India is a land of enriched culture comprising of diverse number of sects in terms of caste, race, creed, ethnicity, languages and religion. This diversity is seen in an impartial manner. Principle of unity in diversity, religious harmony and secularism has enabled people regardless of the sect to come together and enthusiastically participate in the variety of festivals celebrated in India.
People of India have strong faith in their religion, with a belief that, religion makes their life more meaningful. Considering the importance of religion in Indian scenario, the right to religion has been inserted, guaranteed and protected by the Constitution of India as a fundamental right.
What is Secularism?
Religion in India is incomplete without the concept of Secularism. Secularism in general, has a negative theory called the non-preferential theory of French model (i.e. State will have no official religion of its own) and a positive theory called the preferential theory of American model (i.e. State will separate religion from Church).The Constitution of India has adopted a mixed approach, with equal respect and recognition for all religions by the State and no discrimination by the State on the basis of religion.
The word ‘Secular’ was added by the 42nd Constitutional Amendment Act of 1976. The objective behind the insertion of this word was laid in M.P. Gopalakrishnan Nair v State of Kerela which said that ideas of secularism are needed to maintain the integrity of the Nation to restrain selfish interests for the public good.
The nine-judge bench of the Apex Court in S.R. Bommai v Union of India ruled that secularism is the basic feature of the Constitution of India. It was also observed that religion has no place in the matters of State. Religion and politics cannot be mixed and freedom of religion is a fundamental right.
In Ayodhya case it was held by the Supreme Court that the Constitution of India postulates equality of all faiths and beliefs. By way of mutual coexistence and tolerance, the secular commitment of India and its people can be nourished.
What is Religion?
The term Religion and matters of religion are not susceptible to a precise definition of universal applicability. Religion is entirely a matter of choice, faith and belief. The Constitution of India does not expressly define religion. This implies that the responsibility to device and interpret its judicial meaning is placed on the Apex Court of India.
The Supreme Court in A.S. Narayan Deekshitulu v State of Andhra Pradesh held that the word ‘religion’ used under the articles 25 and 26 of the Constitution of India cannot be confined, restricted, cabined and crabbed, to the mere perception of what religion is thought to be. The Court also distinguished between the terms ‘religion’ and ‘dharma’ and explained that “religion is enriched by visionary, methodology and theology while ‘dharma’ blooms in the realm of direct experience”.
-No discrimination on grounds of religion etc.
Article 15 is an extension of the right to equality granted under Article 14. Discrimination on the basis of religion is prohibited under Article 15(1) and (2).
Article 15(1) expressly prohibits the state from discriminating against any Indian citizen solely on the basis of religion, race, caste, sex, or place of birth, or any combination of these factors.
Article 15(2) forbids citizens from being subjected to any disability, liability, constraint, or condition based solely on religion, race, caste, sex, or place of birth when it comes to:
- Access to stores or shops, public restaurants, hotels, and retirement homes.
- The use of public wells, tanks, bathing ghats, roads, and places of public resort that are either entirely or partially funded by the state or are devoted to the general public’s use.
-Freedom of religion
Freedom of religion as a fundamental right is granted under the articles 25-28 of the Constitution of India. These are:
- Article 25: This article guarantees the freedom of conscience and ensures the right to freely practice, profess and propagate religion to all persons in India.
The freedom granted under the Article 25 is not absolute and is subject to health, morality, public order and other provisions.
This article further provides that this article does not affect any existing law and the State is allowed to make laws that:
- Regulate or restrict any financial, political, economic or secular activity associated with certain religious practices;
- Provides for social welfare and reform;
- Allows for the establishment of Hindu religious institutions of a public nature for Hindus of all classes and sections.
Explanation 1 of this article also mentions that Sikhs wearing turbans and carrying the kirpans are included under the Sikh religion.
Explaination 2 says the word ‘Hindu’ includes persons professing Jain, Buddhist or Sikh religion.
In Tilkayat Shri Govindlalji Maharaj V. State of Rajasthan The Supreme Court ruled that the criteria for determining whether something is an essential part of a religion is whether or not it is recognized as such by the religious community.
- Article 26: This article provides certain rights to every religious denomination. They are:
- The freedom to establish and maintain religious and charity institutions;
- The right to conduct its activities in relation to religion;
- The right to possess personal property, both movable and immovable;
- The right to administer the property in accordance with the law.
