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Freedom of religion


The diversity of religions coexists in India, it has been a defining characteristic of India's population for centuries. This culture makes India famous worldwide. People of the nation have a strong belief and faith in the religion. India is the world's most heterogeneous society. It is a country with a rich heritage. Several races have converged in this sub- continent. They brought with them their own cultures, languages, religions and customs. These diversities threw up problems. The early leadership showed wisdom and sagacity in tackling them by preaching the philosophy of accommodation and tolerance. This is the message which saints and sufis spread in olden days. Mahatma Gandhi and other leaders of modem times advocated maintaining national unity and integrity. The British policy of divide and rule aggravated by separate electorates based on religion, had added a new dimension of mixing religion with politics which had to be countered and which could be countered only if the people realised the need for national unity and integrity. It was with the weapons of secularism and non-violence that Mahatma Gandhi fought the battle for independence against the mighty colonial rulers. As early as 1908, Gandhiji wrote in Hind Swaraj:

“India cannot cease to be one nation, because people belonging to different religions live in it. … In no part of the world are one nationality and one religion synonymous terms; nor has it ever been so in India.”

Gandhiji was ably assisted by leaders like Pandit Jawaharlal Nehru, Maulana Abul Kalam Azad and others in the task of fighting a peaceful battle for securing independence by uniting the people of India against separatist forces. In 1945 Pandit Nehru wrote :

“I am convinced that the future government of free India must be secular in the sense that government will not associate itself directly with any religious faith but will give freedom to all religious functions.” And this was followed up by Gandhiji when in 1946 he wrote in Harijan “I swear by my religion. I will die for it. But it is my personal affair. The State has nothing to do with it. The State will look after your secular welfare, health, communication, foreign relations, currency and so on, but not my religion. That is everybody's personal concern.”

We attained independence. The Constituent Assembly was aware of the danger of communalism. It passed the following resolution on April 3, 1948:

“Whereas it is essential for the proper functioning of democracy and growth of national unity and solidarity that communalism should be eliminated from Indian life, this Assembly is of the opinion that no communal Organisation which by its constitution or by exercise of discretionary power vested in any of its officers and organs admits to, or excludes from, its membership persons on grounds of religion, race and caste, or any of them should be permitted to engage in any activities other than those essential for the bona fide religious, cultural, social and educational needs of the community, and that all steps, legislative and administrative, necessary to prevent such activities should be taken.”

Pursuant to the goal of secularism, the Constituent Assembly adopted clauses 13, 14 and 15 roughly corresponding to the present Articles 25, 26 and 27. During the debates Prime Minister Jawaharlal Nehru declared that secularism was an ideal to be achieved and that establishment of a Secular State was an act of faith, an act of faith above all for the majority community because they will have to show that they can behave towards others in a enerous, fair and just way. When objection was sought to be voiced from certain quarters, Pandit Laxmikantha Mitra explained :

“ By Secular State, as I understand, it is meant that the State is not going to make any discrimination whatsoever on the ground of religion or community against any person professing any particular form of religious faith. This means in essence that no particular religion in the State will receive any State patronage whatsoever. The State is not going to establish, patronize or endow any particular religion to the exclusion of or in preference to others and that no citizen in the State will have any preferential treatment or will be discriminated against simply on tile ground that he professed a particular form of religion. In other words, in the affairs of the State the preferring of any particular religion will not be taken into consideration at all. This I consider to be the essence of a Secular State. At the same time we must be very careful to see that in this land of ours we do not deny to anybody the right not only to profess or practice but also propagate any particular religion.”

The great statesman-philosopher Dr Radhakrishnan said:

“When India is said to be a secular State, it does not mean that we reject reality of an unseen spirit or the relevance of religion to life or that we exalt irreligion. It does not mean that secularism itself becomes a positive religion or that the State assumes divine prerogatives. Though faith in the Supreme is the basic principle of the Indian tradition, the Indian State will not identify itself with or be controlled by any particular religion. We hold that no one religion should be given preferential status, or unique distinction, that no one religion should be accorded special privileges in national life or international relations for that would be a violation of the basic principles of democracy and contrary to the best interests of religion and Government. This view of religious impartiality, of comprehension and forbearance, has a prophetic role to play within the national and international life. No group of citizens shall arrogate to itself rights and privileges which it denies to others. No person should suffer any form of disability or discrimination because of his religion but all alike should be free to share to the fullest degree in the common life. This is the basic principle involved in the separation of Church and State.”

