RIGHT TO RELIGION

NAME: FAISAL HASSAN

CLASS: B.A.LLB (SELF- FINANCE)
YEAR: 2ND YEAR
SEMESTER: 4TH SEMESTER
ROLL NUMBER: 13

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INDEX

SEIAL NUMBER TOPIC PAGE NUMBER

1. INRODUCTION 3

2. RELIGIOUS FREEDOM 5
IN INDIA

3. SECULAR ACTIVITIES 6

4. CASES 8

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INRODUCTION

India is a multi-religious society and the survival of such a general public has
been conceivable just it, all religions are given equivalent treatment with no support or
separation. The separation of the nation was clearly in light of religion and this was an
eye-opener for the creators of the Constitution when they were occupied with the
errand of giving a solid shape to the constitution of our nation. The framers of the
Indian Constitution did not, explicitly opted for the concept of India to be a secular
state.”Secular” was not there in our constitution when it came into the being. It was in
this manner joined into the prelude of the Constitution by the 42nd Amendment Act of
1976. The formal consideration of the descriptive terms “Secular” is, for the most part,
the consequence of meeting out the exigencies of the predominant conditions, the
necessity of gathering legislative issues and ideological window-dressing. To some
degree, it likewise mirrors the obliviousness and disregard of the ideologues that they
added it just to the introduction, and did not take think to achieve reasonable
changes in the Constitution. It can be called attention to that the term utilized after
“Socialist” is repetitively used as a communist vote based state has fundamentally to
be common. In the perspective of the different articles showing up to some extent III
of the Constitution, one might say that India was at that point a secular state and there
was no need of such expansion. It gave a rather false impression that beforehand India
was not a secular state.

ARTICLE 25

Freedom of conscience and free profession, practice and propagation of religion

(1) Subject to public order, morality and health and to the other provisions of this Part, all persons
are equally entitled to freedom of conscience and the right freely to profess, practise and
propagate religion

(2) Nothing in this article shall affect the operation of any existing law or prevent the State from
making any law

(a) regulating or restricting any economic, financial, political or other secular activity which may
be associated with religious practice;

(b) providing for social welfare and reform or the throwing open of Hindu religious institutions of a
public character to all classes and sections of Hindus Explanation I The wearing and carrying of
kirpans shall be deemed to be included in the profession of the Sikh religion Explanation II In sub
clause (b) of clause reference to Hindus shall be construed as including a reference to persons

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professing the Sikh, Jaina or Buddhist religion, and the reference to Hindu religious institutions
shall be construed accordingly

ARTICLE 26

Freedom to manage religious affairs Subject to public order, morality and health, every religious
denomination or any section thereof shall have the right

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

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

(c) to own and acquire movable and immovable property; and

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

ARTICLE 27

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 religions denomination

ARTICLE 28

Freedom as to attendance at religious instruction or religious worship in certain educational

institutions

(1) No religion 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 Cultural and Educational Rights

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RELIGIOUS FREEDOM IN INDIA

One of the rights ensured by the Indian Constitution is the privilege of Freedom of Religion. As a
secular country, each national of India has the privilege to the opportunity of religion, i.e. ideal to
take after any religion. As one can discover such many religions being practiced in India, the
Constitution assurances to each national the freedom to take their preferred religion. As per this
essential right, every citizen has the chance to practice and spread their religion peacefully. What’s
more, if any occurrence of religious narrow mindedness happens in India, it is the obligation of the
Indian government to check these frequencies and take strict activities against it. The right to
freedom of religion is all around depicted in the Articles 25, 26, 27 and 28 of Indian constitution.
The Indian Constitution guarantees certain fundamental rights which were described in articles 12
to 35, which shape Part III of the Constitution. Among these articles, art., 25 and 26 are the two key
articles ensuring religious freedom.
The religious freedom of unique individuals of India guaranteed by the Indian constitution by clause
(1) of article 25, which can be interpreted precisely the Constitution makes it clear that the rights
provided in clause (1) of article 25 are subject to “morality”, “public order”, and health and to the
other, Articles of Part III of the Constitution that lays down the fundamental rights. Clause (2) of
article 25 is a “saving clause” for the country so that the religious rights guaranteed under clause (1)
are further subject to any “existing law” or a law which the State deems it fit to pass that:
(a) controls or lays constraint on any financial, economic, political or other secular activity which
may be linked with religious practices, or,
(b) offers for social welfare and reform or the throwing open of Hindu religious institutions of a
public character to all Hindu sections.
Correspondingly Article 26 is the fundamental article that gives “the corporate freedom” of religion
overseeing the connection between the State and Subject to open request, ethical quality and well-
being each religious group or any area thereof should have the privilege, (a) to set up and keep up
organizations for religious and magnanimous purposes; (b) to deal with its own particular
undertakings in issues of religion; (c) to possess and obtain portable and ardent property; and (d) to
regulate such property as per law. Proviso (b) of article 26 assurances to each religious category or
any segment thereof the privilege to deal with its own issues in issues of religion and condition (d)
gives them the privilege to oversee their property (organizations) as per laws go by the State. It is
clear from the dialect of the conditions (b) and (d) of article 26 that there is a fundamental
distinction between the privilege of a section to deal with its religious undertakings and its
entitlement to deal with its property.

