JAMIA MILLIA ISLAMIA

Right to freedom of
religion
Project in the subject of Constitution of India
Snigdha Pradhan
4th semester
Faculty of Law
Jamia Millia Islamia

Submitted to,

Dr. Asad Malik

Faculty of Law

Jamia Millia Islamia

- Professor Asad Malik for the clarity he brings into teaching thus
enabling us to have a better understanding of his subject. I also
feel obliged to thank him for providing us with such easy topics to
choose from.

- Saurabh Mishra, My resourceful classmate, who I ran into in the

library, thus un-expectedly starting and successfully completing a
rough handwritten draft of this project within the next ten hours.
Though it is possible for our language to seem similar, it has to be
noted that given some of our group member’s insistence on not
depending on one single book led to all of us giving in equal
contribution to the completion of this project.

- The very cooperative and friendly staff members in the Central and
Law Library who were instrumental in our finding the necessary
books without wasting much time. It has to be noted that their
contribution is essential as our University is yet to get a fully
functional centralized database for its libraries.

1
 Table of Contents

S. No. Title Page No.

1. Introduction 3
2. The need for Right to Freedom of Religion 5
3. What is Religion? 7
4. Implementation of the right to freedom of 9
religion
5. Restrictions on Freedom of Religion 13
6. Freedom to manage religious affairs 17
7. Prohibition of religious instruction in State- 22
aided institution
8. Conclusion 25
9. Bibliography 26

2
 Introduction

India is a secular but not an anti-religious state, for our Constitution guarantees the freedom of
conscience and religion. Art. 27 and 28 emphasize the secular nature of the State, for they secure
to every person freedom from the payment of taxes for the promotion of any religion, and
freedom from attendance at religious instruction or religious worship at certain educational
institutions.

The concept of secularism is implicit in the Preamble of the Constitution which declares the
resolve to secure to all its citizens ‘liberty of thought, belief, faith and worship’.1 Yet it has to be
understood that in India, the concept of the Secular state was never understood to be an
irreligious or atheistic state. It only means that in the matter of religion, the state shall remain
neutral. It has been pointed out in early decisions that the State protects all religions but
interferes with none and this has been fundamental to any state attaining stability over the
population2.

Art. 25 guarantees to every person the freedom of conscience and the free profession, practice
and propagation of religion; and likewise, Art. 26 guarantees to every religious denomination, or
a section of it, a right to manage its own affairs in matters of religion and the right to establish
and maintain institutions for religious purposes.

Yet this freedom is subject to certain limitations which shall be discussed as the discussion in
this Project moves forward.

It is pertinent to note that the Right to freedom of Religion is not unique to the Indian scenario, in
the earlier decisions of the Indian Courts, strong reliance has been laid on the American 3 and
Australian4 judgments as they are also multi-cultural nations which have had to adopt the
approach of guaranteeing freedom of religion to its citizens which have been enumerated in their
Constitution.

1
The 42nd Amendment Act, 1976 inserted the word secular to the Preamble of India.
2
Vasudev v. Vamanji, ILR 1881 Bom. 80
3 st
1 amendment to the US Constitution:- Congress shall make no law respecting an establishment of religion, or
prohibiting the free exercise thereof;…
4
S. 116, Commonwealth of Australia Act:- The Commonwealth shall not make any law for establishing any religion,
or for imposing any religious observance, or for prohibiting the free exercise of any religion, and no religious test
shall be required as a qualification for any office or public trust under the Commonwealth.

3
The Indian scenario, wherein there is a vibrant and multi-cultural population resides, requires for
the above laws to be enacted and enforced, which justify their status as Fundamental and
inalienable rights in the Indian Constitution.

The rights of freedom of religion are guaranteed in Part III of the Constitution from Art. 25 to
Art. 28, wherein the freedom of conscience, free profession and practice5, freedom to manage
religious affairs6, freedom to pay taxes as to propagate one religion7 and freedom to the
attendance at religious workshops and instruction8 are all provided for.