In Commissioner, Hindu Religious endowment Madras v. Shri Laxmindra Thirtha Swamiar of Shri Shirur Mutt SC considered the Oxford dictionary meaning of this term which defines religious domination as “A collection of persons classified together under the same name, a religious sect or body having a similar faith and organisation characterised by a distinguishing name,”.
Article 26 like Article 25 is not absolute and is subject to public order, morality, and health.
- Article 27: This article prohibits a person from being forced to pay any taxes that are intended to cover the costs of promoting or maintaining a religion or religious denomination.
- Article 28: This article prohibits:
- Providing religious teaching in any educational institutions supported wholly by public funds;
- The aforesaid shall not apply to educational institutions governed by states but founded under an endowment or trust that requires religious teaching to be provided at such institution;
- Anyone attending a state funded or state affiliated educational institution is not compelled to participate in religious teaching or attend any workshop held in such an institution or on its grounds.
1. Case pertaining to Article 15-
- Religion & women – Sabrimala case
In , Indian Young Lawyers Association v the State of Kerela, the Rule 3 (b) of the Kerela, Hindu Places of Worship (Authorisation of Entry Rules), 1965 that prohibited the females of menstruating age (between 10-50 yrs) to visit the temple was challenged as violative of their fundamental rights guaranteed under Art 14 , 15 & 25 of Constitution of India. The Supreme Court’s constitutional bench in 4:1 ratio struck the law unconstitutional thereby permitting the entry of all females in the Sabrimala temple.
2. Cases pertaining to Article 25-
- Property rearrangement associated with religion:
In the case of Gulam Abbas v. State of UP, a dispute arose between Shias and Sunnis over the Shias’ performance of religious rituals on a specific plot of land in Varanasi’s mohalla -Doshipura. The Supreme Court established a seven-member panel, chaired by the divisional commission, with three members from each sect of Shia and Sunni, to prevent future disputes and find a long-term solution to the problem.
The committee recommended that the cemeteries of Shias be moved to separate the Shia and Sunni sects’ places of worship. These proposals were questioned by the Sunni sect as encroaching on their fundamental right to freedom of religion under Articles 25 and 26. These arguments were dismissed by the court. The Supreme Court ruled that the fundamental right ensured by Articles 25 and 26 is not absolute and is subject to public order, and that if the court determines that transferring graves is in the public good, the parties’ acceptance is irrelevant, despite the fact that Muslim personal law prohibits grave shifting.
- National Anthem case:
In Bijoe Emmanuel v. State of Kerala three students of Jehovah’s sect who only believed and worshipped Jehovah were expelled by the headmistress of their school when refused to sing the National Anthem during the school’s morning assembly. According to these students singing the National Anthem was against their religious faith and was disregarded by their religious tenants. They remained silent but did not participate in singing due to their honest belief. The Supreme Court held that the action of expelling these student was in violation of their right to freedom of religion (under Art. 25(1)) and right to speech and expression (under Art. 19(1)(a). It was stated by the court that there is no provision of law which compels or obliged anyone to sing the National Anthem and it is not disrespectful if not sung.
In Shyam Narayan Chouksey v. Union of India, the Supreme Court declared that under Art. 51A, every citizen is duty-bound to show respect for the National Anthem of India whenever it is performed or sung. The sole exception is for those who are handicapped. It further said that playing the National Anthem at movie theatres is voluntary, not mandatory.
- Telecast of serials:
In Ramesh v. Union of Indiaa writ petition was filed under Article 32 of the Constitution seeking the issuing of a writ of prohibition or similar order to restrain the further screening of the serial “Tamas” based of a book, that had since shown four episodes showcasing communal violence between Hind u-Muslim and Muslim-Sikh, the resulting tension, bloodshed and looting. It was pleaded by the petitioner that the serial is violating his fundamental rights under Articles 21 and 25, and further questioned the screening of Tamas as a violative of Section 5B of the Cinematograph Act, 1952.
While dismissing the petition, the Court stated that no breach of Articles 21 and 25 has occurred, and that the respondent has not acted unlawfully. The Court held that the author attempts to draw attention to our country’s historical history and to highlight the people’s desire to live in peace and overcome religious barriers. It also said that when the series is watched in its entirety, it conveys a sense of peace and coexistence, and that viewers are unlikely to be influenced by the violence shown.
