Critical Analysis Of Article 25 And 26 Of The Indian Constitution.docx

Critical Analysis of Article 25 and 26 of the Indian Constitution Introduction India is a multi-religious society and the survival of such a general public has been conceivable just it, all religions are given equivalent treatment with no support or separation. One of the rights ensured by the Indian Constitution is the privilege of Freedom of Religion. As a secular country, each national of India has the privilege to the opportunity of religion, i.e. ideal to take after any religion. As one can discover such many religions being practiced in India, the Constitution assurances to each national the freedom to take their preferred religion. As per this essential right, every citizen has the chance to practice and spread their religion peacefully. What’s more, if any occurrence of religious narrow mindedness happens in India, it is the obligation of the Indian government to check these frequencies and take strict activities against it. The right to freedom of religion is all around depicted in the Articles 25, 26, 27 and 28 of Indian constitution. Judicial Perception of the Right to Freedom of Religion The expression “religion” has not been characterized in the Constitution and it is not helpless of any unbending definition. The Supreme Court has characterized it in several cases. A religion is positively a matter of confidence and is not really mystical. Religion has its premise in “an arrangement of the convictions or conventions which are respected by the individuals who pronounce that religion as helpful for their profound prosperity”, however, it would not be right to state that religion is nothing else except for a teaching or conviction. A religion may not just set out a code of moral principles for its devotees to acknowledge, it may endorse customs and observances, services and methods of love which are viewed as a fundamental piece of religion and these structures and observances may degree even to issues of sustenance and dress. Subject to specific confinements, Article 25 presents a major ideal for everyone, not only to engage such religious convictions as might be affirmed by his judgment or soul yet, in addition, display his convictions and thoughts by such unmistakable acts and practices which are authorized by his religion. Presently what rehearses are secured under the Article is to be chosen by the courts regarding the convention of a specific religion and incorporate practices viewed by the group as a feature of its religion. The courts have gone into religious sacred texts to find out the status of a training in question. In various cases, the courts have remarked upon, clarified a translated the arrangements of the Constitution on uninformed, non-separation, and religious opportunity. The choices in the greater part of these cases have been given is the settings of the privileges of specific religious groups or under spend; laws identifying with such groups. A brief on real choices takes after. The right to “freedom of religion” is contained in Articles 25 to 28 of the Indian Constitution. Various rights which go to constitute the “right to freedom of religion” are: A. Freedom of conscience and right to freely profess, practice and propagate religion (Article 25); B. Right of a religious denomination to manage religious affairs (Article 26); C. Freedom from payment of taxes for promotion of any particular religion (Article 27); and D. Freedom from attendance at religious instructions in certain educational institutions (Article 28). Articles 25 to 28 use the term “person”. Therefore, freedom of religion is secured, is available to every person, citizens or non-citizens or aliens.1

