Freedom of Religion,

Cultural & Educational

Rights
Secularism in India

• The concept of secularism is not merely a passive attitude of religious

tolerance. It is also a positive concept of equal treatment of all religions.
• The concept of secularism was not expressly incorporated in the Constitution
at the stage of its making. However, its operation was visible in the
Fundamental Rights and Directive Principles. The concept of secularism,
though not expressly stated in the Constitution, was, nevertheless, deeply
embedded in the constitutional philosophy.
• The Constitution does not define the term secular as it is a very elastic term
and not capable of any precise definition and so it is best left undefined.
• A secular state does not extend patronage to any particular religion. The state
is neither pro any particular religion nor anti any particular religion. The
state maintains neutrality in matters of religion and provides equal protection
to all religions subject to regulation of secular parts
• To underline the great significance of secularism, in SR Bommai v
UOI the Supreme Court declared it as the "basic“ feature of the
Constitution. "Any step inconsistent with the constitutional policy is, in
plain words, unconstitutional".
• The concept of secularism is not static; it is elastic in connotation.
In this area, flexibility is most desirable as there cannot be any fixed
views on this concept for all time to come.
• The courts decide from time to time the contours of the concept of
secularism and enforce it in practice
Art 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 this Part, all
persons are equally entitled to freedom of conscience and the right freely to profess,
practice 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 clause (2), the reference to Hindus shall be construed as
including a reference to persons professing the Sikh, Jain or Buddhist religion, and the
reference to Hindu religious institutions shall be construed accordingly
 What is Religion and Religious practice?
• India is home to an overwhelming diversity of religions, many of which are community-oriented and stipulate
a disciplined ordering of social or political life.
• A great deal of importance is ascribed not only to religious beliefs, but also to religious practices. Since
practices are intrinsically social religion inhabits an overtly public space in India
• Religion is a matter of faith.
• A religion, undoubtedly, has its basis in a system of beliefs and doctrines which are regarded by those
who profess that religion as conducive to their spiritual well-being, but it is also something more than merely
doctrine or belief.
• A religion may not only lay down a code of ethical rules for its followers to accept, but may also prescribe
rituals and observances, ceremonies and modes of worship which are regarded as an integral part of that
religion. These forms and observances might extend even to matters of food and dress.
• Therefore, the constitutional guarantee regarding freedom of religion contained in Art. 25(1) extends even to
rites and ceremonies associated with a religion
• Article 25, assures to every person not only the right to entertain his religious beliefs, as may be approved of
by his judgment and conscience, but also to exhibit his belief in such outwardly act as he thinks proper and to
propagate or disseminate his ideas for the edification of others.
• Stanislaus v. State of Madhya Pradesh, AIR 1977 SC 908
• The constitutional validity of the Madhya Pradesh Dharma Swatantraya
Adhiniyam, 1968, was challenged in the High Court of Madhya Pradesh and the
constitutional validity of the Orissa Freedom of Religion Act 1967 was
challenged in the High Court of Orissa. The two Acts prohibit forcible conversion
and make the offence punishable. The court clubbed the petitions arising out of
challenges to these two statutes
• Held: The word 'propagate' under Article 25 (1), does not grant the right to convert
another person to one's own religion, but to transmit or spread one's religion by an
exposition of its tenets. It has to be remembered that Article 25 (1) guarantees
"freedom of conscience" to every citizen, and not merely to the followers of one
particular religion, and that, in turn, postulates that there is no fundamental right to
convert another person to one's own religion because if a person purposely
undertakes the conversion of another person to his religion, as distinguished from
his effort to transmit or spread the tenets of his religion, that would impinge on the
"freedom of conscience" guaranteed to all the citizens of the country alike
 ESSENTIAL RELIGIOUS PRACTICE: DOCTRINE
• In order, however, that a practice should be treated as a part of a religion, it is necessary that it be
regarded by the said religion as its essential and integral part.
• This caution is necessary otherwise even purely secular practices, not essential to religion, will be
clothed with religious sanction and may claim to be treated as religious practices within the meaning
of Art. 25.
• It means that purely secular practices which may not be an essential and integral part of a religion are
not protected and can be abrogated by legislation subject to other Fundamental Rights.
• Certain practices, even though regarded as religious, may have sprung from merely superstitious
beliefs and may, in that sense, be only extraneous and unessential accretions to religion itself. Such
practices also are not protected and can be abrogated.
• Therefore, the norm that only such practices as are essential and integral part of a religion need to be
protected.
• It, therefore, falls upon the courts to decide, on the basis of evidence adduced before them
concerning the conscience of the community and the tenets of the religion concerned, whether a
practice for which protection is claimed is 'religious' in character, and, if so, whether itis an essential
and integral part of the said religion, or is merely 'secular' or 'superstitious' in nature.
• On a bare perusal of the Constitution, it becomes apparent that the term
‘essential’ does not find a place in it. The right to profess, practice, and
propagate is extended to all religious matters on a general basis
Bijoe Emmanuel v. State of Kerala (1986) 3 SCC 615
• The three child-appellants, Bijoe, Binu Mol and Bindu Emmanuel, are the faithful
of Jehovah‟s Witnesses. They attend school. Daily, during the morning Assembly,
when the National Anthem „Jana Gana Mana‟ is sung, they stand respectfully but
they do not sing. They do not sing because, according to them, it is against the
