CONSTITUTIONAL
LAW PROJECT
RAYAT COLLEGE OF LAW
TOPIC:
A Critical Study on Right to Freedom of Religion under Article 25
of the Constitution & Concept of secularism in India
Submitted By: Submitted To:
Prabhsimran Singh Dr. Akashdeep Singh
ACKNOWLEDGEMENT
I would like to express my special thanks of gratitude to my teacher Dr.Akashdeep Singh as well
as our principal Dr. Monika Sharma who gave me the golden opportunity to do this wonderful
project on the topic Article 25 of the Indian Constitution, which also helped me in doing a lot of
Research and I came to know about so many new things I am really thankful to them.
Secondly, I would also like to thank my parents and friends who helped me a lot in finalizing this
project within the limited time frame.
INTRODUCTION
India is a secular state – The concept of secularism is implicit in the Preamble of the constitution
which declares the resolve of the people to secure to all its citizens “liberty to thought, belief,
and worship”. The constitution (42nd Amendment act) 1976, has inserted the word ‘Secular’ in
the Preamble. This amendment is intended merely to spell out clearly the concept of ‘secularism’
in the constitution. There is no mysticism in the secular character of the state. In India, a secular
state was never considered as an irreligious or atheistic state. It only means that in matters of
religion it is neutral. It is the ancient doctrine in India that the State protects all religions but
interferes with none. Explaining the secular character of the Indian constitution the Supreme
Court said, “There is no mysticism in the secular character of the State. Secularism is neither
anti-God nor pro-God, it treats alike the devout, the antagonistic and the atheist. It eliminates
God from the matters of the State and ensures that no one shall be discriminated against on the
grounds of the religion.
The Article 25 of the Indian Constitution, Right to Freedom of Religion states that every
individual is “equally entitled to freedom of conscience” and has the right “to profess, practice
and propagate religion” of one’s choice. Practicing religion or the act of propagating it should
not, however, affect the “public order, morality and health.” The Article doesn’t put any
restriction on the government when it comes to making any law to regulate “economic, financial,
political or other secular” activities, which may be associated with religious practice.
WHAT IS RELIGION ?
The term ‘religion’ is not defined in the Constitution and indeed it is a term which is hardly
susceptible to any rigid definition. The Supreme Court has defined it broadly. A religion is a
matter of faith and individuals or communities and it is not necessarily theistic. A religion has its
basic in “a system of beliefs or doctrines which are regarded by those who profess that religion
as conducive to their religion spiritual well being”, “but it will not be correct to say that religion
as conducive to their spiritual well belief. A religion may only lay down a Code of ethical rules
for its followers to accept, it might prescribe rituals and observances, ceremonies ad modes of
worship which are regarded as integral part and religion, and those forms and observances might
extend even to matters of food and dress.1
1
Commr., HRE v LT Swamiar, AIR 1954 SC 282
SECULARISM
Secularism means developing, understanding and respect for different religions. In India, a
secular state was never considered as an irreligious or atheistic state. It only means that in
matters of religion it is neutral. It is the ancient doctrine in India that the State protects all
religions but interferes with none.2 Explaining the secular character of the Indian constitution
the Supreme Court said, “There is no mysticism in the secular character of the State. Secularism
is neither anti-God nor pro-God, it treats alike the devout, the antagonistic and the atheist. It
eliminates God from the matters of the State and ensures that no one shall be discriminated
against on the grounds of the religion.3
The state can have no religion of its own. It should treat all religions equally. The state must
extend similar treatment to the Church, the Mosque and the Temple. In a Secular State, the state
is only concerned with the relation between man and man with God. It is left to the individual’s
conscience. Every man should be allowed to go to Heaven in his own way. Worshiping of God
for man should be according to the decates of one’s own conscience.4 Man is not answerable to
the state for the variety of his religious views.5
In S.R Bommai v Union of India6, the Supreme Court held that “secularism is the basic feature
of the Constitution”. The State treats equally all religions and religious denominations. Religion
is a matter of individual faith and cannot be mixed with secular activities. Secular activities can
be regulated by the State by enacting a Law. Justice Ramaswami observed that secularism is not
anti-God. In the Indian context secularism has a positive content. The Indian Constitution
embodies the positive concept of secularism and has not accepted the American doctrine of
secularism, i.e. the concept of erecting “a wall of separation between Religion and State”. The
concept of positive secularism separates spiritualism with individual faith.
