Freedom of religion is a principle that assists in the furtherance of the freedom of an individual or community, to exhibit religion or belief in teaching, practice, deification and adulation, and observance. This article aims at explicating the development of law and jurisprudentia across this topic in India and also appreciate the idea of secularism and rigidity of the freedom extended to the citizens of India. The article also analyses the extent to which the right is extended to people and what are the reasonable restrictions imposed. The article highlights the frequent interpretations by the Apex Court and also discusses the Sabarimala issue in the light of right to freedom of religion.
India has been a country which contains amalgamation of different religions, cultures and customs. “It is inhabited by people of many religions. The framers of the Constitution thus desired to introduce the concept of secularism, meaning state neutrality in matters of religion. They also wanted to confer religious freedom on various religious groups. Religion has been a very volatile subject in India both before and after the Independence. The Constitution therefore seeks to ensure state neutrality in this area.”[i]
“Article 25 to 28 of the Indian Constitution confers certain rights relating to freedom of religions not only citizens but also on all persons in India. These Constitutional provisions guarantee religious freedom not only to individuals but also to religious groups. Article 25 to 28 seek to protect religion and religious practices from state interference. India has no preferred or state religion, as such; all religions are treated alike and enjoy equal Constitutional protection without any favour or discrimination.”[ii]
Implications of freedom of religion
The interpretation of these Constitutional provisions have always been questioned and overhauled. The Supreme Court interpreted these provisions with a vision to endorse inter-religious friendliness, harmony and solidarity. The court has endeavoured for protection and upliftment of minorities and has granted rights over and above the majority rights.
Idea of Secularism
In the momentous case of Bommai v. UOI [iii] in which a nine-Judge Bench was constituted and referred the concept of secular in the Indian context, Sawant J., held that:
“…religious tolerance and equal treatment of all religious groups and protection of their life and property and of the places of their worship are essential parts of secularism enshrined in our Constitution…”
In the same case, B P Jeevan Reddy J., observed:
“… while the citizens of this country are free to profess, practice 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 state, the religion, faith or belief of a person is immaterial. To it, all are equal and all are entitled to be treated equally.”
The idea of secularism was not explicitly assimilated into the Constitution at the time of its inception. However, it was operational through the Fundamental Rights. Secularism is not an inert concept of religious tolerance but also a positive concept of equal treatment of all religions.
With the 42nd Amendment of the Constitution of India enacted in 1976, the Preamble to the Constitution asserted that India is a secular nation. Officially, secularism has always inspired modern India. In practice, unlike western notions of secularism, India’s secularism does not separate religion and state. The Indian Constitution has allowed extensive interference of the state in religious affairs.[iv]
While delivering the majority opinion in M Ismail Faruqui v. UOI[v], Verma J., observed in relation to the scope of 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 articles 25 to 28 emphasizes this aspect and indicates that it is in this manner the concept of secularism embodied in the constitutional scheme as a creed adopted by the Indian people 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.”
Scope of Article 25
It would be necessary to understand in this respect what Article 25[vi] reads:
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 religious institutions of a public character to all classes and sections of Hindus.
The wearing and carrying of kirpans shall be deemed to be included in the profession of the Sikh religion.
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 reference to Hindu religious institutions shall be constructed accordingly.
”The religious freedom of unique individuals of India guaranteed by the Indian constitution by clause (1) of article 25, which can be interpreted precisely as the Constitution makes it clear that the rights provided in clause (1) of article 25 are subject to “morality”, “public order”, and health and to the other, Articles of Part III of the Constitution that lays down the fundamental rights. Clause (2) of article 25 is a “saving clause” for the country so that the religious rights guaranteed under clause (1) are further subject to any “existing law” or a law which the State deems it fit to pass that:
(a) controls or lays constraint on any financial, economic, political or other secular activity which may be linked with religious practices, or,
(b) offers for social welfare and reform or the throwing open of Hindu religious institutions of a public character to all Hindu sections.”[vii]
Meaning of Religion
“The expression “religion” has not been characterized in the Constitution and it is not helpless of any unbending definition. The Supreme Court has characterized it in several cases. A religion is positively a matter of confidence and is not really mystical. Religion has its premise in “an arrangement of the convictions or conventions which are respected by the individuals who pronounce that religion as helpful for their profound prosperity”, however, it would not be right to state that religion is nothing else except for a teaching or conviction. A religion may not just set out a code of moral principles for its devotees to acknowledge, it may endorse customs and observances, services and methods of love which are viewed as a fundamental piece of religion and these structures and observances may degree even to issues of sustenance and dress.”[viii]
“The guarantee under Article 25, subject to the exceptions mentioned, confers a Fundamental Right on every person not merely-
- To entertain such beliefs as are allowed to him by his judgment or conscience, but also
- To exhibit his beliefs and ideas in such overt or outward acts and practices as are sanctioned or enjoyed by his religion, and further
- To propagate and disseminate his religious beliefs, ideas and views for the benefit and edification of others.”[ix]
Article 25 protects religious faith and not a practice which may run counter to public order, health of morality. Polygamy is not an integral part and monogamy as a reform, is within the power of this State under Article 25 of the Constitution.[x]
Arbitrary withholding of the travel documents resulting in pilgrims being deprived of performance of Haj has been held violative of Article 25 in Abdul Gani Sofi v. Haj Committee (J&K).[xi]
Right of Freedom is subject to the rights of others
In the case of Acharya Maharajshri, Hon’ble SC has observed that “no rights in an organised society can be absolute. Enjoyment of one’s rights must be consistent with the employment of rights also by others. Where in a free play of social forces it is not possible to bring about a voluntary harmony, the state has to step into a set right the imbalance between competing interests.”[xii] Hon’ble Court further observed that “a particular Fundamental Right cannot exist in isolation in a water-tight compartment. One Fundamental Right of a person may have to co-exist in harmony with the exercise of another Fundamental Right by others also with reasonable and valid exercise of power by the State in the light of the Directive Principles in the interests of social welfare as a whole.”
