DAMODARAM SANJIVAYYA NATIONAL LAW UNIVERSITY

VISAKHAPATNAM, A.P., INDIA

PROJECT TITLE

RELIGIOUS FREEDOM AND RESTRICTIONS OF RELIGIOUS FREEDOM

IN INDIA

SUBJECT
CONSTITUTIONAL LAW -1

NAME OF THE FACULTY

Mr. A. NAGESWAR RAO sir

SUBMITTED BY
M. SHIREESHA, SECTION A

ROLLNO 2015065, 3RD SEMESTER

1
ACKNOWLEDGMENT
I would like to express my special thanks of gratitude to our lecturer Mr. A.
NAGESWAR RAO sir who gave me the golden opportunity to do this wonderful
project on the topic RELIGIOUS FREEDOM AND RESTRICTIONS OF
RELIGIOUS FREEDOM IN INDIA, which also helped me in doing a lot of Research
and I came to know about so many new things I am really thankful to them.

2
 TABLE OF CONTENTS

ACKNOWLEDGMENT 2

TABLE OF CASES ....4

INTRODUCTION .6

OBJECTIVES AND AIMS OF THE STUDY ...6

SIGNIFICANCE OF THE STUDY ..6

SCOPE OF THE STUDY ..7

RESEARCH QUESTIONS ..7

RESEARCH METHODOLOGY ..7

IMPORTANCE OF RELIGION 7

CaONCEPT OF SECULARISM .8

RELIGIOUS FREEDOM IN INDIA 10

RESTRICTIONS ON RELIGIOUS FREEDOM IN INDIA 16

ISSUES UNDER RESTRICTION ON RELIGIOUS FREEDOM

SABARIMALA WOMEN ENTRY CASE 17

BUNNY FESTIVAL IN KURNOOL (ANDHRA PRADESH)18

SANTHARA IN RAJASTHAN ..20

JELLIKATU IN TAMIL NADU 22

COW SLAUGHTER .23

CONCLUSION..24

BIBLIOGRAPHY .25

3
 LIST OF CASES

Case name Pg. no

S.NO
1. Santhosh Kumar vs ministry of human resource development 8

2. M. Ismail Faruqui vs Union of India 9,13

3. S.R. Bommai vs union of india 9

4. Aruna Roy vs union of India 10

5. Lata Singh vs State of Uttar Pradesh 10

6. Commissioner, HRE, Madras vs Sri Lakshmindra 10

7. Abdul Gani Sofi vs Haj Committee 11

8. S.P. Mittal vs Union of India 12

9. Bjioe Emmanuel Vs State of Kerala 12

10. Ramesh vs union of India 12

11. N. aditya vs Travancore Devaswom Board 12

12. A.S. Narayana vs state of Andhra Pradesh 13

13. Bhuri vs state of J&K 13

14. Worter Karamil vs state of Meghalaya 13

15. bramchari sidheswar sahai vs state of West Bengal 14

16. Azeez Basha vs union of India 14

4
 17. Saifuddin sahib Vs State of Bombay 14

18. Bira kishore Dev vs State of Orissa 15

19. Rathi Lal vs state of state of Bombay 15

20. Athiest Society of India vs Government of Andhra Pradesh 15

21. jagnnath vs state of Orissa 16

22. D.A.V. College, Bhatinda Vs State of Punjab 16

23. Rev Stainislaus Vs State of Mp 17

24. State of Bombay vs Varasu bopamail 17

25. church of god (full gospel) vs K.K.K.R.M.C Welfare Association 17

26. Krishna Singh Vs Mathura Ahir 18

27. Indian Young Lawyers Association & Anr Vs the State of Kerala & 18
Ors
28. Sastri Yagnapurushadji and Ors. Vs. Muldas Bhudardas Vaishya and 19
Anr
29. Acharya Jagadhiswaranand Avudhuda vs Commissioner of police 20

30. Nikhil Soni vs. Union of India 21

31. Animal Welfare Board of India v. A. Nagaraja & Ors 22

32. State of west Bengal vs Ashutosh Lahiri 23

33. Mohd. Hanif Quareshi vs State of Bihar 23

34. State of Gujarat v. Mirzapur Moti Kureshi Kassab Jamat 24

5
Introduction

India is a secular country. It is treated and respected all religious are equal.
Constitution of India providing certain fundamental rights. Among those right to
freedom of religion is one of the fundamental rights. During our freedom struggle, the
leaders of the freedom movement had realised the importance of rights and demanded
that the British rulers should respect rights of the people. The Motilal Nehru
committee had demanded a bill of rights as far back as in 1928. After the attainment
of independence, Certain fundamental rights are incorporated in the chapter 3 of the
constitution. Fundamental Rights are different from other rights available to us. While
ordinary legal rights are protected and enforced by ordinary law, Fundamental Rights
are protected and guaranteed by the constitution of the country. Ordinary rights may
be changed by the legislature by ordinary process of law making, but a fundamental
right may only be changed by amending the Constitution itself. Besides this, no organ
of the government can act in a manner that violates them. Article 25- 28 of
constitution deals with right to freedom of religion and restriction of freedom of
religion in India. Constitutions of many countries guarantee freedom of religion and
the laws of most these countries also describe the scope of the exercise of such right.
These rights are mostly restricted on the grounds of general welfare, morality, and
health and public order.

