19-10-2022

DR. RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY

RIGHT TO FREEDOM OF RELIGION

( ARTICLES 25- 28)

ATUL KUMAR TIWARI’S CLASS

25. FREEDOM OF CONSCIENCE AND FREE PROFESSION, PRACTICE

DR. RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY

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, practice 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) (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 (2), the reference to Hindus shall be construed as including a
reference to persons professing the Sikh, Jaina or Buddhist religion, and the reference to Hindu religious
institutions shall be construed accordingly.

ATUL KUMAR TIWARI’S CLASS

1
 19-10-2022

THE RIGHT TO FREEDOM OF RELIGION

DR. RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY

• Articles 25 to 28 deal with the right to freedom of religion.

• These articles embody the ideal kind of secular state in India which observes an attitude of
neutrality and impartiality towards all religions.
• It is founded on the principle that the state is concerned with the relation between man and
man and not with the relation between man and God, which is a matter of individual
conscience.
• This attitude of impartiality is achieved through several provisions. these are:
1. Article 25 deals with freedom of conscience and free profession, practice and propagation of
religion.
2. Article 26 deals with the freedom to manage religious affairs
3. Article 27 deals with Freedom as to payment of taxes for the promotion of any particular religion.
4. Article 28 deals with the freedom to the attendance of religious instructions or religious worship in
certain educational institutions.

ATUL KUMAR TIWARI’S CLASS

3
DR. RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY

COMMISSIONER HINDU RELIGIOUS ENDOWMENTS V. SRI LAKSHMINDRA THIRTHA

SWAMIAR OF SHIRUR MUTT, AIR 1954 SC 282

• religion is a matter of faith with individuals or communities and is not necessarily

theistic.
• A religion undoubtedly has its basis in a system of belief or doctrine which is
regarded by those who profess that religion as conducive to their spiritual well-
being,
• but it will not be correct to say that the religion is nothing else, but a doctrine or
belief.
• The guarantee under the constitution of India not only protects the freedom of
religious opinion,
• but it also protects the acts done in pursuance of religion.

ATUL KUMAR TIWARI’S CLASS

2
 19-10-2022

DR. RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY

A.S. NARAYANA DEEKSHITULU V. STATE OF ANDHRA PRADESH,

AIR 1996 SC 1765

• the world religion used in articles 25 and 26 of the Constitution is

personal to the person having faith and belief in the religion.
• Religion is that which binds a man with the cosmos, his creator or
superpower.
• Religion is a matter of personal faith and belief in personal
relationships of an individual with what he regards as the cosmos,
his maker or his creator
• which, he believes, regulates the existence of living beings and the
forces of the universe.

ATUL KUMAR TIWARI’S CLASS

CERTAIN GENERAL PROVISIONS

DR. RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY

• There are certain general provisions, which aim to ensure the effectiveness of the guarantee of
freedom of conscience and religion by prohibiting any discrimination by the state on the ground of
religion alone.
• Article 15(1) provides that the state shall not discriminate against any Citizen on the ground of
religion alone.
• Article 15(2) provides that no citizen shall, on grounds only of religion, race, caste, sex, place of
birth or any of them, be subject to any disability, liability, restriction or condition with regard to
access to shops, public restaurants, hotels and places of public entertainments for the use of
wells, tanks, bathing ghats, roads, and places of public resort maintained wholly or partly out of
state funds or dedicated to the use of the general public.

ATUL KUMAR TIWARI’S CLASS

3
 19-10-2022

DR. RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY

ARTICLE 25(1)

Article 25(1) guarantees to every person:

1.the freedom of conscience,
2.the right to freely profess and practice any
religion, and
3.the right to propagate any religion.

ATUL KUMAR TIWARI’S CLASS

FREEDOM OF CONSCIENCE
DR. RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY

RATILAL PANACHAND GANDHI V. THE STATE OF BOMBAY,

AIR 1954 SC 388
It connotes the right of a person to entertain beliefs and doctrines
concerning matters which are regarded by him to be conducive to his
spiritual well-being. The freedom of conscience is the inner freedom of the
citizen to mould his own relation with God in any way he likes.

