Article 25-28

Right to freedom of religion

RIGHT TO FREEDOM OF RELIGION

 Article 25 reads: (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) 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, Jain or Buddhist religion, and the
reference to Hindu religious institutions shall
be construed accordingly
What is Religion?

 The term ‘religion’ has not been defined in the

Constitution and it is hardly susceptible of any
rigid definition. The Supreme Court has defined it
in number of cases.
 A religion is certainly a matter of faith and is not
necessarily theistic.
 Religion has its basis in “a system of beliefs or
doctrines which are regarded by those who
profess that religion as conducive to their spiritual
well being
 Subject to certain limitations, Article 25
confers a fundamental right on every person
not merely to entertain such religious beliefs
as may be approved by his judgment or
conscience but also exhibit his beliefs and
ideas by such overt acts and practices which
are sanctioned by his religion.
Freedom of Conscience

 Freedom of 'conscience' is absolute inter

freedom of the citizen to mould his own
relation with god in whatever manner he like.
The Courts have defined freedom of
conscience as the freedom of a person to
entertain any belief or doctrine concerning
matters, which are regarded by him or her to
be conducive to his or her spiritual well
 The term ‘Secular’ was added to the
Preamble by the 42nd Constitution
Amendment Act of 1976. The Indian
Constitution embodies the positive concept
of secularism i.e., placing all religions in the
same status and accessible to the equal
support from the state, through the
provisions contained in Articles 25-28 in Part
III of the Constitution.
 Stainislaus Rev. V. State of M.P(AIR 1975 MP)
163 it was observed the freedom of one cannot
encroach upon a similar freedom belonging to
other persons. Freedom of religion does not mean
forcible or fraudulent conversion and any such
conversion would be violative of this article.The
provision of this Article is not limited only to
citizens of India but it is also available to the
aliens, and individuals exercising their rights
individually or through institutions.
Restrictions to Right to Freedom of
Religion:

 1. Morality
 No state can allow immorality in the name of
religious freedom, nor is it desirable. Religion aim
at the moral well being man but sometimes ,
certain religious practice have resulted immoral
acts, It is the duty of the state to see that such
immoral practice under the grab of religious
freedom are not allowed to flourish in the
society .
Health

 Church of God (Full Gospel) in India v.

K.K.R.M.C. Welfare Association,
 the Supreme Court has held that in the
exercise of the right to religious freedom
under Article 25 and 26, no person can be
allowed to create noise pollution or disturb
the peace of others. The custom of religious
prayer through the use of loudspeaker is not
an essential element of any religion.
 In that the appellant is the Church of God (Full Gospel)
located at K.K.R. Nagar, Madhavaram, High Road,
Chennai. It has a prayer hall for the Pentecostal
Christians and provided with musical instrument such as
drums set, triple bango, guitar etc. The K.K.R. Majestic
Colony welfare association made a complaint to the
Tamil Pollution Control Board starting therein that
praying in the Church were recited by using
loudspeakers, drums, and other sound producing
instrument causing noise pollution and nuisance to the
normal life of the resident of the colony.
 The Supreme Court held that a person’s
religious freedom is subject to “public order,
morality and health”. Even if there is any such
religious practice it cannot be used to violate
right of others or to disturb their peace.
 For this the constitution has empowered the
state to declare illegal such immoral practice
or to regulate them on the ground of
morality. Such immoral religious practices
included Divadasi System, sati system,
gambling on deepavli, etc
Acharya Jagdishwaranand vs
Commissioner Of Police, Calcutta
 In an Ananda Marg case, 1984 AIR 512
 the Supreme Court held valid the order issued by
the Calcutta Police Commissioner under section
144 of the Code of Criminal Procedure which
prohibited the ‘Thandava dance’ in public places.
The Court asserted that carrying lethal weapons
like daggers, and carrying human skullsposed
danger to public order and morality and,
therefore, the Police Commissioner’s order to ban
Thandava dance from the public places was valid.
 Mohd. Hnif Quareshi v. State of Bihar the
petitioner claimed that the sacrifice if cows on the
occasion of Bakraeid were essential part of his
religiom and therefore the state law forbidding
the slaughter of cows was violative of his right to
practice religion. The Court rejected this argument
and held that the sacrifice of cow on the Bakraeid
was not an essential part of Mohammedan
religion and hence could be prohibited by state
under clause (2) (a) of Article 25
 Article 29(1) deal with right of any section of
the citizens residing in India to preserve their
language, script or culture. In order to invoke
Article 29(1), all that is essential is that a
section of the citizens, residing in India
should have a distinct language, script or
culture of its own. If so, then they will have
the right to conserve the same.
 Article 29(2) prohibits discrimination in
matters of admission into educational
institutions on grounds only of religion, race,
caste, language or any of them. This provision
guarantees the rights of individual
irrespective of the community to which he
belongs.
 Article 30 deals with another aspect of collective freedom of
religion:
 (1) All minorities, whether based on religion or language, shall have
the right to establish and administer educational institutions of their
choice.
(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.

