Religion and The Law

By
Prof.(dr.)Ganta Satyanarayana

• Objective:
• After studying this chapter we will be able to understand the role of…
• 1. Religion as a divisive factor.
• 2. How Secularism is a solution to the problem of conflicts between
Religions.
• 3. Different kinds of reform of the law were introduced on secularism.
• 4. Why Freedom of religion and non-discrimination on the basis of
religion is important
• 5. How and why law gives protection to Religion minorities.
• Introduction:
• Religion is a social phenomenon, distinctive and each has its own
centre of population.
• The character and right of religious observance depends upon the
membership of particular social group.
• Religious issues often become spots of social anxiety because of
competing religious sentiments.

• Transformations within the religion occur in the course of social

development due to reformative movements, emergence of
alternative faiths, rise of new leadership, impact of other cultures and
efforts of modernization.
• A principled distancing from religions and an approach of impartiality
in treatment provide a safe walk, soberness and legitimacy for state
action.

• Being a component of the policy of multiculturalism, this approach

sets ways and limits to law’s regulative task, and inculcates an attitude
and mindset for co-existence amidst different religious communities.
 Religion as a divisive factor
• Basically religion is for spiritual guidance of the people and hence can
be a major resource for peace and social justice.

• It can become, as liberation theology indicates, a powerful option for

the weaker sections of society.
• Instead religion has more often been used by powerful vested
interests of which religious functionaries become apart.

• Worse, religious functionaries and priests themselves create powerful

establishments and join hands with politicians to protect their
establishments.
• Religious Fanaticism (Religious fanatics)
•
• Secularism in India is based on the rich heritage and culture steeped
in its various religions.
• The secular fabric of the country is very well reflected in the phrase
‘Vasudhaiv Kutumbakam’ which means that the whole world is one
family.

• India has always been an inclusive society, which has welcomed people
of all religions and faiths with open arms, never discriminating among
religions and never considering any religion or faith to be a threat.

• But this secular fabric has not meant that there is no communalism in
India.
• In spite of a number of laws treating people of all religions at par,
India has had a long history of communal riots, the worst of them
being at the time of partition of the country when blood flowed as
rivers.

• In a land where tolerance is by word for life, when did this hatred for
fellow beings arise?
• The answer to this question lies in the British rule of the country, particularly post-
1857.

• Prior to 1857, the British rulers restrained themselves from interfering in the social
structure of the country.

• Post-1857, they realized the importance of dividing the people of the country in
order to weaken them.

• This gave rise to the ‘divide and rule’ policy, which they used, on religious lines
thus distancing Hindus and Muslims.
• The persistence of this policy of the British is reflected in the painful
partition of the country and the displacement of a large number of
people from their hearths and homes.
• This has continued even after the independence of the country in
spite of the government being neutral as far as religion is concerned
and the constitution ensuring that there is no discrimination on the
basis of religion as far as employment, education etc. are concerned.

• This is apparently on account of minimal social interaction between

various religious communities leading to a distorted view of other
communities and its practitioners.
• Such a social interaction is especially important to heal the scars and
pain of the partition.

• The delicate secular fabric could not withstand the body blow of the
partition.

• This situation was sought to be remedied through the provisions of

the constitution.
•.
• The pain of the partition revisited the country in the form of communal
violence riots from time to time, as if not to let people forget their
wounds.

• The action or inaction of the political leaders and the administrative

system at times also added to the communal frenzy.

• What is the meaning of the word frenzy?

a temporary madness. in a rage amounting to a frenzy. : a violent mental
or emotional agitation.
• What is an example of frenzy?
• (an example of) uncontrolled and excited behavior or emotion that is
sometimes violent.

• The audience worked/whipped themselves into a frenzy as they

waited for her to come on stage.

• There was a frenzy of activity in the financial markets yesterday.

Poison of communal frenzy has no place in India: PM
Narendra Modi Prime Minister
Narendra Modi
addressing the nation
from the Red Fort on
the eve of
Independence Day.
In a marathon address to
the nation from the
ramparts of Red Fort, PM
today underlined India’s
unity and diversity and
said the poison of
casteism and communal
frenzy have no place in
the country.
• Some major events which changed the way world viewed India were
based on communal frenzy viz.
• Babri Masjid demolition,

• the Gujarat riots,

• Delhi (Sikh) riots.

• Babri Masjid located at Ayodhya in Uttar Pradesh was demolished on
December 6, 1992 by kar sevaks under the guidance of some of our
leaders who are facing trial in the case.

•
Demolition of the Babri Masjid
6 December 1992

On 6 December 1992 the VHP and the

BJP organised a rally at the site
involving 150,000 people.

The rally turned violent, and the crowd

overwhelmed security forces and tore
down the mosque.

A subsequent inquiry into the incident

found 68 people responsible, including
several leaders of the BJP and the
VHP.
• The demolition of the Babri Masjid made the fabled respect for all
religions that Indians have a thing of the past.

• The fact, that a religious shrine of any religion could be demolished,

raises questions about the secularity of the people of the country as
also the conviction of the state towards secularism.
• The 2002 Gujarat riots, also known as the 2002 Gujarat violence, was
a three-day period of inter-communal violence in the western Indian
state of Gujarat. Wikipedia
• Start date: 27 February 2002
• Location: Gujarat
• End date: May 2002
• Death(s): 790 Muslims and 254 Hindus (official); 1,926 to 2,000+ total
(other sources)
• Caused by: Godhra train burning; state terrorism; ethnic cleansing
 
The Gujarat violence in 2002 is a matter of great shame for the country.
                                                                                                                                                                                   

• 2002 Gujarat riots: 20 years on, wounds remain fresh

Twenty years ago, on February 27, 2002 a coach of the Sabarmati Express was returning with passengers from the
Ram Janmabhoomi site in Ayodhya when it was set ablaze near Godhra railway station by a mob consisting of people
from the Muslim community
• What riot means?
• a violent public disorder
 a violent public disorder.
specifically : a tumultuous disturbance of the public peace by three or
more persons assembled together and acting with a common intent.
public violence, tumult, or disorder. : a random or disorderly profusion.
1984 Anti-Sikh Riots
Date October 31, 1984 - November 3,
1984; 38 years ago
Location Punjab, Delhi, Haryana, 
Madhya Pradesh, Uttar Pradesh, 
Bihar[1]
Caused by Assassination of Indira Gandhi
Goals •Ethnic and religious persecution
•Revenge
Methods Pogrom,[2] genocide,[3][4] 
mass murder, mass rape, arson, 
looting,[1] acid throwing,[5] 
immolation[6]

Parties to the civil conflict

Congress Party[7][8] Sikhs

Casualties
Death(s) 3,350 (Indian government figure)
[9][10]

8,000–17,000 Sikhs
(independent estimate)[6][3]
• The fact, that people were massacred only on account of their
belonging to a particular religion, is unacceptable in any secular
nation.

• The fact, that the administration reacted late, also raises questions
regarding the State’s belief in secularism.
• A similar incident, which happened about two decades prior to the
Gujarat violence, was the riots of Delhi in 1984.

• Sikhs were brutally slaughtered on the streets of Delhi just because the
person who assassinated the then Prime Minister of India, Smt. Indira
Gandhi happened to be a Sikh.

• It is ironic that this killing happened to exact revenge for the death of
the person who was instrumental in incorporating the word ‘secular’ in
the Indian constitution.
• Needless to say it is totally unfair comparison.

• In fact one cannot take values of one religion and compare it with
history of other.

• Values must be compared with values and history must be compared

with history.
• While values are divine, humanitarian and common to all religions,
history is full of violence perpetrated by various vested interests,
power struggle within or two or more faith communities and often
represents worst side of human behaviour.

• It should not be blamed on religion.

• Thus what happens in history should not be taken as representative of
religious values or religious norms, much less its cause.

• These massacres and killings represent nothing but lust for power and
wealth by some followers of that religion.

• It has nothing to do with the teachings of that religion.

• Every religion gives us certain norms and values to improve our
conduct and to make us good or even perfect human beings.

• It is true religion is misused by all sorts of interests and more often

than not.

• It is sought to be misused as it strongly appeals to our emotions and

can easily create feeling of ‘we’ versus ‘they’ but nevertheless it is
misused and for misuse we cannot blame religion.
• As Asghar Ali Engineer rightly puts it,
• “Let us be very clear on one thing that no religion would be
acceptable to people just because it allows killing or conversion. A
religion is acceptable only if improves morality, controls basic instincts
and brings about spiritual and moral change for better. It is extremely
knave to believe that a religion would spread by sword”.
• Religion and Terrorism The supreme law of the land, rightly described
India as a secular country in which the State has no religion, nor does
it seek to promote or discourage any religion or religious belief.

• It guarantees a complete religious freedom, with the absence of any

compulsion whatsoever in religious matters.
• Thus, it is obvious that the Government and people of India are
secular, that is, there is no official religion.

• The State is committed to a policy of non-interference in religious

matters.
• Religion is a matter of personal beliefs and convictions. But how far
are “we the people of India” secular in thought, word and deed?

• Upon a close observation of the working of our political parties, we

shall find that candidates for elections are often chosen on communal
considerations—
• Hindu candidates for constituencies having maximum Hindu
electorate, Muslim candidates for areas where the large number of
the voters are Muslims.
• Also we find that the voting in elections is often on communal lines;
Hindus voting for Hindu candidates, Muslims for Muslim candidates
and Sikhs for Sikh.

• Although the political parties are not formed on a religious basis, we

often find that there are some distinctly communal parties in this
‘secular country’.
• The emerging concepts like “vote banks,” augments ‘caste’ factor and
plays a decisive role in leading the followers to exercise their franchise
for a particular candidate in name of religion.

• Religion should have no connection whatever with politics. But is it

really so in India today?
• Instead of creating amicability amongst the public of all the religion
the fundamentalist and politicians are hand in glove.

• The social fabric gets destroyed by religious controversies.

• Once the religious fanatics or fundamentalist come face to face they
destroy the balance created by these aspects.

• Overt act of fanatic is to cause injury to other in such a way that the
enjoyment of human rights of the individual as well as the society at
large is impaired. Thus leads to terrorism.
• Terrorism is a global phenomenon.

• No doubt it has direct impact on human being, with shattering loss of

right to life, liberty and physical integrity of victims.

• In addition to this individual loss, terrorism has destabilized

Governments, weaken civil society, jeopardize peace and security, and
threaten social and economic development.
• The common understanding of the world ‘terrorism’ is:

• any organized program of individual, social groups or political groups

of using force to create fear or panic.

• It is belief in resorting to violence for the purpose of bringing

pressure on the government and non-governmental bodies and
individual to agree to the view point of the perpetrators and compel
all to concede to their demands.
• The United Nations General Assembly in the open sessions of their
53rd meeting explained terrorism in the following words:

• “In its wider sense, terrorism is the tactic of using an act or threat of
violence against individuals or groups to change the outcome of some
process of politics”
• The basic question is why at all terrorism has grown so fast and
steadily?

