Article 25-28 ~ UPSC Polity Notes

Article 25

Freedom of conscience and free profession, practice, and propagation of religion

Article 25 guarantees the freedom of conscience, the freedom to profess, practice, and propagate religion to all citizens. Article 25 (1) guarantees to every person “subject to public order, morality and health and to the other provisions of Part III of the Constitution the freedom of conscience and the right to profess, practise and propagate religion”.

Article 25 (2) provides that: Nothing in this article shall affect the operation of any existing law or prevent the State from making any law-

Regulating or restricting any economic, financial, political or other secular activity which may be associated with religious practice.
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.

Definition of Religion

The term ‘religion’ is not defined in the Constitution and indeed it is a term which is hardly susceptible to any rigid definition.
Under Article 25(1) a person has a two-fold freedom:

Freedom of conscience: The Freedom of ‘conscience’ is absolute inner freedom of the citizen to mould his own relation with God in whatever manner he likes. When his freedom becomes articulate and expressed in outward form, it is ‘to profess and practice religion’.
Freedom to profess, practise and propagate religion:
To ‘profess’ a religion means to declare freely and openly one’s faith and belief. He has the right to practice his belief by practical expression in any manner he likes.
To ‘practice’ religion is to perform the prescribed religious duties, rites and rituals, and to exhibit his religious beliefs and ideas by such acts as prescribed by religious order in which he believes.
To ‘propagate’ means to spread and publicise his religious view for the edification of others. But the word ‘propagation’ only indicates persuasion and exposition without any element of coercion. The right to propagate one’s religion does not give a right to convert any person to one’s own religion. There is no fundamental right to convert any person to one’s own religion.

Case Laws

Acquisition of place of worship

In M. Siddiq vs Mahant Suresh Das, the Court held by a majority of 2:1 held that questionable observations made by the Constitutional Bench in Dr. M. Ismail Faruqui vs Union of India, that ‘Mosque is not essential part of practice of religion of Islam and namaz (prayer) by Muslims can be offered anywhere, even in open’ were made in context of land acquisition. Those observations were neither relevant for deciding the suits nor relevant for deciding the appeals for a quite long time.

Abolition of Triple Talaq

Shayara Bano, a 35-year-old woman, challenged the practice after getting divorced under the triple talaq custom. In 2017, the Supreme Court, in a landmark 3-2 verdict, had struck down instant triple talaq.
Triple Talaq is against the basic tenets of holy Quran and consequently, it violates Shariat.
It forms no part of Article 25 (1) of the Constitution.

Restrictions on Freedom of Religion

Religious liberty subject to public order, morality and health
- In Acharya Jagdishwaranand Avadhuta vs Commissioner of Police, Calcutta, 1984 case, . The SC held that “Tandava dance in procession or at public places by Ananda Margis carrying lethal weapons and human skulls is not an essential religious rite of the followers of Anand Marga and hence the order under Section 144, Cr.P.C. prohibiting such procession in the interest of ‘public’ order and ‘morality’ is not violative of the rights of petitioners under Article 25 and 26 of Constitution.
Regulation of economic, financial, political and secular activities associated with religious practices
- In Mohd. Hanif Quareshi vs State of Bihar, 1958 case, the Supreme Court held that the sacrifice of cows on the Bakrid day was not an essential part of Mohammedan religion and hence, could be prohibited by the State under clause (2)(a) of Article 25.
Social Welfare and Social Reforms
- Under Clause (2)(b) of Article 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 onward progress.
- Right to Sikhs to wear and carry Kirpans: The right of Sikhs to wear and carry kirpans is recognised practice of Article 25. This does not mean that he can keep any number of kirpans. He is entitled to keep one sword. He cannot possess more than one Kirpan without a licence.

