UNIT-V PPT Handouts For Students

06-11-2022
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

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.
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THE RIGHT TO FREEDOM OF RELIGION

• 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.
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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.
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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.
CERTAIN GENERAL PROVISIONS

• 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.
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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.
FREEDOM OF CONSCIENCE
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.
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BIJOE EMMANUEL V. STATE OF KERALA,

(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.
ESSENTIAL RELIGIOUS PRACTICES

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

(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.
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Riju Prasad Sarma v. State of Assam,

(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.
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SHAYARA BANO V. UNION OF INDIA,

(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.
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… SHAYARA BANO
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.
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“TO PROFESS RELIGION”

• 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.
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SUBHASH DESAI V. SHARAD J RAO,

(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.
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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.
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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.
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SRI SRI SRI LAKSHAMANA YATENDRULU V. STATE OF ANDHRA

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

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.
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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.
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…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.
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…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."
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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.
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GULAM ABBAS V. STATE OF U.P.,

(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.
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MOHD. HANIF QURESHI V. STATE OF BIHAR,

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.
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STATE OF GUJARAT V. MIRZAPUR MOTI KURESHI KASSAB JAMAT

(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.”
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BHURI NATH V. STATE OF JAMMU AND KASHMIR,

(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.
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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.
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SYEDNA TAHER SAIFUDDIN SAHEB V. STATE OF BOMBAY,

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.
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SYEDNA TAHER SAIFUDDIN SAHEB V. STATE OF BOMBAY,

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.
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INDIAN YOUNG LAWYERS ASSOCIATION V. STATE OF KERALA,

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.
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AISHAT SHIFA VS. THE STATE OF KARNATAKA

(13.10.2022 - SC) : MANU/SC/1321/2022
(Hemant Gupta and Sudhanshu Dhulia, JJ.)
• Hemant Gupta, J.
• As discussed above, secularism is applicable to all citizens, therefore, permitting one religious community to wear
their religious symbols would be antithesis to secularism. Thus, the Government Order cannot be said to be against
the ethic of secularism or to the objective of the Karnataka Education Act, 1983.
• Sudhanshu Dhulia, J.
• By asking the girls to take of their hijab before they enter the school gates, is first an invasion on their privacy, then
it is an attack on their dignity, and then ultimately it is a denial to them of secular education. These are clearly
violative of Article 19(1)(a), Article 21 and Article 25(1) of the Constitution of India
• ORDER: IN VIEW OF THE DIVERGENT VIEWS EXPRESSED BY THE BENCH, THE MATTER BE PLACED BEFORE
HON'BLE THE CHIEF JUSTICE OF INDIA FOR THE CONSTITUTION OF AN APPROPRIATE BENCH.
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CULTURAL AND EDUCATIONAL RIGHTS

(ARTICLES 29 AND 30)
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• 29. Protection of interests of minorities.—

• (1) Any section of the citizens residing in the territory of India

or any part thereof having a distinct language, script or
culture of its own shall have the right to conserve the same.
• (2) No citizen shall be denied admission into any educational
institution maintained by the State or receiving aid out of
State funds on grounds only of religion, race, caste, language
or any of them.
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ARTICLE 29: PROTECTION OF INTERESTS OF

MINORITIES: CLAUSE(1)
• Clause (1) gives the right to every section of the citizens which has a
distinct language, script or culture to conserve the same.
• If such sections of citizens desire to preserve their language, script or
culture the state would not stand in their way.
• Minority communities can effectively conserve their language script or
culture by and through educational institutions and therefore
• Right to establish and maintain educational institutions of its choice is a
necessary concomitant to the right to conserve its distinct language script
or culture, and that is what article 30(1) confers on all minorities.
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ARTICLE 29(1), NEITHER CONTROLS THE SCOPE OF ARTICLE 30 NOR IS

CONTROLLED BY THAT ARTICLE. THE SCOPE OF THE TWO IS DIFFERENT
Article 29 Article 30
1. extends to all sections of citizens having a 1. is confined to religious and linguistic

distinct language, script or culture minorities
2. confined to those minorities which have a 2. extends to all religious and linguistic
distinct language, script or culture minorities.
3. gives a very general right to conserve the 3. gives only the right to establish and
language, script or culture administer educational institutions of a
minority's choice
4. the right may be exercised without
establishing educational institutions 4. the right need not be exercised for
conserving language script or culture.
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JAGDEV SINGH SIDDHANTI V. PRATAP SINGH DAULTA,

