Articles 25 to 28: freedom of religion and secularism - Constitutional Law I

Check the judgment before you rely on this. Every case cited here has been checked to exist — the citation resolves and names the right parties. The propositions attributed to each case have not been verified line by line against the judgment. Case names link through to the full judgment: read it before quoting a holding in an examination answer, and never carry a proposition from notes into court on trust.

Secularism first. Questions on this group almost always want the Indian conception of secularism, which is not the American wall of separation. The State here is not irreligious and not anti-religious; it is equidistant from all religions, and may intervene in religious affairs for social reform. Article 25(2) is the proof of that.

1. Article 25: freedom of conscience and free profession, practice and propagation

Article 25(1) guarantees to all persons equally the freedom of conscience and the right freely to profess, practise and propagate religion, subject to public order, morality, health and to the other provisions of Part III.

Three verbs, each distinct. Profess is to declare one's faith openly. Practise is to perform the rituals and observances of the faith. Propagate is to transmit and disseminate one's beliefs — but it does not include a right to convert another person by force, fraud or allurement, which is the basis on which State anti-conversion laws have been upheld.

Article 25(2) preserves two State powers notwithstanding the guarantee:

25(2)(a) — regulating or restricting any economic, financial, political or other secular activity associated with religious practice;
25(2)(b) — providing for social welfare and reform, and throwing open Hindu religious institutions of a public character to all classes and sections of Hindus. Explanation II makes clear that references to Hindus include Sikhs, Jains and Buddhists.

Clause (2)(b) is the constitutional basis of temple-entry legislation and of much personal-law reform, and it is the clearest textual answer to any suggestion that Indian secularism requires the State to keep out of religion.

2. Article 26: freedom to manage religious affairs

Every religious denomination or section of it has the right, subject to public order, morality and health, to:

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

The distinction between clause (b) and clause (d) is the examinable point, and it comes from Commissioner, Hindu Religious Endowments, Madras v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt, 1954 INSC 26, AIR 1954 SC 282. The Court held:

“Religion” is not confined to belief; it includes rituals and observances, ceremonies and modes of worship regarded as integral parts of the religion.
What constitutes an essential part of a religion is to be determined with reference to the doctrines of that religion itself — the origin of the essential religious practices test.
Matters of religion under clause (b) are protected absolutely against State regulation, whereas the administration of property under clause (d) may be regulated by law.

The essential practices test is the tool courts use to decide whether a claimed practice attracts constitutional protection at all. It has been criticised for requiring judges to decide questions of theology, and that criticism is worth a sentence in a good answer.

3. Articles 27 and 28

Article 27 — no person shall be compelled to pay any tax the proceeds of which are specifically appropriated for the promotion or maintenance of any particular religion or denomination. The distinction between a tax and a fee matters: a fee levied for services rendered in regulating a religious institution is not hit by the Article.

Article 28 — on religious instruction in educational institutions, in four levels:

institutions wholly maintained out of State funds: no religious instruction at all;
institutions administered by the State but established under an endowment or trust requiring religious instruction: instruction permitted;
institutions recognised by the State or receiving State aid: instruction permitted, but no person may be compelled to attend without consent, and in the case of a minor, the consent of the guardian.

4. The limits on religious freedom

The rights in Articles 25 and 26 are expressly subject to public order, morality and health, and Article 25 is additionally subject to the other provisions of Part III. That last phrase is significant: a religious practice that offends Article 14, 15 or 17 cannot claim protection. It is the textual route by which practices excluding or subordinating persons on grounds of caste or sex have been examined.

Bijoe Emmanuel v. State of Kerala, 1986 INSC 167, (1986) 3 SCC 615, shows the protection working. Three children of Jehovah's Witnesses were expelled for declining to sing the national anthem, though they stood respectfully. The Court held the expulsion violated Articles 19(1)(a) and 25: there was no law compelling them to sing, and their refusal was based on genuine conscientious religious belief. The often-quoted line is that our tradition teaches tolerance, our philosophy preaches tolerance, our Constitution practises tolerance — let us not dilute it.

5. Secularism as a basic feature

The word secular was inserted into the Preamble by the Forty-second Amendment, 1976, but the concept was held to be inherent in the Constitution long before. In S.R. Bommai v. Union of India, 1994 INSC 111, (1994) 3 SCC 1, the Court held secularism to be part of the basic structure, and that a State government acting against secular principles could properly attract action under Article 356.

Indian secularism, as the cases describe it, has these features: the State has no religion of its own; it treats all religions equally rather than ignoring them; it may regulate secular activity associated with religion; and it may intervene for social reform under Article 25(2)(b). This is sarva dharma sambhava rather than a wall of separation.

How this is examined

Frequently, and usually as an essay: discuss the freedom of religion under the Constitution and the restrictions on it, or explain the concept of secularism under the Indian Constitution. Short notes appear on Article 27, Article 28, the essential religious practices test, or the right to propagate.

For the essay, give the four Articles in order with their clauses, then the essential practices test from Shirur Mutt, then the limits including the “other provisions of Part III” phrase, then Bommai for secularism as a basic feature. Close by distinguishing Indian secularism from the American model — that comparison is what separates a good answer from a merely complete one.

Now go and read the questions themselves: Constitutional Law I past question papers.