Regulation of Secular Activities by the State
The Supreme court observed in Ratilal Panachand Gandhi v. State of Bombay[xiii] that the state is not empowered to regulate secular activities associated with religious practices. The state is not entitled to regulate religious practices as such. What the state can regulate under Article 25(2)(a) are the activities which are really of an economic, commercial or political character though these may be associated with religious practices.
In the Tilkayat case[xiv], the Supreme Court again observed that the right to manage the properties of a temple was a purely secular matter and could not be regarded as a religious practice under Article 25(1), or as amounting to “matters of religion” under Article 26(b).
The Court concluded in Sri Jagannath:
“…Although the state cannot interfere with freedom of a person to profess, practice and propagate his religion, the state, however, can control the secular matters connected with religion. All the activities in or connected with a temple are not religious activities. The management of a temple or maintenance of discipline and order inside the temple can be controlled by the state. If any law is passed for taking over the management of a temple it cannot be struck down as violative of Article 25 or Article 26 of the Constitution. The management of the temple is a secular act…”.
“Slaughtering of animals is connected with economic activity and law can regulate the same. In State of Tamil Nadu v. Animal Welfare Board[xv] the supreme court decided that jallikattu was not an act essential to a religion or any religious practice and therefore, cannot be protected under Article 25 of the Constitution. The Court rejected the argument that jallikattu is an event that takes place after harvest and has religious flavour and such an ethos cannot be disregarded. The court held that such kind of imaginative conception is totally alien to the fundamental facet of Article 25.”[xvi]
Scope of Article 26
Article 26 of the Indian Constitution reads:
“26. Freedom to manage religious affairs.
Subject to public order, morality and health, every religious denomination or any section thereof shall have the right:
- to establish and maintain institutions for religious and charitable purposes;
- to manage its own affairs in matters of religion;
- to own and acquire movable and immovable property; and
- to administer such property in accordance with law.”
The meaning of the word ‘denomination’ was accepted by the court for the purpose of Article 26 in Commr H.R.E. v Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt[xvii]. It was said that a ‘religious denomination’ is a collection of individuals grouped together under the same name – a religious sect or body having a common faith and organization and designated by a distinctive name. Further, they are entitled to enjoy complete autonomy in the matter of deciding what rites and ceremonies will govern them, and no outside authority has the power to interfere with their matters.[xviii]
To form a religious denomination three conditions must be fulfilled: (1) It is a collection of individuals who have a system of beliefs which they regard as conducive to their spiritual wellbeing; (2) They have a common organisation; (3) Collection of these individuals has a distinctive name. After noting this passage as settled law in Nallor Marthandam Vellalar v. Commr., H.R.E.,[xix] the Supreme Court went on to say:
“It necessarily follows that the common faith of the community should be based on religion and in that they should have common religious tenets and the basic cord which connects them, should be religion and not merely considerations of caste or communities or social status.”
Whether a specific community composes a “religious denomination” is a combined question of law and fact.
Right to acquire and manage property
Under Article 26(c), a religious denomination can acquire property; under Article 26(d), it can administer such property according to law.