The object behind Article 29 & 30 is the recognition and preservation

of the different types of people, with diverse languages and different
beliefs, which constitute the essence of secularism in India.
 the importance which the Constitution attaches to protective
measures to minorities under Article 30 (1), the minority aided
educational institutions are entitled to prefer their community
candidates to maintain the minority character of their institutions
subject to, of course, in conformity with the university standard.
 The State may regulate the intake in this category with due
regard to the need of the community in the area which the
institution is intended to serve. But in no case such intake shall
exceed 50 per cent of the annual admission. The minority
institutions shall make available at least 50 per cent of the annual
admission to members of communities other then the minority
community.
 Articles 29 and 30 of the Constitution are
grouped under the heading "Cultural and
Educational rights". These both Articles
protect and guarantee certain collective
rights for the minorities to help them
preserve their language, religion and culture.
These rights also contribute to preserve the
rich diversity of the country and give minority
a sense of security.
 S. Azeez Basha v Union of India, it was held that the
Aligarh Muslim University was established by the
Central legislature Act of 1920. It could not therefore be
said to have been establish by the Muslim community.
No degree granting institution can be established in
India without a statute. Accordingly, the validity of a
statute regulating administrative arrangements in the
University could not be adjudged under Article 30(1).
The material factor to attract Article 30(1) is the
establishment of the institution by the minority
concerned.
 St. Stephen's college vs. University of Delhi and
others. ( WP(C)5226/2008 Decided on 21-8-2008
by Delhi H.C. - The right of Minority educational
institutions to appoint the head of the
institutions cannot be taken away by any rule or
regulation or by any enactment made by the
state even if the institution is receiving 100% aid.
A law which interferes with the minority choice
of Principal would be violative of Article 30(1).
 T.M.A. Pai Foundation vs. State of Karnataka
(AIR 2003 SC 355) An aided minority
educational institution would be entitled to
have the right of admission of students
belonging to the minority group.
3 SAFEGUARDS TO DETENU UNDER
PREVENTIVE DETENTION LAWS

 Preventive Detention : A person can be put in

jail / custody for two reasons.
 One is that he has committed a crime.
Another is that he is potential to commit a
crime in future. The custody arising out of the
later is preventive detention and in this, a
person is deemed likely to commit a crime.
Thus Preventive Detention is done before the
crime has been committed.
 The definition of Preventive detention itself is
so confusing. For example: How one can say
that a person will do a crime in future? What
are the implications of arresting a person
without having committed a crime? Why
Preventive Detention in peacetime. Isn’t it
against the safeguards of our own citizens as
provided by Article 22?
 The preventive detention laws are repugnant
to modern democratic constitutions. They are
not found in any of the democratic countries.
In England, the preventive detention law was
resorted to only during the time of war. Of
the provisions of the “Preventive Detention”
are unlawful in most countries like USA & UK,
then why we India has such thing?
FOR YOU TO READ

 The answer of above question is as follows:

India is a country having multi-ethnic, mutli-
religious and multilingual society. Caste and
communal violence is very common in India.
Apart from that the circumstances at the
time , when our constitution came in force
demanded such provisions.
 This is evident from following statement of
Dr. Bhimrao Ambedkar: “….in the present
circumstances of the country, it may be
necessary for the executive to detain a
person who is tempering either with the
public order or with the defense services of
the country. In such case, I don’t think that
the exigency of the liberty of an individual
shall be above the interests of the state.
 However, the provisions of the constitution seem to
be ambiguous and this ambiguity has been tried to do
away with some provisions. These provisions are
mentioned in Article 22 (1), 22(5), 22 (6). Here is a
summary of these provisions.
 Every case of preventive detention must be
authorized by law and not at the will of the executive.
 The Preventive detention cannot extend beyond a
period of 3 months .
 Every case of preventive detention must be placed before an
Advisory Board composed of Judges of the High Court (or
persons qualified for Judges of the High Court)
 The case must be presented before the Advisory Board
within 3 months.
 A continued detention after 3 months must be having a
“favours of the Advisory Board”.
 The person will be given opportunity to afford earliest
opportunity to make a representation against the preventive
detention.
 No person can be detained indefinitely.
 Article 22 (7) provides exception to the above
provisions.
 This Article mandates that: When parliament
prescribes by law the circumstances under which
a person may be kept in detention may be kept in
detention beyond 3 months without the opinion
of the advisory board.
 Parliament by law can also describe under the
same law, the maximum period of detention.
Some Preventive Detention laws

 Post Independence, The first Preventive Detention

Act was passed in 1950. The validity of this act was
challenged in the Supreme Court in the Gopalan v/s
State of Madras Court. The Supreme Court held
this act constitutionally valid except some
provisions. This act expired in 1969, and before it
expired, it was amended for 7 times, each
expansion was to make it valid for 3 more years
and this it was extended till 31 December 1969.
 In 1971, the Maintenance of Internal Security
Act (MISA) was passed. MISA was basically a
modified version of the PDA Act. It was
abolished in 1978.
 Another law, Conservation of Foreign
exchange and Prevention of Smuggling
Activities (COFEPOSA) was enacted in 1974
and it continued.
 In the heat of the terrorism in Punjab the Terrorist
& Disruptive Activities (Prevention) Act or
infamous TADA was enacted in 1985. It was
renewed in 1989, 1991 and 1993 and lapsed in
1995 due to increasing unpopularity due to
widespread allegations of abuse. The main abuse
was that a confession before a police officer, even
though being given under torture, was admissible
as evidence in court.
 TADA was later succeeded by another
controversial Prevention of Terrorist Activities
Act (POTA) during 2002-04. This act was
supported by the NDA Government but later
was scrapped by the UPA government.
 After the Bombay attacks of November 26,
2008 parliament enacted another anti terror law
known as Unlawful Activities (Prevention) Act
 The constitutional philosophy of personal liberty is an
idealistic view, the curtailment of liberty for reasons
of State’s security; public order, disruption of national
economic discipline, etc. are envisaged as a necessary
evil to be administered under strict constitutional
restrictions. India is a large country and many
separatist tendencies against the national security
and integrity existed and existing and a strict law is
required to counter the subversive activities.
 The number of persons detained in these acts is
not a very large and due attention is made before
preventive detention.
 Having such kind of acts has a restraining
influence on the anti-social and subversive
elements. The state should have very effective
powers to deal with the acts in which the citizens
involve in hostile activities, espionage, coercion ,
terrorism, etc.
Dpsp Part IV (Article 36 -51)