5
Art.25
6
Art. 26
7
Art. 27
8
Art. 28

4
 The need for Right to Freedom of Religion

In a Country of the Magnitude of India, wherein many diverse people reside, it is impossible to
impose one’s thoughts and ideas over the whole population. In this matter, India has had a long
history wherein it has come under the influence of many different races, from the time of the
Aryans to the Mughals and the British Missionaries, the Indian population has had a lot of
opportunity to get influenced and gather new ideas that have given shape to the diverse
population that can be seen in the Country at this time.

Such influence of a million years that the Sub-continental country has spent in continuous
transition has built a sense of pride amongst the various sections of the society and the same has
been protected by the Constitution of India, wherein the same rights have been classified as
inalienable and fundamental rights.

The classification of the rights under Part III of the Constitution allows for there being utmost
respect being given to an individual’s identity and thoughts which he looks to establish in his life
and the principles that he lives by. The sections 25-28 allow for a person to profess, propagate
and make personal expenditure for any such idea or religion that he/she would like to adopt in
the lifetime.

It implies to the fact that the State cannot establish any such religion as the one that the State
abides by, through any process of law. Yet it would be wrong to connote from the same that the
State shall not establish any religion in any sense at all.

The argument that though our Constitution had not expressly forbidden the establishment of a
religion, it had done so impliedly, was inconsistent with several express provisions of our
Constitution.

For example, the State has the power to take over and manage educational institutions wherein
religious instruction is imparted. The State has the management of many Temples, Mosques and
Churches within its ambit and also can take-over or establish other religious bodies like wakf.

There can thus be seen that the Indian state has, in the ambit of its jurisdiction, has made every
effort to ensure the right to freedom of religion for its citizens belonging to both the Majority and
the minority communities.

5
The practice of guarantying to every person a right to freedom of religion has been provided for
in Part III of the Constitution of India.

Article 25(1) guarantees to every person the freedom of conscience and the right to profess,
practice ad propagate religion, The right guaranteed under Art. 25(1) like other Constitutional
Rights, is not absolute. That right is, subject to public order, morality and health and to the other
provisions of Part III of the Constitution. Also under sub-clause (a) and (b) of clause (2) of Art.
25 the state is empowered by law,

 To regulate or restrict any economic, financial, political or other secular activity which
may be associated with religious practice;
 To provide for (i) social welfare and reform, and (ii) to throw open Hindu religious
institutions of a public character to all classes and sections of Hindus.

Thus, the State has the duty to guarantee the Right to freedom of religion and at the same time is
also under the obligation to maintain public order. Thus, it has the power to regulate the religious
activities of the various religious entities and also regulate the methods of functions of these
entities.

6
 What is Religion?

The term ‘religion’ is not defined in the Constitution and is a very hard to define. The Supreme
Court has defined very broadly.9 It is held that Religion is a matter of faith with individuals or
communities and it is not necessarily theistic.

A religion has its basis in ‘a system of beliefs or doctrines which are regarded by those who
profess that religion as conducive to their spiritual well-being’. It was also noted that religion
could be a code of ethical rules for its followers to accept, it may prescribe rituals and
observances, ceremonies and modes of worship which are regarded as integral part of religion,
and those forms and observances might extend even to matters of food and dress.

Religion is thus essential a matter of personal faith and belief. Every person has right not only to
entertain such religious belief and ideas as may be approved by his judgment or conscience but
also exhibit his belief and ideas by such overt acts which are sanctioned by his religion. Thus,
under Art. 25(1) a person has a two-fold freedom:-

 Freedom of conscience;
 Freedom to profess, practice and propagate religion.

The freedom of ‘conscience’ is absolute inner freedom of the citizen to mould his own relation
with God in whatever manner he likes. To ‘profess’ a religion means to declare freely and openly
one’s faith and belief. He has the right to practice his belief by practical expression in any
manner he likes. To ‘practice’ religion is t perform the prescribed religious duties, rites and
rituals,, and to exhibit his religious beliefs and ideas by such acts as prescribed by religious order
in which he believes.

