Religion is an important part of human life. Religion is an essential factor in
determining people's conduct and behaviour, particularly in Indian civilization.
India is a diverse country in terms of caste, ethnicity, religion, and creed. In
terms of exercising, one's religious beliefs, India is impartial, neutral, and
unbiased. Our Indian Constitution guarantees that no citizen will be denied the
ability to practice and publicly declare their faith.
Enshrined in these constitutional articles is the State's policy of keeping a
"principled distance" from religion. It cannot have a personal religion. Every
belief ought to be treated equally. This does not forbid the State from acting
when religious practice conflicts with the goals of the welfare state, which are
to promote the integrated development of persons and communities, as well as
public order, morality, health, and harmonious social order.
Introduction:
Religion is a subject of faith or belief. The preamble of the constitution,
states that the people are determined to guarantee "liberty of thought, belief,
faith, and worship" to all of the citizens, contains an implicit reference to
secularism. The Indian Constitution guarantees the right to freedom of religion
under Articles 25 to 28 because it acknowledges the significance of religion in
the lives of Indians. Every person has the freedom and right to select and
follow any religion they desire, according to the Indian Constitution, which
also anticipates a secular society.
India is home to a large Muslim, Hindu, Buddhist, Sikhism, Jain, and Christian
population. A secular state was never regarded as an atheistic or irreligious
state in India. It just indicates that it is impartial regarding religious
issues. In India, there is an old belief that the government protects all
religions while interfering with none.[1]
What is Secularism?
Being secular involves developing tolerance, knowledge, and respect for various
religions. Gandhiji stated, "The true meaning of secularism is Sarva Dharma
Sambhav, meaning equal treatment and respect for all religions.". Our
constitution's preamble makes it quite evident that as the state has no official
religion, all religions are to be respected and safeguarded.
The Indira Gandhi
administration's 42nd Amendment Act of 1976 saw the addition of the phrase
secularism to the Constitution. Secularism guarantees that no one will face
discrimination due to their religion and eliminates God from state affairs.[2]
The Supreme Court ruled in the well-known case of SR Bommai v. Union of India[3]
(1918) that secularism is an integral element of the constitution and hence
cannot be changed. It also noted that politics and religion are incompatible.
Everyone is equal in a state and ought to be treated as such. Religion has no
business being involved in state affairs. While everyone in India is entitled to
the freedom of religion as a fundamental right, the State views religion, faith,
and belief as irrelevant.
Constitutional Provisions:
- Article 25: It imparts freedom of religion in India.
- Article 26: It grants liberty over religious affairs.
- Article 27: Freedom from Taxation for the Promotion of Any Particular Religion.
- Article 28: Freedom of Religious Instruction in State-aided Institution.
Article 25 [Freedom of conscience as well as the freedom to practice, profess,
or promote religion]
All citizens are guaranteed the freedom of conscience as well as the right to
profess, practice, and spread their religion, according to Article 25(1).
Subject to public order, morality, health, and other conditions, it stipulates
that everyone in India:
- equal right to freedom of conscience and
- the freedom to freely profess, practice, and propagate their religion.
The total internal freedom of the citizen to shape his own relationship with God
whichever he pleases is known as the freedom of "conscience." It is the right to
publicly profess and practice one's religion when this freedom is expressed and
represented externally.
To "practice" religion is to carry out the required religious ceremonies,
rituals, and obligations as well as to demonstrate one's religious views and
beliefs by actions that are prescribed by the religious organization one
belongs.
To 'propagate' refers to spreading and making his religious beliefs known for
the benefit of others. It denotes explanation and persuasion without the use of
force. Article 25(1) gives the freedom to transmit or spread one's religion
through an explanation of its principles, not the right to convert another
person to one's own religion. Additionally, this article protects "freedom of
conscience" for all citizens, not only those who practice a specific faith.
It additionally stipulates that this article will not override any current
legislation and will not stop the state from enacting laws concerning:
- the regulation or limitation of any financial, political, economic, or
secular activity connected to religious practice
- Providing reform and social welfare.
- The establishment of public Hindu religious institutions open to all
Hindu classes and groups.
A circular from the Directorate of Public Instructions mandated that all
students in schools sing the national anthem in the case of
Bijoe Emmanual v.
State of Kerala[4]. Three young Christians who identify as "Jehova's witnesses"
stood up politely each morning at their school when the national anthem was
sung.
However, they refused to participate in the singing of the anthem because,
their actions, went against the principles of their religious faith, which
prevented them from participating in any rituals other than praying to their
god, Jehova. Their refusal to perform the national anthem resulted in their
expulsion from the school.