Religion in our society plays a great role in shaping the behaviour and conduct of the people. Religion gives millions the hope to live and strive for success and a better life. It also provides a scope of deception, violence and hypocrisy. Time and again religion has been used by several as a medium to achieve a powerful position in the society, humiliate others and suppress strata of people. Several times inhuman activities and discrimination on the basis of caste, creed, colour, gender is done in the name of religion. Religion is taken and twisted by humans. It leads others towards the illusion. Freedom of Religion gives everyone the right to practice, profess and propagate the religions of their choice, belief and faith. There has to be severe and rigid boundary of its limitations. Sometimes one individual accessing their freedom of religion violates and infringes the rights of others which in turn lead to a conflict that goes against public order and peace. Inhumanity and crimes committed in the name of religious freedom. These events have to be stopped. Religious freedom can never do away with the concept of behaving and acting in a humane manner. It can never go against the strength and harmony of the country. The State needs to step in more frequently and prevent the abuse of power. Strict legal action against people responsible for inflicting violence against minorities has to be taken. Political parties based on caste and religion should be prohibited. A set of rules should be formulated for political parties. The state should be more responsible for publicly condemning religious violence. It should take more efforts to look into reports of harassment and assault during communal violence for securing justice.

1. The 42nd Amendment introduced the term ‘secular’ in the Preamble. It is said to establish India a secular state. Secularism promotes the idea of constructing a society with people of every religion and people not believing in any religion living peacefully together. Adding the word secular invited wide protest from a section of community,however it has to be said that amendment of preamble must have been done with political aim as other than that it doesn't have any legal impact because though the word secular was not present in the preamble it was always implicit in it.

The Preamble of our Constitution shows that the people of India had resolved to constitute India into a Sovereign Secular Democratic Republic and promised to secure to all its citizens Justice, Liberty and Equality and to promote among them all Fraternity assuring the dignity of the individual and the unity and integrity of the Nation. In the people of India vests the legal sovereignty while the political sovereignty is distributed between the Union and the States.

2. The Constitution of India confers on all the fundamental right to promote and preach their own religious beliefs and follow the guidance of their religions. Articles 25 to 28 under Part III of the Indian Constitution mention the ambit of the right to freedom of religion. Articles 29 and 30 put forth the right protection of the interest of minorities forbidding discrimination on any grounds.

3. All these rights are subject to public order, health and morality. Any exercise of these rights that go against the State, public order, safety, and nation’s integrity, then it no more falls within the ambit of fundamental rights.

4. Article 21 in the Indian Constitution forbids anyone from depriving a person of his/her life and personal liberty. Religious freedom through the years has laid seeds of religious violence dividing the nation into different parts.

5. So no rights as guaranteed by Part III of the Constitution are absolute. All of them are subject to reasonable restrictions. They are also complementary to each other. The right to religious freedom has been derived from the right to equality and equal protection of the law.

Development, law and education has not changed the scenario

The whole progress of mankind has been from Ignorance and helplessness before natural and social forces to understanding of these forces and harnessing them.

The basis of religion is ignorance of the real nature of these forces, helplessness before them and fear of the unknown. Thus, for example, many of the vedic gods e.g. Agni, Surya, Indra etc. were personification of natural or social forces. These forces could either benefit man or harm him. Thus, timely rains could benefit agriculture, but failure or delay of rain could ruin the crops, and whether there would be timely rain or not was entirely beyond man's control. Hence rain was conceived of as a god, Indra, who had to be propitiated to save oneself from his wrath. : Justice M.Katju