To ‘propagate’ means to spread and publicize his religious view for the edification of others. By
the word propagation, it is indicated that a person can only adopt persuasion and exposition
without any element of coercion.

The protection provided for under Art. 25 and 26 is not limited to matters of doctrine of belief. It
extends to acts done in pursuance of ‘religion’ and therefore, contain a guarantee for rituals and

9
Commr., H.R.E v. L. T. Swamiar, AIIR 1954 SC 282 at p. 290; reiterated in S. P. Mittal v. Union of India, AIR 1983 SC
1

7
observances, ceremonies and modes of worship which are integral part of religion. What consists
an essential part of religions or religious practice has to be decided by the courts with reference
to a doctrine of a particular religion and include practices which are regarded by the community
as a part of its religion.10

10
Commr., Hindu Religious Endowments, Madras v. L.T. Swamiar, AIR 1956 SC 282

8
 Implementation of the right to freedom of religion

The Supreme Court has in many cases, looked to maintain the integrity of Part III of the
Constitution by protecting the rights guaranteed under Art. 25 of the Constitution. A decision of
far reaching importance is the National Anthem case11, the SC has held that no person can be
compelled to sing the National Anthem ‘if he has genuine, conscientious religious objection.’

In the above stated case, three children belonging to the ‘Jehova’s witness’ sect of the Christian
Community were expelled from the School for refusing to sing the National Anthem. They
challenged the validity of their expulsion on the grounds that it was violative of their
fundamental rights under Art. 25(1). A circular issued by the Director for Public Instructions had
made it compulsory for all children in schools to sing the National Anthem. Even though the
students had respectfully stood up when the national anthem started, they refused to sing as it
was against the tenets of their religious faith which did not permit them to join in any rituals
except if it be in their prayer to Jehova, their God. The High Court held that such behavior was
unbecoming of the Students and could lead to the widespread disrespect of the National Anthem
by other Citizen if allowed in this case and thus justified the removal of the students from the
School. This was then challenged in the Supreme Court which found that the High Court’s
decision was flawed and there was no legal obligation in India for a citizen to sing the National
Anthem. The right under Art. 25(1) cannot be regulated by an executive order which has no force
in law. The Court found that standing up upon the commencement of the National Anthem
constituted proper respect that needed to be shown to the Anthem and did not constitute a
violation of the duties prescribed under Art. 51-A of the Constitution.12 Neither did their conduct
amount to a violation under the Prevention of Insults to National Honour Act, 1971 as they did
not prevent the singing of the National Anthem nor did they cause any disturbance during the
commencement of the same. Accordingly, the Court directed the Authorities to readmit the
students to the school and allow them to continue with their studies.

11
Bajoe Emmanual v. State of Kerala, (1984) SCC 615
12
Fundamental duties

9
In the case of Hon’ble Shri Rangnath Mishra v. Union of India13 A question was raised as to the
correctness of a decision of the Court in the National Anthem case and it was to be taken up for
reconsideration. By this time, the matter was taken up for hearing by the National Commission
for review of the Constitution submitted its report to the Govt. wherein it made strong
suggestions for early implementation.

The Commission recommended the State and the Union Govt. must take proper steps to sensitise
the people and create a general awareness regarding the provisions of fundamental duties
amongst the citizens on the lines recommended by Justice Verma Committee on the subject. The
report recommended modes and manners to be adopted for generating awareness and
consciousness of the Citizen towards their fundamental duties. The Court directed the govt. to
take appropriate steps for their implementation as quickly as possible.

In another judgment that has wide connotations14, the Supreme Court has held that the Brahmins,
the dynastic descendants of learned men, among the Hindus did not possess any monopoly over
performing puja in a temple and said that a non-brahmin can be appointed a pujari if he is
properly trained as well versed with the rituals.

The Court said that if traditionally or in-fact, conventionally, in any temple, all along a Brahmin
alone was conducting puja or performing the job of Santikaran, it might not be because another
person but the Brahmin was prohibited from doing so because he was not a Brahmin. It might be
because others were not in a position to, or in fact were not allowed to learn the rituals or master
the Vedic literature. So there is no justification in the appointment of only Brahmins as the
Priests and hence the freedom guaranteed under Art. 25 of the Constitution would be violated if
such a restriction was allowed.

