Right to Freedom of Religion (Articles 25-28)

Right to Freedom of Religion (Articles 25-28) | Overview

• Introduction
• Right to Freedom of Religion (Articles 25-28)
• Article 25 (Freedom to profess and practice religion)
• Article 26 (Freedom to manage religious affairs)
• Article 27(Freedom from payment of taxes for promotion of any particular religion)
• Article 28 (Prohibition of Religious Instructions in Educational institutions)

Introduction

The right to Freedom of Religion forms an integral part of the Fundamental Rights, as envisaged in the Constitution of India. As India is a multi-cultural and multi-religious state, many religions, religious sects and denominations exist in our country. These diverse religious sentiments of people were kept in mind by the framers of the Constitution of India. Therefore, in the preamble itself, it was tried to secure the liberty of belief, faith and worship.

Only unity and integrity of the nation can secure this liberty. At the same time, it was also clearly specified that India is not a theocratic country. Hence, India is a secular state and it observes an attitude of impartiality towards all religions. This impartiality is secured by the constitution under Articles 25 to 28.

Further, the concept of secularism is implicit in the preamble of the Constitution, which declares to secure to all its citizens “liberty of thought, belief, faith and worship”. Through the 42nd Amendment Act,1976, the word ‘Secular’ was inserted in the preamble so that the concept of secularism in the constitution is presaged out clearly.

In S.R. Bommai v. Union of India[1] the Supreme Court has held that “secularism is a basic feature of the Constitution”. The state treats equally all religions and religious denominations. Religion is a matter of individual faith and cannot be mixed with secular activities.

In the Indian context, secularism has a positive intent. Our constitution has not accepted the American doctrine of secularism i.e. the concept of erecting “a wall of separation between Religion and State”. The Indian Constitution embodies the positive concept of secularism which separates spiritualism with individual faith. The State is neither anti-religion nor pro-religion. In the matter of religion, the state is neutral and treats every religion equally.

Right to Freedom of Religion (Articles 25-28)

Articles 25-28 of the Constitution, which constitute the “right to freedom of religion” are:

• Article 25: Freedom of conscience and free profession, practice and propagation of religion
• Article 26: Freedom to manage religious affairs
• Article 27: Freedom as to payment of taxes for promotion of any particular religion
• Article 28: Freedom as to attendance at religious instructions or religious worship in certain educational institutions

Articles 25 to 28 use the term “person”; therefore, it can be inferred that freedom of religion is available to every person, citizen or non-citizen or aliens.

I. Article 25 (Freedom to profess and practice religion)

The term religion is not defined in the constitution and indeed it is a term which is hardly susceptible to any rigid definition. The Supreme Court has broadly defined it as being a matter of faith with individuals or communities, and that it is not necessarily theistic.

It will not be correct to say that religion is nothing else but a doctrine of belief. Religion is essentially a matter of personal faith and belief. Every person has the right not only to entertain such religious belief and ideas as may be approved by his judgement or conscience but also exhibit his belief and ideas by such overt acts, which are sanctioned by his religion.

Article 25 (1) guarantees to every person the freedom of conscience and the right to profess, practice and propagate religion. This article secures to every person freedom not only to subscribe to the religion of their choice but also to execute their belief in such outward acts as they think is proper. All persons are also free to propagate their ideas to others. Thus, under article 25 (1), a person has two-fold freedom:

1. freedom of conscience
2. freedom to profess, practise and propagate religion.

Freedom of conscience is meaningful only if and when the expression of spiritual conviction or religious belief is allowed both in word and action. Freedom to profess religion means the right of the believer to give expression to their belief in public. Freedom to practice religion means conveying one’s belief to another and to persuade them to subscribe to it. It does not, however, amount to forcible or coercive conversion.

The rights guaranteed under Article 25 (1), like other constitutional rights, is not absolute. This right is subject to public order, morality and health, and to the other provisions of Part III of the Constitution.