The faith that one instils in their religion often becomes the reason for conflict with others. The aspect of supernatural powers and forces governing religions most of the time drives all the believers towards opposing sciences and logic. What one’s religion allows other religions might not. So the conflict arises. Time and again India has seen religion and freedom of religion being used as a means to acquire monetary gains, commit crimes, obtain political fame and retaining the position of power and gaining everyone’s support. It might be said that development and education has changed the scenario. It is an illusion. In most of the places in India, women even today are forced to not consume non-vegetarian food and any food with onion and garlic after their husband’s demise. Rural areas still witness widows being made bald. Girls and women even today are stopped from participating in a holy ceremony or approaching towards God while menstruating and so on. Right from prohibiting entry of women into the Sabarimala temple, genital mutilation of women belonging to Bohra Muslim community, entry of Muslim women into mosques for prayer and unrestrained access of women into the agiyaris or the fire temples of Parsis, all of these have shown the fundamental right of freedom of religion violations. The proposition of the Karnataka Prevention and Eradication of Human Sacrifice and Other Inhuman Evil and Aghori Practices and Black Magic Bill, 2016 had invited a lot of criticism and hatred of religious leaders and sects as it banned things like astrology, worshipping the feet of religious leaders, the ritual of ‘Made Snana’ where the Dalits were made to roll on leftover food of the upper caste people, and so on. But these are certainly not essential parts of religion then how did the religious leaders construct arguments of the Constitution of India granting religious freedom. In June 2019 an incident was reported where a Dalit boy was beaten mercilessly by men for entering a village in Pali, Rajasthan. Similarly, a Dalit police constable of the Bhanwad police station was driven out of the temple when he had gone there to take food for his colleague. The priests had replied that it was the rule of the temple for which the entry of lower castes wasn’t allowed inside the temple premises. These are not the only cases of such incidents, inequality yet prevails in every corner of the nation and it works in the name of religion.

During independence, it was considered that the partition of India would resolve the communal conflict between Hindus and Muslims. Such led to violences which have been widespread through ages. Partition of India worsened the conditions of Muslims in India. Hindu-Muslim riots have claimed thousands of lives. It destroyed the properties of people as well. In 1992, the Hindus had demolished the Babri Masjid in Ayodhya which was claimed to be the birthplace of Lord Ram. People came up with the inquiries about the probability of the existence of a temple there which had been destroyed to build the Babri masjid. This had provoked the deadliest riots witnessed after the independence of India. This riot had killed thousands of people and destroyed the homes of several people. In 2002, the state of Gujarat with Narendra Modi as its chief minister had witnessed the Gujarat riots where Muslims had burned down trains, slaughtered Hindu pilgrims. The riots had continued with its murdering, assaulting, raping, and so on with almost 2,000 Muslims being killed. This bizarre religious violence had taken away the lives of thousands and rendered many homeless. Religious violence claims the lives of people. Mass demonstrations and violence kill masses of people.

Religious bigotism also takes a toll on public health. Health is an essential part of the right to life. Fundamental rights are provided subject to public order, health and morality. The freedom of religion can not go against the reasonable restrictions set by the Constitution. Maintenance of public health requires the intervention of the State many times. It was seen in the case of J. Choudhury v. The State, the petitioner, a homoeopathic doctor in Puri, Odisha suffering from Cholera. He had refused to get himself immunized and treated as he had a ‘conscientious objection against inoculation’ that went against his religion. He had tried to contend by saying that he had consumed homoeopathic medicines and went against the Epidemic Diseases Act. The court had rejected his plea and convicted him for going against the state order. Through years freedom of religion has been seen creating public menace, initiating violence, and infringing other people’s fundamental rights at the cost of freedom of religion. Most of the time authorities feel threatened and do not interfere as it could cost them their vote banks or raise a question at their worth for being in the position of power.

Unlawful Conversion of Religion Ordinance, 2020

Uttar Pradesh Governor Anandiben Patel gave assent to Unlawful Conversion of Religion Ordinance, 2020 alleged as a move to tackle love jihad. According to the ordinance, a marriage will be declared null and void if a woman converts solely for the purpose of marriage. The maximum punishment for violators can be a jail term of up to 10 years. Under the new law, those who are willing to change their religion will have to apply to the district magistrate two months ahead.

