Article 25-28
India is a secular state :- The term 'Secularism' means a state which has no religion of its own as recongnised religion of State.It treats all religions equally.
The Constitution(42nd Amendment) Act, 1976, has inserted the word 'Secular' in the preamble. In India, Secular State was never considered as an irreligious or atheistic State. It only means that in matters of religion it is neutral. It is the ancient doctrine in India that the State (Article 12) protects all religions interferes with none.
Explaining the secular character on Indian Constitution the SC said, "There is no mysticism in the secular character of the State. Secularism is neither anti-God nor Pro-God, it treats alike 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."
In S.R Bommai v Union of India, The SC has held that " secularism is a basic feature of the Indian Constitution. The State treats equally all religions and religious denominations. Religion is a matter of individual faith and cannot be mixed with secular activities. Secular activities can be regulated by the State by enacting a law. Justice Ramaswami observed that secularism is not anti-God. In the Indian context secularism has a positive content. The Indian Constitution embodies the positive concept of secularism and has not accepted the American doctrine of secularism i.e., the concept of erecting "a wall of separation between religion and State". The concept of positive secularism separates spiritualism with individual faith. The State is neither anti-religion nor pro-religion. In the matter of religion, the State is neutral and treats every religion equally.
Sanskrit language not anti-secular - In Santosh Kumar v. Secy. Ministry of Human resources Development, the SC has held that introduction of Sanskrit language as a subject in the Central Board of Secondary Education(CBSE) is not against secularism" as it is the "mother of all Aryan languages". The Court directed the CBSE to make necessary amendments in the syllabus within 3 months to make Sanskrit an elective subject for nurturing our cultural heritage.
Secularism means developing, understanding and respect for different religions - In Aruna Roy v. Union of India, The validity of new National Education Policy, 2002 which provided for value based education to school children based on basis of all religions was challenged as violative of article 28 and anti-secular. The Court held that study of religions in school education is not against the secular philosophy of the Constitution. Justice Dharmaadhikari said that from the experience of the working of Constitution for more than 50 years it is clear that the complete nuterality towards religion and apathy for all kinds of religious teachings in institutions of the State have not helped in removing mutual misunderstanding and intolerance inter se between sections of the people of different religions, faiths, and beliefs. Secularism therefore is susceptible to positive meaning that is developing, understanding and respect towards different religions. The essence of secularism is not discrimination of people by the state on the basis of religious differences. Secularism can be practiced by adopting a complete neutral approach towards the relations of five positive approach by making one section of religious people to understand and respect religion and faith of another section of people. based on such mutual understanding and respect for each others religious faith, mutual distrust and intolerance can gradually be eliminated.
His lordship quoted Gandhiji who said the real meaning of secularism is Sarva Dharma Sambhav meaning equal treatment and respect for all religions. But we have misunderstood the meaning of secularism as Sarva Dharma Abhav meaning negation of all religions. In a society wedded to secularism 'study of religions' would strengthen the concept of secularism in its true spirit. In the name of secularism, one should not keep oneself aloof from such great treasures of knowledge which have been left behind by sages, saints and seers. How can we develop cultured human beings of moral character without teaching them from childhood the fundamental and spiritual values quoting from Vinoba Sahitya, his Lordship declared.
Freedom of religion in India : Article 25(1) guarantees to every person the freedom of conscience and the right to profess, practise and propagate religion. This right is not an absolute right. This right is, subject to public order, morality and health and to the other provisions of part III of the Constitution. Also, under sub-clauses (2) of Articles 25 the State is empowered by law-
(a) to regulate or restrict any economic, financial, political or other secular activity which may be associated with religious practices;
(b) to provide for (i) social welfare and reform, and (ii) to throw open Hindu religious institutions of a public character to all clauses and sections of Hindus.
What is Religion - The term 'Religion' is not defined in the Constitution and indeed it is a term which is hardly susceptible to any rigid definition. The Supreme Court has defined it broadly. Religion is a matter of faith with individuals or communities it is not necessarily theistic. A religion has its basis in "a system of beliefs or doctrines which are regarded by those who profess that religion as conducive to their spiritual well being ", but it will not be correct to say that religion is nothing else but a doctrine of belief. Religion is essentially a matter of personal faith and belief.