ATUL KUMAR TIWARI’S CLASS

4
 19-10-2022

BIJOE EMMANUEL V. STATE OF KERALA,

DR. RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY

(1986) 3 SCC 615

• FACTS:
• the children belonging to Jehovah witnesses of the Christian community were expelled from the school for refusing to
sing the national anthem which was made compulsory by a circular of director of public instruction.
• Their expulsion was challenged on the ground that it violated their fundamental right under article 25(1).
• They had stood up respectfully when the national anthem was being sung, but they did not join in the singing,
• according to them, singing the national anthem was against their religious faith, which did not permit them to join in
any ritual except when it is in their prayer to their God Jihovah.
• THE KERALA HIGH COURT: under the constitution, it was the fundamental duty of the children to sing the national
anthem.
• THE SUPREME COURT: observed that right under article 25(1) cannot be regulated by executive instructions, which
had no force of law.
• The children by standing up, when the National Anthem was being sung, had shown proper respect and, therefore,
there was no violation of fundamental duties as laid down in article 51-A of the Constitution.
• the Supreme Court held that there is no legal obligation in India on a citizen to sing the national anthem.
• the Court directed the authorities to re-admit the children in the school.

ATUL KUMAR TIWARI’S CLASS

ESSENTIAL RELIGIOUS PRACTICES

DR. RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY

Aacharya Jagdishwaranand Avadhuta v. Commissioner of Police,

(1983) 4 SCC 522 ( Ananda Margis case),

• The court held that Ananda Margis do not have the right to Tandava dance in
procession or at a public place because it is not an essential part of Ananda
Marga.
• What constitutes an integral and essential part of a religion or a religious
practice has to be decided by the courts with reference to the doctrine of that
particular religion.

ATUL KUMAR TIWARI’S CLASS

10

5
 19-10-2022

Khursheed Ahmad Khan v. State of U.P.,

DR. RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY

(20015) 8SCC 439,

• Polygamy is not an integral part of religion and introducing monogamy as

reform is within the power of the state under article 25 of the Constitution.
• In the instant case, misconduct of a government servant by contracting
second marriage during the existence of the first marriage without the
permission of the government in terms of rule 29 (1) of the U.P.
government servants conduct rules 1956 was held to be not violative of
Article 25 of the Constitution.

ATUL KUMAR TIWARI’S CLASS

11

Riju Prasad Sarma v. State of Assam,

DR. RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY

(2015) 9 SCC461
• The administration and day-to-day affairs of the Kamakhya Temple have for centuries been in the hands
of Bordeuri Samaj, comprising five main families of priests.
• Families of the priests of the main temple call themselves Bordeuris while the families of the priest of
subsidiary temple are known as Deuris.
• The head priest of Kamakhya is called Doloi.
• Appointment of priest is a secular matter which can be regulated by law but the situation may be
different where the appointment is by virtue of a custom,
• it was held that in the absence of any statute framed by the state regulating the affairs of the temple,
• the question of examining whether interference with the custom covering the appointment of Doloi
amounted to obliteration of essential religious practices does not arise.

ATUL KUMAR TIWARI’S CLASS

12

6
 19-10-2022

SHAYARA BANO V. UNION OF INDIA,

DR. RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY

(2017) 9 SCC 1
• What is permitted or not prohibited by religion does not become a religious practice or a positive tenet of
the religion.
• What constitutes an integral or essential part of a religion has to be determined with reference to its
doctrines, practices, its historical background, etc. of the given religion.
• By essentiall part of a religion, we mean the core belief upon which religion is founded.
• Essential practices means those practices which are fundamental to follow a religious belief.
• It is upon the cornerstone of an essential part of practices that the superstructure of religion is built,
without which religion will be no religion.
• The test to determine whether a part of the practice is essential to the religion is to find out whether the
nature of the religion will be changed without that part of the practice.
• If the taking away of that part of practice results in the fundamental change in the character of that
religion or its belief, then such part could be treated as an essential or integral part.
• There cannot be additions or subtractions to such part because it is the very essence of that religion
and alteration will change its fundamental character.
• It is such a permanent, essential part which is protected by the Constitution.

