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Table of Contents

Table of Cases..........................................................................................................2
Introduction................................................................................................................3
Article 25...................................................................................................................3
(a) Freedom of Conscience...............................................................................4
(b) (i) Right to Profess Religion.......................................................................5
(b) (ii) Right to Practise Religion....................................................................5
Practices which constitute integral and essential part of religious
practice................................................................................................................5
(b) (iii) Right to Propagation of Religion......................................................6
Restrictions on the Freedom of Religion.........................................................7
(a) Freedom of Religion subjected to public order, morality and
health.......................................................................................................................7
(b) Regulation of economic, or other secular activities........................8
(c) Social Welfare and Reforms.......................................................................8
Throwing open Hindu Religious Institutions..................................................9
Explanation I to Article 25....................................................................................9
Explanation II to Articles 25...............................................................................10
Article 26.................................................................................................................10
(a) Right to Establish and Maintain Institutions [Article 26(a)]........11
(b) Right to Manage Matters of Religion [Article 26(b)]......................12
(c) Right to Own and Administer Property [Articles 26(c) & 26(d)] 13
Article 27.................................................................................................................13
Article 28...................................................................................................................14
Right to Freedom of Religion and Discrimination......................................16
Conclusion................................................................................................................17
Bibliography.............................................................................................................18
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Table of Cases

 Aruna Roy v. Union of India, AIR 2002 SC

3176………………....15
 Azeez Basha v. Union of India, AIR 1986 SC
662………………….10

 Bramchari Sideshwari Shai v. State of W.B., AIR 1995 SC

2089…10
 Commissioner of Police v. Acharya J. Avadhutta, AIR
2004 SC
2984………………………………………………………………………
11
 Gulam Abbas v. State of U.P., AIR 1983 SC
1268……………........6
 M. H. Quareshi v. State of Bihar, AIR 1958 SC
731…………………..5
 Rev Stainslaus v. State of Madhya Pradesh, AIR 1977 SC
908..5
 Sanjib Kumar v.Principal, St. Paul College, AIR 1957Cal
524..11
 Sri Jagannath v. State of Orissa, AIR 1954 SC
400………….......13
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Introduction

The Right to Freedom of Religion is contained in Articles 25-28 of the

Constitution. The term "Religion" is not defined in the Constitution. It is
not susceptible of any rigid definition. Religion is essentially a matter of
personal faith and belief.1 It also has its outward expression in acts as well.
Religious practices or performance of acts in pursuance of religious belief, are as
much a part of religion as faith or belief in particular doctrines. Religion is the
belief which binds spiritual nature of men to supernatural being. It includes
worship, belief, faith, devotion, etc. and extends to rituals. It is a settled
proposition of law that the protection of Articles 25 and 26 is not limited to
matters of doctrine. They extend also to acts done in furtherance of
religion and, therefore, they contain a guarantee for rituals and
observances, ceremonies and modes of worship which are integral parts of
the religion.

Article 25

“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, practice 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

1 Pandey J.N., The Constitution of India, 2nd ed., Central Law Agency, Allahabad,1972, pg. 123
 Page |4

religious institutions of a public character to all classes and sections of

Hindus.

Explanation I.- The wearing and carrying of Kirpanss 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 professing the Sikh, Jaina or
Buddhist religion, and the reference to Hindu religious institutions shall be
construed accordingly.“2

This Clause secures to every person:-

(a) Freedom of conscience; and

(b)T h e r i gh t t o -
(i) profess religion;
(i) practise religion; and
(i) propagate religion.

(a) Freedom of Conscience

"Freedom of conscience" means the freedom to hold or to, entertain

religious beliefs. This expression means the absolute inner freedom of a
citizen to mould his relations with his God in whatever manner he likes 3 . It
connotes a person's right to entertain beliefs and doctrines, concerning
matters, which are regarded by him to be conducive to his spiritual
well-being. It means to believe in one religion or another or none. Every
person in India, therefore, has the freedom to have faith and belief in religious
tenets of any sect or community.

Also, freedom of conscience has no necessary connection with any

particular religion or any faith in God. It also implies the right of a person

2 Article 25 of The Constitution Of India

3 Pandey J.N., The Constitution of India, 2nd ed., Central Law Agency, Allahabad,1972, pg. 123
 Page |5

not to be converted into another man's religion or to belong to any religion

at all.

