Right to Freedom of Religion

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 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 kirpans shall be deemed to be included in the profession of the Sikh religion.

Explanation II:

In sub-clause (b) of clauses (2), the reference to Hindus shall be classified as a includings reference to persons professing the Sikh, Jain or Buddhist religion, and the reference to Hindu religious institutions shall be construed accordingly.

COMMENTS

Religion is a matter of faith but belief in God is not essential to constitute religion. Doctrines of each religion constitute its important part. The practice means religious worship, rituals and observations. The Court is competent to examine it. The State cannot allow people to fight in the name of religion. A secular State is founded on the idea that State is concerned with the relation between man and man and not with relation between man and God, which is a matter of the individual concerned. The emphasis is that an individual is free to practise his religion within forewalls of a premise privately, Cow slaughter on ‘Bakrid’ was held not to be an essential practice of Islam and could, therefore, be prohibited by law in the interest of public order.

Propagation is concerned with right to communicate beliefs to another person or to expound the tenets of one’s religion, but does not include a right to forcible conversions. Article 18(2) of the International Convenant on Civil and Political Rights, 1966 also provides, “No one shall be subject to coercion which would impair his freedom to have or to adopt a religion or belief of his choice. Similarly, the honour killings, for whatever reason come within the category of the rarest of rare cases deserving death penalty.

Secularism in India does not mean that the State should be impartial as between various religions or give equal patronage to all religions.

“The neutrality of the State would be violated if religion is used for political prospects and advocated by political parties for their political ends. An appeal to the electorate on grounds of religion offends secular democracy. Politics and religion cannot be mixed.”

26.Freedom to manage religious affairs:

Subject to public order, morality and health, every religious denomination or any section thereof shall have the right:

(a) To establish and maintain institutions for religious and charitable purposes;

(b) To manage its own affairs in matters of religion;

(c) To own and acquire movable and immovable property; and

(d) To administer such property in accordance with law.

Under Article 26, it is the fundamental right of a religious denomination, trust or its representatives to administer properties. But law or State can regulate activities like management of properties subject to reasonable regulatory restrictions to prevent maladministration. Placing the administration of a religious denomination under an administrator without sufficient justification for such an appointment would violate Article 26(d).

Religious denomination must satisfy three conditions common faith, common organization and designation by distinctive name.

Sir Aurobindo Society is not a denomination whereas Ramkrishna Mission is.

27.Freedom as to payment of taxes for promotion of any particular religion:

No person shall be forced 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.

COMMENTS

According to Article 27, no person shall be compelled to pay any taxes for expenses on promotion or maintenance of any particular religion. However, there could be no objection if the taxes were used for promotion of all religions.

“On challenge to subsidy given to Haj Pilgrims under the Haj Committee Act, 2002, the Court held the prohibition of Article 27 applies both to tax or appropriation from general exchequer. But if the amount appropriated is small or insignificant, Article. 27 is not violated.”

The decision is justified in view of general trend prevailing in the country, where many fairs or mass gathering like in ‘Kumbh’ or Ardh Kumbh’ are managed by administration by spending lot of public fund to avoid law and order problem or stampede. Without help and direct intervention by government, such mass gatherings will be converted into graves.

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 Sate but has been established under any endowment or trust which requires that religious instruction shall be imparted in such institution.

(3) No person attending any educational institution recognized by the State or receiving aid out of State funds shall be required to take part in any religious instruction that may be given in such institution or to attend any premises attached thereof unless such person or, if such person is a minor, his guardian has given his consent thereof.

Article 28 prohibits totally any religious instruction being imparted in educational institutions wholly maintained by State funds. In case of other institutions recognized and aided by the State, there will be freedom for every person not to participate in religious instructions or worship. Religious instructions prohibited in Article 28 must be distinguished from study of religions.

“There is no prohibition for having study of religious philosophy and culture, particularly for having value-based social life in a society which is degenerating for power, post or property’.

However, the court saw no violation of article 28 in the National Curriculum Framework for School Education approved by the National Council of Education and Research and Training which required education for value development, such as birth righteous education for value development, such as birth, righteous conduct, peace, love and non-violence.

In educational institutions receiving aid from the State fund, the admission cannot be dismissed on ground of race, religion, language or caste.

Thus, Christian Missionary schools and other schools, like Madrasas cannot deny admission to other castes or communities if they receive funds from the State.