Any law which takes away the right of administration altogether from the religious denomination and vests it in any other body or a secular authority, would amount to violation of the right which is guaranteed by Article 26(d). Thus, imposition of land revenue on land belonging to a religious denomination is not hit by Article 26 when the burden imposed[xx] “is a burden to be shared in the same manner by the all the owners of the land in the State and not a special burden imposed on the denominational institution. Burden of that nature is outside the right guaranteed by Article 26 of the Constitution”.[xxi]
The Muslim Wakfs Act which lays down that every member of the Wakfs Board is to be a Muslim, is valid as it does not deprive the religious denomination, namely, the Muslims, of its right to administer the wakf property.[xxii] Similarly, vesting of the administration of a Hindu temple in a committee consisting of Hindus only does not contravene Article 26(d). [xxiii]
Analysing Sabarimala issue in the light of Article 25 & 26.
Sabarimala Sree Dharma Sastha Temple is one of the most ancient religious loci where lakhs of devotees come to seek the blessings of Lord Ayyappa worshipped in the form of “Naishtika Brahmachari” or eternal celibate god. The temple is managed by the Travancore Devaswom Board. As per the age-old custom of the temple, women of menstrual age (10 to 50 years) are not permitted to enter the temple premises. Many feminists and activists have expressed their opinion against the issue.
In 1991, in the case of S.Mahendran vs The Secretary[xxiv], the Kerala High Court said that the “tantri” (priest) was empowered to make decisions regarding the temple and the restriction was not violative of Articles 15, 25 and 26 of the constitution. The restriction is also not violative of Kerala Hindu Places of Public Worship (Authorisation of Entry) Rules,1965 as prohibition is only in respect of women of a particular age group and not women as a class. It was also said that the devotees of Ayyappa form a religious denomination of ‘Ayyappans’.
Dissatisfied with the judgement of the High Court, a group of five women lawyers moved the Supreme Court and challenged the Rule 3(b) of the Kerala Hindu Places of Public Worship (Authorisation of Entry) Rules,1965. It prohibits the entry of “Women at such time during which they are not by custom and usage allowed to enter a place of public worship”. They argued that the rule was violative of Article 14,15,19 and 25 of the constitution. One of the issues that were raised at this point of time was whether the worshippers of Lord Ayyappa formed a religious denomination under article 26 of the constitution. In the case of Indian Young Lawyers Association v. The State of Kerala[xxv], the judgement was pronounced in 4:1 majority by the five-judge Constitutional Bench. The court decided that the devotees of Lord Ayyappa did not form a religious denomination under Art.26(b) of the Constitution.
Scope of Article 27
To maintain the secular character of the Indian polity, not only does the constitution guarantee freedom of religion to individuals and groups, but it is also against the general policy of the Constitution that any money be paid out of the public funds by promoting or maintaining any particular religion.[xxvi] Accordingly, Article 27 lays down that 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.”[[xxvii]]
This provision, it has been held, does not invalidate levy of a fee to provide some services. Thus, a fee can be levied on pilgrims to a religious fair to meet the expenses of the measures taken to safeguard the health, safety and welfare of the pilgrims. [xxviii]
According to Article 28(1), no religious education is to be provided in any educational institution which is wholly maintained out of the state funds. Under Article 28(2), this restriction would not apply to educational institution which, though administered by the State, has been established under an ‘endowment’ or ‘trust’ requiring that religious instruction should be imparted in such an institution. In state recognized educational institutions, religious education can be imparted on a voluntary basis. According to Article 28(3), no person attending an educational institution recognized by the State or receiving aid from the State funds, can be required to participate in any religious instruction imparted in the institution, or to attend any religious worship conducted in the institution, or any premises attached thereto, unless he consents to do so voluntarily or, if a minor, if guardian gives his consent for the same.[xxix]
In Aruna Roy v. UOI[xxx], the Supreme Court has ruled that Article 28 does not ban a study of religions. The emphasis of Article 28 is “ against imparting religious instructions.” 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.”
India provides extensive rights on freedom of religion to its citizens. These rights have always been interpreted and modified accordingly to ensure its benefit and a cap on misuse of such a fundamental right since in India, religion has been a unpredictable topic. Along with the rights, reasonable restrictions are also placed. The rights are subject to public order, morality and health. Right to freedom of religion thus protects people’s right to live, speak, act according to their beliefs peacefully and publicly.
Frequently Asked Questions
- What is the status of freedom of religion in other countries like USA?
The First Amendment to the US Constitution guaranteed religious liberty to every citizen and separation of State and Church. The Establishment Clause prevents the government from promoting or establishing a religion in any way. Considering the position of freedom of religion in Europe, though every country has granted freedom of religion its implementation have often failed.
- Is conversion against the right to freedom of religion?
In Stainislaus Rev. v. State of M.P[xxxi], Supreme Court held that the right to propagate one’s religion means the right to communicate a person’s beliefs to another person or to expose the tenets of that faith, but would not include the right to ‘convert’ another person to the former’s faith because the latter person is “equally entitled to freedom of conscience” which words precede the word ‘propagate’. So, nobody has any fundamental right to convert the religion of someone without his free choice. Further, Court held that the word propagate does not give rise to the right to convert.[xxxii] Voluntary conversion is permitted.