In St. Xavier College v. State of Gujrat7, The Supreme court explained the concept of
secularism. Secularism is neither Anti-God nor Pro-God. It treats alike the devout, the agnostic
and the atheist. Every person is free to regulate his relation with God, in any manner he likes.
2
Vasudev v Vamanji, ILR 1881 Bom. 80.
3
St. Xavier’s college v State of Gujarat, IR 1974 SC 1389 at 1414.
4
Downes v Bidwell, (1901) 182 US 244.
5
United States v Ballard, (1944) 322 US 78.
6
AIR 1994 SC 1918
7
IR 1974 SC 1389 at 1414.
RIGHT TO FREEDOM OF RELIGION
Article 25(1) guarantees to every person the freedom of conscience and the right to profess,
practice and propagate religion. The right guaranteed under Art. 25 (1) like other constitutional
rights, is not absolute. This right is, subject to public order, morality and health and to the other
provisions of Part 3 of the constitution.
Also, under sub-clauses (a) and (b) of clause (2) of Article 25 the State is empowered by law –
(a) to regulate or restrict any economic, financial, political or other secular activity which may be
associated with religious practice;
(b) 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.
In the case of A.S Narayana v State of Andhra Pradesh8, The court held that the word
“religion” used in Art. 25 of the constitution is personal to the person having faith and belief in
the religion. Religion is that which binds a man with cosmos, his creator or super power.
Essentially religion is a matter of personal faith and the belief or personal relation of an
individual with what he regards as cosmos, his maker or his creator which, he believes, regulates
the existence of living beings and the forces of the universe.
The word‘religion’ used in Article 25 of the Constitution is personal to the person having faith
and belief in the religion and the Act is constitutional as it regulated only to the secular activities
connected with religion, and not matters which are integral part of religion.9
In the National Anthem case10, three children belonging to the “Jehova’s witnesses” of the
Christian community were expelled from the school for refusing to sing the National Anthem.
The Supreme court held that – No person can be compelled to sing the National Anthem “if he
has genuine, conscientious religious objection”. There is no legal obligation in India for a citizen
to sing the National Anthem. The right under Art. 25 (1) cannot be regulated by executive
instructions which had no force of law. By standing up while the National Anthem was being
sung the children had shown proper respect to the National Anthem and had thus not violated the
fundamental duties laid down in Article 51- A of the Constitution. Their conduct did not amount
to an offence under the Prevention of Insults of National Honour Act. 1971
8
AIR 1996 SC 1765: (1996) SCC 548.
9
A.S Narayana v State of A.P, AIR 1996 SC 1765
10
Bijoe Emmanual v. State of Kerela,(1984) JSCC 615.
The Right guaranteed under Article 25 is not absolute. Though the right to perform rituals is
protected under this Article, yet the state retains the power to formulate laws to regulate
“economic, financial, political” and other activities which are not directly related to a religion.
The Right is subject to public order, morality and health. Therefore, no person can do such
religious things which affect the public order, morality and health. That’s the reason why the
government controls the management of some of the temples.
Under the Article 25(1) a person has two-fold freedom:-
(a) Freedom of conscience;
(b) 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.
To ‘practice’ religion is to perform the prescribed religious duties, rites and rituals, and to exhibit
his religious beliefs and ideas.
To ‘propagate’ means to spread and publicize his religious view for the edification of others. The
word ‘propagation’ only indicates persuation and exposition without any element of coercion.
Acquisition of place of worship – In Ismail Faruqui v Union of India11, :
The Court held that, the state can in exercise of its sovereign power acquire places of worship
like mosques, churches, temples etc. which is independent of Art. 300-A of the constitution if it
is necessary for maintenance of law and order. Such acquisition per se does not violate Art. 25 &
26 of the constitution. What is protected under Art. 25 & 26 is a religious practice which forms
an essential and integral part of religion. A practice may be religious practice but not a religious
part of practice. While offer of prayer or worship is a religious practice, its offering at every
location where such prayers can be offered would not be an essential religious practice.