In Worter Karamlki v. State of Meghalaya15, the petitioner belonged to the Seng Khasi
denomination residing at Mawlong village of Meghalaya. There were 13 houses and 86 persons.
They possessed a burial ground which was allotted by village elders since time immemorial. The
respondent threatened to dispossess them of the said land and even after several complaints no

13
JT 2003 (7) SC 206
14
N. Aditya v. Travancore Dewaswom Board 2nd (Supp.) NSC 35 38
15
AIR 2010 Gau 51

10
action was taken by the concerned officers. They were prevented from performing the last rites
and of cremating the dead bodies of their family members in the said land.

The Court held that the denial of such rights and dispossession them of the Cremation grounds
amounted to the abridgement of their fundamental right of freedom of religion.

It is the Court’s duty to enforce ad protect the religious rights of the parties. It was held that the
cremating of the dead of the Seng Khasi faith is an integral part of their faith and that Religion is
a matter of faith. If the use of the cremation grounds were found to be undesirable and was
resulting in the pollution of the atmosphere, the authorities should provide the community
adequate cremation grounds.

In Ismail Faruqui v. Union of Inida16, the SC by a majority has held that the State can in exercise
of its soverign powers acquire places of worship like mosques, churches and temples which is
independent of Art. 300-A of the Indian Constitution, if it is necessary for the maintenance of
law and order. Such acquisition, per se does not violate Art. 25 and 26 of the Constitution. What
is protected under Art. 25 are the religious practices which for an essential and integral part of
religion. A Prayer may be a religious practice but does not constitute an essential feature of
religion. In addition to the same, its offering at every such place where such prayer can be
offered would not be an essential part of the religious practice. Status of Mosques in India is the
same as temples or churches. A mosque is not an essential part of the practice of the religion as
the prayers can be offered anywhere, even in the open. Unless the right to worship at a certain
place constituted the very essential of the religion, the place of worship shall not be considered
under the ambit of Art. 25 of the Constitution.

The matter in this case was referred to the SC for its advisory opinion by the due to the
demolition of the Babri Mosque at Ayodhya and the following law and order situation in the
Country. In order to defuse the tension, the Central Government acquired the whole property
surrounding the mosque. This was challenged by the petitioners as they claimed that their right to
offer prayer was disrupted.

16
(1994) 6 SCC 360

11
The Courts have evolved the binary categories of ‘essential practices’ and ‘secular’ activities of
religious denominations in order to identify the permissible domain for governmental regulation
over their activities. Likewise, individual and group behaviour rooted in religious beliefs is
sought to be both protected and regulated at different times by relying on the various principles
embodied in Part III such as ‘equal protection before the law’, exercise of civil liberties and the
rights of minorities. In most cases the judiciary plays a balancing game between the competing
claims of governmental action and religious liberty (of individuals or groups) by expounding on
a fairly complex understanding of ‘secularism’. The role of the State in maintaining the right to
freedom of religion has been discussed in A. S. Narayana v. State of Andhra Pradesh17 and the
Vaishno Devi Shrine Case18.

17
AIR 1996 SC 1765
18
Bhuri v. State of J. & K., AIR 1997 SC 1711

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 Restrictions on Freedom of Religion

Even though the right to freedom of religion is a fundamental right, every right is known to be
accompanied by reasonable restrictions. In similar terms, the rights guaranteed under Art. 25 of
the Constitution are also subject to reasonable restrictions. These restrictions are generally
constituted as safe guards of the fundamental rights of another person or the society at large.

The restrictions that have been imposed upon the Right to Freedom f Religion are,

 Public order, morality and health

In the name of religion, no act can be done 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 public places.

