Religion and Law

• "sentiments and emotions" of the public at large of every religion

would be affected as the word 'God' is used by everyone to refer to
the "almighty power".
• "The Godfather (beer) manufacturers are against humanity and the
principle of natural justice as they are intentionally harassing and
damaging religious emotions,"
• "The Godfather manufacturer should extend their apology to the
people through two national English and Hindi newspapers in order
to protect the sentiments and emotions of public at large,"
• The petitioner has said eggs are considered as non- vegetarian food,
and it is blasphemous to carry non-vegetarian food inside a place of
worship of Hindus and Jains.

• To find eggs in temples of Hindus and Jains is blasphemous, and

therefore my client has sought ban on the game from the country,"
petitioner's lawyer Nachiket Dave said.

• Among other points raised against the game are that it infringes
upon the privacy, and it poses threat of life and limbs to the players,
who have to walk around to score a point.
• Pokemon Go is an augmented reality game based on Locations.

• Players use a mobile device’s GPS capability to locate, capture,

battle and

• train virtual creatures called Pokemon

• It became a global phenomenon with more than 500 million downloads

• It attracted huge controversies for contributing to accidents and

becoming a public nuisance
• One morning even when Pokemon Go hasn’t released officially in
• India, a PIL was filed at the Gujarat High Court citing, “a threat

• to National Security and hurting Religious Sentiments

• “Looking at various spiritual practices including religious practices so described in

various Vedas, including Upanishads and religious texts; consuming an egg is

• considered to be obnoxious and against religious practices and depiction of such

• eggs in temples and other places of worship is hurting religious sentiments

• The violence committed by these 'Gau Raksha' groups have reached
to such proportions that even Prime Minister Narendra Modi
recently declared them as people who are "destroying the society".

• It alleged these groups were committing atrocities against Dalits

and minorities in the name of protection of cows and other bovines
and they needed to be "regulated and banned in the interest of
social harmony, public morality and law and order in the country".
• The plea had challenged Section 28 of the
Prevention of Cruelty to Animal Act that
exempts animal sacrifice under religious
practices.
• The petitions complained that the High Court, based on incorrect
observations on Jainism, criminalised the philosophy and “essential”
practice of Sallekhana/Santhara, a fundamental component of the Jain
principle of ahimsa (non-violence). The court issued notice to the Centre
and Rajasthan on the question raised in the petitions whether “essential
and integral parts of a religion can be restricted by the State”.

• The petitions said the High Court order infringed on secularism. It

criminalised Santhara without even consulting any scholars of Jainism
or findings to substantiate that the practice was against public health,
morality and order, they said.
• Section 309 of the Indian Penal Code was set to be limited in effect
by the Mental Health Care Bill, 2013.The Mental Health Care Bill was
introduced to the Rajya Sabha on August 19, 2013 and provides,
"Notwithstanding anything contained in section 309 of the Indian
Penal Code, any person who attempts to commit suicide shall be
presumed, unless proved otherwise, to be suffering from mental
illness at the time of attempting suicide and shall not be liable to
punishment under the said section."

• It also provides that the Government shall have the duty to provide
medical care to any such person attempting suicide. The Bill,
therefore, does not repeal Section 309 of the Indian Penal Code, but
merely provides the presumption of mental illness.
•What is Religion ??
the belief in and worship of a superhuman controlling power, especially
a personal God or gods…

Not Defined in the Constitution..

Religion is a matter of faith with individuals or communities..

A religion has basis in a system of beliefs or doctrines which are

regarded by those who profess that religion as conducive to their
spiritual well being.
• It might prescribe rituals, observances, ceremonies and modes of
worship which are regarded as integral part of religion..

• Might also extend to food and dress ??

Constitutional Provisions…
• Secularism- implicit in Preamble of the Constitution

• Liberty of thought, belief, faith and worship

• 42nd Amendment inserted the word ‘Secular’ in the Preamble

• In the matters of religion it is neutral.

• State protects all religions but interferes with none..

• “There is no mysticism in the secular character of the
state. It is neither anti-god nor pro-god, it treats alike
the devout, the antagonistic and the atheist. It
eliminates God from the matters of the State and
ensures that no one shall be discriminated against on
the ground of religion”
• State is only concerned with the relation between
man and man..