Article 25(2)(a) allows the State to regulate and restrict any economic, financial, political or other secular activity under existing law or by enacting a new law. Article 25(2)(b) further allows the State to provide for and carry on social welfare programme, especially by throwing open the Hindu religious institutions of a public character to all classes and sections of Hindus including the Sikhs, Jains and the Buddhists.

Role of the Parliament

A number of social welfare legislations introduced by the Parliament under this provision include the Untouchability Act of 1955, Commission of Sati (Prevention) Act of 1987, Hindu Marriage Act of 1955, Hindu Succession Amendment Act of 2005, among others.

Important Judgements

In Sri Jagannath Temple, Puri Management Committee v. Chinatmani Khuntia[2] it was held that the management of a temple or maintenance of discipline and order inside the temple can be controlled by the State. Taking over the management of a temple by a law does not infringe Articles 25 and 26, as it is a secular act.

In Mohd. Hanif Quarashi v. State of Bihar[3] it was held that the sacrifice of cows on Eid al-Adha was not an essential part of Mohammedan religion and hence, could be prohibited by the State under Article 25(2)(a).

In Bijou Emmanuel v. State of Kerala[4] three children belonging to Jehovah’s witness were expelled from school for refusing to sing the national anthem. The circular issued by the Director of Instructions, Kerala had made it obligatory for students in schools to sing the national anthem.

The Supreme Court held that the children had not committed any offence. There was no law under which their Fundamental Right under Article 19(1)(a) could be curtailed. It could only be regulated by law and on the grounds mentioned in the Constitution or by executive instructions.

II. Article 26 (Freedom to manage religious affairs)

Article 26 guarantee to every religious denomination the following rights:

1. to establish and maintain institutions for religious and charitable purposes,
2. to manage its own affairs in matters of religion,
3. to own and acquire movable and immovable property, and
4. to administer such property in accordance with law.

Article 26 thus guarantees certain rights to every religious denomination or any section thereof. However, the rights so guaranteed are subject to public order, morality and health.

To form a religious denomination three conditions must be fulfilled:

1. it is a collection of individuals who have a system of beliefs, which they regard as conducive to their spiritual well-being,
2. they have a common organisation, and
3. collection of these individuals has a distinct name.

According to Article 26(a), every religious denomination and a section thereof shall have the right to establish and maintain institutions for religious and charitable purposes. The word “establish and maintain” should be read conjunctively, and consequently, the right to maintain the institution can be claimed only by the religious denomination which has established or brought into existence the institution. Right to maintain the institution includes the right to administer it.

In TMA Pai Foundation v. State of Karnataka[5] the Court held that the right to establish and maintain educational institutions has been conferred by Article 26(a) on every religious denomination or Section thereof, be it of majority religious community or of minority religious community.

According to Article 26(b), every religious denomination or any section thereof has the right to manage its own affairs in matters of religion and the state cannot interfere in these affairs, unless it exercises its right so as to interfere with public order, morality, and for health. The religious denomination’s right to manage its own affairs is limited to the affairs in matters of religion. Secular activities with religious institutions may be regulated by the State.

In Saifuddin v. State of Bombay[6] the validity of the Bombay Prevention of Excommunication Act, 1949 was challenged. The Act took away the right of the head of the community to excommunicate, even on religious grounds, and therefore it was held to be Article 26(b).

Clauses (c) and (d) of Article 26 provide that subject to public order, morality, and health, every religious denomination or a section thereof, shall have the right to own and acquire movable or immovable property and also the right to administer such property according to law. The property of the religious denomination may be acquired by the authority of law. Besides, the state can also regulate the administration of the property belonging to the religious denomination.

However, it is to be noted that the state cannot take away the right of administration altogether from the religious denomination and vest it in any other secular body. Administration of property belonging to a religious denomination must remain with the religious denomination, though it may be regulated by law. For example, if an Act passed by the legislature vests the administration of the property belonging to a Hindu temple in a committee consisting of Hindus only, it will be valid as it does not deprive the religious denomination, namely, the Hindus of its right to administer the property of the temple.