 INTRODUCTORY :
The Directive Principles of State Policy (DPSP)
embodies in Part IV of the Constitution contains
certain obligations of the State.
The Directive Principles according to
Dr. B.R. Ambedkar, ‘have a great value for they lay
down that our ideal is economic democracy’. Thus,
the Constitutional ideal is not only political democracy
but also economic democracy and for that reason only
DPSP have been included in the Constitution.
 They are the instruments of instructions in the
governance of the country.
 The main intention of including Part IV in the
Constitution is that it may form a set of instructions
issued to the prospective lawmakers and executives for
their guidance for good governance.
 Part IV enjoys a very high place in the Constitutional
scheme as it imposes obligations on the State to take
positive actions for creating socio-economic conditions
in which there will be egalitarian social order with social
and economic justice to all.
 The Directive Principles of State Policy
contained in Part IV of the Constitution of
India, are not enforceable by any Court, but
the principles laid down therein are
considered fundamental in the governance of
the country, making it the duty of the State
to apply these principles in making laws to
establish a just society in the country
RELATIONSHIP BETWEEN DIRECTIVE PRINCIPLES
OF STATE POLICY AND FUNDAMENTAL RIGHTS:

 JUDICIAL APPROACH
 The Preamble to the Constitution of India records
the solemn resolve of the Indian People to
establish a “socialist” society based on socio-
economic justice. In attaining this ideal of socio-
economic justice, India is committed to the
democratic way of life, and so the first declaration
made by the Constitution is that India is a
Sovereign, Socialist, Secular, Democratic,
Republic.
 After referring to India as a Sovereign,
Socialist, Secular, Democratic, Republic, the
Constitution in its Preamble, has further
declared its resolve to secure certain basic
objectives to all its citizens, and amongst
these objectives an important place is given
to social, economic and political justice
 In other words, the Constitution emphatically
declares that the socialist democratic
republic of India shall be a welfare
Statecommitted to the pursuit of the ideal of
socio-economic justice
For you to read

 Today, democracy is a kind of society, more a

way of life and not merely a mechanical
device of capturing power and running the
Government. The egalitarian principle of
democracy requires not only one man one
vote, but also the equal and effective right of
each and every man to live full human life, to
develop his personality in accordance with
the tenets of freedom, equality and justice.
 An impression has been created that there is
conflict between the Fundamental Rights and
the Directive Principles and that two cannot
operate in harmony with each other. There is a
school of thought who propounded the view
that Fundamental Rights being sacrosanct and
inviolable if their discipline is withdrawn, then
it will have adverse effects on the body politic
and will tear the country as under.
 Because of this view which has found support
from the observations made in some judgments of
the Courts, the progress towards the
implementation of the Directive Principles has
somewhat been impeded. It is really unfortunate
that we have not been able to resolve this
controversy even after a lapse six decades. Here,
an attempt is made to explode this thinking and
uncover the myth of inferiority being attributed to
the Directive Principles
 Supremacy of Fundamental Rights over Directive Principles
of State Policy
 The State of Madras v. Champakam Dorairajan
was the first case decided by the Supreme Court in this
regard. The facts of the case were as follows: The
Government of Madras issued an order known a Communal
Government Order under which the seats in the Engineering
and Medical Colleges were apportioned on a communal and
religious base. The petitioner, a Brahmin lady contended
that the Madras Communal G.O. violated her Fundamental
Rights under Articles 15 (1) which prohibits discrimination on
 grounds only of religion, race, caste, sex and place of
birth, and Article 29(2) which protects the citizens from
denial of admission into any educational institution,
maintained by the State or receiving aid out of the State
fund, on the grounds only of race, religion, caste and
language. As against this, the State of Madras
contended that such a discriminatory treatment was
justified under Article 46 of Part IV which imposes a duty
on the State to promote the educational and economic
interests of the weaker sections of the people and, in
particular of the Scheduled Caste and Scheduled Tribes
 It was also contended that the provisions of
Articles 29(2) and 15 (1) should be read with
Article 46 of the Constitution.
 The Full Bench of the Madras High Court
which heard the case held that Article 46
could not override the provisions contained in
Articles 15 (1) and 29 (2) or justify any law or
Act of the State contravening their
provisions.
 The Chapter on Fundamental Rights is
sacrosanct and not liable to be abridged by
any Legislative or Executive act or order,
except to the extent provided in the
appropriate Article in Part III. The Directive
Principles of State Policy have to conform to
and run as subsidiary to the Chapter on
Fundamental Rights.
Doctrine of Harmonious Construction of Fundamental Rights and Directive
Principles of State Policy