OBJECTIVES AND AIMS OF THE STUDY:

6
The main objective of the study is that to understand religion freedom in India. To
understand the importance of religious freedom in India. The aim of the study is know
various laws and rules and orders related to religious freedom and restriction of
religious. How contemporary issues raises the scope and validity of religious freedom.

SIGNIFICANCE OF THE STUDY:

Case analysis of the various courts judgments with regard to freedom of religion and
restriction of freedom of religion in India. Examples Nikil Soni Vs Union of India;
Aruna Roy Vs Union of India; S.R. Bommai Vs Union of India; National anthem
case; Bhuri Vs State of J &K; Mohad. Hanif Quareshi Vs State of Bihar.

SCOPE OF THE STUDY:

The scope of the study is limited to only Indian context.

RESEARCH QUESTIONS:
1. What is public policy?
2. Why Honourable Supreme Court of India overruling the Jellikatu case,
reason?
3. What are the appropriate grounds for restriction of religious freedom?
4. What are the present issues with regarding to the freedom of religion in India?

RESEARCH METHODOLOGY:
In this project the researcher is using doctrinal type methodology. This methodology
may include publication research, surveys and other research techniques, and could
include both present and historical information.

IMPORTANCE OF RELIGION

Religion plays an important role in the human life. Religion is one of the basic
institutions of any society. Religion has existed throughout human history. It is a
universal system which is found in every society. Religion can be understood as a
social system in which there is common faith, worship, rituals, customs and traditions.
Religion means an organized system of beliefs, ceremonies, and rules used to
worship a god or a group of gods. Religion plays a vital role in enlightening of

7
 our lives. Countries like India religion plays vital role in all spheres. For
example Hindu religion plays an important role in its culture. If government
based on one religion it instrument for oppression. In countries where
government is based on the religion, social changes take place with difficulty.
The same situation is prevailed in countries like Islamic and Arabic countries.
In these countries women are greater sufferer of religion. Religion is an
instrument of social integration and solidarity. Religion is one of the means of
social control. Religion is the source of social welfare by encouraging people to
render a helping hand to those who are in need by preaching service to human
being is service. Sometimes religion is source for conflict.

CONCEPT OF SECULARISM
The founding fathers under the leadership of Pandit Sri Jawaharlal Nehru adopted
secularism as main pillar of Indian Democracy. Our country is the birthplace of several
religions, Hinduism, Buddhism, Jainism, and Sikhism, and home for thousands of years
to Jewish, Zoroastrian, Muslim, and Christian communities. The vast majority of
citizens of all religious groups lived in peaceful coexistence and were conscious of
religious freedom and minority rights. To maintain harmony among all religions, the
concept of secularism has adopted. Secularism has been written in to the constitution of
India in Article 25 to 28. 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, the concept of secularism was not expressly incorporated in the
constitution at the time of making. How ever its operation was clearly visible in the
Fundamental rights and Directive principles of state policy. The word Secular Was
inserted in the preamble by 1976, 42 Amendment to the constitution. The freedom of
religion is important concept of secularism. Every person is free to believe in any
religion and is equally free not to believe in any religion. His belief can not be penalised
until unless contrary to the public policy. There is to be no state established or state
recognized religion as much. The state is neutral in matters which are related to the
religion. In secularism, the state given complete autonomy to the religious bodies as
well as individuals to manage and control their religion matters.

8
Santhosh Kumar vs ministry of human resource development 1 held that the
introduction of Sanskrit language as subject in the central Board of Secondary Education is
not violative of the provision of the constitution relating to the freedom of religion and the
concept Secularism. It is not against secularism as it doest not belong to a particular
religion but it is the mother of all Aryan languages.
Our former President Dr. S. Radha Krishnan rightly explained the term secularism on the
Indian context in the following paragraph;
Secularism here doest not mean irreligion or atheism or even stress on material comforts. It
proclaims and lays stress on universality spiritual values which may be attained in various
ways.
Thus word secularism has following four dimensions:
1. Separating the affairs of the state from those of religion.
2. Equal treatment of all communities by the state.
3. Rational critique of religious beliefs and faiths
4. Vital domain ensuring just and fair living conditions for all people (freedom choose
their own religion).
Thus India, being liberal democratic state follows three essential elements of secularism.
A. Principle of liberty to practise any religion
B. Principle of Equality that the state doest not adhere any particular religion on
the state religion
C. Principle of Neutrality that the stare choose to remain away from participation
in the affairs of any religious, beliefs, faith, organisation, groups or sects.
The Peoples Representation Act, 1951, in section 123(3) provides that inducing a voter
in any election to vote or not vote on caste and religion lines is an offence under law and
hence punishable. This is shows that India is a secular country.
Verma J delivering the majority opinion in M. Ismail Faruqui vs Union of India2
observed related to the concept of the secularism
It is clear from the constitutional scheme that it guarantees equality in the matter of
religion to all individuals and groups irrespective of their faith emphasizing that there is
no religion of the state itself. The preamble of the constitution read in particular with
Article 25 to 28 emphasizes this aspect and indicates that it is this manner the concept of
secularism embodied in the constitutional scheme as creed adopted by the people of India