Article 26

(Freedom to manage religious affairs)

It provides that subject to public order, morality, and health every religious denomination or any section thereof shall have the right-

To establish and maintain institutions for religious and charitable purposes.
To manage its own affairs in matters of religion
To own and acquire movable and immovable property.
To administer such property in accordance with law

The relation between article 25 and 26

Initially, it appeared that article 26 is not subject to the restrictions of article 25. But in the case of Sri Venkataramana Devaruand Ors. v. The State of Mysore & Ors, the court declared that article 25(2) has a wider scope of application. And article 26 is subject to the restrictions of article 25. Analysis of article 26

This article includes denomination of any religion, whether it is a majority or a minority religion.
It does not deal with the rights of individual rather it deals with the rights of religious denominations.
The state cannot interfere in the matters of the religion of denominations subject to the grounds provided in article 25(2) (b).
But the state can interfere in the secular activities of the religious denominations and organizations.

Religious Denomination meaning:

In simple words, it means” collection of individuals, classed together under the same name” generally a religious sect or body having a common faith and organisation and designated by a distinctive value.
Indian Constitution does not specify religious denominations, court decisions must be consulted to determine what constitutes a religious denomination.
In SP Mittal v. Union of India, the Supreme Court established three standards that a religious group must meet:
- A group of people who share a shared faith.
- A common structure.
- A distinct name is used for identification.

Examples of religious denomination: Shaivism, Shaktism, Vaishnavism, in Hinduism and Shia and Sunni in Islam.

Right to establish and maintain institutions for religious and charitable purpose 26 (a)

The words ‘establish and maintain’ in Article 26 (a) must be read together and, therefore, it is only those institutions which a religious denomination establishes which claim to maintain it.
The right under Article 26 (a) is a group right and is available to every religious denomination, minority as well as majority communities.
The right to maintain an institution for religious and charitable purposes includes the right to exclude the profession or practices belonging to the other religions.

Right to manage ‘matters of Religion’ 26 (b)

It means the State cannot interfere in the exercise of this unless they run counter to public order, health or morality. Accordingly, every religious denomination or organisation enjoys complete freedom in the matters of deciding what rites and ceremonies are essential according to the tenets of the religion they hold. The Court has the right to determine whether a particular rite or ceremony is regarded as essential by the tenets of a particular religion.
Issue of Excommunication: Bombay Prevention of excommunication act defined Excommunication as the “expulsion of a person from any community of which he is a member, depriving him of rights and privileges which are legally enforceable by a suit of civil nature”. In practical terms, excommunication means not being allowed to access a mosque belonging to the community or a burial dedicated to the community. A member of the Dawoodi Bohra community filed a suit in 1949, saying the Act rendered certain orders passed by their leader unlawful. The 51st leader of the community, Sardar Syedna Taher Saifuddin Saheb, challenged the constitutional validity of the Act, stating it violated fundamental rights guaranteed by the Constitution under Articles 25 (Freedom of conscience and free profession, practice and propagation of religion) and 26 (Freedom to manage religious affairs).

About the case:

Petitioner said Quran does not permit excommunication, and that it goes against the spirit of Islam. They submitted that the right to regulate religious communities does not include the right to excommunicate.
However, another party said that the practice of excommunicate was essential to the Dawoodi Bohra faith. Actually, another party was of the view that power of excommunication was part of the management of community affairs in matters of religion, and depriving the Dai (leader) of the right and making its exercise a penal offence “struck at the very life of the denomination
SC in Sardar Syedna Saifuddin v. State of Bombay said: Dai’s (Leader) position is an essential part of the community and the power to excommunicate is to enforce discipline and preserve the denomination, not to punish.

Resurfacing of the matter

The Maharashtra Protection of People from Social Boycott (Prevention, Prohibition and Redressal) Act, 2016, was passed. The Act describes a social boycott as “inhuman”, and defines 16 types of social boycott — including preventing members of a community from having access to facilities including community halls, burial grounds, etc. In October 2022, the court said that it would consider whether the practice of excommunication that was protected by the 1962 order can continue.

