The right to freedom of religion is a fundamental right prescribed in Part III (Articles 25-28) of the Constitution of India. The Preamble to the Constitution of India also emphasizes a secular form of government. In 1918, Pt. Madan Mohan Malviya presided over a special session of Congress in Delhi and raised the issue of basic rights or fundamental rights. The right to freedom of religion was one of the components of those basic rights. Also, the Nehru Report of 1928 recommended basic rights. Later on, these developments culminated in Articles 25-30. Articles 29 and 30 emphasize on rights of minorities (religion or language). The 42nd Constitutional Amendment, 1976 added the word ‘Secular’ in the Preamble.
In Aruna Roy vs Union of India (2002), the validity of the National Education Policy was challenged on the grounds that it was violative of Article 28 and “anti-secular”. The Supreme Court in this case ruled that secularism is susceptible to positive meaning that is developing an understanding and respect towards different religions and study of religions in school education is not against the secular philosophy of the Constitution.
Earlier in S.R Bommai vs Union of India (1994), the Supreme Court declared Secularism as the ‘basic structure’ of the Constitution. Justice Sawant opined that religious tolerance, equal treatment, protection of life, liberty, and property of all religious groups, and protection of places of worship are the essential elements of secularism. Justice B.P Jeevan Reddy opined that the State is neutral and should treat every section of society equally; it should not discriminate on the basis of religion.
A combined reading of Articles 25, 26, 27, 28, 29, 30, 44, 51(A) and the Preamble gives a broad idea of freedom of religion in India. It is the responsibility of the State to treat every religion equally. If the State is discriminating among different religions then it will violate the right to equality guaranteed by the Constitution. So, Justice Verma in M. Ismail Faruqui vs Union of India (1995), said that one can explain the concept of secularism by linking the right to equality with the right to freedom of religion, rights of minorities, an obligation of State, and obligation of citizens.
Freedom of Religion in India
Article 25 guarantees every citizen the freedom of conscience and the right to freely profess, practice, and propagate religion. The right guaranteed under Article 25(1) is not absolute; it is subject to public order, morality and health, and to other provisions of part III. The State, by virtue of section 25(2)(a), can regulate or restrict any economic, financial, political, or other secular activity related to religious practice.
Under Article 25(2)(b) the State may provide for (i) social welfare and reform, and (ii) to throw open Hindu religious institutions of a public character to all classes and sections of Hindus. On one hand, Article 25 tends to protect the rights of the individual and on the other hand Article 26 tends to protect the rights of the denomination. For the purpose of Article 26, the Government has identified communities like Sikh, Jain, and Buddhist as minorities under Section 2(c) of the National Commission for Minorities Act, 1992, irrespective of the fact that they are also included in the Hindu religion.
Religious Practices
The Supreme Court in Commr. Hindu Religious Endowment vs L.T Swamiar (1954) and Ratilal vs State of Bombay (1954), explained that religion is certainly a matter of belief and faith. It also includes religious practice. It also stated that only essential parts of the religion are protected by Articles 25 and 26. What constitutes an essential part of religion or religious practice has to be decided by the Courts on the basis of reading the doctrine and teachings of that religion. In Dargah Committee vs Syed Ali (1961), Justice Gajendragadkar said that what constitutes an essential and integral part of a religion or a religious practice has to be decided by the Courts with reference to the doctrine of a particular religion. In Govindlal vs State of Rajasthan (1963) the SC held that whether a practice constitutes an essential part of a religion or not is to be decided by whether it is regarded as integral by the community following that religion or not.
In Md. Hanif Quraishi vs State of Bihar (1958), the Court ruled that the slaughtering of cows on Bakr-Eid is not an essential or integral practice and it is not a part of the religious requirement that a cow must be sacrificed for earning religious merit on Bakr-Eid.
In Acharya Jagdishwaranand Avadhut vs Commr. of police, Calcutta (1984), the Court held that performance of tandava dance by Anand margis in procession or public places is not an essential practice to be performed by every Anand margis.
