A PROJECT ON

“DIMENSIONS OF ARTICLE 21 OF CONSTITUTION OF INDIA”

Submitted By
Mahua Dutta
B.A. LLB (HONS)
Semester X
SEC- A
Roll No. 93

Submitted To
Dr. Deepak Kumar Shrivastava
Assistant Professor

HIDAYATULLAH NATIONAL LAW UNIVERSITY

RAIPUR CHHATTISGARH

Submitted On 26th APRIL 2020

1
 ACKNOWLEDGEMENT

First and foremost, I would like to thank my Fundamental Rights and it’s Enforcement
teacher Dr.Deepak Kumar Shrivastava for offering this subject, “Dimensions of Article 21 of
Constitution of India” and for her valuable guidance and advice. He inspired me greatly to
work in this project. He willingness to motivate me contributed tremendously to my project. I
also would like to thank him for showing me some example that related to the topic of my
project.
Besides, I would like to thank the Hidayatullah National Law University for providing me
with a good environment and facilities to complete this project.
Last but not least, I would like to thank all my friends who helped me do this project by
sharing their ideas when we combined and discussed together.

MAHUA DUTTA

Roll No-93

Sec.-A

2
 CONTENT

INTRODUCTION ..................................................................................................................04

OBJECTIVE...........................................................................................................................05

RESEARCH METHODOLOGY...........................................................................................05

CHAPTER 1-Constitutional Mechanism For Uplift Of Scheduled Castes and

Scheduled Tribes.................................................................................................................06

 1.1 Fulfilment Of Constitutional Mandate – How Far?  How Fair?........................07

 1.2 Untouchability and Atrocities............................................................................08

CHAPTER 2: Governmental Intiatives...............................................................................11

 2.1 Legislations (PCR and PoA)..............................................................................11

o 2.1.1 Untoucahbility and the Prevention of Civil Rights act, 1955.............11
o 2.1.2 Atrocities On Scheduled Castes and Scheduled Tribes and the

SC&ST (Prevention of Atrocities) Act, 1989....................................12

 2.2 Governmental Policies ......................................................................................15

o 2.2.1The Scheduled Tribes (Recognition of Forest Rights) Bill, 2005........15
o 2.2.2 The Prohibition of Employment as Manual Scavengers

and their Rehabilitation Bill, 2012.....................................................22

CONCLUSION..................................................................................................................27

REFERENCE.....................................................................................................................28

3
 Introduction

All across the civilized states, freedom of religion and belief is considered to be a basic
human right. Article 18 of the Universal Declaration of Human Rights4 guarantees everyone
right to freedom of thought, conscience and religion which includes freedom to change
religion and belief. As a democratic republic, India, giving weightage to its secular
credentials, too has guaranteed all persons equally freedom of conscience, profession,
practice and propagation of religion.

Freedom of religion and conscience is considered as being vital to every democratic

constitution. The freedom in civilized countries today extends not merely to holding of
particular beliefs but to the absence of belief in religion.6 Religion and thought constitute the
most intrinsic part of man‟s nature and any interference with the free exercise thereof would
be experienced as a grave violation of an inherent human right. The freedom to hold beliefs
of one's choosing and to change them is central to human development. It is the individual's
search for meaning and the desire to know who we are as human beings.

Article 25-28 of the Indian Constitution confers certain rights relating to freedom of religion
to „all persons‟ in India. Article 25(1) guarantees to every person freedom of „conscience‟,
right to „profess‟, „practice‟ and „propagate‟ religion.

Comparing article 25 with other international documents we do realise that although religious
freedom is guaranteed to an individual as well as groups and denominations but this right is
not absolute and subject to certain limitations. article 25 of Indian Constitution too provides
for certain limitations.10 Article 25 starts with a limiting clause „subject to public . order,
morality and health and other provisions of this Part‟. This implies that religious freedom
guaranteed under article 25 is not absolute and in fact, it is the weakest constitutional
guarantee in the sense that it is subject to all other fundamental rights guaranteed under the
Constitution

4
Objective:

 To analyse the legislations bought forward by the government to improve the situation of
Scheduled Caste and Scheduled Tribes in Society.
 To analyse the policies bought government forward by the government to improve the
situation of Scheduled Caste and Scheduled Tribes in Society.

Research Methodology:

The objective of this project is to analyse the legislations and policies bought government
forward by the government to improve the situation of Scheduled Caste and Scheduled Tribes
in Society.The research is descriptive and analytical in nature based on secondary sources,
Books and other references as guided by Constitution of India have been primarily helpful in
giving this project a firm structure. Websites, dictionaries and articles have also been
referred.