These acts cannot be justified on the plea of practice of religious rights. Likewise, in the name of
religion, the practices of untouchablity or human traffic cannot be allowed. This freedom is also
subject to the other provisions of the Part III of the Constitution, e.g., right to freedom of speech
and expression, freedom of assembly and association, freedom to carry on profession, trade and
business. The freedom of religion of one cannot affect these freedoms of another person. These
rights are subject to the reasonable restrictions under clause (2) of Art. 19.

In Ghulam Abbas v. State of U. P.19, it has been held that the direction given by the Supreme
Court for shifting property connected with religion to avoid clashes between two religious
groups or sects does not affect the religious rights being in the interest of public order.

In Acharya Jagddishwaranand Avadhuta v. Commissioner of Police, Calcutta20, also known as

the Anand Marga Case, the SC held that the Thandava dance in a procession or in public places
while carrying lethal weapons and human skulls is not an essential religious rite of the followers
of the Ananda Margis and hence the order under section 144, CrPC prohibiting such procession
in the interest of public order and morality was not violative of the right of the petitioners under
Art. 25 of the Constitution.

19
(1984) 1 SCC 81
20
(1984) 4 SCC 522

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Right to propagate one’s religion does not give right to anyone to ‘forcibly’ convert any person
to one’s own religion. Forcible conversion of any person to one’s own religion also might disturb
the public order hence could be prohibited by law.

 Forced conversion not allowed

In Rev Stainislaus v. State of M. P.21, the validity of the two acts, the Madhya Pradesh Dharma
Swatantrya Adhiniyam, 1968 and the Orissa Freedom of Religion Act, 1967 – Passed by the
Madhya Pradesh and Orissa State Legislatures were challenged on the grounds that they were
violative of the fundamental rights of the appellant guaranteed under Art. 25(1) of the
Constitution. These Acts were passed to prohibit the forcible conversion of any person to one’s
own religion. The Appellant was prosecuted for the commission of offences under the Madhya
Pradesh Act. He contended that this right, i.e. to propagate one’s religion, mean the right to
convert people to one’s religion and was a fundamental right under Art. 25(1) of the Constitution
of India.

Secondly, he argued that the State Legislature has no competence to enact such a law as it did
not fall within the purview of the State List in Schedule VII.

The Court held that if something which disturbs the current of the life of the community, and
does not merely affect an individual it would amount to a disturbance of public order. Thus if an
attempt is made to raise communal passions, e.g. on the grounds that someone has been
forcefully converted to another religion, it would, in all probability, give rise to an apprehension
of a breach of the public order, affecting the community at large. Therefore, a legislation
prohibiting forceful conversion of one’s own religion in the interest of public order can be passed
and is valid.

The same was held in the case of the Orissa Freedom of Religion Act, 1967 which provided that
a person wanting to convert to another religion must make a personal declaration which would
be verified by the Police also. This law was held valid and the earlier decision given by the
Orissa High Court was overruled. The Court found that what Art. 25 grants is not the right to

21
AIR 1977 SC 908

14
convert another person to one’s religion but to transmit or spread one’s religion by an exposition
of its tenets.

In Javed v. State of Haryana22, The SC has held that sec. 175(11)(q) of the Haryana Panchayati
Raj Act, 1994, which disqualifies a person having more than 2 children from contesting the
panchayat election does not violate Art. 25. It was contested that as Muslim men were allowed to
marry a maximum of four wives, they were also allowed to produce more than 2 children. It was
held that even though four marriages were allowed, four marriages were not mandated by law.
The contesting in elections was a statutory right and subject to qualifications and
disqualifications prescribed by law. If a person does not fulfill such qualification, he can be
prevented from contesting the election.

 Regulation of economic, financial, political and secular activities associated with

religious practices.

The freedom to practice extends only to those activities which are the essence of the religion. It
is not always easy to determine which activities fall under religious practice and which are of
secular, commercial or political nature associated with religious practice.

In Mohd. Hanif Quareshi v. State of Bihar, the petitioner claimed that the sacrifice of cows on
the occasion of bakrid was an essential part of his religion and therefore the State Law
prohibiting the slaughter of cows is prohibitive of his fundamental rights. This argument was
rejected on the pretext that the slaughter of cow was not an essential feature of the festival of
bakrid and hence there was no violation of the fundamental rights of the said person.