Justice Aditya Mittal, the Chairman of the Law Commission, said, “The term love jihad has not been used in the Bill, and conversions related to all religions will be covered under the new law. To be precise, it will not just be focused on Hindu-Muslim conversions or conversions for the specific purpose of marriage.”

Constitution and Religion

State and Religion

United state's First Amendment provides for separation of religion from state.It states that Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

It is a tribute to our Constitution makers that despite the fact that our economy and social conditions were still largely semi- feudal they adopted a modern Constitution on the model of Western nations. It is also a tribute to them that at a time when religious passions were inflamed-they refused to be swayed by these passions and upheld the modern ideal of secularism and incorporated it in Articles 25 to 30 of the Constitution. Thus Articles 25 states.’ 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, practise and propagate religion'.

Articles 27 to 29 embody the principle of separation of state and religion. Article 27 states “No person shall be compelled to pay any taxes, the proceeds of which are specifically appropriated in payment of expenses for the promotion or maintenance of any particular religion or religious denomination.” Similarly, Article 28 (1) states “No religious instruction shall be provided in any institution wholly maintained out of State funds”. Article 28(3) states “No person attending any educational institution recognized 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 a minor, his guardian has given his consent thereto”. Article 29(2) states “No citizen shall be denied admission into any educational institution maintained by the State or receiving aid out of State funds on ground only of religion, race, caste, language or any of them.”

Mention may also be made of Article 15(1) which states “The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them”. Similarly 16(2) prohibits discrimination on the ground of religion in public employment. Thus we see that our Constitution is modern and secular. However, the fact remains that while our Constitution is modern, our social order is still backward and semi-feudal, and this dichotomy gives rise to a host of problems. Since in feudal or semi-feudal society religion has a powerful hold on men's minds, the vested interests seek to exploit this situation by perpetuating and accentuating caste and communal divisions and by sowing the seeds of discord, among the people. This activity has been stepped up in recent times.


The word “secular” also was not there in the original draft of the Constitution. This has also been incorporated in the Preamble by the Constitutional (42nd Amendment) Act, 1976.It simply indicates that the State does not recognize any religion as its own religion and thus, treats all religions equally. It’s a status of being neither pro-religion nor anti-religion. It is also not based on total neutrality towards religion. It is based on equal respect for all religions. It embodies the age old concept of ‘sarva dharma sambhava’. Article. 25 to 28 constitutes the right to freedom of religion. Citizens have complete freedom to follow any religion, and there is no official religion. The Government treats all religious beliefs and practices with equal respect and honour.In a secular State, the State regulates the relationship between man and man and it is actually not concerned with the relation of man with God.

Individual Rights

Religious freedom as an individual's right is guaranteed by the Constitution to 'all persons' within the following parameters:

  1. All persons are equally entitled to freedom of conscience and the right freely to profess, practise and propagate religion – Article 25(1).
  2. There shall be freedom as to payment of taxes for promotion of any particular religion by virtue of which no person shall be compelled to pay any taxes the proceeds of which are specifically appropriated in payment of expenses for the promotion or maintenance of any particular religious denomination - Article 27.
  3. No religious instruction is to be provided in the schools wholly maintained by State funding; and those attending any State recognized or State-aided school cannot be required to take part in any religious instruction or services without their (or if they are minor their guardian's) consent - Article 28.

Group Rights

Freedom of religion is guaranteed by the Constitution of India as a group right in the following ways:

  1. Every religious denomination or any section thereof has the right to manage its religious affairs; establish and maintain institutions for religious and charitable purposes; and own, acquire and administer properties of all kinds - Article 26.
  2. Any section of the citizens having a distinct language, script or culture of its own shall have the right to conserve the same - Article 29
  3. Religious and linguistic minorities are free to establish and administer educational institutions of their choice, which shall not be discriminated against by the State in the matter of giving aid or compensation in the event of acquisition - Article 30.

