|VOLUME 1|ISSUE 2|APRIL 2018|ISSN: 2581-3595|​

RIGHT TO FREEDOM OF RELIGION: A FUNDAMENTAL RIGHT

AUTHORED BY: NUR TANDON, B.B.A.LL.B (Hons) & CO-AUTHORED BY: MANAK GOEL, B.B.A.LL.B (Hons), STUDENTS AT FAIRFIELD INSTITUTE OF MANAGEMENT AND TECHNOLOGY.

INTRODUCTION

Religion is people believe in God. According to Arnold W. Green, “Religion is a system of beliefs and symbolic practices and objects governed by faith rather than by knowledge, which relates man to an unseen supernatural realm beyond the known and beyond the controllable.”

Freedom of Religion means that one should be free to make its own decision about which religion to follow and which not to follow, no one can force any person to follow a particular, it is against his right to Freedom of Religion this is essence of the Constitution.[1]

Right to Freedom of Religion is a right which is conferred to every person by his birth and no one can take this right from anyone. According to Philip Schaff, “Freedom of Religion is one of the greatest gifts of God to man, without distinction of race and color. He is the author and lord of conscience and no power on the earth has a right to stand between God and the conscience.

In a country like India where there are variety of people and following many different kinds of religions so, in a country like ours right to freedom of religion is vital part for the people which makes our country secular, a country where is no particular religion, every person is allowed to follow its own religious belief. There is no restriction on anyone, also no one can force any person to follow a particular religion without the consent of that person as this will violate its fundamental right i.e. Right to Freedom of Religion mentioned Article 25 to 28 of Part III of the Constitution of India.

HISTORY

In India, since ancient time right to freedom is essential right which is given to all people and it is said that no person can take away these right from anyone. Even at the time of Ashoka the Great, many legal documents are being found which state Right to freedom of religion. There is ancient doctrine in India which states that every person is allowed to follow its own religion and state shall not interfere in any religion. India is neutral in terms of religion, every religion is treated equally whether it is Hinduism or Christianity or Sikhism or Buddhism any other religion.

According the Dalai Lama, “Not only Hinduism, Jainism, Buddhism, Sikhism, which are the native religions but also Christianity and Islam have flourished here. Religious tolerance is inherent in Indian tradition.”

At the time of Mughals also people were free to follow and worship any religion and in modern India also every person has a right to freedom of religion as a Fundamental Right guaranteed under Article 25 to 28 by Part III of The Constitution of India.[2]

The secular word was inserted by 42nd Amendment of the Constitution of India as it is country with variety of religion and every religion should be respected so that our country should grow and prosper.

COMPTEMPORARY ISSUES RELATING TO RIGHT TO FREEDOM OF RELIGION

Right to Freedom of Religion is essential part of the Indian Constitution as it deals with freedom of conscience which means inner belief of a person in relation to God. It related to the person’s faith in God which is important for every person in the world also, one cannot listen any wrong against its religion and if someone say something against a person’s religious belief, it can lead to riot and destruction in the country and due to which countries growth can be slow down which is not a good sign for the country. According to a recent research over 130 people died in 2005-2009 on an average and around 2,200 got injured. In 2012, 93 people dead due to be religious intolerance[3] and this not the end every year this intolerance is increasing and many people had to lose their life due to this religious violence. Recently also in the Ayodhya Case also there is dispute relating to religion only which is main issue nowadays. According to census of 2011, 79.8% are Hindu, 14.2% are Muslim and 6% comprise of other religions[4], so there is need for the right to freedom of religion as this will make India a secular country, a country with so many religious rather than a particular religion that governs the whole country. India being a secular country has these and due this one has to lose his life which is not good for country like India has variety of religion.

CONSTITUTIONAL FRAMEWORK OF RIGHT TO FREEDOM OF RELIGION

ARTICLE 25

This section states two things namely,

  1. Right to Freedom of Conscience
  2. Right to Profess, Practice and Propagate its religion

RIGHT TO FREEDOM OF CONSCIENCE

Conscience means the inner feeling or belief of person in relation to God and this article gives every person a right to freedom of conscience and if someone forces to change his belief then he is violating Article 25.