• Why is it a threat to the civil society?

• Who is responsible for the growth of terrorism is it the religious

fanatics or fundamentalist or politicians or business class?
• Secularism as a solution to the problem

• Secularism is one of the important national goals.

• Though secularism has been an official Government policy, bulk of

people in India still remain non secular.

• Communalism and Terrorism are big threat to secularism.

• Secularism as a means of liberation from prejudices and communal
frenzies has inherent competence to enhance the worth of human
rights and welfare.

• Search for viable parameters for the appropriate triangular relations

among state, religion, and individual become an imperative in shaping
the legal policies in the task of social transformation.

• Hence it was felt that India be declared as secular State.

• The English word “secular is derived from the Latin word SAECULUM”.
Earlier in Monarchical countries secularists were described as
republicans.

• The French Revolution of 1789 popularized the idea of secularism.

• The French constitution of 1791 introduced the idea of secular state.

• Great Indians like, the mughal king Akbar, social and religious
reformers like Raja Ram Mohan Roy and Swami Vivekananda
respected the people of all religions.

• Particularly Indian king Maharaja Ranjith Singh officially announced

secularism as the policy of his Government.
• He was successful in this regard.

• Ranjith Singh is considered as a forerunner in implementing the idea of

Secularism through Government means.

• In the year 1888 the Indian National Congress opened a debate on

secularism and proposed secular nationalism for India.

• The idea of secularism began in Indian politics in 1920 when Mahathma

Gandhi organised Khilafat movement in support of the Sultan of Turkey.
• It is necessary to have an idea of the nature and meaning of the term
‘secularism’.
• It is interesting to note that there is no agreed and precise meaning of
‘secularism’ in our country.

• As Jawaharlal Nehru wrote in his autobiography…

• “no word perhaps in any language is more likely to be interpreted in
different ways by the people as the word ‘religion’. That being the case,
‘secularism’ which is a concept evolved in relation to religion can also
not have the same connotation for all”.
 There are two possible models of secularism

• In the first one, there is a complete separation of religion and state to the
extent that there is an ‘impassable wall’ between religion and secular spheres.

• What does impassable mean mean?

• incapable of being passed, traveled
• incapable of being passed, traveled, crossed, or surmounted

• In such a model, there is no state intervention of religious matters and vice

versa.
• What does impassable road mean?
• An impassable road or path cannot be traveled on because of bad
weather conditions or because it is blocked:
• Many roads were flooded and impassable following the storm.
• In the other model, all religions are to be treated equally by the state;
in other words, the state is equi-distant from all religions.

• This model is also referred to as ‘nondiscriminatory’ and is particularly

relevant for multi-religious societies.

• In contrast to the former model, the latter allows for state

intervention on grounds of public order and social justice.
• The Sanskrit phrase ‘Sarva Dharma Sambhava’ is the most appropriate
Indian vision of secular state and society.

• But it should not be forgotten that the word ‘Secular’ has not been
defined or explained under the constitution either in 1950 or in 1976
when it was made part of the preamble.
• Secularism as a modern political and constitutional principle involves
two basic propositions.

• The first is that people belonging to different faiths and sects are
equal before the law, the constitution and the government policy.

• The second requirement is that there can be no mixing up of religion

and politics.
• It follows that there can be no discrimination against any one on the
basis of religion or faith nor is there room for the hegemony of one
religion or religion of majority sentiments and aspirations.

• It is in this double sense – no discrimination against any one on

grounds of faith and separation of religion from politics – that our
constitution safeguards secularism.
 Reform the law on secular lines

• Problems The constituent assembly which was constituted to frame a

constitution for India declared eight guiding principles of Indian
constitution.

• Among these eight basic and guiding principles of the constitution–

Secularism is placed in fifth position.

• To that extent the constitutional pandits gave importance for

secularism. The idea of secularism is essential to maintain unity in
diversity.
• Secularism is a basic ideology for the effective functioning of a healthy
Democracy.

• When the Indian constitution was adopted in January 1950, it has got
sufficient provisions to promote secularism.

• The Constitution of India firmly believes in the principle of secularism.

• The founding fathers of the Indian Constitution never hesitated to
build India on secular foundations.

• They opposed and defeated the amendment of Mr. H. V. Kamath to

invoke the name of god in the preamble of the Constitution.

• Pandit Kunjru said that we invoke the name of God, but I am bold to
say that while we do so, we are showing a narrow, sectarian spirit,
which is contrary to the spirit of the Constitution.
 The Indian Flag consists of Ashoka Chakra in its center

• The wheel has many spokes but, all are of equal length.

• It indirectly refers to the Indian stand on the principle of equal treatment of all
religions.

(Sarva Dharma Sambava ).

• Although, the word ‘Secular’ was not there initially in the constitution,
a mere perusal of the various articles of it would amply demonstrate
that ‘Secularism’ is an integral part of the Indian constitution.

• At this juncture, it would not be inappropriate to have a glance at the

relevant constitutional provisions pertaining to secularism.

• Article 14 of the constitution provides for equality before law for all
people.
• Article 15, inter alia, lays down that the state shall not discriminate
any citizen on the ground of religion.

• Article 16 provides for equality of opportunity in matters of

employment under the state, 17 irrespective of religion.

• Article 25 provides for freedom of conscience and the right to profess

practice and propagate the religion of one’s choice.
• The constitution not only guarantees a person’s freedom of religion
and conscience, but also ensures freedom for one who has no
religion, and it scrupulously restrains the state from making any
discrimination on grounds of religion.

• Article 26 provides freedom to manage religious affairs

• and
• Article 27 prohibits compulsion to pay taxes to benefit any religious
denomination.
• The impact of Secularism can also be seen in Article 28, which states
that no religious instruction shall be provided in any educational
institution wholly maintained out of state funds.

• The analysis of the above said constitutional provisions makes it

amply clear that Indian secularism is unique and it treats all religions
alike.
• In our country, judiciary is the guardian of the constitution and it has
been held by the Supreme Court that secularism is a basic structure of
the constitution and it cannot be altered by a constitutional
amendment.
• Before looking into the Articles in the Constitution that are supposed
to interpret the idea of secularism, it will be worthwhile to look into
one important judgment given by the Supreme Court of India viz.

• Kesavananda Bharati vs. Kerala case which was decided by a full

Constitutional bench of judges on April 24, 1973.

•
• By a water-thin majority of 7-6, the Supreme Court held that the
power to amend the Constitution under Article 368 couldn’t be
exercised in such a manner as to destroy or emasculate the
fundamental features of the Constitution.
Kesavananda Bharati Case - An Overview of
the Case and the Supreme Court Judgement
• The main petitioner, Kesavananda Bharati, of Kesavananda Bharati
Sripadagalvaru and ors. vs State of Kerala Case, 1973 (known for the
basic structure doctrine of the Supreme Court), died on September
6th 2020 at the age of 79 in Idnir Math due to age-related ailments.
 Important pointers
 
• He challenged the Kerala land reforms legislation in 1970, which
imposed restrictions on the management of the religious property.

• The case was challenged under Article 26, concerning the right to
manage religiously owned property without government interference.

• A 13-judge Bench was set up by the Supreme Court, the biggest so far,
to hear the case.
 Case Summary – Kesavananda Bharati & Others
(Petitioners) V State of Kerala (Respondents)
• Kesavananda Bharati & others Versus State of Kerala is certainly one
of the leading cases in the constitutional history of India if not the
most important judgement of post-independent India and is popularly
known as the Fundamental Rights case.
The majority judgement in the case was pronounced by

• S.M.Sikri C. J.,
• Hegde J,
• Mukherjea J,
• Shehlat J,
• Grover J,
• Jaganmohan Reddy J,
• Khanna J, and was dissented by
• Ray J,
• Palekar J,
• Mathew J,
• Beg J,
• Dwivedi J and Chandrachud J.
• It is rightly said that the judgement in the instant case brought an end to the
conflict between the executive and the judiciary and proved to be a saviour
of the democratic system and set up in the country.
•
• The resultant judgement in the case was a hard-fought legal battle between
the two constitutional stalwarts and legal luminaries namely
• N.A. Palkhivala (who represented Petitioners) and
• H.M. Seervai (who represented the State of Kerala).

• The hearing in the case took place for sixty-eight long days and finally, a
voluminous 703-page judgement was pronounced on 24th April 1973.
 Brief Facts
• Kesavananda Bharati was the chief pontiff of the Edneer Mutt, a monastic religious
institution located in Kasaragod district, Kerala.

• Bharati had some land in the Mutt which he owned.

• The Kerala state government passed the Land Reforms Amendment Act in 1969.

• As per this Act, the government could acquire some of the lands that belonged to the
Mutt.

• In March 1970, Bharati moved the Supreme Court (under Section 32 of the
Constitution) to enforce the rights that were guaranteed to him under.
• Article 25: Right to practice & propagate religion

• Article 26: Right to manage religious affairs

• Article 14: Right to equality

• Article 19(1)(f): Freedom to acquire property

• Article 31: Compulsory acquisition of property

• Right to Freedom of Religion (Articles 25 – 28)

• The Kerala state government enacted another law, the Kerala Land Reforms
(Amendment) Act, 1971 even as the petition was under the court’s
consideration.

• The contentions made by the petitioners brought to the fore the validity of
various amendments that were brought in by the Parliament to nullify the
effects of Golaknath v State of Punjab. 

• The petitioners challenged, in particular, three constitutional amendments

– 24th Amendment, 25th Amendment and 29th Amendment and their
validity.
• In identifying the features, which are fundamental and thus non amendable in the
constitution was this statement – A secular State, that is, a State in which there is no
State religion.

• This was (probably) the first time that the concept of secularism was interpreted by
the Supreme Court.

• Here we get the first authorized interpretation of the word “secular” as mentioned in
our Constitution.

• So our basic idea of being a secular state is that we do not have a ‘State religion’.
 Issues before the Court

• Whether the following are constitutionally valid?

• 24th Constitutional (Amendment) Act, 1971
• 25th Constitutional (Amendment) Act, 1972
• The extent to which the Parliament can exercise its power to amend
the Constitution.
• The question underlying the case also included: Was the power of
Parliament to amend the Constitution unlimited?
• In other words, could Parliament alter, amend, abrogate any part of
the Constitution even to the extent of taking away all fundamental
rights?
 Contentions of the Petitioners

• Petitioners contended that the Parliament can’t amend the

Constitution in a manner they want as their power to do this is
limited.
• The Parliament cannot make an amendment to the Constitution to
change its basic structure as was set forth by Justice Mudholkar in the
Sajjan Singh v State of Rajasthan case.

• They argued that the 24th & 25th Constitutional Amendments were
violative of the Fundamental Right provided in Article 19(1)(f).
 Contentions of the Respondents

• The State said that the Parliament’s supremacy is the Indian legal
system’s basic structure and hence, it has boundless power to amend
the Constitution.