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SECULAR ACTIVITIES

Secular activities, economic activities and political activities do not come within the
ambit of right to religion and this has to be carefully examined in the light of the
practices of the particular religion. A few examples are enumerated below-

• The right to elect members to a Committee to administer the Gurudwara property

cannot be considered part of religion of the Sikhs.

• The sacrifice of a cow is not an obligatory act enjoined to the Muslim religion.

• Marrying a second wife, during the lifetime of the first wife cannot be considered
an integral part of the Muslim religion.

• Custody of a minor for the purpose of rearing him up according to the father’s
religion is not essential to any religion.

Also matters that come within the ‘personal laws’ like marriage, adoption,
succession, do not form the essence of a religion and are thus subject to the larger
interest of the society. Further, it is to be noted that the fundamental right to freedom
of religion of a person cannot encroach upon the fundamental rights of the others.

The State has been conferred with the power of throwing open of religious
institutions and of overriding religious injunctions which prohibit certain classes from
entering into temples or other religious institutions. A crucial point is that, this power
applies only to institutions of a public character and temples founded for benefit of
particular sections of Hindus. The operation of the existing rights to religion are also
not permitted to deter the state from making provisions for social welfare and reform
or the throwing open of Hindu religious institutions of a public character to all classes
and sections of Hindus.

Every person has the freedom to have faith in the religious beliefs of any particular cult
or denomination. The allocation of this right according to the constitution is mainly to
provide every person with an occasion to declare in open and without any hesitation
what he truly feels about his respective religion. This right also helps him to be vocal
about his conceptions and ideologies relating to the religious practice he indulges
himself into. The right to profess a particular religion means enabling a person to
communicate his thought process , mindset and viewpoints to some other people with
an intention to spread his religion and make them well versed with the concept and
theory of his religion. Though every person is entitled to the right to preach and expand
the religion of his own wish and desire but it is also to be taken into account that this
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right shouldn’t be taken for granted, that means , the freedom allotted should not be
abused . The person while exercising this right should ensure that he is not indulging
in any sort of criminal or other anti- social activities. One needs to always bear in mind
that, in the process of utilizing this freedom for one’s own personal good or benefit
the societal peace is not at all hampered and no harm or any kind of pain is inflicted
upon any member in the society[5]. He needs to confirm that while exercising this right
given to him by the constitution he does not hurt the religious sentiments of the other
devotees. Everyone has a different approach when it comes to practicing their religion
but at the same time it is disallowed to practice it in a manner which will incite violence
and encourage hatred among the masses. It is important for every citizen to respect the
religion as well as the religious feelings of others prevailing in the society at large. The
law does not permit any citizen to impose his religious views or opinions on other
individuals . Every citizen is expected to preach his religion in a rational manner
.Immersing into immoral and illegal activities in the name of religion and disturbing
the order and unity of the country is not permissible. No citizen would go scot free if
he is found guilty of committing any kind of evil or dishonest activities in the name of
following the norms and rituals of his religion. The law does not sanction any person
to conduct his religious practices pertaining to his own whims and fancies and leading
to create a situation of outrage , chaos and animosity . It is an undeniable fact that
every individual has its own ways and means to practice his religion , but it shouldn’t
proceed in an arbitrary fashion. An individual is not answerable to State for the variety
of his religious views. The right of worship was granted by God for man to worship as
he pleased. Law cannot compel any individual to practice a particular form of
worship.[6] But undoubtedly the law has the right to cease the practice of any kind of
malicious and corrupt religious activities being carried on, for the purpose of
maintaining order and discipline in the country. When a person adopts an illegal way
of practicing or promoting his religion, it sets a bad example for the existing masses as
it conveys to them that everyone is entitled to exercise the freedom of religion allocated
to them , in any manner even though it might be unlawful and unethical in the eyes of
law. Every religion has its own code of conduct, rituals, ceremonies modes of worship
etc, but while following and obeying the same an individual should take into account
that decency and morality is maintained . He needs to be aware that the religious
activities he resorts t77o does not give rise to any kind of conflict and cause destruction
of the property and life of the people in the society. Law will take the requisite steps
and measures if at all any acts endangering the safety and unity of the country is
projected in its eyes.
Article 25 to Article 28 of the Indian Constitution guarantees the right to
freedom of religion to all the citizens residing within the territorial
boundaries of the country.
1. Freedom of conscience and free profession of religion.( Article 25)
2. Freedom to manage religious affairs (Article 26)
3. Freedom from payment of taxes for promotion of any particular
religion( Article 27)
4. Freedom to attend religious instructions ( Article 28)
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CASES