RIGHT TO FREEDOM TO PROFESS, PRACTICE AND PROPAGATE IT’S RELIGION

When a person follow its conscience in public then that means to propagate once religion and Article 25 gives every person a right to profess, practice and propagate its religion. It is the Fundamental Right which guarantees to all citizens by Part III of the Indian Constitution. No one has a right to force any person to follow a particular religion and any propagation in that sense is violation of this article.[5]

EXCEPTION:

  1. SUBJECT TO PUBLIC ORDER, MORALITY AND HEALTH

Article 25 guarantees all, right to freedom of conscience and right to practice and propagate any religion, but if someone does an act which breaches public order or moral of the society or something which is against public health then this section does not permit to follow such a thing and thus, that will not be included in Article 25 of the Constitution of India as these are reasonable restriction and state has the power to control these things. Due to this reason cow slaughtering is prohibited under Section 24 of the Police Act and also under Article 48 of Indian Constitution which is related to organizing of agriculture and animal husbandry in which cow slaughtering is ban, as cow is the one which is worshipped in India by Hindu though it is religious practice of Muslim but if this allowed then it will destroy public peace at a large.

  1. CONTROL ACTIVITIES LIKE ECONOMIC, FINANCIAL, SECULAR, ETC RELATED TO RELIGION

State has a power to protect the basic element of one’s religion and activities relating as defined but has the power to control activities like economic, political, secular, etc which are not included in basic elements of the religion. This is mentioned under Article 25 (2) (a) of the Constitution of India.

  1. SUBJECT TO SOCIAL WELFARE

State has power to make laws which are for the welfare of the society and while making these laws state can eliminate those religious beliefs which contradict laws made for welfare of society, as right to freedom of religion is not an absolute right guaranteed Constitution of India. State can empower certain reasonable restriction when it comes to the protection of society as if country.[6]

ARTICLE 26

This article states that subject to public order, morality and health every religion organization have a right to:

  1. Establish and maintain institution for religions and charitable purpose
  2. Manage its own affairs in matters of religion
  3. To own and acquire movable and immovable property
  4. To administer such property according to law[7]

Religious Organization means collection of individual having a common faith in a particular religion and these should have common organization with a distinctive name. These are the essentials of this word.

ARTICLE 26(1) – ESTABLISH AND MAINTAIN INSTITUTION FOR RELIGIOUS AND CHARITABLE PURPOSE

It says that to avail the right stated under Article 26 of the Constitution of India, institution should establish and maintain and these two words should be read together while determining whether an institution comes under the abide of this Article or not.

ARTICLE 26(2) – MANAGE RELIGIOUS MATTERS OF INSTITUTION

According this clause, a religious organization is free to manage its own religious matter and there is no restriction by State in these matters until and unless it breaches public order, morality or health or violates any law made for the welfare of the society. This is also mentioned in the Article 25 and which is also applicable to religious organizations.

ARTICLE 26(3) – ACQUIRE MOVABLE AND IMMOVABLE PROPERTY

A religious organization has right to acquire or own any movable and immovable property and which comes under this clause, but property acquire or own by the organization is governed by Transfer of Property Act, 1882.

ARTICLE 26(4) – ADMINISTER ORGANIZATION PROPERTY ACCORDING TO LAW

Under this clause right is given to religious organization to manage their property but this is not an absolute right as it is governed by the Transfer of Property Act, 1882. This is a reason why Article 26(1) and Article 26(4) are distinctive.

ARTICLE 27             

It states that no one can be compelled to pay any tax for the promotion of a particular religion until and unless it is for the benefit of people as a whole. This sections aim is to create secularism in the India.

It is on the belief that tax is burden which is to be paid by all and its benefit is availed by all and if state uses this money for the promotion of a particular religion then it is unfair to all who paid tax in persuasion of the benefit which the state gives to its citizen. This section also says that if tax is used for the promotion of all the religion as a whole then it is allowed and Article 27 will not be applicable in that case.