• The respondents stressed that in order to fulfil its socio-economic

obligations the unlimited power of the Parliament to amend the
Constitution must be upheld.
 Kesavananda Bharati Case – Judgement
• The landmark judgement was delivered on 24th April 1973 by a razor-
thin majority of 7:6 wherein the majority held that any provision of
the Indian Constitution can be amended by the Parliament in order to
fulfil its socio-economic obligations that were guaranteed to the
citizens as given in the Preamble, provided that such amendment did
not change the Constitution’s basic structure.
• The court held that the 24th Constitutional Amendment was entirely
valid. But it found the first part of the 25th Constitutional Amendment
to be intra vires and the second part of the same ultra vires.

• The minority, however, in their dissenting opinion, were wary of giving

the Parliament unlimited amending power.
 Doctrine of Basic Structure

• The basic structure doctrine states that the Parliament has limitless

power to amend the Constitution subject to the condition that such
amendments should not change the Constitution’s basic structure.

• The bench did not mention the basic structure of the Constitution and
it was left to the interpretation of the courts.
• This was subsequently laid down in several other judgements by the
SC.
• The court contended that the term ‘amend’ mentioned in Article 368
doesn’t imply amendments that can alter the Constitution’s basic
structure.

• If the Parliament intends to make an amendment with respect to a

constitutional provision, such an amendment would necessarily have
to undergo the ‘basic structure’ test.
• The case of Kesavananda Bharati vs the State of Kerala as mentioned
supra had been heard for 68 days, the arguments commencing on
October 31, 1972, and ending on March 23, 1973.

• The hard work and scholarship that had gone into the preparation of
this case were breathtaking.

• Literally hundreds of cases had been cited and the then Attorney-
General had made a comparative chart analysing the provisions of the
constitutions of 71 different countries.
• The majority of the bench wished to safeguard the Constitution by
preserving its basic features.

• The judgment was based on sound reasoning and it was given after a
careful analysis of multifarious aspects.

• The bench opined that if the Parliament were to get unfettered power
to amend, there were chances of that power to be misused, and that
governments would change it as per their own preferences and whims.
• Such limitless powers vested in the hands of the government would
mean that the basic features and also the very essence and spirit of
the Indian Constitution could be changed.

• There was a need for a doctrine which could protect the rights of both
the Indian Parliament and Indian citizens; the bench met this need
halfway and came up with the basic structure doctrine, that protects
the rights of both camps.
• It is to be noted that while in the US, only 27 amendments have been
made, India has seen over one hundred amendments since
independence.

• Despite this big number, the spirit of the Constitution and also the
ideas of the Constitution-makers have not been tampered with.

• It is because of the bench’s decision that the identity and spirit of the
Constitution have not been lost.
• This landmark case has given our Constitution stability.

• Even though the petitioner lost this case partially, the SC ruling in the
Kesavananda Bharati case turned out to be a saviour for Indian
democracy, and also prevented the Constitution from losing its spirit.
 What happened in Kesavananda Bharati case?

• The case in which Bharati had challenged a Kerala Land Reform Act
nearly four decades ago set the principle that the Supreme Court is
the guardian of the basic structure of the constitution and the verdict
involved 13 judges the largest bench ever to sit in the apex court.
• The case of Kesavananda Bharati vs the State of Kerala was heard for
68 days and continues to hold the top spot for the longest
proceedings ever to have taken place in the top court.

• The Kesavananda Bharati case is significant for its ruling that the
Constitution can be amended but not the basic structure.
 Who won in Kesavananda Bharati case?

• The landmark judgement was delivered on 24th April 1973 by a razor-

thin majority of 7:6 wherein the majority held that any provision of
the Indian Constitution can be amended by the Parliament in order to
fulfill its socio-economic obligations that were guaranteed to the
citizens as given in the Preamble, provided that such amendment did
not change the Constitution’s basic structure.

• The minority, however, in their dissenting opinion, were wary of giving

the Parliament unlimited amending power.
 Which case is known as fundamental rights case?
21st January 2023

• The Kesavananda Bharati case was popularly known as fundamental

rights case and also the serious conflict between the Judiciary and the
Government.
 Which case is popularly known as habeas corpus case?

• The verdict in the ADM Jabalpur vs Shivakant case, popularly known

as the Habeas Corpus case, set the tone for countless arrests under
the preventive detention law – a provision whereby defendants could
not stake a claim to their liberty under extenuating circumstances.
 Can the preamble be amended?

• It has been clarified by the Supreme Court that being a part of the
Constitution, the Preamble can be subjected to Constitutional
Amendments exercised under article 368, however, the basic
structure cannot be altered.

• Therefore it is considered as the heart and soul of the Constitution.

• “…THE PEOPLE OF INDIA, having solemnly resolved to constitute India
into a SOVERIGN, SOCIALIST, SECULAR, DEMOCRATIC, REPUBLIC and
to secure to all its citizens…”.

• So we have decided that we will create India as a secular state.

• The only other place where the word secular appears in our
Constitution is in Article 25 (2) (a) while discussing the “Right to
freedom of religion”.
• What is problematic in this context is the absence of a proper
definition of secularism. How can we interpret the term secularism?

• Do we interpret it as the complete detachment of state from religious

activities or do we accept the original definition of Holyoake?

• What is the stand of the government regarding this?

• To find answers to these questions, we have to look at the related
discussions in the Constituent Assembly.
• An important amendment (Amendment 566) was moved in the
meeting dated December 03, 1948 by Prof. K.T. Shah.

• “The State in India being secular shall have no concern with any
religion, creed or profession of faith; and shall observe an attitude of
absolute neutrality in all matters relating to the religion of any class of
its citizens or other persons in the Union.”
• It is now clear that this idea of making India a secular state was not there in
the original draft. It was only on December 18, 1976 the word “SECULAR” was
added in the preamble of our Constitution. The 42nd amendment Act reads –

• “In the Preamble to the Constitution, - (a) for the words “SOVEREIGN
DEMOCRATIC REPUBLIC” the words “SOVERIGN SOCIALIST SECULAR
DEMOCRATIC REPUBLIC” shall be substituted”.

• So the word secular entered our Constitution only almost 25 years after it had
come into effect.
• Freedom of religion and non-discrimination on the basis of religion
• Freedom of religion under Article 25

Article 25 of the Constitution of India guarantees to every citizen the right to

profess, practice and propagate religion.
• Article 25 reads as follows:
• 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)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 the 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."
• Accordingly Article 25 protects two freedoms:

• (a) freedom of conscience,

• (b)freedom to profess, practice and propagate religion.

• The freedom of conscience is absolute inner freedom of the citizen to

mould his own relation with God in whatever manner he likes.
• When this freedom becomes articulate and expressed in outward form it is to
profess and practice religion.

• To profess religion means to declare freely and openly one's faith and belief.

• To practice religion is to perform the prescribed religious duties, rites and rules.

• To propagate means to spread and practice his view for enlightening others.
• The right to propagate one's religion is not a right to convert other to one's own
religion.
• Article therefore postulates that there is no fundamental right to
convert another person to one’s own religion,

• ‘because if a person purposefully 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 impugn on the freedom of
conscience guaranteed to all citizens of the country alike’;

• as decided in Rev. Stainialaus v. St. of Madhya Pradesh (AIR 1977 SC

908)
• The Supreme Court in
• Punjab Rao v. D. P. Meshram, (AIR 1966 SC 1179)
• expresses that, the right is not only to entertain such religious belief
as may be approved by his judgment or conscience but also to exhibit
his sentiments in overt acts as are enjoyed by religion. In the words of
the Article, he may “profess a religion means the right to declare
freely and openly one's faith.”
• Retinal Panachand Gandhi v. State of Bombay, (AIR 1954 SC 388)
• declares that he may freely practice his religion;
• “Religious practices or performance of acts in pursuance of religious
belief are as much a part of religion as faith or belief in particular
doctrines”.
• Rituals and observances, ceremonies and modes of worship
considered by a religion to be its integrals and essentials part are also
secured.

• What is integral and essential part of a religion or religious practice

has to be decided by the Courts with references to the doctrine of a
particular religion include practice regarded by the community as part
of its religion as put forth by the honourable Supreme Court in
• Seshammal v. state of Tamil Nadu, (1972) 2 SCC .
• Again in Ratilal, the SC states that, he may propagate freely his
religious views for the edification of others.

• It is immaterial also whether a person makes the propagation in his

individual capacity or on behalf of some church institution.
• If one makes an attempt to look at the secular aura in our
Constitution, the only point to reach is Article 25, which refers

• “Right to freedom of religion”. It reads thus– “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 to freely profess, practice and propagate religion”.
 In Bijoe Emmanuel v. State of Kerala (AIR 1987 SC 748)

• Also known as National Anthem case, the Supreme Court has upheld
the religious belief of the Jehovahs witness, a Christian community
not to praise anybody but for his or her own embodiment of God.

• In this case the children of Jehovahs witness were expelled from the
school for refusing to sing the National Anthem.
 Bijoe Emmanuel v State of Kerala – Case Analysis

• The very nature of the Fundamental Rights enshrined in our

Constitution many times brings them in controversy.

• While the Fundamental Rights are not absolute, the State is required
to guarantee them to every citizen apart from exceptional
circumstances.
• Even then, the Right to Life and Personal Liberty are somewhat
absolute.

• The exercise of these rights does not simply mean that a person can
do what he/she wants so far as it is in accordance with the law and
falls within the ambit of these rights; it also includes the choice of a
person to not do something, to abstain from something if it is in
accordance with the provisions of the Fundamental Rights.
• Speaking in this context, a major Fundamental Right that stands out is the
Right to Freedom of Speech and Expression, mentioned under Article
19(1)(a).

• With its reasonable restrictions, the right can be exercised without any
interference. But,
• what if such exercise clashes against the ideals of patriotism?
• Is it morally and legally correct to put one’s fundamental freedoms above
patriotism, and if yes, then to what extent?
• Or, are the two completely exclusive of each other?
• A significant case that came up against the Indian judiciary in this
matter was Bijoe Emmanuel v State of Kerala 1987 AIR 748., and it
sought to answer all these questions and cleared the path for future
references.
 Facts of Bijoe Emmanuel v State of Kerala

• Bijou, Binu Mol and Bindu Emmanuel were three students who were
enrolled in a school in the state of Kerala.

• Like every other student, they were disciplined, attended school

regularly, and also attended the morning assembly.

• But, when the assembly sang the National Anthem, the three
students did not sing it along with the rest of the students, although
they stood in attention when it was being sung.
• Two elder sisters of these students also studied in the school and did
not sing the National Anthem, however, nobody ever pointed it out or
objected to it.

• As for the students, they were followers of the religious faith of

Jehovah’s witnesses, and thus objected to the singing of the Anthem,
since as per their beliefs, they were not to indulge in any ritualistic
practice apart from being in prayer towards their God, Jehovah.
• One day, a member of the Legislative Assembly of Kerala was also
attending the morning assembly of the school, when he noticed that
the said students were not singing the National Anthem.