(b) (i) Right to Profess Religion

Article 25 (1) guarantees the right to profess religion. To profess means

to avow publicity; to make an open declaration of; to declare one's belief in;
as to profess Christ; to accept into religious order. Thus, to profess a
particular religion means to declare freely and openly one's faith or belief in.
When the inner "freedom of conscience" is expressed in an outward form, it
amounts to profession of religion. It is to declare one's belief in such a way
that it would be known to those whom it may concern.

(b) (ii) Right to Practise Religion

To practise religion means to perform religious duties, rites or rituals.

The protection is, thus, not limited to matters of doctrines but extends to
rituals and observances. The expression "Practise of Religion" signifies acts
done in pursuance of religious belief. The guarantee contained in Article 25(1),
not only, protects the freedom of religious opinion, but it protects also acts
done in pursuance of a religion.

Practices which constitute integral and essential part of

religious practice

Religious practices to which Article 25(1) refers, include practices

which are an integral part of the religion itself, i.e., the beliefs and doctrines
which are regarded by those who profess religion, to be conducive to their
spiritual well-being. It is upon the cornerstone of essential parts or
practices that the superstructure of religion is built. It means the core
beliefs upon which a religion is founded. The integral or essential part of a
religion is primarily to be ascertained with reference to the doctrines of
that religion itself. For example, for Hindus, these may include offerings of
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food to the idol; performance of periodical ceremonies; recital of sacred texts;

offering oblations to the sacred fire. For Sikhs, the wearing of Kara the
wearing and carrying of Kirpans, recital of Holy Guru Granth Sahib, are the
integral part of their religion. For Muslims, calling Azan, performance of
Hajj are some of the essential practices which are integral part of their religion.

Whether a religious practice constitutes essential part of the religion

or not, the test always would be whether it is regarded as such by
the community following the religion or not. It is for the Court to decide
whether a part or practice is an essential part or practice of a given religion
and the findings of the Court will depend on the evidence adduced before it as to
the conscience of the community and the tenets of its religion. 4

In M. H. Quareshi v. State of Bihar,5 the petitioners challenged the

Constitutional validity of the Bihar Prevention and Improvement of Animals
Act, 1956. The petitioners inter alia contended that the impugned Act violated
their fundamental right guaranteed by Article 25(1). They argued that the
sacrifice of a cow on the occasion of their Bakri Idd Day was an integral part
of their religion. The Supreme Court rejected the contention and held that
there was no material on the record before the Court which would enable
them to say that the sacrifice of a cow on that day was an obligatory overt
act for a Mussalman to exhibit his religious belief and idea.

(b) (iii) Right to Propagation of Religion

To propagate religion means to spread and publicise one's religious

views. Holding public meetings by persons for propagating their religion is
held to be guaranteed under Article 25(1). But to "Propagate Religion"
indicates persuasion and exposition without any element of coercion. It does
not include the right to insult the religion of others.

4 Kumar Narender, Constitutional Law of India, Allahabad Law Agency, New Delhi, 2012, pg. 392
5 AIR 1958 SC 731
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In Rev Stainslaus v . State of Madhya Pradesh , 6 while upholding the

Madhya Pradesh Dharma Swatantratya Adhiniyam, 1968 and the Orissa
Freedom of Religion Act, 1967, which prohibited the forcible conversion of
any person to one's own religion, the Supreme Court said that the right to
propagate religion did not grant the right to convert another person to one's
own religion. It merely meant the right to transmit or spread one's religion
by an exposition of its tenets.

Restrictions on the Freedom of Religion

The freedom of conscience and the right to profess, practise and
propagate religion guaranteed by Article 25(1) is subjected to various
restrictions such as :-

(a) Freedom of Religion subjected to public order, morality

and health

The free exercise of religion is subjected to State regulation imposed

to secure order, public health and morals of the people. It means that
the fundamental Right to Freedom of Religion must yield to the
maintenance of public order, morality and health of the people. Therefore, when
a person's speeches or actions are likely to trigger communal antagonism
and hatred, resulting in fissiparous tendencies gaining
foot-hold, undermining and affecting communal harmony, prohibitory
orders need necessarily to be passed, to effectively avert such untoward
happenings.