tenets of their religious faith – not the words or the thoughts of the anthem but the
singing of it.
• The Court has noted that Jehovah's Witnesses wherever they are (England, U.S.A)
do not sing the National Anthem, though they show respect to it by standing up
whenever it is sung. They truly and conscientiously believe that their religion does
not permit the singing of the National Anthem.
The Court has said:
• "....the question is not whether a particular religious belief or practice appeals to
our reason or sentiment but whether the belief is genuinely and conscientiously
held as part of the profession or practice of religion. If the belief is genuinely and
conscientiously held it attracts the protection of Art. 25 but subject, of course, to
the inhibitions contained therein
Church of God v. K.K.R. Majestic Colony, AIR 2000 SC 2773 1389
• The appellant is the Church of God (Full Gospel) (Church for short) located at K.K.R. Nagar,
Madhavaram High Road, Chennai. It has a prayer hall for the Pentecostal Christians and is
provided with musical instruments such as drum set, triple gango, guitar etc. Respondent No.1-
KKR Majestic Colony Welfare Association (Welfare Association for short) made a complaint on
15.5.1996 to the Tamilnadu Pollution Control Board (hereinafter referred to as the Board) stating
therein that prayers in the Church were recited by using loudspeakers, drums and other sound
producing instruments which caused noise pollution thereby disturbing and causing nuisance to
the normal day life of the residents of the said colony
• It was contended by learned counsel for the Church that the petition was filed with an oblique
motive in order to prevent a religious minority institution from pursuing its religious activities and
the Court cannot issue any direction to prevent the Church from practicing its religious beliefs. It
was also submitted that the noise pollution was due to plying of vehicles and not due to use of
loudspeakers etc
• The Supreme Court has ruled that the use of loudspeakers by a particular community at the time
of prayers is subject to the provisions of the Environment (Protection) Act, 1986. No religion
prescribes or preaches that prayers are to be performed through loudspeakers.
• No rights in an organized society can be absolute. Enjoyment of ones rights must be consistent
with the enjoyment of rights also by others. Where in a free play of social forces it is not possible
to bring about a voluntary harmony, the State has to step in to set right the imbalance between
competing interests.
• A particular fundamental right cannot exist in isolation in a water-tight
compartment.
• One Fundamental Right of a person may have to co-exist in harmony with the
exercise of another Fundamental Right by others also with reasonable and
valid exercise of power by the State in the light of the Directive Principles in
the interests of social welfare as a whole.
• Further, it is to be stated that because of urbanization or industrialization the
noise pollution may in some area of a city/town might be exceeding
permissible limits prescribed under the rules, but that would not be a ground
for permitting others to increase the same by beating of drums or by use of
voice amplifiers, loudspeakers or by such other musical instruments and,
therefore, rules prescribing reasonable restrictions including the rules for the
use of loudspeakers and voice amplifiers framed under the Madras Town
Nuisance Act, 1889 and also the Noise Pollution (Regulation and Control)
Rules, 2000 are required to be enforced .
Art 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.
What is a Religious Denomination
• While Art. 25 confers the particular rights on all persons, Art. 26 is confined
to religious denominations, or any section thereof.
• Art. 26 thus guarantees collective freedom of religion.
• The term 'religious denomination' in Art. 26 means a religious sect having a
common faith and organization and designated by a distinctive name.
• The words "religious denomination' take their colour from the word
'religion'. Therefore, in case of a denomination, there must be a common
faith of the community based on religion, and the community members must
have common religious tenets peculiar to themselves.
• To form a religious denomination, three conditions must be fulfilled: (1) It is
a collection of individuals who have a system of beliefs which they regard as
conducive to their spiritual well-being; (2) They have a common
organisation; (3) Collection of these individuals has a distinctive name
 ARTS. 25(2)(B) AND 26(B)
• The right of the religious minority under Art. 26(b) is not only subject to "Public order, morality
and health', but also to Art. 25(2)(b), viz., "providing for social welfare and reform.
• Venkataramana Devaru v. State of Mysore, AIR 1958 SC 225
• This was an appeal by the trustees of the ancient and renowned temple of Sri Venkataramana
of Moolky Petta, who were managing the temple on behalf of the Gowda Saraswath Brahmins in
accordance with a Scheme framed in a suit under s. 92 of the Code of Civil Procedure.
• After the passing of the Madras Temple Entry Authorisation Act (Madras V of 1947) which had
for its object the removal of the disability of Harijans from entering into Hindu public temples,
the trustees made a representation to the Government that the temple was a private one, and,
therefore, outside the operation of the Act.
• The substantial question of law, which arises for decision in this appeal, is whether the right of a
religious denomination to manage its own affairs in matters of religion guaranteed under Art.
26(b), is subject to, and can be controlled by, a law protected by Art. 25(2)(b), throwing open a
Hindu public temple to all classes and sections of Hindus.
• The Supreme ruled that the rights of a religious denomination to manage its own affairs in matters
of religion under Art. 26(b) were subject to and controlled by a law protected under Art. 25(2)(b)
• Art 27. Freedom as to payment of taxes for promotion of any particular
religion.—No person shall be compelled 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.
• Art 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 State 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 recognised by the State or
receiving aid out of State funds shall be required to take part in any religious
instruction that may be imparted in such institution or to attend any religious
worship that may be conducted in such institution or in any premises attached
thereto unless such person or, if such person is a minor, his guardian has
given his consent thereto.
Aruna Roy v. UOI, AIR 2002 SC 3176