• Thinking that their behaviour was unpatriotic, he pointed the

students out and questioned the school, as a result of which a
commission was set up to look into the matter.
• Despite the commission’s findings that the students had always
carried good behaviour and had abided by the law at all times, the
headmistress of the school expelled the students after instructions
from the Deputy Inspector of Schools.

• The father of the students requested that his children be taken back
at least until an official order arrived, but the headmistress refused,
stating that she did not have the authority to do so.
• Aggrieved by this, the party moved to the High Court of Kerala, seeking
a restraining order against the authorities.

• It was rejected by a learned single judge bench as well as a division

bench of the same, on the basis that the National Anthem did not
comprise of any such words or thoughts that could possibly hurt the
religious sentiments of someone.

• The party then moved to the Supreme Court and instituted a Special
Leave Petition under Article 136 of the Constitution.
Arguments Raised in Bijoe Emmanuel v State of Kerala Case

• The main point of objection as against the appellants was that by not singing
the National Anthem, the students had displayed unpatriotic behaviour, and
had disgraced the Anthem by not singing it along with the rest of the
students.

• The argument raised by the petitioners in their defence was that the
students had always stood in attention when the National Anthem was
being sung, and had never shown any disrespect towards it.

• They did not sing only because their religious beliefs did not allow them to.
• The main issues raised in the petition were whether the expulsion of
the students from the school was justified, and whether such
expulsion was consistent with the Fundamental Rights of the students
under Articles 19(1)(a) and 25(1).
• The decision of the High Court, before the appeal to the Supreme
Court was made, was based on Section 36 of the Kerala Education
Act, 1958.

• As per the Section, the Act allows the state government to impose the
provisions of the Act to ensure a good standard of education in the
schools.
• As per the rules of the Act, the students were to be subject to good
moral education, which also included patriotism and love for the
country.

• Students who were guilty of mischief or fraud, or who were evidently

a bad influence on other students could be expelled from the school.

• The Education Authorities for the state of Kerala also followed two
circulars:
• A Code of Conduct for teachers and students, which stressed on
patriotism and other moral and spiritual values, and the compulsion
for every school to hold a morning assembly, where everyone would
sing the National Anthem and take the National Pledge.
• If these circulars were to be interpreted such that it was compulsory
for every student to sing the National Anthem despite their religious
faith, they stood in violation of Articles 19(1)(a) and 25(1) of the
Indian Constitution.
 Decision of Supreme Court

• Unlike the High Court, the Supreme Court took a liberal approach.

• It stated that Article 19(1)(a), which guarantees the Right to Freedom

of Speech and Expression, and

• Article 25(1), which gives the Right to Free Conscience, and to Profess,
Practice and Propagate the religion of their choice, both are clearly
violated, if every student is compelled to sing the National Anthem,
even if it goes against their faiths.
• The Court also said that there was no law that held guilty those who
disrespected the National Anthem just because they refused to sing it.
• As for the Prevention of Insults to National Honour Act, 1971, which
aims to protect the National Flag and other symbols of National
Interest, there is no obligation to stand up or sing when the National
Anthem is being played or sung.
• Section 3 of the Act lists punishment for those who provide hindrance
in the playing of the National Anthem, or cause disturbance during
the same, but then again, there is no punishment for not singing it or
not standing up for it.
• The Ministry of Home Affairs has come up with some rules regarding
the National Anthem, and they form a part of the Act.

• But the provisions do not contain any punishment in case they are
violated.

• Moreover, the Constitution presides over any such law, and the
Fundamental Rights cannot be taken away easily.
• In the instant case, even though the students did not sing the Anthem,
they did stand in respect towards it and did not pull any act which
would otherwise cause disturbance.

• Hence, the Court held that the students were not guilty of disrespect
to the National Anthem and were wrongfully expelled from the school.

• The Court also held that the philosophy of our country teaches
tolerance, and we should practice it.
• The Supreme Court held their religious practice was protected under
Article 25.
• Chinnappa Reddy, J., observed
• “that the question is not whether a particular religious belief or
practice appeals to our reason of sentiment but whether the belief is
genuinely and conscientiously held as part of the profession or
practice of religion. Our personal views and reactions are irrelevant. If
the belief is genuinely and conscientiously held it attracts the
protection of Article 25 but subject, of course, to the limitations
contained therein”.
• The Indian constitution provides for the individual as well as collective freedom of
religion.

• The basic guarantee of this right of individual freedom is in Art. 25 (1).

• This freedom extends to all persons including aliens underlined by Supreme Court
in Ratilal Panchand vs. State of Bombay.

• The Indian Constitution makes freedom of conscience as well as right to freely

profess, practice and propagate religion subject to state control in the interest of
public order, morality and health.
• But Supreme Court has made it clear that state can have no power over the conscience of
individual – this right is absolute.
• The Indian Penal Code (sections 295)makes it a crime to injure or defile a place of worship
or to disturb a religious assembly etc.

• What is the punishment of 295 in India?

• Section 295 of the I.P.C makes destruction, damage, or defilement of a place of worship or
an object held sacred, with intent to insult the religion of a class of persons, punishable
with imprisonment which may extend to two years, or with fine , or with both.
• even though these actions might be sanctioned by offender’s own religion.
• Practices like devadasi, sati may have religious sanctions but the state still has
constitutional power to ban them.
• Art. 25(2) grants to the state broad, sweeping powers to interfere in
religious matters.

• This reflects peculiar needs of the Indian society.

• The extensive modification of Hindu personal law has been by legislation

based on this provision.

• Art. 25(2) thus authorizes the state to regulate any secular activity
associated with religion, to legislate social reforms.
• Article 25 gives freedom for all to practice any religion they want. This
is a basic right guaranteed in the Constitution.

• Article 26 (Freedom to manage religious affairs), Article 27 (Freedom

as to payment of taxes for promotion of any particular religion) and

• Article 28 (Freedom as to attendance at religious instruction or

religious worship in certain educational institutions) can be considered
as the interpretations of the principle of secularism in the constitution.
• Art. 26 deals with the freedom to manage religious affairs.
Accordingly any religious denomination is given right to establish
religious institutions, acquire properties (movable and immovable)
and manage affairs regarding the religion.

•
• Art. 27 is also very important which reads –
• “Freedom as to payment of taxes for promotion of any particular
religion. – No person shall be compelled to pay any taxes, the
proceeds of which are specifically appropriated in payment of
expenses for the promotion or maintenance of any particular religion
or religious denomination.”
 Restrictions on the freedom of religion

• Restrictions to the enjoyment of Right to Religion:

• The right to religion guaranteed under Article 25 is not an absolute

right, like other rights this right too can be restricted for the purpose
of maintaining public order, morality and health.
• In addition Article 25 further exceptions are engrafted by clause (2) of
the Article.

• Sub-clause (a) of clause (2) saves the power of State to make laws
regulating or restricting any economic, financial, political or secular
activity which may be associated with religious practice and sub-
clause (b) reserves the State's power to make laws for providing for
social welfare and social reform even though they might interfere
with religious practices.
• In S.P. Mittal v Union of India, the Government enacted the Auroville
(Emergency Provision) Act, to take away the management of
Aurobindo Society property on the ground of mismanagement of
affairs.

• The petitioners challenged the validity of the said Act on the ground
that it violates Articles 25 and 26 of the Constitution.
• The Court held that teachings of Aurobindo did not constitute 'religion'
and therefore taking of Aurobindo Ashram did not infringe the Society's
right under Articles 25 and 26.

• It further held, even if it was assumed that the Society were a religious
denomination, the Act did not infringe its rights under Articles 25 and 26.

• The Act has taken only the right of management of property of Auroville,
in respect of secular matters, which can be regulated by law.
• Also, in Mohd. Hanif Quareshi v State of Bihar, the petitioner claimed
that the sacrifices of cows on the occasion of Bakr-Id was essential
part of his religion and therefore the State law forbidding the
slaughter of cows was violative of his right to practice religion.

• Court rejecting the argument held that sacrifice of cow on Bakr-Id

day was not essential part of the Mohamedan religion and hence
could be prohibited by State under Clause 2(a) of Article 25.
• In a another case State of West Bengal v Ashutosh Lahiri, the Supreme
Court held that slaughter of cows on Bakrid day is optional and not
obligatory.

• It is not essential or required for religious purpose of Muslim.

• Article 25 deals with essential religious practices.

• Is sacrifice of cows allowed at the time of Bakr-Id in India, is it a
personal question or is there legal precedence:
• Cow slaughter at the time of Bakr-Id/ W.P. 16749 (W) of 2011. (PIL)
Rajesh Yadav & Ors. Vs. State of West Bengal & Ors.
• Is sacrifice/slaughter of cows allowed on Bakr-Id in India?
• Is it a personal choice?
• What does the India law say?
The Supreme Court of India, in the matters of

• M. H. Qureshi vs. State of Bihar reported in AIR 1958 SC 731, and

• State of West Bengal & Ors. vs. Ashutosh Lahiri and Others reported in AIR
1995 SC 464,

• and the Calcutta High Court in the matters of Rajesh Yadav & Ors. vs. State
of West Bengal & Ors.,

• and Kedarnath Brahmachari & Ors. vs. The State of West Bengal & Ors.
reported in 1982 (II) CHN 273, have all held that:
• Any slaughter which is not a part of the RELIGIOUS REQUIREMENT of
Muslims, is not permitted in law; and

• The fact “that a substantial part of the Muslim community does take
to cow slaughter on such an occasion” does not make it a part of the
religious requirement of Muslims on the occasion of Bakr Eid, and
therefore, cannot be regarded as permitted, or exempt from the rigor
of the law.
• The Supreme Court of India, in the matters of M. H. Qureshi vs. State
of Bihar reported in AIR 1958 SC 731, and State of West Bengal & Ors.
vs. Ashutosh Lahiri and Others reported in AIR 1995 SC 464, and the
Calcutta High Court in the matters of Rajesh Yadav & Ors. vs. State of
West Bengal & Ors., and Kedarnath Brahmachari & Ors. vs. The State
of West Bengal & Ors. reported in 1982 (II) CHN 273, have all held
that :
• any slaughter which is not a part of the RELIGIOUS REQUIREMENT of
Muslims, is not permitted in law ; and

• The fact “that a substantial part of the Muslim community does take
to cow slaughter on such an occasion” does not make it a part of the
religious requirement of Muslims on the occasion of Bakr Eid, and
therefore, cannot be regarded as permitted, or exempt from the rigor
of the law.
• Extract from judgment of the Calcutta High Court, that refers to the other 3
judgments mentioned above :
• 13.10.2011.
• W.P. 16749 (W) of 2011.
• (PIL)
• Rajesh Yadav & Ors. Vs. State of West Bengal & Ors.
• ——– excerpts of the judgment —–
• Since decades, the point has cropped up whether the sacrifice of the cow on Bakr
id Day is an essential part of the religious requirement of the Musalmans, the
Division Bench of this Court in case of Kedarnath Brahmachari & Ors. vs. The State
of West Bengal & Ors. reported in 1982 (II) CHN 273 held :
• Next we proceed to consider the case of the petitioners on its merit
we find that in the case of

• M. H. Qureshi v. State of Bihar AIR 1958 SC 731 the Supreme Court

had gone into the disputed point specifically when it was held that
sacrifice of a cow on Bakr id Day is not an obligatory overt act for a
Musalman to exhibit his religious belief and ideas.
• The very contention in this regard which has been put forward before
us by the learned Advocate General, namely, that a substantial part of
the Muslim community does take to cow slaughter on such an
occasion was also advanced before the Supreme Court on that
occasion but the Supreme Court rejected the said contention in
holding that notwithstanding such sacrifice by a number of
Musalmans, such slaughter cannot be considered to be a part of
religious requirement.
• In the present case, we find that when respondent nos. 2 to 16
granting exemptions under S.12 and permitting cow slaughter on the
Bakr id Day, they are doing so for no purpose other than religious
purpose. But there, the said respondents are totally over looking that
such slaughter cannot be a religious purpose because it is not a part
of the religious requirement for the Musalman that a cow or that any
of the scheduled animals required to be sacrificed in observing Bakar
id.
• A sacrifice which is not a part of the religious requirement cannot, in
our view, be sanctioned on the ground of religious purpose within the
meaning of S. 12 of the said Act.