5
 CHAPTER 1- FREEDOM OF RELIGION IN INDIA

Religious freedom is a fundamental human right and the first among rights guaranteed by the
United States Constitution. It is the right to think, express and act upon what you deeply
believe, according to the dictates of conscience. Religious freedom, or freedom of
conscience, is critical to the health of a diverse society. It allows different faiths and beliefs to
flourish. Religious freedom protects the rights of all groups and individuals, including the
most vulnerable, whether religious or not
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.
The Indian Constitution guarantees certain fundamental rights which were described in
articles 12 to 35, which shape Part III of the Constitution. Among these articles, art., 25 and
26 are the two key articles ensuring religious freedom.
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.
The Indian Constitution guarantees certain fundamental rights which were described in
articles 12 to 35, which shape Part III of the Constitution. Among these articles, art., 25 and
26 are the two key articles ensuring religious freedom.

6
Religious freedom is premised on the belief that every human being has inherent dignity to
explore his or her conscience and pursue the truth.28 Dr. Sarvepalli Radhakrishnan, former
President of India and prominent member of the Indian Constituent Assembly, said that
religion is a code of ethical rules and that the rituals, observances, ceremonies, and modes of
worship are its outer manifestations. Unless one is able to interact with, interpret, and
reinterpret his or her own religious sources, or shape and reshape his or her beliefs in light of
changing social and political realities, progress can never be made.35 As such, religious
freedom is essential for religious reform. Without such organic progress, religions—and the
societies they deeply affect—can become stunted.36 Thus, only greater freedom for religions
and other identity-based groups can lead to social harmony.37 Repression, on the other hand,
leads to violence.
Having spoken of the importance and inherent social value of freedom in matters related to
religion, we shall discuss the significance of secularism for the religious minorities in India.
We will also examine how the Indian Supreme Court has narrowed the scope of
constitutionally guaranteed freedom of religion by propounding the essentiality test. 

7
 CHAPTER- 2 ROLE OF COURT IN RELIGION

Article 25[1] a person has a two -fold:-[a] freedom of conscience, [b] freedom to profess,
practice and propagate religion. The preceding cases point out that the Supreme Court of
India has held a principled approach towards religion when appealed for judicial definition of
‘religion’ and ‘matters of religion’ protected under articles 25 (1) and 26 (b) of the
Constitution. As a general rule, it has maintained a liberal definition of religion - as assumed
in most of the liberal democratic States - covering in its ambit belief, doctrines and moral
codes, rituals and observances, ceremonies and modes of worship.50 However, in some
cases, the Supreme Court did not hesitate to pass a strict definition of ‘matters of religion’ as
protected under clause (b) of article 26 of the Constitution limiting them only to those
essentials and obligatory overt acts necessary to express one’s faith.51 These are the
instances where the Court found that certain acts of rituals though sanctioned by a particular
religion, if allowed to perform would violate, on reasonable grounds, social solidarity and
even cause harm to life.
In the context of a religiously plural society like India, where conflicting value systems often
compete with each other, the principled approach of the Supreme Court on religious matters
is to promote religious freedom that secures human dignity. Therefore, the Court may apply a
liberal or a conservative approach towards religion depending on which of the two better
promotes religious liberty consistent with a set of values that protect the sanctity of human
life and provide a life-affirming space for all to live in dignity. 
Hence, the Indian judiciary tells in unambiguous language that the Constitution recognizes
the importance of religion in people’s life, and that it holds religious liberty as a fundamental
value of the Indian political community but not at the cost of certain substantive principles
which are necessary in the society for all to lead a life worthy of human dignity. Religion
thrives in India and it remains an integral aspect of Indian ethos. Its popular practices are
multifarious and often unrestrained as shown by Dr. B.R. Ambedkar during the debates in the
Constituent Assembly. In this context, the principled approach founded on reason as held by
the Indian Supreme Court regarding religion is an important requirement to keep religions to
be authentic in their practices. Such an interpretation of religion would remind believers to
shed away non-religious and, at times, even unreligious accretions added to religious
practices. It would enlighten the followers of various faith traditions not to thwart the
legitimate activities of the State to further the cause of human dignity.