1
AIR 1995 SC 293, (1994) 6 SCC 579
2
AIR 1995 SC 604, (1994) 6 SCC 360

9
has to be understood while examining the constitutional validity of any legislation on the
touchstone of the constitution. The concept of secularism is one facet of the right to
equality woven as the central golden thread in the fabric depicting the pattern of the
scheme in our constitution.

Secular concept state -individual

State

Citizenship Concept of Secularism

Right to freedom of religion

Individuals Religion

The land mark judgment delivered by the Supreme Court in S.R. BOMMAI VS UNION
OF INDIA3, explained about the concept of secularism as follows.
According to SAWANT J
religious tolerance and equal treatment of all religious groups and protection
of their life and liberty and of the place of their worship are an essential part of
secularism enshrined in our constitution.
According to Justice B.P. Jeevan Reddy
.. while of this country are free to profess, practise and propagate such religion, faith
or belief as they choose, so far as the state is concerned, i.e., from the point of view of the

3
AIR 1994 SC 1918

10
state, the religion, faith or belief of a person is immaterial. To it, all are equal and all are
entitled to be treated equally.
Aruna Roy vs union of India 4 the court held that concept of secularism is not
endangering if the basic tenets of all religions all over the world are studied and learnt.
Value based education will help fight against fanaticism, ill will, violence, dishonesty and
corruption. These values are the basic tenets of all religions. All religious principles are
almost equal. In Lata Singh vs State of Uttar Pradesh the caste barriers in societal
interactions are anti secular. Inter caste marriage shall be promoted, protected and
conserved by the state to promote greater secular values. This is also part of
secularization process.
The concept of secularism was not merely a passive attitude of religious tolerance. It is
also a positive concept of equal treatment of all religions.

RELIGIOUS FREEDOM IN INDIA

Article 25 should be read along with Article26. While article 25 guarantees right to an
individual, article 26 guarantees such rights to an organised body of individuals like
religious denominations or any section of them. Both these articles protect matters of
religious doctrine or belief as well as acts in pursuance of religion rituals,
observances, ceremonies, and modes of worship.
The term religion has not been defined in the constitution, and it is a term which is not
susceptible of any precise definition.
The Supreme Court has observed in Commissioner, HRE, Madras vs Sri
Lakshmindra5 explained the concept of religion.
Religion is the belief which binds spiritual nature of men to super natural being. Is
includes worship, belief, faith, devotion, etc. and extends to rituals. Religion right is
the right of person believing in a particular faith to practise it, preach it and profess it.
The religion is based on the system of beliefs. One religion beliefs may contradicts
with the others religious beliefs. It is severe issue to the secular countries like India.
The Honourable Supreme Court also stated that the guarantee under the constitution
of India, not only protects the freedom of religion, but it protects also acts done in
pursuance of religion. In this case SC explains the scope of Article 25 of our
constitution. The facts of this case are that the imposition under a section 76(1) of the

4
(2002) 6 SCALE 408
5
AIR SC 1954 282

11
act, although it is a tax, whether it was applicable to the religious institutions like
Maths etc. The Supreme Court held that the contribution levied under the Madras
Hindu Religious charitable Endowments Act, 1951 was in the nature of a tax and not
fee.
Abdul Gani Sofi vs Haj Committee6 the facts of the case, arbitrarily withholding of
travelling documents of Haj Pilgrimage lead to the deprivation of performance of his
ritual under Muslim law (it is very essential for Muslims). It is violative of Article of
25 of constitution.
According to the Article 25 two fold freedom
1. Freedom of conscience
2. Freedom to profess, practise and propagate religion.
ARTICLE 25:
FREEDOM OF CONSCIENCE AND FREE PROFESSION, PRACTISE 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 (2), the reference to Hindus shall be
construed as including a reference to persons professing the Sikh, Jaina or Buddhist
religion, and the reference to Hindu religious institutions shall be construed
accordingly.
DEFINATION OF RELIGION IS UNCERTAIN