• In that view, we cannot but except the contention of Mr. Chakravarti

that exemptions under S. 12 of the said Act which are being granted
for slaughter of cows on the Bakar id Day are really de hors the
statute not being within the sanction of the said provision.
• The Apex Court in case of State of West Bengal & Ors. vs. Ashutosh
Lahiri and others reported in AIR 1995 SC 464 laid down the
proposition that the sacrifice of the cows on auspicious day of Bakr id
is not imperative but optional religious rituals in following words.
• In this connection, Das C.J., referred to the historical background
regarding cow slaughtering from the times of Mughal Emperors.

• Mughal Emperor Babar saw the wisdom of prohibiting the slaughter

of cows as and by way of religious sacrifice and directed his son
Humayun to follow this.
• Similarly, Emperors Akbar, Jehangir and Ahmed Shah, it is said, prohibited
cow slaughter.

• In the light of this historical background it was held that total ban on cows
slaughter did not offend Art. 25 (1) of Constitution.

• In view of this settled legal position it becomes obvious that if there is no

fundamental right of Muslim to insist on slaughter of healthy cow on Bakri
Idd day, it cannot be a valid ground for exemption by the State under S 12
which would in turn enable slaughtering of such cows on Bakri Idd.
• The contention of learned counsel for the appellant that Art. 25 (1) of
the Constitution deals with essential religious practices while S. 12 of
the Act may cover even optional religious practices is not acceptable.

• No such meaning can be assigned to such an exemption cause which

seeks to whittle down and dilute the main provision of the Act,
namely S.4 which is the very heart of the Act.
• If the appellants’ contention is accepted then the State case exempt
from the operation of the Act, the slaughter of healthy cows even for
non-essential religious, medicinal or research purpose, as we have to
give the same meaning to the three purposes, namely, religious,
medicinal or research purpose, as envisaged by Sec. 12.
• It becomes obvious that if for fructifying any medicinal or research
purpose it is not necessary or essential to permit slaughter of healthy
cow, then there would be no occasion for the State to invoke
exemption power under S. 12 of the Act for such a purpose.
• Similarly it has to be held that if it is not necessary or essential to
permit slaughter of a healthy cow for any religious purpose it would
be equally not open to the State to invoke its exemption power under
S. 12 for such a religious purpose.

• We, therefore, entirely concur with the view of the High Court that
slaughtering of healthy cows on Bakri Idd is not essential or required
for religious purpose of Muslims or in other words it is not a part of
religious requirement of a Muslim that a cow must be necessarily
scarified for earning religious merit on Bakri Idd.
• In view of above, we expect and hope that the State shall make all
efforts or take all endeavours to see that the provision of the West
Bengal Animal Slaughter Control Act, 1950 is not violated or flouted in
any manner whatsoever.
• State Acting towards Social Welfare and Social Reforms:
• Under clause (2)(b) of Article 25, the State is empowered to make
laws for social welfare and social reforms.

• Under this the State can eradicate those evil practices, which are
under the guise and name of the religion.

• Example, the devadasi system, the Sati system etc.

• The State can throw open Hindu religious institutions of public
character to all Hindus.

• Article 25(2)(b) enables the State to take steps to remove the

untouchability from amongst Hindus.

•
• But this does not mean the right is absolute and be unlimited.

• The Supreme Court in Shastri Yagnapurushdasji v Muldas Bhundardas

Vaishya 1966 AIR 1119, 1966 SCR (3) 242

• makes it clear that the State cannot regulate the manner in which the
worship of the deity is performed.
SASTRI YAGNAPURUSHADJI AND OTHERS Vs MULDAS BRUDARDAS
VAISHYA AND ANOTHER
Facts:

The instant case arises in the Supreme Court of India as an appeal from
the decree of Judgement of Bombay High Court dated 3rd October, 1958
in First Appeal No. 107 of 52.

The appellant were the followers of Swaminarayan sect, and were known
as Satsangis. Through there suit they apprehended that the respondent
No. 1, Muldas Bhudardas Vaishya, who was the President of Maha Gujrat
Dalit Sangh at Ahmedabad, intended to assert the rights of non-satsangi
Harijans to enter temple of Swaminarayan sect, Ahmedabad in exercise of
their legal rights conferred by section 3 of the Bombay Harijan Temple
Entry Act, 1947.
• The appellant contended that the Swaminarayan sect represent a
distinct and a separate religion and that there temple were outside
the purview of the Act of 1947.

• Therefore a declaration was sought to give make section 3 of the

Bombay Harijan Temple Entry Act, 1947 as nugatory.
• But pending these proceeding the Bombay Act No. 77 of 1948 came in
force and later on 26th January 1950, the Constitution itself came into
force.

• But the appellant contended that the former Act after amendment did
not apply to the temples of Swaminarayan sect.

• But the respondent contended that the said suit was not tenable at law
by the provision of Section 5 of the former Act and that the appellant
had no right to represent the Satsangis of Swaminarayn sect.
• The respondent also averred that many satsangis were in favour of
Harijan’s entry into the temple despite the fact that the Harijans were
not the followers of Swaminarayn sect.

• The Trail Court held that the former Act was intra-vires of the
legislative power of the Bombay State.
• The Court came to the conclusion that it could not be established that
the said temple was not used by non-satsangi Hindus as places of
religious worship by custom, usage or otherwise.

• Hence the judgement was passed in the favour of the appellants and
the required declaration and injunction were passed in their favour.
• Aggrieved by the decision the respondent filed an appeal to the High
Court.
• The point to be considered by the High Court was to decide whether
the appellant was served with any relief from the former Act.

• But after the hearing the High Court sent back the case to the Trail
Court to determine that whether the Swaminarayan Temple at
Ahmedabad were religious institution within the meaning of Article
25(2)(b) of the Constitution.
• The Trail Court upon the evidence adduced held that the
Swaminarayan temple was a Hindu religious institution within the
meaning of Article 25(2) (b) of the Constitution. And the said decree
was taken to the High Court for final disposal.

• The High Court also held that the by pursuing the facts of the case it
was impossible to hold that the followers of Swaminarayan sect did
not profess Hindu religion and did not form a part of Hindu
community.
• The appellant in their plaint itself had described themselves as Hindus
and according to the census of 1951 the followers of the sect raised
no objection to their being described as Hindu.

• It was against the decree of the High Court that the issue was
appealed to the Supreme Court of India on a certificate issued by the
High Court.
• Issue:

• Whether the decree passed by the Bombay High Court that

Swaminarayan Sampradaya was not a religion distinct from the Hindu
religion and that the temples of the said sect fell within the provisions
of the Bombay Hindu Places of Public Worship (Entry Authorisation)
Act, 1956 (No. 31 of 1956), was correct or not.
Obiter Dicta:

• Hindu religion is one which do not observe any one God or power, it do not
subscribe to any one dogma, it is neither made of any one concept of
philosophy, nor does it follow any one set of religious rites or performance. In
fact, it does not appear to satisfy the narrow traditional features of any religion
or creed. It may broadly be described as a way of life and nothing more.

• The system of Hindu philosophy is rooted upon the belief that there is birth
and rebirth. One’s life is a step on a road, the path and the aim of which are
lost in infinity. On this journey, death is not an obstruction but a beginning of a
new dawn.
• The growth and development of Hindu religion through the ages
shows that whenever a saint or a religious reformer attempted the
task of reforming Hindu religion and fighting irrational or corrupt
practices which had crept into it, a sect was born which was
governed by its own tenets, but which basically subscribed to the
fundamental notions of Hindu religion and Hindu philosophy. It has
never been suggested that these sects are outside the Hindu
brotherhood and the temples which they honour are not Hindu
temples.”
Ratio Decedendi:
• In 1958, the Bombay Harijans Temple Worship (Removal of
Disabilities) Act was passed. The objective was to feel the pulse of
Hindu community and to watch its reaction to the breakthrough of
citadel of orthodoxy against Harijans. It basically tried to adopt steps
for withering away with untouchability.

• Even the former Act of 1947 made a positive contribution to the

satisfactory solution of the sufferings of the Harijans. It allowed the
Harijans to offer worship in temple which included attendance in the
temple for the purpose of darshan of a deity in the precincts thereof.
• Later on by Article 17 of the Constitution of India, untouchability was
categorically abolished and its practice in any form was forbidden. Any
disability arising therefrom was made an offence punishable in accordance
with law.

• The Untouchability (Offences) Act, 1955 provides comprehensive provisions

for giving effect to the solemn declaration made by the Article 17 of the
Constitution of India.
• Section 3 of the Act opens Hindu temples to all classes of Hindu community
and discourages all efforts that restricts the right of Harijans to enter Hindu
Temples.
• The appellant’s contention that the provision of Section 3 was so wide
that even the most sacred worship of the idols which was reserved for
the poojaris could be claimed by the respondent and its followers,
was held by the Court as misconceived. Since the contention was not
raised in the plaint the Court held that it was illegitimate of the
appellant to raise a new contention.

• Besides the Bombay Legislature obviously did not intend to invade or

narrow the traditional rites in which the actual worship of deity was
allowed.
• The basic right which Section 3 permitted was the attendance if the
Harijans within the Temple up to a specified limit up to which all other
people of Hindu community was allowed and not to obstruct or
invade to the special limit of the poojaris.

• Monier Williams had observed that “it must be borne in mind that
Hinduism is far more than a mere form of theism resting on
Brahmanism. The Hindu religion is a reflection of the composite
character of the Hindus, who are not one people but many. It is based
on the idea of universal receptivity.”
• The Hindu religion had developed in pursuit of endless quest of mind
for truth upon the consciousness that truth has many facets.