In Bijoe Emmanuel vs State of Kerala (National Anthem case) (1986), a two-judge bench of the SC ruled that Jehova’s witnesses constitute a religious denomination. Compelling a student belonging to Jehova’s witnesses to join in the singing of the National Anthem despite his genuine conscientious religious objection, would contravene the right guaranteed by Article 19(1)(a) and Article 25(1). The Court noted that Jehova’s witnesses, wherever they are, 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. However, in Shyam Narayan Chouksey vs Union of India (2018), the Supreme Court held that one is compelled to show respect whenever and wherever the National Anthem is played by virtue of Section 3 of Prevention of Insults to National Honor Act, 1971.
Whether right to propagate means the right to convert?
In Rev Stanislaus vs State of M.P (1977), the Supreme Court held that the word ‘propagate’ in Article 25 (1) does not grant the right to convert another person to one’s own religion but it grants the right to transmit or spread one’s religion by an exposition of its tenets. There is no fundamental right to convert a person to one’s religion because if a person purposely undertakes to convert another person to one’s own religion then it would impugn the freedom of religion guaranteed to all citizens in the country alike.
Disclosure of Religion in Forms or Applications
In Dr. Ranjeet Suryakant Mohite vs Union of India (2014), the Supreme Court held that the State cannot compel any citizen to disclose his/her religion while submitting forms or declarations. A citizen has a right to claim that he does not believe in any religion and therefore does not practice or profess any religion. A citizen can always claim that he belongs to “no religion”.
Prevention of Ex-Communication
In Saifuddin Saheb vs State of Bombay (1962), the Supreme Court held that ex-communication based on religious grounds forms a part of the management of the community. An enactment that took away this right of the head of the community to ex-communicate even on religious grounds was violative of Article 26(b) and is not protected by Article 25(2)(b) as a matter of social reform. However, the judgment was criticized on the ground that it prefers the denominational right to individual freedom of religion guaranteed by Article 25.
Entry to Temples
In Venkataramana Devaru vs State of Mysore (1958), the Madras Temple Entry Authorisation Act removed the disability of Harijans from entering Hindu public temples. The trustee of the temple contended that it was a private temple and so, it was outside the scope of the Act. This plea was rejected by the Supreme Court and it gave primacy to Article 25(2)(b) over Article 26 (b). However, the Supreme Court said that when there is a conflict then it makes a harmonious interpretation of the provisions.
In India Young Lawyers Association vs State of Kerala (2018), the Devaswom Board of Sabarimala temple imposed a ban on entry of women aged between 10-50 years under Rule 3(b) of Kerala Hindu Place of Public Worship (Authorisation of Entry) Rules, 1965. The Supreme Court held the rule discriminatory of the parent Act and allowed the entry of all ages of women to the temple.
Transfer of Management
In Bira Kishore vs State of Orissa (1964), the management of the Jagannath temple was transferred to a Committee from the sole control of the king by Sri Jagannath Temple Act, 1954. The Act was challenged on the ground that it was violative of Article 26(b). The Committee was given the responsibility to arrange for the proper performance of Sevapuja. Sevapuja has two aspects; secular and religious. The Act related to only secular functions as it regulated only provision of materials, etc. for the purpose of Sevapuja.
The Act did not affect the religious aspect of Sevapuja and the persons who were to perform the puja and other rites as per the dictates of the religion were left untouched; hence, the Court held it not violative of Article 26(b).
The Supreme Court in Sri Adi Vishweshwar of Kashi Vishwanath vs State of Uttar Pradesh (1997), held that taking over the management of the temple from Pandas and creating a board of trustees for the same purpose was not an interference in the matters of religion. It only regulated the administration of the temple which was in awful condition. It also held that the temple did not belong to any particular religious denomination.
In Bhuri Nath vs State of Jammu and Kashmir (1997), the Jammu and Kashmir Shri Mata Vaishno Devi Shrine Act, 1988, which was passed by the Jammu and Kashmir state legislature for effective and proper management of the shrine and convenience of the pilgrims, was challenged to be violative of Article 26(b); but the Supreme Court upheld the Act.