Similarly, in the case of Ushaben Navinchandra Trivedi v Bhagyalaxmi Chitra Mandal the plaintiff had sought a perpetual injunction prohibiting the defendant from screening the film “Jai Santoshi Maa.” The plaintiffs argued that the movie’s contents severely damaged Hindu community members’ religious feelings, as well as the plaintiff’s religious feelings, since the movie depicted Hindu Goddesses Laxmi, Parvati, and Saraswati as envious of one another and mocked in the film. The plaintiff’s appeal was dismissed by the court.
- Acquisition of place of worship by the State:
In the case of M Ismail Faruqi v. Union of India the SC ruled that mosque is not a necessary element of Islam. Muslims can recite Namaz (prayer) anywhere, including in the open, and it is not a hard and fast rule to perform Namaz in a mosque.
In M Siddiq (D) Thr. Lrs v. Mahant Suresh Das Supreme Court held that The State has the sovereign power to acquire the property. The state also has the authority to acquire houses of worship, such as mosques, churches, and temples, and this power is not infringed upon by Articles 25 and 26.
- Restrictions on freedom of religion and noise pollution:
In Church of God in India v. K.K.R. Majestic Colony Welfare Association, the Supreme Court determined that no religion says that prayer with drums or voice amplifiers should be done since it disturbs the calm and tranquillity of others. If such a practise exists, it should be carried out without jeopardising the rights of others, including the freedom to pursue their interests without interference.
In Re Noise Pollution case, the Supreme Court issued the following guidelines for reducing noise pollution:
-Firecrackers: From 10 p.m. to 6 a.m., all sound-emitting firecrackers are prohibited.
– Loudspeakers: Between 10 p.m. and 6 a.m., no drumming, tom-tom, trumpet blowing, or any other use of a sound amplifier is permitted, save in cases of public emergency.
– In general: The State must have the authority to confiscate and seize loudspeakers and other sound amplifiers or equipment that produce noise in excess of the authorised limit.
· Triple Talaq- Talaq-e-biddat:
In Shayara Bano v. Union of India Talaq-e-biddat is a type of divorce in which a Muslim man divorces his wife by saying “talaq, talaq, talaq.” The disputed Triple Talaq case was considered by a Supreme Court bench of five judges. In this case, the central question was whether the practise of Talaq-e-biddat (triple talaq) is a matter of religion for Muslims and if it is part of their personal law. By a 3:2 majority, the court ruled that the practice of Talaq-e-biddat is illegal and unconstitutional. The court also decided that an injunction would prevent a Muslim man from committing triple talaq unless legislation was passed to do so.
- Cow Slaughter Case:
In Mohd. Hanif Quareshi & Ors. v the State of Bihar the petitioner challenged the constitutional validity of Bihar Prevention & Improvement of Animals Act,1955 which imposed total ban on cow slaughter as violative of their fundamental rights under Art 14, 19(1)(g) and 25 respectively. The Supreme Court held that the ban was in accordance with the Article 48 of the Constitution that permits the State to make efforts for banning animal slaughtering of cows constitutional while the act was held void till that extend that the cattle has turned uneconomic .
In Mirzapur Moti Kureshi v the State of Gujaratoverruled the judgement of the previous case stating that the mere cease of producing milk or breeding does not render the cattle useless.
In Mohammed Abdul Faheem Qureshi v Union Of India the constitutional validity of the Prevention of Cruelty to Animals Rules,2017 were challenged as violative of Art 25. The SC finally lifted the absolute ban on beef.
3. Cases pertaining to Article 26-
· The right to build and sustain religious and charity organisations:
In Azeez Basha v. Union of India , the Aligarh Muslim University Act, 1920 was amended in 1951 and 1965, respectively. The petitioner objected to the modifications on the grounds that:
a) They violate Article 30’s basic right to create and govern educational institutions.
b) The Muslim minority’s rights under Articles 25, 26, and 29 have been infringed.
The SC held prior to 1920, there was no law prohibiting Muslim minority from founding universities, it was claimed. The Aligarh Muslim University was founded through legislation of 1920, therefore it cannot be said that the university was founded by the Muslim community because it was created by central legislation, not by the Muslim minority.
