RIGHT TO FREEDOM OF RELIGION 

INTRODUCTION 

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 of thought, belief, faith and worship”. The 42^nd Amendment Act, 1976 has inserted the word ‘secular’ in the Preamble. However, even without  this amendment, secularism was implicit in the Indian Constitution. 

The Supreme Court explaining the secular character has said, “…there is no mysticism in the  secular character of the State. Secularism in neither anti-God non 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 ground of religion. 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. It is not concerned with the relation between man and God. It is  left to the individual's conscience. Worshipping God should be according to the dictates of one's  own conscience. Man is not answerable to the State for the variety of his religious views.” 

In S.R. Bommai v. Union of India (1994 SC), the Supreme Court has held that secularism is a  basic feature. Also, in M. Ismail Faruqui v. Union of India (1994 SC), popularly called the  Ayodhya Case the Supreme Court after detailed discussion has summarised the true concept of  secularism under the Constitution: There is no religion of the State. The Preamble of the  Constitution read in particular with Article 25 to 28 emphasises this aspect. The concept of  secularism is one facet of the right to equality and is woven as the central golden thread in the  fabric depicting the pattern of the scheme in our Constitution.

FREEDOM OF RELIGION IN INDIA 

Article 25 (1) of the Constitution of India guarantees to every person the freedom of conscience  and the right to profess, practice and propagate one’s religion. The right is guaranteed under  Article 25 (1) of the Constitution of India. Like the other constitutional rights, it is not absolute.  The right to freedom of religion is subject to public order, morality and health and to the other  provisions of Part III of the Constitution. 

The term “religion” is not defined in the Constitution and indeed it is a term which is hardly  susceptible to any rigid definition. Religion is a matter of faith with individuals or communities  and it is not necessarily theistic.  

Thus, under Article 25(1) a person has a two-fold dimension of freedom, which are as follows: 

∙ Freedom of conscience 

∙ Freedom to profess, practice and propagate religion. 

Freedom of conscience: 

The freedom of conscience is absolute inner freedom of the citizen to mold his own relation with  God in whatever manner he likes. Article 25 of The Constitution of India guarantees ‘freedom  of conscience’ to every citizen and not merely to the followers of one particular religion. The  Supreme Court in the case of Rev. Stanislans v. State ofM.P. (1977 SC) held that, “There is no  fundamental right to convert another person to one’s 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 truths of his religion that would impinge on the ‘freedom of conscience’  guaranteed to all the citizens of the country alike.” 

Freedom to profess, practice and propagate religion: 

To ‘profess’ a religion means to declare freely and openly ones faith and belief. To ‘practice’ religion is to perform the prescribed religious duties, rites and rituals, and to exhibit his religious  belief and ideas by such acts as prescribed by religious order in which he believes. To ‘propagate’

means to spread and publicize his religious view for the edification of others. But the word  ‘propagation’ only indicates persuasion, and exposition without any element of coercion. The  right to propagate one’s religion does not give a right to convert any person to one's own religion. 

The protection of Articles 25 and 26 is thus not limited to matters of doctrine of belief. 

Let us briefly discuss some landmark cases regarding Right to Freedom of Religion: 

∙ In a judgment of far reaching importance in the Bijoe Emamuel v. State of Kerala, (1984  SC), famously known as the National Anthem case, the Supreme Court has held that,  “…no person can be compelled to sing the National Anthem, ‘if he has genuine,  conscientious religious objection.’” Therein, three children of a school belonging to the  Jehovah’s witnesses were expelled from the school as they had refused to sing the National  Anthem as their religion forbade them to do so. The Supreme Court reversed the decision  of the Kerala High Court and held that there is no legal obligation in India for a citizen to  sing the National Anthem. The right under Article 25 (1) of the Constitution of India cannot be regulated by executive instructions which had no force of law. Their conduct did  not amount to an offence under the prevention of insults to National Honour Act, 1971,  as they did not prevent the singing of the National Anthem nor cause disturbance to the  assembly singing the same. Rather they had stood up in respect. 

∙ In Ismail Faruqui v. Union of India (1994 SC), the Supreme 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 Article 300 A of the Constitution, if it is necessary  for maintenance of law and order. Such acquisition per se does not violate Article 25 and  Article 26 of the Constitution. The status of a mosque in secular India is same as, not higher  than that of places of worship of other religions such as temple, church etc. The matter in  this case was referred to the Supreme Court for its advisory opinion by the President on  December 6^th, 1992 as due to the demolition of the Babri Mosque at Ayodhya, law and  order was disturbed. In order to defuse the crisis the Union Government acquired the whole  property surrounding the mosque. Notably, the Supreme Court had refused to give an

advisory opinion in this case. This was challenged on the ground that it was violative of  Article 25 and 26 of the Constitution of India as they were deprived of their right to  worship in the mosque. The Supreme Court held that the right to worship is an essential  part of a religion but it does not include the right to worship at any place and every place. 

REASONABLE RESTRICTIONS TO FREEDOM OF RELIGION:

1) Religious liberty is subject to public order, morality and health. 

Religious liberty cannot be used to allow any act done against public order, morality and health of  the public, nor can it be used to uphold customs that oppose the constitutional principles of our  Nation, for example untouchability, devadasi pratha, sati pratha, jauhar, casteism etc. This  freedom is also subject to the 'other provisions of the part', for example, the right to freedom of  speech and expression, freedom of assembly, and association, freedom to carry on a profession,  trade and business etc. 

∙ In Gulam Abbas v. State of U.P. (1984 SC), the exercise of Fundamental Rights under  Article 25 and 26 of the Constitution of India is not absolute but subject to the  maintenance of public order and impugned suggestion for the shifting of graves was in the  large interest of society for the purpose of maintaining public order on the occasion of the  performance of religious ceremonies and functions by members of both sects. 