In Adelaid Co. v. Commonwealth,23 it was held that a person could not be allowed to carry out
anti-state propaganda in the guise of religion during war. Thus political activity rising out of
religious beliefs by a particular organization were held not to be protected by the Constitution.

22
AIR 2003 SC 3057
23
(1943) 67 CLR 116

15
  Social Welfare and social reform

Under clause (2) of Art. 25, the State is empowered to make laws for social reform and social
welfare. Thus, under this clause, the state can eradicate social practices and dogmas which stand
in the path of the progress of the society. This clause declares that when there is a conflict
between the need of social welfare and reform and religious practice, religion must yield.

Social evils cannot be practiced in the guise of religion.

In State of Bombay v. Varasu Bapamali24, an Act which prohibited bigamy was held to be valid
under clause (2)(b), Polygamy is not an essential part of the Hindu religion, therefore it can be
regulated by law.

Prohibition of practices such as Sati or the system of devadasi has been held to be justified under
this clause.25

Strengthened by this clause of the Constitution, it is possible for the State to enact laws to
promote harmony among the various classes among the Hindu religion and to bring all the
members of the said religions entity onto the same footing.26

24
AIR 1953 Bom 84
25
Saifuddin v. State of Bombay, AIR 1963 SC 853
26
Vagupurushcdji v. Muldas, AIR 1966 SC 1119

16
 Freedom to manage religious affairs
Article 26 states that subject to public order, morality and health, every religious domination or
any section of it shall have the following rights :-

 To establish and maintain institutions for religious and charitable purposes.

 To manage its own affairs in matter of religion
 To own and acquire movable property,
 To administer such property in accordance with law.

The rights guaranteed under Art. 25 are individual rights while the rights guaranteed under Art.
26 is the right of an organized body like the religious denomination or any other section thereof.

To be classified as a Religious Denomination, the following three conditions need to be satisfied,

 It must be a collection of individuals who have a system of beliefs which they regard as
conductive to their spiritual well-being, that is, common faith;
 It must have a common organization; and
 It must be designated by a distinctive name.27

In Bramchari Sidheswar Sahai v. State of W.B.,28 popularly known as th Ramakrishna Mission

Case, the Supreme Court held that the followers of Ramakrishna, who are collected as a group,
and who adhere to a system of beliefs as conductive to the organization of definite name as
Ramkrishna Math or Mission can be regarded as a denomination as ‘religious denomination’,
and would therefore be entitled to claim the fundamental right bestowed upon it by Art. 26 of the
Constitution.

Under Clause (a) of Art. 26, every religious domination has the right to manage its own affairs
and maintain institutions of religious and charitable purposes.

27
S. P. Mittal v. Union of India, AIR 1983 SC 1
28
(1995) 4 SCC 646

17
In Azeez Bashu v. Union of India29, The SC held that AMU was not established by the Muslim
Minority and therefore it could not claim to be a Muslim Minority institution.

The religious denominations also enjoy the right to manage their own matters relating to their
religion. The State cannot interfere in the exercise of this unless they run counter to public order,
health and morality. Accordingly, every religious denomination or organization enjoys complete
freedom in the matters of deciding what rites and ceremonies are essential according to the tenets
of the religion they hold. The Court has the right to determine whether a particular rite or
ceremony is regarded as essential by the tenets of a particular religion.30

The right, it is to be noted, extends only to the matters relating to the religion. The term matter
relating to religion includes religious practice, rites and ceremonies considered essential for the
practice of religion. The secular activities relating with the religious institutions can still be
regulated by law.

The Constitution requires not only that the State will be away from religion but also imposes a
positive duty on the State to free many aspects of our life from the control of religion. The
provisions of the Constitution are very clear in this respect, the state is not expected to be a
passive bystander while the ideas of religion are being used against the state and the society in
general.