• In this public interest litigation filed under Article 32 of the Constitution of India, it has been mainly
contended that the National Curriculum Framework for School Education (hereinafter referred to as the
"NCFSE") published by National Council of Educational Research and Training (hereinafter referred to as
"NCERT") is against the constitutional mandate, anti-secular, and without consultation with Central Advisory
Board of Education.
• The part in the Curriculum saying “Apart from this today’s requirement is not religious instructions but
education about religion, their basics, the values inherent therein and also a comparative study of the
philosophy of all religions.” However, a word of caution is required here. Education about religions must be
handled with extreme care. All steps must be taken in advance to ensure that no personal prejudice or narrow
minded perceptions are allowed to distort the real purpose of this venture and no rituals, dogmas and
superstitions are propagated in the name of education about religions. All religions therefore have to be
treated with equal respect (Sarva Dharma Sambhav) and that there has to be no discrimination on the ground
of any religion (Panthnirapekshata).“
• Contended that giving education about religions would be violative of Article 28 and also it would offend the
basic structure of the Constitution, namely, secularism.
• Court held that it appears to be totally wrong presumption and contention that knowledge of different
religions would bring disharmony in the society. On the contrary, knowledge of various religious philosophies
is material for bringing communal harmony as ignorance breeds hatred because of wrong notions,
assumption, preaching and propaganda by misguided interested persons
• Religious instruction is that which is imparted for inculcating the tenets, the rituals, the observances,
ceremonies and modes of worship of a particular sect or denomination. To provide for academic study of life
and teaching or the philosophy and culture of any great saint of India in relation to or the impact on the Indian
and world civilizations cannot be considered as making provision for religious instructions
Adi Saiva Sivachariyargal N. Sangam and Ors. Vs. Govt. of
Tamil Nadu and Anr., decided on 16 December 2015
• “The rights guaranteed by Articles 25 and 26, are circumscribed and are to be enjoyed within
constitutionally permissible parameters. Often occasions will arise when it may become necessary
to determine whether a belief or a practice claimed and asserted is a fundamental part of the
religious practice of a group or denomination making such a claim before embarking upon the
required adjudication. A decision on such claims becomes the duty of the Constitutional Court. It
is neither an easy nor an enviable task that the courts are called to perform. Performance of such
tasks is not enjoined in the court by virtue of any ecclesiastical jurisdiction conferred on it but in
view of its role as the Constitutional arbiter. Any apprehension that the determination by the court
of an essential religious practice itself negatives the freedoms guaranteed by Articles 25 and 26
will have to be dispelled on the touchstone of constitutional necessity. Without such a
determination there can be no effective adjudication whether the claimed right it is in conformity
with public order, morality and health and in accord with the undisputable and unquestionable
notions of social welfare and reforms. A just balance can always be made by holding that the
exercise of judicial power to determine essential religious practices, though always available
being an inherent power to protect the guarantees under Articles 25 and 26, the exercise thereof
must always be restricted and restrained.