Under Art. 25(1) a person has a two-fold freedom :-
(a) Freedom of conscience;
(b) Freedom to profess, practice and propagate religion.
The freedom of 'conscience' is absolute inner freedom of the citizen to mould his own relation with God in whatever manner he likes. When this freedom becomes articulate and expressed in outward form it is 'to profess and practise religion'.
To 'profess' a religion means to declare freely and openly one's faith and belief.
To 'practice' religion is to perform the prescribed religious duties, rites and rituals, and to exhibit his religious beliefs and ideas by such acts prescribed by religious order in which he believes.
To 'propagate' means to spread and publicize his religious view for the edification of others.
National Anthem Case : In national Anthem case, Three children belonging to the Christian community were expelled from the school for refusing to sing the National Anthem. They challenged the validity of their expulsion on the ground that it was violative of their fundamental right under Article 25(1). The Kerala High Court held that it was their fundamental duty under Constitution to sing the National Anthem. It held that if the pupil belonging to the religious group refused to participate in the singing of the National Anthem it would have a very bad influence on the other pupils.
On appeal, the supreme Court reversed the HC decision and held - No person can be compelled to sing the National Anthem "if he has genuine, conscientious religion objection". There is no legal obligation in India for a citizen to sing the National Anthem. The right under Art. 25(1) cannot be regulated by executive instructions which had no force of law. By standing up while the National Anthem was being sung the children had shown proper respect to the National Anthem and had thus not violated the fundamental duties laid down in Article 51-A of the Constitution. Their conduct did not amount to an offence under the Prevention of Insults of National Honour Act, 1971 as they did not prevent the singing of the National Anthem. Accordingly, the Court directed the authorities to readmit the children in the school and to allow them to pursue their study.
In Shayra Bano v Union of India, the Supreme Court declared Triple-Talaq or Talaq-e-biddat being an instant and irrevocable unconstitutional. Talaq-e-biddat is a kind of Talaq effected by one definitive pronouncement of 'Talaq' such as 'I Talaq you irrevocably' - three times.
The Court held that it is something innovative not in Sunna, being an irregular or heretical form of Talaq recongnised by Hanafi school of Shariat law which itself states that though lawful it is sinful in that it occurs the wrath of God. Triple Talaq or Talaq-e-biddat is manifestly arbitrary and violative of Article- 14(equality before the law or equal protection of the laws) of the Constitution in the sense that the marital tie can be broken capriciously(mann-mauji) and whimsically by a Muslim man without any attempt or reconciliation to save it. Section 2 of the Muslim Personal Law Shariat (Application) Act, 1937 which recognises and enforces Triple Talaq is law in force within the meaning of Article 13(3)(b) and hit by Article 13(1) and is void to the extent it recognized Triple Talaq. Triple Talaq is against the basic tenets of holy Qur'an and consequently, it violates Shariat. it forms no part of Article 25(1) of the Constitution. the court held that the view of Privy council in Rashid Ahmad v. Anisa Khatun which had held - Triple Talaq valid even if not for a reasonable cause no longer good law and relied on Shannon Ara v. State of U.P.
Restrictions on Freedom of Religion
(1) Religious liberty subject to public order, morality and health - In the name of religion no act can be done against public order, morality and health of the public. Thus Section 34 of the Police Act prohibits the slaughter of cattle or indecent exposure one's person in a public place. These acts cannot be justified on plea of practice of religious rites. Likewise, in the name of Religion 'untouchability or traffic in human beings' e.g., system of Devadasis (as prevalent in South India) cannot be tolerated. This freedom is also subject to the "other provisions of this part", e.g., right to freedom of speech and expression, freedom of assembly and association, freedom to carry on a profession, trade and business. The rights are subject to the reasonable restrictions under clause (2) of Art. 19.
Right to propagate one's religion does not give right to any one to "forcibly" convert any person to one's own religion. Forcible conversion of any person to one's own religion might disturb the public order hence could be prohibited by law.