- Is the use of loudspeakers permitted under freedom of religion?
In Church of God in India v. K.K.R. Majestic Colony Welfare Assn.[xxxiii] the Supreme Court held: “Undisputedly, no religion prescribes that prayers should be performed by disturbing the peace of others nor does it preach that they should be through voice amplifiers or beating of drums. In our view, in a civilized society in the name of religion, activities which disturb old or infirm persons, students or children having their sleep in the early hours or during daytime or other persons carrying on other activities cannot be permitted.”
With respect to use of loudspeakers for Azan from the mosques the Court remarked:
“ Azan maybe an essential and integral part of Islam but recitation of Azan through loudspeakers or other sound amplifying devices cannot be said to be an integral part of the religion warranting protection of the fundamental right enshrined under Article 25 of the Constitution of India, which is even otherwise subject to public order, morality or health and to other provisions of Part III of the Constitution of India. Thus, it cannot be said that a citizen should be coerced to hear anything which he does not like or which he does not require since it amounts to taking away the fundamental right of other persons.
- What are the three conditions to constitute a religious denomination?
- How is Indian secularism different from the West?
- In what kind of secular activities can the state interfere?
- Which Amendment included ‘secular’ into the Preamble?
- What was the rule that prohibited women entry in Sabarimala?
[i] M P Jain, Indian Constitutional Law 1297 (8 ed. LexisNexis 2018).
[ii] Id at 1298.
[iii] SR Bommai v. Union of India AIR 1994 SC 1918.
[iv] Secularism in India, Wikipedia (July 10, 2020, 02:20 PM),https://en.wikipedia.org/wiki/Secularism_in_India#History.
[v] Dr.M. Ismail Faruqui Etc, Mohd v. Union of India and Ors. AIR 1995 SC 605 A.
[vi] Indian Const, art. 25.
[vii]Pradeep Raja Ravipalli, Right To Freedom Of Religion under the Indian Constitution, iPleaders (July 10, 2020, 06:42 PM), https://blog.ipleaders.in/right-freedom-religion-indian-constitution/.
[ix] Jain, supra note 1, at 1300.
[x] Khursheed Ahmed Khan v. State of UP AIR 2015 SC 1429
[xi]Abdul Gani Sofi v. Haj Committee (J&K) AIR 2009 J&K 40.
[xii]Acharya Maharajshri Narendra Prasadji Anand Prasadji Maharaj v. State of Gujarat AIR 1974 SC 2098.
[xiii] Ratilal Panachand Gandhi v. State of Bombay AIR 1954 SC 388.
[xiv] Tilakayat Shri Govindlalji Maharaj v. State of Rajasthan AIR 1963 SC 1638.
[xv] State of Tamil Nadu v. Animal Welfare Board (2017) 2 SCC 144.
[xvi] Jain, supra note 1, at 1306 & 1307.
[xvii] Commissioner, Hindu Religious Endowments, Madras v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt AIR 1954 SC 282.
[xviii] Varnika Agarwal, Article 26 of Indian Constitution, Legodesk (July 11, 2020, 12:52 PM), https://legodesk.com/legopedia/article-26-of-indian-constitution/.
[xix] Nallor Marthandam Vellalar v. Commissioner, Hindu Religious and Charitable Endowments AIR 2005 SC 4225.
[xx]Jain, supra note 1, at 1311.
[xxi] Government of Tamil Nadu v. Ahobila Matam AIR 1987 SC 245.
[xxii] Usman Khan v. Faezulla AIR 1959 MP 377; Bashir Ahmed v. State of West Bengal AIR 1976 Cal 142.
[xxiii] Ram Chandra Deb v. State of Orissa AIR 1959 Ori 5.
[xxiv] S. Mahendran v. The Secretary, Travancore AIR 1993 Ker 42.
[xxv] Indian Young Lawyers Association v. The State of Kerala 2018 SCC OnLine SC 1690.
[xxvi] Jain, supra note 1, at 1317.
[xxvii] Indian Const, art.27.
[xxviii] Ramchandra Pande v. State of West Bengal AIR 1966 Cal 164.
[xxix] Jain, supra note 1, at 1318.
[xxx] Aruna Roy v. Union of India (2002) 7 SCC 368.
[xxxi] Stainislaus Rev. v. State of M.P AIR 1977 SC 908.
[xxxii] Divya Sharma, Religious Conversion and freedom of religion, iPleaders (July 11, 2020, 08:56 PM), https://blog.ipleaders.in/religious-conversion-law/.
[xxxiii] Church of God in India v. K.K.R. Majestic Colony Welfare Association 2000 Cri LJ 4022.