ATUL KUMAR TIWARI’S CLASS

13

… SHAYARA BANO
DR. RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY

THE FIVE JUDGE BENCH CONSISTING OF CHIEF JUSTICE KEHAR, JUSTICE KURIAN JOSEPH, JUSTICE NARIMAN, JUSTICE
UDAY LALIT AND JUSTICE ABDUL NAZEER

Majority held:
• that merely because practice is widespread and has been continued and practised for long by an overwhelming majority of
denomination concerned,
• that by itself cannot make a practice an essential religious practice if the above test are not satisfied.
• The practice of talaq-e-biddat or triple Talaq i.e. instant, irrevocable unilateral divorce by the husband by the formula of
pronouncing divorce three times, was held as per majority to be not protected by article 25 of the Constitution as it is not an
essential religious practice.
• Even though triple talaq is lawful in Hanafi jurisprudence, yet that very jurisprudence castigates triple talaq as sinful.
• Court made a specific finding as to how triple Talaq does not adhered to the Quranic principles and therefore, is bad in both
theology and law.
• Triple talaq can not be treated as an essential religious practice merely because it has continued for long.
• The practice of talaq-e-biddat was declared by the majority as illegal and was set aside.
Minority judgement by justice Lalit and Justice Nazeer, talaq-e-biddat is found to be an essential religious practice protected by
article 25 and thus cannot be set aside because it is widespread and has been prevalent for almost 1400 years.

ATUL KUMAR TIWARI’S CLASS

14

7
 19-10-2022

“TO PROFESS RELIGION”

DR. RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY

• The term “to profess religion” means the right to declare freely and openly his
faith.
• A person has the right to practice his belief by practical expression in any
manner he likes.
• Religion may only lay down a code of ethical rule for its followers to accept;
• it might prescribe rituals and observances, ceremonies and modes of worship
which are regarded as an integral part of religion, and
• those forms and observances might extend even to matters of food and dress.

ATUL KUMAR TIWARI’S CLASS

15

SUBHASH DESAI V. SHARAD J RAO,

DR. RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY

(1994) SUPP 2 SCC 446,

• A candidate contesting an election cannot contest on grounds of religion, caste, community or

language.
• Sub-section 3 and 3A of section 123, Representation of the People Act, 1951 curb appeal on the
ground of religion that creates feelings of enmity for hatred between classes of citizens of India,
during the election campaign by the candidate for prejudicially affecting the election of any other
candidate.
• It was held that the Constitution guarantees every citizen the right to profess, practice
and propagate his religion but his right does not extend to create hatred amongst the
two groups of people practising different Religions.

ATUL KUMAR TIWARI’S CLASS

16

8
 19-10-2022

DR. RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY

FREEDOM TO PRACTICE RELIGION

• In John Vallamattom v. Union of India, (2003) 6 SCC 611 it was held

that Article 25 merely protects the freedom to practice rituals and
ceremonies, etc. which are only integral parts of a religion.
• A disposition towards making gifts for charitable or religious purposes
may be a pious act of a person, but the same cannot be said to be an
integral part of any religion.

ATUL KUMAR TIWARI’S CLASS

17
DR. RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY

RIGHT TO PROPAGATE ANY RELIGION

• means that a person has the right to spread and publicize his
religious views for the edification of others.
• it only means persuasion and exposition of one’s religion
without any element of coercion.
• The propaganda may be made by a person in his Individual
capacity or on behalf of some Church or institution.

ATUL KUMAR TIWARI’S CLASS

18

9
 19-10-2022

SRI SRI SRI LAKSHAMANA YATENDRULU V. STATE OF ANDHRA

DR. RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY

PRADESH, (1996) 8 SCC 705

• It was held that Article 25 shows to every person, subject to public order,
health and morality, freedom not only to entertain his religious beliefs as
may be approved by his Judgement and conscience,
• But also to exhibit his belief in such manner as he thinks proper and
propagate or disseminate his ideas for the edification of others.
• Only the propagation of belief is protected, it does not matter whether the
propagation takes place in a temple or any other meeting.

ATUL KUMAR TIWARI’S CLASS

19
DR. RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY

RESTRICTIONS ON FREEDOM OF RELIGION

• THE RIGHT TO RELIGION IS NOT GIVEN UNDER THE CONSTITUTION IN ABSOLUTE TERMS;
• IT LAYS DOWN CERTAIN RESTRICTIONS WHICH ARE, THAT
• IT IS SUBJECTED TO PUBLIC ORDER, MORALITY AND OTHER PROVISIONS OF PART-III OF THE
CONSTITUTION.
• ONE OF THE PROVISIONS, TO WHICH THE RIGHT DECLARED IN ARTICLE 25(1) IS SUBJECTED TO, IS
ARTICLE 25 (2).
• A LAW WHICH FALLS WITHIN ARTICLE 25(2) WILL NOT INFRINGE THE RIGHT CONFERRED BY ARTICLE
25(1).
• THE FREEDOM OF SPEECH AND EXPRESSION IN MATTERS OF RELIGION IS SUBJECTED TO
REASONABLE RESTRICTIONS UNDER ARTICLE 19 (2).