Tandav dance in procession by Ananda Margis - In Acharya Jagdishwarananda Avadhuta v. Commissioner of Police, Calcutta, (Popularly known as Anand Marga case) the Supreme Court held that "Tandava dance in possession or at public places by Anada Margis carrying lethal weapons and human skulls was not an essential religious rites of the followers of Anada Marga and hence the order under section 144 Cr.P.C. Prohibiting such procession in the interest of 'public' order and 'morality' was not violative of the rights of petitioners under Arts. 25 and 26 of the Constitution. Ananda Margis is not separate religion but basically subscribes to the fundamental notions of Hindu religion and Philosophy. But it is certainly a religious denomination within the meaning of Art. 26. Ananda Margis as a religious order is of recent origin and Tandava dance is prescribed a religious rites of that order is still more recent. Even accepting that Tandava dance is prescribed a religious rite for every follower of Ananda Margis it does not necessarily imply that they have right to perform it in public places. The order under Section 144 did not ban procession or gatherings at public places even by Anand Margis. It only prohibits carrying of draggers, 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) - The freedom to practice extends only to those activities which are the essence of religion. It does not cover secular activities which do not form the essence of religion. It is not always easy to say which activities fall under religious practice or which are of secular, commercial or political nature associated with religious practice each case must be judged by its own facts and circumstances.
(3) Social welfare and Social reforms - Clause (2)(b) - Under Clause (2)(b) of Art. 25 the state is empowered to make laws for social welfare and social reform. Thus under this clause the state can eradicate social practices and dogmas which stand in the path of the country's onwords progress. Such laws do not affect the essence of any religion. This clause declares that there is conflict between the need of social welfare and reform and religious practice, religion must yeild. Social evils cannot be practiced in the name of religion.
Right of Sikhs to were and carry kripans - the right of Sikhs to wear and carry Kripans is recognised as the religious practice in explanation 1 of article 25. This does not mean that he can keep any number of Kripans. He is entitled to keep one sword. He cannot process more than one trip on without a licence.
Hindu and Hindu religious institutions : explanation 2 of article 25 provides that the reference to Hindus shall be construed as including a reference to persons professing the Sikh, Jainism or Buddhist religion and reference to Hindu religious institution shall be construed accordingly.
Article 26 : Freedom to manage religious affairs - Article 26 says that subject to public order, morality and health every religious denomination of any section of it shall have the following rights :-
(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.
(d) to administer such property in accordance with law.
Religious denomination : The word 'religious denomination' in Article 26 must satisfy three conditions :
(1) It must be a collection of individuals who have a system of beliefs which they regard as conducive to their spiritual well-being, that is, a common faith;
(2) It must have a common organisation; and
(3) It must be designated by a distinctive name.
In Brahamchari Dishwasher Sahai v. State of West Bengal ., popularly known as Ramkrishna mission case, 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 organised themselves collectively and who have an organisation of definite name as ramakrishna Math or Mission can be decided as a religious denomination within Hindu religion as they satisfy the tests regarding a denomination as "religious denomination", and would 'therefore' be entitled to claim the fundamental rights conferred on a them under Article. 26 of the Constitution.
Article 27 : freedom from taxes for promotion of any particular religion - Article 27 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.
The reason underlying this provision is that India being a secular state and there being freedom of religion guaranteed by the Constitution both to individuals 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 here that what this Article prohibits is the levying of tax and not of fee.
Article 28 : Prohibition of religious instruction in State-aided Institution - According to Article 28(1) no religious instruction shall be imparted in any educational institution wholly maintained out of State funds. But this clause shall 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 institutions. Under Article 28(3) no person attending any educational institution recognized by state or receiving aid out of State funds shall be required to take part in any religious instruction that may be imparted in such institutions or to attend religious worship that may be conducted in such institutions or to attend any religious worship that may be conducted in such institution or any premises attached thereto unless such person or if such person is a minor his guardian has given his consent thereto. Thus Article 28 mentions four types of educational institutions :
(a) Institutions wholly maintained by the State.
(b) Institutions recognized by the State.
(c) Institutions that are receiving aid out of the State fund.
(d) Institutions that are administered by that the State but are established under any trust or endowment.
Teaching of Guru Nanak - In D.A.V. College, Bhatinda v. State of Punjab, the validity of Section 4 of the Guru 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 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 the study of the life and teachings of Guru Nanak did not amount to religious instructions or promotion of any particular religion and, therefore, was constitutionally valid.
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