COMMISSIONER, HINDU RELIGIOUS ENDOWMENTS, MADRAS V. SRI LAKSHIMINDRA

THIRTHA SWAMIAR OF SRI SHIRUR MUTT

• The constitutionality of Madras Hindu Religious and Charitable Endowments Act, 1951 was
challenged on the ground of infringement of Article 26. The legislation was enacted for the
purpose of acquiring control over the ‘secular’ activities of the Religious Endowments,
namely.
• Many provisions of the enactment were struck down by Court on different counts, it upheld
the inspection of accounts and even inspection of temples by the State authorities since,
according to the court; it did not interfere with the essential aspects of religion.
• Court defined the scope of ‘secular’ activities using ‘essential principles test’. It was held
that for defining social welfare content the judiciary can distinguish essential from the non-
essential activity.
• “What constitutes the essential part of a religion is primarily to be ascertained with reference
to the doctrines of that religion itself”

BIJOE EMMANUEL V STATE OF KERALA

• Three children belonging to Jehovah’s Witness refused to sing the National Anthem. They
refrained from actual singing but only because of their aforesaid honest belief and
conviction and used to stand up in respectful silence daily, during the morning assembly
when the National Anthem was sung.The school expelled them for not singing the national
anthem.
• The court held that refusal to sing the anthem did not constitute an offence under Prevention
of Insults to National Honor Act 1971 as they had not shown any disrespect to national
anthem.
• The court held that not singing the national anthem was an aspect of free speech under
Article 19(1) (a) which includes the freedom of silence which could be curtailed only under
the grounds mentioned under Article 19(2).

COMMISSIONER OF POLICE V JAGDISHWARANANDA AVADHUT

• The Commissioner of Police, Calcutta imposed a ban on Tandava Dance performed in

public place and streets.
• Commissioner’s order was challenged by the followers of Anand Marga as infringing their
rights under Article 25 and 26. The Court went through the origins of Ananda Marga and
found that Tandava dance performed by carrying trident, snakes,damroo, lathi, and human
skull in public is not an essential part of Anand Marga.

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M ISMAIL FARUQUI V UNION OF INDIA

• Constitutionality of an Act which temporary vested in the Central Government the disputed
and adjacent land in Ayodhya where Babri Masjid existed.
• The court apart from holding that the act was not ultra vires to the constitution also held:
o Right to practice, profess and propagate religion does not include the right to acquire, own and
dispose of property.
o The State has power to a acquire Mosque/ Temple or other religious places.
o Right to freedom of religion does not extend to the right to worship at any and every place of
worship.
o A mosque is not an essential part of practice Islam and Namaz can be offered anywhere even in
open.

SHESHAMAL V STATE OF TAMIL NADU

• An act was passed which made certain hereditary religious offices non-hereditary and
prescribed certain qualifications for them irrespective of caste, creed or race. The Act was
passed with an object of social reform measure, and was challenged on the ground of
violation of Article 25(1) and 26 (b).
• Petitioner contended that under the law a trustee could appoint any one as priest if he
possessed requisite qualifications irrespective of his being a Savaite or Vaisnavite which
constituted a violation of freedom of religion.
• The Court held that the appointment of a priest was a secular act and appointment of priest
on hereditary principle despite its religious usage was not an integral part of religion. The
Court upheld the validity of the law.