6
AIR 2009 J&K 40

12
In S.P. Mittal vs Union of India7 going by the denial of Sri Aurobindo that he was
establishing a religion, the majority of the court took a restricted view of religion and
held that teaching of Aurobindo constituted a philosophy and a religion even if his
followers claimed it is religion. The court held that religion is a matter of belief and
doctrines, concerning human spirit, expressed overtly in the form of religion rituals
and worship and Aurobindos disciples took Aurobindo teachings in that spirit the
teaching constituted a distinct religion. This wide definition of religion may not be
appropriate for determining the denominational rights under Article 26.
In Bjioe Emmanuel Vs State of Kerala8 three children belonging to the Jehovas
witness of the Christian community were expelled from the school for refusing to
sing the national Anthem. Their action was challenged under the article 25(1) of the
constitution. The Kerala high court held that it was their fundamental duty to sing the
national anthem, their conduct was tended to disrespecting towards our national
anthem. But the Supreme Court reversed the high court decision and held No person
can be compelled to sing the national anthem if he has genuine, conscientious
religious objection. There is no legal obligation in India for citizens to sing the
National Anthem. By standing g up while the national anthem was being sung the
children had shown proper respect to the national anthem. Accordingly court directed
the authorities to re admit the children in the school and allow them to pursue their
study.
TELECAST OF SERIAL
In Ramesh vs union of India9, the petitioner a practising advocate of high Court filed
a Public Interest Litigation under Article 32 for issue of a writ in the nature of
prohibition restraining the respondents, namely, the union of India. The telecasting
serial TAMAS about communal violence which was generated at the time of
partition, the serial was based a novel written by Sri Bhisam Sahni.
In N. aditya vs Travancore Devaswom Board10 the Supreme Court held that
Brahmins do not have monopoly over performing puja in temple. A non Brahmin can
be appointed as pujari if he properly trained and well versed with rituals to be
performed and mantras to be recited.

7
AIR 1983 SC 1
8
AIR 1987 SC 748
9
(1988) SCC 668
10 nd
2 (supp) NSC3538

13
In A.S. Narayana vs state of Andhra Pradesh11 , the petitioner, the chief priest in the
ancient and renewed Hindu temple at Thirumala Tirupathi and in North India called as
Balaji Temple, had challenged the validity of the Andhra Pradesh Charitable and
Hindu Religious and Endowments Act abolishing hereditary rights of archak and
other office holders on the ground that it violated his freedom of religion under article
25 and 26 of the constitution.
The court held that is not violative of the article 25 and 26 of the constitution and is
valid. The hereditary right to appointment of priests is not an essential or matter of
religion or religious practise. The appointment of archaka is a secular activity which
can be regulated by law.
In Bhuri vs state of J&K12 Jammu & Kashmir Mata Vashno Devi Shrine Act, 1988,
was challenged on the ground that transfers of temple management and administration
and governance and it endowment according act rules and regulation. It was not
violative of article 25 of the constitution it is for better maintaince of temple.
Babri masjid incident shaken the whole India at that time. In Ismail Faruqui vs
Union of India13 in this validity of the acquisition of certain areas at Ayodhya Act,
1993 was challenged. A mosque is not an essential part of the practise of the religion
of Islam and namaz (prayer) by Muslims can be offered anywhere, even in open.
Accordingly, its acquisition is not prohibited by the provisions in the constitution of
India. While offer of prayer or worship is religious practise, it offering at every
location where such prayer can be offered would not be an essential or integral part of
such religious practise unless the place has significance for that religion so to form an
essential and integral part of such religion. And in the view of temporary vesting in
the central government of the disputed and adjacent land at Ayodhya where Babri
Masjid existed was not a violation of Article 25 of the constitution.
In Worter Karamil vs state of Meghalaya14 the petitioner belonged to the Seng
Khasi denomination residing at Mawlong village of Meghalaya. There wore thirteen
houses and 86 persons. They possessed a burial ground which was allotted by the
village elders since time immemorial. The respondent threated to disposal of the body.
The court held that dispossessing them from cremation ground amounted the

11
AIR 1996 SC 1711
12
AIR 1997 SC 1711
13
(1994) 6SCC 360
14
AIR 2010 Gau 51

14
abridgement of their fundamental rights to freedom of religion which means disposal
according to their customs.
Article 26: Freedom to manage religious affairs
(1)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.

The right guaranteed by the article 25 is an individual right while right guaranteed by
article26 of is right of an organised body.
In bramchari sidheswar sahai vs state of West Bengal 15 popularly known as the
Ram Krishna Mission Case, in this whether Ram Krishna Matt is considered as
religious denomination was challenged. The Supreme Court has held that followers of
Ram Krishna, who collection of individuals, and who adhere to a system of beliefs as
conducive to spiritual well being, who have organised themselves collectively and
who have an organisation of definite name as Ram Krishna Mission. According to the
below mentioned rules Ram Krishna Mission is considered as Religious
denomination.
i. It must be common organization
ii. It must be distinguished from the distinct name
iii. It must be collection of individuals who have system of belief for being
which regards for their spiritual well.
In Azeez Basha vs union of India 16 the Supreme Court held that the Aligarh
University was not established by the Muslim minority it was established by the
particular state legislation and therefore it could not claim the right to maintain.
In Saifuddin sahib Vs State of Bombay17 the petitioner was head of the Dawoodi
Community, challenged the constitutionality of the Bombay Prevention of Ex-
Communication Act, 1949 was challenged. The petitioner claimed that as the head of
the community he had the right to ex communicate a member and this power was