1

Ratilal Panachand Gandhi v. State of Bombay, AIR 1954 SC 388

Freedom of Religion Defining Religion The term religion is not defined in the Constitution. It is not susceptible of any rigid definition. In Commissioner, H.R.E. v. L.T. Swamiar2, the Supreme Court explained: Religion is a matter of faith with individuals or communities and it is not necessarily theistic. There are well known religions in India like Buddhism and Jainism, which do not believe In God or in any Intelligent First Clause. A religion undoubtedly 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. It will not be correct to say that religion is nothing else but a doctrine or belief. A 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 these forms and observances might extend even to matters of food and dress. A religion is, therefore, not merely an opinion, doctrine or belief. It has its outward expression in acts as well. Religious practices or performance of acts in pursuance of religious belief, are as much a part of religion as faith or belief in particular doctrines.3 Religion is the belief which binds spiritual nature of men to super-natural being. It includes worship, belief, faith, devotion etc. and extends to rituals.4 It has also been said that the word religion in Articles 25 and 26 have to be understood not as is colloquially understood by the word religion, but in the sense of it comprehending our concept of dharma. Marking the difference between religion and dharma, Justice Hansaria explained in Narayana case that a “sectarian religion is open to a limited group of people whereas dharma embraces all and excludes none.” The learned Judge further said that the word religion in the Articles 25 and 26 had to be understood not in a narrow sectarian sense but encompassing out ethos of. In Lily Thomas v. Union of India5, the Supreme Court explained that religion was a matter of faith stemming from the depth of the heart and mind and that religion, faith and devotion were not easily interchangeable. The Court further said that if the person feigned to have adopted under religion just foe some worldly gain or benefit, it would be religious bigotry. Looked at from this angle, the Court ruled that a person who mockingly adopted another religion where plurality of marriage was permitted so as to renounce the previous marriage and desert the wife, he could not be permitted to take advantage of his exploitation, as religion was not a commodity to be exploited. Prosecution of the apostate-husband under Section 494 of IPC, 1860, did not violate freedom of religion, the Court held. Practices which are regarded by a religious community as part of its religion are also matters of religion. For instance, right to bury dead bodies in a particular manner with particular rites in consecrated places is part and parcel of certain religions Where members of certain denomination had existing right to cremate dead bodies of their near and dear ones on plot allotted to them, denial of that right would amount to abridgement of their fundamental right to freedom of religion. So ruled, the Gauhati High Court in Worter Kharmalki v. State of Meghalaya, held that the petitioner had the right to freedom of religion to cremate dead

2

AIR 1954 SC 282 Ratilal v. State of Bombay, AIR SC 388 4 P.M.A. Metropolitan v. Moran Mar Marthoma, AIR SC 2001 5 AIR 2000 SC 1650 3

bodies of their near and dear ones on plot allotted to them. However, it was found to be undesirable and was resulting in polluting the atmosphere, the authorities would be under a duty to provide them adequate cremation ground. Freedom of conscience and right to profess, practice and propagate religion Article 25(1) provides: “Subject to public order, morality and health and to the other provisions of this part, all persons are equally entitled to freedom of conscience and the right freely to profess, practice and propagate religion.” Therefore, this Clause secures to every person(a) Freedom of conscience; and (b) The right toi. Profess religion; ii. Practice religion; and iii. Propagate religion. (A) Freedom of Conscience The expression “freedom of conscience” means the inner freedom of a person to mould his relations with his God in whatever manners he likes. It connotes a person’s right to entertain beliefs and doctrines concerning matters which are regarded by him to be conducive to his spiritual well-being. Every person in India therefore, has the freedom to have faith and belief in religious tenets of any sector community. “Freedom of conscience”, simply speaking, means the freedom to entertain religious beliefs. Any belief which is genuinely and conscientiously held, attracts the protection of Article 25(1). It means the freedom of religious opinion, the right to hold or to entertain religious beliefs as may be approved by his judgment or conscience. Until this inner belief is expressed in any outward form, it is merely the “freedom of conscience.” Freedom of conscience has no necessary connection with any particular religion or of any faith in God. It also implies the right of a person not to be converted into another man’s religion or to bring to any religion at all. B

(i) Right to Profess Religion

Article 25(1) guarantees the right to profess religion. To “profess” means to avow publicity; to make an open declaration of; to declare one’s belief in; as to profess Christ; to accept into religious order. Thus, to profess a particular religion means to declare freely and openly one’s faith or belief in. when the inner “freedom of conscience” becomes articulate and expressed in an outward form, it amounts to profess religion. It is to declare one’s belief in such a way that it would be known to those whom it may concern.6 B

(ii) Right to Practice Religion

To practice religion means to perform religious duties, rites or rituals. The protection is, thus, not limited to matters of doctrine but extends to rituals and observances. The expression “practice of religion” signifies acts done in pursuance of religious belief. The guarantee contained in Article 25(1), not only, protects the freedom of religious opinion, but it also protects acts done in pursuance of a 6

