ABSTRACT

RIGHT TO FREEDOM OF RELIGION

The concept of secularism is implicit in the Preamble of the constitution which declares the
resolve of the people to secure to all its citizens”liberty to thought, belief, faith and worship”The
constitution (42nd Amendment) Act 1976 has inserted the word secular in the preamble. This
amendment is merely to spell out clearly the concept of “secularism” in constitution. There is no
mysticism in the secular character of the state. In india, a secular state was never consider as a
irreligious or atheistic state. It only means that in matter of religion it is neutral. It is an ancient
doctrine in india that state protect all the religion but interfere with none1. Explaining the secular
character of indian constitution the supreme court said “ there is no mysticism in secular
character of the state. Secularism is neither anti-God nor pro-God, it treats alike the devout, the
antagonistic and the atheist. It eliminates God from the matter of the state and ensure that no one
shall be discriminated against on the ground of religion. The state can have no religion of its
own. It should treat all religion equally. The state shall extent similar treatment to the church, the
mosque and the temple. In secular state the state is only concerned with relation between man
and man. It is not concern with the relation of man with God. It is left to the individual
conscience. Every man should be allowed to go to heaven in its own way. Worshiping God
should be according to dictates of one’s own conscience. Man is not answerable to the state for
the variety of his religious views”. The right of worship was granted by the God for man to
worship as he pleased. There can be no compulsion in law of any creed or practice of any form
of worship.”

JUDICIAL PERCEPTION OF THE RIGHT TO FREEDOM OF RELIGION

The term ‘religion’ has not been defined in the Constitution and it is hardly susceptible of any
rigid definition. The Supreme Court has defined it in number of cases2.A religion is certainly a
matter of faith and is not necessarily theistic. Religion has its basis in “a system of beliefs or
doctrines which are regarded by those who profess that religion as conducive to their spiritual
well being”, but it would not be correct to say that religion is nothing else but a doctrine or
belief. A religion may not only lay down a code of ethical rules for its followers to accept, it
might prescribe rituals and observances, ceremonies and modes of worship which are regarded as
integral part of religion and these forms and observances might extent even to matters of food
and dress3. Subject to certain limitations, Article 25 confers a fundamental right on every person
not merely to entertain such religious beliefs as may be approved by his judgment or conscience
but also exhibit his beliefs and ideas by such overt acts and practices which are sanctioned by his
religion. Now what practices are protected under the Article is to be decided by the courts with
reference to the doctrine of a particular religion and include practices regarded by the community

1
Vasudev v. vamanji, ILR 1881 BOM.80.
2
Commissioner of H.R.E. v. Lakshmindra, A.I.R. 1954 S.C. 282; Ratilal v. State of Bombay, A.I.R. 1954 S.C. 388; Taher
Saifuddin Saheb v. State of Bombay, A.I.R. 1968 S.C. 662
3
Commissioner of H.R.E. v. Lakshmindra, A.I.R. 1954. S.C. 282 at 290.
as part of its religion4.The courts have gone into religious scriptures to ascertain the status of a
practice in question5. In numerous cases the courts have commented upon, explained an
interpreted the provisions of the Constitution on equality, non-discrimination and religious
freedom. The decisions in most of these cases have been given is the contexts of the rights of
particular religious communities or under sped; laws relating to such communities.

RELEVANT CASES
In S.R Bommai v. Union of India6, the Supreme court has held that “secularism is a basic
feature of the constitution”. The state treats equally all the religions and religious denominations.
Religion is matter of individual faith and cannot be mixed with secular activities. Secular
activities can be regulated by state by enacting law.
In Santosh kumar v. Secy. Ministry of Human Resource Development 7, the Supreme court
has held that introduction of Sankrit language as a subject in the central board of
education(CBSE) is not against secularism”as it is the “mother of all Aryan languages”. The
court directed the CBsE to make the necessary amendment in the syllabus within 3 months to
make Sanskrit an elective subject for nurturing our cultural heritage.
In Aruna Roy v. Union of india8the supreme court has ruled that the concept of secularism is
not endangered if the basic tenets of all religions all over the world are studied and learnt. Value
– based education will help the nation to fight against fanaticism; ill-will, violence, dishonesty
and corruption. These values can be inculcated if the basic tenets of all religions are learnt.
In Ratilal Panchand Gandhi v. State of Bombay9 the Supreme Court was once again appealed
to decide on the judicial application of ‘religion’ and ‘matters of religion’ as implied in the right
to exercise of religion protected under articles 25 and 26 of the Constitution. The case arose out
of the Bombay Public Trust Act, 1950,15 passed by the Bombay State Legislature. Similar to the
Madras Act of 1951,16 the object of the Bombay Act as stated in its preamble was to regulate
and to make better provision for the administration of public religious and charitable trusts in the
State of Bombay.

4
Seshammal v. State of Tamil Nadu (1972) 2 S.C.C. 11.
5
In Rajasthan v. Sajjanlal, A.I.R. 1975 S.C. 706, the Supreme Court surveyed the Jain religious tenants as regard to
the management of Jain religion endowments.
6
AIR 1994 SC 1918.
7
AIR 1995 SC 293.
8
AIR 2002 SC 3176.
9
AIR 1954 SC 388.