This article also states the relationship between the fee paid and benefits availed.[8]

ARTICLE 28

It deals with Prohibition of Religion Instructions in State-aided Institution which means that no educational institute can propagate a particular in religion in the whole funding comes from the state.

This section comprises of three clauses which are:

First clause states that an educational institute which is funded fully by the state cannot propagate a particular religion and force anyone to follow that.

Second clause says that the above clause is not applicable to an institute which is funded and administered by state, but is which is established by a particular trust for the propagation of particular religion is protected by the constitution and therefore allow.

Third clause further states that no one can be forced to follow the religion which imparted in such institution which is recognized by State and established by a trust. If someone does any of the above mentioned acts, then it is violation of Article 28 of Part III of the Indian Constitution.[9]

JUDICIAL VIEW OF RIGHT TO FREEDOM OF RELIGION:

ARTICLE 25

MOHD. HANIF QURESHI V. STATE OF BIHAR[10]

In this case petitioner has established and opened a shop of beef in the locality of Haridwar and which was being closed by the community of Hindu’s. The Apex Court in this case gave judgment that the petition filed by the petitioner is not maintainable and the Constitution does not allow anyone to hurt any religious sentiments of public at large hereby affirming the application of fundamental rights. Hence the petitioner is said to move his shop out of that locality. It was further held that if any person infringes or hurts religious sentiments of any religion then he cannot claim any fundamental right of his own.

SHYAMLAL RANJAN MUKERJEE V. NIRMAL RANJAN MUKERJEE[11]

In this case, a piece of land was being donated by the father of the parties to the society for religious purposes out of the part of the respondent and with his due consent, after death of the father the will was announced and petitioner claimed it to be his legal right to possess the property holding religious worship value and believes. In this case, the court held that the fundamental right of public will be infringed, if the property is transferred in the name of one person so the property will remain in the hands of society and no further appeals should be entertained for the same case or issue.

BIJOE EMMANUEL & ORS VS. STATE OF KERALA & ORS[12]

Also known as National Anthem Case

In this case basically petitioner is a Christian and has three children who refuses to sing National Anthem as it violates there right of freedom of religion under Article 25(1). The Director of Public Instructions issued a notice and stated it to be mandatory for all citizens of India to sing it.

In this case the Apex Court stated decision about that it must be mandatory for all movie theaters to sing national anthem and the petitioners must be served with a notice of either a penalty or punishment. Hereby the National Anthem is being made categorically different from all religion and it is a mandate for all citizens of India to sing it.

SARDAR SARUP SINGH & OTHERS VS. THE STATE OF PUNJAB & OTHERS[13]

Brief of the case is that in this petitioners formed a committee to look separately for their religious practices and management; the respondents restricted their committee from following their rules and regulations as mentioned under their respective Holy Book. In this case, the Apex Court held that the state can’t restrict any of the religious practices followed or practiced by any community unless they are creating any hindrance or obstructing public interest or national peace. Hereby, this court lays down the guidelines for all the states to look after the activities and work accordingly in respect of Fundamental Rights and Constitution of India.

ARTICLE 26

  1. SUBRAMANIAN SWAMY VS. STATE OF TAMIL NADU & ORS[14]

 In this case petitioner, Dr. Swamy, filed a writ petition with the priests of Dikshithar Sect for challenging the decision of Madras High Court of transferring the administration of Nataraja Temple to the Tamil Nadu Government in the year 2009. The temple was being looked after by priests who was private and was working according to the rules established by government for working of temple’s management. In this case the Apex Court held that the management of the temple needs to be returned to the priests under Article 26 and no interference of government will be allowed in the management of temple. Therefore, no further appeals will be allowed in this case and no question of law remained silent in the issue.

ATHIEST SOCIETY OF INDIA VS. GOVT. OF ANDHRA PRADESH[15]

In this case, petitioner filed a petition in the Apex Court for issuance of writ of mandamus to direct the respondents to stop the transfer of management and property of temples from the priests to government. In this case, High Court of Andhra Pradesh held that the transfer is must for the benefit of public interest, as the donations received by the temples are limitless which are not efficiently used by the management which results in increasing wealth of management. So, the government is laid down with several guidelines to create a separate department which will collect all the donations and circulate necessary amount of funding to the priests for the renovation and other necessary works which are required in a Temple.