In Gulam Abbas v . State of U.P. ,7 is a clear instance, where the Freedom

of Religion was subjected to the maintenance of public order. The facts briefly
were that there had been a long standing dispute inter se between the
members of the Shia and Sunni sects of Muslims, pertaining to the
performance of religious rites, practices and observances by the members of
6 AIR 1977 SC 908
7 AIR 1983 SC 1268
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Shia sect on certain plots and properties situated in Mohalla Doshipura,

Varanasi. Purely for the purpose of finding out some permanent solution to
the perennial conflict between the two communities, the Supreme Court, in 1982,
appointed a Committee of seven persons consisting of three nominees of Shias
and three nominees of Sunnies and the Divisional Commissioner as its chairman.
The Committee Chairman submitted the report wherein he recommended that
the shifting of the two graves of Sunnies from its original place, so as to separate
the places of worship of Shias and Sunnies, was feasible. The Supreme Court held
that the order of the Court, for implementing the Committee’s recommendations,
was not voilative of their rights guaranteed by Articles 25 and 26. The Court laid
down that the rights under Articles 25 and 26 were not absolute but subjected to
the maintenance of public order. The Court held that shifting of graves was
neither un-Islamic nor contrary to Koran.

(b) Regulation of economic, or other secular activities

Clause (2) of Article 25 enables the state to regulate or restrict the

economic, financial, political or other secular activities associated with religious
practices. Therefore, a law which falls within Articles 25(2)(a) or (b) will be
Constitutionally valid, even if it is found to be inconsistent with the right
guaranteed by Article 25(1). However the words “economic, financial, political or
other secular activities” in Article 25(2)(a) means those activities which are not
of the essence of religion.

(c) Social Welfare and Reforms

Sub-clause (b) of Clause (2) of Article 25 empowers the State to make

laws for social welfare and reforms. It, therefore, explains that where there is a
conflict between a social welfare and reforms and a religious practice, religion
must yield. "Social Reform" means eradication of practices or dogmas which
stand in the way of the country's progress as a whole and which do not constitute
integral and essential part of religion. For example, the prohibition of evil
 Page |9

practices such as "sati" or the system of "Devadasi" might be justified under

Article 25 (2) (b).

Throwing open Hindu Religious Institutions

Article 25 (2)(b) further empowers the State to make laws for "throwing
open of Hindu religious institutions of a public character to all classes and
sections of Hindus".

The expression "Institution of a public character" [Article 25(2)(b)]

means an institution which is dedicated to the public as a whole and to sections
thereof. Article 25(2)(b) protects the right to enter into a temple for worship.
But, it does not follow that the right is absolute and unlimited in character. No
member of the Hindu public would claim under Article 25 (2)(b) that the temple
must be left open at all hours of the day and night and that he should personally
perform those services which the Acharya could alone perform.8

Explanation I to Article 25

Article 25 of the Constitution recognizes the rights of the

followers of the Sikh religion to wear and carry on their persons Kirpan
as an emblem of their religion. Kirpan means sword. But its size and
shape has not been prescribed by the Sikh religion. It may, therefore, be
a sword of any size or shape. But a Sikh cannot carry any number of
Kirpans or swords. He is not allowed to possess extra sword without
license. 9

8 Kumar Narender, Constitutional Law of India, Allahabad Law Agency, New Delhi, 2012, pg. 398
9 Shukla V.N., Constitutional Law of India, 10th ed., Eastern Book Company, Lucknow, 2004 pg. 213
 P a g e | 10

Explanation II to Articles 25
Article 25 declares that the expression "Hindus" shall be construed
as including persons professing the Sikh, Jaina or Buddhist religion. The
explanation is only for the purpose of Article 25(2)(b) 10 . It merely means
that even though the religions of the Sikhs, Joins and Buddhists arose out of
dissent from the Hindu religion, for the generality of purposes, these
religions should be considered to be different from the Hindu religion.
However, for the purposes of Article 25(2)(b), they should be considered to
be governed by the same laws as Hindus.