15
(1995) 4 SCC 646
16
AIR 1968 SC 662
17
AIR 1962 SC 853

15
integral part of the religious faith and belief of the Bohra community. The court struck
down the provision.
In Bira kishore Dev vs State of Orissa 18 the shri jagnnath Temple act took
management of secular activities of temple from the raja of puri and vested it in
committee constituted under the act. The court held that the act valid as it did not
affect the religious aspect. It was purly secular activity.
In Rathi Lal vs state of state of Bombay19 in this case court held that a law which
empower the state to take over religious denomination with arbitrariness without
assigning any reason, without any mismanagement is invalid. If state is unnecessarily
intervened in the religious affairs, it should be violative of the article 25 of the
constitution.
Breaking of coconuts, and performing pooja, chanting, mantras and sutras in state
official functions was valid. In Athiest Society of India vs Government of Andhra
Pradesh20 the petitioner, athiest Society of india, prayed for issuing a writ of
mandamus directing that state government to prohibit breaking of coconuts,
performing of poojas, chanting of mantras of sutras of different religions at state
functions. The Andhra Pradesh High court rejected their prayer and held that these
activities have been part of Indian tradition. It is not object of the constitution to turn
the country into an irreligious place.
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 religious denomination.
This article emphasised the secular character of the state. The public money collected
by the way of tax cannot be spent by the state for the promotion of any particular
religion. The reason underlying this provision that india being a secular state and there
being freedom of religion guaranteed by the constitution both to individual and groups
it is against the policy of the constitution to pay out of public funds any money for the
promotion or maintaince of the particular religion or religious denomination.
In jagnnath vs state of Orissa21 in this case court held levy under the Orissa Hindu
Endowments act, 1939 was in the nature of fee and not tax. The payment was

18
AIR 1964 1501
19
AIR 1954 SC 388
20
AIR 1992 AP 310
21
AIR 1954 SC 400

16
demanded only for the purpose of meeting of expenses of temples management and
better administrational and good governance.
28. Freedom as to attendance at religious instruction or religious worship in certain
educational institutions.
(1) No religious 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.
Article 28 mentioned four types of educational institutions
1. institutions wholly established by the state ( no religious instructions)
2. institutions recognised by the state ( religious instructions with consent of the
individuals)
3. institutions that are receiving aid out of the state fund ( religious instructions
with consent of the individuals)
4. Institutions that are administered by the state but established under any trust or
endowment. ( no restriction of religious instructions)
In D.A.V. College, Bhatinda Vs State of Punjab 22 in this case the validity of
section 4 of the Guru Nanak University Act which directed the state to make
provision for the study and research on the life and teaching of Guru Nanak was
challenged on the ground that it was violative of article 28 of the constitution
which prohibits religious instructions in state in state aided educational
institutions. It was not violative because academic study and research of life and
teaching of Guru Nanak as part of Academic curriculum knowing past traditions
and customs lead to better stretching of future.

RESTRICTIONS ON RELIGIOUS FREEDOM IN INDIA

22
AIR 1971 SC 1737

17
No right is an absolute right. Every right has certain limitations. So Freedom of
religions which are guaranteed under the article 25 to 28 of the constitution also
certain restrictions on freedom of religion are as follows.
religious liberty subjected to public order
health
morality
not to contradict with any existing law
social welfare and social reforms
Right to propagate ones religion doesnt give right to anyone to forcibly convert any
person to ones own religion.
In Rev Stainislaus Vs State of Mp23 in this court held that forceful conversions into
ones own religions was invalid. Forceful conversions only not valid. Hindus from
higher castes have traditionally discriminated against Dalits. Discrimination has
traditionally been such a serious problem that Article 17 of the Indian Constitution
abolishes Dalits' untouchable status.14 However, discrimination still exists, thus
Dalits have a strong interest in escaping the Hindu caste system by converting to other
religions.
In state of Bombay vs Varasu bopamail24 an act which prohibited bigamy was valid
under article 25(2) (b), polygamy is not an essential part of the Hindu Religion
therefore it can be regulated by law.
Since ancient times up to beginning of 20th century sati system was prevailing in
India. The same was struck down it was against public police.
In church of god (full gospel) vs K.K.K.R.M.C Welfare Association 25 in the
exercise of the right to religious freedom under the article 25 and 26 no person can be
allowed to create noise pollution or disturbance the peace of others. The custom of
religious prayer through the use of loudspeakers is not an essential element of any
religion. The order of the authorities under the madras town nuisance Act, 1889 and
the Noise pollution (regulation and control) Rules, 2000 is valid and constitutional.

23
AIR 1977 SC 908
24
AIR 1953 Bom 84.
25
AIR 2000 SC 2773

18
In Krishna Singh Vs Mathura Ahir26 the Supreme Court stated even if personal laws
are contradict with public policy, fundamental rights do not touch upon the personnal
laws of the parties. The remaining restrictions are as follows below.