The Supreme Court in this case rejected the petition of petitioner’s on the grounds that the decision laid down by the High Court of Andhra Pradesh is completely reliable and no such question of law is unanswered by them for which the petition needs to be entertained.

BRAHMCHARI SIDHESHWAR SAHAI V. STATE OF WEST BENGAL[16]

The case is commonly known as Ramakrishna mission case, in this case basically a group of individuals were following Ramakrishna and the government of West Bengal has not allowed them to completely follow the rituals of their religion and believes were also interrupted by the state.

In this case Supreme Court held that the group of individuals following these rituals should be given the fundamental right to freedom of religion and there believes are combined and trusted under Hindu denominations hence they can avail their right of religion under article 26 of the constitution.

ARTICLE 27

RATILAL PANACHAND GANDHI VS. THE STATE OF BOMBAY[17]

In this case, the petitioner Ratilal filed a petition for seeking information about payment of tax by the temples and religious places. The suit was filed and entertained by both the Maharashtra High Court and Supreme Court of India.

In this case, Maharashtra High Court gave decision in the favor of State to collect tax as mentioned in the Income tax Act and no further appeals will be entertained by this court.

The Supreme Court of India held that the tax payment is a common burden on all citizens and residents of India, no person shall escape from payment of tax as it provides benefits to them in return in near future only. Thereby, the aforesaid petition for stoppage of tax payment by temples and religious places stands dismissed.

THE COMMISSIONER, HINDU RELIGIOUS ENDOWMENTS VS. SRI LAKSHMINDRA THIRTHA SWAMIAR[18]

In this case, the petitioners were using public funds for the purpose of promotion of their religion by encouraging more number of persons to follow their religion and devote their time in that particular religion.

The Apex Court in this case held that no public fund can be used to promote any religion as the constitution of India is secular and gives freedom to follow any religion and hence the petition filed by the petitioners is dismissed and their right to look into the matter of public funds is also taken away and state is being strictly instructed to look in these matters as it prohibits the Constitution, hereby guidelines stated in Article 27 of the Constitution of India are meant to be followed without any changes by each and every state situated in boundaries of India.

MAHANT SRI JAGANNATH RAMANUJ DAS AND ORS. VS. THE STATE OF ORISSA[19]

In this case, the petitioners weren’t paying the tax. They were being confused between the tax and fee that has to be paid must be stopped for all the religious institutions as they don’t earn money and it is for public use not for one’s personal use.

 In this Supreme Court held that fee is not demanded under any act but tax is needed to run the office of Commissioner and meet the expenses so as to provide security and safety to all these religious institutions. The purpose of collection of tax is not to preserve Hindu religion but to see that religious institutions are administered properly and according to the norms.

ARTICLE 28

  1. A. V. COLLEGE ETC VS STATE OF PUNJAB & ORS[20]

In this case, it was observed that D.A.V. College was promoting and making students study about the life of Guru Nanak in detail and implement in their routine life. It was claimed that it was a clear violation of Article 28 of the Indian Constitution.

 The Supreme Court in this case that the Guru Nanak University Act clearly under section 4 states that the institution can make students study about the life of Guru Nanak, but not to follow them hence the ground on which it was challenged was completely voidable and hence the appeal is dismissed. Therefore, the petition is dismissed and does not amount to religious instructions or promotion of any particular religion and, hereby declaring it as constitutionally valid.

  1. ARUNA ROY AND OTHERS VS UNION OF INDIA AND OTHERS[21]

In this case, petitioners filed the petition to know the validation of NCFSE commonly known as NCERT was violative of Article 28 as it clearly states that all students all over the world should learn and study from the same book as provided and approved by NCERT. This act also makes the students study in a bit more different way as some students know something of core importance which has been wrongly indicated in the text books.

