Article 25 & 26 – Constitution of India

Indian secularism is not anti-religious (wall of separation in USA – American

version of secularism erects a strict wall of separation between the state and
religion.) but is equal treatment of all religions

• This was done so as to reform evil practices prevalent in Indian society

such as devdasi, untouchability, Sati etc.
• This freedom seeks to bring social equality
• Religion need not be theistic. Eg – Buddhism, Jainism
• Religion is system of belief and doctrines which are regarded as those
who profess that religion to be conducive to their wellbeing. It also
includes rituals, ceremonies, observances and modes of worship. It thus
also includes religious practices.
• Religion consists of essential and non-essential practices. Article 25 & 26
protect only those practice which are essential and integral to that
religion.
• The State can regulate secular or temporal matters associated with
religion but not essential religious practices.
• What constitutes essential or integral part of his religion is a matter for
court to decide with reference to the doctrines of a particular religion
and includes practices regarded by community as part of religion.
• Indian secularism does not follow equidistance but principled approach.

Essential Features of Secularism in India:-

• Freedom of practice, profess and propagate religion. (Article 25)

• Right of every religious denomination to manage its own affairs in
matters of religion. (Article 26)
• Right against taxation proceed of which goes towards benefit of any
religion. (Article 27)
• Right against religious education in state institutions. (Article 28)
• State shall have no official religion.
 • There should be no discrimination on the ground of religion. This has
been ensured by Articles 14, 15(1) and (2), Articles 16(2) , 29(2) and 325.
• Secularism part of basic structure. (SR Bommai v. Union of India)

Every denomination has the right to set up religious institutions subject to

certain provisions. (Article 26)

Denomination is a collection of individuals, classed together under the same

name.

Characteristics of Denominations (SP Mittal v Union of India):

• Common faith
• Common organization
• Designation by distinctive name

Bijoe Emmanuel v State of Kerala

Three children belonging to Jehovah’s Witness refused to sing the National

Anthem. They refrained from actual singing but only because of their aforesaid
honest belief and conviction and used to stand up in respectful silence daily,
during the morning assembly when the National Anthem was sung.The school
expelled them for not singing the national anthem.

The court held that refusal to sing the anthem did not constitute an offence
under Prevention of Insults to National Honor Act 1971 as they had not shown
any disrespect to national anthem.

The court held that not singing the national anthem was an aspect of free
speech under Article 19(1) (a) which includes the freedom of silence which
could be curtailed only under the grounds mentioned under Article 19(2).

Commissioner of Police v Jagdishwarananda Avadhut

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

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

M Ismail Faruqui v Union of India

Constitutionality of an Act which temporary vested in the Central Government

the disputed and adjacent land in Ayodhya where Babri Masjid existed.

The court apart from holding that the act was not ultra vires to the constitution
also held:

• Right to practice, profess and propagate religion does not include the
right to acquire, own and dispose of property.
• The State has power to a acquire Mosque/ Temple or other religious
places.
• Right to freedom of religion does not extend to the right to worship at
any and every place of worship.
• A mosque is not an essential part of practice Islam and Namaz can be
offered anywhere even in open.

Sheshamal v State of Tamil Nadu

An act was passed which made certain hereditary religious offices non-
hereditary and prescribed certain qualifications for them irrespective of caste,
creed or race. The Act was passed with an object of social reform measure, and
was challenged on the ground of violation of Article 25(1) and 26 (b).

Petitioner contended that under the law a trustee could appoint any one as
priest if he possessed requisite qualifications irrespective of his being a Savaite
or Vaisnavite which constituted a violation of freedom of religion.

The Court held that the appointment of a priest was a secular act and
appointment of priest on hereditary principle despite its religious usage was
not an integral part of religion. The Court upheld the validity of the law.
Rev Stanislaus v State of MP

State of Madhya Pradesh and Orissa passed laws prohibiting conversion by

force, fraud or inducement. These laws were challenged as violative of Article
25 of the Constitution.

The apex court held that the right to propagate religion guaranteed by Article
25(1) includes right to propagate but does not guarantee a right to convert
another to one’s own religion.

Lily Thomas v Union of India

Husband, while still married to his first wife, converted to Islam in order to
marry another woman. When first wife sued under bigamy, husband claimed
that his conversion, under right of freedom of religion (Art 25), was valid and
his new religion allowed multiple wives.

Court held that one cannot convert so as to take advantage of a personal law.

Freedom of religion is not violated by a law to punish a Hindu convert to Islam

for bigamy if he contracts another marriage while the first marriage subsists.

Church of God v. KKR Majestic Colony Welfare Association

The court justified the Environment Protection Rules (1986), which prohibits
noise pollution, on the grounds that loud preaching is not an essential or
integral part of the religion.