Punjab Rao v. D.P. Meshram, AIR 1965 SC 1179

religion. To enable a person to practice the beliefs and opinions which he holds, in a meaningful manner, it is essential for him to receive the relevant information, otherwise, he may be prevented from acting in consonance with his beliefs and opinions. While offering of prayer or worship is a religious practice, its offering at every location where such prayers can be offered, would not be an essential or integral part of such religious practice and not protected under Article 25.7 Practices which constitute integral and essential part of religious practice Religious practices to which Article 25(1) refers, includes practices which are an integral part of the religion itself, i.e., the beliefs and doctrines which are regarded by those who profess religion, to be conducive to their spiritual well-being. The integral or essential part of a religion is primarily to be ascertained with reference to the doctrines of that religion itself. For example, for Hindus, these may include offerings of food to the idol; performance of periodical ceremonies; recital of sacred texts; offering oblations to the sacred fire. For Sikhs, the wearing of kara,8 the wearing and carrying of Kripans, recital of Holy Guru Granth Sahib are the integral part of their religion. For Muslims, calling Azan, performance of Hajj, are some of the integral practices in their religion. B

(iii) Right of Propagation of Religion

To propagate religion, means to spread and publicize one’s religious views. Holding public meetings by persons for propagating their religion is held to be guaranteed under Article 25(1). But to propagate religion indicates persuasion and exposition without any element of coercion. It does not include the right to insult the religion of others. Azan given by the Imam or the person in charge of the Mosques, though an essential and integral part of Islam, but, not a form of propagation. In P.M.A. Metropolitan v. Moran Mar Marthoma,9 the Supreme Court held that the right to practice and propagate religion includes the right to ex-communicate the person belonging to that religion. The Court said all religious bodies were regarded by the courts of law in the same position in respect of the protection of their rights and the sanction given to their respective organizations. That, discipline of a Church, however could not affect any person except by express sanction of the civil power or by voluntary submission of the particular person. The Court said that one of the effects of ex-communication was that the person concerned was deprived of the right of worship. It was, under our Constitution, a fundamental right. Therefore, the Court said that any interference with this right or its deprivation could be challenged in the court of law. Freedom of Religion of Religious Denominations Article 26 provides: “subject to public order, morality and health every religious denomination or any section thereof shall have the righta) b) c) d)

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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; and To administer such property in accordance with law.”

M. Ismail Faruqui v. Union Of India 1995 SC 605 Surjeet Singh Chhabra v. Union of India, AIR 1997 SC 2560 9 AIR 1995 SC 2001 8

It may be noted that Article 25 is available to all persons while Article 26 is confined to religious denominations. Meaning of religious denomination The word “denomination” has been defined in the Oxford Dictionary to mean “a collection of individuals classed together under the same name: a religious sect or body having a common faith and organisation and designated by distinctive name.” a religion can have several sects or sub-sects and each one of them can certainly be called a religious denomination. While dealing with “religious denomination”, the Andhra Pradesh High Court held that it was the distinct common faith and common spiritual organisation and the belief in a particular religious teacher of philosophy on which the religious denomination was founded or based, that was the essence of the matter; but not any caste or sub-caste or a particular deity worshipped by a particular caste or community.10 It was held in S.P. Mittal v. Union of India,11 that the words religious denomination take their color from the word religion and must satisfy three conditions: a) It must be a collection of individuals who have a system of beliefs or doctrines which they regard as conducive to their well being, that is, a common faith; b) Common organisation; and c) Designation by a distinct name. In this case, the Supreme Court on a consideration of Association, income tax particulars and other teachings or writings concluded that neither the Aurobindo Society nor Auroville constitute a religious denomination. The teachings of Shri Aurobindo only represent his philosophy and is not a religion. A judicial view has been expressed that followers of the Hindu religion, as such, even though numerous and divided into many sects and sub-sects, can be regarded as a ‘religious denomination’, for if it were not so, then while an institution belonging to a sect or a sub-sect of Hindus would get the protection of Art. 26, an institution belonging to the Hindus generally would be deprived of that protection. The term denomination can be used in a larger or narrower sense depending on the context, and therefore, all the followers of a religion may quite appropriately be regarded as constituting a religious denomination.12 The benefit of Article 26 is not confined to minority groups only. Sikhs, though in majority in Punjab, constitute a ‘religious denomination’ and can thus, take the benefit of this Article. It has been explained that for a community to be a religious denomination, the common faith of the community, should be based on religion and in that they should have common religious tenets and the basic cord, and the basic cord which connects them, should be religion and not merely considerations of caste or community or societal status. So said, the Apex Court in Nellor Marthandam Vellalar v. Commissioner Hindu Religious and Charitable Endowments,13 ruled that Vellala Community could not be said to be a religious denomination so as to seek the protection under Article 26. An expansive opinion was expressed by an eleven-Judge Bench in T.M.A.Pai Foundation v. State of Karnataka,14 in respect of Article 26(a) when it said:

10

Ramalingayya v. Commissioner, C & HRE, ILR (1971) Andh Pra 320 AIR 1983 SC 19 12 Ramchandra v. State of Orissa AIR 1959 Ori 5 13 AIR 2003 SC 4225 14 2002 8 SC 481: AIR 2003 SC 355 11

“The right to establish and maintain educational institutions may also be sourced to Article 26(a), which grants, in positive terms, the right to every religious denomination or any section thereof to establish and maintain institutions for religious and charitable purposes, subject to public order, morality and health.” (A) Right to Establish and Maintain Institutions [Article 26(a)] In Article 26(a), the words ‘establish and maintain’ go hand in hand. It means, therefore, that where an institution has been established by a religious denomination, then it can claim the right to maintain the same as well. The right to ‘maintain’ an institution includes the right to ‘administer’ as well. A denomination has no right to maintain an institution which has not been established by it. The words ‘establish’ and ‘maintain’ must be read conjunctively. A religious denomination can claim to maintain only those institutions which it has established. The right under this Article is a group right and is available to every religious denomination or any section thereof, be it of majority or any section thereof. In Aneez Basha v. Union of India,15 the Aligarh University was established by the Central Government under the Aligarh Muslim University Act, 1920, enacted by Central Legislature. The Supreme Court held that since the University was not established by Muslims, there was no question of the University being managed by them. The right guaranteed under this Article is subjected to “public order” and “morality” and “health”. It means that the right under Article 26(a) may be restricted on these grounds only and not on some other ground. The right to maintain an institution for religious and charitable purposes includes the right to exclude the profession or practces belonging to other religions. In Sanjib Kumar v. Principal, St. Paul College, the Principal of the College established by the Christian Missionary Society, refused the petitioner to perform saraswati puja in the College premises. The Calcutta High Court held that the refusal of the Principal did not violate the fundamental right of the petitioner and Principal was entitled to refuse the performance of such a religious practice in the exercise of his right to maintain the institution under Article 26(a). (B) Right to Manage Matters of Religion [Article 26(b)] Clause (b) of Article 26 says that a religious denomination or organisation is free to manage its own affairs in ‘matters of religion.’ 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 decide whether a particular rite or ceremony is regarded as essential by the tenets of a particular religion. The right, is, it is to be noted, is confined to “matters of religion”. The term matters of religion includes religious practices, rites and ceremonies considered essential for practice of religion. The right, is however, subject to the regulatory power of the State under clause (2)(b) of Article 25. This means that secular activities connected with religious institutions can be regulated by State by law. The places of worship like temples, mosques, and gurudwaras cannot be used for hiding criminals or carrying on

