Introduction

• Recognizing the importance of religion in the life of people, the Constitution of India, 1950 (COI) provides for the right to freedom of religion under Articles 25 to Article 28.
• India, being a secular nation gives every person has the right and freedom to choose and practice his or her religion.

Constitutional Provisions Relating to Right of Religion

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

Article 25 of COI

• 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, practise 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.

Article 26 of COI

• Article 26 deals with freedom to manage religious affairs. It states that 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
• This Article protects collective freedom of religion.
• The right guaranteed by Article 26 is the right of an organized body like the religious denomination or their sections.
• The Supreme Court held that a religious denomination must satisfy the following three conditions:
  • It should be a collection of individuals who have a system of beliefs which they regard as conducive to their spiritual well-being.
  • It should have a common organization.
  • It should be designated by a distinctive name.

Article 27 of COI

• This Article deals with the freedom as to payment of taxes for promotion of any particular religion. It states that 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.
• This Article not only prohibits the imposition of a tax, but it also prohibits the utilization of public funds for the promotion of a particular religion or denomination.

Article 28 of COI

• This Article deals with freedom as to attendance at religious instruction or religious worship in certain educational institutions. It states that -
  • (1) No religion 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 recognized 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 Cultural and Educational Rights.
• Thus, Article 28 distinguishes between four types of educational institutions:
  • (a) Institutions wholly maintained by the State, where religious instruction is completely prohibited.
  • (b) Institutions administered by the State but established under any endowment or trust, where religious instruction is permitted.
  • (c) Institutions recognized by the State, where religious instruction is permitted on a voluntary basis.
  • (d) Institutions receiving aid from the State, where religious instruction is permitted on a voluntary basis.

Case Laws

• 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.
• In Raja Birakishore v. State of Orissa (1964), the Supreme Court held that the Jagannath Temple Act, 1954 only regulated the secular aspect of seva puja, therefore, it is not violative of Article 26 of the Indian Constitution.
• In the case of Acharya Jagdishwaranand v. Commissioner of Police, Calcutta (1983), the Supreme 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.
• In M. Ismail Faruqui v. Union of India (1994), the Supreme Court held that the mosque is not an essential practice of Islam, and a Muslim can offer namaz (prayer) anywhere even in the open.
• In M Siddiq (D) Thr. Lrs v. Mahant Suresh Das (2019), the Supreme Court held that the State has the sovereign or prerogative power to acquire the property.
  • The State also has the power to acquire places of worship such as mosque, church, temple, etc. and the acquisition of places of worship per se is not violative of Articles 25 and 26 of the Indian Constitution.