III. Article 27(Freedom from payment of taxes for promotion of any particular religion)

The object of Article 27 is to secure that the public funds raised by taxes shall not be utilised for the benefit of any particular religion or religious denomination. Thus, a local authority which raises taxes from persons of all communities who reside within its jurisdiction, would not be entitled to give aid to those educational institutions which provide instructions relating to any particular religion.

It may be noted that Article 27 prohibits the levy of “tax” and not an imposition of “fee”. Article 27 not only prohibits the imposition of a tax but it also prohibits the utilisation of public funds for the promotion or maintenance of a particular religion or religious denomination.

However, reconstruction of the religious and educational places damaged during communal riots, at the cost of the Government had been held to be valid. Likewise, the acquisition of land for construction of temple meant for the use of the public, in general, had also been upheld as not violative of Article 27.

In Sri Jagannath v. State of Orissa[7] the Court upheld the levy and observed that the annual contribution so imposed was in the nature of a fee and not a tax. The payment was demanded for the purpose of meeting the expenses of the Commissioner and his office which was the machinery set up for the due administration of the affairs of the religious institutions, concerned.

In P.M. Bhargava v. University Grants Commission[8] it was held that the introduction of Jyotish Vigyan as a course of study by the UGC did not mean teaching religion.

IV. Article 28 (Prohibition of Religious Instructions in Educational institutions)

Article 28 is confined to educational institutions, maintained, aided or recognised by the state.

Article 28 (1) provides that in institutes of education which are completely funded by the state, any kind of religious instruction cannot be provided.

Article 28 (2) is an exception to Article 28 (1) and provides that the prohibition contained in Article 28 (1) would not apply to an educational institution which is administered by the state but has been established under any endowment. An example of such an institution would be Benares Hindu University (BHU). Therefore, in such institutions, religious instruction may be imparted.

Article 28 (3) further provides that a person attending an institute of education which has been recognised by the State, or which receives monetary aid out of State funds, will not be required to take part in any kind of religious instruction or religious worship which was being imparted or conducted in that institution. The exception to this provision is a minor, for whom the concerned guardian has given consent.

Article 28 (3) read with Article 30(1) enables religious communities to establish the educational institutions of their choice for imparting religious instructions. It allows them to seek partial financial assistance from the state. If partial financial assistance is given by the state, then the institution cannot compel any member to receive religious instruction. However, these partly aided educational institutions are free to give religions instructions to those who consent to receive them.

So, Article 28 distinguishes between four types of educational institutions which are as follows:

1. Institutions wholly maintained by the state.
2. Institutions administered by the state but established under any endowment or trust.
3. Institutions recognised by the state.
4. Institutions receiving aid from the state.

In the first kind, religious instruction is completely prohibited, while in the second kind, religious instruction is permitted. In the third and fourth kinds of educational institutions, religious instruction is permitted on a voluntary basis.

In D.A.V. College Jalandhar v. State of Punjab[9] it was held that the Act establishing the University did not imply that religious instruction would be imparted therein. It was to encourage an academic study of life and teachings of Guru Nanak, which did not necessarily amount to religious instruction or promotion of any particular religion.

A provision for an academic study of life and teaching or the philosophy and culture of any great saint in India in relation to, or their impact on Indian and world civilisation could not be taken as providing for religious instructions relating to a particular religion.

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[1] AIR 1994 SC 1918.

[2] AIR 1997 SC 3839.

[3] AIR 1958 SC 731.

[4] (1986) 3 SC 615.

[5] AIR 2003 SC 355.

[6] AIR 1962 SC 853.

[7] AIR 1954 SC 400.

[8] AIR 2004 SC 3478.

[9] AIR 1971 SC 1737.

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1. Constitutional Law