Source: Madras High Court

Why in News?

Recently, the Madras High Court in the matter of S Gurumoorthi v. State has held that the right to attend the funeral falls under the ambit Article 25 of the Constitution of India, 1950 (COI).

What was the Background of S Gurumoorthi v. State Case?

• The petitioner was arrested and remanded to judicial custody on 13^th June 2023 for the offences under the provisions of the Narcotic Drugs and Psychotropic Substances Act, 1985.
• The petitioner's father passed away on 10^th Feb 2024.
• The petitioner wanting to participate in the funeral rites applied for an interim bail before the High Court of Madras.
• The High Court was not in favor of interim bail. The court, however, was also mindful of the petitioner's fundamental rights.
• The High Court also noted that a dead person was also entitled to a dignified burial which would involve the participation of close relatives.
• Thus, the Court directed the Superintendent, of Central Prison, Madurai to make appropriate arrangements allowing the petitioner’s to attend his father’s funeral.

What were the Court’s Observations?

• Justice GR Swaminathan observed that the prisoners including under-trials can invoke this right under Article 25 of the COI. The right to participate in the funeral ceremony of the parent/spouse/child will fall within the sweep of the right under Article 25. Of course, this cannot be an absolute right. The Court will uphold this right subject to the prevailing situation.
• It was further held that Article 25 could be invoked by any person and did not make any distinction between free persons and prisoners. The Court also noted that the prisoner, being a Hindu had to discharge certain religious obligations In this case, there are no such special circumstances warranting denial of the rights.

What is Article 25 of the COI?

About:

• This Article deals with the freedom of conscience and free profession, practice and propagation of religion. It states that-

(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 reference to Hindus shall be construed as including a reference to persons professing the Sikh, Jaina or Buddhist religion, and the reference to Hindu religious institutions shall be construed accordingly.

• It covers not only religious beliefs but also religious practices.
• These rights are available to all persons—citizens as well as non-citizens.

Case Law

• In the case of Commr. HRE v. Sri L.T. Swamiar of Sri Shirur Mutt (1954), the Supreme Court observed that Article 25 of the COI secures to every person a freedom not only to entertain such religious belief, as may be approved of by his judgment and conscience but also to exhibit his belief in such outward acts as he thinks proper and to propagate or disseminate his ideas for the edification of others.