Freedom of Religion [ Article 25, 26, 27, 28 ]

Freedom of Religion

Article 25 It imparts freedom of conscience and free profession, practice and propagation of religion.
Article 26 It gives freedom to manage religious affairs.
Article 27 It sets freedom as to payment of taxes for promotion of any particular religion.
Article 28 It gives freedom as to attendance at religious instruction or religious worship in certain educational institutions.

India is home to people following different religions and having different faiths. As per the census of India 2011, there are 6,639,626 people who follow other religions apart from the six major religions which are Hinduism, Jainism, Islam, Buddhism, Sikhism, and Christianity.

Freedom of religion is a principle that supports the freedom of an individual or community, in public or private, to manifest religion or belief in teaching, practice, worship, and observance. It also includes the freedom to change one’s religion or beliefs

There are various divisions within a religion, for example, amongst Islam there are Shias, Sunnis, Hanafis and among Jains, there are the Digambara and Svetambara divisions. Divisions within a religion follow a different faith from other divisions by following different customs, practices, and traditions. So with such a diverse population, following different religions and beliefs, it becomes necessary to protect and secure rights regarding faith of each and every religion. Therefore, in India, legal rights are provided like the right to worship; right to visit religious places (like temple, mosque, church) to follow their faith and religion but it is subject to certain restrictions prescribed in the Constitution.

One of the rights guaranteed by the Indian Constitution is the right to Freedom of Religion. As a secular nation, every citizen of India has the right to freedom of religion ie right to follow any religion. As one can find so many religions being practiced in India, the constitution guarantees to every citizen the liberty to follow the religion of their choice. According to this fundamental right, every citizen has the opportunity to practice and spread their religion peacefully. And if any incidence of religious intolerance occurs in India, it is the duty of the Indian government to curb these incidences and take strict actions against it. Right to freedom of religion is well described in the Articles 25, 26, 27 and 28 of Indian constitution.

Article 25: Freedom of conscience and free profession, practice and propagation of religion

According to this right, every person is equally permitted to enjoy the freedom of conscience and the right to acknowledge, practice and spread religion. However, this right is subject to certain restrictions to maintain public law and order, morality and peace in the country. This article will not hinder the operation of any existing law or prevent the State from making any law. It will also not restrict the working of any financial, economic, political or secular activity which may be related to the religious practice. However, an institution run by the State is not allowed to impart education that is pro-religion. And also the right to propagate a particular religion does not mean the right to convert another individual as this will violate other individual’s right to freedom of conscience.

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Article 26: Freedom to run religious affairs

According to the Constitution of India, freedom to run religious affairs include the freedom to establish and maintain charitable institutions either to manage its own affairs in the matters of religion or to acquire and own movable and immovable property and to take care of such property, without infringing the law. However, only structured bodies such as religious denominations have the liberty to enjoy this right and the secular activity of such associations can be administered by the government. This right does not apply to individuals. Religious organizations can set up and control educational and other charitable institutions without any intervention of the state, except in case of any threat to public law and order.

Article 27: No person shall be compelled to pay any tax for the promotion or maintenance of any religion

According to this article of Indian constitution, no person shall be forced to pay any taxes, the proceeds of which are particularly appropriated in payment of expenses for the spread or protection of any particular religion or religious denomination.

Article 28: Freedom as to attendance at religious instruction or religious worship in certain educational institutions

According to this fundamental right, no religious instruction shall be offered in any educational institution wholly maintained out of State funds. No person attending any educational institution acknowledged by the State or receiving aid out of State funds shall be obliged to take part in any religious instruction that may be instructed or taught in such institution or to attend any religious worship that may be performed in such institution or in any premises. In case of a minor, his guardian has to give the consent for the same. Thus, article 28 forbids religious instruction in a wholly State-funded educational institution and educational institutions receiving aid from the State.

No country in this world has such a diverse religious background as India. Thus, the Right to Freedom of religion forms a very important Fundamental right of our country and aims at maintaining the principle of secularism in India. Indian constitution firmly states that all religions are equal before the law and no religion shall be favored over the other.

Major judicial pronouncements on Freedom of Religion

Bijoe Emmanuel and Ors. v. State of Kerala

In this case, three children of Jehovah’s Witnesses sect were suspended from the school as they refused to sing the national anthem claiming that it is against the tenets of their faith. The court held that expulsion is violative of fundamental rights and the right to freedom of religion.