Article 26

“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.”11

Article 25 is available to all persons but Article 26 is confined to religious

denominations only. The term "Denomination" is not defined in the Constitution.
In Oxford Dictionary it means "a collection of individuals classed together
under the same name, a religious sect or body having a common faith and
organisation and designated by a distinctive name". A "Religious Denomination"
may be "Denomination" which is based on some particular religion. The

10 Shukla V.N., Constitutional Law of India, 10th ed., Eastern Book Company, Lucknow, 2004 pg. 213
11 Article 26 of The Constitution Of India
 P a g e | 11

expression religious denomination must satisfy the following three

conditions:-

(a) It must be a collection of individuals who have a system of beliefs

or doctrines which they regard as conducive to their spiritual
well-being, that is, a common faith;
(b) It must have a common organisation; and
(c) It must be designated by a distinctive name.

The expression "Denomination" is also used for each of the sects

and sub-sects of a religion such as the Arya Samaj, Ramakrishna
Mission 1 2 , Anandamarga Vaishnava (the followers of Ramanuja), the
followers of Madhawacharya, and other religious teachers, though not
separate religions, have been held to be separate religious denomination,
and as such, have the right to the protection of Article 26.

(a) Right to Establish and Maintain Institutions [Article

26(a)]

The right under Article 26(a), is a group right and is available to

every religious denomination or any section thereof, be it of majority or any
section thereof. Article 26(a) thus, gives the right both to the majority as
well as minority communities to establish and maintain institutions for
charitable purposes, which would, inter alia, include educational
institutions.

The words "establish" and "maintain" in Article 26(a) must be

read conjunctively. So read, it would mean that only those institutions which a
denomination establishes, that, it can claim the right to maintain those. 13

12 Bramchari Sideshwari Shai v. State of W.B., AIR 1995 SC 2089

13 Azeez Basha v. Union of India, AIR 1986 SC 662
 P a g e | 12

The right guaranteed by Article 26(a) is subjected to "public order",

“morality" and "health " . It means that the right under Article 26(a) may be
restricted on the ground only of public order, morality or health and on no
other ground.

In Sanjib Kumar v . Principal, St. Paul College , 14 the Principal of the

College established by the Christian Missionary Society, refused the
petitioner to perform Saraswati Puja in the College premises. The Calcutta
High Court held that the Principal was entitled to refuse the performance
of such a religious practice in the exercise of his right to maintain the
institution under Article 26(a).

(b) Right to Manage Matters of Religion [Article 26(b)]

The expression "matters of religion" includes religious practices,

rites and ceremonies essential for the practising of religion. It does not
merely includes matters of doctrine and belief concerning the religion, but
extends to acts done in pursuance of religion and therefore contains a
guarantee for rituals and observances, ceremonies and modes of
worship, which are essential and integral parts of religion as also the
practice thereof.

In Commissioner of Police v . Acharya J. Avadhutta , 15 the Apex Court

elucidated the expression "an essential part or practice of a religion" to mean
those practices that were fundamental to follow a religious belief. The Court
observed that Freedom to manage religious affairs does not mean creation of any
right which it never had. It merely safeguards the existing rights.

14 AIR 1957 Cal 524

15 AIR 2004 SC 2984
 P a g e | 13

(c) Right to Own and Administer Property [Articles 26(c) &

26(d)]

Clause (c) of Article 26 secures to a religious denomination the right to

own and acquire movable and immovable property. Clause (d) further
strengthens this right by guaranteeing to the denomination the right to administer
such property in accordance with law.

The right contained in Clause (c) of Article 26 is distinguishable from

the guarantee contained in Clause (b) relating to management of religious affairs.
While, Article 26(b) guarantees a fundamental right which cannot be taken away
except on grounds mentioned in Article 25(2), the right contained in Article 26(c)
can be regulated by a law made by a competent Legislature.

It may be noted that Articles 26(c) and 26(d) do not create rights, in
any denomination or its section, which it never had, they merely safeguard and
guarantee the continuance of rights which such denomination or its section had.