Right to Religious Freedom

Interpreting the constitutional provisions relating to freedom of religion the Supreme Court has observed: The right to religion guaranteed under Articles 25 & 26 is not an absolute or unfettered right; they are subject to reform on social welfare by appropriate legislation by the state. The Court therefore while interpreting Article 25 and 26 strikes a careful balance between matters which are essential and integral part and those which are not and the need for the State to regulate or control in the interests of the community — AS Narayana Deeshitalyu v State of Andhrn Pradesh (1996) 9 SCC 548.

The right to religion guaranteed under Article 25 or 26 is not an absolute or unfettered right; they are subject to reform on social welfare by appropriate legislation by the State. The Court therefore while interpreting Article There have been numerous other rulings explaining the scope and connotation of the religious liberty provisions in the Constitution. Given below is a summary of the major rulings:

  1. Articles 25-30 embody the principles of religious tolerance that has been the characteristic feature of Indian civilization from the start of history. They serve to emphasize the secular nature of Indian democracy which the founding fathers considered should be the very basis of the Constitution -Sardar Syedna Taher Saifuddin v State of Bombay AIR 1962 SC 853
  2. Freedom of conscience 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 - Ratilal Panachand Gandhi v State of Bombay AIR 1954 SC 388.
  3. To profess a religion means the right to declare freely and openly one's faith - Punjab Rao v DP Meshram AIR 1965 SC 1179.
  4. Religious practices or performances of acts in pursuance of religious beliefs are as much a part of religion as faith or belief in particular doctrines - Ratilal Panachand Gandhi v State of Bombay AIR 1954 SC 388.
  5. What constitutes an integral or essential part of a religion or religious practice is to be decided by the courts with reference to the doctrine of a particular religion and includes practices regarded by the community as parts of its religion - Seshammal v State of Tamil Nadu AIR 1972 SC 1586.
  6. The right to profess, practise and propagate religion does not extend to the right of worship at any or every place of worship so that any hindrance to worship at a particular place per se will infringe religious freedom - Ismail Faruqui v Union of India (1994) 6 SCC 360.
  7. Under Article 25 to ‘propagate’ religion means ‘to propagate or disseminate his ideas for the edification of others' and for the purpose of this right it is immaterial 'whether propagation takes place in a church or monastery or in a temple or parlour meeting' - Commissioner, Hindu Religious Endowments, Madras v Lakshmindra Thirtha Swamiar of Sri Shirur Mutt AIR 1954 SC 282.
  8. To claim to be a religious denomination a group has to satisfy three conditions: common faith, common organization and designation by a distinctive name - SK Mittal v Union of India AIR 1983 SC 1

Restrictions on Freedom of Religion

Public order, morality and health

In the name of religion, no act can be done against public order, morality and health of public. Thus Section 34 of the Police Act prohibits the slaughter of cattle or indecent exposure of one's person in 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 Dev-dasis cannot be tolerated. These rights are subjected to the reasonable restrictions under clause (2) of Article 19. For instance, a citizen's freedom of speech and expression in matters of religion is subjected to reasonable restrictions under Article 19 (2). Right to propagate one's religion does not give right to anyone 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 and hence could be prohibited by law.

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 would 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 religion practice. Each case must be judge by its own facts and circumstances.

Social Welfare and Social Reforms

Clause (2)(b) - Under this clause, 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. Such laws do not affect the essence of any religion. Prohibition of evil practices such as Sati or system of Devadasi has been held to be justified under this clause. The right protected under this clause is a right to enter into a temple for the purpose of worship. But it does not follow from this that, that right is, absolute and unlimited in character. No one can claim that a temple must be kept open for worship at all hours of the day and night or that he should be permitted to perform services personally which the Acharya alone could perform. The State cannot regulate the manner in which the worship of the deity is performed by the authorised pujaris of the temple or the hours and days on which the temple is to be kept open for Darshan or Puja for devotees. The right of Sikhs to wear and carry Kripan is recognised as a religious practice in Explanation 1 of Article 25. It does not mean that he can keep any number of Kripans. He cannot possess more than one Kripan without licence.