• Truth is singular but its description is plural. Eminent philosophers like

Shankar, Ramanuja, Vallabha and Madhva all based their philosophical
premises on the synthesis between the Upanishads, the Brahma sutras
and the Bhagavad Gita.

• The premises of Hinduism was found upon the spirit of tolerance and
willingness of accepting the contrary view points of all.
• Tilak propounded that “Acceptance of the Vedas with reverence;
recognition of the fact that the means or ways to salvation are
diverse and realisation of the truth that the number of gods to be
worshipped is large, that indeed is the distinguishing feature of
Hindu religion”
• Due to mandate of Constitution with regard to revoking
untouchability U/A 17, the nation saw numerous by-products of such
mandate, such as the Hindu Marriage Act, 1955; the Hindu Succession
Act, 1956; the Hindu Minority and Guardianship Act, 1956 which
extended its application to all person of Hindu community.
• Hon’ble Court held that Swaminarayan in pursuance of Hindu
philosophy was the follower of Ramanuja. His teachings involved
pursuing Vedic injunction of a good, pious and religious life and
should thrive to achieve salvation by the path of devotion to Lord
Krishna.
• Insisting upon the devotion to Lord Krishna unambiguously proclaim
that Swaminarayan was a Hindu saint who was adamant to set free all
corrupt practises which had crept in the lives of various preachers and
followers of Vallabhacharya. Swaminarayan had fixed the goalpost to
restore the Hindu religion its original glory and purity.
• Whenever a religious reformer attempted to eradicate the corrupt
practices that crept into it, a sect was born which was govern by its
own tenets, and that they rooted in Hindu religion and were not
outside its purview.

• The contention that Swaminarayan himself was worshiped in this

particular temple and it should not be for that reason be regarded as
Hindu Temple was misconceived notion.
Judgment:
• The Apex Court’s bench comprising of Gajendragadkar, P.B. (CJ),
Wanchoo, K.N, Hidayatullah, M., Ramaswami, V., Satyanarayanaraju,
P, held the following:

• Whenever there is a spike of irreligion, a God is born to restore the

balance of religion and to escort the destiny of human race towards
salvation.
• That the birth of every such saint and religious preacher is an example
of such principle as expounded by Bagdad-Gita. Hence the view of
High Court was upheld.
• Swaminarayan sect was held to be not distinct from the Hindu religion
and hence the temple of the said sect was well within the ambit of
Section 2 of the Act.

• The right of Harijans to enter upon temple had been vouchsafed by

the impugned Act. The social justice is main foundation of the
democratic way of life as enshrined by the Constitution of India.

• Appeal was dismissed with costs.

• Conclusion:
• Hence the Supreme Court not only upheld the propositions of High Court but also the
interest of the backwards section of the Hindu society which remained unheard for
decades.

• With the enforcement of the Constitution the Supreme Court was entrusted with the
duty to ensure that the rights of the minorities irrespective of their religion or caste or
creed or sex was safeguarded.

• The view of the apex court that Hinduism was not a religion but a way of life had
been/has been and will be reiterated whenever a section suffers from religion
discrimination.
• Whereas it justifies banning of polygamy amongs hindu in State of
Bombay v Narasu.
•
• What the Courts have tried to do is to separate 'religious' activities
and 'social and secular' activities, the former are protected under
Article 25 the latter are not.
 In Ismail Farooqi v Union of India, ((1994) 6 SCC 360)

• the Supreme Court has tried to differentiate between "essential parts" of religious
practice.

• It has held that offer of prayer or worship is a religious practice; its offering at every
location where such prayers can be offered would not be essential religious practice.

• What is protected under Articles 25 and 26 is a religious practice, which forms an

essential part of religious practice.

• Thus, a place of worship may be acquired by the State in exercise of its supreme power.
• Thus places of worship be it temples, mosques or churches can be acquired.
 Right to manage religious affairs

• Article 26 says that: Subject to public order, morality and health, every
religious denomination of any section have the following rights:

• (a) to establish and maintain institutions for religious and charitable purposes;

• (b)to manage its own affairs in the matters of religion;

• (c) to own and acquire moveable and immoveable property;

• (d)to administer such property in accordance with law.

• The right guaranteed by Article 26 is the right of an ‘organized body or
entity’ like the religious denomination or any section thereof.

• The word ‘denomination’ can be understood as a collection of

individuals, classed together under the same name; generally
religious sect or body having a common faith and organization and
designated by a distinctive value.
• In S.P. Mittal the SC states that, the words ‘religious denomination’ in
Article 26 must take colour from the word ‘religion’ and therefore as
described in the case of
• Achaiya Jagdishwaranand Avadhuta v Commissioner of Police, Calcutta
it must also satisfy three conditions:
• (1) It must be collection of individual who have a system of beliefs,
which they regard as conducive to their spiritual well being, that is
common faith;
• (2) It must have a common organization; and
• (3) it must have distinctive name.
• Thus in the large sense 'Hinduism' is a denomination and to some extend
various philosophies governing the Hindu Society,
• such as
• Advaitas,
• Dwaitas,
• Visishtadwiatas and
• Shaivites can also be termed as denomination.
• On this base the SC held that "Anand Marg" is a religious denomination
within the Hindu religion in
• Shastri Yagnapurushdasji v Muldas Bhandardas Vaishya.
• Clause (a) of Article 26 talks about right to establish and maintain
institutions for religious and charitable purpose —

• “Every religious denomination has right to establish and maintain

institutions for the religious and charitable purposes”.
The words “establish and maintain”

• in Article 26(a) must be read together and therefore it is only those

institutions, which a religious denomination establishes, which it can
claim to maintain it.

• Thus in S. 24 Azeez Basha v. Union of India, the Supreme Court held

that the “Aligarh University was not established by the Muslim
minority and therefore it could not claim the right to maintain it”.

• It was established under the Statute passed by the Parliament.

• Clause (b) of Article 26 says about right to manage ‘matters of religion’-
a religious denomination or organization is free to manage its own
affairs in matters of religion.

• The State cannot interfere in the exercise of this right unless they run
counter to public order, health or morality.

• Accordingly every religious denomination or organization enjoys

complete freedom in the matter of dealing what rites and ceremonies
are essential according to the tenet of the religion they hold.
• The Court has the right to determine whether a particular rite or
ceremony is regarded as essential by the tenet of the particular
religion.

• The “matters of religion” means that secular activities connected with

religious institution can be regulated by State.
• The places of worship like temples, mosques, Gurudwaras cannot be
used for hiding criminals or carrying on anti-national activities.
•
• They cannot be used for political purpose.

• The State has power under Article 25(1) and clause (2) to prohibit
their activities in the places of worship
• In Athiest Society of India,
• Nalgonda District Branch v Government of Andhra Pradesh,

• the petitioner, Atheist Society of India, prayed for issuing a writ of

mandamus directing the State Government to prohibit breaking of
coconuts for performing of Pooja, chanting of mantras or sutras of
different religions in religious functions organised by the State.
• The Andhra Pradesh High Court rejected their prayer and held that
these activities have been a part of the Indian tradition and are meant
to invoke the blessings of almighty for the success of the project
undertaken.

• Such noble thought cannot be found fault with as offensive to anyone.

• May be that the petitioner Society who claim to be atheist do not

appreciate invocation of Gods as they do not believe in God.
• There is no constitutional guarantee to the faith of the atheist who
worships barren reason that there is no God.

• It is not the object of Constitution to turn the country into irreligious

place. A secular State does not prohibit the practices of religion.
• If that is parented it will infringe the rights of millions of Indians,
which are guaranteed to them under Article 25 and will run directly
contrary to the secular objectives of preamble to the Constitution,
which is one of the basic structures.

• It would deprive them of their right of thought, expression, belief,

faith and would amount to abolition of Indian tradition and religious
practices.
• Clauses (c) and (d) of Article 26 says that right to administer property
owned by denomination.

• It is to be noted that the rights under clauses (c) and (d) of Article 26
are confined to the existing rights to administer its property by a
religious denomination cannot be destroyed or taken away
completely.
• It can only be regulated by law with a view to improve the
administration of property.

• Thus the law must leave the right of administration of property to the
religious denomination itself subject to such restrictions and
regulations as it might choose to impose.
• Thus in Ratilal’s case, a law which took away the right of
administration altogether from religious denomination and vested it
in other secular authority was held to be violative of right guaranteed
by Article 26(d).
• However, if the right to administer property had never vested in the
denomination or had been validly surrendered by it or had otherwise
been lost, Article 26 will not create any such right in religious
denomination.
 Religious Minorities and law

• Right to religion
• The Universal Declaration of Human Rights:
• The Universal Declaration of Human Rights, 1948 recognizes the right
to religion in Art. 18 which say that
• “Everyone has the right to freedom of thought, conscience and
religion; this right includes freedom to change his religion or belief;
and freedom, either alone or in community with others in public or
private, to manifest his religion or belief in teaching, practice, worship
and observance”.
• That makes it clear that an individual who is ‘born free’ also has
freedom to manifest his religious beliefs as he is free to practice any
religion, he is also free to change his religion.

• Either he automatically adopts the religion practiced by his parents

after his birth or has freedom to choose his own.

• It is his absolute choice to profess his religion in private and if he

wishes he may join any religious group.
 Civil and Political Convention 1966

• In the Civil and Political Covenant, 1966, the right to religion is discussed as
follows:
• Article 18 ;
• 1. Everyone shall have the right to freedom of thought, conscience and
religion.
• This right shall include freedom to have or adopt a religion or belief of his
choice, and freedom, either individually or in community with others and in
public or private, to manifest his religion or belief in worship, observance,
practice and teaching.
• 2. No one shall be subject to coercion, which would impair his freedom to
have or to adopt a religion or belief of his choice
• 3. Freedom to manifest one's religion or beliefs may be subject only
to such limitations as are prescribed by law and are necessary to
protect public safety, order, health, or morals or the fundamental
rights and freedoms of others.

• 4. The State Parties to the present Covenant undertake to have

respect for the liberty of parents and, when applicable, legal guardian
to ensure the religious and moral education of their children in
conformity with their own convictions.
 Declaration on religious Discrimination, 1981

• The Declaration on the Elimination of All forms of Intolerance and of

Discrimination Based on Religion or Belief adopted by General
Assembly of UN in 1982 states in Article 1,
• 1. Everyone shall have the right to freedom of thought, conscience
and religion.
• This right shall include freedom to have a religion or whatever belief
of his choice, freedom either individually or in community with others
and in public or private, to manifest his religion or belief in worship,
observance, practices and teaching.
• 2. No one shall be subject to coercion, which would impair his
freedom to have a religion or belief of his choice.

• 3. Freedom to manifest one's religion or belief may be subject only to

such limitations as are prescribed by law and are necessary to public
safety, order, health, or morals or the fundamental rights of freedoms
of others.
• Right not to be taxed to promote a religion:

• Individual freedom of religion is further strengthened by Article 27

prohibiting religious taxation.