15

AIR 1968 SC 662

anti-national activities. The State has power under Article to prohibit these activities in the places of worship. What constitutes an integral or essential part of religion has to be determined with reference to its doctrines, practices, tenets, historical background, etc., of the given religion. In Commr. Of Police v. Acharya J. Avadhutta,16 the Apex Court elucidated the expression “an essential part or practice of a religion” to mean those practices which were fundamental to follow a religious belief. The Court observed that “Freedom to manage religious affairs does not mean creation of any right which it never had. It merely safeguards the existing rights.” In Commissioner, H.R.E. v. L.T. Swamiar,17 (popularly known as Shirur Math case) Section 21 of the Madras Hindu Religious and Charitable Endowments Act, 1951, which empowered the Commissioner of Endowments and his sub-ordinate officers and also persons authorized by them, to enter the premises of any religious or any duty imposed by or under the Act, was struck down as violative of the guarantee contained in Article 26(b). Likewise, the appointment of a person of one sect, as achkara of another sect infringes the right of the later sect to manage its religious matters, under Article 26(b). In Athiest Society of India v. Government of A.P,18 the petitioner, Atheist Society of India, prayed for issuing a writ of mandamus directing the State Government to prohibit breaking of coconuts, performing of pooja, chanting of mantras or sutras of different religions at State functions. The Andhra Pradesh High Court rejected their prayer and held that these practices have been a part of the Indian tradition and meant to invoke the blessings of Almighty for the success of the project undertaken. Such noble thought cannot be found fault with as offensive to anyone. May be that the petitioner’s society who claim to be atheist or do not appreciate the invocation of gods as they do not believe in God. There is no Constitutional guarantee to the faith of the atheists who worship barren reason that there is no god. It is not the object of the Constitution to turn the country into a irreligious place. A secular place does not prohibit the practices of religion. If that is prevented it will infringe the rights of crores of Indians which are granted to them under Article 25 and will run directly contrary to the secular objectives of the preamble of the Constitution which is one of the basic structures. It would deprive them of their right to thought, expression, belief, faith and would amount to abolition of Indian tradition and religious practices. (C) Right to Own and Administer Property [Articles 26(c) & 26(d)] Clause (c) of Article 26 secures to a religious denomination or any section thereof “the right to own and acquire movable and immovable property.” Clause (d) further strengthens this right by guaranteeing to the denomination “the right to administer such property in accordance with law.” Reading these Articles together, it becomes obvious that a distinction has been drawn between the right ‘to manage its religious affairs’ by a religious denomination and its right ‘to manage its property.’ In regard to affairs in matters of religion, the right of management given to a religious body is a guaranteed Fundamental Right which cannot be taken away by Law (subject to certain restrictions). On the other hand, as regards administration of property, which a religious denomination is entitled 16

AIR 2004 SC 2984 AIR 1954 SC 282 18 AIR 1992 AP 310 17

to own and acquire, it undoubtly has the right to administer such property only in accordance with law. While matters of religion are entirely outside the place of law, it is not so with respect to property which has to be held and enjoyed according to law. This means that the State can regulate the administration of trust properties by means of laws validly enacted: but here again under Article 26(d), it is the religious denomination or general body of religion itself which has the right to administer this property in accordance with any valid law. Any law which takes away the right of administration altogether from the religious denomination and vests it in any other body or a secular authority, would amount to violation of the right which is guaranteed by Article 26(d). Thus, imposition of land revenue on land belonging to a religious denomination is not hit by Article 26 when the burden imposed ‘is a burden to be imposed on the denominational institution. Burden of that nature is outside the right guaranteed by Article 26 of the Constitution.19 Takeover of the management of the Auroville Township for a limited period is not a matter of religion as Auroville is not a place of worship. It is a township dedicated to promote international understanding and world peace. It is a secular and not a religious activity. Although under Article 26(d), the State can regulate administration of property attached to a religious institution, there is, nevertheless, the condition that the right of administration must always vest in the concerned religious denomination itself which shall administer the property according to law. The State can regulate property of a denomination, but cannot divest it of its right to administer the same and vest it in another body. Whatever restrictions and regulation a law might impose on the denominational right to manage its property, the right of management must still be left with the denomination itself. A law which takes away the right of administration from the hands of the concerned religious denomination altogether and vest it in any other body violates Art. 26(d). In Ratilal Panachand Gandhi v. State of Bombay,20 the Bombay Public Trusts Act, 1950, which provided for the, appointment, by a Court, of the charity Commissioner as a sole trustee of religious public trusts was struck down as violative of the right of the religious denomination under Article 26(d). The Supreme Court has explained the position in this regard as follows: “….in regard to affairs in matters of religion, the right of management given to a religious body is a guaranteed Fundamental Right which no legislation can take away. On the other hand, as regards administration of property which a religious denomination is entitled to own and acquire, it has undoubtedly the right to administer such property, but only in accordance with law. This means that the State can regulate the administration of trust properties by means of law validly enacted: but here again it should be remembered that under Article 26(d), it is the religious denomination or general body of religion itself which has been given the right to administer its property in accordance with any law which the State may validly impose. A law which takes away the right of administration altogether from the religious denomination and vests it in any other or secular authority, would amount to violation of the right which is guaranteed by Article 26(d) of the Constitution.” The Muslim Wakfs Act which lays’ down that every member of the Wakfs Board is to be a Muslim is valid as it does not deprive the religious denomination, namely, the Muslims, of its right to administer