11
(1994) 6 SCC 360
In Gulam Kadar Ahmadbhai Menon v Surat Municipal Corporation12, the Gujarat High
Court has held that right to religion guaranteed to citizens under Art. 25 & 26 of the constitution
does not prohibit state to acquire any place of worship for public purpose. The court held that the
acquisition of the religious place or a part thereof was not prohibited by the constitution and
therefore could be acquired for the public interest for widening the road. Accordingly, the order
for the demolition of certain portions of the two mosques for widening the road was valid.
In Shayara Bano v Union of India13, the Supreme Court by a majority of 3 to 2 declared triple
talaq or Talaq-e-biddat being instant and irrevocable unconstitutional. Talaq-e-biddat is a kind of
talaq effective by one definitive pronouncement like “Talaq, Talaq, Talaq”, uttered at the same
time.
The Court held- it is something innovative not in Sunna, being an irregular or heretical form of
Talaq recognized by Hanafi school of shariat law which itself states that though lawful it is sinful
in that incurs the wrath of God. Triple Talaq is manifestly arbitrary or violative of Art. 14 of the
constitution in the sense that the marital tie can be broken capriciously and whimsically by a
Muslim Law Man without any attempt or reconciliation to save it.
12
AIR 1994 Gujarat. 234
13
AIR 2017 SCC 4609, 4801, 4832.
Restrictions on Freedom of Religion
1) Religious liberty subject to 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 intecedent exposure one’s person in a public place.
These acts cannot be justified on plea of practice of religious rites, likewise in the name of
religion ‘untouchability or traffic in human beings’ e.g., system of devadasis cannot be tolerated.
This freedom is also subject to the “other provisions of this part” e.g., right to freedom of speech
and expression, freedom of assembly and association, freedom to carry on a profession, trade and
business. The freedom to practice religion cannot affect the exercise of these freedoms by others.
These rights are subject to the reasonable restrictions under clause (2) of Art. 19.
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. Forcible
conversion of any law to one’s own religion might disturb the public order hence could be
prohibited by law.
2) Regulations 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 secular activities which do not form the
essence of religion. It is not always easy to say which activities fall under religious practice or
which are of secular, commercial or political nature associated with religious practice. Each case
must be judged by its own facts and circumstances.
Forbidding slaughter of cows- In Mohd. Hansif Quareshi v State of Bihar14, 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 forbidding the slaughter of cows was violative of his right to practice
religion. The court rejected this argument and held that the sacrifice of cows on the Bakrid day
was not an essential part of Mohammedan religion and hence could be prohibited by state under
clause (2) (a) of Article 25.
Exception of slaughter of cow on Bakrid day- In State of W.B v Ashutosh Lahiri15, in this, The
Supreme Court approved the decision of the High Court and dismissed the appeal. The Court
held that- before exercising the power of exemption under Section 12, it must be shown that such
exemption is necessary to be granted for subserving an essential, religious, medicinal or research
purpose. If granting of such exemption is not essential or necessary for effectuating such a
14
AIR 1958 SC 731
15
AIR 1956 SC 464.
purpose no such exemption can be granted so as to bypass the thrust of the main provisions of
the Act. for such an exercise non-essential religious practices cannot be made the basis. The
slaughtering of cows on Bakrid day is optional and not obligatory.
3) Social welfare and social reforms- Clause (2) (b). - Under Clause (2) (b) of Art 25 the State
is empowered to make laws for social welfare and social
reform. Thus under this clause the State can eradicate social practices and dogmas which stand in
the path on the country’s onwards progress. Such laws do not affect the essence of any religion.
This clause declares that where there is conflict between the need of social welfare and reform
and religious practice, religion must yield. Social evils cannot be practiced in the name of
religion.
Prohibition of bigamy- In the case of State of Bombay v Varasu Bapamali16, an act which
prohibited bigamy was held valid under Clause (2) (b). so, the Supreme Court held that his
punishment was valid under the statue which prohibited bigamy.
16
AIR 1953 Bom 84.
CRITICISM
The Article 25 is one of the most misinterpreted articles of the Indian Constitution.
Although it guarantees the freedom to follow any religion and propagate it, yet this
freedom comes with a responsibility to ensure that the public order, morality and health
are not compromised in the process. It is obviously wrong to give special privileges to
people on ground of religion. Morally, a civilized state has a duty to protect members of
minority communities and their interests.