Case laws

S.R. Bommai v. Union of India AIR 1994 SC 1918

The government of Janta Dal in Karnataka at that time had been declared to have lost the majority in the Assembly and were accused of working with huge defections introduced in the system falsely to showcase their majority and continue to remain in power. The Government had been dismissed on 21st April 1989 under Article 356 of the Indian Constitution which was followed by the imposition of President’s Rule on the state. The Janta Dal under the leadership of S.R. Bommai the then chief minister of Karnataka had approached the Supreme court appealing against such an imposition of President’s Rule on the governor’s call. This was a landmark judgment that put an end to whimsical and despotic dismissal of State Governments under Article 356. It also put forth the limitation in exercising his powers only after it has been accepted by both the houses of the Parliament. The court highlighted that Article 356 could be subjected to judicial review, and it also explained the position of secularism in the Constitution of India, and how it had been ingrained in it forever. Article 25 to Article 28 of the Indian Constitution puts forth the right to freedom of religion. Article 25(1) guarantees to every person the ‘freedom of conscience’ and the right to profess, practice and propagate any religion of one’s choice in compliance to ‘public order, morality and health.’ The term ‘conscience’ highlights the celestial and spiritual part of the religion that is much ahead of the State’s control. Under this article, everyone has the right to openly declare their faith, belief and adherence to a religion. ‘Propagate’ means the exposition to a religion without the existence of any aspect of coercion. Article 26, on the other hand, provides a collaborative and associated freedom with Article 25 that provides a relation between the State and freedom of religion in association with the ‘public order, morality and health.’ Article 26(a) approves the establishment and maintenance of institutions built for religious and charitable purposes. Article 26(b) provides to every religious organization the right to manage its own affairs and Article 26 © and (d) confers the right of administering property on their terms but in accordance to laws set forth by the State. Under Article 27 no one can be subjected to any coercion for paying taxes and revenues allocated for maintenance and promotion of specific religion or such denominations. But the State is not disentitled to charge taxes only on the condition that it is utilized in maintaining religions without any discrimination.

The ratio decidendi in the decision is extracted hereunder:

“29. Notwithstanding the fact that the words 'Socialist' and 'Secular' were added in the Preamble of the Constitution in 1976 by the 42nd Amendment, the concept of Secularism was very much embedded in our constitutional philosophy. The term 'Secular' has advisedly not been defined presumably because it is a very elastic term not capable of a precise definition and perhaps best left undefined. By this amendment what was implicit was made explicit. The Preamble itself spoke of liberty of thought, expression, belief, faith and worship. While granting this liberty the Preamble promised equality of status and opportunity. It also spoke of promoting fraternity, thereby assuring the dignity of the individual and the unity and integrity of the nation. While granting to its citizens liberty of belief, faith and worship, the Constitution abhorred discrimination on grounds of religion, etc., but permitted special treatment for Scheduled Castes and Tribes, vide Articles 15 and 16. Article 25 next provided, subject to public order, morality and health, that all persons shall be entitled to freedom of conscience and the right to profess, practice and propagate religion. Article 26 grants to every religious denomination or any section thereof, the right to establish and maintain institutions for religious purposes and to manage its own affairs in matters of religion. These two articles clearly confer a right to freedom of religion. Article 27 provides that no person shall be compelled to pay any taxes, the proceeds whereof are specifically appropriated in payment of expenses for the promotion or maintenance of any particular religion or religious denomination. This is an important article which prohibits the exercise of State's taxation power if tile proceeds thereof are intended to be appropriated in payment of expenses for the promotion and maintenance of any particular religion or religious denomination. That means that State's revenue cannot be utilised for the promotion and maintenance of any religion or religious group. Article 28 relates to attendance at religious instructions or religious worship in certain educational institutions. Then come Articles 29 and 30 which refer to the cultural and educational rights. Article 29 inter alia provides that no citizen will be denied admission to an educational institution maintained wholly or partly from State funds on grounds only of religion, etc. Article 30 permits all minorities, whether based on religion or language, to establish and administer educational institutions of their choice and further prohibits the State from discriminating against such institutions in the matter of granting and. These fundamental rights enshrined in Articles 15, 16, and 25 to 30 leave no manner of doubt that they form part of the basic structure of the Constitution. Besides, by the 42nd Amendment, Part IV-A entitled 'Fundamental Duties' was introduced which inter alia casts a duty on every citizen to cherish and follow the noble ideals which inspired our national struggle for freedom, to uphold and protect the sovereignty, unity and integrity of India, to promote harmony and the spirit of common brotherhood amongst all the people of India transcending religious, linguistic and regional or sectional diversities, and to value and preserve the rich heritage of our composite culture. These provisions which I have recalled briefly clearly bring out the dual concept of secularism and democracy, the principles of accommodation and tolerance as advocated by Gandhiji and other national leaders. I am, therefore, in agreement with the views expressed by my learned colleagues Sawant, Ramaswamy and Reddy, JJ., that secularism is a basic feature of our Constitution. They have elaborately dealt with this aspect of the matter and I can do no better than express my concurrence but I have said these few words merely to complement their views by pointing out how this concept was understood immediately before the Constitution and till the 42nd Amendment. By the 42nd Amendment what was implicit was made explicit. 30. After the demise of Gandhiji national leaders like Pandit Nehru,Maulana Azad, Dr Ambedkar and others tried their best to see that the secular character of the nation, as bequeathed by Gandhiji, was not jeopardised. Dr Ambedkar, Chairman of the Drafting Committee, aware of the undercurrents cautioned that India was not yet a consolidated and integrated nation but had to become one. This anxiety was also reflected in his speeches in the Constituent Assembly. He was, therefore, careful while drafting the Constitution to ensure that adequate safeguards were provided in the Constitution to protect the secular character of the country and to keep divisive forces in check so that the interests of religious, linguistic and ethnic groups were not prejudiced. He carefully weaved Gandhiji's concept of secularism and democracy into the constitutional fabric. This becomes evident from a cursory look at the provisions of the Constitution referred to earlier.”