AIR 1965 SC 183
• The Appellant, who was declared elected to the House of the People was alleged to have used corrupt
practices to promote communal anonymity between the Hindu and the Sikh communities which is prohibited by
section 123(3), Representation of People Act 1951.
• Two instances were given by the respondent, a defeated sitting member, in support of his allegations:
• (1). that the appellant by taking the help of the Hindi agitation propagated that the respondent was an enemy
of the Arya Samaj and Hindi language and
• (2). that the appellant used a religious symbol- flag called “OM DHWAJ” -In his meetings.
• the High Court accepted the contention of the respondent and set aside the election of the appellant.
• But the Supreme Court allowed the Appeal and set aside the judgement of the Punjab High Court.
“right to conserve the language of the citizens includes the right to agitate for the protection of the language.
Political agitation for conservation of the language of a section of citizens cannot, therefore, be regarded as
corrupt practice within the meaning of section 123 sub clause 3 of the Representation of the People Act…
unlike article 19 (1) article 29 (1) is not subject to any reasonable restrictions.”
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CLAUSE (2)
relates to admission into educational institutions which are maintained or aided by State funds.
Article 15 also prohibits discrimination against citizens on grounds of religion etc.

But the scope of the two articles is different
ARTICLE 15(1) ARTICLE 29(2)

1. protects citizens only against the state 1. protects citizens against the state or anybody
who denies the right conferred by it.
2. protects citizens against discrimination
generally 2. protects only against a particular species of
discrimination, namely denial of admission into
3. specific Grounds on which educational institutions maintained or created
discrimination is prohibited are not the by the state.
same in the two articles: “language” is 3. “ Place of birth” and “sex” do not occur in the
not mentioned in the Article Article
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ST. STEPHEN'S COLLEGE V. UNIVERSITY OF DELHI,

AIR 1992 SC 1630.

• Article 29 (2) is a special Article and is a controlling provision in respect of admission to
colleges.
• The right to admission into an educational institution is a right that an individual citizen
has as a citizen and not as a member of any community or class of citizens.
• Hence a school run by a minority if it is aided by State funds cannot refuse admission to
children belonging to other communities.
• The court held that a minority community may reserve up to 50% seats for the members
of its own community in an educational institution established and administered by it
even if the institution is getting aid from the state.
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T.M.A. PAI FOUNDATION V. STATE OF KARNATAKA,

AIR 2003 SC355,

11 JUDGE BENCH
• while agreeing with St. Stephen's College case, the Court has relaxed the 50 % limit and
has held that a reasonable percentage may be fixed by the state in which the minority
institution is situated.
• In the words of chief Justice Kripal
• “ the best possible way is to hold that as long as the minority educational institution
permits the admission of citizens belonging to the non-minority class to a reasonable
extent based upon merit, it will not be an infraction of Article 29(2), even though the
institution admits students of the minority group of its own choice for whom the institution
was meant.”
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STATE OF BAMBAY V. BOMBAY EDUCATION SOCIETY,

AIR 1954 SC 561
• The State cannot direct minority educational institutions to restrict admission to the members of
their own community only.
• A Bombay government circular order directing the school with English medium to admit only
anglo-Indians and citizens of non-Asiatic decent in the classes taught in English language was
held ultra vires, because
• the order denied to all pupils whose mother tongue was not English, admission into any school
where the medium of instruction was English.
• The order would not be valid even if the object for making it is the promotion or advancement of
the national language. The court said:
The effect of the order involves infringement of a fundamental right under Article 29, and that effect is
brought about by denying admission only on the ground of language.”
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THE CONSTITUTION (FIRST AMENDMENT)