As the Indian Constitution tries to build secularism through state power in India’s feudal
conservative society.
This constitutional provision does not give individuals the right to conduct animal
sacrifice and perform religious rituals on a busy street or public place that causes
inconvenience to others. Similarly, the use of loudspeakers in temples or mosques is not
guaranteed in the Article 25. Bursting fire crackers for religious occasions and using
loudspeakers during religious prayers had come under the scrutiny of the Supreme Court
that restricted the time of bursting crackers.
Indian Secularism equally opposed oppression of dalits and women within Hinduism. It
also opposes the discrimination against women within Indian Islam or Christianity and
the possible threats that a majority community might pose to the rights of the minority
religious communities.
Indian Secularism deals not only with religious freedom of individuals but also with
religious freedom of minority communities i.e. individual has the right to profess religion
of his /her choice. Likewise, religious minority also have a right to exist and to maintain
their own culture and educational institutions.
Indian Secularism has made room for and is compatible with the idea of state- supported
religious reform. For example- Indian constitution bans untouchability under Article 17.
There is also abolition of child marriage and lifting the taboo on inter-caste marriage
sanctioned by Hinduism.
As Gandhi ji’s views- “Religion is a personal matter which should have no place in
politics“17
“Religion is the personal affair of each individual. It must not be
mixed up with politics or national affairs” – in 1947
But nowadays, Secularism has become a political weapon: Politics is a game of
numbers, because power belongs to those who command the highest number of votes.
Religion and Caste are being used by some parties to seek political power. Many parties
have been using "Secularism" as a slogan to create a divide between the majority and
minority communities.
More Inference in One Religion than in Others: The State reformed the Hindu society
by means of laws such as Hindu Marriage Act and the Hindu Succession Act. These laws
were particularly welcomed. But the government did not interfere with the social customs
and beliefs of other communities. Many people felt that the government was unjust by
interfering in one religion more than in others. A Common Civil Code is a feature of
every advanced democracy. But the Government of India was unable to discharge its
Constitutional obligations.
In a show of power, The Hindu communalism has now turned the tables against
secularism by capuring the state power.
Secularism, defined as the separation of politics or the state from religion, is an
intolerable, alien, modernist imposition on the Indian society. This, I argue, is a
misreading of the Indian constitutional vision, which enjoins the state to be equally
tolerant of all religions and which therefore requires the state to steer clear of both
theocracy or fundamentalism and the “wall of separation” model of secularism.
I suggest that what is distinctive to Indian secularism is the complementation or
articulation between the democratic state and the politics of satya and ahimsa, whereby
the relative autonomy of religion and politics from each other can be used for the moral-
political reconstruction of both the religious traditions and the modern state.
However, secularism is possible in a society only once a happy harmony between the various
communities is achieved. Communalism has to be fought at all levels.
17
- in 1942
CONCLUSION
Therefore, we can conclude that India is a secular state – The concept of secularism is implicit in
the Preamble of the constitution which declares the resolve of the people to secure to all its
citizens “liberty to thought, belief, and worship”. The constitution (42nd Amendment act) 1976,
has inserted the word ‘Secular’ in the Preamble. This amendment is intended merely to spell out
clearly the concept of ‘secularism’ in the constitution. There is no mysticism in the secular
character of the state. In India, a secular state was never considered as an irreligious or atheistic
state. It only means that in matters of religion it is neutral.
Secularism means developing, understanding and respect for different religions. In India, a
secular state was never considered as an irreligious or atheistic state.
The word‘religion’ used in Article 25 of the Constitution is personal to the person having faith
and belief in the religion and the Act is constitutional as it regulated only to the secular activities
connected with religion, and not matters which are integral part of religion.
The Article 25 states that every individual is “equally entitled to freedom of conscience” and has
the right “to profess, practice and propagate religion” of one’s choice. Practicing religion or the
act of propagating it should not, however, affect the “public order, morality and health.” The
Article doesn’t put any restriction on the government when it comes to making any law to
regulate “economic, financial, political or other secular” activities, which may be associated with
religious practice.
According to Article 25, the gates of Hindu religious institutions should be opened to every
section of Hindus. Here the term ‘Hindus’ also includes individuals who profess Sikh, Jain or
Buddhist religion. The same holds true for the term ‘Hindu religious institutions.’