ATUL KUMAR TIWARI’S CLASS

20

10
 19-10-2022

CHURCH OF GOD (FULL GOSPEL) IN INDIA V. K K R MAJESTIC

DR. RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY

COLONY WELFARE ASSOCIATION, (2000) 7 SCC 282,

• the court observed that the custom of offering a religious prayer through the use
of a loudspeaker is not an essential element of any religion.
• The Supreme Court observed that a person's religious freedom is subjected to
public order, morality and health.
• Even if there is any such religious practice, it cannot be used to violate the right
of others or to disturb their peace.
• The court said that no rights, in an organised society, can be absolute. In view of
this, The Noise Pollution (Regulation and Control) Rules 2005 is valid and
Constitutional.

ATUL KUMAR TIWARI’S CLASS

21
DR. RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY

REV. STAINISLAUS V. STATE OF MADHYA PRADESH,

(1977) 2 SCR 611
• the constitutionality of the Orissa Freedom of Religion Act, 1967 and the Madhya Pradesh Dharm
Swatantrya Adhiniyam, 1968, had been impugned.

• The Orissa Act made conversion brought about by force, fraud or inducement a criminal offence.
• Similarly, the Madhya Pradesh law made it a criminal offence to convert someone by use of force, fraud or
allurement.

• Both the laws had been challenged at the High Court level as well.
• While the Madhya Pradesh High Court had upheld the law,
• the Orissa High Court had held the corresponding law of Orissa to be void.
• The losing sides appealed to the Supreme Court which held that both laws were valid.

ATUL KUMAR TIWARI’S CLASS

22

11
 19-10-2022

DR. RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY

…REV. STAINISLAUS
• One of the contentions that was raised in the case was that the respective laws were violative of
article 25(1) which guaranteed the right to propagate religion and that included the right to
make conversion.
• It was conceded that the use of force or fraud could be validly prohibited because the right to
propagate religion in article 25(1) was subject to public order and morality,
• but it was strongly asserted that inducement or allurement were not only vague in their
meaning but
• were terms of wide connotation and could not be brought within the ambit of limiting grounds
of 'public order, morality and health' so as to penalize a person for the exercise of his
constitutional right on that ground.

ATUL KUMAR TIWARI’S CLASS

23
DR. RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY

…REV. STAINISLAUS
• the Court decided that the right to propagate religion did not include the right to make conversion,
Because if a person purposely undertakes the conversion of another person to his religion, as
distinguished from his effort to transmit or spread the tenets of his religion, that would impinge on
the 'freedom of conscience guaranteed to all the citizens of the country alike.
• Delivering the judgment of a constitution bench of the Supreme Court, A.N. Ray, C.J. said:
“... It has to be appreciated that the freedom of religion enshrined in the Article is not guaranteed in respect of
one religion only, but covers all religions alike, and it can be properly enjoyed by a person if he exercises his
right in a manner commensurate with the like freedom of persons following the other religions. What is
freedom for one is freedom for the other, in equal measure, and there can therefore be no such thing as a
fundamental right to convert any person to one's own religion."

ATUL KUMAR TIWARI’S CLASS

24

12
 19-10-2022

DR. RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY

CHANGE OF RELIGION CANNOT BE PROHIBITED

• because it is implicit in the right to the freedom of conscience itself.
• But the crucial question is whether the initiative for it should come from the person who wants
to change his religion or from someone from outside who induces him to change his religion.
• The moment someone induces another to change his religion, he asserts that his religion is
superior or perhaps that it embodies the whole truth and the person who was being induced is
a believer of falsehood, and that goes against the basic concept of equality of all the religions
and equal respect to all the faiths.
• It is quite possible that the constitutional insistence on the equality of all religions and the
freedom of conscience might be impinging on the orthodox view of some religions.
• But that it is, and in a multi-religious society, one cannot expect anything else.

ATUL KUMAR TIWARI’S CLASS

25

GULAM ABBAS V. STATE OF U.P.,

DR. RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY

(1984) 1 SCC 81

• held that the impugned suggestion for the shifting of graves to maintain public
order on the occasion of the performance of religious ceremonies and functions
by members of both sects was in the larger interest of society.

• If the court finds that the implementation is in the interest of the maintenance of
public order, the consent of the parties would be immaterial.