∙ In Acharya Jagdishwaranand Avadhuta v. Commissioner of Police, Calcutta (1984 SC), also popularly known as the Ananda Marga case, the Supreme Court held that, “the  Tandava dance in procession or at public place by Anand Margis carrying lethal weapons  and human skulls was not an essential religious rite of the followers of Ananda Marga and  hence the order under Section 144 of the Code of Criminal Procedure prohibiting such  procession in the interest of 'public order and morality' was not violative of the rights of  petitioners under Article 25 and 26 of the Constitution of India. The order under Section  144 did not ban procession or gatherings at public places even by Anand Margis. It only  prohibits carrying of daggers, trishuls and skulls which poses danger to public order and is  also against morality.

2) Regulation of economic, financial, political and secular activities  associated with religious practices 

Clause (2) (a) of Article 25 of the Constitution of India states that the freedom of practice extends only to those activities which are the essence of religion. 

In Mohd. Hanif Quareshi v. State of Bihar, the petitioner claimed that the sacrifice of cows on  the occasion of Eid ul-Adha 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 cow on the Eid ul-Adha was not an essential part of  Islam and hence could be prohibited by state under clause (2) (a) of Article 25. 

3) Clause (2) (b) of the Constitution of India- social welfare and social  reforms: 

Under Clause (2) (b) of Article 25 of the Constitution of India, the State is empowered to make  laws for social welfare and social reform. Social evils cannot be practiced in the name of religion. Under this sub-clause, the State is empowered to throw upon all Hindu religious institutions of a  public character, to all classes and sections of Hindus. The right protected under this clause is a  right to enter into a temple for the purpose of worship. The right of Sikhs to wear and carry  Kripans is recognized as a religious practice in Explanation - I of Article 25 of the Constitution  of India.  

ARTICLE 26: 

Article 26 of the Constitution of India says that, subject to public order, morality and health  every religious denomination or any section of it shall have the following rights.

i. To establish and maintain institutions for religious and charitable purposes. ii. To manage its own affairs in matters of religion. 

iii. To own and acquire movable and immovable propert. 

iv. To administer such property in accordance with law. 

The right guaranteed by Article 25 of the Constitution of India is an individual right while right  guaranteed by Article 26 of the Constitution of India is the right of an 'organized body' like the  religious denomination or any section thereof. 

In Brahmachari Sidheswar Shai v. State of West Bengal (1995 SC), popularly known as the  Ramkrishan Mission Case, the Supreme Court has held that the followers of Ramakrishna, who  are collection of individuals and who adhere to a system of beliefs as conducive to their spiritual  well-being, who have organized themselves collectively and who have an organization of definite  name as Ramakrishna math or Mission can be regarded as a religious denomination within Hindu  religion or they satisfy the tests regarding a denomination as 'religious denomination' and would  therefore be entitled to claim the fundamental right conferred on them under Article 26 of the Constitution of India.  

Under Clause (a) of Article 26 of the Constitution of India every religious denomination has  right to establish and maintain institutions for religious and charitable purpose. Impliedly,  Madarsas will be protected under this clause. 

Under Article 26(b) of the Constitution of India a religious denomination or organization is free  to manage its own affairs in matters of religion. The State cannot interfere in the exercise of this  right unless they run counter to public order, health or morality. 

The right is confined to 'matters of religion'. The term ‘matter of religion’ include religious  practice rites, and ceremonies considered essential for practice of religion. This right is subject to  the regulatory power of the state under Clause (2) (b) of Article 25 of the Constitution of India. 

This means that secular activities connected with religious institution can be regulated by State by  law. The State cannot be a passive spectator when exercise of right of religion threatens the public 

order, morality and health of the community. The Constitution imposes a positive duty on the State  to free many aspects of our life from the control of religion. 

Under Clause (c) and Clause (d) of Article 26 of the Constitution of India a religious  denomination has the right to acquire and own property and to administer such property in  accordance with law. The right to administer property owned by a religious denomination is a  limited right, and it is subject to the regulatory power of the state in Clause (2) (a) of Article 25 

of the Constitution of India and also any general property law. 

ARTICLE 27: 

Article 27 of the Constitution of India provides that no person shall be compelled to pay any tax  for the promotion or maintenance of any particular religion or religious denomination. This Article emphasizes the secular character of the State. The public money collected by way of tax cannot be spent by the state for the promotion of any particular religion as India being a secular State and  there being freedom of religion guaranteed by the Constitution both to individual and groups, it is  against the policy of the Constitution to pay out of public funds any money for the promotion or  maintenance of the particular religion or religious denomination. It is to be noted that what this  Article prohibits is the levying of tax and not of fees. Tax is a common binder and the only returns  which the tax payer gets is a participation in the common benefits of the State. 

ARTICLE 28:

According to Article 28(1) of the Constitution of India, no religious instruction shall be imparted  in any educational institution wholly maintained out of State funds. This clause does not 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. 

Article 28 of the Constitution of India refers to four types of educational institutions: 

i. Institutions wholly maintained by the State 

ii. Institutions recognized by the State 

iii. Institutions that are receiving aid out of the State fund 

iv. Institutions that are administered by the State but are established under any trust or  endowment. 

With regards to the institutions of the first type, no religious instruction can be imparted. In the  institutions of the second and third type, religious instructions may be imparted only with the  consent of the individuals. Also, with regards to the fourth type of institutions, there is no  restriction on religious instructions. 

CONCLUSION 

When it comes to religious diversity, India is the most varied nation. It is a secular nation without  a state religion, and any person 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  unqualified. No one may act against state policy or incite hatred or disruptions among India's  populace on the basis of their religious beliefs.