Further even if loud preaching is deemed to be essential and integral practice

of a religion, the loud preaching would violate a person’s liberty to not hear
something they didn’t want to.

Court held that freedom of religion cannot violate any of the other
fundamental rights.

Sri Adi Vishashwara of Kashi Vishwanath v State of UP

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

Atheist Society of India v. State of Andhra Pradesh (1992)

Petitioner wanted to stop practices such as Bhoomi Pujan, and chanting of

mantras by the government in its official functions

Court held that these practices are cultural and not religious, done to invoke
blessing of god

Judgment much criticised as this affect atheist’s right to conscience

Mohd. Ahmed Khan v. Shah Bano Begum

Woman filed for maintenance under section 125 of CrPC

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

Saifuddin Saheb v State of Bombay

The Bombay government enacted a law called Prevention of Excommunication

Act to prohibit ex-communication on the ground of religion prevalent in
Dawood Bohra sect of Muslims.

The Supreme Court held the Act was unconstitutional on the ground that the
power of the head of Dawood Bohra community to excommunicate was
absolute and an essential part of religion and the State could not interfere in
the matter of religion.

Here there was a conflict between the individual’s right to freedom of religion
and religious denomination’s right to manage its affairs in matters of religion.
The court gave primacy to the right of religious denomination over the right of
the individual. This judgment was another example of legal positivism of the
Indian Supreme Court.
Mohd Hanif Quareshi v State of Bihar

Constitutionality of a legislation prohibiting cow slaughter was challenged as

infringing the rights of Muslims to sacrifice cows on Bakr-Id day.

After going through the Islamic scripture Koran, the Supreme Court held that
sacrifice of cow on Bakr Id day was not an essential part of Islam because there
was an option of a cow, a camel or six goats to be sacrificed on this day.
Therefore slaughtering of cows could be restricted by legislation.

T.M.A. Pai Foundation v State of Karnataka

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

Article 29 & 30 – Constitution of India

This is just introduction of culture & educational rights

(Important for essay )
The fabric of human life is woven round religion and culture, and mankind lives
by them. The phenomenon of culture is not static but dynamic. It is positive in
nature. It is progressive and capable of constant growth like a living organism.

The cultural heritage of a nation reflects its maturity and projects itself as a
viable community in the world domain.

The depth and richness of culture has a direct relation to the strength of
character of a community and its inbuilt discipline.

A nation having no distinct culture of its own may find it almost impossible to
sustain itself today in the face of scientific and technological advancement
which are fast leading towards a materialistic outlook of life. For long, India has
been known for its ancient cultural heritage.

This is enriched by the flow of segments of alien systems which in course of

time have merged in the national mainstream while not losing their separate
identity. There is thus in India a diversity in cultural patterns and yet all
forming part of one cultural unity.

The makers of the Indian Constitution envisaged the Indian Union as a welfare
state, and the ultimate object, as enunciated in the preamble, is to secure to all
citizens justice, liberty, equality and fraternity. These goals have found
manifestations in the fundamental rights and the directive principles of state
policy as declared and formulated in chapters III and IV of the Constitution.

In these declarations and formulations is recognized the existence of various

sections of the people having distinct language and culture and the need to
preserve and promote the interests of all linguistic and cultural groups.

The language and culture of a community can effectively be preserved by and

through educational institutions. However, the process of education should be
conditioned in order to meet the demands of a welfare state and also to
discourage disruptive and separatist tendencies in the country. All this is
conceived in articles 29 and 30 of the Constitution.

To preserve language, script, and culture

Article 29(1) extends to all the citizens irrespective of the fact whether they are
in majority or minority, the only condition being that such section must have a
distinct language, script or culture of its own.

It is an absolute right for the minorities to preserve its language and culture
through educational institutions and cannot be subject to reasonable
restrictions in the interest of the general public.

Restrictions on the ground of religion, race, caste or language

Article 29(2) is an individual right given to citizen and not to any community.
The present clause gives an aggrieved person, who has been denied admission
on the ground of his religion. If a person has the academic qualifications but is
refused admission only on the grounds of religion, race, caste, language or any
of them, then there is a clear breach of the fundamental right under this
section.

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article 30(1) is further divided into two parts, that is:

Right to establish

To claim the benefit under article 30(1) it is not necessary-

That the institution must seek to conserve the language, script or culture of the
minority community; what is necessary is its establishment by the minority
community, it may impart religious or secular education wholly unconnected
with language, script, and culture.

That admission into such institution must be confined exclusively to members

of the minority community, and not a single member of the majority
community or other minority communities should have its advantage

The purpose of both the article is to protect the interest of minorities but the
scope of articles is different.