ACT 1951
• To overcome courts interpretation in validating a special provision for admission to a weaker
sections of the society ( State of Madras v. Champakam Dorairajan, AIR 1951 SC 226).
• The Constitution (First Amendment) Act 1951 added clause 4 to Article 15 to the effect that nothing
in articles 15 and 29(2) shall prevent the state from making any special provision for the
advancement of any SEBCs of citizens or for the Scheduled Castes and Scheduled Tribes.
• Accordingly, the state is now empowered to reserve seats in state colleges for any SEBC of
citizens or for the Scheduled Castes and Scheduled Tribes.
• To overcome similar interpretation the Constitution (93rd Amendment) has introduced clause 5 in
Article 15 which however has no reference to article 29(2).
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UNAIDED INSTITUTIONS
• While ordinarily, educational institutions established in pursuance of articles 29 (1) or 30(1) are
subject to article 29(2) they, are not so if they do not receive any aid from the state.
• Therefore in the matter of admission, they are free from the constraints of article 29(2).
• The unaided majority Institutions, however, do not stand in the same position as the unaided
minority institution.
• The latter are free to admit students exclusively from the minority community subject to the
requirement of merit inter se.
• In contrast, the former may be subjected to any other reasonable restrictions in public Interest.
46
23
06-11-2022
P.A. INAMDAR V. STATE OF MAHARASHTRA,

(2005) 6 SCC 537,
• the court held that:

•
“Neither the policy of reservation can be enforced by the state nor any quota for
percentage of admissions can be carved out to be appropriated by the state in a
minority or non minority unaided educational institution.
• Minority Institutions are free to admit students of their own choice, including students of
non-minority communities as also members of their own community from other states,
both to a limited extent only and not in a manner and to such an extent that their minority
educational institution status is lost.”
• Later, article 15(5) has abrogated the above statement insofar as it
applies to non-minority Institutions.
47
SOCIETY FOR UNAIDED PRIVATE SCHOOLS OF

RAJASTHAN V. UNION OF INDIA,
AIR 2012 SC 3445 (3 JUDGE BENCH)
• The court upheld the obligation of unaided non-minority

educational institutions and also of aided minority
institutions to admit 25% of students from the
economically weaker sections of society in the age group
of 6 to 14 years
• As required by the Right of Children to Free and
Compulsory Education Act 2009.
48
24
06-11-2022
PRAMATI EDUCATIONAL AND CULTURAL TRUST V. UNION OF INDIA,

AIR 2014 SC 2114 (5 Judge Bench)
• Article 29 (1) confers on any section of the citizens a right to conserve its own language,
script or culture by and through educational institutions and makes it obvious that a
minority could conserve its language, script or culture and, therefore, the right to
establish institutions of its choice is a necessary concomitant to the right to conserve its
distinctive language, script or culture and that right is conferred on all minorities by
Article 30(1).
• The Court partially overruled Society for unaided private schools of Rajasthan v.
Union of India case by holding that the 2009 Act in so far it is made applicable to aided
minority schools is ultra vires the Constitution.
----------
49
30. RIGHT OF MINORITIES TO ESTABLISH AND

ADMINISTER EDUCATIONAL INSTITUTIONS.—

• (1) All minorities, whether based on religion or language, shall have the right to establish and
administer educational institutions of their choice.
• [(1A) In making any law providing for the compulsory acquisition of any property of an
educational institution established and administered by a minority, referred to in clause (1), the
State shall ensure that the amount fixed by or determined under such law for the acquisition of
such property is such as would not restrict or abrogate the right guaranteed under that clause.] Ins.
by the Constitution (Forty-fourth Amendment) Act, 1978, s. 4 (w.e.f. 20-6-1979).
• (2) The State shall not, in granting aid to educational institutions, discriminate against any
educational institution on the ground that it is under the management of a minority, whether based
on religion or language.
50
25
06-11-2022
CLAUSE (1)
Clause (1) gives all minorities, whether based on religion or language, the right
1.To establish and
2.to administer educational institutions of their choice.
Articles 29 and 30 are grouped together, it will be wrong to restrict the right of
minorities to establish and administer educational institutions of their choice under
Article 30(1) only to educational institutions concerned with the conservation of
the language, script or culture of the minorities.
51
52
26
06-11-2022
SCOPE OF ARTICLE 30
• The scope of article 30 rests on the fact that the right to

establish and administer educational institutions of their choice
is guaranteed only to linguistic or religious minorities and no
other section of citizen has such a right.
• Further Article 30(1) gives the right to linguistic minorities
irrespective of their religion. It is, therefore, not at all possible
to exclude secular education from Article 30.
53
MINORITIES
• The expression “minorities” in Article 30 is not defined in the Constitution.