 The judiciary, subsequent to the Champakam

Dorairajan case modified its attitude towards the
Directive Principles although it always held it
subordinate to the Fundamental Rights. There
was an increasing recognition of the fact that
although directives were non-justiciable in
character, the Courts were to recognize their
significance because of the simple reason that
they formed a vital Part of the Constitutional
document.
 The directives were no longer to be ignored
when they came into conflict with
Fundamental Rights
 Kerala Education Bill (1957): Doctrine of Harmonious
Construction :
 Supreme Court in the Re Kerala Education Bill(1957)
had propounded the Doctrine of Harmonious
Construction to avoid a situation of conflict while
enforcing DPSPs and the Fundamental Rights. As per
this doctrine the court held that there is no inherent
conflict between FRs and DPSPs and the courts while
interpreting a law should attempt to give affect to both
as far as possible i. e. should try to harmonize the two
as far as possible.
Supremacy of Directive Principles of State Policy over
Fundamental Rights

 The Twenty-Fifth Amendment in the

Constitution took place in the year 1971 and a
new Article 31C was incorporated.
 Article 31C provides that notwithstanding
anything contained in Article 13, no law giving
effect to the policy of the State towards
securing the principles specified in clause (b)
and (c) of
Article 39 shall be deemed to be void on the
ground that it is inconsistent with, or takes
away or abridges any of the rights conferred
by Article 14, Article 19 or
2) and no law containing a declaration that it
is for giving effect to such policy shall be
called in question in any Court on the ground
 In Kesavananda Bharati case, the Supreme
Court observed that the Fundamental Rights
and Directive Principles constitute the
conscience of the Constitution. There is no
antithesis between the both, and one
supplements the other.
 It struck down clause(2) of Article 31C
Since judicial review is basic structure of the
constitution
 Parliament reacted with---42nd amendment
act
 To nullify the kesavanand Bharti Case, the
42nd Amendment further amended article 31
(C) and now it said that “No law giving effect
to the policy on the ground” that is
inconsistent with or takes away or abridges
any of the rights conferred by article 14, 19
(not only
 Minerva Mills Case The parliament by 42nd
amendment further widened the scope of the
Fundamental Rights. However in the Minerva Mills
v/s Union of India (1980) case, the Supreme Court
struck down these provisions. On the ground that
it changed the basic structure of the Constitution.
The Supreme Court held that the Constitution
exists on the balance of part III and Part IV. Giving
absolute primacy to one over other will disturb the
harmony of the /
 Constitution. This took the Article 31(C) to its
prior condition that ” a law would be
protected by article 31C only if it has been
made to implement the directive in article
39(b) and (c) and not any of the articles
included in Part IV.
 Comparison of Fundamental Rights and
Directive Principles Following are the key
comparisons of FRs and DPSPs:
 While most FRs have some negative
connotation i.e. they prohibit the state from
doing something, the DPSP direct the state
for doing something.
 While FRs are enforceable in court, DPSPs are
not enforceable in court.
 While objective of FRs is to establish political
democracy, objective of DPSPs is to establish
a social and economic order.
 While FRs have legal sanction, DPSPs have
moral sanction rather.
 While FRs are individualistic, DPSPs are
collectivistic i.e. they promote the welfare of
entire community.
 FRs don’t need separate legislations as such
because they are enforceable in court. To
implement DPSPs, government needs to
make separate laws.
For your reading : Fodder
 Gandhian Principles as DPSP Most of the DPSPs reflect the
ideology of socialism and welfare state. Some of them are
directly inculcating the Gandhian principles for example: Article
40: Organization of village Panchayats Article 43: Promotion of
cottage industries Article 46: Promotion and protection of
interests of educational and economic interests of SCs, STs, and
other weaker sections of the society and to protect them from
social injustice and exploitation Article 47: Prohibition of
consumption of intoxicating drinks and drugs which are injurious
to health Article 48: Prohibition of slaughter of cows, calves and
other milch and draught cattle and to improve their breeds
Flow- arranged pattern