In Saifuddin Saheb v. State of Bombay31, the petitioner, who was the head of the Dawoodi Bohra
community, challenged the constitutionality of the Bombay Prevention of Ex-communication
Act, 1949 on the grounds that the provision of the Act infringed his rights guaranteed in Art. 25
and 26. The Petitioner claimed that as the head of the said sect of people he had the right to ex-
communicate a member and this power was an integral part of the religious faith and belief of
the Dawoodi Bohra Community. The SC struck down the impugned provision of the Act as
violative of Art. 25 and 26 of the Constitution. The impugned enactment took away the right of
the head of the community to carry out one of the most essential functions in the existence of the
community.

29
AIR 1968 SC 662
30
Supra, note 20
31
AIR 1962 SC 853

18
In Bira Kishore Dev v. State of Orissa,32 the Shri Jagannath Temple Act took the management of
secular activities of a temple from the Raja of Puri and vested it in a Committee constituted
under the Act. The Court held the Act valid as it did not affect the religious aspect.

In Atheist Society of India v. Government of A. P.33, the petitioner, Atheist Society of India,
prayed for the issuing of a writ of mandamus directing the State Govt. to prohibit the breaking of
Coconuts, performing poojas, chanting of mantras or sutras of different religions at state
functions. The Andhra Pradesh High Court rejected their prayer and held that these activities
have been a part of the Indian tradition and are meant to invoke the blessings of the almightly for
the success of the project undertaken. Such noble thought cannot be found fault with as offensive
to anyone. Maybe that the petitioners society who claim to be atheists do not appreciate the
invocation of Gods as they do not believe in God. There is no constitutional guarantee to the
faith of the atheists who worship barren reason that there is no God. It is not the object of the
Constitution to turn the Country into an irreligious place.

The right to administer property owned by denomination

Under clauses (c) and (d) of Art. 26, a religious denomination has the right to acquire and own
property and administer such property in accordance with law. The right to administer property
owned by religious denominations is a limited right, and it is subject to the regulatory power of
the State in clause (2)(a) of Art. 25 and also any general property law. Thus there is a clear
distinction between the right to manage its own affairs and the right to manage its property by a
religious denomination. The right of a religious denomination to manage its own property has
been placed on the equal footing from the right to manage its own affairs in matters of religion.
The former is a fundamental right which cannot be taken away except on grounds mentioned in
Art. 25, while the latter can be regulated by law, that is, it can be abridged or taken away by a
valid law.34

32
AIR 1964 SC 1501
33
AIR 1992 AP 310
34
Dargah Committee, Ajmer v. Hussain Ali, AIR 1961 SC 1402

19
Freedom from taxes for promotion of any particular religion

India, being a secular state, does not impose on its citizen, taxes for the promotion or
maintenance of any particular religion. This article imposes the secular nature of the state. The
public money collected by way of tax cannot be spent by the State for the promotion of any
particular religion.

In Commr., H.R.E v. L.T. Swamiar,35 It was reasoned that the underlying principle behind the
said provision is that India is a secular state and there is a right to freedom of religion guaranteed
by the Constitution both to individuals and groups it is against the policy of the Constitution to
pay out of public funds any money for the promotion or maintenance of a particular religion or
religious denomination.

It is to be noted that the Article prohibits the levying of tax and not fees. In Rati Lal v. State of
Bombay,36 the SC held that a tax is in the nature of a compulsory extraction of money by a public
authority for public purposes. The imposition is made for public purposes to meet the general
expenses of the State without reference to any special advantage to be conferred upon the tax
payer. Tax is a common burden and the only return that the tax payer can expect is the common
participation in the common benefits of the state. Fees are on the other hand, payments primarily
in public interest but for some special services rendered or some special work done for the
benefit of those from whom the payments are demanded. In determining whether a levy is a fee,
the true test must be whether its primary and essential purpose is to render specific services to a
specific area benefitted by it.