• The Supreme Court has, however, observed and decided cases on the basis that it
refers to any community which is numerically less than 50% of the population of a
particular state as a whole when a law about which the question of minority is to be
determined is a State Law (Kerala Education Bill, 1957,re, AIR 1958 SC 956).
• A community, which is a minority in a specific area of the state though a majority in the
state as a whole, would not be treated as a minority for the purpose of this Article.
• A minority could be determined in relation to the entire population of the country only if
the law applies to the entire country such as the Right of Children to Free and
Compulsory Education Act 2009 (Society for Unaided Private Schools of Rajasthan
v. Union of India, AIR 2012 SC 3445).
54
27
06-11-2022
…MINORITIES
• If the law in question is a state law, the minorities must be determined in relation to the
population of that state( D A V College v. State of Punjab, AIR 1971 SC 1731).
• If the law in question is a State Law, the minorities must be determined in relation to the
population of that state.
• But the fact that the expression “minorities” in article 30(1) is used as distinct from any
sections of citizens in article 29 (1) lend support to the view that article 30(1) deals with
national minorities or minorities recognised in the context of the entire nation.
• In that case however, Article 30(1) would become inapplicable to the national majority even if
it is a minority in any particular state, for example Hindus in Punjab or in Jammu and
Kashmir.
55
T.M.A PAI FOUNDATION V. STATE OF

KARNATAKA, AIR 2003 SC 355

• an 11 judge bench of the court in the case has held that in view of the past precedents
as well as the fact that states have been organised on linguistic lines, minority status
shall be determined on the basis of state and not the whole of India.
• This applies both to linguistic as well as religious minorities.
• Transfer of education from state to concurrent legislative subject may make a difference
in this regard because those religious or linguistic groups which could avail of Article
30(1) when a law applied only to a state could not make that claim when the law has all
India application.
• In that case linguistically every section of the society becomes minority because no
language is the mother tongue of 50% or more people on all India basis. (The
percentage of Indian population with Hindi as their mother tongue: 43.63%, as 2011
census data).
56
28
06-11-2022
…MINORITIES
• The approach of the court in defining minorities appears to be persuasive and practical in our context,
but it is likely to break down in those States where no religious or linguistic community constitutes more
than 50% of the total population of that state.
• unless we invoke the definition of Hindu given in explanation 2 of article 25 (2),
• it is also likely to break down in case of traditional religion of India such as joiner for Buddhist if they
claimed minority status under article 30.
• it is also unlikely that article 30 was intended to protect a educational Entrepreneur who constitutes
majority in his own state but crosses over to a neighbouring or any other state with a view to take
advantage of that article.
• such instances are fast growing with education having become of profitable industry. in view of such
questions numerical strength cannot be the sole guide in determining minorities for the purpose of
article 30.
57
DAYANAND ANGLO VEDIC (D.A.V.) COLLEGE TRUST AND MANAGEMENT

SOCIETY V. STATE OF MAHARASHTRA (2013) 4 SCC 14)
• vulnerability of a religion or a language must be an essential element in

determination of minority under that article. realising this anomaly the court has
finally clarified:
•
“the right conferred by article 30 of the Constitution cannot be interpreted as if
irrespective of the persons who established the institution in the state for the
benefit of persons who are minority, any person, be it non minority in other
place, can administer and run such Institution”.
58
29
06-11-2022
A MINORITY OF PERSONS RESIDING IN INDIA

• Although article 30(1) does not speak of citizens, the minority competent to claim the protection of
that Article must be a minority of persons residing in India.
• In S.K. Patro v. State of Bihar, AIR 1970 SC 259, with reference to an educational institution
established in 1854, when there was no independent Indian citizenship apart from the citizenship
of the British Empire,
• the court observed that Article 30 does not expressly refer to citizenship as a qualification for the
members of minority.
• But it clarified that it does not confer upon foreigners not resident in India the right to set up
educational institutions of their choice.
• This position has been further clarified in St. Stephen's College v. University of Delhi, AIR 1992
SC 1630,
• where the court observed that the minority under Article 30 must necessarily mean those who form
a distinct and identifiable group of citizens of India.
59
CHOICE
• The right conferred on minorities is to establish educational institutions of

their choice.
• It does not say that minorities based on religion should establish
educational institutions for teaching religion or that linguistic minorities
should have the right to establish educational institutions for teaching
their own language only.
• The article leaves it to their choice to establish such educational
institutions as will serve both the purposes, namely the purpose of
conserving their religion, language or culture, and
• also the purpose of giving of thorough general education to their children.
60
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06-11-2022
ESTABLISH AND ADMINISTER