They contested the legality of their expulsion on the
grounds that Article 25(1) violated their fundamental rights. The Supreme Court
ruled that "if he was a genuine, conscientious, religious objection," no one may
be forced to perform the national anthem. The children showed appropriate
respect for the national anthem by standing up while it was being sung, and they
did not transgress the fundamental rights outlined in Article 51 A of the
constitution.
The petitioner in
A.S. Narayana v. State of Andhra Pradesh[5], who is the chief
priest of the venerable and historic Hindu temple at Tirumala Tirupati, also
known as the Balaji Temple in north India, contested the constitutionality of
the Andhra Pradesh Charitable and Hindu Religious and Endowments Act, which
abolished the hereditary rights of archakas and other office holders.
He claimed
that the act infringed upon his constitutionally guaranteed freedom of religion
in Articles 25 and 26. The court determined that the Act was legitimate and did
not violate Articles 25 and 26 of the Constitution. A priest's inherited right
to be appointed is not a necessary component of any religion or religious
practice.
The Supreme Court of India ruled in
Shayara Bano v. Union of India[6] that
triple talaq is illegal because it is immediate and irreversible. Talaq-e-bidet
is a type of talaq that is executed with three simultaneous pronouncements, such
as "Talaq, Talaq, Talaq," or by one clear talaq statement, such as "I talaq you
irrevocably."
Restrictions on Freedom of Religion:
- Religious liberty is subject to public health, morality, and order: No
measures may be taken in the name of religion that would compromise public
health, morality, or order. The Police Act's Section 34 forbids the killing
of animals and the indecent display of one's body in public. The performance
of religious rites cannot be used as justification for these acts.
Similarly, it is unacceptable to allow untouchability or human trafficking in the name of
religion.
- Regulation of Economic, financial, political and secular activities
associated with religious practices [Clause(2)(a)]: The activities that
constitute the core of religion are the only ones to which the right to
practice it applies. Determining which activities are related to religious
practice and which are secular, commercial, or political can be challenging
at times.
- Social Welfare and Social Reforms [Clause (2)(b)]: The ability to enact
laws for social welfare and reform rests with the State. Therefore, the
state may abolish social customs and beliefs that obstruct the nation's
advancement under this article. These laws have no bearing on any religion's
core principles. This clause states that religion must give way in
situations where social welfare and reform demands clash with religious
beliefs. Religion cannot justify the practice of social evils.
Explanation 1: Right of Sikhs to wear and carry Kirpans: Explanation 1 of
Article 25 recognizes the right of Sikhs to wear and carry kirpans as a
religious practice. This does not allow him to possess kirpans over one. He's
allowed to retain one sword. He needs a licence to carry more than one Kirpan.
Explanation 2: Hindu and Hindu religious institutions: According to Explanation
2 of Article 25, references to Hindus are to be interpreted as referring to
those who practice Buddhism, Jainism, or Sikhism, and references to Hindu
religious organizations are to be considered as such.
Article 26 (Freedom to manage religious affairs)
Every religious denomination, or any portion of one, is granted the following
rights under Article 26 (subject to public order, morality, and health):
- Founding and supporting establishments for charity-based and religious
objectives;
- Managing its affairs with regard to religion;
- Owning and acquiring property (movable and immovable);
- Administrating the property in accordance with the law.
The Supreme Court ruled in Brahmachari Sidheswar Sahai v. State of WB[7], also
referred to as the Ramakrishna mission case, that followers of Ramakrishna, who
are a group of people and who adhere to a set of beliefs that are conducive to
their spiritual well-being and who have organized themselves collectively and
have a specific organization named Ramakrishna mission, can be regarded as a
religious denomination within the Hindu religion because they meet the
requirements for a religious denomination. As a result, they are eligible to
claim the fundamental rights granted to them under Article 26 of the
Constitution.
Right to initiate and safeguard organizations for charity-based and religious
causes
Article 26 requires the terms "establish" and "maintain" to be read together, so
the only institutions that may legitimately claim to be maintaining it are those
that a religious denomination establishes. The Supreme Court of India ruled in
Azeez Basha v. Union of India[8] that Aligarh University could not be allowed to
continue because the Muslim minority did not find it. It was created in
accordance with a statute that the parliament passed.
Right to manage 'matters of religion'
A religious denomination is allowed to conduct its own business in matters of
faith under Article 26(b). The exercise of this cannot be restricted by the
state unless doing so would be against morals, public health, or order. Because
of this, any religious organization or denomination is allowed to choose
whatever ceremonies and rites are necessary in order to uphold the core beliefs
of their respective religions.
