Secularism and the State's power to regulate secular activities associated with religion - Indian Constitutional Law - New Challenges

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1. Indian secularism
2. The text
3. The essential religious practices test
4. The recent cases
5. Religious fanaticism: hate speech, lynching and vigilantism
6. Comparative perspective
How this is examined

Cases checked to exist. Read the judgment before quoting a holding.

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.

The examinable core. “Explain the power of the State to regulate secular activities associated with religious activities” (April 2024). The answer turns on one textual line, Article 25(2)(a), and one judge-made test, essential religious practices. Show how the Court draws the line between religion and the secular, and why that line is contested.

1. Indian secularism

The word “secular” entered the Preamble only with the 42nd Amendment, 1976, but Kesavananda Bharati, 1973 INSC 91 and S.R. Bommai, 1994 INSC 111 treat secularism as a basic feature. Indian secularism is not a wall of separation. The State may fund religious educational institutions (Article 30), administer temple endowments, legislate social reform within religions (Article 25(2)(b)), and give religious minorities special protection. Rajeev Bhargava calls this principled distance: the State may engage with or keep away from religion depending on what equal citizenship and freedom require. Critics such as T.N. Madan and Ashis Nandy argued that a secularism imported from Europe sits uneasily with Indian religiosity; others argue that the State’s selective reform of Hindu law alone made its neutrality doubtful.

2. The text

Article 25(1): freedom of conscience and the right freely to profess, practise and propagate religion, subject to public order, morality, health and the other provisions of Part III.
Article 25(2)(a): nothing prevents the State from making any law regulating or restricting any economic, financial, political or other secular activity which may be associated with religious practice.
Article 25(2)(b): laws for social welfare and reform, or throwing open Hindu religious institutions of a public character to all classes and sections of Hindus.
Article 26: every religious denomination may manage its own affairs in matters of religion (26(b)), and own and administer property in accordance with law (26(c), (d)).
Articles 27 and 28: no tax for the promotion of a particular religion; no religious instruction in wholly State-funded institutions.

The structure is deliberate. Article 26(b) protects “matters of religion”, and Article 26(d) protects administration of property only “in accordance with law”. The secular side of religious institutions — finances, property, appointments of staff, sanitation, crowd control — is open to regulation.

3. The essential religious practices test

Commissioner, Hindu Religious Endowments, Madras v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt, 1954 INSC 26, AIR 1954 SC 282 is the foundation. Mukherjea J held that religion is not only a matter of belief but includes rituals, observances and modes of worship, and that what constitutes the essential part of a religion is to be determined primarily from the doctrines of that religion itself. Rules about offerings, ceremonies and the times of worship are matters of religion; the management of the property of a math is not. The Court upheld most of the Madras Hindu Religious and Charitable Endowments Act, 1951, striking down provisions that gave the Commissioner powers going beyond regulating secular matters.

The later cases moved from the religion’s own view towards the Court’s.

Ratilal Panachand Gandhi v. State of Bombay, 1954 INSC 31: regulation of the administration of trust property is a secular matter.
Sri Venkataramana Devaru v. State of Mysore, 1957 INSC 99: a temple-entry law under Article 25(2)(b) prevails over a denomination’s right under Article 26(b), though the denomination may keep certain ceremonies exclusive.
Durgah Committee, Ajmer v. Syed Hussain Ali, 1961 INSC 101: Gajendragadkar J cautioned that practices which are secular, or which spring from superstition, are not protected even if religious in form.
Seshammal v. State of Tamil Nadu, 1972 INSC 75: the appointment of an archaka is a secular act, so abolishing hereditary succession was valid; but the State cannot interfere with the rituals the archaka performs.
N. Adithayan v. Travancore Devaswom Board, 2002 INSC 425: a non-Malayala Brahmin trained in the rituals may be appointed priest; caste-based exclusion is not an essential practice.
S.P. Mittal v. Union of India, 1982 INSC 81: the Auroville (Emergency Provisions) Act, 1980 upheld; the Sri Aurobindo Society was not a religious denomination.
Ismail Faruqui v. Union of India, 1994 INSC 479: a mosque is not an essential part of the practice of Islam, so its land may be acquired, though the Court said this did not apply to a mosque of particular significance.
Bijoe Emmanuel v. State of Kerala, 1986 INSC 167: Jehovah’s Witness children could not be expelled for standing silently during the national anthem; sincerely held belief, not majority opinion, is the test of conscience.