• The world “ establish” and “ administer” in Article 30 must be read conjunctively so that
minorities will have the right to administer educational institutions of their choice
provided they have established it.
• The world “ establish” means to “bring into existence”.
• In S. Azeez Basha v. Union of India, AIR 1968 SC 662, It was held that as the Aligarh
Muslim University was established by the central legislature under an Act of 1920, the
Muslim minority could not claim to administer it.
• It is not necessary that the whole community must be involved in the establishment of an
educational institution.
• it may be established even by a single philanthropic individual with his own means in the
interest of the minority community.
61
RECOGNITION AND AFFILIATION

• Article 30 (1) Does not speak of recognition and affiliation, and the court has
also consistently taken the view that there is no fundamental right to recognition
or affiliation
• yet affiliation and recognition cannot be denied or subjected to conditions that
would rob the minorities’ right under article 30 (1) of its substance, i.e. on
conditions that would describe the minorities to establish and administer
educational institutions of their choice.
• But in the matter of recognition and affiliation the authorities concerned are
always competent to check whether the recognition for affiliation is being sought
for educational purposes or some other ulterior reason such as making money
in the name of education.
• Also they may require the minority institution to observe the same educational
standards as required from other institutions.
62
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06-11-2022
RECEIVING AID FROM THE STATE

• An institution established by a minority and receiving aid from the State would
not lose its minority character by admitting members of any other community.
• Indeed, the right conferred under Article 30(1) is to be reconciled with the right in
article 29 (2)
• which provides that no citizen shall be denied admission into any educational
institution maintained by the State or receiving aid out of State funds on grounds
only of religion, race, caste, language or any of them.
• St. Stephen’s College v. University of Delhi, AIR 1992 SC1630, the court held
that the minority community may reserve up to 50% of the seats in its
educational institutions for the members of its community.
63
T.M.A. PAI FOUNDATION V. STATE OF KARNATAKA,

AIR 2003 SC355,
• The Supreme Court clarified that the right percentage cannot be stipulated.
• It has to be left to communities to prescribe a reasonable percentage having regard to the
type of Institution, population and educational needs of minorities.
• the dissenting judges, however, seriously doubted whether Article 29(2) could so curtail the
rights of admission of minorities in their educational institutions.
• In the Pai Foundation case, the court also drew the distinction between
• (1) admissions at school and undergraduate levels where merit does not play much role, and
• (2) admissions at Higher Education and professional levels where merit plays an important role.
• while no or very little state regulation is needed in the former, it is definitely needed in the
latter.
• Unlike other Institutions minority Schools cannot be compelled to admit a certain percentage
of SC and ST students.
64
32
06-11-2022
REGULATION
• The right conferred on religious and linguistic minorities to administer educational

institutions of their choice though couched in absolute terms is not free from
regulation.
• For the application of this right minority, Institutions are divided into three classes
(1) an institution that neither seek aid nor recognition from the state
(2) institutions that seek aid from the state and
(3) institutions which seek recognition but not aid
• While the Institutions of class (1) cannot be subjected to any regulations except
those emanating from the general laws of the land such as labour, contract or tax
laws,
• the institutions in classes (2) and (3) can be subjected to regulations about the
academic standards and to the better administration of the institution in the interest
of that institution itself.
65
SIDHRAJBHAI SABBAI V. STATE OF GUJARAT,

AIR 1963 SC 540

• The Supreme Court held that only such regulations may lawfully be imposed either by
legislative or executive action as a condition of receiving the grant for recognition as are
directed to making the institution while retaining its character as a minority institution,
effective as an educational institution.
• Thus, regulations, as are in the interest of efficiency of instructions or discipline, health,
sanitation, morality, public order and the like, may undoubtedly be applied but not others.
• The court observed:
• “ If every order which while maintaining the formal character of a minority institution destroys
the power of administration is held justifiable because it is in the public or national interest,
though not in its interest as an educational institution, the right guaranteed by article 30(1)
will be but a teasing illusion, a promise of unreality.”
66
33
06-11-2022
D. A. V. COLLEGE V. STATE OF PUNJAB,