The Shri Jagannath Temple Act transferred the administration of the temple's
secular operations from the raja of Puri to a committee established by the act,
as was the case in
Bira Kishore Dev v. State of Orissa[9]. Because the Act did
not impact the religious aspect, the court upheld its validity.
Under clauses (c) and (d) of Article 26 a religious denomination has the right
to acquire and own property and to administer such property in accordance with
the law. The right to administer such property owned by a religious denomination
is a limited right. The rights under these clauses are confined to the existing
rights to administer its property where they had already been vested in a
religious denomination.
Article 26 of the Constitution limits the rights granted by it; other provisions
of Part III of the Constitution do not apply to the rights granted by Article
26.[10]
Article 27 (Freedom from taxation for the advancement of any particular faith)
A person cannot be forced to pay taxes intended to cover expenses related to the
maintenance or promotion of any religion or religious sect, according to Article
27 of the Constitution.
The state is prohibited from using tax revenue for the purpose of promoting any
one religion over another. According to the Supreme Court's ruling in Rati Lal
v. State of Bombay[11], this article forbids the imposition of taxes rather than
fees.
It was decided in Jagannath v. State of Orissa[12] that the levy imposed by the
Orissa Hindu Religious Endowment Act, 1939 was more similar to a fee than a tax.
The money was merely requested to cover the commissioner's and his office's
overhead, which included setting up the necessary systems to properly manage the
religious institution's operations. The contribution's goal was to ensure that
religious institutions were run properly, not to promote or preserve Hinduism or
the denomination within it.
The restriction is on supporting any one religion over another. This indicates
that Article 27 will not apply if State funding is given to both religious and
secular organisations equally and without prejudice.
Article 28 (Prohibition of religious instruction in the State-aided
Institutions)
This article forbids:
- Providing religious instruction in any school that receives all of its funding from the state.
- The aforementioned will not apply to educational institutions run by the states that were founded on endowments or trusts that mandate the teaching of religion in those institutions.
- Participation in religious teaching or attending workshops held on the campus of a state-recognized or state-funded educational institution is not mandatory for any person attending such an institution unless they have given their consent to do so.
Four categories of educational institutions are listed in Article 28:
- Establishments that the state maintains exclusively.
- Organizations that the state has acknowledged.
- Organizations that get funding from the state budget.
- Establishments that were founded under any trust or endowment but are managed by the state.
No religious instruction may be given in state-maintained institutions, without
the permission of the residents of such institutions who are receiving aid from
out-of-state funds and that the state recognizes. Religious instruction is not
restricted to establishments that are run by the state and founded under any
kind of trust or endowment.
In the case of
DAV v. State of Punjab[13], the legality of Guru Nanak
University's Section 4, which required the state to provide funding for the
study and research of Guru Nayak's life and teachings, was contested on the
grounds that it violated Article 28. The court dismissed the argument, ruling
that provision 4, which required the institution to support scholarly research
on the life and teachings of Guru Nanak, was constitutionally valid because it
did not constitute religious instruction or the promotion of any specific
religion.
Conclusion:
When it comes to religious diversity, India is the most varied nation. It is a
secular nation without a state religion, and any citizen is free to select,
follow, spread, or even convert to another faith. These rights are still subject
to some limitations imposed by the Constitution and are not absolute. No one may
act against state policy or incite hatred or disruptions among India's
population on the basis of their religious beliefs.
Bibliography:
Books:
- Constitutional Law of India, J.N. Pandey.
Online Websites:
- https://byjus.com accessed on 12th October 2023.
- https://www.drishtiias.com/ accessed on 12th October 2023.
- https://unacademy.com/ accessed on 12th October 2023.
- https://blog.ipleaders.in/ accessed on 12th October 2023.
- https://www.toppr.com/ accessed on 12th October 2023.
End-Notes:
- Vasudev v. Vamanji, ILR 1881 Bom. 80.
- St. Xavier's College v. State of Gujarat, AIR 1974 SC 1389.
- AIR 1994 SC 1918
- (1986)3 SCC 615.
- AIR 1996 SC 1765.
- AIR 2017 SC 4609, 4801, 4832.
- (1995)4SCC 646.
- AIR 1968 SC 662.
- AIR 1962 SC 853
- Subramanian Swamy v. State of Tamil Nadu, AIR 2015 SC 460 at p.466
- AIR 1954 SC 388.
- AIR 1954 SC 400
- AIR 1971 SC 1731.
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