• Relation between man and god is left to individuals

conscience !!
Bijoe Emmanaul Vs State of Kerala
Three children belonging to ‘Jehova’ of the Christian community were
expelled from the school for refusing to sing the National Anthem.
They challenged the validity of their expulsion as violative of FR under
Article 25. A circular issued by Director of Public Institutions had made
it compulsory for all children to sing National Anthem. They had stood
up respectfully but did not sing it. They refused to sing because it was
against the tenets of their religious faith. Kerala HC held it was their
FD to sing National Anthem.
On appeal however, SC reversed the HC decision….
N. Aditya V Travancore Dewaswom Board

• Supreme Court has held that Brahmins do not have monopoly over
performing puja in a temple and said that a non-Brahmin can be
appointed as a pujari if he is properly trained and well versed in
rituals.
• Justice Raju said,It therefore goes without saying that what is
required and expected of one to perform the ritual and conduct
poojas is to know the rituals to be performed and mantras, as
necessary to be recited for the particular deity..
Santosh Kumar Vs Secy Ministry of HRD
The Supreme Court held that the introduction of Sanskrit language as
a subject in the Central Board of Secondary Education is not against
secularism as it is the mother of all Aryan languages..

The court directed the CBSE to make necessary amendments in the

syllabus within 3 months to make Sanskrit a subject for nurturing our
cultural heritage…
• The SC held that State can in exercise of its sovereign power acquire
places of worship like temples, mosques, churches etc..

• Such an acquisition violates Article 25 and 26 ??

• While offer of prayer or worship is a religious practice, its offering at

every location where such prayers can be offered would not be an
essential practice…..
• In a decided case, Municipal Corporation had ordered the
demolition of some parts of two mosques situated in a main road of
Surat district. The Court held that the acquisition is not prohibited by
Constitution and therefore can be acquired in the public interest for
widening of road….
• In another case, SC held that no person can be allowed to create
noise pollution or disturb the peace of others. The custom of
religious prayers through the use of loudspeakers is not an essential
element of any religion….

• A persons religious freedom is subject to public order, morality and

health…
1.The State shall not deny to any person equality before the law or the
equal protection of the laws within the territory of India - Article 14.

2. The State shall not discriminate against any citizen on grounds

only of religion, race, caste, sex, place of birth, or any of them,
either in general or in the matter of access to or use of general and
public places and conveniences - Article 15.
3.There shall be equality of opportunity for all citizens in the matter
of employment or appointments under the State and no citizen
shall, on grounds only of religion be ineligible for, or discriminated
against, in respect of any employment or office under the State -
Article 16.
4.The traditional religious concept of 'untouchability' stands
abolished find its practice in any form. strictly forbidden -
Article 17.

5. If the State imposes compulsory service on citizens for public

purposes no discrimination shall be made in this regard on the
ground of religion only - Article 23(2).
Freedom of Religion
Individual's Rights

Religious freedom as an individual's right is guaranteed by the

Constitution to 'all persons' within the following parameters:
1. All persons are equally entitled to freedom of conscience and the
right freely to profess, practice and propagate religion – Article 25(1).

2. There shall be freedom as to payment of taxes for promotion of any

particular religion by virtue of which 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 religious denomination - Article 27
3.No religious instruction is to be provided in the schools wholly
maintained by State funding; and those attending any State
recognized or State-aided school cannot be required to take part in
any religious instruction or services without their (or if they are minor
their guardian's) consent - Article 28.
Group Rights

Freedom of religion is guaranteed by the Constitution of India as a

group right in the following ways:

1. Every religious denomination or any section thereof has the right to

manage its religious affairs; establish and maintain institutions for
religious and charitable purposes; and own, acquire and administer
properties of all kinds - Article 26.

2. Any section of the citizens having a distinct language, script or

culture of its own shall have the right to conserve the same -Article 29.
3. Religious and linguistic minorities are free to establish and
administer educational institutions of their choice, which shall not
be discriminated against by the State in the matter of giving aid or
compensation in the event of acquisition - Article 30.
• In a historic verdict, the Bombay high court today permitted the entry of
women up to the restricted grave area of the famous Haji Ali Dargah,
located on the rocks off the Worli seashore.
• The ruling by a division bench comprising Justice VM Kanade and Mohite
Revati-Dhere came in a Public Interest Litigation (PIL) filed by NGO
Bharatiya Muslim Mahila Andolan and activists Noorjehan Niaz and Zakia
Soman in November 2014.
• The PIL had challenged a move by the Haji Ali Dargah Trust prohibiting
women from entering the sanctum sanctorum of the shrine, built in 1431.
• The shrine comprises the grave of Pir Haji Ali Shah Bukhari, a Muslim
saint revered by all communities.
• While permitting women to enter the restricted areas along with
men, the court asked the Maharashtra government to ensure their
safety and security.

