DME Law School Noida

Constitutional Law-II
Right to Freedom of Religion
(Articles 25-28)

Bedapriya Lahiri
Assistant Professor
DME Law School Noida
 Article 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, 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 kripans 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 Hindu 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.
• The term 'religion' has not been defined in the Constitution
and it is a term which is not susceptible of any precise
definition.
 Commr., Hindu Religious Endowments, Madras v.
Lakshmindra Thirtha Swamiar of Shirur Mutt
AIR 1954 SC 282.
• The Supreme Court has observed that religion is certainly a
matter of faith with individuals or communities and it is not
necessarily theistic. Religion is the belief which binds
spiritual nature of men to super-natural being. It includes
worship, belief, faith, devotion etc., and extends to rituals.
Religious right is the right of a person believing in a
particular faith to practice it, preach it and profess it.
 S.R. Bommai v. Union of India
AIR 1994 SC 1918
• The Supreme Court has held that secularism is a basic feature
of the Constitution. The State treats equally all religions and
religious denomination.
• Religion is a matter of individual faith and cannot be mixed
with secular activities. A government, which is anti-secular,
cannot be said to be government according to the provisions
of the Constitution.
Ratilal Panachand Gandhi v. State of Bombay,
AIR 1954 SC 388
• Clause (1) of 25 -Article 25(1) guarantees to every person and
not merely to the citizens of India, the freedom of conscience
and the right freely to profess, practice and propagate religion.
• This right is subject in every case to public order, morality,
health and other provision of Part III. Freedom of Conscience
connotes a person's right to entertain beliefs and doctrines
concurring matters which are regarded by him to be conducive
to his spiritual well-being.
 Bijoe Emmanuel v. State of Kerala, AIR 1987
SC 748
• The Supreme Court held that article 25 is an article of faith in
the Constitution recognising the principle that real test of true
democracy is the ability of even an insignificant minority to
find its identity under the country's Constitution.
 A.S. Narayana Deekshitulu v. State of Andhra
Pradesh, AIR 1996 SC 1765
• The Court held that the word 'religion' used in articles 25 and
26 of the Constitution is personal to the person having faith
and belief in the religion and held that an Act was
constitutional which regulated only the secular activities
connected with religion and not matters which are integral
part of religion.
 Restrictions on Freedom of Religion

1. Religious liberty subject of public order, morality and

health.-
In the name of religion no act can be against public order,
morality and health of the public. Thus section 34 of the Police
Act prohibits the slaughter of cattle or indecent exposure of
one's person in a public place. Right to propagate one's
religion does not give right to anyone to forcibly convert any
person to one's own religion.
 Rev. Stainislaus v. State of Madhya Pradesh,
AIR 1977 SC 908
• Article 25(1) guarantees freedom of conscience to every
citizen and not merely to the followers of one particular
religion. This article postulates that there is no fundamental
right to convert another person to one's own religion because
if a person purposely undertakes the conversion of another
person to his religion, that would impinge on the freedom of
conscience guaranteed to all citizens of the country alike.
 Javed v. State of Haryana, AIR 2003 SC 3047

• The Supreme Court has held that section 175(1)(q) of the

Haryana Panchayati Raj Act, 1994 which disqualified person
having more than two children from contesting election for
the post of Sarpanch and Panch in Panchayat does not violate
article 25 of the Constitution.
2. Regulation of economic, financial, political and secular
activities associated with religious practices [clause (2)(a)].-
• The freedom to practice extends only to those activities which
are the essence of religion. It does not cover such activities
which do not form the essence of religion.
• Social Welfare and Social reforms (Clause 2(b)).- Under this
clause State is empowered to make laws for social welfare and
social reforms. This clause declares that where there is conflict
between the need of social welfare and reforms and religious
practice, religion must yield. Under this clause, the State is
empowered to throw open all Hindu religious institutions of a
public character, to all classes and sections of Hindus.
 Mohd. Hanif Quareshi v. State of Bihar, AIR
1958 SC 731
• The court held that the sacrifice of cow on the Bakrid day
was not an essential part of the Mohammedan religion and
hence could be prohibited by State.
 S.P. Mittal v. Union of India, AIR 1983 SC 1

• The Supreme Court held that the memorandum of association

of society and repeated uttering of Sri Aurobindo and the
mother that the society and Auroville were not religious
institutions and other documents make it clear that neither the
society nor Auroville constituted a "religious denomination"
and the teachings of Sri Aurobindo did not constitute a
'religion'.
Article 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 matter of religion;
(c) to own and acquire movable and immovable property; and
(d) to administer such property in accordance with law.
 Azeez Basha v. Union of India
AIR 1968 SC 662
• The Supreme Court held that the Aligarh University was not
established by the Muslim Minority and therefore it could not
claim the right to maintain it. It was established under a
statute passed by the Parliament.
 T.M.A. Pai Foundation v. State of Karnataka,
AIR 2003 SC
• The right to establish and maintain educational institutions
may also be sourced to article 26(a), which grants, in positive
terms, the right to every religious denomination or any
section thereof to establish and maintain for religious and
charitable purposes, subject to public order, morality and
health.
Sardar Syedna Taher Saifuddin Saheb v. State
of Bombay, AIR 1962 SC 853
• The term "matters of religion" used in article 26(b) is
synonymous with the term 'religion' in article 25(1). It thus
includes not only religious belief but also such religious
practices and rites as are regarded to be an essential and
integral part of religion.
 S.P. Mittal v. Union of India, AIR 1983 SC 1

• Under clauses (c) and (d) of article 26 a religious denomination

has the right to acquire and own property and to administer such
property in accordance with law. The right to administer property
owned by a religious denomination is a limited right.
• The right of a religious denomination to manage its property. The
former is a fundamental right which cannot be taken away except
on grounds mentioned in article 25 while the latter can be
regulated by law, i.e., it can be abridged or taken away by a valid
law.
Article 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.
 Jagannath Ramanuj Das v. State of Orissa,
AIR 1954 SC 400
• In this case the validity of Orissa Hindu Religious
Endownments Act was challenged. The Act levied an annual
contribution on every muth or temple having annual income
of more than Rs. 250 for meeting the expenses of the
commissioner and his office. The provision was enacted for
better administration of religious endowments. The Act was
upheld on the ground that the contribution imposed by it was
not tax but fee.
Article 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.
Aruna Roy v. Union of India AIR 2002 SC 3176

• The Supreme Court has ruled that article 28 does not ban a
study of religions. There is no prohibition on study of
religious philosophy and culture, particularly for having
value-based social life in a society which is degenerating for
power, post or property.