ATUL KUMAR TIWARI’S CLASS

26

13
 19-10-2022

MOHD. HANIF QURESHI V. STATE OF BIHAR,

DR. RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY

AIR1958 SC 731 (5 JUDGE)

• The Supreme Court held that the sacrifice of a cow on

the occasion of Bakrid is not an essential part of Islam
and
• hence can be prohibited by the state under articles 25
to 28 of the Constitution.

ATUL KUMAR TIWARI’S CLASS

27

STATE OF GUJARAT V. MIRZAPUR MOTI KURESHI KASSAB JAMAT

DR. RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY

(2005 8 SCC 534) (7 JUDGES)

• The petition was challenging the amendments in section 5 of the Bombay Animal
Preservation Act,1948 which was also applicable to the state of Gujrat. The amendments
changed the ban on slaughter of bulls and bullocks under the age of 16 to a complete ban.
• "A cattle which has served human beings is entitled to compassion in its old age. It will
be an act of reprehensible ingratitude to condemn cattle in its old age as useless. We
have to remember: the meek and weak need more protection and compassion.“
• “there is no escape from the conclusion that the protection conferred by the
impugned enactment on cow progeny is needed in the interest of the nation’s
economy.
• Merely because it may cause “inconvenience” or some “dislocation” to the
butchers, restriction imposed by the impugned enactment does not cease to be
in the interest of the general public. The former must yield to the latter.”

ATUL KUMAR TIWARI’S CLASS

28

14
 19-10-2022

BHURI NATH V. STATE OF JAMMU AND KASHMIR,

DR. RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY

(1997) 2 SCC 745,

• the validity of the Jammu and Kashmir Shri Mata Vaishno Devi Shrine Act 1988 which
was enacted to provide for better management, Administration and Governance of the
temple and its empowerment was challenged
• on the ground that it was violative of the petitioner’s fundamental right to freedom of
religion guaranteed under articles 25 and 26 of the constitution.
• The Act abolished the hereditary post of a priest in the temple and made provisions for
the appointment of a priest by the state.
• The supreme court held that the service of the priest is a secular activity and there may
be a distinction between religious service and the person who performs SERVICE.

ATUL KUMAR TIWARI’S CLASS

29
DR. RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY

SOCIAL WELFARE AND REFORM

• the state can eradicate social practices and dogmas which obstruct the
progress of the country.
• The provisions of Hindu Marriage Act, 1955,
• the prevention of sati and
• child marriages, and
• the abolition of the devadasi system
• have been held to be justifiable under article 25(2) of the Constitution.

ATUL KUMAR TIWARI’S CLASS

30

15
 19-10-2022

SYEDNA TAHER SAIFUDDIN SAHEB V. STATE OF BOMBAY,

DR. RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY

AIR 1962 SC 853

• the petitioner, head of the Dawoodi Bohra community challenged

the constitutionality of the Bombay Prevention of ex-communication
Act 1949,
• on the ground that it infringed his right under Articles 25 and 26 of
the constitution.
• the Supreme Court struck down the provision as violative of articles
25 and 26 of the constitution.

ATUL KUMAR TIWARI’S CLASS

31

SYEDNA TAHER SAIFUDDIN SAHEB V. STATE OF BOMBAY,

DR. RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY

AIR 1962 SC 853

• the petitioner, head of the Dawoodi Bohra community challenged

the constitutionality of the Bombay Prevention of ex-communication
Act 1949,
• on the ground that it infringed his right under Articles 25 and 26 of
the constitution.
• the Supreme Court struck down the provision as violative of articles
25 and 26 of the constitution.

ATUL KUMAR TIWARI’S CLASS

32

16
 19-10-2022

INDIAN YOUNG LAWYERS ASSOCIATION V. STATE OF KERALA,

DR. RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY

AIR 2018 SC (SUPP) 1650 (5 JUDGES)

• The Ayyappa temple in Sabarimala in Kerala has been controversial for

restricting women of menstruating age (10-50 years of age) to enter into
Sabarimala Temple.
• it was argued by petitioners that provisions related to the restriction of
women entry in Temple are unconstitutional as it violates Article
14, 15, 17, 25, 26 of the Indian Constitution.
• the Supreme Court held that women of all age groups can enter Sabarimala
shrine Temple as everyone has a right to worship and it is the constitutional
and fundamental right of everyone given in Article 25 and 26 of the Indian
Constitution.
-------

ATUL KUMAR TIWARI’S CLASS

33

17