While article 29(1) is not confined to minorities, but all sections of citizens who
have a distinct language, script or culture article 30(1) is applicable only to the
minorities.

St Xavier College v State of Gujarat

Gujarat University imposed following conditions on every college affiliated to

university

• One nominee in governing body by vice chancellor of university

• If college takes any action against any teacher, suspend or remove, no
such action can be taken by any member of staff except for approval of
vice chancellor
 • If any dispute arises between the management of college and teaching
staff such dispute shall be referred to arbitration and the adjudicator will
be the nominee of vice chancellor

Court held that these provisions are inapplicable to a minority institute rights.
However minority institutes under Article 30(1) were not free from regulation
and regulatory measures necessary to ensure orderly, efficient and sound
administration. The court decided that the minority institute possess the
following rights:-

• Right to choose the personnel of the members of Governing Body

• Right to admit students of their choice
• Right to appoint teachers
• Right to take disciplinary action against the staff and students
• Right to use property and assets for the benefit of the institution.

The court also held that minority institutes are subject to the following:-

• Regulations relating discipline, health, sanitation, morality, public order,

observance of labour standards, syllabi, courses of study, qualification of
teachers are permissible as they promote the excellence of the
institution.
• Minority institutions can also be required to follow general laws relating
to contract, industrial laws, norms of natural justice and norms of fair
employment.

Court also held that no regulations could be imposed on minority institutions

on grounds of national interest.

Frank Anthony Public School Employees Association v Union of India

Frank Anthony Public School was governed by Delhi education act, Section 12
of which had provision regarding service conditions of the teachers
Pay and allowances given to teachers of private schools whether aided or
unaided shall not be less than their counterparts in government schools.

Frank Anthony Public School Employee Association sought revision of their

salary so as to seek parity in income; also all teachers teaching for same work
should get same salary on basis of equality enshrined in Article 14

Respondent contended that they are a reputed school and charge very less fee
and hence cannot afford to pay the same salary and they will have to shut if
they have to pay same salary

Court held that right of employees to get equal salary was violated and
payment of salary to a teacher was not part of administration and hence article
30 was not violated.

St. Stephen’s College v University of Delhi

St. Stephen had admission procedure different from Delhi University and used
to conduct an oral interview

Further seats were reserved for Christians in the college

Delhi Students Union filed a writ petition contending that as the college was
state aided college it cannot deny students on basis of religion (Article 29(2))

Court acknowledged that St Stephens is a minority institution and right to

administer institute includes right to admit students of own preference

Court also took into consideration that St. Stephens was also takes funding
from government and since it is an aided institute it cannot deny students
admission to non-minority student on basis of religion

Court then held that St. Stephens can reserve seats for minority students not
exceeding 50%

TMA Pai Foundation v. State Of Karnataka

Held education is an occupation under Article 19(1)(g) of constitution

Under article 26 every religious denomination has the right to establish
educational institution since education is a charitable organization

Minority has an additional right under Article 30(1) to establish an educational

institution of their choice

Unaided private schools (minority or not) cannot be compelled to follow

reservation policy of the state.

Unaided institute can have any reasonable fee structure and state cannot
interfere with it

Defined Minority – Minorities would constitute numerically less than 50% of

the population of a State. Minority to be determined on basis of population in
a state and not whole of nation

Regulations can be framed in national interest and such regulations should

equally apply to minority institutions.

Whether Jamia Millia Islamia is a minority institution?

On 22nd February 2011 National Commission for Minority Educational

Institution (NCMEI) has declared Jamia Millia Islamia a religious minority
institution and that the university will have the benefit of being a minority
institution under article 29 and article 30 of the Constitution.

According to Section 2 (o) of the JMI Act says “University” means the
educational institution known as “Jamia Millia Islamia” founded in 1920 during
the Khilafat and Non-Co-operation movements in response to Gandhiji’s call
for a boycott of all Government-sponsored educational institutions, which was
subsequently registered in 1939 as Jamia Millia Islamia Society, and declared in
1962 as an institution deemed to be a University under section 3 of the
University Grants Commission Act, 1956, and which is incorporated as a
University under this Act.18
On 5th March 2018, an affidavit is filed by the incumbent Government in the
Delhi High Court regarding the minority status of Jamia Millia Islamia where
they cited the case of Azeez Basha v. Union of India to justify their stand, in
which the apex court held that university incorporated under the act of
parliament cannot be claimed as a minority institution.

The affidavit concludes that JMI is not a minority institution as it was set up by
the Act of Parliament and funded by the central government and it was not set
up by any minority sect.

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