8
The  religious freedom guaranteed under article 25 is not limited to the citizens of India only
but also applies to “all persons” as spelt out in clause (1) of the said article. “Article 25 of the
Constitution guarantees to every person and not merely to the citizens of India, the freedom
of conscience and the right freely to profess, practice and to propagate religion”.
To 'practice' religion is to perform the prescribed religious duties, rights and rituals, and to
exhibit his religious belief and ideas by such acts as prescribed by religious order in which he
believes. The freedom to practice religion is protected under article 25 (1) of the Indian
Constitution. In the year 1952, the first case of this sort seeking protection under this
constitutional right as guaranteed in clause (1) of article 25 appeared before the High Court of
Bombay.
The case arose out of the Bombay Prevention of Hindu Bigamous Marriage Act, 78 passed by
the State of Bombay. The Act prevented bigamy among Hindus alone who resided in that
State while the Muslim community that practiced polygamy was left out of the operation of
the said Act. Therefore, Shri Narasu Appa Mali appealed before the High Court of Bombay,
because the Act infringed the plaintiff’s religious freedom. The aggrieved plaintiff alleged
that by enacting the Bombay Prevention of Hindu Bigamous Marriage Act of 1946, the State
of Bombay discriminated between Hindus and Muslims residing in that State on the basis of
religious practice and, therefore, pleaded that the enactment was void.
The Court upheld the impugned Act constitutionally valid. Mr. M.C. Chagla, the Chief
Justice of the Bombay High Court, who gave the judgment of the Court in this case, indicated
that the freedom to practice religion as provided under article 25(1) was not absolute, in the
sense that if religious practices contravened to public order or to a policy of social welfare,
then they said practices could not claim State protection. He also opined, “a sharp distinction
must be drawn between religious faith and belief and religious practices. What the State
protects is religious faith and belief.”
Subsequent to the Narasu Appa Mali case, 80 many cases came before the Supreme Court of
India for constitutional protection to “religion” and “matters of religion” as guaranteed in
articles 25 (1) and 26 (b) respectively against certain state statutes.81 In these cases, the
Supreme Court had the occasion to deal with the question of “freedom of practice of religion”
protected under article 25(1)

CHAPTER- 2 THE TEST OF ESSENTIALITY

9
The Preamble of the Constitution of India declared India as a secular nation. The Supreme
Court declared secularism as a part of the Basic structure of the constitution and hence cannot
be done away with. Article 25 and 26 are the embodiment of secularism. Article 25 of the
constitution grants all the persons the right to practice religion and Article 26 grants the
religious denominations the right to manage the religious affairs subject to public order health
and morality.
From analysing the the judgements of the Supreme Court in past decades on matters relating
to article 25 and 26, it is evident that the court upheld the right to practice and manage a
religion and always tried to have minimum intervention in the matters of faith and religion. In
the landmark judgement of The Commissioner, Hindu Religious Endowments, Madras v. Shri
Lakshmindar Thirtha Swamiyar of Shri Shirur Mutt popularly known as Shirur Matt case, the
constitutional bench of seven judges of supreme court laid down the law regarding article 25
and 26. In this case, The court took a very safe route and stated that only those practices and
customs which are essential to the religion are protected by the constitution. And whether a
practice or custom is essential to a religion will be decided on the basis of tenets of the
religion.
Since the Shirur Matt judgement, the concept of essentiality has formed the core aspect in
deciding any matter related to the constitutional protection of any custom or practice. The
question of how to apply the doctrine of’ tenets of religion’ came up before the Supreme
court in Acharya Jagdishwaranand Avadhuta etc.vs Commissioner Of Police, Calcutta 1. In
this case the question was whether a public dance wearing a skull and trident by the followers
of ananda marga sect was an essential part of the religion.. The court stated that to determine
whether a practice or custom is essential to a religion, it has to be seen whether the removal
of such practice, the nature of the religion changes.
The Essentiality test(Doctrine of tenets of religion) was applied by the High Court of
Bombay in the case of Dr. Noorjehan Safia Niaz And Anr vs State Of Maharashtra And Ors 2,
also known as the Haji Ali Case. The court in this case issued a directive in favour of entry of
women in the inner sanctum of the Haji Ali dargah which was banned since 2011. The
petitioners contended that such prohibition was prescribed neither by the Holy Quran nor by
the Hadith. The court in this case held that since such restrictions does not come from the

1
1984 AIR 512
2
pil.106.14.doc

10
basic scripture of Islam and is not an essential practice in islam as most of the dargahs do not
have such restriction, such restriction was unconstitutional.