The traditional view is that there must be actual quid pro quo for a fee has undergone a large
amount of change. The element of quid pro quo in the strict sense is not always a sine qua non
for a fee. The co-relationship between the levy and the services rendered or expected is one of
general character and not a mathematical exactitude. All that is necessary is that there should be
‘reasonable relationship’ between the levy of fee and the services rendered.37

35
AIR 1961 SC 282
36
AIR 1954 SC 388
37
Sreenivasa General traders v. State of A.P., (1983) 4 SCC 354

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On the basis of distinction between tax and fee, the SC in Sri Jagannath v. State of Orissa38, held
that the levy under the Orissa Hindu Religious Endowments Act, 1939, was of the nature of fees
and not tax. The payment was demanded only for the purpose of meeting the expenses of the
Commissioner and his office which was the machinery setup for the due administration of the
affairs of the religious institution. The object of the contribution was not the fostering or
preservation of Hindu religion or of the denomination within it, but to see that religious
institutions were properly administration.

If State aid is extended to all religious institutions along with secular ones alike without any
discrimination, Art. 27 shall not be applicable.

38
AIR 1954 SC 400

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Prohibition of religious instruction in State-aided institution

According to Art. 28(1) no religious instruction shall be imparted in any educational institution
wholly maintained out of State funds. Under clause (1)(3) no person attending any educational
institution recognized by the State or receiving aid out of the State funds shall be required to
attend any religious worship that may be conducted in such institution or to any premises
attached thereto unless such person or if such person is a minor his guardian has given his
consent thereto.

Art. 28 mentions 4 types of educational institutions:

 Institutions wholly maintained by the State39

 Institutions recognized by the state40
 Institutions that are receiving aid out of the State fund41
 Institutions that are administered by the State but are established under any trust or
endowment42

In D.A.V. College, Jalandhar v. State of Punjab43, the validity of section 4 of the Guru Nanak
University Act which directed the State to make provision for the study and research the life and
teaching of Guru Nanak was challenged on the ground that it was violative of Art. 28 which
prohibited religious instruction in state aided educational institutions. The Court rejected the
contention and held that section 4 which encouraged the students to study the life and the study
of Guru Nanak does not amount to religious instruction or promotion of any particular religion
and therefore is constitutionally valid.

In Aruna Roy v. Union of India,44 the validity of the National Curriculum Framework for School
Education, 2000 which provided for education for value development based upon all religions
and also a comparative study of philosophy of all religions was challenged on the basis of being
violative of Art. 28 of the Constitution.

39
No religious instruction can be imparted
40
Religious instruction can be imparted with the consent of the individual
41
ibid
42
No restriction on religious instruction
43
AIR 1971 SC 1737
44
AIR 2002 SC 3176

22
It was held that the National Curriculum Framework for School Education is not violative of Art.
28 of the Indian Constitution nor is against the spirit of secularism. Art. 28 does not prohibit the
study of the religion’s philosophy and culture particularly for having value based social life in a
society degenerating for power, post or property. In a society where there is no moral order, there
would be neither social order nor secularism. Justice Shah held that the contention of the
Petitioner that the knowledge of different religions would bring disharmony in the society was
absolutely wrong. On the other hand he held that it would lead to harmony as ignorance breeds
hated because of wrong notions, assumptions, preaching and propaganda by misguided interested
persons.

23
 Conclusion
After a detailed study of the provisions given in Part III of the Constitution we can see that there
has been provided freedom of religion to the citizen of the Country to the maximum extent with
the required restrictions so as to maintain the balance of the fundamental rights of every person
and in order to make sure that the rights of one person does not overlap with the exercise of the
fundamental rights of another person.

Given the multi-cultural and multi-religious nature of the Indian Population, it is important for us
to recognize the importance of the provisions provided for under Art. 25 – Art. 28. They help in
maintaining the secular nature of the Country and also help harmony prevail in the country. This
gives them a position of utmost importance in the Constitution and hence a place in Part III.

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 Bibliography
1) Commentary on the Constitution of India – Aravind P. Datar
2) Commentary on the Constitution of India – D.D. Basu
3) Constitution of India – V. N. Shukla
4) The Constitutional Law of India – Dr. J.N. Pandey
5) The Constitution of India – Prof. M. P. Jain

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