Acharya Jagdishwaranand v. Commissioner of Police, Calcutta

The Court held that Ananda Marga is not a separate religion but a religious denomination. And, the performance of Tandava on public streets is not an essential practice of Ananda Marga.

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M. Ismail Faruqui v. Union of India

The apex court held that the mosque is not an essential practice of Islam and a Muslim can offer namaz (prayer) anywhere even in the open.

Ramji Lal Modi v. State of UP

Petitioner challenged the validity of Section 295 of IPC which penalized the act or attempt of insult of a religion or religious beliefs of a class of citizens. The Court held that Section 295 is consistent with Article 25 and held it to be constitutional.

Raja Birakishore v. State of Orissa

The validity of the Jagannath Temple Act, 1954 was challenged as it enacted provisions to manage the affairs of Puri temple on the grounds that it is being violative of Article 26. The court held that the Act only regulated the secular aspect of seva puja, therefore, it is not being violative of Article 26.

The Durgah Committee Ajmer v. Syed Hussain Ali and Others

The petitioners contended that Durgah Khwaja Saheb Act, 1955 violated Article 25 and 26 which provided for the appointment of Hanafi Muslims as members of Committee none of them belonging to the Chishti sect. The Court held that the Chishti sect is a religious denomination but the act does not violate the right to freedom of religion as Chishti Sufis never had the right to manage the Durgah endowment.

Sabarimala Verdict and Freedom of Religion

In 2017, a PIL was filed under Article 32 by the petitioners challenging the practice followed in Sabarimala temple which did not allow the entry of women from the age group of 10-50 years. A constitutional bench was set up in 2018 which held that the practice was unconstitutional and uplifted the ban on entry of women stating that followers of Ayyappa do not form a separate religious denomination but are Hindus only and, such a ban is not an essential practice of the religion.

Sabarimala Judgment encroached the Freedom of Religion

From the inception of Article 25 and 26 in the Constitution of India, the power of deciding whether a practice is essential to a religion or not was only with the court. In the Sabarimala judgment, the court exercised its power and decided against the old and rudimentary practice which holds no value in today’s society. India is developing and such practices which are gender biased, considering menstruating females to be impure have no place in the society.

Though the Sabarimala verdict has opened pandora’s box giving rise to a number of applications challenging practices which are biased mostly against women. The court has not been at fault in deciding in favor of women as the old custom was violative of right to equality and was arbitrary in nature. The court held the practice unconstitutional.

current position of Freedom of Religion in India

Currently, in India, the restriction of morality which was earlier of societal morality has changed into Constitutional Morality. But, this term is nowhere mentioned in the constitution. ‘Constitutional Morality’ is a judiciary invented term which gives too much power in the hands of the judiciary. Already, the doctrine of basic structure has left too much power in the hands of the judiciary to interpret the constitution and decide anything as basic structure according to their discretion as there is no strict formula for deciding the same. If all the past decided cases applying constitutional morality are analyzed, it can be inferred that it is trying to adapt the country to the present norms giving supremacy to ‘live with dignity’. Whether its declaration of Section 377 of IPC as unconstitutional or Sabarimala Judgment striking down the old practice of not allowing woman, constitutional morality is trying to uplift the society. The fact still remains the same that the court has a huge discretion of power in deciding cases. It is said: “Power corrupts and absolute power corrupts absolutely.” It would be interesting to note how the court is going to exercise the power it has got under Constitutional Morality’.

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Conclusion

India being a secular state provides equal protection to all the religions. Equal protection does not mean that it always aids and promotes its citizens to follow a religion and its practice, but at times it means to interfere and bring positive reforms for the betterment of the society. A question which recent judgments have raised is whether it is necessary for the court to decide the constitutionality of a practice merely to establish a right even when it does not hurt a majority section of the society.

This new wave of modernism and feminism has set a trend of questioning customs to establish and showcase the right to equality available to us as a fundamental right. Though fighting for your right is not wrong, interfering in religious matters just to establish a right and hurting religious sentiments of certain followers is not something which a secular state should do. Unless there is grave harm which affects a section, faith and beliefs of the followers should not be hurt. For example, in many places, there is followed a practice of keeping menstruating girls away from the home and this practice took away the life a girl who was forced to stay in the hut due to her periods during Cyclone Ganja. Such practices need to be scrapped off no matter how many sentiments are hurt but at the same time when a temple which neither allows the entry of a man nor of woman then there need not be interference of the State to ensure the right to freedom of religion.