Usage of Loud Speakers in the name of Religion
In Moulana Mufti Syed Md. Noorur Rehman Barkati vs State of West Bengal (1998), the Calcutta police imposed a prohibition on the use of loudspeakers during Azaan on the ground that it disturbed public peace. This order was challenged saying it violated the fundamental right guaranteed under Articles 25 and 26. The Calcutta High Court gave priority to the right to live in a noise-free environment and upheld the restriction imposed by the Calcutta police.
The Allahabad High Court in Afzal Ansari and others vs State of Uttar Pradesh (2020), held that Azaan may be an essential and integral part of Islam but its recitation through loudspeakers or other sound-amplifying devices cannot be said to be an essential part of the religion. In the Re Noise Pollution case (2005), the Supreme Court asked the State to implement the laws restricting the use of loudspeakers and high volume producing sound systems as per the Noise Pollution Control and Regulation Rules, 1999.
Use of Firecrackers
In Arjun Gopal vs Union of India (2018), the Supreme Court gave several directions for the use of firecrackers-
- Those crackers having reduced emissions and green crackers would only be allowed to be manufactured and sold. All other types of crackers were banned.
- The manufacture, sale, and use of joined crackers was banned since they caused huge air, noise, and solid waste problems.
- The timing for the burning of firecrackers on Diwali was fixed from 8.00 p.m till 10.00 p.m only.
Hajj Subsidy Case
Justice Aftab Alam, in Union of India vs Rafique Shaikh Bhikan (2012), said that in the Quran getting subsidies from the State and visiting Mecca Medina is not desirable; it is not an essential part of the Muslim religion. If one is not able to generate income then the State is not supposed to give subsidies for visiting those places. It is against Islam and the Quran. The Court gave 10 years’ time to the Central Government to withdraw the Hajj subsidy.
In 2018, the Central Government withdrew the Hajj subsidy fully. The government spending on Mansarovar yatra or Kumbh Mela or giving salaries to Qazis in West Bengal or giving patronage to the Waqf board are all violations of Article 27, but government justifies it on the grounds of i) composite culture and ii) distinction between tax and fees. Tax is a common burden and the only benefit a taxpayer gets is participation in common benefits of the State; whereas, Fees are payments primarily in the public interest but for some special services rendered or some special work done for the benefit of those from whom payments are demanded.
Key Findings on Freedom of Religion in India
According to a report by Pew Research Center, about 84% of people believe that for being “true Indian” it is very important to respect all religions. People of all the six major religious groups confidently say that they are very free to practice their faiths and also people of other faiths are very free to practice their own religion.
| Religion | Percentage of People who feel free to practice their religion |
| Hindus | 91 |
| Muslims | 89 |
| Christians | 89 |
| Sikhs | 82 |
| Buddhists | 93 |
| Jains | 85 |
Religious Conversions in India
Conversion of lower caste Hindus especially to Christianity is contentious in India and some states have laws against proselytism. According to this report, Hindus gain as many people as they lose. It is obvious that a person is free to choose the religion of his/her choice but conversion by means of coercion or financial favor is prohibited in India.
Religious Faith and Belief
About 97% of Indians say they believe in God and roughly 80% of people in different religious groups say they are absolutely certain that God exists. However, belief in God is not central to Buddhist teachings. Muslims and Christians simply say that there is only one God whereas most Hindus say there is one God with many manifestations. Living together in a diverse society, India’s minority groups often engage in practices more closely associated with Hindu traditions such as wearing a bindi, and also members of the majority Hindu community celebrate Muslim festivals (7%) and Christmas (17%).
Conclusion
India is a secular democratic country with a diverse population belonging to different religions living together. It does not hold any particular religion as its identity as other neighboring countries do. In India, everyone is free to practice, profess and propagate the religion of their own choice; however, these rights are subject to reasonable restrictions. There are instances when communal differences arose, but the Judiciary and Government have been able to tackle those challenges and establish peace in the country.