AIR 1971 SC 1731
• The petitioners, Arya Samajis, claiming themselves as a minority community questioned the compulsory
affiliation, and its conditions to the Guru Nanak University of Institutions managed and administered by them.
• The University made provisions which prescribed certain conditions required for colleges seeking affiliation.
• A college should have a regularly constituted governing body consisting of not more than 20 persons
approved by the Senate and including, among others, two representatives of the University and the
Principal of the college ex-officio.
• the staff initially as well as subsequently appointed would be approved by the vice-chancellor.
• The Supreme Court held that this provision interfere with the rights of management of the Institutions run by
minorities and therefore, violated articles 29 (1) and 30 (1).
• A University cannot appoint its own nominees to the governing body of a private college since that would
constitute a direct interference with the minority's right to Management.
• So also is the case with the appointment of teachers in a private college.
67
AHMEDABAD ST. XAVIER’S COLLEGE SOCIETY V. STATE OF GUJARAT,

AIR 1974 SC 1389 (NINE-JUDGE BENCH)
• The Society of Jesus, the petitioners, was running St. Xavier’s College at Ahmedabad with the
object of providing higher education to Christian students.
• However, children of all classes and creeds were admitted to the college.
• The college was an affiliated college under the Gujarat University Act 1949.
• The petitioners challenged provisions of the Gujarat University (Amendment) Act 1972, which
provided for
• university nominees in the governing and selection bodies of all colleges,
• conversion of affiliated colleges to constituent colleges,
• approval of the vice chancellor for disciplinary action against members of teaching staff, and
• reference of disputes between the staff and management to arbitration in which their Umpire had to be
the vice chancellor's nominee.
68
34
06-11-2022
…AHMEDABAD ST. XAVIER’S COLLEGE SOCIETY

• The Court held that these provisions could not be applied to minority colleges.
• The Court also emphasized that the right conferred on religious and linguistic minorities to administer
educational institutions of their choice is not absolute.
• This right is not free from regulation.
• Just as regulatory measures are necessary for maintaining the educational character and content of minority
Institutions,
• Similarly regulatory measures are necessary for ensuring orderly efficient and sound administration.
• Autonomy in administration means the right to administer effectively and to manage and conduct the affairs of
the institution.
• The distinction is between a restriction on the right of the administration and or regulation prescribing the
manner of Administration.
• The choice in the personnel of management, the appointment of teachers, the admission of students and the
use of properties and assets for the benefit of the institution are parts of the administration.
• Restriction on the right of the administration imposed in the interest of the general public alone and
not in the interests of and for the benefit of minority institutions concerned will affect the autonomy of
the administration.
69
ALL SAINTS HIGH SCHOOL V. GOVERNMENT OF ANDHRA PRADESH,

AIR 1980 SC 1042,
• Justice Fazal Ali summarised three important tests which would determine whether or not the
action of the government amounts to interference with the management of the Institution:
1. in order that the management of the institution is free from outside control, the founders must be
permitted to mould the institution as they think fit
2. no part of the management could be taken away by the government and vested in another body without
an encroachment upon the guaranteed right enshrined in Article 30(1) of the constitution and
3. there is, however, an exception to this general rule which is that the government or the University can
adopt regulatory measures in order to improve the educational standards which concern the body
politic and are dictated by considerations of the advancement of the country and its people, so that the
minority institution may not under the guise of autonomy for the exclusive right of management be allowed
to fall below the standard of excellence that is required of educational institutions.
70
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06-11-2022
FRANK ANTHONY PUBLIC SCHOOL EMPLOYEES’ ASSOCIATION V. UNION OF INDIA