So, now the court will see the issue mainly on two grounds:

Balancing the rights under Article 26(b) — right of religious denominations to manage their own affairs in matters of religion.
Whether the practice can be protected under Article 26(b) when tested on the touchstone of constitutional morality.
The Haji Ali Dargah Trust Issue
- The trust barred women from entering the sanctum sanctorum, the Bombay High Court lifted the ban, saying it contravenes the Constitution and women should be allowed entry “at par with men”. The ban imposed by the dargah trust, prohibiting women from entering the sanctum sanctorum of the Haji Ali Dargah, contravenes Articles 14 (equality before law), 15 (prohibition of discrimination on grounds of religion, race, caste, sex or place of birth) and 25 (free profession and practice and propagation of religion) of the Constitution.
- The trust had claimed the fundamental right “to manage its own affairs” under Article 26 of the Constitution. The court, however, said the right cannot “override the right to practice religion itself”, as Article 26 cannot be seen to overrule the right to practice one’s religion as guaranteed under the Constitution of India.
- The Haji Ali Dargah Trust is a public charitable trust. It is open to people all over the world, irrespective of their caste, creed or sex, etc. Once a public character is attached to a place of worship, all the rigors of Articles 14, 15 and 25 would come into play and the trust cannot justify its decision solely based on a misreading of Article 26.

Right to administer property owned by denomination 26 (c) & (d)

Clause (c) of Article 26 secures to a religious denomination or any section of the right to own and acquire movable and immovable property”, Clause (d) further strengthens this right by guaranteeing to the denomination e right to administer such property in accordance with law” The right contained in Clause (c) of Article 26 is distinguishable from the guarantee contained in Clause (b) relating to management of religious affairs. While Article 26(b) guarantees a fundamental right which cannot be taken away except on grounds mentioned in Article 25(2), the right contained in Article 26(c) can be regulated by a law made by a competent Legislature.
The UP-Sri Kashi Vishwanath Temple Act, 1988, provided for vesting the entire property, movable and immovable, in the deity Shri Kashi Vishwanath and the administration and management of was entrusted to a Board. The Allahabad High Court in Trivikram Narain Singh v. State of U.P. held the Act valid.
It may be noted that Articles 26(c) and 26(d) do not create rights, in any denomination or its section, they merely safeguard and guarantee the continuance of rights which such denomination or its section had However, a law which takes away the right of administration altogether from the religious denomination and vests it in some secular authority, would be violative of the guarantee contained in Article 26(d).
Likewise In Dr. M. Ismail Faruqui vs. Union of India, the Supreme Court was dealing with the question of acquisition of the religious property by the State. In this case, the Supreme Court stated that under article 26 mosque, temple and churches are immovable properties and it is not an essential component of religions; thus, the state can acquire immovable properties.

Limitation of the Right

The rights conferred by Article 26 are subject to the limitation as prescribed under Article 26 of the Constitution and not subject to any other provision of Part III of the Constitution

Article 27

(Freedom from taxes for promotion of any particular religion)

It provides that no person shall be compelled to pay any taxes, for the promotion or maintenance of any particular religion or religious denomination. This article emphasises 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 that Article 27 prohibits the levy of tax, not the imposition of Fees.

Article 28

(Prohibition of Religious Instruction in State-aided Institution)

It states that.

No religious instruction shall be provided in any educational institution wholly maintained out of State funds.
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.
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 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 minor, his guardian has given his consent thereto.

Thus, Article 28 mentions four types of educational institutions:

Institutions wholly maintained by the state.
Institutions recognised 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.

In the Institutions of (a) type no religious instructions can be imparted. In (b) and (c) type institutions, religious instructions may be imparted only with the consent of the individuals. In the (d) type institution, there is no restriction on religious instructions.

In Aruna Roy vs. Union of India, the Apex Court held that Article 28(1) did not prohibit education of religion dissociated from “tenets, the rituals, observances, ceremonies and modes of worship of a particular sect or denomination.” The Court distinguished between “religious instructions” and of religion.” What is prohibited is the former and not the latter. The court also held “Students should be acquainted with basics of all religions, the values inherited therein and also a comparative study of philosophy of all religions”, neither offends Article 28 nor brings secularism to peril.”