• Article 27: No person shall be compelled to pay any taxes, the

proceeds of which are specifically appropriated in payment of
expenses for the promotion or maintenance of any particular religion
or religious denomination.
• To maintain the “secular” character, the Constitution guarantees
freedom of religion to individuals and groups, but it is ‘against the
general policy of the Constitution that any money being paid out of
public funds for promoting or maintaining any particular religion’ as
stated in Commissioner HRE v. L.T. Swamiar.
• Therefore Article 27 lays down that no person
• "shall be compelled to pay any taxes, the proceeds of which are
specifically appropriated in payment of expenses for the promotion or
maintenance of any particular religion or religious denomination."
• The Supreme Court in various decisions has tried to differentiate
between tax and fee.
• Tax is in nature of compulsory exaction of money by public authority
for public purposes the payments of which are imposed by law.
• Tax is imposed for public purposes to meet general expenses of State.
Tax is collected and merged with the general revenue of the State. Tax
is a common burden.
• Fees on the other hand is payments primarily in public interest lent
for some special work done for the benefit of those from whom
payments are demanded.

• Article 27 prohibits imposition of the tax and not fee.

• Thus fee can be levied as decided in Jagannath Ramanuj Das v State of
Orissa, the Government's imposition of fee on temples whose annual
income exceeds Rs. 250 for meeting the expenses of Commissioner
and Officers and Servants was held valid.
• As decided by SC
• in Bira Kishore v State of Orissa,
• the Grant of money by State for renovating water tanks belonging to
Lord Jagannath was held to be valid under Article 27, for these tanks
were used by the general public for bathing and drinking purposes.
• As a result in K. Raghunath v State of Kerala,
• after the communal riots some places of worship were destroyed, the
Government agreed to meet the cost of restoring these places.
• It was also held valid.
• Restriction on religious instruments in educational institution:
• Article 28. –
• (1) No religious instruction shall be provided in any educational
institution wholly maintained out of State funds.

• (2) Nothing in clause (1) shall apply to an educational institution

which is administered by the State but has been established under
any endowment or trust which requires that religious instruction shall
be imparted in such institution.
• (3) No person attending any educational institution recognised by the
State or receiving aid out of State funds shall be required to take part
in any religious instruction that may be imparted in such institution or
to attend any religious worship that may be conducted in such
institution or in any premises attached thereto unless such person or,
if such person is a minor, his guardian has given his consent thereto.
• Art. 28(3) which forbid compulsory religious instruction or worship in
state aided institutions strengthen Art. 25 (1).
• According to Article 28( 1) no religious instruction is to be provided in
any educational institution, which is wholly maintained out of State
funds.
• Under Article 28(2) this restriction would 28 not apply to educational
institutions, which though administered by the State, has been
established under an 'endowment' or 'trust' requiring that religious
instruction should be imparted in such institutions.
• According to Article 28(3) no person attending any educational
institution recognized by the State or receiving aids out of State funds
shall be required to take part in any religious instruction imparted in
the institution, or to attend any religious worship conducted in the
institution thereto, unless he consents to do voluntarily or, if a minor,
his guardian gives consent for the same.
 Cultural and Educational Rights

• The constitution keeps the spirit of secularism by making a space to

all the religious protecting the interest of minorities respecting their
right to development.

• Art 29 and 30 guarantee certain cultural and educational rights to

cultural, religious and linguistic minorities.
• Article 29
• (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.
Article 30

• (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.
• (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.
• Question for self learning
• I. Write true or false:
• 1. Secularism is an official policy of India. ( )
• 2. During the ancient period politics was a dominant factor in the human
• society ( )
• 29
• 3. Some countries have religion as the base for their Government. ( )
• 4. Unity in diversity is a base for Indian cultural nationalism. ( )
• II. Choose the correct answer:
• 1. Secularism is followed in
• a) India b) Turkey c) Pakistan
• 2. The forty second amendment in Indian constitution was made in the year
• a) 1976 b) 1977 c) 1978
• 3. Indian constitution was adopted in the year
• a) 1935 b) 1950 c) 1947
• III. Write briefly:
• 1. How can we promote secularism?
• 2. Write short notes on 42nd amendment.
• 3. Write short note on Religious Fanaticism
• IV. Write in detail:
• 1. Discuss the concept of Secularism as highlighted by the Constitution.
• 2. Explain how our Indian constitution is purely secular in character.
• 3. Discuss the effect of terrorism on the secular fabric of India
• Let us sum up
• The decision arrived at by the judges in the S.R. Bommai’s case and
Ismail Faruqui’s case reemphasized the concept of secularism being
the basic feature of the Constitution.
• The only issue relating to the basic feature was whether secularism is
a basic feature of the Constitution, which was answered in the
affirmative.
• It would be thus clear that Constitution made clear demarcation
between religious part personal to the individual and secular part
thereof.
• The State does not extend patronage to any religion; State is neither
pro-any particular religion nor anti-any particular religion.
• It stands aloof, in other words, it maintains neutrality in matters of
religion and provides equal protection to all religions subject to
regulation and actively act on secular part.
• Acquisition of certain land under Ayodhaya Act, 1993 was held to be
negation of law and therefore invalid and the court held that the
greatest religious tensions are not those between any one religion
and another; they rather are the tensions between the
fundamentalist and pluralist in each and every religious tradition.
• The intention of the constitutional guarantee on minority rights, as
we understand it is to promote and to protect the distinctiveness of
religious and linguistic minorities in the country.
• Secularism may be defined as the “neutrality of the state in matters
relating to religion or creed”. It may also be understood as ‘non-
patronizing’ attitude of the state to any one religion.
• In a secular state, there is no state religion and every citizen is free to
preach, practice and propagate any religion.
• Thus, secularism defines the way the people of a country carry on their
individual affairs as also their behavior towards others.
• The hatred of statues in Islam emanate from Islam's intense hatred of
Idol worship, over which Muslim never fail to point fingers at Hinduism.
• In reality, true Hinduism, the Sanatan Dharma, is monotheistic like Islam.
• Glossary Religion:
• faith, belief, religious conviction, a way of life Secularism: Secularism a
concept were one is free of all religious convictions.
• In Indian constitution it means ‘no religion for state’.
• That does not mean denial of God or religious believes in fact in
Indian context it means equality of all religious i.e. Sarva Dharma
Sambhav.
 Religion and Its Role in Society
By
Prof.(Dr.)Ganta Satyanarayana

• What is Religion?
• It can openly be admitted that in defining religion, most of the Indian
thinkers follow the definition given by the western thinkers.
• As the western thinkers believe that the religious approach is theistic
in its nature, so the Indian thinkers maintain that religion is some
form of theism.
• This view of western thinkers seems to be an echo of a Scottish
theologian and philosopher Robert Flint.
• According to Flint, both theism and religion are one and the same
thing. In his lecture he says the impossibility of anything more than
theism.
• Similarly, there is no religion which is less than theism.
• This point is stated by William James in another way.