ISSUES UNDER RESTRICTION ON RELIGIOUS FREEDOM

SABARIMALA WOMEN ENTRY CASE
Sabarimala women entry issue is controversial since 1991. In Indian Young Lawyers
Association & Anr Vs the State of Kerala & Ors 27 it is submitted that the Hindu
women (who aged between 10-50 period, particularly during menstruation period) are
claiming the right to enter places of public worship for the purposes of darshan
which is a right guaranteed under Article 25(1) of the Constitution as well as Article
25(2) (b) of the Constitution. In 2016, the Supreme Court had given verdict on this
case. The bench had re-examined the history this issue. A Division Bench of the
Kerala HC had, on April 5, 1991, examined the Sabarimala Thanthri (chief priest) and
upheld the restriction on women of a particular age group offering worship at the
shrine. The HC Bench of Justices K. Paripoornan and K.B. Marar held that the
prohibition imposed by the Travancore Devaswom Board was not violative of Articles
15, 25 and 26 of the Constitution. Neither was it violative of the provisions of the
Hindu Places of Public Worship (Authorisation of Entry) Act, 1965 as the prohibition
was only in respect of women of a particular age group and not women as a class.
They same also contended that Article 26 begins with the opening words Subject to
public order, morality and health. They contended that their conduct lead to
immoral, according to customs.

On April 11, 2016 re-examined this issue. A bench led by Justice Dipak Misra
questioned several issues as follows. What right does temple have to forbid women
from entering any part of temple? Can you deny a woman her right to climb the
Mount Everest? Can we constitutionally reconcile with the idea that women cannot
be allowed in sanctum sanctorum? 28 "A mutt preventing entry of women into its
premises is understandable. But how can a temple, which is a public place, be made
out of bounds for citizens on the ground of sex, age or any other criteria? The bench
26
AIR 1980 SC 707
27
in the supreme court of india civil original jurisdiction i.a. no. 10 of 2016 in writ petition (civil) no.
373 of 2006
28
http://indianexpress.com/article/india/india-news-india/sabarimala-temple-ban-is-tradition-above-
constitution-asks-sc-ban-women/

19
had given decision with extreme wonderful reasoning. The Supreme Court made it
clear there is no discrimination regarding temple entry for worship was not at all
acceptable. It is violative of religious freedom which is guaranteed under the
constitution. In Sastri Yagnapurushadji and Ors. Vs. Muldas Bhudardas Vaishya
and Anr (Sastri Yagnapurushadji case)29 the petitioner filed a case against entry of
hijras in temple is in valid. The petitioner belonged to Swaminarayan Sampradaya
(sect) argued that the Bombay Hindu Places of Public Worship (Entry-Authorisation)
Act, 1956 that provided for entry of Harijans into Hindu temples was not applicable
to their temple (where a celibate god was housed) as they were not Hindus, rejected
their argument that they are a religion distinct and separate from the Hinduism. The
court stated that according to the constitution of India article 25 started with every
person includes woman, man, third gender without any discrimination of caste, sex,
colour, creed, place, religion, etc.

BUNNY FESTIVAL IN KURNOOL (ANDHRA PRADESH)

Bunny festival is celebrated in the occasion of Dasara Festival in Andhra Pradesh. It is

a mock fight among various villages. The ritual takes place at midnight when the
procession idols of the ruling deities Malamma (Parvati) and Malleshwara Swamy
(Shiva) are brought down the hill temple at Neraneki. The ritual in the region once
under the Vijayanagara Empire is said to be centuries old and according to a local
police official, has one hundred years of recorded history30. However, devotees from
neighbouring villages who take part in the celebrations try to hijack the processional
deities to their village believing that it will bring good tidings if they are able to
snatch the deities. It is stick fight among devotees, the hedge part of stick consisted
sharp iron. This fight is against article25 (1) clause of the constitution, it stated
religious liberty subject to public order, morality and health. The human rights
commission of Andhra Pradesh filed a case against Bunny festival.

In this case long usage of custom is prevailed, but it has adversely affected the public
order and health of the people. Every year 3000- 4000 people are participated in that
festival. Bunny festival is unconstitutional. If it prohibition of the bunt festival will

29
1966 3 SCR 242/ AIR 1966 SC 1119
30
http://www.hindustantimes.com/india/in-pics-a-temple-in-andhra-pradesh-where-devotees-go-to-kill-
or-be-killed/story-uahTGiU3zJWedd2X58E7AP.html.

20
not amount to the violative of religious freedom which is guaranteed under the article
25 to 28 of the constitution.

In Acharya Jagadhiswaranand Avudhuda vs Commissioner of police 31 court held

that Tandava dance in public place is not essential part of their religious activity. In
this anand marg was founded by anand murthi, in his book carya- carya described
how Tandava dance would be performed. Tandava dance is against public policy
because it has violence in that nature. The commissioner directed that it should be
performed without knife, live snake, and skull. Relying on the above decision bunny
festival is unconstitutional it is against public order.

Table shows that number of injuries during bunny festival in respective years

S. No year Number injuries

1 2016 2132

2 2015 3033

3 2014 60 (one killed)

4 2013 25

5 2012 10734

6 2011 91

The above statistics that violence nature of bunny festival. For prevention of the
bunny festival local police taken lot of steps like awareness camps etc it doesnt work
in the blindness of religious belief.