Mahant Sri Jagannath Ramanuj Das vs The State Of Orissa And Another, AIR 1954 SC 400

The Orissa Hindu Religious Endowments Act had been passed and it had received the Governor General’s assent on the 31st August 1939. The Act wanted to bestow the control of public temples and Maths in a statutory authority known as the Commissioner of Hindu Religious Endowments. Under Section 49 of the Act, it was mentioned that rupees two-fifty had to be paid as an annual contribution for meeting the expenses incurred. The debate arose in this case for differentiating fee from a tax. The Supreme Court had held that the annual contribution was a fee appropriated towards specific purposes for administering religious affairs with the math. This contribution was not merged into general public revenue. Article 28 prohibits the transmission of religious knowledge and instruction in educational institutes maintained wholly or partly by state funds. This is not applicable for educational institutions administered by the states but established under endowment or trust which mandates the imparting of religious instructions.

Sabarimala Temple Case

Set forth religious ethics, the language and culture interpreted from the holy texts and scriptures have somewhere promoted practices that increase exploitation and violence towards women. Religious freedom as traced back to time has shown very little cooperation towards gender equality. Progress in time couldn’t even do away with the concept of women acquiring a position inferior to that of men. Such discrimination in the name of gender has violated the right to equality before law and freedom of religion that women are entitled to. In 2018, the Supreme Court’s move on opening the doors of Sabarimala Temple in Kerala to women of all age groups especially 10 to 50 years, the menstruating phase of life. This gave rise to huge movements, violence, protests and debates over the fundamental right to equality and right to religious freedom. Critics even argued saying that considering pure jurisprudence freedom of religion would always take over the right to equality and considering that the right to equality would be accepted as more fundamental. Almost 50 review petitions were filed in the Supreme Court as a result of the decision opening the Sabarimala temple to women and children of all ages, seeking protection under Articles 25 and 26. Even after this, the entrance of women and children involve a difficult process.Later on review, Supreme court stayed it's earlier order and referred the matter to a seven Judge bench and this came before a nine-judge bench.The nine-judge Bench, led by Chief Justice of India S.A. Bobde, said a Bench engaged in the review of a particular judgment could indeed refer other questions of law to a larger Bench.

Created on 2020/10/19 23:13 by • Last modified on 2020/11/30 07:27 by LawPage