Right to Freedom of Religion with Judicial Perception

Right to Freedom of Religion with Judicial Perception (Article 25 to 28)

India is a multi-religious nation and all religions are given equivalent treatment with no support or separation. The Framers of the Indian Constitution did not, explicitly opted for the concept of India to be a secular state. “Secular” was not there in Indian constitution when it came into the being. It was in this manner joined into the prelude of the Constitution by the Indian Constitution 42nd Amendment Act of 1976. But It say a rather false impression that beforehand India was not a secular state.

What’s is Religion

Define in Oxford Dictionary:- Religion as the belief in and worship of a superhuman controlling power, especially a personal God or gods.

The term ‘religion’ is not defined in the Indian constitution and The Supreme Court has defined it broadly”Religion is a matter of faith with individuals or communities and it is not necessarily theistic.

According to supreme court in case of Commissioner, H.R.E vs Sri Lakshmindra Thirtha Swamiar AIR 1954 SC 282 :- A any  religion may not only lay down a code of ethical rules for its followers to accept, it might prescribe rituals and observances, ceremonies and modes of worship which are regarded as integral parts of religion, and those forms and observances might extend even to matters of dress, food.

According to Article 25:- Freedom of conscience and free profession, practice and propagation of religion

Clause 1 of Article 25  Religious liberty subject to public order, morality and health.- guarantees to all persons are equally the freedom of conscience and the right to profess, practise and propagate religion. The right is subject public order, morality and health and to the other provisions of this Part -III of constitution. The religious freedom guaranteed under article 25 is not limited to the citizens of India only but also applies to “all persons” as spelt out in clause (1) of the said article.

Judicial Perception for the flowing Points

Forced conversion not allowed:- In Rev Stainislaus v.State of M.P AIR 1977 SC 908., the validity of the two Acts- the Madhya Pradesh Dharma Swatantrya Act, 1968, and the Orissa Freedom of Religion Act, 1967-passed by State Legislatures of Madhya Pradesh and Orissa respectively was challenged on the ground that they were violative of the fundamental right of the appellant guaranteed under sub clause (1) of  Article 25 of the Constitution These Acts were passed to prohibit forcible conversion of any person to one’s own religion. The appellant was prosecuted for the commission of offences under the Madhya Pradesh Act. He contended that right to ‘propagate’ one’s religion meant the right to convert person to one’s own religion and was a fundamental right under Article 25 (I) of the Constitution. Secondly, he argued that the State Legislature had no competence to enact such a law as it did not fall within the purview of Entry 1 of List II and Entry 1 of List II of 7 Schedule. It is covered by Entry 97 of List I so Parliament alone had the power to make the law and not the State Legislature.

Freedom to Profess of Religion:-

In the Quareshi case Mohammad Hanif Quareshi v. State of Bihar, AIR 1958 SC 731 the appellants contended that sacrificing a cow on BakrId day amounted to profession and practice of Islam, which is protected by article 25 of the Constitution. Tracing the history of the custom of offering sacrifice of a cow on the Bakr-Id day, the Supreme Court ruled, “ We have, however, no material on the record before us, which will enable us to say that the sacrifice of a cow on that day is an obligatory overt act for a Mussalman to exhibit his religious belief and idea.

Freedom of Conscience:-

Freedom of ‘conscience’ is absolute inter freedom of the citizen to mould his own relation with god in whatever manner he like.

Regulation of economic, financial, political and secular activities associated with religious practices: – Under sub clauses (a) and (b) of clause  (2) of Art 25  the State empowered by law as per flowing—

(a) regulating or restricting any financial, political, economic, or other secular activity which may be associated with religious practice in india;

(b) providing for socialwelfare and reform or the throwing open of institutions related to Hindu religious of a public character to all classes and sections of Hindus.

Explanation I.—Constitution is allowing 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) of art. 25 , the ref. to Hindus shall be construed as including a reference to persons professing the Jaina religion, Sikh religion,  or Buddhist religion, and the reference to Hindu religious institutions shall be construed accordingly.

 Article  26. Freedom to manage religious affairs.—Article 26 say that Subject to public order, morality and health, every religious denomination of any section it shall have the flowing 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.

 Durgah Committee, Ajmer v. Syed Hussain Ali.

In the Durgah Committee v. shyed Hussain ali case, an appeal was made by and by to settle on “the issues of religion” which is ensured under statement (b) of article 26.: In 1955, the Parliament had passed the Durgah Khawaja Saheb Act, to regulate the Durgah and the blessing of the Durgah Khawaja Moinuddin Christi at Ajmer. This Ajmer Durgah, which is a Muslim pioneer focus worked at the tomb of Khawaja Moinuddin Saheb who is a Christi holy person, has been gone to by both Muslim and Hindu travelers.

Sec. 4 and Sec. 5 of the Durgah Khawaja Saheb Act of 1955, accommodated the arrangement of a Durgah Committee by the Central Government to control and deal with the Durgah endowment According to the terms of Section 4 and 5 of the Act, the individuals from the panel designated by the Government were to be Hanafi Muslims. Sec.15 of the Act set out the direction that the Committee ought to take after the Muslim guidelines and precepts of the Christi holy person in performing and leading the setup rituals and functions at the tomb of the Christi holy person.

According to Article 27 Freedom as to payment of taxes for promotion of any particular religion. — Article 27 provides that No person shall be compelled to pay any taxes for promotion or maintenance of any particular religion religious denomination. The public money collected by way of tax cannot be spend by the State for the promotion of any particular religion.

According to Article 28 Freedom as to attendance at religious instruction or religious worship in certain educational institutions. — According Clause (1) of article 28: -No religious instruction shall be provided in any educational institution wholly maintained out of State funds. Clause 2 of article 28 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. Clause 3 of article 28 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 (educational) 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 as per law, and his guardian has given his consent thereto.

Thus Article 28 mentions 4 Types of educational institutions:

• Institutions wholly maintained by the State
• Institutions recognized by the State
• Institutions that are receiving aid out of the State fund.
• Institutions that are administered by the State but are established under any trust or endowment.

State Aid, Education and Freedom of Religion

Education is one of the important sectors where India’s commitment to the philosophy of the secular State comes to force.

Teaching of Guru Nanak -In Case DAV College, Bhatinda v. State of Panjab AIR 1971 SC 1737 Supreme Court said that the validity of Section 4 of the Gura Nanak University Act which directed the State to make provision for the study and research on the life and teaching of Guru Nanak was challenged on the ground that it was violative of Article 28 of Indian constitution which prohibited religious instruction in State aided educational institutions. The Court rejected the contention and held that Section 4 which enjoined the university to encourage an academic study of the life and teaching of Guru Nanak did not amount to religious instructions or promotion of any particular religion and, therefore, was constitutionally valid.

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