19 20

M.P Jain, Indian Constitutional Law (lexis nexis butter works) pg 1330 AIR 1954 SC 388, 391

the wakf property.21 Similarly, vesting of the administration of a Hindu temple in a committee consisting of Hindus only does not contravene Article 26(d).22 In State of Rajasthan v. Sajjanlal,23 the Supreme Court held a law valid vesting management of Jain religious trusts in committees of management subject to the condition that the members of the concerned committee should belong to the same denomination to which the particular trust belonged. The government cannot nominate persons of one denomination to manage trust belonging to another denomination. The person authorized to nominate the persons of the Managing Committee need not be part of the denomination. However, Article 26 does not interfere with the right of the State to acquire property. Also, the right to own and acquire property under Article 26(c), is not a part of basic structure of the Constitution. The Gujarat Legislature enacted an Act with a view to abolish inams held by a religious or charitable institution. No compensation was payable. The Act was placed in the IX Schedule to the Constitution. The Gujarat High Court declared the Act to be constitutionally valid in S.B. Narayancharya Public Trust v. State of Gujarat. The Court ruled that right conferred by Article 26(c) is not a part of the basic features or structure of the Constitution; it is not absolute and unqualified right to the extent that no agrarian reform can touch upon the lands owned by the religious denomination. The impugned Act fell within the scope of Articles 31A (1)(a) and 31B. The Act was also protected under Article 31C. Acquisition of a religious place In Dr. M. Ismail Faruqui v. Union of India, the Supreme Court has considered the question of acquisition of a religious place by the State. A temple, church or a mosque, etc. are essentially immovable properties and subject to protection under Articles 25 and 26. Every immovable property is liable to be acquired. While offer of prayer or worship is a religious practice, its offerings at every location where such prayers can be offered would not be an essential or integral part of such religious practice unless the place has a particular significance for that religion so as to form an integral part thereof. Places of worship of any religion having particular significance for that religion, to make it an essential or integral part of religion, stand on a different footing and have to be treated differently and more reverentially. Nevertheless, “the acquisition of any religious place is to be made only in unusual and extraordinary situations for a larger national purpose keeping in view that such acquisition should not result in extinction of the right to practice that religion, if the significance of that place be such. Subject to this condition, the power of acquisition is available for a mosque like any other place of worship of any religion.” The right to worship is not at any and every place, so long as it can be practiced effectively, unless the right to worship at a particular place is itself an integral part of the right. In Gulam Kadar Ahmadbhai Menon v. Surat Municipal Corporation, the Gujarat High Court has ruled that the acquisition of a religious place or a part thereof can be acquired in public interest for widening of the road. Articles 25 and 26 protect religious practices which are essential and integral part of practice of religion while offer of prayer or worship is a religious practice, its offering at every location where such prayers can be offered would not be an essential or integral part of such religious practice unless the place has a particular significance for that religion so as to form n essential or integral part thereof. Places of worship of any religion having particular significance for that religion to make it an

21

Usman Khan v. Faezulla, AIR 1959 MP 377 Ram Chandra v. State of Orissa, AIR 1959 Ori 5 23 AIR 1975 SC 706 22

essential or integral part of that religion stand on a different footing and have to be treated differentially and more reverentially than the other places of worship of that religion.

BIBLIOGRAPHY Arvind P. Datar, Commentry on Constitution of India, 2nd Edition, 2007. Dr. J.N. Pandey, the Constitution of India, Central Law Agency, 52nd Edition, 2015. Dr. M.P. Jain, Indian Constitutional Law, Lexis Nexis, Butterworths, Nagpur, 2002. Dr. V.N. Shukla, the Constitution of India, Eastern Book Company, 2008. Narender Kumar, Constitutional Law of India, Allahabad Law Agency, 2014.