4. The recent cases

Indian Young Lawyers Association v. State of Kerala, 2018 INSC 908: the majority held that devotees of Lord Ayyappa were not a separate denomination and that excluding women was not essential; Chandrachud J went further, invoking constitutional morality and Article 17. Indu Malhotra J dissented, holding that courts should not test the rationality of a religious practice at the instance of persons who are not its adherents. In 2019 a five-judge Bench referred broader questions on the essential practices test to a larger Bench.
Aishat Shifa v. State of Karnataka, 2022 INSC 1085: the Karnataka order permitting colleges to bar the hijab in classrooms produced a split. Hemant Gupta J upheld it; Sudhanshu Dhulia J held that the essential practices inquiry was unnecessary because the claim rested on choice, conscience and the right to education. The matter was placed before the Chief Justice for a larger Bench.
In re: the Waqf (Amendment) Act, 2025, 2025 INSC 1116: on interim applications the Court declined to stay the Act as a whole but stayed some of its provisions pending final hearing. The challenge is the current test of how far administration of religious endowments under Article 26(d) may be regulated as a secular activity.

The critique of the test. The essential practices test requires judges to act as theologians, deciding what a religion really requires. Writers such as Rajeev Dhavan and Gautam Bhatia argue that the text of Article 25(1) already supplies the limits (public order, morality, health, other rights), and that the court should accept a sincere claim of religious practice and then ask whether the restriction is justified, rather than decide what is “essential”. Defenders reply that without the test every practice could claim protection, and that it lets the State pursue reform consistent with Article 25(2).

5. Religious fanaticism: hate speech, lynching and vigilantism

The syllabus pairs secularism with religious fanaticism. A secular State must do more than keep its distance from religion; it must protect citizens from violence and intimidation in religion’s name. The criminal law was rearranged by the BNS in 2024 but its substance is the same: promoting enmity between groups (formerly section 153A IPC), deliberate and malicious acts intended to outrage religious feelings (formerly section 295A), and statements conducing to public mischief (formerly section 505). The BNS also made murder by a group of five or more on grounds such as religion, race or caste a distinct aggravated form of murder.

Ramji Lal Modi v. State of U.P., 1957 INSC 32: the offence of outraging religious feelings is valid because it punishes only the aggravated form of insult, made with deliberate and malicious intent, which has a tendency to disturb public order.
Pravasi Bhalai Sangathan v. Union of India, 2014 INSC 183: the Court declined to frame guidelines on hate speech, holding that the existing law was adequate and the problem was its enforcement, and asked the Law Commission to examine the question. The Law Commission’s 267th Report (2017) proposed new offences of incitement to hatred.
Amish Devgan v. Union of India, 2020 INSC 682: hate speech is distinguished from offensive speech by its content, the intent of the speaker and the harm it is likely to cause; the status of the speaker matters, since a person with influence has a greater duty of care.
Tehseen S. Poonawalla v. Union of India, 2018 INSC 617: lynching and cow vigilantism were described as “mobocracy”. The Court issued preventive, remedial and punitive directions (nodal officers in each district, fast-track trials, compensation for victims) and recommended a special law.
Kodungallur Film Society v. Union of India, 2018 INSC 917: guidelines against destruction of property by protesting mobs, with liability on those who call the protest.
In the hate speech petitions heard from 2022 (Shaheen Abdulla v. Union of India), the Court directed the police to register cases on their own motion against hate speech, without waiting for a complaint, and warned that delay would be treated as contempt.

The secular link. In Bommai the Court treated a State government’s pursuit of a religious agenda as a ground for action under Article 356, and section 123(3) of the Representation of the People Act makes an appeal to religion for votes a corrupt practice (Abhiram Singh, 2017). Secularism therefore operates on three levels: the State’s neutrality, the regulation of electoral politics, and the criminal law against incitement. Internationally, Article 20(2) of the ICCPR requires States to prohibit advocacy of religious hatred that constitutes incitement to discrimination, hostility or violence, and the UN Rabat Plan of Action (2012) sets a threshold test (context, speaker, intent, content, extent and likelihood of harm). The United States protects even hateful advocacy unless it is directed to and likely to produce imminent lawless action (Brandenburg v. Ohio, 1969).

6. Comparative perspective

United States: the First Amendment’s Establishment and Free Exercise Clauses. Employment Division v. Smith (1990): neutral, generally applicable laws need not exempt religious practice. The Lemon v. Kurtzman (1971) test for establishment was abandoned in favour of history and tradition in Kennedy v. Bremerton School District (2022). US courts generally refuse to decide what a religion requires.
France: laïcité under the 1905 law separating Churches and the State; the 2004 law on conspicuous religious symbols in public schools.
European Convention: Article 9 freedom of religion; States have a wide margin of appreciation (Leyla Şahin v. Turkey, 2005; S.A.S. v. France, 2014 on the face-veil ban).

How this is examined

For the April 2024 question: begin with Indian secularism, set out Article 25(2)(a) and 26, then the cases in sequence, emphasising the secular/religious line (property, appointments, finances) and the essential practices test, then the critique and comparative point. The same note answers short notes on “secularism” and “essential religious practices”. For “secularism and religious fanaticism”, or a short note on hate speech or mob lynching, use section 5.