 Champakam Dorairajan Case (1952)

 Court Verdict: All Fundamental Rights are
superior over DPSP.
 Parliament Reaction: The parliament
responded by amending and modifying various
FRs which were coming in conflict with DPSPs.
 Case 3: Golak Nath Case (1967)
 Court Verdict:  Fundamental Rights cannot be
abridged or diluted.
 Parliament Reaction: The parliament responded again by
bringing 25th Amendment Act of the constitution which
inserted Article 31C in Part III. Article 31 C contained two
provisions:
 a. If a law is made to give effect to DPSPs in Article 39(b) and
Article 39(c) and in the process the law violates Article 14,
Article 19 or Article 31, then the law should not be declared
as unconstitutional and void merely on this ground.
 b. Any such law which contains the declaration that it is to
give effect to DPSPs in Article 39(b) and Article(c) shall not
be questioned in a court of law.
 Case 4: Kesavanath Bharathi Case (1973)
 The above amendment was challenged in the
Kesavananda Bharati Case(1973).
 Court Verdict: Parliament can amend any part
of Constitution but could not destroy Basic Structure of
Constitution. Second clause of Article 31C was as
declared as unconstitutional and void as it was against
the Basic Structure of the constitution propounded in
this case itself. However, the SC upheld the first provision
of the Article 31C. The court also held that the power of
Judicial review cannot be taken out by Parliament.
 Parliament Reaction: Parliament brought
the 42nd Amendment Act in 1976, which
extended the scope of above first provision of
Article 31C by including within its
purview any law to implement any of the
DPSPs specified in Part IV of the
constitutional and not merely Article 39 (b) or
(c).
Fundamental duties:

 Fundamental Duties v/s Directive Principles The

fundamental duties were included in the
constitution by the 42nd amendment act 1976.
They are inspired by the “Constitution of USSR”.
As the directive principles are addressed to the
state, the fundamental duties are addressed to
the Citizens. The citizens enjoying the
fundamental rights must respect the ideals of the
constitution, to promote harmony and spirit of the
brotherhood. /
 Swaran Singh Committee Sardar Swaran Singh committee
was constituted by Indira Gandhi soon after emergency was
imposed in the country. The objective of this committee was
to study the question of amending the constitution in the
light of past experiences and recommend the amendments.
The 42nd amendment act which is also called “Mini
Constitution” which amended many articles and even the
Preamble was a result of the recommendations of Sardar
Swaran Singh committee. 
 The 10 fundamental duties were also added as per the
recommendations of Sardar Swaran Singh committee.
 The 42nd amendment Act 1976 added a new part in the
constitution part IVA. It incorporated the fundamental duties
by inserting a new article 51A below article 51.  The objective
of incorporating the fundamental duties is to place before the
country a code of conduct, which the citizens are expected to
follow. The Fundamental duties are as follows:
 to abide by the Constitution and respect its ideals and
institutions, the National Flag and the National Anthem;
 to cherish and follow the noble ideals which inspired our
national struggle for freedom;
 to uphold and protect the sovereignty, unity and integrity of
India;
 to defend the country and render national service when called
upon to do so;
 to promote harmony and the spirit of common brotherhood
amongst all the people of India transcending religious, linguistic
and regional or sectional diversities;
 to renounce practices derogatory to the dignity of women;
 to value and preserve the rich heritage of our composite culture;
 to protect and improve the natural environment including
forests, lakes, rivers and wild life, and to have compassion for
living creatures;
 to develop the scientific temper, humanism and the spirit of
inquiry and reform;
 to safeguard public property and to abjure violence;
 to strive towards excellence in all spheres of
individual and collective activity so that the nation
constantly rises to higher levels of endeavour and
achievement;
 who is a parent or guardian to provide opportunities
for education to his child or, as the case may be,
ward between the age of six and fourteen years.