In this case, the Apex Court gave decision that the central education system is not violative of Article 28 of the Indian Constitution as it doesn’t impart any specific religious implications it gives students a basic structure of study which is not at all violative of Article 28 of the Constitution of India.

DR.S.KRISHNA SARMA VS KANTHIMATHY PLANTATIONS PVT.LTD[22]

In this case, the petitioner’s grandfather owned a rubber plantation later another plantation was also opened which was owned by the respondent’s and which has three subsidiaries in the name of its own. After a span of time petitioner’s grandfather expired and fight between brothers took place for the distribution of property and later they approached company law and the petitioner was moved by the company law board from the post of Managing Director to Director on the basis of his religion by violating the application of Article 28 of the constitution of India.

 The Highest Judiciary found that the company law board has strictly prohibited the application given and submitted by the petitioner, whereas the decision taken by them was correct for the transfer but the grounds which they presented were completely violation of Article 28.

Hereby, this judiciary lays down guidelines for the company to establish new law board and also to sustain the orders passed by them on the grounds of discrimination of any kind with immediate effect. Rest the matter of distribution of property will not be entertained as the company law board is to be established at new edges. Hence the appeal for distribution of property is dismissed and the judgment for the appeal of transfer of petitioner is decided in the favor of petitioner.

CONCLUSION

In India religion is the key to its success as it allows all kinds of people to follow their beliefs unless it harms the harmony and peace of nation. The Constitution of India provides freedom of right to religion which protects the well being of its citizens and residents by enabling them to approach to the judiciary for the protection of their rights.

It helps nation in evolving the minds of people by giving them freedom to believe and follow any religion or believes. It plays a crucial role in Indian Society by in governing there conduct as well as their practices. Also, we Indians are extremely possessive about our religion and believe.

Right to Freedom of Religion has been defined under Part III (Article 25- Article 28) of the constitution of India. There are number of issues raised by the citizens or residents of India which are being wisely solved by the judiciary of India.

No person in India can wave away his right of freedom of religion if it interfere or creates disturbances in the harmony and peace of our Society. It helps the Government to distinguish person on the basis of religion and have an insight directly into the religious believes the people are following and if any belief which is found out to be against the Society then it must be stopped. E.g. Sati-Pratha in Hindu’s, Triple-Talaq in Muslim’s, cow slaughtering in Christian’s, etc.

Religion is only a fundamental right but also is duty to be followed for the growth and development of the country.

[1] Mahi Kashyap, Essay on Religion, SOCIOLOGY DISCUSSION (Nov 14, 2017), http://www.sociologydiscussion.com/essay/religion-essay/essay-on-religion-india-sociology/13515.

[2] Freedom of Religion, WIKIPEDIA (March 18, 2018, 22:27), https://en.wikipedia.org/wiki/Freedom_of_religion.

[3] Riots Violence in India, WIKIPEDIA (January 14, 2018, 1:08) https://en.wikipedia.org/wiki/Religious_violence_in_India.

[4] Religion in India, WIKIPEDIA (March 22, 2018, 20:07) https://en.wikipedia.org/wiki/Religion_in_India.

[5] INDIA CONST. art. 25.

[6] DR. J.N. PANDEY, CONSTITUTIONAL LAW OF INDIA 358-363 (51st ed. Central Law Agency 2014).

[7] INDIA CONST. art. 26.

[8] INDIA CONST. art. 27.

[9] INDIA CONST. art. 28.

[10] AIR 1958 SC 731.

[11] Indian Kanoon https://indiankanoon.org/doc/1908588/.

[12] 1987 AIR 748, 1986 SCR (3) 518.

[13] 1959 AIR 860, 1959 SCR Supl. (2) 499.

[14] AIR 2015 SC 460.

[15] AIR 1992 AP 310.

[16] (1995) 4 SCC 646.

[17] 1954 AIR 388.

[18] 1954 AIR 282.

[19] 1954 AIR 400.

[20] 1971 AIR 1737.

[21] AIR 2002 SC 3176.

[22] Indian Kanoon https://indiankanoon.org/doc/1724795/.