• The trust in had barred the entry of women on the ground Islam did
not allow women to touch the tombs of male saints and it was a
“sin” for them to enter the area where the grave is located.
• Restricting women’s entry to places of religious worship has become
a highly contentious issue of late. Though such practices have been
persisting for decades in India, movements across the country have
recently espoused these concerns, leading to several petitions being
filed in High Courts and in the Supreme Court. Demonstrating an
encouraging trend, courts have emphatically upheld rights of
women to equality and freedom of religion, thus striking down the
restrictions imposed. The Bombay High Court, for instance, ruled
that the inner sanctum of the Shani Shingnapur temple in
Ahmednagar, Maharashtra be opened to women, as it is the
fundamental right of women to enter all places of worship that
allow entry to men, and the duty of the state to protect such right.
• The subjectivity of application of the test is evident from the trend of
judicial cases interpreting this test. In M. Ismail Faruqui v. Union of
India, the Supreme Court held that visiting a mosque is not an
essential Islamic practice. Further, it opined that if a place of
worship had a “particular significance” in that religion, the same
would come within the purview of Article 25. Additionally, in
another case, the Supreme Court relied upon Quran to hold that
sacrifice on Bakr’id was held not to be an essential part of Islam.
However, this test suffers from three inherent flaws. First, the courts
do not possess the competence or legitimacy to rationalise a
practice as an essential or non-essential religious practice.
• The test is not grounded in the Constitution and is an interventionist
approach developed by the courts in interpreting Article 25. Second,
each Bench’s interpretation of the essential religious practices of a
particular faith would be different. These shortcomings were
coherently expressed by Justice B.P. Banerjee, who observed that “if
courts started enquiring and deciding the rationality of a particular
religious practice, then there might be confusion and the religious
practice would become what the Courts wished the religious
practice to be.”
CHAPTER XV
OF OFFENCES RELATING TO
RELIGION
• 295. Injuring or defiling place of worship, with intent to insult the
religion of any class
• 295A. Deliberate and malicious acts, intended to outrage religious
feelings of any class by insulting its religion or religious beliefs
• 296. Disturbing religious assembly
• 297. Trespassing on burial places, etc
• 298. Uttering words, etc., with deliberate intent to wound religious
feelings
295. Injuring or defiling place of worship, with intent to insult
the religion of any class

• Whoever destroys, damages or defiles any place of worship, or any

object held sacred by any class of persons with the intention of
thereby insulting the religion of any class of persons or with the
knowledge that any class of persons is likely to consider such
destruction, damage or defilement as an insult to their religion, shall
be punished with imprisonment of either description for a term
which may extend to two years, or with fine, or with both.
295A. Deliberate and malicious acts, intended to outrage religious feelings of any
class by insulting its religion or religious beliefs

• Whoever, with deliberate and malicious intention of outraging the

religious feelings of any class of [citizens of India], [by words, either
spoken or written, or or by signs or by visible representations or
otherwise], insults or attempts to insult the religion or the religious
beliefs of that class, shall be punished with imprisonment of either
description for a term which may extend to [three years], or with
fine, or with both.]
296. Disturbing religious assembly

• Whoever voluntarily causes disturbance to any assembly lawfully

engaged in the performance of religious worship, or religious
ceremonies, shall be punished with imprisonment of either
description for a term which may extend to one year, or with fine, or
with both
297. Trespassing on burial places, etc

• Whoever, with the intention of wounding the feelings of any person,

or of insulting the religion of any person or with the knowledge that
the feelings of any person are likely to be wounded, or that the
religion of any person is likely to be insulted thereby, commits any
trespass in any place of worship or on any place of sepulture, or any
place set apart for the performance of funeral rites or as a
depository for the remains of the dead, or offers any indignity to any
human corpse, or causes disturbance to any persons assembled for
the performance of funeral ceremonies, shall be punished with
imprisonment of either description for a term which may extend to
one year, or with fine, or with both.
298. Uttering words, etc., with deliberate intent to wound
religious feelings

• Whoever, with the deliberate intention of wounding the religious

feelings of any person, utters any word or makes any sound in the
hearing of that person or makes any gesture in the sight of that
persons or places any object in the sight of that person, shall be
punished with imprisonment of either description for a term which
may extend to one year, or with fine, or with both.