REV STANISLAUS V STATE OF MP

• State of Madhya Pradesh and Orissa passed laws prohibiting conversion by force, fraud or
inducement. These laws were challenged as violative of Article 25 of the Constitution.
• The apex court held that the right to propagate religion guaranteed by Article 25(1) includes
right to propagate but does not guarantee a right to convert another to one’s own religion.

LILY THOMAS V UNION OF INDIA

• Husband, while still married to his first wife, converted to Islam in order to marry another
woman. When first wife sued under bigamy, husband claimed that his conversion, under
right of freedom of religion (Art 25), was valid and his new religion allowed multiple wives.
• Court held that one cannot convert so as to take advantage of a personal law.
• Freedom of religion is not violated by a law to punish a Hindu convert to Islam for bigamy
if he contracts another marriage while the first marriage subsists.

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CHURCH OF GOD V. KKR MAJESTIC COLONY WELFARE ASSOCIATION

• The court justified the Environment Protection Rules (1986), which prohibits noise
pollution, on the grounds that loud preaching is not an essential or integral part of the
religion.
• Further even if loud preaching is deemed to be essential and integral practice of a religion,
the loud preaching would violate a person’s liberty to not hear something they didn’t want
to.
• Court held that freedom of religion cannot violate any of the other fundamental rights.

SRI ADI VISHASHWARA OF KASHI VISHWANATH V STATE OF UP

• A law providing for board of trustees for the management of Kashi Vishwanath Temple
after taking over from temple priests was held not to interference in matters of religion but
only a regulation of the administration of the temple which was in an awful condition.

ATHEIST SOCIETY OF INDIA V. STATE OF ANDHRA PRADESH (1992)

• Petitioner wanted to stop practices such as Bhoomi Pujan, and chanting of mantras by the
government in its official functions
• Court held that these practices are cultural and not religious, done to invoke blessing of god
• Judgment much criticised as this affect atheist’s right to conscience

MOHD. AHMED KHAN V. SHAH BANO BEGUM

• Woman filed for maintenance under §125 of CrPC

• Court held that even if personal law does not allow for maintenance then also maintenances
can be sought under the central law
•

MOHD HANIF QUARESHI V STATE OF BIHAR

• Constitutionality of a legislation prohibiting cow slaughter was challenged as infringing the

rights of Muslims to sacrifice cows on Bakr-Id day.
• After going through the Islamic scripture Koran, the Supreme Court held that sacrifice of
cow on Bakr Id day was not an essential part of Islam because there was an option of a cow,

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 a camel or six goats to be sacrificed on this day. Therefore slaughtering of cows could be
restricted by legislation.

SAIFUDDIN SAHEB V STATE OF BOMBAY

• The Bombay government enacted a law called Prevention of Excommunication Act to

prohibit ex-communication on the ground of religion prevalent in Dawood Bohra sect of
Muslims.
• The Supreme Court held the Act was unconstitutional on the ground that the power of the
head of Dawood Bohra community to excommunicate was absolute and an essential part of
religion and the State could not interfere in the matter of religion.
• Here there was a conflict between the individual’s right to freedom of religion and religious
denomination’s right to manage its affairs in matters of religion. The court gave primacy to
the right of religious denomination over the right of the individual. This judgment was
another example of legal positivism of the Indian Supreme Court.

T.M.A. PAI FOUNDATION V STATE OF KARNATAKA

• Prior to this case, it was undecided whether right to establish and maintain religious
institutions for charitable purposes under 26(a) would also cover the establishment of
institutions for general education. However, the Court in TMA finally established that
religious denomination do have the right under 26(a) to establish and maintain institutions
for general education, recognizing education as charity. (The right cannot be claimed or
defended is the education is not being provided as a charity)

COMMISSIONER H.R.E. V SRI LAKSHMINDRA

Thirtha Swamiar of Shri Shirur Mutt
• Section 56 of the Madras Hindu Religious and Charitable Endowments, Act 1951
empowered the Commissioner, at any moment, to deprive the ‘mahanta’, of his right to
administer the property even if there was no negligence or maladministration.
• Although the State’s right under 25(2)(a) will generally trump the denomination’s rights
under 26(c)(d), the court held that the state’s ability to encroach upon the denomination’s
rights should be reasonable. The state can regulate but not completely take away a
denomination’s right to own and administer property. In this case section 56 was held as
violating Article 26(c)(d) as it completely extinguished the denomination’s right under
26(b).

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