- Right to manage the Matters of religion:
In Acharaj Singh v. State of Bihar it was held that religious practises, rituals, observances, ceremonies, modes and manners of religion are integral parts of the religion. It was decided that if offering/ Bhog to the deity is a well-established religious institution’s practise, it should be considered a component of that faith.
- Prevention from ex-communication (exclusion of a person from a group on the grounds of non-membership):
In Saifuddin Saheb v. State of Bombay the petitioner challenged the Section 3 of Bombay Prevention of Excommunication Act, 1949 on the grounds that it infringed on their fundamental rights under Articles 25 and 26 of the Constitution. The Court found that the head’s power of excommunication was central to the community’s activities, and that the Act evidently infringed the basic right guaranteed by Article 25(1) of the Constitution. The act was declared void.
· Right to administer property owned by the denomination:
Supreme Court in Durgah Committee Ajmer v. Syed Hussain Ali observed if a religious group has never had the right to govern property or has lost that right, such right cannot be formed under Article 26 and hence cannot be claimed.
In State of Rajasthan v. Sajjanlal Panjawat SC held even though the state has the authority to administer or regulate a trust’s assets, the court stated that it cannot take away the right to administer such assets by law and vest it in another authority that does not even belong to the denomination. This would clearly be a violation of Article 26(d) of the Constitution.
4. Cases pertaining to Article 27-
In Commissioner, Hindu Religious Endowments, Madras v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt, The Madras Hindu Religious and Charitable Endowment Act, 1951, was adopted by the Madras legislature, and donations were imposed under the Act. The petitioner argued that the contributions imposed are taxes, not fees, and that the state of Madras lacks the authority to implement such a law. The Supreme Court ruled that, while the donation was a tax, its purpose was to ensure the effective management of the religious organisation.
5. Cases pertaining to Article 28-
In D.A.V. College v. State of Punjab, The issue was that the Guru Nanak University is entirely supported by state government funding and Section 4 of the Guru Nanak University (Amritsar) Act, 1969 which said that the state shall provide provision for the study of Guru Nanak Dev ji’s life and teachings violates Article 28. The court disagreed, stating that Section 4 allows for academic study of Guru Nanak’s life and teachings, which cannot be called religious instruction.
Education for value development based on all religions:
In Aruna Roy v. Union of India, the plaintiff contended that the National Curriculum Framework for School Education (NCFSE), which was issued by the National Council of Educational Research and Training, is in violation of the constitution in a PIL filed under Article 32. It was also argued that it was anti-secular and that it was passed without the approval of the Central Advisory Board of Education, and that it should thus be repealed.
NCFSE provides instruction on core human values, social justice, nonviolence, self-discipline, compassion, and other topics. The court decided that there is no infringement of Article 28 and that studying religious philosophy is not prohibited in order to live a value-based life in society.
India is a county of diverse religions. The Constitution of India has adopted the principles of secularism and non-discrimination. However, a necessity for amending Art.25 of the Constitution has been noticed by some of the Constitutional experts on the ground that, the language of Art.25 contradicts the principle of secularism. Art.25 expressly mentions ‘Hindus’ but does not make a separate reference for the offshoots of Hinduism, like the Buddhists, Sikhs and Jains. They are included under Hindus but fail to prosper because of no separate division. Furthermore, the scope of Art.25 (2) does not extend to the non-Hindus like- Parsis, Christians, Jews and Muslims.
As per the German philosopher and political thinker Karl Marx “Religion is opium of the people”. Religious institutions flourish everywhere and dominate every aspect of life. When religion becomes a base for activities like winning elections or forceful conversions, it leads to religious intolerance, which tends to destroy the welfare of the State, peace and harmony of the people. No one is above law, and the way-out to maintain religious tolerance is stringent applicability of law in accordance with the rights laid down in the Indian constitution.
 Published by Varun; Freedom of Religion; University of Lucknow; Available at https://www.lkouniv.ac.in/site/writereaddata/siteContent/202004092006210960varun_law_Freedom_of_religion.pdf (Last accessed 20th June,2021)
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Author: Gunjan Pathak from Law College, Dehradun.