Article 27

“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.“16

The object behind Article 27 is to protect the secular characteristic of

the Constitution of India which prohibits the promotion or maintenance of any
particular religion by the State or at State's expenses. Therefore, if such a tax is
imposed, no person can be compelled to pay it. The condition for this Article to

16 Article 27 of The Constitution Of India

 P a g e | 14

apply is that the levy must be a tax. But where the imposition is in the nature of a
fee it does not fall within the prohibition of this Article. 17

The Supreme Court in Sri Jagannath v. State of Orissa,18 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.

Article 28

“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 recognized 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.” 19

Article 28 distinguishes between the following three types of educational

17 Shukla V.N., Constitutional Law of India, 10th ed., Eastern Book Company, Lucknow, 2004, pg. 219
18 AIR 1954 SC 400
19 Article 28 of The Constitution Of India
 P a g e | 15

institutions in respect of holding religious instructions or worship:-

(i) Educational institutions wholly maintained out of State funds.

In these institutions there is absolute prohibition against imparting of

religious instruction.

(i) Educational Institutions which are either recognised by the State

or getting aid out of State funds.

In such institutions there is no prohibition against imparting of religious

instructions or holding of religious worship. However, no person attending
such educational institutions shall be required to take part in religious
instruction imparted therein or attend any religious worship held therein
unless such person has given his consent thereto. If such person is a minor,
consent of his guardian would be required for requiring him to attend the
religious instruction.

(i) Educational institutions which are administered by the State but

have been established under any endowment or trust which requires
that religious instructions shall be imparted.

As regards such institutions there is no prohibition against imparting

of religious instructions.

Article 28 was enacted to ensure that the peaceful atmosphere of

educational institutions should not be disturbed by the controversies with
regard to the truthful character of any particular religion and the erroneous
character of the other. It was to provide for a path of complete safety.
 P a g e | 16

In Aruna Roy v . Union of India ,20 the Apex Court held that Article
28(1) did not prohibit education of religion dissociated from tenets, the
rituals, observances, ceremonies and modes of worship of a particular sect
or denomination. The Court distinguished between "religious instructions"
and "study of religion." What is prohibited is the former and not the latter.
Recommending that students be acquainted with basics of all religions, the
values inherited therein and also a comparative study of philosophy of all
religions, the Court held that it neither offends Article 28 nor brings
secularism to peril.

Right to Freedom of Religion and Discrimination

Apart from the foregoing guarantee of freedom of conscience and religion,

there are certain general provisions which are aimed at ensuring the
effectiveness of the above guarantee by prohibiting any discrimination by the
state on the ground of religion alone21:

1. The state shall not discriminate against a citizen, in any matter and, in
particular, in the matter of employment, only upon the ground of religion.

2. Similar discrimination is banned as regards access to or use of public

places; admission into any educational institution maintained or aided by
the state and the right to vote.

3. Where a religious community is in the minority, the Constitution goes

further to enable it to preserve its culture and religious interests.

20 AIR 2002 SC 3176

21 Dr. D.D. Basu, Introduction to the Constitution of India,20 th ed., LexisNexis Butterworths Wadhwa,
Haryana, 2012, pg. 123
 P a g e | 17

Conclusion
It is made explicit in the very Preamble that India is a Secular State.

The concept of secularism in a nutshell is that the state will have no

religion. It does not mean that it is an irreligious or atheistic state. Nor, it

means that India is an anti-religious state. It merely explains that the state

has its own religion. That, in the matters of religion, the state is neutral.

The state is not concerned with the relationship of men with their God. It is

concerned with the relationship of men with other men. 22 It is thus studied

that the Right to Freedom of Religion, its scope and significance is in the

view of the Secular Democracy established under the Constitution.

22 Kumar Narender, Constitutional Law of India, Allahabad Law Agency, New Delhi, 2012, pg. 388
 P a g e | 18

Bibliography

 Dr. D.D. Basu, Introduction to the Constitution of

India,20th ed., LexisNexis Butterworths Wadhwa,
Haryana, 2012

 Kumar Narender, Constitutional Law of India, Allahabad

Law Agency, New Delhi, 2012

 Shukla V.N., Constitutional Law of India, 10 th ed.,

Eastern Book Company, Lucknow, 2004

 Pandey J.N., The Constitution of India, 2 nd ed., Central

Law Agency, Allahabad,1972

 The Constitution of India, 1950

 http://en.wikipedia.org/wiki/Freedom_of_religion_in_India