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FREEDOM OF RELIGION[1].

Table of Contents

(Art. 25 to 28)

QUESTION BANK.

Q.1. Discuss the provisions related to “right to freedom of religion”.

Q.2. “Art. 25 of the Constitution guarantees the right to freedom of religion to all persons, despite the fact that the Constitution positively stands for secularism”, Comment.

3. State the scope and extent of the freedom of religion guaranteed under the Indian Constitution.

Q.4 Explain the scope of ‘Freedom of Religion’ under the Constitution. Nov.04

Q.5 Discuss the ‘Freedom of Religion’ under the Constitution of India. State restriction on ‘Freedom of Religion’.

Q.6 Explain in brief the provisions which show that the Constitution of India is embedded to the true spirit of secularism.

SHORT NOTE.

Right to freedom of religion.
Concept of secularism.

I. SECULARISM[2]:-

Art. 25 to 28 confer rights relating to freedom of religion not only on citizens but also on all persons in India. These Constitutional provisions guarantee religious freedom not only to individuals but also to ‘religious groups’. India is a secular State; there is no state or State-sponsored religion, and all religious groups enjoy the same Constitutional protection without favour or discrimination. Secularism in India does not mean irreligion like in China. It means respect for all faiths and religions. The State does not identify itself with any religion.

In Sant Esher Singh V. Union of India[3].

The court held that– the Constitution postulates in the preamble that India shall be a secular republic. The rights embodied under Art. 19, 25, 26, and 29 must be harmonised to ensure that we achieve the goal of a cohesive community[4] (i.e. secularism). The duty to transcend religious diversities is fundamental. Secularism is a basic feature of the Indian Constitution[5].

This topic embodies the principle of secularism enshrined in the preamble. The following freedoms are guaranteed under Art. 25 to 28 of the Constitution.

II. FREEDOM TO PROFESS OR PRACTICE RELIGION (ART. 25):-Art. 25 (1) secures to every person-

a). Freedom of conscience[6], and

b). Right to freely: –

Profess[7] religion;

III. Practice[8] religion; and propagate[9] religion.

The expression ‘Freedom of conscience’ means the inner freedom of a person to mold his relations with his God in whatever manner he likes. ‘To profess a religion’ means to declare one’s faith and belief freely and openly. To ‘practice’ means to perform prescribed religious duties, rites and rituals. To ‘propagate‘ means to spread and publicise his religious views. The term ‘religion‘, though not defined in the Constitution, means a matter of faith and belief.

These rights conferred upon persons are not absolute but subject to public order, morality, health and other fundamental rights provisions.

In- Bijoe Emmanual V. state of Kerala[10] (National Anthem case)

Fact—Children belonging to the “Jehova’s witnesses” of the Christian community were expelled from the school for refusing to sing the National Anthem, though they stood up respectfully when it was being sung. They challenged the validity of their expulsion on the ground that it violated their fundamental right under Art .25.

The Supreme Court held- that no person can be compelled to sing the National Anthem if he has a genuine, conscious religious obligation.

But the sacrifice (i.e. slaughter) of cows on Baki-id day was not an essential part of the Muslim religion; hence, the prohibition of cow slaughter could not violate Art. 25[11].

IV. FREEDOM TO MANAGE RELIGIOUS AFFAIRS[12] (Art. 26):-

Art. 26 lays down that every religious denomination[13] or a section thereof has the right –

to establish and maintain institutions for religious and charitable purposes[14] (e.g. educational institutions etc.),
to manage its own affairs in matters of religion[15].
to own and acquire movable and immovable property[16], and-
To administer such property in accordance with the law[17].

This right is subject to public order, morality and health.

V. A religious denomination:-

While Art. 25 confers the particular right on all persons, Art.26 is confined to religious denominations or any section thereof. ‘Religious denomination’ means “religious sect having a common faith and Organisation and designated by a distinctive name”. Therefore, the followers of Madhavacharya, the Swetambar sect of Jains, followers of the Zoroastrian religion, and Dawood Bohras are religious denominations.

In. Ram-Krishna Mission case[18]

Supreme Court held- that the followers of Ramakrishna, who are a collection of individuals and who adhere to a system of beliefs as conducive to their spiritual well-being, have organised themselves collectively and have an organisation of a definite name as ‘Ramakrishna Mission’ can be regarded as a religious denomination within the Hindu religion. Therefore, it satisfies all the tests of denomination and is entitled to fundamental rights conferred under Art.26.

Therefore, under Art. 26, religious denominations can decide what rites and ceremonies are essential for their spiritual well-being.

VI. VI. NO TAXATION TO PROMOTE ANY RELIGION[19] (Art. 27): –

Art. 27 provides that ‘no person shall be compelled by the State to pay any tax for the promotion or maintenance of any particular religion or religious denomination’. This article emphasises the State’s secular character and prohibits the State from promoting any religion out of public money collected by taxation. It may be noted that Art. 27 prohibits the tax levy, not the imposition of ‘Fee’.

VII. PROHIBITION OF RELIGIOUS INSTRUCTIONS OR WORSHIP IN EDUCATIONAL INSTITUTIONS[20] (Art. 28):-

Art. 28 distinguishes between the following three educational institutions prohibiting religious instruction or worship. Viz.:-

Educational institutions wholly maintained by the State– No religious instructions or worship can be imparted.
Educational institutions which are either recognised by the State or receiving aid out of state funds[21]– Religious instruction or worship can be imparted only with the consent of the students or their guardians.
Educational institutions are administered by the State but are established under any trust or endowment, which requires that religious instructions or worship be imparted- no restrictions on religious instructions. *****

[1] धर्म स्वातंत्र

[2] धर्मनिरपेक्षता

[3] [AIR 2002 P & H 637].

[4] एकसंघ समाज

[5] S. R. Bommai V. Union of India (A.I.R. 1944 SC 1918. AIR 1987 SC 748)

[6] सदसदविवेकबुध्दी

[7] धर्म अघडपने सांगण्याचे / बोलृन दाखविण्याचे स्वातंन्न्य

[8] आचरण

[9] प्रसार

[10] AIR 1987 SC 748

[11] Mohd. Hanif Quareshi V. State of Bihar

[12] धार्मिकबाबींचे व्यवस्थापन करण्याचा अधिकार

[13] धार्मिक संघटना /संस्था

[14] धार्मिक संस्था/संघटना स्थापन करण्याचा त्या चालवण्याचा अधिकार असेल

[15] त्या धार्मिक संस्थांचे व्यवस्थापन करण्याचा अधिकार

[16] स्थावर व जंगम मालमत्ता स्विकारण्याचा अधिकार

[17] कायदयाप्रमाणे मालमत्तेचे व्यवस्थापन करणेचा अधिकार

[18] (1995) 4 SCC 646

[19] धर्माच्या प्रचारासाठी कर लावता येणार नाहीत

[20] शिक्षणसंस्था मधून धार्मिक शिक्षणावर बंदी

[21] सरकारी शिक्षणसंस्था