of religion itself.
 The EPR test finds its origin in a speech given by Dr.B.R. Ambedkar in the
constituent assembly. He acknowledged that in India religion and its pratices regulate
almost every aspect of life, however, there should be limitation on such influence and
these religious pratices should be able to withstand the test of Constitutional morality
in order to continue.
 The EPR test was first used in Shirur Mutt case in 1954
 The ‘essentiality doctrine’ of the Supreme court has been criticised by several
constitutional expersts
 Scholars of the constitutional law have argued that the essentiality doctrine has tended
to lead the court into an area that is beyond its competence and given judges the
power to decide purely religious questions
 The courts have also been very inconsistent on the question – in some cases they have
relied upon religious texts and other they have relied upon the empirical behavior of
followers in order to determine essentislity.

(C)Social Welfare and social Reforms

 The State empowered to make laws for social welfare and social reforms. Thus, the
state is empowered to make laws for social pratices and dogmas which stand in the
path of country’s progress. Such laws do not affect the essence of any religion
 Where there is conflict between the need of social welfare and reforms and religious
pratices, religion must yield. Social evils cannot be practiced in the name of religion.

Shayra Bano v. Union of India – Triple Talaq Case

The Supreme Court by a majority of 3:2 declared triple talaq or Talaq-e-biddat being instant
and irrevocable unconstitutional. Talaq-e-biddat is a kind of Talaq effected by one definitive
pronouncement of ‘Talaq’ three times.
Triple Talaq is only a form of Talaq permissible in Law, but at the same time, stated to be
very sinful by the very Hanafi school which tolerates it.
Therefore, it would not form a part of essential religious practice as the fundamental nature of
Islamic religion, as seen through the Indian Sunni Muslin’s eyes, will not change without this
practice.
Indian Young Lawyers Association v. The State of Kerala – The Sabrimala Case
Sabarimala temple is situated at Sabarimala in Pathanamthitta district, Kerala. It is a Hindu
temple dedicated to Lord Ayyappa and their followers Ayyappan. This temple is managed
and administered by statutory body Travancore Devaswom Board created under the
Travancore-Cochin Hindu Religious Insitution Act, 1950. In the past women devotees
between age of 10 to 50 years were not permitted to exercise their right to worship in this
temple.
This restriction on women is justified on the ground that Lord Ayyappa is Naishtik
Brahmachari and for preservation of character of deity Ayyappa it is necessary.
It was held that banning women from entering in the temple did not amount to essential
religious practice.