SANTHARA IN RAJASTHAN

31
AIR 1984 SC 51
32
https://www.youtube.com/watch?v=QDz9umfQVjM
33
http://www.thehindu.com/news/national/andhra-pradesh/30-injured-during-banni-at-
devaragattu/article7798488.ece
34
http://www.thehindu.com/news/national/andhra-pradesh/devaragattu-revelry-leaves-107-
injured/article4032098.ece

21
The Rajasthan High courts Judgment criminalizing the practice of Santhara by
followers of Jainism has led to an uncertainty on the contours of judicial interference
in religious practice. Santhara is a practice followed by the Jains, its means salvation
till attaining of death, or fast until death.
Article 25 of the Constitution of India guarantees that all persons are equally entitled
to freedom of conscience and right freely to profess, practice and propagate religion,
but it subject this guarantee to public order, morality and health and to other
fundamental rights guaranteed by the Constitution. Article25(2)(a) makes it clear that
this guarantee shall not affect the operation of any existing law or prevent the state
from making any law regulating or restricting any economic, financial, political or
other secular activity that may be associated with a religious practice.
In Nikhil Soni vs. Union of India, a Rajasthan High court bench comprising Chief
Justice Sunil Ambwani and Justice Veerendra singh Siradhana was faced with the
problem or dilemma of having to resolve an apparent tension between this guarantee
and Indian Penal Code (IPC), namely, section 306 and 309, which criminalize
abetment to suicide and attempt to suicide respectively. The bench resolved this by
directing the state government to stop the practicing of the Santhara and treat it as
suicide punishable under section 309 of the IPC and its abetment under the section
306 of IPC.
Both the provisions are seen to be in conflicting with the practice of Santhara among
the followers of Jainism. Santhara or Sallekhana means a fast until death. It is a
practice prevalent in both shwetambara and Digambara sects of Jainism. According to
it, a person, after taking vow of Santhara, gives up food and water waits for death to
arrive. In his petition, Nikhil soni alleged that it was a religious fast until death on the
pretext that when all the purpose of life had been served or when the body was unable
to serve any purpose of life, the Santhara would obtain moksha. Soni submitted that
Santhara was a religious practice and thought and had no place under the law of the
land.
In his petition, Soni decided conceded that Santhara involved the right to freedom of
religious under the Article25. However, his grievance was that this right should be
subjected to public order, morality and health and to the other provisions of Part3 of
the constitution, which includes Article21 guaranteeing the right to life. A practice,
however ancient it might be to particular religion, could not be allowed to violate the
right to life of an individual, he submitted in his petition. He argued that a voluntarily

22
fast until death was an act of self destruction which amounted to suicide which is a
criminal offence and is punishable under the 309 of IPC with simple imprisonment for
a term up to one year or fine with fine or with both. The abetment of suicide is also
punishable under section 306 of the IPC with imprisonment up to 10 years also a fine.
Soni narrated that a person adopting Santhara was helped by the entire community in
designing it ceremoniously. People visit the person for his or her darshan and to
witness the occasion with reverence. The house of such a person becomes a place of
pilgrimage. The entire act was considered an act of courage and rational thinking on
the pretext that the soul never died, he said. They glorify the act and its eventually, he
said. He gave a few instances of Santhara since 1993 and allowed that the police had
not taken any action in these although the entire family and the community had
abetted the persons in the act of Santhara. This, he said, was because the
administration in Rajasthan accepted the act as part of religious practice.
The Rajasthan government told the court that the right of an individual practicing
Santhara was protected as religious practice under the constitution. The state
government relied on study carried out by the Justice T.K. Tukol, former Vice-
chancellor of Bangalore University and the author of Sallekhana is not suicide. He
said under his research. Finally Santhara is strictly prohibited by the law.

JELLIKATU IN TAMIL NADU

23
Animal Welfare Board of India v. A. Nagaraja & Ors 35 in this case bullfight in
Jallikattu challenged as unconstitutional. Jallikattu is a religious practice in Tamil
Nadu in India. It is ancient religious practice followed by the Hindu people
during pongal festival. It is like a game similar to the bull fight which is enduring
in the Spain, but little differences between the Jallikattu and Bullfight. Although
it was opposed by the many people mostly animal lovers. It is recent issue in
India. The festival is against the rules laid down by the Animal welfare Act, 2013.
Some hindrance takes place in the legal validity of Jallikattu and its judgment.
The PETA failed a case against the Jallikattu, the Supreme Court of India given
landmark judgment, later on pressure of the local government it is came into
existence. 5-07-2014, the Honourable Supreme Court of India passed a landmark
judgment in favour of PETA India and the government body the Animal Welfare
Board of India (AWBI) clarifying that bulls must not be used in Jallikattu, bull
races, bullfights or any other type of performance. On January 7, an interim order
issued by the government to stop Jallikattu up to four years, this was stayed up to
march, later pressure on local government, the supreme court allowed it.
According to the Article25 (2) of constitution it is invalid. It is contradict with the
provisions of Animal welfare Act, 2013. In this case, Supreme Court bended over
the political pressures.
COW SLAUGHTER