For a very long time, The essentiality test was used by the court to decide matters under
article 25 and 26. However the unidimensional application of this doctrine caused enormous
difficulties as it led to contradictory stances by the same court. The doctrine was used by the
courts to such extent that it completely overshadowed Article 25 itself. In Indian Young
Lawyers Association vs The State Of Kerala, commonly known as Sabarimala Case, the
prohibition on entry of women between the age of 10 years to 50 years in the Ayyappa
temple in Sabarimala was challenged. The respondents contended that such prohibition was
imposed to preserve the celibacy of the deity. Justice Chnadrachud aptly pointed out that
placing the burden of deity’s celibacy on women reduces the identity of women to mere
sexual object and it also insults the deity as it suggests that the deity cannot handle his own
celibacy. The court by the majority of 4:1 decided the case in favour of entry of women in the
temple. The court decided the case on the grounds of gender justice under article 14 and not
by applying the test of essentiality. Justice Indu Malhotra, who gave the sole dissenting
opinion in the case also pointed out that ‘it’s not for the court to decide what practice is
essential to a religion, it is upto the worshippers.’ Justice D Y Chandrachud indicated that the
problem with the essentiality concept was that if a practice is considered essential then it also
becomes inviolable. The essentiality concept has taken over Article 25 and it should not be
so. The test should be whether or not a practice subscribes to the constitution irrespective of
whether it is essential or not. The courts have to put the religious practices in question to the
test of fundamental rights to derive their legitimacy from the constitution itself.
The bench in Sabarimala case was of opinion that the prohibition of entry of women in
religious places was not only limited to sabarimala but such restrictions were also there with
regard to entry of women in mosques and dargah and parsi women, married to non-parsi
men, in the place of holy fire in Agyari and the question that ‘what is the permissible extent
of judicial recognition of PIL’s challenging religious practices’ also have to be answered.
Therefore the 5 judge bench in the Sabarimala Case , referred all these questions to a 9 judge
bench of the Supreme Court since the time has come when the Supreme Court devises a
policy to do complete and substantial justice in these matters.

Time and again the intervention of courts in religious matters have been considered judicial
overreach. Though it is still not clear to what extent the courts can intervene in a religious

11
matter but it’s crystal clear that the Supreme Court is the guardian of fundamental rights and
hence it cannot let religion dictate the rights to the people. It cannot let any discriminatory
practice mandated by the religion to violate the rights of the citizens. In other words the court
shall always interfere in religious matters when religion interferes with fundamental rights.

12
 CONCLUSION

In societies like India where religious passion is always undercurrent and emotions are valued
more than reason, any stray activity offending the religious sentiments of the people can
cause the society to erupt with disastrous consequence. At times due to prevailing
circumstances it becomes essential for the state to regulate certain religious activities of an
individual and it is highly desirable that the state does it in a manner so as to preserve
individual liberty uptil the time it is possible.

The state is under obligation to respect and protect the rights of the individual. Religious
freedom is quintessential for the complete development of human intellect and personality.
Conscience of a man shapes his life. Unnecessary and uncalled for restraints in the exercise
of a man‟s innate freedom because of fear instilled in his mind due to the existence of some
vague terminology used in a statute is a very sad preposition.

For a very long time, The essentiality test was used by the court to decide matters under
article 25 and 26. However the unidimensional application of this doctrine caused enormous
difficulties as it led to contradictory stances by the same court. “The essentiality test has
proved to be the biggest deterrent to freedom of religion in India.”197 It was invented by the
Indian Supreme Court without any constitutional basis.

Justice D Y Chandrachud in Sabarimala Case indicated that the problem with the essentiality
concept was that if a practice is considered essential then it also becomes inviolable. The
essentiality concept has taken over Article 25 and it should not be so. The test should be
whether or not a practice subscribes to the constitution irrespective of whether it is essential
or not. The courts have to put the religious practices in question to the test of fundamental
rights to derive their legitimacy from the constitution itself.

Time and again the intervention of courts in religious matters has been considered judicial
overreach. Though it is still not clear to what extent the courts can intervene in a religious
matter but it’s crystal clear that the Supreme Court is the guardian of fundamental rights and
hence it cannot let religion dictate the rights to the people

13
 REFERENCE

BOOKS

 M P Jain, Indian Constitutional Law 

 V.N. Shukla, Constitution of India

Websites

 http://www.insightsonindia.com/2015/10/21/2-critically-discuss-the-effectiveness-of-
the-scheduled-caste-and-scheduled-tribes-act-in-stopping-atrocities-against-sc-st-
communities-in-india/
 http://in.one.un.org/task-teams/scheduled-castes-and-scheduled-tribes/
 http://www.prsindia.org/billtrack/the-scheduled-tribes-and-other-traditional-forest-
dwellers-recognition-of-forest-rights-bill-2005-431/
 http://www.prsindia.org/billtrack/prohibition-of-employment-as-manual-scavengers-
and-their-rehabilitation-bill-2012-2449/

14