AIR 1987 SC 311
• .Section 12 of Delhi School Education Act 1973 exempted unaided minority Institutions from those
provisions of the Act which provided for the code of conduct for the employees of the schools, the
procedure for disciplinary proceedings and the penalties to be imposed on Delhi delinquent employees,
scales of pay and allowances, etc., and constitution of Tribunal to hear appeals against disciplinary
actions.
• The petitioners, employees of the Frank Anthony Public School- an unaided minority school, who were
demanding from the management of the school parity of pay scales and allowances, etc. with their
counterparts in the state-aided schools and some of whom had been suspended for the expression of
such demand, approached the supreme court to invalidate Section 12 under article 14.
• Rejecting the defence of the Union of India and the school management that the application of those
provisions from which section 12 exempts the unaided minority schools shall be violative of the rights of
minorities under article 30(1), Justice Chinnappa Reddy declared that section 12 violated article 14.
• Consequently, the provisions of the Act became applicable to unaided minority schools also.
71
PRAMATI EDUCATIONAL AND CULTURAL TRUST V. UNION OF INDIA

AIR 2014 SC 2114

R. M. LODHA, A. K. PATNAIK, S. J. MUKHOPADHAYA, DIPAK MISRA, F. M. IBRAHIM KALIFULLA , JJ
HELD:
• Clause (5) of Art. 15 of the Constitution enables the State to make a special provision, by law, for the
advancement of socially and educationally backward classes of citizens or for the Scheduled Castes and
Scheduled Tribes.
• The minority character of the minority educational institutions referred to in Cl. (1) of Art. 30 of the
Constitution, whether aided or unaided, may be affected by admissions of socially and educationally
backward classes of citizens or the Scheduled Castes and the Scheduled Tribes and
• it is for this reason that minority institutions, aided or unaided, are kept outside the enabling power of the
State under Cl. (5) of Art. 15 with a view to protect the minority institutions from a law made by the majority.
• The minority educational institutions, by themselves, are a separate class and their rights are
protected under Art. 30 of the Constitution, and, therefore, the exclusion of minority educational
institutions from Art. 15(5) is not violative of Art. 14 of the Constitution.
------------
72
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06-11-2022

DR. RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY

RIGHT TO FREEDOM OF RELIGION

ATUL KUMAR TIWARI’S CLASS

25. FREEDOM OF CONSCIENCE AND FREE PROFESSION, PRACTICE

AND PROPAGATION OF RELIGION

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THE RIGHT TO FREEDOM OF RELIGION

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

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COMMISSIONER HINDU RELIGIOUS ENDOWMENTS V. SRI LAKSHMINDRA THIRTHA

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

ATUL KUMAR TIWARI’S CLASS

DR. RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY

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

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

ATUL KUMAR TIWARI’S CLASS

CERTAIN GENERAL PROVISIONS

ATUL KUMAR TIWARI’S CLASS

DR. RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY

Article 25(1) guarantees to every person:

ATUL KUMAR TIWARI’S CLASS

RATILAL PANACHAND GANDHI V. THE STATE OF BOMBAY,

ATUL KUMAR TIWARI’S CLASS

BIJOE EMMANUEL V. STATE OF KERALA,

(1986) 3 SCC 615

ATUL KUMAR TIWARI’S CLASS

ESSENTIAL RELIGIOUS PRACTICES

Aacharya Jagdishwaranand Avadhuta v. Commissioner of Police,

ATUL KUMAR TIWARI’S CLASS

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

(20015) 8SCC 439,

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

ATUL KUMAR TIWARI’S CLASS

Riju Prasad Sarma v. State of Assam,

ATUL KUMAR TIWARI’S CLASS

SHAYARA BANO V. UNION OF INDIA,

ATUL KUMAR TIWARI’S CLASS

ATUL KUMAR TIWARI’S CLASS

“TO PROFESS RELIGION”

ATUL KUMAR TIWARI’S CLASS

SUBHASH DESAI V. SHARAD J RAO,

(1994) SUPP 2 SCC 446,

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

ATUL KUMAR TIWARI’S CLASS

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

ATUL KUMAR TIWARI’S CLASS

RIGHT TO PROPAGATE ANY RELIGION

ATUL KUMAR TIWARI’S CLASS

SRI SRI SRI LAKSHAMANA YATENDRULU V. STATE OF ANDHRA

PRADESH, (1996) 8 SCC 705

ATUL KUMAR TIWARI’S CLASS

RESTRICTIONS ON FREEDOM OF RELIGION

ATUL KUMAR TIWARI’S CLASS

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

COLONY WELFARE ASSOCIATION, (2000) 7 SCC 282,