State of west Bengal vs Ashutosh Lahiri 36in this case court held that cow sacrifice
held not an obligatory overt act for Muslims to exhibit his religious beliefs and ideas
on bakr Id day. According to the hedaya, it is optional for a mulism to sacrifice a goat
and for seven goats a cow or a camel. There was no fundamental right of a Muslim to
insist on slaughter of a healthy cow on Bakri idd day. The court has observed.
slaughtering of healthy cows on Bakri id is not essential or required for
religious purpose of Muslims or in other words it is not a part of religious requirement
for a muslim that a cow must be necessarily scarified for earning religious merit on
Bakri idd.

35
Civil Appeal No. 5387 of 2014, http://www.lawctopus.com/academike/jallikattu-verdict-supreme-
court/
36
AIR 1995 SC 464; (1995) 1SCC 189

24
Mohd. Hanif Quareshi vs State of Bihar 37 in this case The Bihar Preservation and
Improvement of Animals Act,1955, put a total ban on the slaughter of all categories
of animal of the species of bovine cattle. The U. P. Prevention of Cow Slaughter
Act, 1955, put a total ban on the slaughter of cows and her progeny which included
bulls, bullocks, heifers and calves. The C. P. and Berar Animal Preservation Act,
1949, placed a total ban on the slaughter of cows, male or female calves of cow, bulls,
bullocks, and heifers and the slaughter of buffaloes (male or female, adults or calves)
was permitted only under a certificate granted by the proper authorities. No exception
was made in any of these Acts permitting slaughter of cattle even for bona fide
religious purposes. These three Acts were enacted in pursuance of the directive
principles of State policy contained in Art. 48 Of the Constitution.
The petitioners, who were engaged in the butcher's trade and its subsidiary
undertakings, challenged the constitutional validity of the three Acts on the grounds
that they infringed their fundamental rights guaranteed under Articles 19(1) (g) and 25
of the Constitution. The rule which was given in aforesaid case followed here. Cow
slaughter issue draws the attention of the people because cow is god according to the
Hindu mythology. Slaughtering cow is against their perspectives and tradition.
On March Bombay high court had given verdict on penalizing of cow slaughter was
challenged in the Supreme Court. The Supreme Court stated it is valid and state has
no authority to decide whether citizens are followed which type of food habits, beef is
food of poor people, and it is nutritious food. In State of Gujarat v. Mirzapur Moti
Kureshi Kassab Jamat38 decision was quiet against the above mentioned judgments.

CONCLUSION
Religion plays an important role in the human life. Fundamental imposes negative
aspect on the government and positive aspect towards citizens. India is a secular but it
doesnt mean irreligious country. Secularism is basic structure of our constitution it
cannot change through an amendment. In secular state, the state is only concerned
with the relation between man and man. It is not concerned with the relation of man
with god. In democracy countries Rule of law is important concept, it influenced by
any other religious aspect like Rule of God, for that concept of secularism is adopted.

37
AIR 1958 SC 731; 1959 SCR 629
38
(2005) 8 SCC 534

25
Several issues like Sabarimala women entry issue, Babri Masjid Demolition issue etc
questioned on the constitutionality of the Article 25 to 28 of the constitution. If
religious freedom opposed to policy it was in valid. Now a days, cow slaughter issue
is created so much religious tolerance in country. State has to obligation is to
maintain harmony among different religions.

Bibliography
ARTICLE
Comparative study of freedom of religion under various constitutional
frameworks - Bhanu Pratap Singh39

Religious freedom in India and analysis of the Constitutionality of anti-

conversion laws - James Andrew huff40

Religious freedom in India - Rajeev dhavan41

BOOKS
Indian Constitutional Law- M. P. JAIN, 7TH EDITION, 2016

Indian Constitutional Law P. M. BAKSHI, latest edition

Indian Constitutional Law J.N. Pandey, latest Edition

Indian Constitutional Law V.N. Shukla, edited by Mahendra P singh, 11th edition

39
National Monthly Refereed Journal of Research In Arts & Education
Volume III, January14 ISSN 2277-1182
40
Citation: 10 Rutgers J. L. & Religion 1 2009, Hein online
41
Citation: 35 Am. J. Comp. L. 209 1987, Hein online

26
WEBSITIES
1. http://www.ndtv.com/india-news/triple-talaq-court-cant-interfere-in-religious-
freedom-says-muslim-law-board-1453665
2. https://www.thequint.com/opinion/2016/08/26/haji-ali-order-court-upheld-the-
right-to-freedom-of-religion-article-25-zakia-soman-noorjehan-niaz
3. http://indianexpress.com/article/opinion/columns/triple-talaq-islam-muslim-law-
board-supreme-court-muslim-wife-divorce-3015345/
4. http://www.legalservicesindia.com/article/article/ambit-of-right-to-freedom-of-
religion-1048-1.html.

27