• He says, “Anything short of God is not rational, anything more than

God is not possible.”
• Another definition of religion is given by Galloway which is definitely
applicable to theism.
• According to him, “Man‟s faith in a power beyond himself whereby
he seeks to satisfy emotional needs and gains stability of life, and
which he expresses in acts of worship and service.”
• 2 By this definition Galloway tries to maintain that the essential
feature of religion is a faith in a power beyond men which satisfies the
emotional aspect of men.
• In explaining the meaning of religion Taylor says that religion is the
belief in spiritual beings.
• But his explanation of the meaning of religion does not satisfy a
rational mind as he does not give us a clear picture of the nature of
spiritual beings.
• Max Muller, a German born philosopher, gives us a vague definition of
religion.
• While explaining the nature of religion he says that in religion infinite
is perceived
• There are three different aspects of religious consciousness, viz.,
intellect, feeling and action.
• But while defining religion different thinkers emphasise either of the
aspects.
• According to Herber Spencer, religion is a type of hypothesis by which
people attempt to comprehend the universe.
• His definition thus emphasizes the intellectual aspect of religion.
• Other thinkers like Mc Taggard emphasizes on the emotional aspect
neglecting other aspects.
• Similarly, Frazer‟s definition of religion emphasizes only the volition
and action.
• But the definition of religion seems to be more or less satisfactory is
put forwarded by Robert Flint, as he embraces all the three aspects of
religion.
• According to him,
• “Religion is man‟s belief in a being or beings mightier than himself
and inaccessible to his senses but not indifferent to his sentiments
and actions, with the feelings and practices which flow from such a
belief.”
• The above mentioned definition and analysis of religion is not sufficient.
• There are so many definitions of religion given by different thinkers at different
period of history but none can give us a complete picture of it.
• “Religion is hard to define, not because there is so little of it, but because there
is so much.”
• 3 It is fact that God is the central element of religion and men have implicit
confidence on Him and they exercise all their attempts to make commune with
Him.
• Thus without mentioning this aspect of religion no definition of it can give us a
complete picture of religion.
• Readings from World Religions, Compiled by Champion & Short, p-1
• Origin of the concept of religion
• There are different theories regarding the origin of the concept of religion. But it
cannot be certainly said that when and how religious ideas emerged in man.
• It is also certainly cannot be said that what is the origin of the ideas of religion.
• All these are due to the fact that there is no broad consensus amongst the
thinkers of this field regarding the origin of religion.
• But there are people who firmly believe that religious ideas are instinctive in man.
• No other animals except man bear this instinctive feature.
• Man can be distinguished from other animals from two angles: reason and religion
• Man possesses reason while other animals do not and that is why men are
called „rational animals‟.
• Similarly, men are religious while other animals are not. Men bear both
finite and infinite features.
• At the very inception of human race on earth, men were totally ignorant
about the different events that occurred in nature around them. But they
were curious to know the happenings and accordingly, they applied their
own efforts.
• They had to face the different natural calamities like storms, floods,
lightning; dangerous animals, famine etc. and they were unable to overcome
these situations
• As a result, they had to imagine an invisible power mightier than themselves upon
whom they depended for assistance, strength and relief.
• Thus fear and curiosity are the main factors responsible for the emergence of religious
tendency in ancient people.
• They also believed that this unseen and invisible power would be helpful in their birth,
sorrow, old age and finally in obtaining salvation.
• They sometimes conceived God as their object of love.
• There are different forms such as, father, friend, lover, beloved, master through which
they tried to attain relation with God.
• Thus, in order to meet their ignorance and to get strength and courage to face natural
calamities, men time and again depended on an imaginary existence, the result of
which is named „God‟ in religion.
• Different aspects of religion
• There are different aspects of religion such as, internal and external, individual and social.
• In religious consciousness an emotional element is present.
• The emotional elements are- ideas, thoughts and feelings.
• Not only that, it also concerns man‟s relation to God.
• Thus these emotional elements as well as intellectual elements are referred by internal
aspect.
• Apart from this an important aspect of religion is practical activities such as, rites and
ceremonies.
• These practical activities are different ways through which men express their religious
feelings.
• Thus these practical activities are referred in external aspect of religion.
• But although it is claimed that God is the central element of religion, there are religion
without God or gods.
• Some of these religions are-Buddhism, Jainism and Comte‟s religion of humanity.
• Crawley also holds that the fundamental feature of religion is „sacred ceremony‟.
• He believes that religion is possible without making any reference to God or gods.
• But there are thinkers who are of the opinion that without reference to God the true
sense of religion is not possible.
• Many others claim that those who do not believe the reality of God in their religion,
there is reference of communion between „man‟ and something beyond man‟ in their
religion
• Religion is, in fact, an individual matter. It is individual who acquires
religious experience and he has conviction on it.
• He personally realizes religious experiences in his life.
• He believes that salvation can be attained through performing religious
activities.
• But to a social philosopher, social aspect of religion is more important and
carries greatest significance.
• This social aspect is emphasized by all the great religions of the world.
• It is because of the fact that religion plays an important role in
maintaining social unity, its promotion and maintenance.
• The religion which emphasizes this social aspect is the religion of
humanity, although in traditional sense this aspect is not recognized
as religion.
• In emphasizing the social aspect of religion Blackmar and Gillin, the
famous sociologists say that without community worship, no religious
faith can survive for long time.
• They are of the opinion that a living religion may lose all its
importance if the believer and worshiper of that religion ceases to
worship together.
• Role of religious institutions in society
• As religion so its institutions also play an important role in social life.
None can deny the fact that the different kinds of social institutions
such as, domestic, economic and political influence on religious
institutions. But it is also true that these institutions are sometimes
influenced by religious institutions. An important aspect of religion is
prayer and different classes of people belonging to different castes of
society assemble I religious institutions for performing prayer and
worship.
• By these activities there forms common feelings which thereby further
generate a common sentiments and fellowship amongst the worshipers of a
particular religion.
• Sometimes it is found that the members of a particular religion unite together,
and for the greater interest of the society they perform different humanitarian
activities.
• It is evident from the above that religious institutions perform not only their
religious activities , they also discharge different types of activities related to
social welfare such as, charitable hospitals, schools, homes for the homeless.
• These institutions also run orphanages and collect money for the poor people.
• It cannot be denied that religion has an external form of social
control.
• The different activities of the people and their different spheres of
social life are still influenced by religious rites and ceremonies.
• People generally express their religious feelings through rituals and
ceremonies.
• It is also true that almost all the aspects of lives of primitive people
were covered by religious practices, although these were crude in
nature and did not have any precise organization
• We find that there are different important occasions in our social life
such as, birth, marriage, harvesting, hunting, death etc. and in all
these activities religious rites were performed in primitive societies.
By doing these activities there developed a common feeling s and
actions which are very much other than religious functions.
• Not only in primitive societies but also in modern societies religious
activities occupy an important place.
• The different occasions of social life, such as birth, death, marriage
etc. religious rites are performed.
• Similar activities are found in the events related with economic life
also.
• Moreover, it is found that, in almost all communities religious rites are
common practices during various occasions in social life such as,
inauguration of a new building, oath taking etc. .
• From the above description of the role of religion in social life, it is
evident that a regular order of procedure is developed by religion in
society and thus it helps to control the society.
• Religion helps to shape the character of an individual and thereby it
moulds social life.
• It brings forth the sense of social value in the mind of people. In
obeying the social laws or to respect the elders and to show sympathy
towards the feelings of others, or to discharge the social obligations
faithfully, the role of religion is immense.
• In those cases it acts as a teacher.
• Not only this, a sense of fellow feeling amongst the people belonging
to different communities is also taught by religion.
• Moreover, religion teaches that the man‟s love and services to God
will be real only if he loves and serves humanity.
• In developing moral consciousness amongst people, religion acts as
an inspiring factor.
• Religion enforces uniformity of behaviour and it strengthens social
solidarity and thereby acts as an instrument in stabilizing social order
• In primitive age the influence of religion was very great in controlling
society and this feature is not totally lost even today.
• Social life of primitive people were controlled by inspiring God-fear in
their minds but in modern age people are inspired not by fear but by
the hope for the attainment of virtuous and noble life.
• Thus by fostering patriotic sentiments in men, religion helps to maintain
social integration.
• In describing the role of religion Dr. S. Radhakrishanan says that religion has
innumerable effects.
• Religion not only guarantees values but it also gives meaning to life.
Moreover, the confidence to go on adventures is also inculcated in our mind
by religion.
• Thus narrating the role of religion he says, “Religion is the discipline which
touches the conscience and helps us to struggle with evil and sordidness,
saves us from greed, lust and hatred, releases moral power and imparts
courage in the enterprise of saving the world”. 4
• People live in the third world countries such as,
• India, Africa, Brazil etc. derive their sense of life from religion and as such religion is very
important to them.
• They get the answers of many questions that appear in their minds. The questions such as,
• who we are?
• What is the purpose of life?
• What is life and what is death?
• Is there anything after this life? –
• are very common for human being and they are curious to have answers of these questions.
• But in the third world countries science is not so developed to answer these questions.
• Thus, it is religion from which they seek to get answers of these questions.
• Summary
• From the above discussion we can summerise the importance of religion in
society.
• 1. People get mental peace from religion.
• 2. Religion explains the causes and remedies of individual sufferings and as such it
console people in their junctures.
• 3. The important function that religion performs is that it inculcates social virtues
in people like truth, honesty, love, discipline etc.
• 4. Religion works as an instrument in converting animal qualities to human quality.
• 5. Religious education teaches people for promoting social welfare.
• . 6. Religious rites and festivals are means of recreations.
• 7. Religion creates values amongst people and as such it is the source of
social cohesion.
• 8. Religion is an important instrument for promotion social solidarity.
• 9. Religious institutions help in controlling the behaviour of the individual.
• 10. Religion works as an instrument of influencing political system.
• 11. In economic field religion works as an instrument of influence.
• 12. Religion works as an effective means in strengthening self-confidence
of people.
• Comments
• So far we have discussed, it is evident that religion acts as an
instrument of social control and integration.
• But these are not all of religion.
• There are many dark sides of religion which needs mention.
• From the pages of history we find that religion created conflict and
disunity in society.
• The glaring examples of these are –conflict between the Protestants
and Roman Catholics, between the Hindus and theMuslims.
• Not only had these, the conflict of religion led to the religious wars of
the sixteenth century.
• In many cases it is proved that religious fanaticism is responsible for
much inhuman bloodshed.
• Sometimes it is seen that religion creates an obstacle in the
development of the free spirit in common people.
• This was prominent in the middle ages where free enquiry and
independent thinking was thwarted by religion
• Again, there are so many immoral acts that have been going on in the
name of religion and as a result society and its members have been
suffering. In twentieth century this religious intolerance has been
increased in a rapid way.
• The demolition of the Babri Masjid on the 6th December, 1992, the
destruction of Church on the 9 th August, 1998 at Ahmedabad, the
barbarous murder of an Australian Missionary Graham Stains and her
two sons in Orissa on 23rd January, 1999 are some of the examples of
this religious intolerance.
• The present communal feelings amongst the different communities of
society are the glaring example of the destructive aspects of religion.
Some people intentionally utilize religion for their own interest.
• Above all, conflicts are everywhere in our societies in the name of religion.
• Thus observing the present condition of religion, some people opine that
if religion could be eradicated from the society then society as well as its
members will be saved and they will live peacefully.
• That religion is an instrument of social disharmony is evident from
different religious riots held in different periods of time, even today, in
different countries of the world.
• Conclusion
• So far I have delineated the role of religion in society, it is clear that the
negative aspect of religion is tremendous in our society. Not only this, religion
restricts free thinking of human beings.
• It produces a sense of numbness in man and thereby makes him insensible to
the actual happenings of the world. It teaches people to live in the world of
determinism.
• People forget the capacity of their free thinking and which ultimately makes
them blunt in analyzing the natural phenomena scientifically.
• It is true that in primitive society science was not so developed and people
were ignorant about the happenings of natural phenomena.
• At that time religion was necessary to control the barbarous and ignorant people.
• People were satisfied with the answers given by religious institutions.
• Even in mediaeval period people were convinced that the sun moves round the
earth and challenging which the great scientist Galileo, on a charge of heresy, had
to spend the rest of his life under house arrest. But now it is scientifically proved
that the earth moves round the sun.
• Thus if institutional religion is eradicated from the society, people will live
peacefully and there will be less possibility of quarrels and bloodshed amongst the
people.
• They will also be able to understand the happenings of natural phenomena
scientifically.
• References
• 1. Asghar Ali Engineer: Contemporary Challenges To Secularism And Democracy – A Religious
Response April 1-15, 2005
• 2. Constitutional Assembly Debate CAD, Vol. VII, 3-12-1948, at pp. 815-16. 3. Constitutional
Assembly Debate CAD, Vol. VII, 6-12-1948, at p. 831.
• 4. Donald Eugene Smith, India as a Secular State (Princeton University Press, Princeton 1963)
• 5. Fifth Annual Report of Minorities Commission of India, 1982-83;
• 6. Human Rights, Terrorism and Counter-terrorism Fact Sheet No. 32 Office of the United
Nations High Commissioner for Human Rights, Geneva, Switzerland.
• 7. M.P. Jain, Indian Constitutional Law, Wadhwa and Co. Nagpur, 2004
• 8. Secularism and the Law: National Foundation for Communal Harmony New Delhi August
2010
• Cases cited
• 1. Athiest Society of India, Nalgonda District Branch v Government of
• Andhra Pradesh AIR 1992 AP 310
• 2. Azeez Basha v. Union of India AIR 1968 SC 622
• 3. Bijoe Emmanuel v. State of Kerala (AIR 1987 SC 748)
• 4. Bira Kishore v State of Orissa, AIR 1975 Ori. 8.
• 31
• 5. Commissioner HRE v. L.T. Swamiar AIR 1961 SC 282
• 6. Dr. M. Ismail Faruqui v. Union of India, (1994) 6 SCC 360
• 7. Ismail Farooqi v. Union of India, ((1994) 6 SCC 360)
• 8. Jagannath Ramanuj Das v State of Orissa, AIR 1975 Ori. 8.
• 9. K. Raghunath v State of Kerala, AIR 1974 ker.48
• 10.Mohd. Hanif Quareshi v. State of Bihar AIR 1958 SC 731
• 11.Punjab Rao v. D. P. Meshram, (AIR 1966 SC 1179)
• 12.Ratilal Panachand Gandhi v. State of Bombay, (AIR 1954 SC 388)
• 13.Rev. Stainialaus v. St. of Madhya Pradesh (AIR 1977 SC 908)
• 14.S.P. Mittal v. Union of India AIR 1983 SC 1.
• 15.S.R. Bommai v. Union of India AIR
• 16.Seshammal v. state of Tamil Nadu, (1972) 2 SCC 11
• 17.Shastri Yagnapurushdasji v Muldas Bhundardas Vaishya. AIR 1966 SC
• 1119
• 18.State of Bombay v Narasu, AIR 1952 Bom. 84.
• 19.State of West Bengal v. Ashutosh Lahiri AIR 1995 SC 464